Tampa City Council
Thursday, September 1, 2005
6:00 p.m. Session
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>>CHAIRMAN: Tampa City Council is called to order.
At this time we will have the invocation by Shirley Foxx-Knowles.
>> O Lord our Lord, how excellent is Thy name in all the earth.
I will praise Thee O Lord with all Thy heart.
I will be glad and rejoice in Thee.
I will sing praises to Thy name, O God most high.
Gracious father, thank you for this evening and for this place and this time.
I ask that you increase in the Tampa City Council members the gifts of faith, hope, charity, and compassion in the decisions they must make today, and the gift of understanding for the individual who will come before this council.
I ask that you make the council members instruments of your will.
Lead them as they make decisions that affect the lives of the citizens of our fair city.
Lead them in the right way.
Lead them, O Lord, in righteousness and make Thy way straight before Thee.
These things we ask with humble hearts.
>>GWEN MILLER: Roll call.
>>JOHN DINGFELDER: Here.
>>LINDA SAUL-SENA: Here.
>>SHAWN HARRISON: Here.
>>MARY ALVAREZ: Here.
>>ROSE FERLITA: (No response.)
>>KEVIN WHITE: (No response.)
>>GWEN MILLER: Here.
At this time, we have our mayor with us.
We are going to hear from her.
>>MAYOR PAM IORIO: Council members, I'm here.
You continued the stormwater assessment issue until 6:00.
And I'm here before you asking for your reconsideration of your earlier vote.
The five-year capital stormwater plan was not arrived at light by.
This was a plan that started first when I was running for office, and in all the 45 forums that I attended, I heard the same thing -- we want you to solve problems, we want to you make this city better, we want to you invest in infrastructure, and we want you to do it in a prudent and thoughtful way.
From the first time that we brought the stormwater fee before you in 2003, we have attempted to do just that, be conservative in our approach, be methodical, do it the right way, do it in a way that would withstand legal challenges, get the best experts, do the basis studies.
We first put a $12 a year fee in front of you, did the necessary studies, did the analysis, and then came before you, which I think is a very thoughtful five year capital improvement plan, which would raise the fee to $36 a year, on average $3 a month.
Obviously more for commercial.
Obviously more for those who had more impervious surface.
You have all the statistics in front of you about how we compared to other cities and counties.
The fact is that most of these counties and have stormwater utilities for decades, not just for years, they have had them for an awfully long time.
So they have had mature stormwater systems where they have been able to take better care of their pipes and their ditches, they have been able to go through a methodical plan of replacing stormwater pipes, they have been able to do capital programs on a regular basis, and they have been able to do it with the plan that they have been able to show the public in a reasonable way.
Throughout my time in public service, I've always found that if you can put together a reasonable plan and put it before the public, and if you can show them exactly what is going to be done and in what time frame, they are accepting of it.
I have seen that time and time again.
Nobody likes an increase in fees.
There's nobody that does.
We do it when we feel that there is an overriding need in the community.
You know, it's a cyclical thing with the rainy.
Sometimes you have rainy times, other times the drought.
But I have seen firsthand and I think all seven of you have seen firsthand what flooding does to people.
How much does it cost a person when their car is stalled at Dale Mabry and Neptune.
How much does it cost for a tow truck?
What does it cost a business when water gets in?
What does it cost a homeowner when their home is flooded?
What does it actually cost people in this community when stormwater needs are neglected?
You can almost see why stormwater needs have been neglected over the years.
There's no great ribbon cutting.
There's no great item that you can point to and say, look at that, that's a legacy project of some sort.
A lot of it is underground.
You know, it's not perhaps the most exciting thing to do.
But I believe fundamentally it is our job as public servants to address these problems, whether they are exciting projects or not.
All of you know what budget moneys we have available.
It's no secret.
There's no pot of money that we can substitute for this fee.
That's why cities and counties across the State of Florida have adopted stormwater utilities, so there can be a set amount he have year that they can count on for stormwater.
That's why it was developed years ago.
As a separate funding source.
We all know here what we have our funding from, we get ad valorem, we get utility tax, your gas tax.
All of you know those sources.
And if we take money from another source and put it here, it means taking away from parks and recreation, it means taking away from the General Fund, taking away from all the things that you talk to me about all the time that you want more money for, frankly.
You want more expenditures in every one of those areas.
You know, so often people don't come down when they are for something.
I bet -- I bet that if we let the people know in this community of these 36 projects, these projects weren't going to get done, this room would be filled, because people do want top see progress.
At a reasonable cost.
And that's what we are always going to do during my administration.
We are going to always take that kind of an approach, analyze the problem, be methodical about it, get lots of public input, be conservative in our approach, and put together a plan that we feel, the majority of you can adopt.
Now, I recognize -- and I don't expect unanimity on most issues, and I do respect differences of opinion, and I understand the political process, and there are differences of opinion.
And I wouldn't be before you tonight if I didn't feel that solving stormwater problems were not a priority for our community.
They are a priority.
They affect the quality of life.
We were at west Tampa the other day for the west Tampa elementary project, which is in four phases.
Those students and teachers used to go to school in a foot of water.
That's not acceptable in the City of Tampa.
That's not the kind of city we want.
I don't think it's the kind of city any of us want.
If there were another funding pot we would have recommended it.
If there was another funding source previous administrations would have already done it.
If it were easy, it would have already been done.
Our job is to do the hard things.
That's what we were elected to do, the hard things.
I respect the fact that not everyone wants this fee increased.
And I'm not here to argue with you about your points of why you might be for or against it.
I'm just here to tell you that I care about this stormwater fee and having it passed, because this five-year program will be a milestone for our city.
It will be a maturity step for our city, and we finally have recognized the need to address this basic infrastructure issue, one that you don't cut ribbons about, but that really matter to people.
It really matters in our quality of life.
It addresses everything, bursting pipes, new stormwater projects, it addresses maintenance issues, maintenance all over the city in every single part of this community.
It addresses that.
And, you know, it gives us a plan.
If we are going to ever get state and federal funding, they want to city a city that has a plan.
And they do compare our plans to other cities and counties.
And they like to see what other cities and counties have put into their plans.
And they want to see that this city has stepped up to the plate and has a reasonable fee in place.
Council members, you have a difficult job, and I respect it very much.
And I know that it's not easy to raise rates or create new fees, do any of the things you are about ready to embark tonight on something that's extremely controversial, and I understand that.
But fixes our stormwater problems is important.
And I respectfully request that you approve the stormwater fee non-ad valorem assessment roll and the associated fee increase that was presented to you this afternoon.
>> Thank you, Madam Chairman.
Thank you, mayor.
One of the issues that wasn't raised this afternoon was the quality of the river that runs through our community, and the river is absolutely affected by this.
And that effects each and every council member's district. Anyway, I would ask one of the council members who voted -- who did not support this earlier in the day and had a little time to reconsider it to step up to the plate and make a motion to support it.
>>SHAWN HARRISON: Thank you, Madam Chair.
Mayor, we appreciate you coming down.
A bit unexpected but we appreciate it.
Every one of us agrees stormwater is an issue that this community needs to address.
And what we decided an hour ago was that there could be a different approach for us to take.
And without having had the benefit of the administration to look at what that different approach might have been, and for us to consider what that different approach might have been, everything is being sprung on us right now, when I think that we had -- I think that we have drawn to a conclusion an hour ago.
Everyone who came to the meeting who was here just an hour ago is now gone.
They came to speak about the stormwater increase.
I feel uncomfortable not -- this procedurally is in a position where we are not in a public hearing any more with the folks who were here speaking about it.
And I don't think we continued this for an hour.
I think that certainly the intent of my motion was to let everyone come back in an hour and say when we would continue this meeting to.
>>JULIE BROWN: Julie Brown, assistant city attorney.
Actually, at the afternoon meeting you continued the public hearing remained open and you continued it until 6 p.m. to determine a time to reschedule it, or to -- so the public hearing is still open.
>>SHAWN HARRISON: That may be.
But the members of the public who were here then have now left, not believing that this was going to come back for another vote just an hour later.
>>JULIE BROWN: The public hearing was continued and everybody that was at that public hearing knew the public hearing was continued till 6 p.m. so they had notice.
>>ROSE FERLITA: Madam Chairman, I'm kind of at a loss with as many remarks as I usually make as well.
It's my understanding, the same as Mr. Harrison, that we were to come back and determine when we were going to discuss this.
It is unfair to the audience that is here because you weren't here before, and it appears that either council members are for or against fixing stormwater.
Obviously I look out there, and the majority of the people in this audience are South Tampa residents.
They are neighbors of mine.
I am certainly not opposed to doing whatever we have to do to correct stormwater.
As a matter of fact, I gave credit where credit is due.
I said some of these issues should have been done long before Mayor Iorio was in office.
And that's a sad thing.
However, looking at the sum total of what people are having to put up with, and in a very summarized fashion, we looked at increasing fees for water and wastewater.
We looked at increasing rates for water and stormwater -- not stormwater, but solid waste.
Looking at assessments.
Looking at the trim notices.
Yes, the millage didn't go up but the valuation went up.
And all to the credit the mayor has not increased the millage, she hasn't decreased it either and we have a good windfall of moneys from that.
So I think this is very unfair to the four dissenting votes because this is not what we were under the understanding we were going to do tonight.
We all want to help improve stormwater, especially people in South Tampa.
I think where we disagree is on the mechanism, on the methodology of it, and how we are assessing it.
It may be fine and swell that somebody in Miami is used to paying $68 or $78.
But when you take somebody who is left out, that is not able to look at all these things they are facing and give them the catastrophe we see in Louisiana and Alabama, gas prices are going to be another strong commodity that people are going to have to absorb.
So it's not whether we want to fix it or not fix it.
We do. We all agree on that.
We just have a difference of opinion for how to get there.
And for us to continue this discussion tonight as opposed to what was in my interpretation just an agreement to continue it and give it an opportunity to continue to survive, while at Mr. Harrison's suggestion, we look at other avenues about where we can fix stuff.
And mayor you are right, when we look out there and me as a City Council member, everybody wants everything that government can give them, and in good times we are trying to accommodate that.
But I can guarantee you the citizens that supported you and supported us understand that we have to cut someplace.
However, we cannot do this on the backs of citizens that have all this -- all these new additional taxes, and expenses that they are not able to afford.
So all we were saying today was give us another opportunity, although the administration has put us in an eleventh hour administration, give us an opportunity to look at other Avenues.
If there's something we can offer in terms of cuts, in terms of the department looking at something else.
But for you to come and push us into making a decision, it's $36 or three times an assessment was not suitable for the constituents this morning or this afternoon, it's not good for them now.
We cannot be forced into a position of not looking at alternatives.
And in an hour that we were gone to have dinner or whatever we had to do, that's not enough time to look at other sources of revenues.
And you're right.
There's not any hidden pot but at the same time in fairness to the people who can't afford that increase, we need to look at it again.
You all put us in this predicament and we are trying to help you in terms of finding other sources.
But within an hour for you to ask to us reconsider it, we have already reconsidered it.
We have considered it today.
And I personally need more time.
I won't be the one that's offering a motion to reconsider based on those reasons.
>>MAYOR PAM IORIO: Madam Chairman, if I may, if the four who voted against this earlier in the day still have the same sentiment, I will accept that and leave the meeting and the issue will be dead.
But I would like an opportunity to know if that is still the sentiment of the seven council members.
>>GWEN MILLER: Mr. Dingfelder?
>>JOHN DINGFELDER: Thank you, Madam Chair.
Out of this extremely important issue, what I said this afternoon, and I think it's true and important for everybody to hear again, is that no administration in the last -- in history of Tampa has ever taken a serious stab at addressing our stormwater problems.
And being that these are mostly South Tampa residents, I think that you know what I'm talking about.
We have serious stormwater problems.
We have kept our head in the sand for decades, and every single mayor pays it lip service, but at the end of the day they don't do anything because there's no money to do it.
This mayor has stepped up to the plate.
She's put herself in front of us today.
She doesn't have to do that.
And basically she has said, we need to do this.
We're going to bite the bullet.
And we are going to do it because it's the right thing to do.
Because we shouldn't burden our grandchildren and our children with this problem just like we have been burdened today, and that's why we are where we are today.
That's why I supported the motion.
Mrs. Saul-Sena supported the motion.
Ms. Alvarez supported the motion.
Unfortunately, there was some dissent.
At this point in time, Madam Chair, as has been indicated by council, if any of the four members want to make a motion for us to reconsider, then we are at a procedural posture where our attorney has said we can reconsider it.
If that's not the case, then we move on to another issues.
>>KEVIN WHITE: What a couple other council members said is right on target.
As far as voting, I was not prepared to come back this evening and do another vote on it.
The public hearing is open.
Everyone in here may still want to speak about the stormwater.
We haven't closed the public hearing yet.
They can all speak to this issue.
One of the things that -- I really think it's important -- yes, this is a city-wide problem, but the unfortunate reality of the situation is the five year plan of the 34 of the 95 projects that are proposed for the next five years, we don't have in all areas of the city.
As I explained earlier, Mr. Harrison's New Tampa is just that, new.
They don't have these problems.
The infrastructure is in place.
But we have areas of the city who, as I'll say again, which I didn't even know, and I got electorates still on septic, don't even have sewer, and they have serious stormwater concerns, the water doesn't percolate.
I was looking at a photo this morning where they have feces coming up into their homes and into their yards, and everything else.
And this area is not even on the list.
Seems like everything stops at 40th street east.
There's nothing east of 40th street.
People in East Tampa think it stops at 40th street.
Everything east of 40th street, we are in the forgotten land.
And that's a large part of this.
And not only that, but from representing people, the great majority of the people in my district, unfortunately who are on fixed incomes, that after all of these tax after tax after tax after tax, and then they can barely afford cars, and now 3, 4, ask Z 5 for gasoline.
We heard talk about that this morning.
I just don't think that we as a body -- I could be wrong -- can move forward if we haven't been given the opportunity to digest some of the other opportunities.
Discussed with staff if we are going to go back, we will come up with some alternative solutions, or some different rate increases and see how that may affect the budget, because we were only proposed this budget, and these were the moneys that were allocated and this was what was supposed to be.
Maybe the administration would be expected council to rubber stamp that.
I don't know.
It kind of appears that way.
I don't know.
But I know the great majority of the complaints that I've gotten is paying for a service that I'm not going to be a part of.
Now, I think the City of Tampa, I realize that every area of town, my area, and I'm paying my fair share.
But the great majority of the people can't necessarily afford to keep getting taxed to death.
And there has to be -- and Mr. Harrison, as the chairman of the MPO, Mrs. Saul-Sena sits on the MPO, I sit on the MPO.
Mr. Harrison made a pledge to find as much federal money as he can.
Whether that's an alternative, whether it's pie in the sky, I don't know.
I have to take his lead on that as chairman of that committee.
He knows much more about that than I probably ever will in the next year and a half.
But I think that at least approach, I don't know, but at this point in time, I can't speak for everybody else, but I don't want to be that particular council member at this juncture.
>>ROSE FERLITA: Madam Chairman, I want to speak in response to what the mayor has said, and I have done so.
And I'm sorry to say that most of the people here are here to listen to this petition on the settlement.
So I think you should ask for the question if part of the prevailing side wants to do something.
It was my understanding earlier we were going to look at this on the 15th and majority win.
This was supposed to start at six and I think we have begged their indulgence one way or another and I think we ought to move forward one way or another.
>>GWEN MILLER: I need to speak, because I made a statement that's let's change to $24 and I the phone kept ringing and I was told if I'm going to pay $24 I could pay the $36.
And I guess I spoke for people that I didn't know how to speak for.
So if they are willing to pay the 36 because they say that they know the need for stormwater in the City of Tampa, and they know that it will be done all in the whole City of Tampa, and not just what would be done in one part of the City of Tampa, but do the whole city get their share.
So I feel like, you know, too they reminded me, think about what happened in New Orleans and what happened in Mississippi.
And we have that problem here, what would happen to us?
And it made me think.
So I'm going to pass the gavel.
I'm going to move for reconsideration.
>>SHAWN HARRISON: Mr. Shelby, procedurally, are we ripe for motion for reconsideration?
>>MARTIN SHELBY: Councilwoman Miller was on the prevailing side.
So is it appropriate for her to move for reconsidering?
Per Robert's Rules of Order the second does not have to be a person on the prevailing side. The motion is in order.
It is on the floor.
>>SHAWN HARRISON: We have a motion for reconsideration on the floor and it is a motion to pass the resolution of $36.
>>MARTIN SHELBY: No, it is not.
It is a motion to reconsider the resolution.
But it will have to be a subsequent motion after that.
It's a two-step process.
The first is the motion to reconsider.
>>SHAWN HARRISON: Simply to reconsider the part --.
>>MARTIN SHELBY: To reconsider the prior vote.
>>SHAWN HARRISON: We have a motion to reconsider the prior vote.
All in favor signify by saying eye of the all opposed signify by saying Nay.
Motion carries 4 to 3.
>> Motion that we adopt the resolution supporting stormwater.
>> Did you pass the gavel back?
>>SHAWN HARRISON: Yes.
>>GWEN MILLER: All in favor say Aye.
>>MAYOR PAM IORIO: Council members, thank you.
I appreciate your reconsideration very much.
And to the public, we will do the projects in the five-year plan and it will be a better city because of it.
Thank you very much.
>>KEVIN WHITE: Move to close the public hearing.
>>MARTIN SHELBY: Did you get what the poll is?
>>GWEN MILLER: Motion to close the public hearing.
Motion and second.
>>LINDA SAUL-SENA: Move to open the public hearing.
>>GWEN MILLER: Motion and second.
>>MARTIN SHELBY: I'm sorry.
Mr. Smith, do you think it would be appropriate at this time to swear in all the parties related to this issue who intend to speak tonight?
At least those who are in the room.
We can't speak for those who are downstairs.
>>THE CLERK: Stand and raise your right hand.
Do you solemnly swear to tell the truth and nothing but the truth?
>>MARTIN SHELBY: Mr. Smith, would you prefer that I make my comments about the ex parte communications?
>>DAVID SMITH: That's fine.
>> Council members, at this time I would ask that all written communications relative to today's hearing, tonight's hearing, that has been available to the public at council's office be received and filed into the record at this time.
>> So moved.
>>MARTIN SHELBY: In addition, any council member that has any verbal communication with the petitioner, his or her representative, or any members of the public in connection with tonight's hearing, that member should disclose the following information before taking action on the matter: The identity of the person, group or entity with whom the verbal communication occurred, and the substance of that verbal communication.
Thank you, Madam Chair.
>>DAVID SMITH: Hearing none I assume we're ready.
My name is David Smith, city attorney.
What I would like to do is of course indicate we are here on the mediated settlement agreement.
I'm here before you as the city attorney speaking on behalf of the city.
This is a very procedurally complicated situation.
In order to try to simplify things, and to assist everyone in exactly how we are going to proceed, what I would like to do is give you a brief overview for you and for the people here as to how we will proceed so we can proceed in an orderly fashion.
We're already late into the process and lots of people need to be heard on this very important subject.
First, Mr. Shelby will explain the procedures that will be employed.
Second, I will provide a brief overview and clarify what you are being asked to do.
Then parties with procedural objections if any can put them on the record.
Next, staff will make their presentations.
They will be followed by the petitioners who will speak in their case in chief.
They will be followed by individual members of the public.
As Marty -- excuse me, a as Mr. Shelby will explain as part of the rules we will request all parties who have questions and the nature of cross-examination provide us with those questions during their time of speaking, and that applies to petitioners as well as to those in opposition.
After the individual members of the public speak, any cross-examination that we do have will be directed through the chair with the assistance of Mr. Shelby.
That will be followed by petitioners rebuttal.
I will make a few following or closing comments.
I assume council will have some questions, some discussion, and you will probably close the hearing and vote.
That is essentially what we will do.
That will give everybody some idea of how this will flow.
And I think the very first item of business was in fact Mr. Shelby to explain the procedures that will be applied for this evening's discussions.
>>MARTIN SHELBY: Thank you.
I had the opportunity to review this with Mr. Smith and his staff with regard to the procedures.
Tonight's hearing is rather unusual in terms of council's procedures.
The public hearing on this matter shall be conducted in the same manner as other quasi-judicial public hearings pursuant to rule 5-C and D and rule 6 of the Tampa City Council's rules of procedures.
We have already asked for council to take ex parte matters into the record, which has been done.
We will allow parties with procedural objections to raise those at the outset.
And Mr. Smith, please correct me if there's anything different than our understanding.
The petitioner, after that staff has made the case and given recommendations, the petitioner shall have a total of 30 minutes for their initial presentation.
An individual from his department pursuant to council rules shall have a total of 3 minutes each to make their presentation.
Individual members of the public, providing they are present in the audience, may designate a representative to be their spokesperson.
There are speaker waiver forms and I had an opportunity at the start of this hearing to ask that those people who do have those forms, please submit them before they begin speaking to allow me to ask the names on that list be called.
I ask that those people be present within council chambers so I can acknowledge them and in fact they have waived their time.
Additionally, I have also asked that no person be in a position to waive their time to more than one speaker.
So I am asking that their name not appear on any more than one council form.
One may obtain seven waivers, waiving the person's right to speak, and adding an additional minute.
Therefore the speaker will have three minutes and up to seven minutes additional for a total of ten minutes.
Per council's policy, cross-examination of witnesses may be allowed during a speaker's time via questions directed through the chair.
And once the chair has accepted the question, then the chair will request that the appropriate individual approach the podium and answer the question or questions.
The time it takes to answer the question will not be counted against the speaker.
We do, however, ask that if you wish to have questions that are posed for cross-examination purposes, that you do pose those questions within your allotted three-minute time.
And we ask that you stay to that time period.
The clerk will be keeping time.
And please, we ask you to be respectful of when the bell goes off that you wrap up and be respectful of the process.
After such time, the petitioner will have ten minutes of opportunity for rebuttal.
Then if there are any additional questions of course by council members, we would ask that those questions be asked and answered prior to the public hearing being closed, and at such time as the public hearing is closed that council may choose to continue to debate the issue amongst itself prior to taking official action.
Mr. Smith, does that encompass the sum and substance of the procedure?
>>DAVID SMITH: I believe it does.
And Ms. Cole as well.
By way of presentation I want you to be sure exactly what you are being asked to do tonight because it is fairly anomalous.
This is a unique situation.
Although it is a mediated settlement agreement, you are also being asked to specifically make a finding, in your capacity, with respect to the compliance of the proposal that is attached to the mediated settlement agreement, with the requirements of the architectural review code, and the Hyde Park historic guidelines.
I will not be addressing that issue.
It is not something within my purview.
But that specific finding is a predicate finding for approving the settlement agreement, and not the opposite, because we do not want to have a contract in the situation so you have to make those separate findings.
It is important, I think, to also remember that we are here -- we being the city attorney's office -- are here on behalf of the city.
We are recommending settlement, and we are recommending your favorable consideration, not because we disagree with the preferences of the neighborhood.
I know many of the people in the neighborhood.
They are excellent people.
What they want to have occur is a very fine thing.
The problem is my personal preferences are not part of what I'm allowed to consider in discharging my responsibilities under the charter or the Constitution.
I have to provide you as your lawyers the legal advice that we think is correct and applicable, not what I would like to see occur.
So the fact that I know many of these people personally, and I have even been over to their house before, is not relevant to my recommendation.
The fact that I previously litigated with the applicant is not relevant to my recommendation.
We have to make a recommendation to you and on behalf of all those factors that's what we will do.
One other point of personal privilege, if you would let me, is there was much discussion last time about the fact that the city attorney's office did not vigorously support this issue, the desire or willingness to mediate was premature, that we hardly got started and that this office rolled over.
I believe the word "collapse" and other flattering terms were used.
I think that's only something that would be said by people that were not familiar with this matter.
We have two full file cabinets full of documents and pleadings and matters that were hotly contested.
The results that we had in that time period, I think, were very phenomenonal, particularly compared with the results of a fairly limited standard.
We obtained a summary judgment sustaining the facial validity of the ordinance.
That's a very important finding.
We also obtained a motion to dismiss the claim for damages. The second amended complaint that is contended by the opposition has not included claims for damages.
So apparently that argument not only convinced the judge, it had some impact on opposition.
We have filed over 140-page memo, in our brief and opposition, and over 50 pages with regard to our summary judgment motions.
We have a 100-page answer and affirmative defense, which included 75 affirmative defenses.
We have served and responded to numerous requests for documents and production.
We have had eight hearings on this matter.
This is hardly what I would call a roll-over in a year.
Now, you may disagree with our analysis.
I find it perfectly legitimate for lawyers to have different opinions.
I would be shocked if we didn't have different opinions.
I happen to think this was ripe, it is an opinion that I share, it is an opinion that my litigation staff shares, Jerry, my senior chief assistant, Cate O'Dowd who assisted us in some of the A.R.C. matters and Julia Cole who assisted us in general land use litigation, also ran this by Morris Massey. This is an opinion of the city attorney's office.
We think it is absolutely correct.
It is not about this particular building alone, and this particular proposal.
It is about matters that put much greater things at risk.
It puts the district at risk.
It puts our code at risk.
In light of all those factors, and the fact that we have a significant prospect of not prevailing based upon the testimony of our own witnesses, some of the witnesses who have not been deposed.
When you interview witnesses you don't depose your witnesses.
That's the other side's problem.
If he doesn't depose them, or ask the correct questions, then you have information he doesn't have.
We are of the opinion we have a very significant risk of losing this litigation.
That would mean a 343-foot-tall building of 24 stories compared to the one being proposed in the settlement agreement of 202 feet of livable space, another 20 feet of utility space which is approximately 19 stories.
It is that reason we are recommending approval, not that we favor the petitioner, not that we don't embrace and appreciate the values of the neighborhood.
>>JOHN DINGFELDER: It's never been my experience that a judge will take it out of our hands and say you will do a 300-something building.
Is that the statement that I just heard?
>>> The statement just heard is we think there's a significant likelihood of losing on the merits of that case.
What the judge I think will do is issue findings.
He will not rezone the property.
This is of course not a rezoning anyway, this is architectural review.
He will not issue a certificate of appropriateness.
A good example, when we litigated this matter with Hillsborough County, and the three people on the other side, the judge found for my client and sent it back to the Hillsborough County for them to take appropriate action consistent with his findings and appropriate behavior.
Three people who unfortunately were all indicted after that fact indicated he didn't tell us to rezone it, we don't have to rezone it, we're not going to.
So didn't rezone it.
The next day the judge issued an order to show cause why they should not be held in contempt. The power of the court is very significant. The oh way it has to accomplish its purposes, can be subtle or not so subtle.
It is not typically the case the judge will tell you you have to issue a certificate of appropriateness.
What a judge will do is make findings with respect to either process that was employed, the accuracy of the process, and exactly what event waited from that process and he will remand it to you to exercise your appropriate judgment in a manner consistent with those findings.
>>JOHN DINGFELDER: But it completely speculative in regard to what he actually would do.
And I think it's fine for you to spell out all the possibilities of what he could do, okay?
But I think you can't deny that it's complete speculation at this point as to what he will do.
Even argument about don't want to argue about it, it's almost preposterous to say that either one of us could know what he will do.
>>DAVID SMITH: Well, it appears you need more background on the litigation so I will have Mr. Gewirtz.
>> Jerry Gewirtz, chief assistant for litigation, as to whether or not the court could order the city to approve a certificate of appropriateness, or otherwise authorize the construction of the 24-story building, I think it's important to understand that the petitioner not only file a petition for writ of certiorari but in addition file a multi-count complaint.
And in billion five other counts the relief being sought is in the nature of declaratory injunctive relief.
While it may be true that it would be extra ordinary in a petition for writ, then you are known to somehow authorize the judge to issue an order to permit that construction, relative to the relief that is being sought the court has that jurisdiction to do so.
Now you may disagree with our analysis as to the likelihood of success or failure, and obviously for anyone to say with certainty what the result is, one can only give an educated guess.
But to respond to your specific question whether or not this judge, Judge Levens, has the jurisdictional authorization to authorize the construction of such facility, the answer is given the way how this complaint was pled in a multi-count complaint seeking declaratory injunctive relief, the answer is the judge has that jurisdiction and authorization.
>> He has the jurisdiction because it is potential for injunctive relief and because it's declaratory judgment.
But it's also the court's, as you know, as you well know, it's also the court's obligation to do the minimal possible as far as the relief sought under these circumstances.
There's supposed to be a separation of powers, correct?
I mean in regard to the separation of powers, you know, if he has the opportunity to look at the petitioner's writ of cert and send it back to review our proceedings or whatever he wants us to do, that is typically what a judge would do.
The injunctive relief is extraordinary relief, that he has to grant.
>>> I can simply say to you as an attorney as a matter of law that the judge has the jurisdiction to grant the relief relative to construction of a 24-story facility.
Obviously, you may disagree with our analysis.
>> How many years have you been doing this here, Jerry?
>>> I have been practicing 25 years.
I have been with the city for 12 and a half years.
>> In your experience, how many times have you seen the judge directly send something back to an elected body specifically telling them how to rezone something or how to deal with it under these circumstances?
>>> Fortunately I have been relatively successful in the cases that I have handled.
That being said as a student of the law and reading, the cases past and present, I have seen where courts have exercised their injunctive relief to order municipalities to authorize constructions of zonings.
>> In your experience, in your personal experience, in this city, the judges don't tend to do that.
They might reverse.
We've got plenty of reversals, okay?
And they remand it back and tell us perhaps how we can fix them.
But they don't tell us how to rezone property and how many feet tall a building should be.
I've never seen that in my 15 years of practice.
But the key distinction I would point out is, although it is not unprecedented, it is unusual to have a petition for writ of certiorari accompanied by a multi-count complaint.
And although your analysis may be correct as far as the petition for writ of cert goes, I submit where there is a multi-count complaint and throws a claim of injunctive relief the court has that jurisdiction.
>>DAVID SMITH: Let me clarify the point.
No one is saying that you are automatically going to get a 24 story building in a 343 foot building.
That is the risk of going forward with the litigation.
>> That was my point.
>>DAVID SMITH: My point wasn't that necessarily happens.
As Jerry indicated -- and let me make sure I'm not confusing you.
I'm not telling you, you can ever guarantee an outcome in litigation, right, wrong or indifference.
Until the fat lady sings and does whatever else she's going to do.
So I'm not telling you you're looking at an absolute certainty that you get stuck with that.
It could change.
We could go back and start over.
I don't know.
Maybe they'll look for a 27 story building.
But all I'm telling you, our analysis was in light of the risk, and there's risk in the litigation, and there's risk associated with an end product, however we arrive at that end product, that we'll end up with a much more significant building than the one that is being proposed to you today.
That's the analysis that was part of our decision making.
But the primary part of our decision making is really not what goes on that piece of property.
That's not something we're trying to address.
What we're trying to address is how do we preserve what the city does?
How do we preserve our ordinance?
How do we preserve our process?
How do we vitiate any potential claims against the way this has been handled before, and how do we settle this?
So I don't want to say too much more than I was going to say later.
I just want to make sure you understand the procedural context is two fold.
You are making a finding with respect to the compliance of the settlement proposal with the ordinance.
If you make that finding, and you can approve the mediated settlement agreement.
The facts that are going to be relevant through the initial finding under the architectural standards that are going to be presented by staff, not by me.
I don't have the ability to make that assessment.
I only rely on those who provide that assessment.
They will provide you that information.
And then I just want to make sure you knew the context in which this was going to occur.
So that you wouldn't have any mistake -- mistaken impression about how it would occur.
>>JOHN DINGFELDER: What I needed to hear was you said earlier that the judge already upheld our historic preservation ordinance.
>>> He upheld the facial validity of our ordinance, that's correct.
>> So I don't want anybody to think that the ordinance right today is necessarily at risk in this lawsuit.
Because that's not the case.
>>> No, that's not true either.
You can have a problem -- you can have a problem that can come up during the course of the litigation to cause a judge to revisit his determination.
What has happened, the issue that is still at stake Mr. Dingfelder is the Constitutionality as applied.
And I think that --
>> As applied to that particular set of circumstances.
But the ordinance itself -- and I was very, very proud of you and Jerry and everybody else who participated -- because that to me was way was extremely concerned about for validity of the ordinance, and you guys overcame that hurdle fantastically, and the ordinance is still sound.
>>> And we do not want to jeopardize that finding.
And I'm sure you don't either.
Nor do the people here who are in opposition to this particular settlement. Anyway, that's the clarification.
So I think what we have now is we have, in our little slot, we have parties who want to put in procedural objections on the record.
They have an opportunity to do so now.
Mr. Nelson and I had a conversation earlier, and I maybe clued him this would not apply against his time so these issues with regard to procedural objections are untimed assuming he sticks with procedural issues.
>>> Good evening.
My name is Seth Nelson with the law firm of Michael Maddox, P.A., 2102 West Cleveland Street.
My procedural objections will take four parts to explain to you.
There are five of us.
Why are we here?
What is wrong with the procedures?
What is the correct procedure to use?
What is the remedy?
First, why are we here?
We are here because council needs to make one decision and one decision only.
And that is whether to approve or deny the mediated settlement agreement.
What is wrong with the procedure?
What's wrong with the procedure that city attorney's office has laid out for you this evening is that they are calling this a quasi-judicial proceeding.
And, therefore, under your rules, which is rule 6-A, you would need a petitioner.
There is no petitioner before you tonight.
The city attorney is before you recommending that you approve the mediated settlement agreement.
The procedure outlined by them is the procedure used when a petitioner wants to go before the A.R.C. and get approval for their project, and then come before you on appeal.
It's also the procedure used in zoning matters.
As the city attorney has already stated to you, this is not a zoning matter.
It has never been a zoning matter.
It is not one tonight.
And it never will be a zoning matter.
Despite the fact that there is no petitioner, they are allowing Citivest, which is the developer in this matter, to have an extraordinary amount of time, 30 minutes to present their argument, followed by the citizens, three minutes to present their arguments.
And then Citivest is allowed an additional ten minutes rebuttal time.
The city attorney also stated that in this quasi-judicial setting that you're in that you are sitting in your appellate capacity, and that this appellate capacity, the standard is you look at it anew, which is de novo.
There is no record before you tonight.
There is no record for you to sit in your appellate capacity.
There's a mediated settlement agreement that they are asking you -- asking you either to approve or deny.
So to the extent that he's saying there is a record for you to review, there simply is none.
In fact, just today, Citivest by hand delivery delivered to Madam Chair and carbon copied to the rest of the council members, a letter with attachments, and they said in their letter, quote, to be pleased to be included in the official record of the matter.
That is the matter in the record that's being created tonight.
It is not a record that's already been created and for your review.
What is the correct procedure?
Citivest had three choices to have a correct procedure before you.
When they were denied what they seek.
The first one was to submit in a substantially different plan to the A.R.C., architectural review committee.
They did that.
They submitted a plan and the A.R.C. found out it was not a substantially different plan, and therefore denied it.
That is not before you.
The second way they could have come before you is they could come before you and could have come before you to ask for a reconsideration of your previous decision when you did sit in the quasi-judicial hearing before they went to litigation.
They have not and are not tonight seeking a reconsideration of that plan.
They with the city attorney are submitting a new plan, different record, on a different plan to approve the mediated settlement agreement.
Finally, they had the right to file a lawsuit and sue the city, and they did so.
In that lawsuit they have reached a mediated settlement agreement.
They are allowed, and the city attorney and their procedures, the proper way to have that heard before you, is for that mediated settlement agreement, for the substantive portions, because the substantive portions deal with the A.R.C. and what they need to look at.
So the proper procedure would be to send it back to the A.R.C. to have the first finding that the city attorney says you need to make, and that is whether it comports with the law, with the guidelines for the historic district.
If that decision is made by the remark the procedure -- proper procedure would be for you to approve or deny the agreement.
They have it backwards.
How do you remedy it?
One way is by denying it and sending it back to litigation.
The one you can do tonight to alleviate the procedural flaws is to give everybody equal time.
Nothing states, and it's against the law for a nonpetitioner which we do not have before us to get more time than every other ordinary citizen.
The citizens with their three minutes should have the same time as Citivest.
So Citivest should have three minutes with an additional seven minutes if they have the signatures that Mr. Shelby referred to earlier for a total of ten minutes.
If other people want to speak on their behalf, then they should have the same procedures that the rest of the citizens are having.
And under the procedures with Robert's Rules of Order, the council members now want to vote on the proper procedure, they can do so.
This is not being submitted solely for the record so we can move on and deal with it later.
You have the ability right now under the rules to make a motion, to clarify the correct procedures.
I'm happy to entertain any questions.
>>DAVID SMITH: Thank you, Julia Cole is going to answer those questions for you.
>>JULIA COLE: Legal department.
I have been sworn.
I respectfully disagree with Mr. Nelson's analysis.
We have reviewed this issue and looked at the case law.
When this case comes back to you in a quasi-judicial manner, because when you originally heard this as the appeal hearing, you heard it in a de novo fashion, which is why this is also a de novo fashion, and in a quasi-judicial manner.
So in your review of not the mediated settlement agreement, as Mr. Smith explained, those are two separate issues, but your review of whether or not the plan is compliant with the -- with chapter 27 and with the Hyde Park historic district guidelines, you are reviewing that in the same manner as you have previously, which is in a quasi-judicial manner.
Your rules indicate that in a quasi-judicial manner, you have a petitioner who has a certain amount of time to speak.
In this case you also have a petitioner.
It is their plan.
They are the property owner.
And they are coming forward with a plan that will be described subsequent to you that is being requested for you to review and approve in consideration of the guidelines and of the code.
So that is what is in front of you.
That does require a quasi-judicial proceeding.
And because you have guidelines in your rules that have that as set forth, you have to file those guidelines.
>>DAVID SMITH: I think we have another person to speak unless you have a question of Julia.
>>JOHN DINGFELDER: Ms. Cole, as I was reading somewhere in the settlement agreement or somewhere else, it appeared that at some point in this proceeding, if council -- anyway, I don't know.
I won't even guess.
At some point in the proceeding this thing is supposed to go back to the A.R.C.?
>> JULIA COLE: That's correct.
The only issue before you previously related to a few issues, specifically, height is one of them.
And those other few issues.
That was the issue before you.
That is the only issue you're addressing tonight.
If you do go ahead and make a determination to -- that this particular plan complies with the regulations as it relates to those discreet issues, then you would need to remand the remainder of it back for consideration by the A.R.C. as to the remaining issues.
>>JOHN DINGFELDER: Why wouldn't we do it in reverse order?
Why wouldn't we ask them first about those other issues, and then wait and see what happens to those issues?
Because it could all be moot.
We could be chasing our tail, couldn't we?
>>JULIA COLE: I don't think I understand the question.
>>JOHN DINGFELDER: I think what you're saying is you guys have looked at this and sort of bifurcated it and said there are some issues that we should have jurisdiction about and there are some issues that the A.R.C. should have jurisdiction about and you're trying to neatly split those out and I appreciate that.
So, you know, so the question I would have is, if there's two different sets of issues to deal with, why not just let them start with it?
>>CATHLEEN O'DOWD: Assistant city attorney. The reason certain issues are before you this evening is because those are the same issues that were before you when you considered this in your appellate capacity.
There are three remaining issues dealing with quality within the district, quality of materials within the district, as well as window pattern, the details that the A.R.C. never addressed, and therefore were not before you during the appeal.
So those issues will go back to the A.R.C. should council approve -- make a finding that the project is as presented this evening is compliant with the code as well as the design guidelines, and then the mediated settlement agreement is approved.
>>JULIA COLE: That becomes a jurisdictional issue.
You can't rule on something you haven't had the opportunity to rule on previously, and that's why this issue needs to be ruled on by council in the manner that we have described, and then the outcome is that you do approve what's in front of you, then those issues which have never been reviewed by the A.R.C. will be reviewed by the A.R.C..
>>> Elizabeth Johnson, 1819 Richardson place.
Not to take up too much of your time but I also want to make sure that you all understand, we are going to be submitting in evidence a binder that has several tabs in it.
And at the front of that evidence binder are the lists of our procedural objections, and there is a couple, I want to stress a little more deeply, if I could.
Number one, of course, 27-216, and the idea that it was returned to the A.R.C. for massage and window pattern, like, you know, let's send it back to the A.R.C. because goodness forbid if anybody goes down the street and sees that skyscraper they'll be glad the facade and window placement was good.
So we're saying under 27-216 we don't understand why they cherry picked part of the criteria that the A.R.C. shall consider and not the other part.
So I want to make that clear, that that's the basis of that objection.
There are a couple of others, and that is our concern that the city attorney's office has had meetings with each of you individually, and to the extent that they are there is surprise information during those meetings that we're not privy to, then we feel like our notice and due process rights are affected by that, because our notice and opportunity to be heard is diminished to the extent that there is secret information that we're not privy to it.
That we're not privy to, I'm sorry.
And that also, by the way this is being done, perhaps inappropriate traffic, engineering, Planning Commission, land development, parks and other studies have been conducted, because the people that are signing off on this MSA are Gloria Moreda, Thom Snelling, Del Acosta, and -- I'm sorry, there's maybe one other person that I'm missing.
But suffice to the say that you don't need to listen to me right now.
We have a preface in our evidentiary binder that lists our objections in detail, and preserves those objections for the record.
And thank you for your time.
>>DAVID SMITH: It always important when we have differences that we try to articulate those differences as civilly as we can.
So I will indicate that -- and I think Julia already stated this, but it wasn't a question of cherry picking the issues.
It was a question of what was previously heard.
And those were the issues that were addressed, and that's what's back here before you today.
It's not any improper motive on behalf of the city attorney's office.
We are simply trying to file a procedure that is a defensible procedure. If we were to create a procedure, we would be hearing, oh, you can't do that, we had no idea how that was going to work, that's improper, solely created procedure.
So what we are doing is following the procedure that typically applies in situations such as these.
We think it is the only way that you can proceed without exposing this city and yourself to problems much greater than those that are being articulated by the opposition.
So Julia, do you have anything else we need to add, or Kate?
Any other issues?
>>LINDA SAUL-SENA: Actually it's not a question, it's a statement, and that is that council is traditionally bound to fairness.
And one of the reasons we created time frames for petitioners and for audience is so that we wouldn't spend the next three days here.
And it's the tradition of council to provide time for the petitioner, but also to provide time for the public.
And it's my intention, and I think the majority of council members' intention, that there will be an equality of time offered.
And it's a way of getting a grip around it so it doesn't go on forever.
So if the petitioner has a total of 40 minutes, 30 minutes for their original presentation, ten minutes for rebuttal, then it would certainly be my intent that the audience would also have 40 minutes for their presentation.
>>DAVID SMITH: I think of that we would encourage that as well and it's very important that everyone have an opportunity to be heard.
The petitioner can indicate whether or not he's amenable to that or wants to reserve his objection.
But I think it is important to have a fair process as well.
You have a right to do that, but if we can get them to waive it, let's give him to waive it.
>>> Madam Chair, members of council, I'm Scott McLaren, I represent the petitioners Citivest and city national bank.
Thank you for being here tonight.
With respect to the fairness issue, I don't think there's any question that we don't have a problem if the folks, the neighbors that oppose this situation want the same amount of time in response as we have in our presentation, in other words, 40 minutes.
So if we get 40 minutes, if they want 40 minutes as total, I think that's fair.
So I have no problem with that.
With respect to the issue of the procedure, it's my understanding, consistent with the city attorney's office, that we are here in a quasi-judicial capacity, because that's how we were here when this matter first became -- strike that -- first became before this body.
So we're here just like we were before.
It's really not that complicated.
If we were here in a quasi-judicial capacity before, we we're here in that capacity now.
And the reason that I think that the decision has to be made both to improve this -- approve this settlement agreement and to confirm that the plans are compliant, if that's your decision, kind of a bifurcated procedure, is because that means that you're exercising your police power as the governing body in the City of Tampa as opposed to just approving a settlement agreement.
When you're not in your quasi-judicial capacity.
You have to be in your quasi-judicial capacity in order to approve the settlement agreement.
To rule on the settlement agreement.
That's where we were when we were here last time and that's where we are now.
>>DAVID SMITH: That request as to whether or not petitioner would waive, I think the respondents thought I was asking them to waive, and certainly they are not waiving any of their objections.
>>> I would just like to point out one thing, councilman Saul-Sena, if it's 40 minutes and 40 minutes, I know that some other people are going to object to that.
But what I would stress is that you can't do 30 minutes, let everyone else speak for 40 minutes and then let them speak for 10.
If they get their time they get their time.
They should present first so we know what their proposals are.
Then the citizens should speak.
So that would be my addition to that.
>>DAVID SMITH: Our response to that would be, we've got to stick as closely to our existing procedures as possible.
I think the request for additional time if needed, I think, is a reasonable request.
I think it's something council is sympathetic to. It's something I would encourage council to be sympathetic to.
We want to provide everybody an opportunity to be heard.
This is obviously a very important issue for very many people but I think we need to try to follow our own existing procedures as much as possible.
I don't see a need to deviate other than to provide people an opportunity to be heard.
>>ROSE FERLITA: Mr. Smith, I'm kind of confused.
If we are trying to stick to what is normally our procedure to abide by, petitioner 30 minutes, everybody in the audience that wants to speak comes up for 30 minutes unless they have some waivers that people have extended to them and then petitioner comes back for ten minutes.
And in we are going to be here for whatever time it takes to get it done.
So if we're sticking to our procedure, I don't think you can keep the audience at 40 minutes just because the rules of council say petitioner 30 minutes and then at the end 10 to rebuttal. If we are going to do that as opposed to what Mr. Nelson is saying, then we always ask the audience to be considered, and if it's the same thing that six people said before them, we ask them to be considered.
But at the same time we never ask them to give up their opportunity to speak.
I think when you look at all these people, and my speculation is that most of them are against it, I don't think you can squeeze all of their opinions into 40 minutes.
>>DAVID SMITH: No, I agree with that.
I thought they were asking for up to -- I think the point is, we want to tray to provide everybody an opportunity to be heard.
I think that's the fair thing to do.
And procedurally the sound thing to do.
So I thought they were asking -- they were thinking they were going to be more limited than that.
I don't know, maybe the applicant said something different than that.
But I thought way heard Ms. Saul-Sena talking about is the need to try to be accommodating to the people that are here, much as what you did in your TGH meeting.
I know you probably stuck to your three minutes, though.
But perhaps almost interminably we would be here almost all night.
But we want to make sure we give everybody an opportunity to be heard.
>>ROSE FERLITA: That was my concern and I think you responded to the.
>>JOHN DINGFELDER: The only thing I would have to say, just about the procedure, the only thing I would have to say is we have this 7-minute additional minutes portion, and that disturbs me a little bit because it only applies to -- doesn't apply to the applicator whatever we call him.
It only applies to the other folks.
And, therefore, in other words, if they have a spokesperson in the form of Seth Nelson, their attorney, and if he wants -- if he has 15 or 20 minutes of presentation, rebuttal presentation that he wants to make, somehow or another under our rules, we are going to cut him off to ten minutes because it's 7 plus 3 is ten minutes.
That disturbs me a little bit.
>> We could ask him questions.
>> We could ask him questions but that's always kind of weird.
So what I would suggest is that we waive that seven-minute limitation, so anybody who wants to stay here, and going to be here late, can give their time to whatever other person.
Because some people don't want to speak but they clearly want their position stated by their representative.
I mean, I don't know how council feels about that but I think from a procedural fairness perspective, I think that that would be appropriate.
Now, if that means that the applicant wants some additional time, I think we would probably be amenable to that as well.
But the 7-minute part concerns me.
>>DAVID SMITH: And obviously you have the discretion to waive your rules and provide for that if you want to do so.
>>JOHN DINGFELDER: With that I'm going to move to waive our 7-minute limitation and increase it up to -- I'll say double that, to -- so 14 plus 3, 17 minutes.
That's kind of weird. Let's say 15 total minutes.
>>GWEN MILLER: One person to speak for 15?
>>JOHN DINGFELDER: As long as they are given their time pursuant to the list, and our normal procedure.
But I'm going to suggest that we modify it from 7 additional people to 12 additional people.
Just out of fairness and due process.
People can give their time to their representatives like Mr. Nelson, or Ms. Johnson, whoever else they feel wants to be their spokesperson.
>> The motion is just to extend the number from 7 to 12 who can surrender their time in lieu of speaking for themselves.
If you give your three minutes you get one minute in return so that the pokes person is going to have more time.
I think that's the motion Mr. Dingfelder made.
>>JOHN DINGFELDER: Thank you.
>>GWEN MILLER: Question on the motion?
>>MARTIN SHELBY: Petitioner, do you have any objection to that?
>> Here is our position.
I don't think we have an objection to that particular matter.
My concern is that we are the petitioner.
We were the petitioner on June 3rd, 2004.
And we are the petitioner now.
We are entitled to an initial presentation, and we're entitled to rebuttal.
If the folks that oppose this Seth settlement agreement are going to have more time, then I respectfully that I be allowed more time on rebuttal to rebut some of the ideas, because they are going to be, I think councilman Dingfelder, you might have brought this up, but I think we should be entitled to additional --.
>>JOHN DINGFELDER: Our rules allow you to ask for that, so -- what do the rules allow for that?
Does he ask now or afterwards?
>>MARTIN SHELBY: The rules can be waived at any time during the hearing.
>>JOHN DINGFELDER: No, no, our rules specifically speak to rebuttal and says if the petitioner wants to ask for additional rebuttal time.
>>MARTIN SHELBY: Then it requires in writing in advance.
>>KEVIN WHITE: Mr. Shelby --.
>>GWEN MILLER: Take your turn.
>>KEVIN WHITE: The people in the audience would not be getting more time.
They would actually be lessening their time so that rationale does not apply.
>>JOHN DINGFELDER: If we get to rebuttal if you feel you need additional time why don't ask you for it at that time?
>>> All right.
>>ROSE FERLITA: Mr. Dingfelder, are you guaranteeing that he's going to get that?
>>JOHN DINGFELDER: No.
I said he could ask for it at that time.
>>> And we encourage --
>>> just to clarify.
>>JOHN DINGFELDER: We don't know how the time is going to go.
>>> I am entitled to rebuttal?
>>JOHN DINGFELDER: That's your opinion.
You put it on the record.
At this point in time I think we have agreed to give you rebuttal.
>>GWEN MILLER: We have a motion on the floor.
Other questions on the motion?
All in favor of the motion say Aye.
>>DAVID SMITH: If we are ready to proceed, I see Mr. Harrison is missing.
>>GWEN MILLER: He's watching.
>>MARTIN SHELBY: Again the decision that council makes in a quasi-judicial proceeding must be supported by competent, substantial evidence.
And I would ask that council remain mindful of that throughout the proceedings, with regard to any testimony that is heard, that they rely ultimately on competent, substantial evidence.
Mind you, I would also remind council as a finder of fact, you have the right to make inquiry of any witnesses.
So if you wish to elicit competent, substantial evidence through the answer to a question that you remain mindful that you have that opportunity to do so.
But the end result is ultimately that your decision must remain based on competent, substantial evidence.
>>LINDA SAUL-SENA: Everybody needs to be sworn before we get going.
>>MARTIN SHELBY: I believe they were.
I would ask once again that please, for the record -- and I do see a court reporter present in this room -- that will you please remain mindful when you state your name that you do in fact reaffirm that you have been sworn?
And if you haven't, please let the clerk know and you will be sworn.
There is a sign at the lectern asking were you sworn in?
And please remember to do so.
It will make things move a lot smoother.
>>DAVID SMITH: Excellent point.
Before we get started, one additional fact.
Anybody who is speaking when council asks a question, please stop, listen to the question, even if you have been interrupted or not, so that we will have a clear transcript.
It is smart on your part anyway to stop and listen to counsel but it will make for a better transcript as well.
I think we are ready to proceed with staff.
And what we are going to do with staff presentation is we are going to start first with Thom who will provide a little more context, and then have Steve, and then we'll have Del.
So we'll start with Thom.
>>THOM SNELLING: Land Development Coordination.
This is just merely to orient you to the location of the property.
But I'm sure that everybody is very familiar with the location.
It's basically at the southwest corner of Bayshore Boulevard and DeSoto.
The current zoning is RM-75.
As you know, it is in the Hyde Park historic district.
When we reviewed the site plans that were submitted, we were reviewing them against the dimensional requirements of chapter 27.
We specifically reviewed section 27-77, hide and placement regulations along with accompanying footnotes, as well as article 5, which is the application of area, height and placement regulations.
We looked at the Seth back for setback compliance.
We also looked at the stepback, which is the wedding cake effect that we had talked about so many times, for compliance.
And indeed did meet the setback dimensional requirements and the stepback requirements, further set back from the property line required.
The project was not -- is not requesting any variances to the chapter 27 zoning code.
And it has made commitments throughout their submittals to comply with other land development regulations.
Stormwater, parking, et cetera.
And we found it to be in compliance with the dimension requirements of chapter 27, the two sections specifically that I pointed out.
That really is my presentation.
>>LINDA SAUL-SENA: They didn't ask for removal of the grand tree?
>>THOM SNELLING: No, ma'am.
Mr. Graham is here to speak to that.
If you have questions, I'll answer them.
>> Good evening, Madam Chairman, members of council.
I'm Steve Graham with Parks and Recreation Department.
And for once I'm pleased to tell you that the grand tree is not central to this hearing.
So we have reviewed the site plan.
And the plan is in compliance with the required setbacks to preserve the grand tree, and we are confident at time of permitting we can impose the attendant details that it actually happens.
And I'll answer any questions that you have.
>>MARTIN SHELBY: You were sworn in?
>>> Oh, yes, I was.
>>MARTIN SHELBY: Thank you.
That was easy.
>>GWEN MILLER: Council members?
>>ROSE FERLITA: Mr. Graham gets to go home.
>>DEL ACOSTA: Administrator of the Tampa architectural review commission.
And commissioners, this evening, I'm going to go through the process of gnaw construction in the Hyde Park historic district.
>>MARTIN SHELBY: Have you been sworn?
>>> Yes, I have.
And my presentation is going to be broken down to several parts.
First of all, I want to discuss the pertinent parts of section 27-211 and 27-216.
The pertinent parts of the Hyde Park design guidelines as relates to new construction, the secretary of the interior standards as relates to new construction, in historic districts which historic references are dealt with within the historic preservation, a photo essay of the adjacent sites to proposed project, Hyde Park historic district, historic references, and that's also a photo essay, and then I will be presenting the DeSoto building project, the site plan elevations and sections.
As I just mentioned to you, in evaluating the project, the zoning code, section 27-211, 216, was reviewed, the Hyde Park design guidelines, secretary of interior standards.
The zoning code really provides the basic criteria about which the A.R.C. and myself on this project.
Section 27-211-D, maintain a high quality of design in in-fill construction and other new development in historic districts.
One of the purposes of this article is to provide the tools to encourage appropriate new development and appropriate growth in historic district.
Approach is taken by the A.R.C. in reviewing an application.
In making a decision on an application the A.R.C. shall be aware of the importance of finding a way to meet the current needs of the applicant.
The A.R.C. shall also recognize the importance of proving plans to make that decision.
Review criteria. Again I'm picking out pertinent parts.
As now the code is quite lengthy.
Review criteria. Effect of the proposed work on the property, and relationship between such work and other buildings, in the historic district, consider historical and architectural significance, architectural style, design, arrangement, texture, materials, and color.
A.R.C. shall not dictate the architectural style of new construction.
Compatible design shall mean architectural design and construction that will fit harmoniously into the district or the landmark site.
And this is kind of a photo essay, or photo reference of A.R.C. shall not dictate the architectural style of new construction.
In the units you have architectural review statistics that break down to distinct categories.
There are those that dictate an architectural style of historic significance then those usually the majority encourage architecture of its time.
The City of Tampa is like the second one, architecture of its time.
I have the Nantucket design guidelines, blend with the traditions of the era before 1846.
In that reference, the lower right-hand corner is a fisherman's cottage, built approximately before 1846.
That is the architectural tradition that all the new construction in the old part of Nantucket falls to this day.
The larger image to your left, the upper right-hand corner is new construction.
As you see it's larger.
I didn't have images of it.
But in that context you have hospitals, you have gymnasium, you have supermarkets.
But that is a context that community has -- Tampa has left architecture of its time and that's a photograph of the historic district.
And the criteria that the A.R.C. looks at for new construction, there are eleven criteria.
I tried to get the number for you.
I just couldn't get the PowerPoint presentation.
But there are 11 criteria.
Setback height and width, scale height and width, setback, orientation, alignment, rhythm, spacing of building, form and detail, ling between old and new, maintain materials within the district, maintain quality within the district, facade portions of window patterns, entrances and porch, roof forms, and I believe that last one is qualities, horizontal, vertical emphasis.
>>JOHN DINGFELDER: You're going to need to speak slower for that court reporter.
I know everybody wants to go quickly.
>>DEL ACOSTA: I'll slow down.
>>LINDA SAUL-SENA: Do we have this in written form?
>>DEL ACOSTA: No.
I have a hard copy.
>>JOHN DINGFELDER: Can you get somebody to make a copy?
And for opposing.
>>DEL ACOSTA: Okay.
The design guidelines.
Provide the purposes framework for design review, new construction, preserve the neighborhood character, using design guidelines, developed in coordination with chapter 27, article 9, historic section, city code.
There you have the criteria delineated in the code.
And you see back to your left, you see a little icon to the left.
And then the design guidelines.
They each have 11 criteria. They are not presented in the same order.
But essentially they say the same thing.
Commercial areas and multifamily structures are scattered throughout the district.
Maintain elements, give district its residential character.
Commercial guidelines are intended to supplement these codes, retain the high standard in the historic district, and do not supersede city regulations.
Design of compatible new construction.
New construction should respond to the scale, massing, rhythm, proportion, detailing, similar building materials, characteristic of the historic district.
Hyde Park is a pedestrian oriented, new projects should relate to the human experience and scale by providing unobstructed pedestrian access, shelter, and/or shade along the street.
Again, this is the commercial section for the Hyde Park design guide lanes for new construction.
What I have done over here is compared the two criteria, or the two different verbiages.
On your left is the criterias delineated in the ordinance.
On the right, the design guidelines.
Those areas that are in red are the areas that you're not considering this evening.
Those are the ones that if you should approve what is -- I'll read them out to you.
I know you can't read them.
We tested this today and it worked out fairly well.
What you will be considering this evening is -- and I'm going to go and read them off the left side.
Scale, height and width.
Orientation and site coverage.
Alignment, rhythm and spacing of buildings.
Entrances and porch projections.
Horizontal, vertical or nondirectional emphasis.
Not being considered this evening are form and detail, link between old and new, maintaining materials within the district.
And facade proportions and window patterns.
The secretary of interior standards is somewhat silent on new construction.
The secretary of interior standards by far focuses on historic buildings already existing buildings.
What it does include, and it states, new construction should be compatible with the historic character of the district.
Building relationships -- building relations, setbacks, fence patterns, views, driveways and walks.
That is new construction in the Hyde Park historic district, statewide.
Throughout the code, there are terms such as neighborhood context, make reference, existing character, with existing character, compatibility, building relationships, sensitivity to the district, all of those really can be translated into historic reference.
And I will be using the term historic reference rather than using any number of different terms as they appear throughout either design guidelines, secretary of interior guidelines or the ordinance.
And I am going to go now through some photo images of some of the historic references.
These are all historic photographs in Hyde Park taken in the early part of the 20th century.
To your upper left is a house in the Hyde Park historic district, in the vicinity, off of Morrison Avenue.
And I'm not sure, but I believe it's around Edison.
To your right, that's a historic photograph.
That's where Hyde Park village is today.
The Seville apartments at the intersection of Morrison and Dakota.
On your left is a photograph taken in 1927 just as it was completed.
That's a view down Dakota Avenue looking south.
This was over here on the upper left corner, that is a building that exists on the intersection of Marjorie and Howard Avenue.
That building is still there, although it's been significantly altered.
It's across the street from Bern's.
On the left, that is a residential structure on Nance.
Over here, the top one is Bayshore, houses in the Bayshore.
Should call to your attention Bayshore Boulevard is not in the local district.
Those houses are part of the Hyde Park historic district.
To your left -- to your right is another image of Hyde Park village, as it existed in the 20s.
To your left, the lower left is a commercial establishment.
It still exists, intersection of new port and Swann Avenue.
Now I am going to go through a photo essay of the existing site.
The subject site of retaining wall, Bayshore Boulevard, adjacent bidding.
We are looking at from Bayshore straight on and you see the grand oak tree.
And a walk around the entire site, Hillsborough bay, retaining wall, the subject site, DeSoto Avenue, Bayshore Boulevard.
This is looking at it from Howard Avenue.
You will see the Royal Yard, Bayshore Boulevard to the right, the subject site is behind that yard.
The grand tree.
You have seen that and the retaining wall.
This is taken a little bit further away.
DeSoto Avenue, the retaining wall, the Royal.
It's a ten-story building.
>>JOHN DINGFELDER: Is the Royal in the district?
>>> It's in the district.
All the images that I am showing this evening are in the district.
Except for that one.
Across the street.
The other side of Howard Avenue.
Do you want to go back to that?
>>JOHN DINGFELDER: If you can easily.
>>> Ten stories.
And that's in the district.
This is looking at it from DeSoto Avenue looking towards the Bayshore.
You can see the Bayshore, Hillsborough bay, the subject site.
If we were looking at it -- because this is not straight due north, I'm going to use left and right.
I normally use directional.
But this is if you're looking at it from the Bayshore to your right, the existing structure, Bayshore Boulevard, the retaining wall, you can see the location of DeSoto Avenue.
This again is another image of that structure.
It's a private family residence.
We are going to kind of take a quick photo essay down DeSoto Avenue.
Away from the Bayshore.
This is the first house behind that structure.
Next house, it's a sampling of the homes along DeSoto Avenue.
We are now at DeSoto, approximately
DeSoto Avenue, hills Avenue.
The subject site will be behind those trees.
There is the Royal.
Now we are on the other side of DeSoto Avenue.
And these are a sampling of the structures.
This is an apartment house.
This would be adjacent to the subject parcel, the parking lot, the DeSoto apartments.
This is again now looking the other direction of DeSoto Avenue with a median down the center.
The subject property, DeSoto apartments.
A photographs over here, just another shot of that same scene.
Our back it would be Bayshore Boulevard at this point.
Here is the Royal.
The road there, you see the park part of the subject property that's an access easement that under the proposal would be used by the Royal in the subject development.
This is looking on Howard Avenue.
You see the Royal.
I do want to call your attention that you will notice that the building does come to the ground right at the sidewalk, it's right at the sidewalk.
This is looking towards -- we are walking away from the subject site towards downtown.
You will see Nance, then DeSoto, subject property, Howard Avenue, Royal.
Now we are at the intersection of Albany Avenue, moving away from the subject site, along Bayshore Boulevard towards downtown in the historic district.
And then these are some reference photographs including the Hyde Park historic district.
Today cot-a historic photograph, this is a photograph taken 2005.
At the intersection of Dakota Avenue and Larson.
The entrance of the project.
You will notice that it is set back from the property line unlike the Royal.
This is taken along Morrison Avenue, the parking lot is behind the subject property.
Again, another image of the Seville.
If you remember the historic photograph that we saw in 1927, this is taken approximately the same location.
Looking towards the bay.
These are the properties around the Seville.
This is the house across the street.
This is the front image of the house across the street.
Next house over.
This is the house behind the Seville.
Across the street from the Seville.
And then down Dakota Avenue.
This is actually catter-corner from the Seville.
This is the Bayshore Baptist church, about two blocks away from the subject site at the intersection of DeSoto and depot.
That is four floors.
That doesn't include the other attachments to the building.
>>JOHN DINGFELDER: The one additional story or whatever it is?
Appears to be four habitable floors there.
Hyde Park village.
I don't think we should talk about Hyde Park without the village.
None of Hyde Park village was approved when it was a local district, and it wasn't developed during the period of historic significance.
There are a few buildings that remain in the village that existed between -- that existed during the period of historic significance, 8 to 23.
This is the parking lot for Hyde Park village and I repeat this was built before the historic district existed.
We have residential development against a parking lot.
This is the village looking toward the Bayshore.
You see Dakota and Rome.
Another image from Swann Avenue to the Village.
This is the most recent project, high-rise project, built in the Hyde Park historic district.
It was approved in the PD zoning in January 2001, ordinance 2001-79.
A.R.C. approved in the 2003.
You will notice Bayshore Boulevard.
Also where it says the site of crescent and new project approved by the A.R.C. actually August 10, 2005.
The last A.R.C. public hearing.
It's a project called the crescent of Bayshore 1.
The crescent of one Bayshore is in the Hyde Park district.
The corner portion of Bayshore one is the outside district.
The remaining is in the historic district.
This is the project as was approved.
There was a finding of fact, and was determined by the A.R.C..
The tower portion which is 24 stories faces Bayshore Boulevard.
The four-story townhouse portion is from Bayshore on Hyde Park place.
I'm going to show you now the photo essay that was presented to the architectural review commission reviewing this project.
>>JOHN DINGFELDER: Is that date correct?
A couple of weeks ago?
>>JOHN DINGFELDER: Will you go back two slides then?
What were you saying about park side?
>>> Let's go back to all the dates there. Was a PD rezoning on this project that City Council approved in January 2001 which established essentially the uses over here, and the density for this.
The project was actually not approved the first phase by the architectural review commission until May of 2003.
And that's the parkside there.
>> And you said that is partially or wholly?
>>> Partially within the district.
The long portion, generally speaking -- as you look tore to your left, I mean to your right, the right portion, the district kind of goes through with what that white portion would be, where the round tower is.
The remainder that you go left is all in the historic district.
A.R.C. reviewed it because part of it was in the historic district.
>>MARY ALVAREZ: How tall is that building?
>>> That building I believe is 18 stories.
Don't hold me to it.
>>JOHN DINGFELDER: Parkside and one Bayshore, that was -- what is that reference, 5-3-03?
>>> That's the one that was just approved and the next image I'm showing you.
That was approved in the architectural information.
>>JOHN DINGFELDER: The 5-3-03.
>>> Oh, that's the date that the A.R.C. approved it.
>> So it never came to council?
>>> It came to council for the PD zoning in January 2001.
>>JOHN DINGFELDER: And the parkside and the -- half of it being in the district?
>>> The PD was all -- it was one PD.
It just so happened that part of that PD was outside of the district.
That's way wanted to clarify.
So within that, the approval by council of park side one Bayshore, that was the part that was split, in the district?
More than half in the district.
>>JOHN DINGFELDER: Okay.
>>> Is that clear?
And actually it's three-phase submittal.
We approved the second phase.
There's one more phase.
It hasn't been submitted yet to the A.R.C..
>>SHAWN HARRISON: Mr. Acosta, parkside one is partially in and partly out of the district.
How tall is it?
>>> I believe it's 18 or 19 stories.
>> Now go to the next one.
Is that in the district?
>>> That's all in the district.
>> And how tall is it?
>>> The taller portion is 24 floors.
>> And these are adjacent to downtown?
This is at Bayshore Boulevard, and Hyde Park place.
>> Next to the Publix?
>>> Well, the Publix -- the next over is Hyde Park Place.
This is Hyde Park Place and Bayshore.
It is actually behind the AIDS Park.
The PD was 26 floors, but I believe this particular report was 24 floors.
So the approved PD, and attorney Smith is correct, it was for 26 floors, but they built it -- they submitted it as 24.
>> The portion of the crescent at one Bayshore that looks to be four stories, or six stories, or eight stories, correct?
>>> Which one, this one here?
>> No, no, the next.
The one were just on.
There you go.
The portion on the right-hand side looks to be -- looks like it starts at four floors and then looks like it goes up to maybe eight stories, and then it steps up to ten stories before it goes to the 26-story tower.
Is that an accurate description?
>>> The attorney here is telling me it's 26 floors on the correspondence.
It says 26 floors.
Then you have the parking garage section.
And then to your right is a four-story townhouse unit.
So I started the other direction.
Four story townhouse unit on my right.
Stepping up to an eight-story structure, whatever it is.
>>> That's primarily park, almost entirely parking.
>> Then looks like it goes into ten stories, something.
That's what I'm looking at, right?
>> Then 26 stories, 24 or 26.
My question is, on the right-hand side, okay, where the four-story building is, isn't that adjacent to two or three-story residential structure?
>>> This is that side today and that's the structure that's immediately adjacent to it.
So wasn't the step down, that wasn't -- you wasn't part of council then.
Wasn't the stepdown created to create sensitivity for this two-story, what do you call that --.
>>> Greek revival building, yes.
That was the -- the council's mitigation on that, that was to filter itself into that Hyde Park place.
>> So it transitioned from 26-story building that was actually, what, closer toward the Bayshore?
>> And then it transitioned down into a four-story building that was adjacent to the single family residence?
You got it right.
And we're going to go down Hyde Park place now, easier for historic references.
These are the houses going west on park place.
Now we are on Plant Street and going down the other direction going east.
And that is the end of my presentation.
What I am going to do now is go through the actual solution.
>>JOHN DINGFELDER: Before you, do I just have a question about just generically about historic reference.
Because you use it as a term of art, obviously.
I've written down three buildings in the district, three historic buildings in the district that are above three stories tall.
You mentioned the Seville apartments at six stories.
>> The Bayshore Royal at ten stories?
>> And the Bayshore Baptist church at 4, maybe 5 stories.
>> Are there any other historic buildings that provide us historic reference above three or four stories in the district that you or I are leaving out?
>>> Well, I didn't include the churches, because they are of a different nature, and essentially you can say they are one story, high terrace.
The churches are not included in that.
>> Anything other than the churches and those three buildings?
>>> Not that you can think of right now.
>> So isn't that then the historic reference of tall buildings in the district?
>>> Well, it's actually height is not the factor that it talks about in the design guidelines.
It talks about B scale.
>> It says scale dash height and width.
Well, it's a very legitimate question.
But height is part of scale, correct?
>>> It's a factor of it.
Yes, it is.
It's a combination of height plus width.
And scale is really a unit of the human being.
>> But from a height perspective, the reference, historic reference in Historic Hyde Park is four stories, six stories, or ten stories?
That's the historic reference.
>>> Well, unfortunately, it's not quite that simple as determining scale.
If we could go to the Elmo right now.
>> I guess I was referring to the height.
>>> Well, height is not a factor solely that we look at in the historic district and it's not design guidelines.
It uses the term scale as a factor of Hyde height and width.
>> Well, I know.
So height is one of the factors.
>>> Well, I just want to --
>> You will be able to continue on your presentation in a minute.
But I just want to make sure that I'm not missing anything.
I drive around Hyde Park quite a bit, and these are the three buildings that I could think of that are above three stories tall.
As a historic reference.
So I just want to make sure there's no others that I'm missing.
>>> I don't believe there are any.
>> I think that's upside down.
>>MARY ALVAREZ: It looked pretty good that way.
>>> This is a building as seen from Bayshore Boulevard.
DeSoto would be located over here.
The Royal yard would be located over here.
The building is 19 floors with a total elevation above zero.
That's measured above zero.
At 242 feet, or 230 feet above grade.
So you have that difference from floodplain to actual elevation.
It's broken down to three parts, the base, which has a three-story base, the bottom of the building which would be residential units, and then your top which really contains your penthouses.
This is where the mechanical equipment is, noninhabitable.
Most buildings are broken down into three parts like this.
The site plan, Bayshore Boulevard and DeSoto, the building is located in the center of the site.
It is set back at this point.
The next closest point off DeSoto at 25 feet, and it kind of jogs in, up to 35 feet.
This is meeting the criteria of design guidelines of breaking the building down.
It's closest point on Bayshore Boulevard is 32 feet.
At this point over here behind the grand tree is 55 feet.
There is that easement which I showed previously, which is part of the subject site.
That is set back 40 feet from the easement.
But from actually where the drive is, it's set back, and I'm going to give an approximate eight feet.
And then the rear set back is seven feet.
As I stated previously the building is broken down into two parts.
This is the base of the building.
This is a three story portion.
Where the blue is outlined is where the tower begins to appear.
So as commissioner Dingfelder mentioned earlier, the same concept was employed over here setting back the larger amount away from the street. This is a three-story portion of the building.
Then it's set back.
And it sets back again.
And then this is your two penthouse portion here.
Building sets back continuously, so there is just a few setbacks, continuously moving backwards.
This is a front elevation of the building.
You have already seen it that I always like to start with the front of the building.
Howard over here.
This is the north elevation.
This is the elevation you would see from DeSoto Avenue.
This portion over here for the most part, entrance to the building.
The parking structure.
And then the residential tower.
This is set back.
Then there's another setback in here.
Then it goes back again.
And a classic building.
This is the elevation that you would see from Howard Avenue, across the entrances in the apartment structure.
And then the penthouse portion.
This is a direct -- this is what you would see closest.
This is the mass of building.
This is the rear of the building.
This is your base which would be your parking garage, your tower portion, sitting back here, and then through this portion.
This is the section of the building.
This would be DeSoto Avenue.
This would be the entrance off of the driveway there, your taller garage, the tower portion.
This is another section of a direction of the building.
The staff always determines consistency with the Hyde Park design guidelines.
Let me present this to you in the same fashion that it will be presented to the A.R.C.. The subject proposal is consistent with the Hyde Park design guidelines, subject to review and approval of one of section 27-216-M, detail, links between the old and new, maintaining materials within the district, maintaining policy within the district, and the facade in one of the patterns.
Commissioners, that is my presentation.
If you have any questions.
>>CHAIRMAN: Mr. Dingfelder.
>>JOHN DINGFELDER: I got the site plan.
Do you want to put that back up?
>>> This site plan, the zoning plan.
Which one do you want to see?
>> I thought mine said site plan.
>>> This is site plan over here.
>> Point to the closest single-family home.
>>> That's right over here.
>> And is that a historic --
>>> it's a contributing structure in the Hyde Park historic district.
>> And I'm going to your comment earlier in relationship to buffering, okay?
I don't know.
Maybe you have another term for it.
But it appears to me that the distance of that lower portion, if you want to point to that, before it starts stepping up, is what distance?
I'm looking at it on this plan.
>>DEL ACOSTA: This over here at this point is 35 feet.
>> Not the distance of the curb.
I'm talking about the distance -- if you go back one plan.
From where the building starts, at a lower level, do you know what level that is?
>>> That's here? One story or two story?
>>> That's three stories.
>> So we start at three stories which is lifter above the height of the building across the street.
But then how far in to you go before you get to the next level?
>> To this one here?
>>> This over here is 18 feet.
>> 18 feet.
My point earlier was that transitioned area on the one Bayshore project looked like it was 200 feet, in regard to when we started with the four-story and transitioned to the six story, and to the ten story.
That was an entire like city block of transition before you got to the high-rise.
This is 18 feet.
Isn't that apples and oranges?
>>> This is essentially dealing with this particular site.
And as you noticed during the presentation, the A.R.C. has a responsibility to accommodate the needs of the applicant as the submission of proof within the plan of the subject site.
That site is a -- a longer narrower site.
There is -- and I don't know if there is --
>> On a different site you would have preferred to see more transition as you are going from this single family home across the street to this large building, would it have been preferable from a historic perspective to see more transition?
>>> Well, one major difference between that side and this -- site and this one is that there is a public road over here.
There might be a right-of-way but I believe it's been closed.
There is a public road over here separating it.
You don't have that separation.
Those sides kind of melt together.
So and of course every side is totally different, now.
There's not a form.
So there is this road over here.
And it's a filtering process that we deal with over here, going from the zoning --
>> How long before we get to the real high-rise on this drawing?
>>> Well, actually, the high-rise is 18 feet over here.
>>SHAWN HARRISON: 18 feet?
>>> The high-rise is greater than nine stories so that's 18 feet.
>> But I mean the real super tall building.
I mean that looks like it's about 25 feet over, right?
>>> This is the one that has the dimensions.
This over here at this point is 75 feet from here to here.
>> To the sidewalk?
>>> To the property line.
>> That's not way was asking.
I'm saying from the edge of the building as you are going in toward the core of the building, you start at 18 feet.
It doesn't show a measurement.
>>> This is 35.
That's the parking garage.
Then at this point over here, it's 55.
That's a balcony.
At this point over here, 75.
>> So it's about 30 or 40 feet of building until you get to the tallest structure?
>>> You just change this as you are going along.
But generally speaking.
This area is nothing parallel with the road.
>>> Oh, yes, that's a good point.
It's 30 feet tall but it's actually two levels of parking.
This shows it over here as being level 3.
But it's two levels of parking.
When I said 3-4 I'm talking about the top of the parking garage.
Two levels of parking at the top of the parking garage is level 3.
It's 30 feet there.
That is the top of the parking garage.
Two levels of parking.
That's my presentation.
>>GWEN MILLER: Next speaker.
>>DAVID SMITH: The next order of business is to hear from the petitioners in their case in chief.
>>GWEN MILLER: Petitioner?
>>> Thank you for the opportunity to be here tonight.
I appreciate all members of council being present as well.
The first order of business, since I would like to present a couple of questions to Mr. Acosta, I do present those to you, Madam Chair?
And then -- how am I to present those questions, Mr. Shelby?
>>DAVID SMITH: He can do either at the beginning or end of his presentation.
The answer time doesn't count against his time but his question does count against his time.
Do you want to do it now?
>>> Well, I'll do it now.
Mr. Acosta, I believe you indicated that you have done analysis of whether or not the plan that's before council tonight is compliant in all respects with the criteria applicable to preliminary approval for a certificate of appropriateness?
>>JOHN DINGFELDER: I have a point of order.
>>> Is that accurate?
>>JOHN DINGFELDER: I have a point of order.
>>DAVID SMITH: Yes.
>>JOHN DINGFELDER: I could have sworn at the beginning of this whole process you said we should be doing this as similar to what we normally do?
>>> We don't normally have cross-examination.
>>JOHN DINGFELDER: We don't normally have any questions or cross-examination whatsoever.
>>> But it's a matter of right under Snyder and Jennings.
They want to know what cross-examination rights they would have so we had to develop a procedure.
Actually we have a procedure.
It just doesn't typically happen.
And the procedure is that questions are directed through the chair.
So what we are trying to do, as I think I mentioned to you last time, we have parties very interested in litigating on both sides.
What the city attorney's office is trying to do is steer you between those two rocks, what is it, Silsa and trim?
Whatever they are keep you between those two the best we can with the process.
We think if in doubt, err on the side of giving people opportunity to have their due process rights.
We know under Snyder and Jennings they have a right to ask cross-examination.
We have a provision for it in our rules.
It just isn't typically done because most people don't do it.
But I think we need to afford it.
We are going to afford it to the opposition.
And they have certainly asked for it.
We can't deny it to the applicant.
I think we need to have both of them have cross-examination.
Now it needs to be directed to the chair, because what we don't want to have is abusive cross-examination, or any derision or abusiveness.
We just want to have a civil process.
So if he asks the question it's directed to the chair.
Then the chair essentially asks the party to whom the question is directed to answer it.
That's the process which I believe that Mr. Shelby can address better than I can, I believe that's the process we have currently in your rules.
>>LINDA SAUL-SENA: I just want to say that this is my fourth four-year term in City Council.
We have never, ever done this before.
What I would prefer, and I think it would be fair to everybody, is to have the petitioner, or whomever, to state their case, and then ask the questions at the end, and then have the city staff person come and respond to that.
And certainly the petitioner has a chance to rebut that during his rebuttal.
I don't know about the folks in the public.
>>DAVID SMITH: I don't think your rules address the teaming of answering the question.
I think it simply addresses the fact that cross-examination should be done through the chair.
Is there anything else specific in the rules, Mr. Shelby?
>>MARTIN SHELBY: I am trying to reference where in the rules there's an issue of cross-examination.
I don't believe -- this is a case of first impression for this particular City Council with the issue of cross-examination.
The case law, from my understanding, supports people having their questions asked and answered, the methodology is something we have to work out.
>>DAVID SMITH: Let me correct something because Julie has an update on it.
She obviously has more information on it than I do.
>>JULIA COLE: Legal department.
There is no specific procedure in your rules relating to cross-examination.
But I understand that some of these cases came out, in the past, questions have been asked regarding cross-examination, because it is allowed under the case law that the policy was determined that cross-examination would be allowed, but it would be questions directed through the chair.
And a conversation with Mr. Massey, he's been here obviously longer than I, and he did indicate that to me.
Even though it is not specifically in your rules of procedure, the case law does allow it so I think it would be inappropriate for us to not allow a certain amount of cross-examination.
>>SHAWN HARRISON: I don't care if he asks us, Gwen, or if he asks directly.
He is entitled to ask the question, it sounds like, and is entitled to an answer, because the other side, we are going to afford them the exact same rights so it doesn't really matter what the process is, who answer it is question.
The question needs to be answered.
>>DAVID SMITH: That's our recommendation to you, is that you afford cross-examination.
So that we don't have litigation on that issue.
>>MARY ALVAREZ: And I'm willing to listen.
>>JOHN DINGFELDER: Does anybody have a copy of Snyder versus Jones?
>>DAVID SMITH: We can get awe copy of the case.
Unfortunately the Supreme Court didn't provide any guidance with how this is provided.
They did not.
They just said you have that right.
>>JOHN DINGFELDER: Mrs. Saul-Sena suggested that the parties would do their normal presentation and defer their questions till the end.
I think that sounds a little more logical.
>>DAVID SMITH: I think in light of the fact you don't have a clear procedure, it's appropriate to establish one, and follow it consistently.
I think that's Mr. Harrison's point and that's our recommendation to you as your attorney.
>>ROSE FERLITA: Mr. Smith, I appreciate the clarification, and yes, we are going to afford the opposition the same opportunity.
But we are probably spending 45 minutes on whether or not we are going to answer that question now or later.
So can we just get along, if he wants to do it now, and he doesn't think Mrs. Saul-Sena -- it's fine, ask the question and let's move on.
>>DAVID SMITH: If it makes sense to council it makes sense to me.
>>GWEN MILLER: Petitioner, proceed.
>>> May I proceed with the question?
Let's see if I can remember it.
Mr. Acosta, the building that you discussed -- I guess I'm supposed to present this to Madam Chair.
>>ROSE FERLITA: Address it to the chairman as Mr. Smith suggested.
My apologies, Ms. Ferlita.
Madam Chair, the question is to Mr. Acosta.
The building that Mr. Acosta has discussed and presented to council, has he done analysis as to whether that building complies in all respects with the criteria applicable to preliminary approval for a certificate of appropriateness within the Hyde Park historic district?
>>GWEN MILLER: Mr. Acosta.
>>DEL ACOSTA: As I read to the commissioners, I stated the project is consistent with the Hyde Park design guidelines subject to review and approval of form and detail in obtaining materials in the district, maintaining quality within the district, and deciding window patterns.
And I would just like to clarify something at this point on that one project that was approved at the beginning of the month.
It was approved at 26 floors.
The PD plan was 26 floors.
We just received the rendering the other day.
They have dropped it down to 24.
So I was giving you -- it's now 24 floors.
The applicant has dropped it since than the approval date.
Because they have done a little bit of additional work.
And of course at the staff level we had no problem.
>>JOHN DINGFELDER: Is this the same building, the transition from 24 floors to four floors?
>>DEL ACOSTA: Yes.
Just wanted to clarify that. I was giving you the most current information.
But the PD plan was for 26.
And with the A.R.C. review and approval was for 26.
>>MARTIN SHELBY: Council, before we begin for the record have you in fact been sworn?
>>> I have been.
Thank you, sir for reminding me.
Mr. Acosta, just to clarify again, the question directed to the chair to be directed again to Mr. Acosta, question, with respect to the building, the 26 or 24-story building, just to clarify, is it true that that building was approved for certificate of appropriateness within the Hyde Park historic district at 26 stories?
>>GWEN MILLER: You can answer.
>>DEL ACOSTA: Yes.
A.R.C. a approved it consistent with the PD zoning plan.
Not the entire building.
>>GWEN MILLER: Thank you.
>>> Mr. Acosta, could you review the he will vision of the proposed 230-foot building as you presented for me, please?
Again directed to the chair I request that Mr. Acosta answer the following question.
Mr. Acosta, with respect to the base of the building, I would like you to identify, if you would, for the record, what is the height of the base of that building that extends, not the parapet but the base of the building that extends out?
Is that 22 feet?
>>> Over here it says 34 feet at this point.
At this point here, from here to here is 22 feet.
>>> And 22 feet-s that approximately two stories again directed to the chair?
>>DEL ACOSTA: Yes.
And the single-family home across the street referred to earlier, is that home a two-story structure, to your knowledge, again directed to the chair?
>>DEL ACOSTA: The house to your right is a two-story house.
>>> So it's accurate to say then, Mr. Acosta, again directed to the chair, that the base of the building matches up in height with the single-family home across the street?
Is that accurate?
>>DEL ACOSTA: I haven't done -- there are instrumentations to measure a building for the structure across the street.
It is a two-story structure.
>> It is a two-story structure?
>>DEL ACOSTA: A two-story structure.
>>> Thank you, sir.
Thank you, Mr. Acosta.
>>LINDA SAUL-SENA: I have a question about questioning.
This is a very funny feeling experience because we have never had this kind of cross-examination thing.
But the question that the petitioner just asked is does this include the parapet.
And I'm just thinking, why?
And I guess that's a question that I wouldn't direct to you, I would direct to Mr. Acosta.
But if you are including the height would you include the parapet?
>>> Are you asking me that question?
>>LINDA SAUL-SENA: I think I would ask Mr. Acosta.
The parapet is part of it.
>>GWEN MILLER: You're supposed to ask the question to me.
>>DEL ACOSTA: When I read it offer the drawing at this point it says third floor elevation, 34 feet.
>> 34 feet is different from 22 feet.
And if the parapet is part of it, it's like saying all but your hair, it seems it would be included.
>>DEL ACOSTA: And that's what I read when I was going through it.
I think dimensions are a more accurate number than levels of floors.
>>LINDA SAUL-SENA: The petitioner -- oh, let's not go there.
>>CHAIRMAN: Petitioner, you may proceed on.
>>> Madam Chair, just to clarify, I would again ask Mr. Acosta to address the elevation.
Let me clarify, if I may, Madam Chair, that the 34 feet, Mr. Acosta, I believe, if you look at the elevation, if you could clarify for the record, whether that 34 feet in height includes the 12-foot high elevation of the ground floor.
>>DEL ACOSTA: When I gave the dimensions I presented, I said everything was from zero.
And it submitted ground 12.
Level 2 is elevation -- 10 feet 6 inches.
Then there's a transfer level, 19, two.
The actual building would be 10-6 plus nine-six was two feet.
>>> Which is?
>>DEL ACOSTA: About 21, 22 feet.
>>JOHN DINGFELDER: Question.
So is that to assume that right now, that dirt is at 12 fate?
>>DEL ACOSTA: That was submitted on these drawings.
>>JOHN DINGFELDER: No, that's not the question.
That's not the question.
I mine, I think the whole issue has to do with what are they going to see from across the street, okay?
Or as pedestrians or whatever.
So isn't it relevant what our frame of reference is?
Is it 33 feet above the street?
Above the sidewalk?
Is the top of the parapet 33 feet above the sidewalk?
>>DEL ACOSTA: No.
This is ground level elevation.
And then you would have the parapet --.
>>JOHN DINGFELDER: No, ground elevation, at who's ground?
>>DEL ACOSTA: This is at the level where the retaining wall is.
>>JOHN DINGFELDER: At the top of the retaining wall.
That's not what I'm talking about.
I'm talking about from the sidewalk across the street.
>>DEL ACOSTA: Three feet down.
The retaining wall varies in height.
But it is probably at its highest point is three feet.
>>JOHN DINGFELDER: Does anybody know what the current elevation is?
It says 12 feet right there.
Is that after it fills out?
>>> My understanding Mr. Dingfelder is the ground floor of this property is 12 feet above sea level.
So that's why you have the ground floor of the building, on the floor.
>>JOHN DINGFELDER: When?
Right now today?
Or after fill is added?
>>> After what?
>>JOHN DINGFELDER: Fill is added.
>>> That will be the -- the grade of the building will be there at 12 feet from the start going up.
>>JOHN DINGFELDER: And I am not going to get into an argument.
But my point is if this whole discussion is what is the height of this thing, okay?
And the relevance is what is the height from the surrounding area, Mr. Acosta, okay?
So shouldn't we really be concerned with what is the height as perceived from the street?
Not as perceived after they have added fill.
>>DEL ACOSTA: They are not adding fill, it will be pretty much at the existing grade.
Where it sits now.
Then there would be --.
>>JOHN DINGFELDER: How do you know that?
>>DEL ACOSTA: First of all they have the grand tree.
So that's going to limit any -- if you start filling around that tree, in this form up front --.
>>JOHN DINGFELDER: Mr. Graham is here to tell us people create these little wells for oak trees all the time.
>>DEL ACOSTA: This is a protected radius and Mr. Graham can address that, the protected radius of the grand tree.
Now, you know, --.
>>JOHN DINGFELDER: I just think there are some real issues with us automatically assuming we can start at 12 feet and that that's a relevant starting point when nobody seems to know the answer.
That's my only point.
You can move on.
>>> Just to clarify, Mr. Dingfelder, finished grade is 12 feet.
That's what's out there now.
To my understanding, that the height of the base is a two-story height, to match a single-family home across the street.
That is what has been presented to us all along.
But with our architect working with Mr. Acosta and vice versa.
So the base of the building matches the two-story home across the street.
That's our position.
The first thing I would like to point out with respect to my presentation is we are not really here on any rezoning.
This property has been zoned RM-75 for more than 30 years, as long as the city has been keeping records.
RM-75, of course, is the most intense high-rise zoning available to a piece of property within the City of Tampa.
We're here to consider the proposed project that was agreed upon after months of negotiations between the city and my clients.
I think it's important to point out that the mediated settlement agreement resulted from a court ordered mediation commencing on May the 10th.
At that time, count four of the complaint, which includes the petition for writ of cert, if you have heard of that, the direct appeal from council's denial of our 346 foot building, was set for final hearing on May 27th.
17 days later.
So as of that date, the parties had already litigated for approximately one year.
We had already had one four-hour hearing.
And in that four-hour hearing the city had basically thrown the kitchen sink at us.
They threw all the arguments they had at us and they said, throw out the petitioner's case.
And they were successful with respect to count one.
The majority of our claims, however, survived, including count four, the direct appeal.
And we think that the most important issues in the case are included within count four.
So we're on the threshold of a decision on count four, when the court sends us to mediation, and asks us to use our best efforts to settle this case.
Now, with respect to that four-hour hearing, the city moved to dismiss count four.
And in response, the court not only denied the city's motion but issued an order to show cause, which means that the court concluded that we had shown a preliminary basis for relief on our claim, even in the face of city's arguments that our claims were all wet.
And so the court ordered the city to show cause why the relief requested in our complaint should not be granted.
And that relief is to remand it back to this council with instructions.
And although there's been much discussion tonight about what the court can and cannot do, with respect to count four alone, what the court could do is remand it with instructions.
For example, that the A.R.C. and City Council in enforcing the Hyde Park design guidelines and in the historic preservation code cannot determine the height of a building they can't say it's too tall because that is reserved for the zoning administrator. The court has that power.
County issue instructions.
So although the court on count four may not be able to say City Council, grant the certificate of appropriateness, it is not prevented from issuing instructions as to what factors are relevant in determining whether or not to grant a certificate of appropriateness.
The issue is also brought up about whether or not the court could possibly direct the court to actually require that a 346 foot building be constructed on the site.
And I'd like to point out that count three of our complaint is a vested rights claim.
And we feel confident, very respectfully-n that claim.
We rely to our detriment and significantly rely on occasions from city staff, and the city's own code, and historic preservation ordinances, that height was to be determined by the zoning administrator, and not by the A.R.C. or council interpreting the historic preservation code.
And I would like to point out that the specific code provisions is 27-216-O.
The authority of the A.R.C. points out that the A.R.C. does not approve proposed uses.
The A.R.C. does not approve proposed uses.
The zoning administrator shall be the sole administrator of the code as it pertains to all kind of things, including height regulations.
This is the city's own historic preservation code.
>>JOHN DINGFELDER: Question.
I could have sworn Mr. Acosta put up a piece of paper that said 217-216 (M) specifically saying that one of the criterias that the A.R.C. should be looking at is, I believe, scale, and it included height and width.
I mean, I'm just saying that perhaps we have a conflict within the code.
Seems like it's on paper, so I'm not telling anybody you know, any great secret there.
But it looks like, unless it's a bad copy, 216-216 (M) says additional criteria and new construction scale: height and width.
So if you go back to what you had up, which is over there, says the A.R.C. zoning administrator shall look at area, height, bulk and placement.
So perhaps we have some sort of conflict between the two.
>>> In response to your question, I think that's a very valid point, Mr. Dingfelder.
And I think what answer it is question is what I put on the Elmo here.
>> Can't read it.
Can we zoom that in somehow?
Zoom it out, I'm sorry.
In a little bit.
Scale, height and width is defined within the Hyde Park guidelines.
It's not height or width.
It's the proportion of a new building and the major relationship to neighboring buildings or components in establish compatibility with the neighborhood.
So it's the proportion of height to width.
It's not height and width in a vacuum.
It's not height in a vacuum or width in a vacuum.
It's the proportion of height to width.
>>JOHN DINGFELDER: Could you read that?
I'm having trouble reading that.
It is permissible to.
In fact this is whether we feel we have a strong argument.
It is a says right here in mandatory language, it is permissible to add a new building which is wider and higher than buildings on adjacent --
>>JOHN DINGFELDER: No, no, you skipped two lines.
It is permissible to.
>>> I'll read all of it.
It is permissible to add a new building on a site that is similar in height and width to buildings on adjacent sites.
>>JOHN DINGFELDER: Stop there a second.
A criteria even more detailed defined specifically says, it's permissible to add a new building on a site that is similar in height and width to buildings on adjacent sites.
So that is a criteria that you just legitimized.
You haven't criticized it and said that it shouldn't be there.
>>> May I respond?
Very respectfully, Mr. Dingfelder, sure, it says that it is permissible to do that.
It also says down here on the third section, if you would like me to read the section, I'll be glad to do it.
But it also says on the third one, that it is permissible to do something else.
So it's permissible to do both.
It is permissible to add a new building which is wider and higher than buildings on adjacent sites if the new building is divided up to suggest buildings of similar width to adjacent buildings, and if the height of the building at the street facade on its sides facing adjacent sites is similar to the height of buildings on those thoughts.
This is achieved by placing the taller masses away from the street and adjacent buildings.
So it's permissible.
It's like, okay, it's permissible to drive 35 and it's permissible to drive 45.
You can do both.
You can do either.
Further, cementing that idea, I think, is that you move down and look at what's not permissible.
And if you'd like me to I'll read the first one.
It says it's not permissible to add a new building to a site which does not maintain or suggest the widths of buildings on adjacent sites.
Then on down it says: It is not permissible to add a build willing to a site which does not maintain or blend with the heights of buildings on adjacent sites.
The key word there I think is blend.
Because in the proceeding section it says it is permissible --.
>>GWEN MILLER: Ladies, we are not going to have any outburst.
We are going to listen to you.
We ask you to listen to the petitioner.
>>> If you break it up, and if you make the base the same height as the surrounding properties, like the petitioner has done in this case, we believe, if you make the highest part of the building away from the street facade, that's what's going on here.
That's how you blend it.
>>JOHN DINGFELDER: From a procedural perspective and then I'll be quiet.
You can't have your cake and eat it too because I thought you started off this portion of your argument by saying that the A.R.C. had no business meddling in height and width.
>>> That's not way said.
I said they had no business meddling in height in a vacuum.
That's way said.
And that's a critical distinction.
>>JOHN DINGFELDER: Okay.
But you're saying that it's okay if they use this criteria.
>>> To big a builder building.
It's right there in the guidelines.
>> And you're not objecting to that?
>>> It is permissible. The third one right there. I'm not objecting to that. That items you how you can blend it into the neighborhood.
It specifically says that you can add a building, which is wider and taller.
That's how you do it.
>> But you're not objecting to that entire page under scale, height and width.
>>> No, I think we have got to accept that, and what we have got to do under the Supreme Court's mandate, and the case I would refer to, there's a ton of cases, Harris versus Palm Beach County, 772 Southern 2nd 1273.
Points out that you must read the regulations in harmony with each other.
You can't construe it so as to render one portion meaningless.
And the only way to do that is to say, the first however section -- highlighted section shows you how to blend.
The second says you can't do it, it if it doesn't blend.
>>JOHN DINGFELDER: When you're done with this page will you make sure staff gives us a copy of it?
And I think that kind of under scores where we are in the case.
But here we are with the historic preservation code.
The zoning administrator has sole control over height.
That's what it says.
And there's a reason it says that.
Because at the time that was enacted, there was a state statute in question.
Historic preservation for the City of Tampa was pursuant to enabling legislation.
Florida statute, if you will give me a minute, I'll find it.
And that statute mandated, and I quote, that no historic preservation regulation shall be adopted that is in conflict with any zoning ordinance.
So under the statute, it would have been impossible for there to be a guideline that enabled the A.R.C. to come to a different height conclusion than that of the zoning administrator.
And the reason that's so important, in the litigation, is before our 346 foot tower ever came before the A.R.C., or council, there was a memo issued by the zoning administrator.
And in that memo the zoning administrator said you're 346 foot building is compliant with the height restriction in the zoning ordinance.
>>JOHN DINGFELDER: In a vacuum?
>>> Yes, sir, because that's the zoning administrator's bailiwick, in a vacuum.
>>JOHN DINGFELDER: In a vacuum?
>>> Yes, sir.
>> But he didn't look at any of those other factors you and I were talking about on scale, height and width.
>>> That's the A.R.C.'s bailiwick.
Once the zoning administrator decides traditional zoning issues like, for example, height, setback, what use are you going to build a commercial property or single family or whatever?
Once the zoning administrator makes that determination, then it's time for the A.R.C. to come in and say, well, okay, we know how high it's going to be.
>> No, excuse me, I don't -- I think you're ride reading that into this code, okay?
Because it doesn't say that on this page of scale, height and width.
It doesn't say once the zoning administration -- unless you point to me on this page, it doesn't say once the zoning administration has made that determination that it's taken away from anybody else who is making that determination.
>>> I respectfully disagree with Mr. Dingfelder.
It says right here the sole administrator of the code with respect to height, regulation, is the zoning administrator.
>> Then why would it be on this other page?
>>> Well, obviously we have a difference of opinion.
But that's why I think we have a strong case.
And I appreciate you letting me answer your question.
Let's talk about some of the other claims we have in the case.
We feel like we have a strong equal protection claim.
Equal protection analysis in this context, since it's not a suspect class or anything like that, you have got a rational basis review, which means that if two similarly situated land owners are treated differently -- yes, sir?
>>SHAWN HARRISON: Yes, I'm sorry.
I think the memo is important.
You said there was a memo, a physical document?
>>> Yes, sir.
>>SHAWN HARRISON: Do you have that?
Has that been submitted?
Is it in our record?
>>> It has been submitted, Mr. Harrison, in connection with the letter that I sent to everyone.
A copy of that is included in our brief.
You can find it for you.
Yes, sir, it's on page 20 of the petitioner's reply to City of Tampa's response to the amended petition for writ of cert, page 20.
>>SHAWN HARRISON: Thank you.
>>> If you look at the memo what it says basically is in the RM 75 zoning classification, the height of a structure under the zoning ordinance is determined -- it's a function of setbacks.
There's a 4 to 1 ratio.
And so when Ms. Moreda, the zoning administrator has done in this memo, is indicate the building height at the various setback locations, and she indicates that we are compliant.
There's an explanation of it on the next couple of pages.
But that's what the zoning administrator decided.
If we would not have met the height restriction we would never have been able to go to the A.R.C. review process.
With respect to some implications of the case beyond just this case, I don't think that anyone has mentioned the fact that, you know, not only do we have our claim for constitutional claims, we have a section 193 claim, and although that won't entitle us to damages, attorneys fees could be recovered.
Additionally, count two of the case is a challenge to the Hyde Park design guidelines as being unconstitutionally vague as applied to any non-single-family residential structure such as what we have.
The city filed a motion to dismiss that.
They were successful with respect to count one, facial invalidity.
With respect to count two as applied to a non-single-family structure, the court rejected their argument.
That's not to say that I'm here to tell that you we automatically win.
I'm not trying to tell you that.
But we think we got a legitimate argument there.
And if accepted, our argument would prevent any A.R.C. review of non-single-family structure.
So the only control over non-single-family structure is in the district, if our argument was accepted with the zoning ordinance.
A.R.C. would have no control of that.
So there are additional issues beyond just this case.
You know, we are very confident in our position at 346 feet.
We have a vesting claim.
And I can site to you a multitude of cases in which Florida courts have determined that a vested right has been proven, either through actions of the city, in targeting a specific property, or in reliance by the applicant on ordinances, representations, of city officials, and I've got several of them listed here on count three of the amended complaint that I provided to all of you.
I have been involved in one of those cases.
It was Bell South Mobility versus Gwenette Cott.
In that case a court actually directed a county to issue an approval.
So it does happen.
Northern District of Georgia.
I respectfully submit that the law is almost exactly the same on vesting in Georgia as it is in Florida.
I appreciate your time.
Obviously, at 230 feet we have compromised more than a third of the height of the building.
Our argument all along, we were at 346, now we are at 230.
Our argument all along is that very respectfully, our 346 foot building was not denied because it was noncompliant.
Our 346 foot building was denied because of Constitution alley confirmed arguments that don't put in the my backyard.
And here we are in front of council.
We've got a settlement agreement where the city's own staff is providing overwhelming evidence, that city has hired to rely on the professionals, they rely on every day to determine compliance.
They are telling you that we're compliant.
So we feel like that we are compliant, that you should accept this, and that there's in a reason to litigate over 346, if we can get this resolved.
However, if we don't, then we'll be back, but we won't be arguing about 230 feet.
Unfortunately we'll be arguing about 346.
And so we have got that usual you and the attorney fees, we feel we have compromised. We tried to be a good neighbor.
At some point in time, it's got to be a structure that we can build on this property.
It was 24.
Now it's 19.
You approved a 26-story building within the district.
These land owners are similarly situated but they are being treated differently.
I can show you on the Elmo -- well, you have seen, I believe, Mr. Acosta showed you the single family home that's adjacent to the development --.
>>GWEN MILLER: Turn it around.
>>> I'm sorry.
At 26 stories.
Now, that's tiered.
And so is our building.
The base matches the two-story building across the street.
We feel like we are compliant.
Mr. Acosta's testimony proves we're compliant.
Ms. Tate's affidavit, a University of Florida professor, she is a certified historical architect, coincidentally she was one of the design guidelines authors, one of the original design guidelines authors.
She reviewed the 230-foot plans.
She has -- she's familiar with the Hyde Park historic district.
Obviously she wrote the guidelines along with others.
She says we're compliant.
Mr. Acosta, who is the A.R.C.'s manager says we're compliant.
And I think the evidence is there.
Thank you for your time.
>>LINDA SAUL-SENA: Thank you.
Sir, one of the distinctions that I observed in looking at the building you referred to that's next to the house that's up on this picture, is that there are several intervening steps.
There's a townhouse portion that's an 8-story parking portion and then there's the high-rise tower.
And my question is, what is the distance -- and perhaps you can answer, perhaps Mr. Acosta -- what is the distance between this two-story house and the vertical high-rise part of the tower?
Because it seems to me it's about a block away.
I mean, it seems to me that it's quite a distance.
>>> You're talking about one Bayshore?
>>LINDA SAUL-SENA: Correct.
For crescent something.
Between this and the one Bayshore, whereas what you are proposing I believe is a lesser distance and much less intervening steps.
I guess that would be a question for Mr. Acosta.
I bring it up because you just put the picture up there.
>>JOHN DINGFELDER: Could I ask a question before we go to of Mr. McLaren?
You reference Mr. Acosta repeatedly.
I would hope that all city staff treat people fairly.
Have you been treated fairly and reasonably by Mr. Acosta?
>>> I don't know if I understand your question.
>> Well, you accepted his opinion on this project just now?
>>> I accept his opinion that we're complying, yes, sir.
>>JOHN DINGFELDER: And do you accept him as an expert in this field?
>>> He is the A.R.C. manager.
He's the one that's responsible for advising City Council.
>> On height and scale and mass?
And the Hyde Park historic guidelines.
The zoning administrator is what advises this council on height.
That's my position.
>>JOHN DINGFELDER: So -- I've got a couple more questions.
So you're going to select certain fogs that he's taken selectively or what?
What I'm doing is referencing historic preservation code which says zoning administrator determines height.
Mr. Acosta has determined that our plan is compliant with the Hyde Park historic guidelines, and applicable to preliminary approval.
Not all of them.
But he has made that determination.
>> Do you have any objections to anything he's done?
>>> Not that he's presented tonight, no, sir.
I don't know, are you referring to something in particular?
>>JOHN DINGFELDER: No, I just want to make sure the record is clear.
>>> The record is clear that this witness has testified that we're compliant and I agree with his position.
But you have relied on his position.
That seems to be where you were headed for this last 20 minutes.
>>> He said we're compliant.
I'm relying on that.
>> So you don't have any objections to Mr. Acosta in regard to any leaning or potential conflicts that he might have whatsoever?
>>> I don't understand your question, sir.
Are you referring to something in particular?
I'm just asking you, from anything that you're aware of today, do you have any objections whatsoever to Mr. Acosta being -- that he should be conflicted out of making this opinion, or because he has any particular conflicts or any particular arenas?
>>> Not with respect to his position today, no, sir, I don't.
>> I'm saying with respect to his position, period, at any given time.
>>> I think at one point he had a potential conflict.
>>> But the conflict would have been as against my client.
>> So I understand, is that conflict gone?
>>> Well, the conflict would be against the person that now he's saying now that we are compliant.
>>> So, I mean, how is a conflict with respect to something adverse to my position, how is that relevant to this hearing?
>>JOHN DINGFELDER: So in other words now that his position is consistent with your position, you don't have any objection as related to that conflict, correct?
>>> No, that's not correct.
With respect to the prior position he took a position adverse to us, and it could have been that the conflict was involved.
Now he's taken a position that is obviously if he had a conflict, it's been resolved, because he's not taken an adverse position.
>>JOHN DINGFELDER: Okay.
Whit white I still don't know what that was.
>>DAVID SMITH: I know we have got some confusion here because according to Mr. Acosta he's never taken an adverse position.
So I'm not sure what that was all about.
Did you take a previous adverse position?
>>DEL ACOSTA: Recommends always have conditions of approval to be consistent with the Hyde Park design guidelines.
The staff has never determined the previous version was in conflict.
Did it not satisfy all the criteria of the design guidelines.
>>JOHN DINGFELDER: Say that again?
>>DEL ACOSTA: The previous one, not this one tonight.
The previous one.
The last one that was designed by the A.R.C. did not satisfy all the criteria of the architectural review commission.
But it was not an adverse position.
It was calling out issues that needed to be resolved to comply with the design guideline.
>>JOHN DINGFELDER: Were those issues resolved at that time?
>>JOHN DINGFELDER: Therefore you never were able to make a recommendation in favor of it?
>>DEL ACOSTA: That particular one was then mediated out to the solution.
>>JOHN DINGFELDER: Okay.
>>> Madam Chair, I would like to reserve the rest of my time for rebuttal.
>>KEVIN WHITE: I was going to say, before we hear from the public I would like to request a five- to ten-minute recess for council members as well as the court reporter who hasn't moved.
We are going to be here till 12:30, 1:00 anyway, folks.
I think some of you all need a break and quite frankly the circulation gets cut off here.
We have been at this since 9:00 this morning.
>>GWEN MILLER: We'll recess for five minutes.
(Recess at 9:13 p.m.)
>>GWEN MILLER: Tampa City Council is called back to order.
>>JOHN DINGFELDER: Here.
>>LINDA SAUL-SENA: Here.
>>SHAWN HARRISON: Here.
>>MARY ALVAREZ: Here.
>>ROSE FERLITA: (No response.)
>>KEVIN WHITE: (No response.)
>>GWEN MILLER: Here.
>>DAVID SMITH: David Smith, city attorney.
I know we want to get started again.
I just have a brief comments and turn it over to the neighborhood.
Those comments are, as I say, two:
First one is, we have a standing objection with respect to discussion of any matters that occurred within the context of the mediation itself.
@ the lawyers here know and most people in the audience who are lawyers know, internal discussions at mediation are confidential, cannot be disclosed.
The product of mediation is the settlement agreement.
I don't think any of us will try to violate that but we want to make sure we have on the record a standing objection to any questions dealing with something that must remain confidential.
The second issue is, one of the neighbors approached me right when the break started and indicated they were a little bit confused about the process for surrendering additional time.
Apparently the they quit taking names when they got up to the 7, which was the standard process.
So what you can do is, if you have got your list of your names, you can add to that simply by adding more names to the list of people who are eligible to speak and who are not going to speak.
So you can add to that now.
It doesn't have to have been done beforehand.
You just have to do it before you turn it in.
So anybody who is in that position please feel free to do that and you can get the additional time that council has provided in its rule waiver.
That was it.
You have a lot to do so I'll get out of the way and make sure I'm not taking anything that's not mine.
I don't think I am.
Thank you very much.
>> Seth Nelson, the law firm 2102 West Cleveland Street, and I have been sworn.
Are you ready, Mr. Shelby?
>>MARTIN SHELBY: How long do you intend to speak?
>>NELSON: I was going to give you my sheet.
I just wanted to announce.
>>MARTIN SHELBY: I understand you had something you wanted to place in the counselor hand to council?
We have two binders we are submitting into evidence.
We have copies for all council members.
And people throughout the evening will be referring to different portions of the evidence binders.
>>MARTIN SHELBY: I believe Mr. Nelson has one, two, three, four, five, six names on the list.
And please, would you please either waive or stand up so we can see that you are in fact here?
Dan Dukes, right here.
Jenny C. Dukes.
Thank you, sir.
Is it Morno Salvatecci.
And Ann Heldman.
And you have not placed your names on any other list, is that correct?
>>NELSON: My clients represent the best of historic preservation, and just to be clear --.
>>MARTIN SHELBY: I didn't recall if you said you have been sworn.
>>> I have been sworn.
Just to be clear, the argument we're making here tonight is not "not in my backyard."
The argument we're making is not in a historic district.
We're not only protecting Hyde Park, but all the other historic districts in the City of Tampa.
Seminole Heights, Ybor City, Tampa Heights, and hopefully soon can add west Tampa to that.
Just a little background to refresh your recollection on some of my clients.
We try diligently to get involved in the lawsuit.
Our goal in the lawsuit is to make sure our voices could be heard in front of the court, and also to be a part of modiation, so we hope that we could come to you tonight saying that we had worked with the developer and come to a decision, and that we thought it was in the best interest of the city, and we agreed with it.
Citivest fought that extremely hard, and the court ruled that we were not allowed to intervene at this time, this time being prior to mediation.
But the court left open the door to let us come back if and when the case didn't settle or if City Council didn't approve the settlement to go back to the court and ask to be let in as a party.
If City Council does not approve the mediated settlement agreement, we intend to do just that, to go back to the court and ask to become a party so we can work with the city attorney's office in defending this lawsuit, and if mediation comes up again we can be a part of the mediation so all the concerns, frankly, that we are going to raise tonight could be addressed in mediation.
So we wouldn't have to have such an extensive hearing here.
We submitted an evidence binder.
As you know, you sat through many meetings where citizens have gotten up and basically have made the same arguments.
We have tried to prevent that from happening.
There will be some overlap.
And trying to prevent that from happening, we submitted this evidence binder to you in defense residence, different neighbors, different legal council, will be referring to the binder.
You have it before you so we can move along quickly.
I'm just going to point out a few things in the evidence bind theory we'll be referring to.
On tab 2, there's the section 27-216 which people have been discussing on the Tampa city code.
There's also excerpts on tab 3 from the Hyde Park design guidelines that we have also been discussing.
Tab 9 -- and this hasn't been mentioned yet -- has the mediated settlement plans showing what appears to be a 15-foot intrusion into an adjacent property to accommodate the widening of DeSoto.
That will be discussed more later by Mr. George Deakin.
On tab 10 is a composite that shows the A.R.C. rulings, that deny certificate of appropriateness based on height, mass and scale.
Tab 11 shows the Hyde Park historic district parcels that are not contributing structures, and are zoned multifamily.
You will hear later the reason why that is important.
It's because if you approve this, these other areas within this one historic district could be affected by having the building -- those areas have high-rise development put on within the RM-16 zoning that will be discussed later.
Tab 14 is the national historic marks reporting citing Ybor City as a historic district on the watch list.
Once again, this is not "not in my backyard," it's not in a historic district.
Tab 29 deals with the mediated settlement.
Interestingly enough, I don't think the petitioner actually went through the settlement.
He went through some portions of it but I think you need to look at the full document.
Tab 32 is a letter that needs to be -- will be read into the record, and it's from retired United States Congress man Sam Gibbons.
He's sorry he can't be here this evening.
That's important because it gives you a history of the historic district and why it is where it is in relation to the other building, some of which were shown earlier tonight.
There's also on tab 33, letter to Tampa City Council from the national trust for the historic preservation.
Tab 35 are some photos showing some unsafe traffic conditions with proposed plan and credentials of George Deakin, who will discuss those.
And tab 37 is the easement that is on the site plan, and a trustee fee that raises some questions regarding the parties involved in this case.
Petitioner's argument at one level was, we're allowed to do this.
And he says that if we have to go back to court, the court may and can order you to do this.
If that is true, then it's true for other areas in the district and throughout the other districts.
That is his opinion that it's true.
It's our opinion that it's false.
So if you approve this tonight, you are not going to end one litigation in this case.
I'll get to that in a moment.
But you're not going to end the procedure that has gone on in this case, and that procedure is, some other client will hire them, which is their right to do, they'll go before A.R.C., they'll be denied, they'll come before City Council, they'll be denied, they'll file a lawsuit, they'll go to mediation, and they'll be right back here saying, well, I've got this argument that I think is real strong, in front of the court.
And it's so strong you should really approve this, because I started at X number of feet and now I'm down to Y.
Some case law has actually stated that when council approves such measures that they worry, and they leave -- and the court says I'm worried about council not being able to settle disputes, but on the other hand I'm worried about developers coming before them at first and asking for something unreasonable, only then to settle at something that appears to be more reasonable, but it's really not.
That is the game plan, and that is the road map, I should say, of what has happened here, and that will be the road map for other pieces of property within these historic districts.
And frankly it will kill the districts.
It's an open question.
In this litigation as council members have said, you're worried about the procedures.
You have a reason to be worried about the procedures.
Because they seem to be flawed.
We argue that they are flawed, in some of your guts you feel like they are flawed, and you have your city attorney saying that they are not, you have us saying that they are, but at the end of the day that might be decided by a court.
Those same issues are already before this court.
There's no need to create more litigation.
There are problems with this case.
Let the court sort it out.
Let the parties go back to court and come together, with all the parties involved, with mediated settlement agreement.
That is the point tonight as opposed to creating more problem.
>>> I just wonder if I can have a copy of what was provided to council.
>> I'll see if I have one after my presentation.
It's my time to speak.
I don't think you asked for a point of order.
Secondly, some of the people -- yeah?
>>JOHN DINGFELDER: Do you have a copyright here?
>>> This is my copy that I have.
I'll check to see if I have an additional.
>>JOHN DINGFELDER: Just for point --.
>>NELSON: We haven't referred to it yet.
>>JOHN DINGFELDER: In court you hand the paper.
>>NELSON: Some people have said to me -- and this might not be the view of everyone here -- if it's 19 stories, it might as well be 24.
There's no difference there.
There might be a difference in their bottom line.
There might be a difference in saying, well, it's a compromise.
But in their and some of the citizens' view there's in a difference.
With that in mind, send it back.
That's what they really want.
And they think they can get it, let's go fight about 24 stories.
The final point I'm going to add -- and I'm trying to be brief because like I said we have other people that are going to speak, and will talk about all these issues -- is that --.
My time is up.
Anyone have any questions?
>>GWEN MILLER: Make your statement.
>>NELSON: Just my final point is that there's so many procedural flaws and so many substantive flaws that already happened, the best course is to send it back to litigation and let it be worked out.
>>SHAWN HARRISON: Who do you represent in this case?
>>> Mr. Deakin and Mrs. Henderson, the time I have been allotted have been from other members and they will be speaking on their own time tonight.
>>SHAWN HARRISON: I don't know if that's a procedural problem.
>>> If that's not proper then I can be here of my own accord as the citizen of Tampa.
>>GWEN MILLER: No, you spoke.
>>> The seven people that signed up for me to speak are on that list.
There are other people here that happen to be my clients.
>>GWEN MILLER: All right.
>>SHAWN HARRISON: And your clients are neighbors?
>>> My clients, one client lives on Bayshore Boulevard, which is very -- just one house over from the proposed site.
And another one lives on DeSoto, which is up the street.
And when they come up, they can tell you exactly where they live.
>>SHAWN HARRISON: You obviously disagree with the potential ramifications of our refusal, or our denial of the mediated settlement agreement, as what has been told to us by our city attorney.
Why don't you just tell us what you think will happen in this litigation if we say, no, we don't agree with the mediated settlement, because there seem to be a lot of differing opinions about that here tonight.
>>> The first thing that will happen is we'll file a motion to intervene and try to become a party.
If you're looking at the end of it, the second thing that will happen is that I will hope that the city will take some depositions and move through the discovery process.
They said that they have interviewed their own witnesses.
That's common in litigation.
They have not taken the deposition of the opposing parties' witnesses.
They have not taken the deposition of Citivest.
They are corporate representatives.
They have not taken the position of the bank, their corporate representative.
The city fought hard to take both those depositions, and Citivest and the bank fought against it saying, well, they are the same person so you should only have one day.
The court ruled no, they might be the same physical person but they are corporate rep for each of the entities and the city is allowed to have one day for each, and if they need more time, they can even come back and ask for it.
So the first thing that will happen is that proper discovery process will begin and continue.
Secondly, I think that the position of Citivest and -- there's a motion to dismiss that's out there that hasn't been heard.
So even though they can show you a stack of papers in the length of time, it doesn't mean that you actually had those stack of papers heard before the court.
They have been briefed.
It's been litigated.
It has not been argued.
And you need the judge to hear those arguments.
Finally, I think the city will prevail.
And I think in this suit.
And possible worst case scenario, and I think the city is afraid of this, I don't think this will happen, is that the court may rule in Citivest favor as to procedure.
If that happens, the remedy for that, if there is one, is to remand it back to get the procedure right.
The remedy for that is not to build the 24-story building.
Now, the city may be afraid that if they lose that battle, they are on the hook for attorneys' fees.
Then we're just talking money.
>>GWEN MILLER: Thank you.
>>> I'm James Fuhrman Jr. but I have not yet been sworn in.
>>JOHN DINGFELDER: Everybody that just came in.
>>CHAIRMAN: Has everybody been sworn in?
If you have not been sworn in please stand and raise your right hand.
(Oath administered by Clerk)
>>> Thank you.
I will be brief.
And actually I will not be factual, intend to introduce just a little bit of emotion.
Articulate arguments have been made.
My names is James Fuhrman, Jr., 1814 Richardson place, which is about three blocks away from the subject site, and by coincidence, that is the same address that appears on my birth certificate.
I also represent Martha Fuhrman, my 91-year-old mother, whose address is 1815 Bayshore Boulevard, an equal distance also from the subject property.
She lives in an historic home that was built after the 1929 hurricane by my grandfather, W.F. Fuhrman, of which we have restored about five years ago, painstakingly and meticulously and I might add fairly expensively to recreate a "brand new" 1921 house.
And that was an appropriate thing to do for a historically appropriate and preserved neighborhood.
19-story high-rise is not.
I was appalled to find the city was attempting to -- and I would use the word dishonor our historic neighborhood, and its trust in order to appease a developer and to avoid a lawsuit.
I feared for the city and this is genuine concern for the city that it will not accomplish anything except appeasement, and violation of the trust.
Certainly not what I'm hearing the lawsuits that are certain to follow such a course, nor will it avoid ill will of the citizens of Hyde Park.
There's a right thing to do here and a wrong thing to do here and I urge you not to let weakness let you overcome the right thing.
>>GWEN MILLER: Thank you.
>> Please ray your hand.
Agnes Stanfield, thank you.
Michelle Montgomery, thank you.
Josh Poe, okay.
And Susan Jones.
There is no Josh Holden on this list.
I'm sorry, I can't see the room with this piece here.
Is Susan Jones in the room?
So we have six names plus three, nine minutes.
Cross off the last name.
>>> Good evening.
I'll just talk a little faster.
Thank you for pulling our community together here tonight.
My name is Brook Melendi, Watrous Avenue, and I have been sworn.
Over the past three years I have served as co-chairman of the Historic Hyde Park home tour.
During which guests from all over the bay area and Florida come to tour some of the historic and beautifully preserved homes that make our neighborhood such a unique part of Tampa.
This evening, I'm here to speak not my own words but those as a citizen of Tampa who is unparallelled in history, commitment, and esteem to our community.
Retired United States Congress man Sam Gibbons spent the 2004 Historic Hyde Park home tour at the signature home on our tour educating and reminiscing with guests about the history of Bayshore Boulevard.
The home he was at was located two doors down in the proposed tower.
Tonight I'm reading you a letter he has written in support of the neighbors, and opposing the proposed skyscraper.
In this letter Congress man Gibbons answers my questions on why high-rise buildings have historically been permitted and continue to be permitted on some parts of Bayshore Boulevard and not others.
He speaks to preserving Bayshore between Howard and Magnolia Avenues as a single-family neighborhood, and you have the opportunity to up hold his vision tonight.
>>JOHN DINGFELDER: This is tab 32 for council.
>>> Dear members of the City Council: I urge you to vote against the proposed mediated settlement agreement for the parcel of the corner of Bayshore Boulevard and DeSoto Avenue.
Unless you preserve the integrity of this area, you will open a door that cannot be closed.
Hyde Park and Bayshore Boulevard will never be the same.
And this responsibility will rest with you.
I fully agree with the residents that allowing a 230-foot building at the Gateway to Hyde Park would be devastating to Tampa.
To understand Bayshore Boulevard, it is helpful to understand its three different areas.
Until the 1950s the Tampa city boundary stopped at Howard Avenue.
Consequently when high-rises and commercial development first threatened Bayshore, the structures began between Howard and Gandy where there were fewer protections.
This is one of the reasons that as a state legislator in the 1950s I took a pivotal role in expanding the city's boundaries and bringing the inner bay area into the City of Tampa.
The city aimed to get control over that area.
This is why today Howard to Gandy is a mix of single family and multifamily residences.
We wanted residences in that area no higher than a hook and ladder fire truck could reach.
Although we did allow for existing nonresidential structures such as the Colonnade restaurant.
By contrast, the second portion of Bayshore Boulevard which is located between Howard and Magnolia Avenues where the tower is being proposed was historically a part of the City of Tampa and was well established as single family residential.
The jewel of Bayshore was always Hyde Park with some of the most attractive and well built homes in Tampa.
Some were designed by architects, new for Tampa at that time.
This was the place Tampa residents brought their out of town guests when they came to visit.
It was Tampa's premier location and still is today.
As your state senator, I and other legislators took steps to improve and preserve the portion of Bayshore between Howard and Magnolia so that it would remain single family residential.
We worked with the City of Tampa in the early 1960s to craft a zoning law to prevent all high-rise and commercial development between Howard and Magnolia Avenues.
There were numerous public hearings, and much discussion concerning the entire Bayshore preservation and redevelopment.
To carry out this vision, we need to obtain specific permission from the Florida legislature to keep this area protected, and to redevelop the Bayshore.
The vision and hard work for this can be seen in the carefully preserved single-family homes that line Bayshore between Howard and Magnolia Avenues today.
The third portion of Bayshore between Magnolia and -- right up there -- did not even exist as Bayshore originally.
Bayshore drive stopped at Magnolia and was not extended until government work programs began in 1937.
The area around the Platt Street bridge was always mixed use, and this use was not changed, even in the 1920s and 1930s the area between Magnolia and plant contained boarding houses, apartments and filling stations.
So when the developer points to high-rises close to downtown, history shows that east of Magnolia was traditionally a mixed use of commercial structures and multifamily dwellings.
When the historic district for Hyde Park became law, the laws creating the district fulfilled these original visions.
The vision for Bayshore Boulevard as developed by the state legislature, the city government of Tampa in the 1960s, was that Howard through Magnolia on Bayshore would remain single-family residential, and there would not be any multi-family high-rises in that area.
Even the Bayshore Royal built about 1924 originated as a hotel that fronted Howard Avenue with parkland and open space on Bayshore Boulevard.
The steps we took to protect Bayshore between Howard and Magnolia became the catalyst for Hyde Park's turn around in the 1970s and 80s, and the eventual creation of the historic district.
What has happened to Hyde Park in recent years is wonderful, and it happened because cities and state leaders stabilized Bayshore.
Do not destroy this original vision for Bayshore between Howard and Magnolia.
By requiring that new construction be compatible with existing historic homes, the Hyde Park design guidelines keep the promise that Bayshore between Howard and Magnolia was and always should be single-family residential.
You should be steadfast in your support of the Hyde Park historic district and the design guidelines, because these laws protect Bayshore in a way that Tampa's leaders and state legislators intended.
To allow a structure twice the size of the Bayshore Royal at the entrance to Historic Hyde Park will destroy decades of hard work and the vision of Tampa's leaders.
Once you allow developers to penetrate this area, you will be plagued with more and more developers seeking to cash in on the property on Bayshore at the highest price.
The decision you make today will permanently affect the beauty and history of Tampa's most prized and scenic area.
Please, do not allow yourselves to be talked into a mediated settlement agreement that you know is wrong for this city.
Once the door is open, there will be no turning back.
If you would like to discuss any of these matters with me, please do not hesitate to reach me.
Sincerely, Sam M. Gibbons.
I will close with his words.
Thank you very much.
>>GWEN MILLER: Thank you.
>>MARTIN SHELBY: Lisa Mizeck.
>>> My name is Michael Villa.
I reside with my wife Julie and sons at Bayshore Boulevard.
My home is the home that's directly adjacent to the proposed site.
>> Have you been sworn, sir?
>>> Yes, I have.
You know, these words are not going to be my own.
And they are not going to be Sam Gibbons.
I was here last Thursday on an issue and had the pleasure of listening to some folks from Courier City come up and talk about a proposed four-unit town home that was applying for a PD zoning.
And just highlighted some things I wanted to go over with you, and maybe hope to refresh your memory.
Some of the applicants I have paraphrased and highlighted but some of the things, you will see three bungalows, and another three bungalows.
My house didn't look pretty when I bought it but few houses in this neighborhood don't come that way.
You have to put money and time in fixing them.
I want to address it.
I feel it's too large in the area.
I would like to be see something more in keeping with the architecture of the neighborhood.
We would like to see it be consistent with what is presently in our neighborhood.
The problem is, it's not consistent with the historic element of the neighborhood itself.
If they are going to bring it in, it needs to not distract from the historic fabric, but actually contribute at least be compatible with the historic fabric that's in the neighborhood.
And then council spoke.
Meet with the neighborhood was one of his statements.
Another was, I think it deserves an opportunity to sit at the same table and so everybody will feel more comfortable.
John Dingfelder: What we have not included in the list that you are mentioning, Shawn, was this neighborhood has objected to the height, they objected to the massing, they objected to the inconsistency, and incompatibility with the neighborhood, and they showed some beautiful little bungalows that are right around these, and that are clearly inconsistent.
Mr. Dingfelder again: A very good relevant comment was: This is an RM-16.
So if you want to build four units on this lot, they can build four units on this lot.
With Euclidean zoning.
The only reason I say all of this, is in an open public hearing is because I'm going to move to close at this point.
Rose Ferlita: I think we have gotten the neighborhood's ideas about what they want and what they don't want.
I think you would go away knowing pretty well that if it's not something that is a little bit more acceptable to them, we probably won't support it.
Then Ms. Saul-Sena: I think we have seen something historic tonight.
This is the first time that a large number of articulate compelled leaders from this neighborhood have come forward with the dense incompatible building.
They are crying out for design.
They want porches, pitched roofs, elevated off the ground.
I mean it's not rocket science.
Some of the existing designs -- some of the existing designs look so bad on a scale next to the existing houses it's so incompatible.
And what you need if we are going to go ahead, then you need to come back -- come back with what needs to be compatible needs to be more like a bungalow.
Materials, green space need to reflect the pattern of the existing blocks.
I think we heard from the neighbors and they don't want any more of these -- they don't want them, then council doesn't want them.
Mary Alvarez: I don't know whether you can go back and make a design -- I'm sorry, Mary Alvarez.
I visited this neighborhood a couple weeks ago and I too was really appalled at what was happening in this beautiful little neighborhood with bungalows.
I don't know whether you can go back and make a design that will be compatible with this neighborhood.
So it's either we go to continue, or we are going to deny.
And Linda Saul-Sena finished up: You have plenty of time to get with the neighbors and design something that is compatible and if it is compatible, and I think you hired a designer, it's possible, then it will be supported but if you come back with another variant Mediterranean thing, it will not be supported.
And I just want to tell you, council, that I found it very refreshing and interesting to hear your concerns regarding compatibility, design, massing, and height in a neighborhood that falls outside of the historic district.
I just please ask you to show that same level of commitment tonight regarding our neighborhood that sits in one of Tampa's premiere historic districts.
>>GWEN MILLER: Thank you.
>>MARTIN SHELBY: Three names.
Three additional names.
>>> My name is Paula Meckley, 2515 Jetana Avenue, Hyde Park.
I believe it's tab 33 in your binder.
Dear honorable council members.
On behalf of the National Trust for Historic Preservation, I am writing to express our concern regarding the proposed mediated settlement agreement for a 19-story condominium in Hyde Park historic district in Tampa.
It is our understanding that the City Council has been asked to approve a 230-foot tall structure even though it would be contrary to Hyde Park design guidelines.
The national trust for historic preservation is a private, nonprofit organization chartered by Congress in 1949 to promote public participation in the preservation of our nation's heritage, and to further the historic preservation policy of the United States.
With the strong support of our 250,000 members nationwide including more than 8,000 members in Florida, the national trust works to protect significant historic sites and to advocate historic preservation as a fundamental value and programs and policies at all levels of government.
We urge you to return this matter to mediation, and to not affirm a settlement proposal for a structure that would be vastly out of scale with neighboring properties and a characteristic of the historic district as a whole.
The Hyde Park historic district, which is listed in the national register of historic places, is an important architectural and historical resource both locally and nationally.
It's mostly one to three-story structures from the late 19th and 20th centuries, would quite simply be overwhelmed by the proposed structure.
As members of the Tampa City Council, you serve as stewards of the city his toys resources, this includes the architectural character of its many historic districts.
Approval of the proposed mediation settlement agreement would not only undermine the preservation objectives of Hyde Park historic district, specifically, but would also affect the historic integrity of other historic districts in Tampa as well.
While new construction is important to the well-being of any community, incompatible development generally proves counterproductive.
As explained by the national parks service which administrators the national register of historic places and its charge for providing leadership on historic preservation, local preservation ordinance and guidelines are not intended to make property owners from making changes to their property.
Rather such laws are meant to ensure that those changes enhance the historic qualities that are enjoyed by all members of the community and which make an area a special place in which to live and work.
The Hyde Park design guidelines reflect this important philosophy.
The guidelines acknowledge that construction of new buildings within the Hyde Park historic district can have a positive revitalizing impact on the district if steps are taken to assure that the historic, architectural and cultural features of the district are preserved or enhanced.
To this end the guidelines explain that they do not dictate style, but they set up criteria under which new design can accurately compare with the setting of the historic district -- historic district creates.
New construction is encouraged to be unique in design while reflecting the basic scale, materials and quality found in the early buildings in Hyde Park.
Case law also supports this idea.
Compatibility of new construction in terms of height, scale, mass, and materials have long been recognized as a legitimate goal of local governments in preserving the character of these historic districts.
At the supreme judicial court of Massachusetts stated in the opinion of the justices, it is not difficult to imagine how the erection of a few wholly incongruent structures might destroy one of the principal assets of the town.
More recently the Minnesota Supreme Court in Billy Graham evangelistic upheld the city of Minneapolis authority to regulate all properties in a local designated historic district.
Courts have consistently upheld the authority of local governments to design permits to build incompatible structures notwithstanding zoning and subdivision laws permitting more intensive development.
Most notably the U.S. Supreme Court upheld New York's authority to deny a permit to construct a 55-story structure on top of the historic grand central terminal even though permissible under the city zoning laws in historic central Penn transportation company.
Also see Calamor Heights, denying circumstance of appropriateness to condominium building in a local historic district.
Also Parker up holding partially completed fifth story completions on local historic district.
Belleview shopping center associates, affirming denial of the property owner's application to add up to 8,358 foot one story building to an existing shopping center located in the city historic district.
District in-town properties up holding denial of a certificate of appropriateness to build townhouses on subdivided lots on the lawn of the historic apartment building.
In view of the legal authority and important policy considerations at stake the national trust respectfully urges you to send this matter back for mediation.
In our view not only does the proposed mediation settlement agreement fail to meet the standards for approval set forth under the Hyde Park design guidelines, but it would also, if approved, undermine the integrity of the city's historic preservation program overall.
In the interest of ensuring that Tampa retains its unique heritage that council should insist that an appropriately scaled building be constructed on this site.
Sincerely, Paul W. Edmundson, vice-president and general counsel for the national trust for historic preservation.
>>GWEN MILLER: Thank you.
>>MARTIN SHELBY: Three names.
I don't see David Hall.
That will be two names, five minutes.
Please reaffirm that you have been sworn.
>>> I'm Rosario Urso, Bayshore Boulevard.
Thank you for allowing me to address the council.
View from Bayshore Boulevard there is virtually no space between the proposed building and the Bayshore Royal building.
This situation is inconsistent with the spacing rhythm that already exists along Bayshore Boulevard and the historic district.
Therefore, the proposed building violates an item the A.R.C. considers during its use of applications for construction.
That says spacing between buildings should be consistent along the street.
The front of the Bayshore Royal building is approximately 230 feet from the Bayshore Boulevard sidewalk.
The distance between the front of the proposed building and the Bayshore Boulevard sidewalk is significantly less than 230 feet.
In fact it's 42 feet.
So the proposed building disregards the A.R.C. item that says it is inappropriate to place a building on a site in a location greatly different from the location of buildings on adjacent sites.
The building-to-lot ratio of the Bayshore Royal is about 20%.
So the Bayshore Royal occupies about 20% of its lot.
The building to lot ratio of the proposed building is far greater than 20%.
Therefore, the proposed building violates the A.R.C. item that says building to lot ratios should be similar for lot to lot.
The proposed building would be twice as tall as the Bayshore Royal building, and from 10 to 20 times as tall as surrounding houses.
Depending on whether the houses are one story or two stories.
So the proposed building disregards the A.R.C. item that says, a new building should maintain or blend with the heights of buildings on adjacent sites.
There exists an easement that extends from Bayshore Boulevard to a point near the front entrance of the Bayshore Royal building.
The easement is adjacent to the western boundary of the proposed building's lot.
All of the entrances to the proposed building's parking garage interface with easement.
Therefore, all vehicles entering or leaving the proposed building must do so via Bayshore Boulevard, exit vehicles that want to head west on Bayshore Boulevard must cross the short turning lane that ends at Howard Avenue.
Vehicles heading east on Bayshore Boulevard that want to go to the proposed building must make a U-turn at DeSoto Avenue in order to double back to the easement.
So vehicles -- vehicle ingress, and egress, is complicated.
Since the service entrance of the proposed building interface was the easement, garbage trucks, repair vehicles, moving lanes and lots of cars will do their thing uncomfortably close to the front entrance of the Bayshore Royal building.
That building is a building built in 1924, located in the Hyde Park historic district, and recently underwent a renovation that cost considerably more than a million dollars.
Please do not allow it to be desecrated.
More importantly, please preserve the Hyde Park historic district.
So please do not approve the mediated settlement.
Thank you very much for allowing me to speak.
>>JOHN DINGFELDER: Do you live in the Royal?
>>> I do live in the Royal.
>>JOHN DINGFELDER: And I don't know your professional background at all.
>>> I'm a mathematics professor.
>>JOHN DINGFELDER: So are you a doctorate?
>>JOHN DINGFELDER: Okay.
>>GWEN MILLER: Next.
>>JOHN DINGFELDER: By the way, if anybody has any particular credential that is they'd like to us know about, just make sure you tell us when you start.
>>> I have time for Mr. Josh Polston.
>>JOHN DINGFELDER: I think we saw Josh.
>>ROSE FERLITA: Now, Josh.
>>> I have been sworn in.
My name is Roger Grunke.
I am an architect.
I am the president of the Historic Hyde Park neighborhood association.
This building, proposed building would be in our neighborhood district.
>>JOHN DINGFELDER: A further question.
Are you just an architect or do you do work with the historic structures?
>>> I was getting there.
And I was going to try to remind you that I am not just speaking from the heart, but as an expert in historic architecture.
I am the chair of the Barrio Latino, have been for a little bit over a year.
We're going to present to you something which is self-explanatory, and it is a model of what I would say is the subneighborhood.
>>JOHN DINGFELDER: You might want to put a little tilt on it for the camera. Go ahead and tilt toward us.
And in doing so, submitting as evidence, one for each council person and one for the court, the documentation as to the accuracy of this scale model.
This is not just a model as we think it looks.
This is to scale, every inch of it, representing the neighborhood accurately.
So what we have here right now is the -- this is DeSoto.
This is Nance.
You have the inner side of Bayshore Boulevard at the bottom.
And this of course is the site of the proposed structure.
The Bayshore Royal sits fully behind the proposed structure.
This is a two-story apartment house here.
And you can see, we won't even talk about heights.
But the scale is compatible.
Let's bring in the proposed structure.
>>> Grunting sound)
>>ROSE FERLITA: You're good, Randy.
>>> I mean, what do we have to say?
You can see for yourself.
There is no relationship or compatibility in scale or massing between the proposed structure and the neighborhood.
Now, let's quickly go to the Bayshore tower -- the Bayshore Royal, which is a large building at 10 stories.
It belongs to those romantic hotels which popped up in the 1920s, the Don Cesar, The Breakers in Palm Beach, the Coral Gables Biltmore.
Please, in every case, those large structures, everyone if they are today in a historic district, sit in an open area, surround by golf courses.
They are not clinging to the edge of the street.
In fact The Breakers has its own roadway system leading to it.
So this building might, in a flat drawing, look like a romantic building of the 1920s.
Contextually, meaning relative to the neighborhood, it is not.
Now, for the last year, I have sat on the Barrio -- chaired the Barrio Latino.
Mr. Acosta, who is a good friend of mine, sits where Mr. White is sitting this evening, and attorney Cate O'Dowd sits where Mr. Shelby is sitting.
Every single application that comes before us is evaluated in context to the historic buildings in the neighborhood.
Not in a vacuum.
>>JOHN DINGFELDER: Question.
There seems to be some insinuation that because that, I guess, garage on the northern edge might be 30, you know, 25, 30 feet or something like that, that that would attenuate this massing scale issue.
Let me finish.
The petitioner seemed to say so, and I'm not really sure where Mr. Acosta was on it.
But do you have a professional opinion about that, and why, or why it would not mitigate or attenuate the impacts?
>>> Well, to begin with, it not as they were trying to present in scale with the two-story house across the street. The two-story house across the street is 21 feet.
You'll see that that is documented in the report, which we have handed in.
And all of the measurements here everybody digitally taken in the field.
And recorded in that report.
So there's no comparison really in height.
And, also, architecturally speaking, you're talking about a dead concrete box there, a parking garage.
That is not -- how does that relate to a neighborhood where kids are playing, et cetera?
People are sitting on porches.
This represents the porch.
We didn't carve it out.
But the solid there represents the porch, to scale again.
So there is no comparison.
Now, as far as setbacks, I do believe that the Bayshore Royal is set back in the historic tradition, not as far as The Breakers is set back, but it is set back -- was set back.
This is, to say this is set back in the building steps back, well, it may step back, but I think it's an insult to suggest that it sets back far enough so that it does not negatively impact the neighboring structures.
>>JOHN DINGFELDER: Roger, how about the structure in 217-26 (M), are there various criteria of the historic district, or the historics generally or the Hyde Park historic district?
Have you gone through those criteria to see if this proposed building meets the criteria?
>>> Well, it was suggested earlier this evening that this building does.
I do not agree with that.
>>JOHN DINGFELDER: Why?
>>> Because it's out of scale with the neighborhood.
You can see that.
You can see the structures here.
>> Is it just a function of height or height --
>>> it's mass and scale.
>> Every direction?
>>> You know, there was some comment about this building being perfectly in scale to itself.
Well -- well, yeah, exactly.
Remember the giant of Gibsonton?
He was in scale to himself, but not to anybody else.
And that's the case here with this structure.
And I think like the giant, this belongs in a circus.
>>JOHN DINGFELDER: So going through some of these other criteria, how about orientation and site coverage?
>>> Well, Mr. Rosso can address that.
As I tell the applicants who come before the Barrio, give us your historic precedent, always, every time.
What is your historic precedent?
Tell me a building in the district, or in another district, even one outside of Tampa, but give us an historical precedent, and the closest thing I can think of is, let's say, The Breakers.
And, you know, as I said, all these romantic hotels were set in a sea of golf course, separated from the town itself, even though they are in historic districts, in the case of the Biltmore in Coral Gables.
>>JOHN DINGFELDER: How about along the spacing of building?
I don't know what that means, but tell me what it means and tell me if it meets it.
>>> In a flat drawing, which the petitioner has been fond of showing flat drawings, two-dimensional drawings, there is balance and harmony in the flat drawing.
But not in 3-D.
Especially with this parking garage.
The parking garage itself, if you look at it, is a series of -- I don't know what the Romboids?
It's pushed around boxes, strictly to the fact they have to put in there so many automobiles, and the site is so big and the setbacks are what they are.
So there is no classical reference with that entire bottom floor of the building.
>>JOHN DINGFELDER: In your opinion it doesn't meet the criteria of 216 (M).
>>> That's my opinion, yes.
>> Thank you.
>>> If it's council's wish we would leave this here for you.
>>ROSE FERLITA: We can't see the audience with this tall building.
>> Take the building down.
Just take that part down and it will be fine.
>>> I want to refer to it, so once I do I'll take it down.
Randy, South Packwood, I have been sworn.
I'm an urban designer.
I have a master's degree from Harvard university, been practicing in Tampa for about 17 years as an urban designer.
I also sat on the architectural review board as a commissioner on the board.
I guess before I speak, I should have a question to the chairperson.
I would like to ask, in the history of the A.R.C., has the person head of staff ever sat in as the entire commission, as Mr. Acosta is doing tonight?
In the past, I have been involved for years with the architectural review commission.
I don't believe a staff person ever made a decision for the entire commission.
And I believe in this case the only person that has signed off on this project is the staff person, which I don't know how he has any credentials to do so, or who in the city gave him that authority.
Because it dedicated to the commissioners.
That's who makes the decision.
The staff person makes a recommendation.
So he has actually no authority to make the final approval on this project.
Even if it was at a preliminary level, on all the years A.R.C. has never had preliminary approval by the staff person.
As far as the projects itself go -- and I don't see Mr. Acosta here so I guess you can't ask him.
Oh, I'm sorry.
In his presentation, Mr. Acosta showed-I'm sorry, I was to give you a speaker.
I'll probably be real quick.
Mr. Acosta showed several references to three historic buildings one of which is noncontributing which is the Royal.
It's really nice to talk about other buildings, and Roger referred to that in the fact that you should show previous examples.
None of those examples show a two-story parking garage for the entire first floor.
I don't think we would be sitting here and talking about the Seville and how great it is in the central district if it was sitting on a two-story parking garage.
The existing condition on DeSoto -- go away from this.
I'm not sure now how to zoom in.
Okay, thank you.
That's the exiting view down DeSoto towards Bayshore on the right-hand side.
This is the two-story apartment buildings that have been referred to.
On the right will be the new project proposed under this settlement agreement.
What's happened, and the architectural guidelines talk in many places about the issue of pedestrian, relation of building to street, open porches, demonstration, it's all through the guidelines, compatibility with that concept.
This is a two-story block of concrete.
It may look really pretty with some nice things, I guess the A.R.C. has been relegated to now approve, probably some Styrofoam around fake openings, but this is basically what the people walking down the sidewalk to Bayshore will see.
This is the new Gateway to Bayshore.
It's the new Gateway into the neighborhood if you approve this.
I think what's really important --.
>>JOHN DINGFELDER: Why does it protrude into the sidewalk?
>>> It doesn't.
Actually the sidewalk goes straight and turns at that retaining wall.
If you look at the model, the building is in front of the two-story apartment building next door.
So that projects closer to the street than the two-story.
So it's set back on the garage, so it's compatible with the neighborhood, actually is protruding into the neighborhood even worse than it should.
It's two stories, just a monolithic piece of concrete, nothing in it.
They have nice pattern, but that's all.
And what's happening to the district that's precedent for this.
We have Hyde Park Village which was done before the A.R.C., that actually is better than this.
It has housing on the face of that garage in the neighborhood.
This has nothing but a garage.
If this project is approved we are walking backwards from an urban design point of view.
This is stepping back in the design criteria for what makes good urban design, making it the sidewalk compatible with pedestrians, making it an enjoyable place.
This is what should be lining the sidewalk going down Bayshore, not a two-story parking garage an entire block.
It's 125 feet long on DeSoto, and 20 whatever feet they want to say it is on DeSoto, high.
So 125 feet of parking garage space, DeSoto.
And it doesn't matter like Mr. Acosta said, it's still 125 feet of parking garage.
Thank you very much.
>>JOHN DINGFELDER: Do you want to put that into the record?
>>> Yes, I do, please.
>>JOHN DINGFELDER: The model needs to be in the record, too, but somehow or other the clerk is going to figure it out.
>>JOHN DINGFELDER: You can leave it.
That's not in anybody's way.
>>MARTIN SHELBY: Please knowledge your presence.
>> Vicki left.
>>MARTIN SHELBY: Maybe you could say your name or say hear.
I don't know if I pronounced that right.
Paul -- okay.
>>> My name is Bob Rock.
And I have been sworn.
I'm an attorney.
And also a resident in Old Hyde Park.
I actually live on the Plager building bungalow that we moved into about three months ago.
So I'm here not only as a representative of another resident in the community, but all of the issues that we have been talking about tonight actually have had me direct.
I would like to extend a little bit on what was discussed that addresses the legality or I should say the illegality, we believe, of the mediated settlement agreement.
Tab 29 is actually the settlement agreement.
And what I found here is actually extracted from that agreement if would you like to follow along.
Some of the pertinent provisions that I believe you need to consider in evaluating whether or not you can legally approve what's being sought by the mediated settlement agreement.
First thing I would like to do is review paragraph 1 of the agreement.
And it says Del Acosta, manager of the architectural review commission, has reviewed the architectural site plan attached as exhibit A, herein referred to as the architectural site plan, the elevations attached as exhibits B through E, herein referred to as the elevations, and the architectural sections attached as exhibits F and G herein after referred to as the sections, and found these exhibits to be consistent with the requirements 27-216 (M) of the city code with the exception of those points identified under paragraph 5 hereof, and the Hyde Park historic district guidelines with the exception of those points identified under paragraph 5 hereof.
Now, what's significant about this, as the gentleman just before me pointed out, is Mr. Acosta doesn't get to make that decision.
The law is very clear.
Staff doesn't decide.
The is actually made by the A.R.C..
Now, this section, which is section 17.5-192, Hyde Park historic district design guidelines, specifies that the 1988 addition as revised by September 1989, September 1991, and September 2002, amendments of the Hyde Park design guidelines is hereby adopted by reference, and, therefore, has the full effect of law.
The guidelines that we're here discussing, are like a statute.
And that's what this provision expressly provides.
This section is the law.
This section, 27-216 specifically addresses what the A.R.C. shall include in its consideration of whether these projects are compatible with the historic district.
And what's significant about this is the most important elements that the A.R.C. is required to consider, is conspicuously or maybe not so conspicuously omitted from what the A.R.C. is supposed to consider in the mediated settlement agreement.
What that means, even though the law specifically says that the A.R.C. is supposed to consider scale, height and width, that the A.R.C. is supposed to consider setback orientation, site coverage, alignment and rhythm of the buildings.
This settlement agreement removes that from their consideration.
So the developer wants you to basically extract probably the most important considerations from the A.R.C., rejected the project.
They can't consider it.
If you accept mediated settlement agreement that's been presented to you.
And here we go in paragraph 5, which discusses that very point.
In the event the City Council approves the mediated settlement agreement, said approval shall constitute preliminary approval of the attached exhibits, if such approval is granted, the A.R.C. shall issue a certificate of appropriateness upon review and approval of the following additional requirements.
Check out the additional requirements.
The most important elements for the A.R.C. to consider is not going to be presented to them for consideration if you accept the agreement that was -- that's being proposed to you tonight.
That, we submit, is actually a violation of law.
This section specifically points out, 17.5-192, those historic district guidelines have the effect of law.
And the A.R.C. is the body that's required to consider that.
Now I'd like to take a moment and address some of the issues that the developer's counsel raised, and Mr. Dingfelder actually made a point of discussing -- scale.
What does it mean?
And if you look at page 69 dealing with design criteria for new construction, it really gives us some guidance as to what that means, and why that's such an important factor for the A.R.C. to consider.
Because what it means, it's not just height.
It's not just width.
But scale is a view of this project, compatible with the existing building instructors.
Watt says is the proportions and size of the new building, compared with other buildings.
That's why this consideration is so important.
That's why they want to take it away from the A.R.C..
One of the things that has been made abundantly clear tonight, particularly after Mr. Acosta's testimony, is that this particular project has never been submitted to the A.R.C. for approval.
For all the considerations that the law mandates that they consider, this has not been submitted.
And they don't want it to be.
A couple of other things that I think they are mentioning deal with the procedural status of this case.
Motions to dismiss have been filed.
And I want to make sure that council understands, just because a motion to dismiss was not granted, that doesn't deal with the merits of the claim.
The court procedurally is only required to accept all those allegations if true.
So whether the court dense the motion, or accepts the motion, has nothing to do with the ultimate outcome.
The developer also raised the issue that they had a vested right in proceeding with this project.
And I get back to my earlier statement.
What they were relying on for that vested rights argument is discussions and assurances that they obtained from staff, as the law makes perfectly clear, you can't rely on staff when they had to know that the A.R.C. is the only entity that can issue a certificate of appropriateness, not the City Council, not the staff.
There's one entity under the laws as they currently exist, and that's the A.R.C..
That has not happened.
Finally, as your lawyer pointed out to you when we started, you have to consider whether the developer has actually met their burden tonight, and that burden is substantial, competent evidence.
I think it's clear before I even got here, in fact before the public even had an opportunity to respond, they had not met that very difficult burden, and in fact the evidence, if any that they submitted, creates more questions than answers.
Hopefully, you'll disapprove the mediated settlement.
>>JOHN DINGFELDER: Quickly, is the analogy the fact -- the procedural issue that you raised toward tend, is the analogy the fact that if something goes all the way up to the U.S. Supreme Court on appeal, and then the U.S. Supreme Court says, you know, maybe there are some key factual issues that need to be decided in this case before we can really address it.
So they might remand it down below.
If that's the case, I think what you're saying is that the eleventh circuit court of a peels wouldn't have that fact finding process, they would send it back down to the trial court.
Isn't that the similar analogy?
>>> That analogy may be accurate.
It's actually going to be the second district court of appeal in our situation.
>> The U.S. Supreme Court as an example.
I understand what you're saying.
I think the posture procedurally is that there is no getting around the fact that the law in place requires that the A.R.C. approve what's being presented.
And you've heard from Mr. Acosta and the developer, this is not what has been presented to the A.R.C..
And if you approve this, basically you're gutting the primary consideration for the A.R.C. to consider: The height, the scale, the appropriateness of this building in the historic district, which is the principal reason that we have the A.R.C..
So I think that is a very likely result, Mr. Dingfelder, that they could in fact return and say, look, the process was flawed, so it should be rejected for that reason alone.
>>JOHN DINGFELDER: Thank you.
>>GWEN MILLER: Next.
>>> I have not been sworn in.
I was out chatting.
(Oath administered by Clerk)
>>> I said I do.
People don't usually me -- don't usually accuse me of being too quiet.
My name is Jeanie Holton and I own a house at 1721 west hills Avenue in Hyde Park and I'm the past president of the Historic Hyde Park neighborhood association.
I want to say that I do take issue at our city attorney's office repeatedly characterizing us as the opposition.
I like to think that the citizens aren't the opposition to the city.
I'd like to also point out that in the mediated settlement agreement, and the judge said in quotes that he would like to -- he would like to see the developer go back to the city and try to come to a mediation, quote, not withstanding public outcry.
That's -- you will see that in there.
And this is the public outcry that we're not withstanding.
So we're here.
Of course you know that you were so kind to give me a commendation for all my hard work for the neighborhood and I of course appreciate that.
But what you may not know is that I also was the recipient of a broad subpoena from Citivest seeking my deposition in this ongoing lawsuit.
The subpoena sought any documents or correspondence in my possession including e-mails, electronic submittals between me and any other person or entity concerning a property located at 2101 Bayshore.
I engaged Holland and knight which moved to quash the subpoena, the motion to quash pointed out that Citivest could obtain the information it wanted through public records from the city without rifling through all of the records of a private volunteer neighborhood association.
The motion pointed out that the subpoena was designed to harass.
The motion pointed out that the first amendment dangers that would result to this neighborhood which had been communicating with Sam Gibbons and the national trust for historic preservation would force to reveal Constitution alley protected activities it had undertaken while trying to petition the government for redress of grievances.
Citivest postured about the need for the information up until the time that Holland and Knight settle the motion to quash for a hearing, but when the settling -- setting of the hearing became imminent, hill ward withdrew his subpoena.
It says -- all of that is in your evidence binder documentation.
I want to mention that as you know we have all worked very hard for a very long time.
We have a lot of knowledgeable people.
We believe that we're right.
We believe that it's obvious that we're right.
I think -- I just can't even find the correct word to use, that citizens and neighborhood associations and cities themselves would be harassed and threatened to allow a developer to put something that's inappropriate.
It's just disgraceful.
I just returned from New Orleans.
We see a lot of problems there that occurred because the disaster was not planned for properly, and there was inadequate infrastructure.
When that's allowed to happen, and a lot of development happens in the when the infrastructure is not in place, there are lives that are cost with those decisions.
And we're all sorrowful for what's going on over there.
But I could just tell you that I'm just right in the middle of it right now and that I would hate to see our city make those types of decisions where the infrastructure wasn't in place to accommodate increased development, unbridled development.
Lastly -- well, maybe I won't say that.
I just wanted to say on Saturday on the front page of the Times Picayune there were two stories that I found interesting before we got involved in all the drama.
One was the fact that Donald Trump is building a high-rise and that city thinks it's going to bring a lot of prestige to that city.
And the other was that a group of neighborhood associations are working against a high-rise that developers want to put in an inappropriate location.
They are winning that fight.
That high-rise is seven stories.
>>GWEN MILLER: Thank you.
>>JOHN DINGFELDER: Don't forget to remind us of any relevant credentials.
>>MARTIN SHELBY: Please acknowledge you're here.
Patricia Fisher, thank you.
John Leonards if I pronounce it correctly.
I sigh a hand.
I see a hand.
Jo lean a Hines. I did say that correctly?
And one more name is Russell Sibley.
One, two, three, four, five, six, seven names.
>>> My name is Jim Difurio, I'm an attorney here in town.
I represent the Bayshore Royal as has been pronounced the Bayshore Royale.
I would call it the Bayshore Royal if I hadn't been sworn.
I really wasn't prepared for this.
But I was fascinated by petitioner's argument with regard to this decision of the city -- provision of city code 27-216 (O).
In listening to the argument basically his entire justification for advising a settlement of this case, that it's in everyone's best interest to settle the case, is the theory that this provision makes the zoning administrator the sole entity to determine what the appropriate height is in the historic district.
That's not what this says.
What it says is, the zoning administrator shall be the sole administrator of this code as it pertains to the landmark and historic district boundaries... The schedule of area, height, bulk and placement.
The schedule is found in section 27 dash -- let see, it's table 4, and 27.77, I believe.
And the table is basically what of a height and density restrictions in a given zoning category.
What this says is, the zoning administrator determines whether or not the height is consistent with zoning.
If he says yes, then you go to A.R.C., and A.R.C. makes the other determinations.
The A.R.C. makes the decision whether or not the proposed project is compatible as to scale, design, mass, and height.
All the administrator does is say, this project is within the proper zoning requirements.
Two different functions.
I'm not an expert.
That's obvious to me.
The second issue that I want to be bring up and it has to do -- and we haven't heard much about this tonight, and it is peculiar, actually, the Bayshore Royal.
And I'm going to move this into evidence, by the way, this board.
Bayshore Royal is unique.
Of all the people here today, Bayshore Royal is unique.
Bayshore Royal has an interest in the subject property.
It has an interest.
And that interest is that easement right there.
Even though it has an interest in the property, neither the city, nor the petitioner, ever required that the Bayshore Royal be made a party to the litigation as an indispensable party.
Typically in cases like this the defendant-n this case the city, would move the court to dismiss the plaintiff's complaint, because the plaintiff failed to join an indispensable party.
Is my client indispensable?
It has an interest in the party.
It has an easement.
This is not a technical issue.
This has to do with a material fact in this case.
If you look at this -- and this is what's attached to the settlement agreement -- there's a concrete walk, there are curbs, that interfere with my client's easement.
Bayshore Royal is up here.
Bayshore Boulevard is down here.
My client has an easement, from here to here.
This project if approved is going to have an adverse consequence on my client's property rights.
No one ever bothered to make my client a party.
What does that mean?
Frankly, it means tomorrow, my client might move to become a party in the case.
Whether you approve or disapprove it's quite possible.
My client will move to become a party in the case.
And we'll just have to start over again.
Because the court doesn't lose jurisdiction if you approve the settlement agreement.
Read the settlement agreement.
The trial court keeps jurisdiction.
This is another issue, which I don't think has been touched upon, and I find it to be frankly somewhat of an anomaly in the law.
It is actually true, and every lawyer will tell you that what goes on in a mediation is confidential.
But as the city attorney indicated when we began tonight, this is a unique forum.
We have a settlement agreement that has been brought into the sunshine, this public hearing.
That settlement agreement is being considered by this body.
Approve or disapprove.
The reason why is apparently something that was discussed at a mediation.
Not only a mediation of just an hour, or two hours, or a day, but over a series of days.
I don't know how many days this went on.
But information was exchanged, facts were exchanged, legal arguments were exchanged, that caused the parties to enter into the settlement agreement and bring it into the sunshine.
You look at the settlement agreement.
It states that the parties agreed that this body would be given the authority to approve or disapprove it.
Both parties brought that settlement agreement into the sunshine.
I'd like to know what was discussed at that mediation.
Did that constitute a waiver?
I'd love to argue it before the judge.
Think about it.
We got a settlement agreement that this body is to consider.
There's a burden of proof on the part of a plaintiff, on the part of a petitioner.
How am I to rebut it?
How can I present evidence to this body to rebut the reason for the settlement agreement, when the reason has been confidential?
Think in terms of Bayshore.
Had my client been properly made a party in this case, I would have been at that mediation.
The question was posed, it was an excellent one.
What happens if the settlement agreement is denied?
What may happen?
Based upon the presentation of the commissioner, during the introduction, I believe what was said was the emotion -- a motion for summary judgment was pending as to count four.
That's this one.
This is the sharpest arrow in the quiver right here.
That sets the motion for summary judgment.
Then the court ordered the parties to mediation.
Everybody was set to resolve this issue, the big one.
And then they went to mediation and they entered into the settlement agreement.
If you deny the settlement agreement, I think what's going to happen is, the court is going to decide this.
A motion for summary judgment will be scheduled, the court will hear this legal issue and decide. Let's say petitioner wins.
You amend the code.
Clear up the discrepancy.
Why keep this a secret?
Clean it up.
You don't fix it by approving this settlement agreement and not having a resolution of this issue, because it will just come back to haunt you again.
I think that's been said before.
One further point.
The Bayshore Royal is a noncontributing structure.
It is not designated as an historic structure.
So there should not be a comparison between the subject property and the proposed structure and the Bayshore Royal.
Even ten-story structure would be our position it would be incompatible because it's not an appropriate comparison.
Thank you very much.
>>JOHN DINGFELDER: Mr. Difurio, you bring up an interesting point that for the last six weeks ever since it was revealed that the city attorney 'so and several staff members had participated in this mediation, unbeknownst to council, you know, I don't know, I have no clue of what staff or our legal council talked to these other six board members about in regard to what happened at that mediation.
All I know is that Mr. Smith and I talked about four hours ago for ten minutes, and he told me what he thought, you know, our issues were as related to this case.
I won't divulge that because that's attorney-client privilege until the -- unless the court tells me to or something like that.
But it does concern me a little bit, because did he tell me something different than he told the other six members?
And I'm not criticizing him for it, you know.
But I don't know.
And nobody knows.
I mean, each person knows what they were told individually, but we all abide by the sunshine so nobody knows what anybody else was told.
So it does make it extremely awkward and confusing in regard to this supposedly public process.
And what compounds the problem, it would seem to me, I'm not sure of this but what compounds the problem is that my guess is -- my guess is, if there were discussions with each individual member, there may have been discussions as to what transpired at mediation.
And it seems incongruous, and that's what I'm getting at, if in fact that conversation is privileged because it is the content of a mediation, when we bring it all together here in this public hearing don't we have to shine the sunshine?
Seems to me we do.
Otherwise, I mean -- and I'm not saying it was done in this case.
I'm not saying it was done.
Because I would never a tribute ill motive to anyone.
But think about the strategy for the next litigant.
Sue the city.
Go to mediation.
Cut your best deal and nobody will win.
>>LINDA SAUL-SENA: I'd like to ask you a question.
I have to admit -- well, I'm not a lawyer, and this is new ground for us.
But as representing an entity that shares this easement, wouldn't you have been notified of mediation?
>>> Not -- unless you're a party to the case you do not receive notice of a mediation.
You don't receive it.
Not legally required.
>> In our rezoning which is given something different but we didn't have to notify all the neighbors and neighborhood association?
>>> No, ma'am.
>>LINDA SAUL-SENA: Thank you.
>>SHAWN HARRISON: Several, at least one neighbor, filed a motion to intervene and was denied.
Why did you not file?
>>> Well, I was retained for the association to represent them in this matter a week and a half ago.
But I think that goes to the issue of duty.
It is not the duty of every citizen in the City of Tampa to call the public record and the dockets of the court every day to determine if an easement right that they have might be the subject of some litigation.
Frankly, in this particular case, I think one can persuasively argue that because the city is the defendant, it is the city's duty to know about this easement.
You know how I found about the easement?
I called my title company.
They found it.
They gave it to me the next day.
I mean, generally speaking, it's the responsibility of the parties in the case to join all indispensable parties.
>>SHAWN HARRISON: What is the impact on your client, under the current plan?
Tell me a little more about that.
>>> Well, again, Bayshore is here, which would be to the southwest, I guess.
Bayshore is here.
Bayshore has -- Bayshore Royal has an easement over this area, ingress and egress, so they can exit this way to Bayshore, or enter their property this direction, Bayshore.
The plan now has an obvious encroachment on the easement.
There's a concrete walk.
There are -- there appears to be a median here.
There appears to be some curbs.
So this 40-foot-wide easement becomes -- I don't know what that width is.
I want to say 12 feet but I'm not sure.
It's hard for me to say right here.
But there's a standard principle of law that says the A property owner such as the subject property owner can cannot substantially impair the easement of another.
Can't do it.
Also, he may be overburdening this easement.
I don't know how many units are proposed in here.
One of the other gentlemen that spoke a moment ago, on a petition, I believe, he indicated he made it quite obvious, he talked about the garbage trucks and moving vans and cars and trucks and delivery trucks and all the rest.
That's where they are going to be coming.
That's my client's easement.
So if this easement impairs -- excuse me-f this property, the easement of this property has the -- will substantially impair my client's use of the easement, it can't be done.
That's why we are a party in litigation.
>>SHAWN HARRISON: You have an easement, and who owns the underlying fee for the property?
>>> The petitioner.
City national bank as trustee.
>>SHAWN HARRISON: You have an insured, recorded easement?
It's tab 36.
>>SHAWN HARRISON: What's that?
>>> I believe Mr. Nelson provided an evidence binder.
So if you look at tab 36, you should find it there.
It may be 36 or 37.
>>JOHN DINGFELDER: Summer 1981?
>>> That sounds right.
And Stuart title did the title work for me.
>>GWEN MILLER: Thank you, sir.
>>> Thank you very much.
>>GWEN MILLER: Next?
>>> I would like this introduced into evidence.
The title of the report just the easement, tab 36 or 37.
>>MARTIN SHELBY: We have one, two, three, four, five, six, search names on the list.
John L. Walton, thank you.
Jimmy Overton, thank you.
Kevin Dott -- how do you pronounce it? And John Vichek, thank you.
>>> My name is Stuart Whitney and thank you for giving me the opportunity to say just a few things.
Actually what I have, there are two DVDs I would like to share with you.
I know some of you might not be familiar.
Of course you have seen three dimensional representations, you have seen lots of photographs but actually I have another example of the neighborhood, the street, and the proposed site that I would like to share with you on a DVD.
And I would also like to compliment you.
I didn't realize that a City Council person, one of their top qualifications would be stamina.
So you guys are doing a great job.
I am sworn in and worn out.
I'm new at. This don't do this all the time.
>>JOHN DINGFELDER: Could you at least juggle for us so we can be entertained?
>>> Thank you.
For that vote of confidence.
I am not a lawyer.
And I do have a master's degree but you are probably not interested in what.
But without a lot further ado I present to you the first DVD, it's not up for an academy award.
Watt was done yesterday morning.
Let's go with that.
I hope it works.
I'll try it again.
>>> It's really believe.
We decided this was the best solution for the city.
As of the last meeting couldn't tell us exactly why.
These issues at least need to be debate --
Just stand by.
It's only two minutes.
Two minutes to get it going.
It needs a woman's touch here.
My name is Stewart Lippe.
I lived on DeSoto Avenue for over 20 years.
This is DeSoto Avenue, a street that over the last 20 years has been revitalized with hard work, considerable financial investment, and adherence to the City of Tampa architectural review guidelines.
Somehow houses date from as early as 1915.
The City Council used common sense when they rejected this proposed project, the architectural review board used common sense when they rejected this proposal twice before.
The City of Tampa legal department decided this project should be permitted.
They didn't use common sense.
They decided that this was the best solution for the city.
And as of the last meeting couldn't tell us exactly why.
These issues at least need to be debated and discussed in a public forum.
This lot was occupied with a single-family dwelling until 194, at which time it was demolished.
Common sense would suggest that even with the small additional parcel in front of the Bayshore Royal, the space is too small for a project of this size.
Traffic congestion is a very serious consideration on the heavily used Bayshore.
The road on the left off Bayshore would be the entrance to the proposed project.
Please use common sense tonight when you make a very important decision not only for Hyde Park, but the entire City of Tampa.
You can applaud if you want to.
This next piece is just some comments from citizens that we thought were interesting and compelling.
It gives you more of a personal insight into the magic of the neighborhood.
I'm Henry brown.
And I'd like to invite to you come along with me and some of my friends as we reminisce over our growing up in Hyde Park in the 1950s and 60s.
Living in Hyde Park, we lived in the age of innocence.
Our windows were open.
We slept with them open.
Our doors were unlocked.
Our bicycles were left outside.
And I think by the end of the 60s, going into the 70s, we probably grew out of the age of innocence.
We grew up and things got to be a little tougher.
And in the whole world, not just in Hyde Park but in the whole world.
Out of -- out of concern and worry that possibly the land use plan, because of the downward spiral of the neighborhood, possibly the land use would be -- become denser, that they may decide it would be more to the city's advantage to have multifamily dwelling on the property, to RAZE the houses here and what have you.
Well, a group of folks got together under the direction of captain Healey and a few other people in Hyde Park preservation.
>> I can remember when mother sold her house in the 70s.
They were telling us that she was not going to get what the house was worth, because Hyde Park was a depressed area.
It's interesting to see that there are developers who have taken the model, including the alleys, in Westchase, as a neighborhood was just modeled totally after Hyde Park.
So something must have been right here if developers are now imitating it.
>> Growing up in Hyde Park as a teenager in the 60s was quite a wonderful time.
The neighborhood was just beginning it's rebirth after somewhat of a lull.
And we all thought we were right at the cusp of this change.
>> Hyde Park was and still is a sense of place, and growing as a child in Hyde Park all my experiences were driven by the various places I went, gory school to the Swann stand to Bayshore, to the many islands
As you went to these places adults would come from the homes, from the business, from wherever, and many were your neighbors, many were merchants, and they would land a hand on each place.
And that hand would put an indelible mark I think on your memory and on your experience growing up as a child.
>>> Growing up wouldn't have any problem going to some house asking for a glass of water and asking whoever was home, Billy or Jimmy, whoever it might happen to be, and it was just but it's today kind of idolized as a real perfect, quiet neighborhood, thinking back perfect.
It probably wasn't but it seemed that way at the time.
>> Just feeling safe, and feeling like I was home because my grandmother was on the next block, and I always knew that no matter where I went, I would come back, and I did.
>>> I didn't have anything to do with that.
I'm just the messenger.
>>ROSE FERLITA: Not a question, sir, but I made an observation that I would like to share with you.
In the six or seven years that I have been here as council member, I've always held this to be a consistent observation, that when you got to neighborhoods that were fighting for neighborhood issues, southeast Seminole Heights was miles ahead of everybody.
I'm going to have to change my opinion tonight.
Not only do we have -- (Applause)
Not only do we have Hyde Park neighborhood and Bayshore residents at six o'clock in the meaning, nobody has anyplace to go anytime soon.
You're talking about our stamina.
Your stamina is incredible.
In addition to which, you're a lot more entertaining than we are.
And my last -- my last concern before you get away from the podium, because I'll hate not knowing this, we have become one big association here, and it looks like we are going to spend a lot more time together tonight.
So why would we have secrets from each other?
A master's degree in what?
That's all I want to know.
>>> Fine art.
>> Fine art.
>> And one last honorable mention.
Don't forget that we still have additional residents downstairs in the Mascotte room.
>>GWEN MILLER: Thank you.
>>> Well, that's a tough act to follow.
I'm not a lawyer.
Don't have a model.
And I don't have a DVD.
All I have is a little story.
Jacqueline O'Connor, 1411 south DeSoto.
And I've been sworn.
And I have no extra minutes so I have to talk fast.
Recently, I had occasion to deal with the regulations of the Hyde Park historic association when I built the garage.
I didn't want to build a garage.
I wanted to build a carport.
But I was informed that the A.R.C. the H never approved a free standing carport since Hyde Park became a historic district.
So therefore I had to call an architect and have him design something, and meet with the A.R.C. staff to make certain that I had all the right regulations taken care of so I would be a good neighbor.
The A.R.C. decides what materials you can use to build anything, the style of the roof, how far the eaves have to be from the building on another property, what kind of trim, how many doors, how many windows, and stuff I couldn't deal with.
So he designed all of that and worked with them, then he had to fit a door that was made of either wood or composition that looked like wood, which cost three times as much as an aluminum door.
I went through all these things, everything to do with the historic district.
And I don't have an historic home in the first place.
The garage is historic, believe me.
They even wanted a dormer on top of the roof as an architectural amenity.
It doesn't show from the street.
And it's 100 feet from the street, the front of the garage.
Where I had to do that.
See way back there?
That's the garage.
This is the street.
So you can't see it.
Anyway, the A.R.C. picked every little thing they wanted the trim to be, half an inch instead of a quarter inch, and all these things.
But I did it all.
And as I say, my house is just a little unhistoric home.
Here's my gorgeous garage.
(Laughter and applause) I behalf move in that. Anyway, my point is that if a resident has to comply with the most minute rules of the district for a structure that barely shows from the street, doesn't create any extra traffic and doesn't impede anyone's view, I think it would be wrong to build a great big structure on the corner and let them get away with something the rest of us can't get away with.
>>> I have been sworn in.
My name is Dennis van.
I reside at 1409 south DeSoto Avenue.
I'm a registered engineer with the State of Florida.
My argument is the same every time I have been up here on this project.
And that is, I know the words, height,
This is what's not compatible.
This is what is compatible.
And what I have drawn here is just a frontal side of that 19 story sky scrape area long with a typical Hyde Park bungalow.
When you look at those two, I think that you can honestly say that it's not in keeping with scale, height, width with the district.
I was also at the City Council last Thursday night where City Council was reviewing a project on Melville, and many of you said the same thing, it wasn't in keeping with the neighborhood, stating size, scale, style, all of which we are here arguing tonight.
There's another project on Channelside, that a property is zoned for a six-story building and the developer is proposing a 27-story building.
The people elect council to look after their best interest and not to allow these developers to constantly change, or manipulate the rules.
I think the neighborhood is looking for your help.
Enough is enough.
Please send this back to the courts.
>>GWEN MILLER: Next.
>>JOHN DINGFELDER: I have a question.
What's your last name?
>> We never met before.
You mentioned that you are a registered engineer.
You have a PE with the State of Florida?
>>> Yes, sir.
>> And have you looked at our criterion, chapter 27, in the Hyde Park guidelines?
>>> When I look at the scale, the height and width, I'm a firm believer of a picture is worth a thousand words, you know.
And here is what's appropriate and here's what's not appropriate.
>> Is it your professional opinion that the proposed structure, the 230-foot proposed structure --
>>> Is not appropriate for this Hyde Park district.
>> Thank you.
>>> Still good evening.
My name is Thomas Myers, 827 south Willow Avenue, and I'm a lawyer.
Sounds like the opening of a TV show or something.
But I've lived in this address for 24 years.
24 great years.
I think my wife and I and son have enjoyed every minute of it.
Even though I live a distance away from this, I'm part of the Hyde Park district.
And I'd probably be a mile and a half or so from where this is going to be located.
But I have this community of interest that has been made this neighborhood so good that I know that if they were trying to put some monstrosity in my neighborhood that these people would be down trying to help me.
And every day I drive by the site over there, and up until recently they had the sign up condos for sale or something to that effect.
They must have read the mediation agreement to come to that conclusion.
And the only thing that I saw over there today -- and I didn't go specially because I go by there all the time -- I saw the notice of this hearing, and a lot of reads -- reeds that they had cut down.
I like to see City Council on TV a lot, and a lot of times it's the best show on TV.
And I mean that.
And I mean that in a positive way.
I mean that in a positive way.
But it seems like every developer or everybody who is going to do anything comes up and says, we want to be a good neighbor.
That's the worst platitude I've ever heard.
I couldn't imagine anyone being worse neighbors than these developers.
And haven't they got the message?
I mean, if somebody treated me like the neighborhood has treated them, I think that ethics alone would make me want to do something else.
They are going to be a good neighbor by doing what?
Ruining a neighborhood.
And they are going to be good neighbors?
They won't even be in this building.
Somebody described these condos now as today's version of casino lottery.
They put up a 30-story building, they sell all the units, maybe they have sold some already, I don't know.
And then those people sell them to somebody else and those people sell them to somebody else.
Those are your good neighbors.
Now I don't mind somebody make a lot of money, and I compare my capitalist credentials with anybody.
But you don't make money by ruining a neighborhood and harming other people.
That's the big point.
I think you can do wonderful work up here.
When I see a bad example like this, I pick up the paper, and I see wonderful things going on.
I see that what's going to happen in Central Park Village.
I see what's going to happen like over at Ms. Alvarez district, Hyde Park -- I mean, west Tampa.
These are good things.
These are developers that are actually creating something good.
They are making the neighborhood better.
They're making homes that are affordable for people.
They are making things better.
These developers are ruining a neighborhood and making things worse.
The only thing I can --.
The only thing I can say is that even if the city stays in this -- and I pray that we deny the mediation agreement -- I would certainly hope that these other lawyers are able to intervene, because the city is going to need all the help it can get.
It appears already we've thrown in the towel, and as a lawyer I can understand the arguments that these fine lawyers have made.
There is a lot that hasn't been done.
It's not all over.
And I guess the worst thing, I agree with the gentleman who was here before.
>>GWEN MILLER: Sir, your time is up.
>>> Motive to anybody.
>>GWEN MILLER: Your time is up.
>>> The city attorney thinks we're going to lose.
>>GWEN MILLER: Sir, your time is up.
>>MARTIN SHELBY: I didn't hear for the record, sir, especially concerning you gave testimony, were you sworn?
>>MARTIN SHELBY: All right.
>> Good evening.
I'm Susan Meade.
I've been duly sworn in or whatever the phrase is.
And I live at 2109 Bayshore Boulevard.
For what it's worth I'm a retired commodities trader so I know all about asking for 364 feet.
Isn't it awful they only got 230?
Happens all the time in the business world.
Anyway, do you want to know my degrees?
I have a BA in economics.
I have an MBA in finance.
And I have a law degree for what it's worth.
I'm also the president of Bayshore Royal company association.
And the reason why I'm here, I originally had this whole spiel but forget about it.
Residents are add emptily opposed about this monstrosity base lick built in our front yard.
We like our building.
It's not the most expensive building on Bayshore.
It's not the newest definitely, built in 1924.
But we have the big front law lawn.
You can't buy that anymore.
We can play croquet there, you know.
We have the original 1924 hardwood floors.
The original wrought iron balconies.
We have just a lot of wonderful amenities, because we were built originally as a grand hotel.
But it's been mentioned a number of times that we are not a contributing structure.
And we're sorry about that.
We would like to be able to say preserved on our foyer.
We would love to say that but we can't, and there are reasons for that.
In the 1970s a developer built the -- bought the building to condo and out and started a "renovation project."
He altered the tenth floor, cantilevering it out, and we had French doors and French windows and he took them out and resold them.
We wish the A.R.C. was active in the 70s.
We wish an enlightened City Council had been active because that would never have occurred.
That's an example of what bad developers do.
And that's why -- that's why we are only the 1924 Bayshore Royal and not a contributing structure.
And again I just want to reiterate, don't say yes to this proposal.
It's just not a good thing for the neighborhood.
Thank you very much.
>>GWEN MILLER: Thank you.
As a courtesy to council and all the people here, time is getting late in the hour.
So we are not saying you can't speak.
But if you just go to the point and tell us what you want us to hear, we really would appreciate it so we won't be here till early, early in the morning.
>>KEVIN WHITE: Just out of -- as madam chair was saying, maybe out of courtesy, is there anyone here that wants to speak on behalf -- we see everybody here.
No one has spoken in support of.
And each rationale is different but if everyone here is in opposition, I mean, I think the story has been told.
And I think one way or the other, I think each council member has enough information to make it --.
>>JOHN DINGFELDER: The process, they each get --.
>>GWEN MILLER: I didn't say you couldn't speak.
Just come to the point.
You don't have to take up your whole three minutes.
You can say in a minute, or minute and a half, we would appreciate it.
>>> Sharon Austin, 3606 west Iowa Avenue.
I'm a SOG, south of Gandy.
We are being built up wonderfully, and miserably because of traffic conditions.
But everything there is within a certain structure.
It's keeping in a balance.
I have been a resident of South Tampa since April 1965.
Oh, I have been sworn.
And I have seen many changes over the years.
And up until recently most have been good.
South Tampa is now being overbuilt and glutted.
Probably becoming a suitcase city.
It's going to be South Tampa because of all the apartments.
It's going to be taxing the infrastructure, I have remained in South Tampa over the years.
Building a high-rise in historic district of Hyde Park is another example of killing the goose that laid the golden egg.
If the residents do lose, if we go back -- the goose is dead anyway.
They are going to build 50 stories.
There won't be a limit.
Bayshore is ugly after you go past Howard Avenue.
What will be next in this historic district?
The others in Tampa, if you allow such an inappropriate development.
There will be no standards in South Tampa at all, let alone a historic district.
Please do not allow this building to be built.
All of our historic district to be prostituted for more tax revenue. If we approve this we in South Tampa that enjoy the his district and our beautiful Bayshore drive with its new signage of a linear park can flush down the toilet our wonderful Bayshore our newly proposed sewer systems.
I can guarantee that the owner of the beautiful-built home is worth 1.8 million, wants a building like this next door to him.
I don't think so.
The one thing that has not been addressed a lot has been about the traffic.
I have friends in the Bayshore, I visit there frequently.
I have to turn, as I'm coming south, I have to turn left onto Howard, and into the front right because you can't get back out and -- to me south. This is north.
You have got to sit there until somebody is gracious enough to let knew traffic to continue heading on down Bayshore.
I always circle around the back of the building, watch very carefully because it's a lot of traffic on Howard Avenue, to gingerly move out so I can then go to Bayshore, taking a right to head back to my own home.
There's no way that that's going to work.
Trafficwise, in any way, shape or form.
It's not going to work.
Somebody is going to get killed.
You think we've got problems on Bayshore now because of traffic?
Traffic light won't take care of this issue.
Thank you very much for your time.
>>> John Phillips.
I have been sworn in.
On hills Avenue which is about a block from the subject property.
I'm very proud of the fact that my mouse is actually photographed in the design guidelines as a proper way to construct in the historic district, one-story addition.
So I did go through the process.
Interestingly enough, my lot is also multifamily zoned, RM-16.
I mean, down the road possibly someone can come in and say, well, zoning, A.R.C., I'm going to apply for a demo permit, if I don't win I'll sue, and I'll put 16 units on this lot.
After I'm gone.
I certainly wouldn't do that.
I'm also a fifth generation Tampa native, and it kind of gets to me, because my great grandfather had alum ber company in Ybor and supplied most of the lumber for the houses in Ybor.
And anyway, we are destroying the historic fabric that is part of my family.
Lastly, I am a registered professional engineer, and I work with a tool called an interior scale.
This is out of scale in my professional opinion.
>>> My name is Anna Thomas.
I reside at 821 South Loise, Tampa 33606.
My home is located in the Historic Hyde Park district.
I am president of Tampa Preservation.
And I have a letter that I would like to offer into the record.
And since a new day is about to dawn I will give awe highly condensed version of this.
Tampa Preservation is supportive of respectful harmonious new development within Tampa's historic districts when it complies with the ordinances set forth for these districts.
TPI believes that approval of the proposed Citivest settlement would constitute an undesirable and unnecessary departure from these ordinances.
Such an approval has a very real potential for establishing a precedent that could erode protection and integrity of every historic district within Tampa.
25 years ago the City of Tampa decided that protections needed to be enforced to protect such districts.
The city has a covenant with its residents.
We have a mutual responsibility to adhere to and support that covenant.
We have great concern that if we do deviate from that covenant that we will all suffer the long-term consequences.
We in short ask that you reject this mediated settlement agreement, and encourage those involved to work in a manner and to come up with a remedy that protects both our historic integrity, and allows them their rights as property owners at the same time.
>> Did you say you want to offer that into evidence?
>> And number two, have you been sworn?
>>> Yes, I have.
>>MARTIN SHELBY: Thank you.
>>MARTIN SHELBY: (off microphone)
>>> Good evening.
I'm George Deakin.
I live at 1408 south DeSoto.
Our home is approximately 400 feet from the proposed project.
I'm a registered professional engineer in the State of Florida and I have been sworn.
Just real quickly, to summarize some of the information.
Just in terms of scale of the neighborhood, this is within the immediate area. This shows the proposed project.
These are the adjacent structures.
The yellow ones are the contributing structure, and the green is the Bayshore Royal, not a contributing structure.
So if you go through and add up the numbers of the adjacent structures, contributing structures, your average height at 35 feet.
They say, let's look at the rest of the buildings or homes in the area.
On DeSoto and Bayshore.
And their average height is approximately 40 feet.
So currently the proposed structure is not compatible with the nearby homes.
This is a different topic.
This is, I believe, number 9 in your handout.
And this is an interesting item.
And there's information from the appraiser's office and evidence notebook showing that the right-of-way of DeSoto is -- in that vicinity is 40 feet.
However, when you look at the plans, and this is the sheet, just a reduced sheet from their plan, but it's one exhibit, the green here is the 40 feet of DeSoto Avenue.
But they are showing in plans, in the mediated agreement, they are showing an extra 15 feet, which is the yellow.
They are showing right-of-way actually as 55 feet.
So it intrude 15 feet Mr. The property.
And I had a conversation with him and he said he would not sell the property to them.
Lastly, the traffic conditions, this is Bayshore run ago long the south, and Howard, and the Citivest property, and shown in blue, and on the easement they can only come in and out.
They can't cut through.
They don't have the rights to cut through the Bayshore Royal.
They have to come in and out using the easement, using the -- and at that point it's a right turn lane only.
So that creates an undesirable, unsafe condition.
Plus there are about 135 feet from the Howard-Bayshore intersection.
The cars will back up.
It's going to be hard for them to get out, and unsafe condition.
It's too close to the intersection.
They perhaps should have their own right turn lane into the site.
It's just not going to be a safe condition.
It's going to increase the number of accidents.
That concludes my presentation.
>>MARTIN SHELBY: (off microphone)
>>> Good evening.
Elizabeth Johnson, 1819 Richardson place.
And I will try to confine my remarks to things that have not been said yet.
I do want to touch upon 27-216 (O) because, anyway, the first time that I have ever seen this developer cite 27-216-O in its entirety was at this hearing.
Even today, in a letter that they sent to all of you all, they put ellipses in the really key part.
And if you look at 27-216-O, because again this is where they hinge their substantial argument.
This is what they said in their letter dated today.
But if you look at it in its entirety -- and Mr. Difurio pointed it out.
It's the zoning administrator shall be the sole administrator of this code as it pertains to landmark and historic district boundaries, go on, and then it says, and any other item not dealing specifically with the procedure and review criteria for obtaining a certificate of appropriateness.
And then they went on to say in their letter that, well, there's this enabling legislation that prohibits you from adopting anything in conflict.
Well, the reality is that the only thing that would be in conflict would be for you to adopt this mediated settlement agreement, because they put ellipses in the choice areas that makes it clear that the zoning administrator does not opine on anything that relates to a certificate of appropriateness.
Now, I don't want to say that they are being disingenuous, but I have seen this again over and over again in their briefs, and that's not the way personally I was taught to practice law.
So I want to just make that really clear.
I want to go over Gloria's affidavit.
We're not going to sit here and cross-examine anybody tonight.
But if you look at 24 and 25, Gloria Moreda's affidavit makes clear that the "certificate" of zoning compliance that we're talking about, and again they are hinging their whole case on, she says the memorandum was written by me, and is not a certificate confirming zoning compliance.
So again we don't have to cross-examine anybody.
It's in the city's own affidavit.
And we have Gloria's affidavit in here.
We have Del Acosta full affidavit.
We have key portions of Del Acosta's deposition at 26, where he talks about, from the beginning, this developer wanted something that would stand out.
And he says, well, that's what my client wants.
He wants it to stand out.
And Del Acosta said, I tried to explain to him early on that Bayshore Boulevard in general, and especially if you went to the Hyde Park historic district -- historic district was like a strand of pearls and that this zoning was going to be a sore thumb to the historic district.
This I remember very distinctly.
There's other situations where Del Acosta speaks in a deposition about whether or not the architect even had a copy of the design guidelines when he started doing this design.
So I would say that before you worry about cross-examination, you look at our whole evidence binder, because every moment I could not lose sleep in the last month we thought about what to put in the evidence binder.
This MSA is troubling, because it responds to litigation.
And there is a case at the national trust for historic preservation sent to us, which is native American rights fund and it is a published opinion but I don't have the site but I'll give it to the city attorney.
We conclude that section -- what they tried to do was they tried to do what is going on here.
They tried to carve out the district because they were facing litigation, and they said, we conclude that section 8 of the ordinance is invalid because it allows the city to enter into privately negotiated contracts with individual property owners, and bypass all the procedural due process and substantive requirements of the code for this district.
I'm sorry, it's late.
The same concerns that render contract zoning suspect are present here.
By creating specific contracts with selected individual property owners pursuant to the section, the city deprives other effected property owners in the district of due process, and renders the procedural requirements of the historic preservation code superfluous.
And it didn't matter that the city of Boulder was facing litigation.
In fact, to change the code because they are facing litigation is not correct.
In passing the ordinance, the city was trying to protect the grand view terrace historic area while avoiding litigation over the issue of the university sovereign immunity.
So that is one serious problem with this mediated settlement agreement.
Another serious problem that people have not brought up is that it violates the Tampa comprehensive plan.
And let me see if I can find my notes here on the plan.
The Tampa comprehensive plan.
All these I put the big red X on them because these are things that are being vitiated by this MSA.
The city shall develop generalized guidelines to develop the existing spatial and visual qualities to the district, for example height, scale, orientation, site coverage, setback.
I started this council about a year ago about the case of Sceidel and we confirmed this week that state people said, wait a minute, are they violating their Tampa comprehensive plan?
I gave them this.
They said, that appears to be something that you need permission from the state on.
So that is a problem.
And you should add that problem to what Mr. Difurio said about the easement issues.
Let's not forget about that about the Bayshore Royal.
What Mr. Deakin said, he's a 35-year experienced traffic engineer.
He knows about traffic.
What he said about widening Bayshore, and the traffic impact as to this, right on Howard, which we are having a Bayshore study to face Bayshore problems.
We're thinking about doing that.
The DeSoto venture is mentioned in the city's pleadings as why weren't they included as an indispensable party?
Well, DeSoto venture is not in the MSA so the question is why was that an issue for them previously but not an I have been you now?
But trust us, staff knows what is good for Bayshore here, but remember there was the setback ordinance that we argued about, and when the mayor came to Kate Jackson and we asked her outright how county be that your staff including the city attorney's office would have rendered changes to 27-523 without preserving the jewel street of Bayshore?
And her response was: Well, that was a mistake.
Well, we can't make mistakes that irrevocably alter Bayshore and our historic districts.
Essentially the city attorney seems to be saying that there is some wrong that you all know about that we don't know about that justifies that thing on the floor right now.
And if we allow this wrong, then everything will be right.
Well, two wrongs don't make a right.
It makes another wrong, and another wrong, until Hyde Park is just a series of wrongful things.
When you we the secret information, please consider the many smart individuals, way smarter than I am, former United States Congressman Sam Gibbons.
Here he is, he was 24 years old and par in his paratrooper outfit.
He -- he told me personally that when he necked south of Howard that was the hardest political fight of his life, far harder than when he was in Congress.
But because he was part of the greatest generation, he wasn't afraid to do the right thing.
If this City Council is fearless in doing what is right, what legacy will the 2004 City Council leave?
Consider also the letter from the national trust for historic preservation.
I have probably talked to the national trust ten times in the last two years.
I don't know how many times the city attorney's office has talked to them.
But their attorney states to me that these kind of challenges are happening every day now, and our preservation ordinances are only as good as you all who uphold them.
And also Tampa's own people.
The late Jan Able, Stephani Ferrell, council member Saul-Sena who just left was there in 1988 when the ordinance was passed.
And importantly, they included vacant parcels for a reason.
It said in the survey that exhibit 19 of your binder -- remember this was written in 1988.
So think of their wisdom and their foresight.
The district includes two areas with new construction and some vacant lots.
These are incorporated to ensure that a scale and design standard sympathetic to the historic district will be maintained.
That's what they said in 1988.
This is also what they said about South Howard:
South Howard Avenue, the principal western boundary and gateway to the historic district, is an area of increased commercial activity and vacant lots.
It could if not subject to review obliterate the western edge of the district.
So again they included it for a reason.
Well, the will the DeSoto on Bayshore be something the city apologizes for?
>>GWEN MILLER: Your time is up.
>>> Or will you take another try at mediation?
>>MARTIN SHELBY: Were you sworn in?
>>> Yes, I was.
>>GWEN MILLER: Next.
>>> Good evening, Madam Chairman, respected council members.
I'll be brief.
I have been sworn.
My name is attorney Thadeus Marshall.
I'd like to say that I hope I don't have a fool as a client, but I'm here to represent myself.
I moved into the Bayshore Royal, the penthouse, facing Bayshore Boulevard, six months ago.
I did so with the knowledge that there is a possibility of development at the side of my property.
I thought at the time there's no way the city would permit such a thing could be constructed as presented here tonight.
I continue to hold that hope but I have to say I'm not sure.
I heard the city's arguments.
I come with 17 years background as a litigator.
I'd like to say I heard compelling arguments why the city says it needs to accept and endorse mediation recommendation.
I'd like to say a series of arguments but I did not.
I had a hard time stab lurk who represented who based upon what was represented.
It was only through counterarguments that I even heard some of the other elements that I think were appropriately necessary for you all to consider and hopefully you heard them in the background, because I'm not sure of that.
But if not, hopefully you'll take into account what you heard tonight through some of the able presentations from other counsel.
But I also come with 17 years experience representing injured victims or in many cases death, families who have lost individuals, in many cases to accidents that are preventable.
And I don't think it's an understatement -- and it might not be this year or next or after this thing is constructed -- but it will inevitably occur that when you have such limited ingress and egress as is described here, patients will be indictment limited with respect to people who want to get in and get out, particularly I imagine getting out in the morning.
And having to get into the city from that perspective.
Someone is going to turn out.
Someone is going to get in front of someone else.
And someone will get hurt or possibly be killed.
No one has said that here tonight, recognize that in the coming years you will probably at some point if this project is approved, read about that, unfortunately.
Please weigh that in your consideration because I think that's very realistic expectation.
>>> I'm Jan Roberts and you have not been sworn in yet.
(Oath administered by Clerk)
Yes, I do.
I live at the Bayshore Royal.
And my credentials, John, are I'm a wife, mother, grandmother, and community builder, and I was absolutely ecstatic to hear tonight that I'm living in a romantic hotel.
I want to say that I'm here because there are values that you are being asked to vote on tonight.
And there are two ways to make decisions.
One is on logic and one is on values.
And I think there have been very strong, logical statements made tonight about why this proposal is illegitimate and the process that brings us here tonight has been illegitimate.
The values comes down to this -- the values of voting for someone and/or company that has the money to threaten, to sue, to push you to the wall.
I used to call that bully values.
Tore values of community that have been so eloquently spoken tonight by these extraordinary people.
So I just want to say that I hope that you vote the values of community, that this is not about voting for a huge building that's going to overpower and disrupt a community that exists there now.
>>> I'd say good evening, but it's actually good morning now.
My name is Adam Burden.
I am -- and I have been sworn in.
I'm a resident of DeSoto Avenue.
And for the duration of my topic I would like the Elmo to be on.
There are some pictures that I would like to show you.
I have five things to discuss.
I have got some background with my personal situation is in this, my family, friend, I have some thoughts about the proposed DeSoto tower, and I have some recommendations for you in terms to that effect.
I've got two newborn twins, eight weeks old, and we live on DeSoto Avenue.
I'm deathly afraid that they are going to freeze in the shadow of this tower.
I also have a four-year-old daughter.
And I've lived in the house since 1996.
I'm very attracted to the area because of the historic district designation.
And the character and preservation of our neighborhood is very personally important to me and my family.
And honestly it's why we live here.
My wife and I, by the way, vote in every election.
Let me tell awe little about my situation.
We have invested quite a bit in our property.
It was originally purchased as a bank reposession and was significantly in need of upgrade and repair.
We have done a lost major upgrades.
I show you a picture of one of our interior rooms.
And the guiding principal has been to be true to the period in which the house was constructed which was 1915.
And this is done out of all respect for the historic district guidelines and the character of the neighborhood.
I'll be honest with you, the twins were a little bit unexpected.
And we have a three bedroom, two bath bungalow.
So I have got a growing family and I need to add onto it.
And I've just gotten done going through the A.R.C. review process.
It took me two tries.
However, I have now a certificate of appropriateness to add onto my home so that I can grow my family.
Unfortunately, I already grew the family.
I was I was growing the home first.
I made a lot of concessions in this.
My size is very limited by the design guidelines.
In a screened pool that I would like to have.
I can only have a one car garage.
I have to move my driveway.
This is a very expensive proposition for me to go through.
And honestly I'm pulling some things out of my home today that are historically inappropriate.
I'm tearing down a shed that has no historical value.
I'm removing some aluminum soffit that is a very expensive thing to do and replacing it with more historically appropriate things for my home.
I'm committed to do this and fine with the costs because my wife and I believe previous serving the integrity of the historic district is important and the same guidelines are supposed to apply to everyone within these boundaries.
The proposed DeSoto tower clearly does not agree with these historic district guidelines.
A model high-rise, a sky scraper is completely out of character with this neighborhood and for the end of my street which my family lives on.
Not to mention what it will bring in terms of taxing and already stressed water and sewer service on the street, like someone try to take a shower in my home with the water pressure.
The mass scale and density of do not comply with the historic district guidelines.
One thing I think is important that nobody has pointed out tonight is that this property was purchased after the historic district guidelines were drawn, and the historic district guidelines were created, 1996. We are talking about something that happened in 1999.
And if the petitioner here wanted to build this property and make this enormous -- perhaps they should have researched the guidelines and the character of this neighborhood a little bit better.
I'd like to offer this into evidence.
>>> Brian Evian, South Willow, and I have not been sworn.
(Oath administered by Clerk)
Councilman Dingfelder, I have a finance degree and law degree, but most relevant tonight, I am employed by Gaspar properties, real estate development company, that not only specializes in renovating and constructing properties within the historic district, most specifically, we own the apartment building located directly behind the site of this proposed monstrosity.
I'd like to state primarily for the record that we as the owners of that property do not approve of the mitigated settlement, mediated settlement, excuse me.
I do not believe as a developer, that being my profession, and in my professional opinion, that it meets the scale and mass guidelines of the historic district.
But I want to talk to you about a couple of other things in addition to that.
The one I want to talk about with that apartment building represents, and number two, I want to confirm what people have said tonight about what other developers may do considering that I am in fact in the development business.
I've heard a lot of talk about around Tampa lately, we know a condo development is going on that we need to have a lot more mixed income, development, mixed income properties.
That apartment building, which we purchased in 2001 and renovated, put considerable money into the effort, represents an opportunity for people with a lower income to live in the Hyde Park historic district, and to participate in and experience what is living on a property with a view of Bayshore Boulevard.
There are not many properties like that left on Bayshore.
And we take great pride in being able to offer that to our tenants.
I mean, obviously the purpose of our apartment building is to generate income.
But we look at it as having other purposes as well.
And we think it's a benefit to the community.
Being a real estate developer, I know that what developers look for is a property that offers an opportunity.
Now, if this settlement is approved, I can't say that we will look at it as an opportunity, because both myself and Hamilton Jones, who is my employer, we both live in the historic district, and we go to great efforts to work with architects, to work with Del Acosta, prior to purchasing property, prior having to our site plans and our architectural plans approved.
We work with them when we are renovating or construction, within the district to meet the guidelines.
But not only developers live within the district.
And I believe that many of them will look at this settlement, if it is approved, as a new opportunity.
I know that's already been said the tonight.
I just wanted to confirm, that's how this business works.
And I urge you not to agree to the settlement.
>>JOHN DINGFELDER: The building that you're building in Hyde Park village is how many stories?
>>JOHN DINGFELDER: Seven stories?
>>> It's under an-acre parcel.
>>JOHN DINGFELDER: Just less than an acre.
And I would add when we went to Del Acosta, we originally proposed three-story town homes, 28 of them -- excuse me, 29 of them.
And because of Hamilton's reputation for restoring historic property, actually suggested to us that we do something higher -- or excuse me, of a larger scale.
And higher density.
So we were planning to operate within the framework of the historic district guidelines, the A.R.C. guidelines, and we are still operating within that framework.
>> Is that seven story district within the -- building within the district?
>>> Yes, it is, on the very edge of the district.
>>LINDA SAUL-SENA: Sir, how tall building is next door?
>>> I'm not certain of the height but they are two stories.
>>LINDA SAUL-SENA: Thank you.
>>GWEN MILLER: Thank you.
>> Thank you all for staying up way beyond your bedtime.
I know it's way beyond mine.
My name is Sue Dampier and I am sworn in.
I live at 5306 North Suwannee Avenue in Old Seminole Heights.
I'm a realtor, and I specialize in property in the Heights area in historic homes.
My clients, both searching for homes in which to live, and those investors searching for homes in which to invest, consistently request that they be shown homes in the historic district.
Why do they do that?
They do that because they know that a historic overlay protects their potential investment from the costly impact of negative development.
Study corroborate the positive effect the historic district designation has on property values.
The 2003 article in the New York Times states that a study found that the sale prices of one, two, and three family homes per square foot within historic districts were hire than in nearby neighborhoods and every year studied since 1975.
Here in Tampa, there has been a 100% success rate on revitalizing neighborhoods, and eradicating blight through the use of historic designation.
Nothing else has accomplished this.
However, if the historic overlay is held to be meaningless, there is no protection for the common citizen, which is the purpose of law.
The financial advantage or even the financial security of property ownership would be in the hands of a few greedy individuals who are not concerned with the common good but only regarding their own pockets.
I ask you to up hold the power of the law to protect the greater good by rejecting the mediated settlement agreement.
I submit for the record the results of the many studies around the United States showing the benefits of historic districts.
>>> May I ask a question first?
I have two minutes that were donated to me to use, but I'm wondering, if attorneys need donated minutes, right?
If I could save these for them.
>>MARTIN SHELBY: I believe that council's rules call for the petitioner to have rebuttal time.
I don't believe anybody else is entitled to rebuttal time under council's rules.
>>> Oh, I thought we changed that.
>>MARTIN SHELBY: Not with regard to rebuttal.
>>> All right then.
Okay, thank you.
Then I do have this.
>>MARTIN SHELBY: (off microphone)
>>> Lacy Henderson, 2001 Bayshore Boulevard.
So we don't get any rebuttal.
>>MARTIN SHELBY: Have you been sworn in?
>>> Yes, and I have been sworn in.
I don't understand the settlement that the city attorneys have offered.
I remember some of the articles last year, in November, Jerry Gewirtz said the City Council acted -- the city's division is totally confident that the court will find this lawsuit to be without merit.
And then in January, he also said the city is not about to back off.
If it doesn't succeed in getting the remaining counts of the lawsuit dismissed, he said both issues will be resolved during a trial.
And then in March, an assistant city attorney has said the city will contest the lawsuit all the way to a civil court trial.
And we just don't understand what happened in the meantime.
As a council, you all have been so sensitive to preservation issues.
And not just on this one but for a long time in many places.
Last spring I was watching the hearing here, 319 Bayshore, and even though that's not in the historic district, it borders the district, and over and over again, I heard you saying, talking about being sensitive to the historic district.
One paper says you told the developer to return with a plan that would blend better with the adjacent historic district, and would lessen the impact on traffic, and then again it says council members said they wanted to see something much smaller, and perhaps a different architectural style.
And some of the notes I took in watching that hearing, it was just -- there's no transition of height between the project and the historic district.
You all said, maximize sensitivity to the historic district.
You said step it down as you get closer to the historic district.
And I think that's wonderful.
Just not in the historic district but you are being so sensitive to the.
And Mrs. Alvarez, I was going to say I really appreciate the tough questions you asked recently on going in downtown.
I think you wanted to be sure that it was going to be compatible with surrounding buildings.
And I appreciate the fact that you asked those questions, and made sure that was happening before you all decided on that.
So I just think over and over we have seen your care and concern for preservation.
I think it's Mr. McLaren that they have given up a third of their height by settling on this.
And I just don't think that hold water.
A 31-story building was so out of place to start with.
And about two and a half years ago, at the first A.R.C. meeting, I made the statement that in 31 stories, that building, apart from the skyscrapers in downtown Tampa, that that will be the tallest building on the entire west coast of Florida, from Tallahassee all the way down to the keys.
No other building is that tall other than in downtown Tampa, where we want skyscrapers.
And it just shows how out of place it was and wanted to build it in a historic district next door to two story homes which to me makes no sense at all.
And just to make sure the same thing doesn't happen tonight, at the end of that meeting, the developer had his rebuttal time, and he got up and said that I was totally wrong, and that he knew for a fact that one building, the enclave that he had been intimately involved in down in the pelican bay, Naples area, was much taller.
And I was embarrassed.
I thought, well, he knows what he's talking about, and went back and apologized to him, said I have never misrepresented the facts like that, and came to find out the next day I got on the phone, and I was right.
The enclave is shorter than that 31-story building.
And he either built a building and moved on somewhere else and forgot how tall it was, or something else.
But I want to make sure that doesn't happen tonight.
And my statement of two and a half years ago was correct, the tallest on the west coast of Florida, apart from downtown Tampa.
We just ask you to keep an open mind on this.
It just has to be a better way than to let this happen.
I think that bright minds have got to be able to come together and figure out something, some way, that will work better for our community.
You know, maybe the city attorney staff thought from the financial perspective maybe this would be cheaper for the city.
But it's not.
And it's going to be very costly, certainly to the way the neighborhood looks.
We are a neighborhood that cares about our community.
When just don't think we can just roll over and let this happen.
We have spent money and toil and sweat, I'm sure in some cases tears, to follow the guidelines and the codes for all of these years.
And we feel like we have to stand up and fight for ourselves.
I have a letter, I won't have time to read it from Mary Britain, president of the Hyde Park preservation association, but I'm supposed to read in.
But I'll just submit it.
>>GWEN MILLER: Thank you.
>>> My name is Chris Pascucci, resident of Bayshore Royal, I have been sworn in.
My experience runs on engineering, architecture.
I have both in both engineering and architecture firms and my father is actually a land developer so I have a little bit of insight about this project.
I want to start by saying that this is really not about a building.
This is about people.
People who live in our community.
And I think the people of the community have a good feeling that the only people in this room that want the building built are the four highly paid gentlemen behind me.
I'll keep this brief.
I know a couple people made these points already.
Directly on the Hyde Park guidelines, we have seen this image of buildings that are not to scale.
And I'll show you what it will look like from Bayshore Boulevard of the tower in front of the Bayshore Royal.
I know this is a building not included in the guidelines.
However, this building is going to be in front of our building.
I'm going to look at the back side of this building, going to look at the parking garages, going to look at the ingress and egress and exit and all that.
I live on the second floor.
I'm not as lucky to have the penthouse.
But there's a lot to be said about living in South Tampa.
And part of living down here is being able to see the water and being able to have that view.
And if this building is built, hopefully it will not be up to 85% or 85 degrees of view blockage will occur from our building.
Some residents on the north face of the building will lose all of their view of the water.
This is going to do amazing detrimental effects to our homeowner values, to -- excuse me.
>>JOHN DINGFELDER: Shhh.
I meant them.
>>> And also the proximity of these people, that nobody has done before.
That white line you see coming down the Bayshore, that is our driveway, you know.
That driveway is, for some of us who go to Bayshore, the only way in and out, you can have the south exit and get to Howard Avenue.
But that's it.
I mean that's our parking lot.
That's our entrance.
Additionally, we have -- the Bayshore Royal was built in 1924.
The view has never been blocked.
It's always been open to Bayshore Boulevard.
All the way from Howard Avenue to the property line of where this easement comes in.
I mean, I can't say that I know all the legal rules and ramifications of land ownership, and just because you have the property doesn't mean you can build on it.
I think part of responsible development is knowing when you're right and when you're wrong.
And in order for us to move on as a community, we have to stop this.
It's not an issue of is it good or bad?
It's a nonissue.
Shouldn't even be considering this.
I don't understand why this has even come this far.
I appreciate everything you guys have done.
And my final closing is, you know, I don't want to label anybody an aggressive developer.
But I know Citivest has been involved in several litigations in the state recently.
1995 against the Beach Park homeowners association, Beach Park homeowners was a defendant, actually.
So this legacy of developers that are coming in and picking Tampa as a prime target, I mean they are coming out of the big city, Miami, they have got many condos, many buildings and they pop up like, you know, warts down there.
I mean, that's not Tampa.
This is not what we're about.
>>> LILA Haggard, I live at 1508 south DeSoto, catter-corner to this high-rise we're discussing.
I just want to encourage City Council to deal with the truth.
There's a lot of talk about whatever the secret is that each of you knows, and which David and his staff knows, and I respect it, it must be something really important.
I know David personally, and I think he's very ethical, and I know that he's got the city's best interest at heart.
But what I want to say is that secrets always get out.
Look how many people now know this secret.
Guess what -- we even found out that it was Carl rove.
So do you think that this secret, whatever it is, isn't going to get out sometime, somewhere?
So, tough as it is, as bad as it can be, let's go with the truth, let's open it up, let's fix it now, and let's not build this building.
>>MARTIN SHELBY: Were you sworn?
>>> Yes, I was.
>>DAVID SMITH: Moving right along we have the petitioner's rebuttal.
>>MARTIN SHELBY: Mr. Smith I want to be very clear.
The chair asked if anybody else would like to speak.
>>GWEN MILLER: Is there anyone else in the public that would like to speak?
>>MARTIN SHELBY: Seeing none, thank you, Mr. Smith.
>>KEVIN WHITE: We have your note, the aid, this young man sitting on the front row so he can return to school tomorrow.
He's been so patient here.
>>JOHN DINGFELDER: One of the Boy Scout citizens.
>>McLAREN: Thank you for the opportunity.
I was sworn, yesterday.
We have several comments that I would like to respond to.
First of all, I would just like to say I think everybody is here tonight doing their best and trying to stand up for what they believe in, they are trying to explain to you all what they perceive the law to be and what the facts are.
With that said, I do want to point out some mistakes that I think were made in some of the presentations.
There was a suggestion that we're really not going down more than a third in height.
There they're was a suggestion this they're was a 31 story building involved.
The project that's the subject of litigation is 24 stories, 346 feet.
This project is 19 stories, 230 feet.
So we're coming down 116 feet.
That's more than a third.
There is a suggestion that my client, Citivest, is somehow litigious, or big Miami developer that has no interest in Tampa, and that's not true.
Mr. Robinson himself maintains a home here.
He is a principal of Citivest.
And the only piece of mitigation reference was won in 1995, that's ten years ago.
So I would like to clear that up.
There was a suggestion that somehow I had moved ellipses around or moved words around and this was the first time that I had ever presented this full code provision.
I represent to you as an officer of the court that this precise exhibit was utilized at a January 4th, 2005 hearing be, so there's nobody is pulling a fast one here.
And this stands for exactly what I indicated, and that is that the zoning administrator, as the gentleman indicated, Mr. Difurio, I believe, is correct, the building regulations is in the zoning code.
There's in a question about that.
But what do you do about the Florida statute, section 266-407, which all of these historic preservation ordinances were adopted pursuant to?
That was the enabling legislation that allowed this to occur.
That legislation specifically indicated that you can't have an historic preservation regulation that conflicts with a zoning ordinance.
So when the zoning ordinance has a schedule of height regulations for height, we meet the height requirement, you can't have the A.R.C. interpreting historic preservation ordinances coming in and saying, that height is not good enough, I want another height.
You can't do it.
Florida statute, the enabling legislation, prohibited it from happening.
There was a suggestion that there's a contract zoning usual you, there's some kind of problem with this body contracting away it's beliefs.
And the law on that is as follows: You are exercising your police power.
You have taken all kinds of testimony tonight as to whether or not this building is compliant with the guidelines.
That is the exercise of your police power.
Rolling oaks versus Dade County case, 492 Southern 2nd 686, when an agreement expressly provides that it is does not bind the board of commissioners, or board of -- the City Council in this case -- there can be no contract zoning.
What this mediated settlement agreement says in this case is that it going to come before you, and you're going to decide whether to approve it or deny it a and that's why ware here tonight.
You are exercising your police power.
So there is no contract zoning.
The closest case is Molina versus Trade Winds Development case, 526 Southern 2nd 695, and in that case, exactly like in this case, you had a land use dispute.
You had a settlement agreement, exactly the same situation.
This is a Florida case. This is not an out-of-state case from Colorado that was cited by, I believe, Mrs. Johnson.
This is a Florida case controlling Florida law.
The rule of law is, as long as nothing in the settlement agreement eliminates the city's obligation to comply with the applicable ordinances, it is a valid exercise of police power.
Settlement agreement in this case, as Mr. Smith, who has no dog in this fight, will tell you, is entirely legal.
Some argument that this provision is somehow noncompliant with the comprehensive plan, the comprehensive plan designates this property at 83 units per acre.
That will give us like 90 units.
We're not even close to that on this.
And there's the statement that we should just come back for mediation later, because they can just do that.
Well, we have been here five months trying to get this hearing since May the 10th.
And this is -- this is our shot.
We have got a final hearing.
It wasn't a motion for summary judgment on the petition for writ of cert.
It was a motion filed to get rid of the petition for writ of cert.
It was a motion to dismiss or in the alternative motion for summary judgment that. Was denied.
It was a show cause order issued by the judge.
It said city should show cause why it shouldn't grant petitioner's relief.
So the final hearing is that final hearing.
It's not a summary judgment.
It's a final hearing.
Mr. Nelson, who represents the neighborhood, he stood up and said that what he perceives happening was he G was going to get back in the case.
And, you know, I have to tell you that I've litigated against a lot of folks.
I have been practicing for I guess 14 years, and, you know, this litigation was as hotly litigated as any case I've ever been involved with.
I mean Mr. Gewirtz and his staff, he said I was pro prohibited from making it.
And for these folks to come in here and berate the city and say, oh, they didn't do a good job, they laid down, that's just not the case, and I can tell you that.
Mr. Gewirtz and Mr. Smith and the others involved are as tenacious as any lawyers I have ever dealt with.
Here is the order denying the motion to intervene.
If I could get a blow-up on that, number 2 there, please.
The motion to intervene as to count 4 of plaintiff's complaint, again the petition for writ, most important claim in the case the direct appeal from denial, is denied with prejudice -- with prejudice.
That means that the game is locked and nobody else can play.
That means that Mr. Nelson is not going to intervene and make all these arguments, that the city otherwise wouldn't make.
The city is making all the arguments that are out there.
He can't get in the case on the most important issue, and that usual you will be decided probably, if this is not approved, within the next two or three weeks.
Suggestions were made that we should meet with the neighborhood.
We have tried to meet with the neighborhood, and quite frankly, the neighborhood has indicated to us that they are not interested -- representatives of the neighborhood have indicated to us that they are not interested in meeting with us.
What does the -- the letter from the national historic trust, letter number 33, they read the letter and it says that they object to this structure being built, but if you read the letter, it doesn't even indicate that they have reviewed the plans.
There's no evidence they have even reviewed the plans so they are saying we shouldn't review the building.
They haven't even looked at the structure.
Pen central, these other cases cited by the national preservation trust.
In each and every one of those case there is was an ordinance in place that specifically allowed the historic preservation body, in this case the A.R.C., to control the issue that they are dealing with.
In our case height.
Here, there is no such ordinance.
The zoning administrator controls that.
I think I object for the record to the model. Where is the Bayshore Royal?
It's the tallest building around there but we don't want to put it on there?
We just -- you know, make a decision, we're not going to put the tallest building to the property on the model.
I don't think that's appropriate.
The harbor house within 500 feet of this building, 22 stories, 19 stories.
And this model --.
>>JOHN DINGFELDER: You left out the important part. The atrium and the harbor house are clearly outside of the district.
Would you agree with that?
>> Just wanted to clarify.
>>> But I do want to point out page 71 of the guidelines, it doesn't say anything about comparing this to structures solely within the historic district.
What it says is should be a similar proportions to neighboring buildings.
Didn't say anything about them being in the district.
Mr. Dingfelder, you're aware as a lawyer that if you leave it out you leave it out for a reason.
That's the way you do it.
So we feel like the Atrium should have been in there.
The Harbor House.
But also, what's the zoning?
>>MARTIN SHELBY: Sir, you have to take the microphone just so it can be broadcast.
>>> Our zoning is different.
Our zoning is RM 75.
There's nothing else in here that's RM 75.
Same is true with the information provided to you by Hyde Park village.
It's a nice development.
What's the zoning?
The zoning is different.
Same is true with the seven-story building behind the movie theater. The zoning is different.
I mean, we say saying that zoning doesn't mean anything, that we have just got to build the structure?
That cannot be the law.
That cannot be the law.
The only compatible zonings, the only other high-rise zonings in the district, you heard about them.
Right next door to some single family.
Right next door.
The only other thing around there is Publix.
Yeah, it's commercial.
How tall is it?
It's probably three stories at the most.
295 Bayshore, 26 stories.
That's similar zoning.
But we can't have 19.
They can have 26 but we can't have 19.
Mr. Rock stood up here and said that the A.R.C. decides this issue, not you.
Well, the June 3rd, 2004 hearing, where you had the opportunity to reverse or affirm the A.R.C., that's the hearing from which we took the appeal.
>>ROSE FERLITA: Would you just stop his time for a minute?
We're getting some signs of concern behind you and just wanted to clarify it for the audience that your rebuttal time is ten minutes but I understand and I remember that you saved some of your first initial presentation time.
So she is keeping track of that.
FROM THE FLOOR: (off microphone).
>>ROSE FERLITA: He had that total and asked to carry it over.
So he's almost there but he has about six minutes left.
>>> That's all right, thank you.
The June 3rd hearing is the hearing from which we took that appeal so we took that appeal.
And according to the cases of Miramar versus Amoco, 524 Southern 2nd 506, this is where the court will send it if the court rules in our favor.
So to suggestion that it's got to go to the A.R.C., that doesn't make any sense.
These cases both say that the remand is to the tribunal from which it was decided and that is this City Council.
You are here sitting in your capacity as council with the authority to implement the desired guidelines.
That's what your duty is today, along with approving or denying the settlement agreement.
Substantial, competent evidence.
Evidence from Mr. Acosta.
He's not biased.
He is the only -- he is the only land development expert that's testified that doesn't have a dog in the fight.
What he's saying, he said we're complying.
That is more than substantial, competent evidence.
Substantial, competent evidence is evidence sufficient to support a decision.
Your own professional is telling you that we're complying.
You are also using all the design guidelines.
A suggestion was made somehow that you're not using the design guidelines.
Preliminary approval is what we would get here.
We would have to go -- if you guys approve this, we would have to go back to the A.R.C. for these other things.
Preliminary approval would mean that you as a body are deciding scale, height and width, setback, orientation and site coverage, alignment, rhythm and spacing, entrances, porch projections, roof forms, horizontal, vertical or nondirectional emphasis.
You guys are the ones that are deciding that issue.
If you don't believe me, ask Mr. Smith.
He's the man that doesn't have a dog in the fight.
The subpoena that I harassed or threatened someone, a subpoena is how you gather evidence.
I got a call from opposing council said she wasn't available, he filed a motion to quash, and I said, well, I'll just take it later, don't worry about it.
To suggest that I was trying to harass someone, I got some evidence from somebody else, and we were focused on the petition for writ of cert.
So to suggest I'm harassing someone, that's just not right.
That's how you gather evidence.
You subpoena somebody.
The Bayshore Royal easement.
Bayshore Royal representatives were at all these hearings before.
There's no relevance to that easement.
How does the easement effect setbacks?
How does it effect -- what would be used? They were aware of this.
They knew about it all the a lodge.
It's been in the papers.
Where was their motion to intervene?
They didn't intervene.
They knew they wouldn't have a dog in the fight.
You heard Mr. Defurio if we have a problem with our easement with access, then we'll be able to prove this thing shouldn't go forward. The reason he doesn't intervene is he doesn't have any proof.
If we had any evidence ---he didn't have any evidence or he would have intervened.
The mediation is absolutely privileged but for what comes out of the mediation, under Florida statute.
That is black letter law.
This provision on the bottom of page 72, up here, this doesn't fly.
That's four stories.
Well, as you can see it's straight up in the air.
There's in a scaling back.
We have scaling back.
What's on the next page?
A four-story building that works.
So again, it doesn't say we're too tall and don't comply, that's not right.
Again, page 72.
Look at -- this is page 42 on my brief, put its from page 72, inappropriate, too narrow, too tall, inappropriate.
What's the difference?
They are the same height.
The only difference they put a porch on.
So height is not a restriction to be governed by the A.R.C..
Very respectfully, council, the only folks in this room that don't have a dog in the fight -- it's not me: But it not the neighbors either. The only folks that don't have a dog in this fight are the city's land development staff and the city attorney.
And what are they advising you?
They are advising you to settle the case because they have risk.
They are advising you that our plan at 19 stories, 230 feet, is complying.
We respectfully submit that you consider following your lawyer and your land use professionals.
>>GWEN MILLER: Mr. Dingfelder.
>>JOHN DINGFELDER: I just had a quick question for Mr. Acosta.
You have a presentation?
>>DAVID SMITH: I do. I think Scott spoke inadvertently but I would like to correct it now, might save some time.
I want you to realize that with respect to the ruling on the motion to intervene, there is two different paragraphs, and what he said with respect to the denied with prejudice was as to count 4.
It was denied as to the other counts without prejudice.
Just want to make sure if someone misheard that or thought he said that differently.
All counts except count four.
Also I wanted to make sure, I think again Scott inadvertently misspoke I'm sure with respect to the zoning.
This is the zoning in the area.
As you can see, there is other multifamily zoning in the area.
It's not accurate that everything is single family.
There is other multifamily zonings in the area.
Just wanted to make sure that context was correct.
I've got things I'd like to say but I think you guys ought to ask whatever questions you have got.
>>JOHN DINGFELDER: Mr. Acosta, the staff attached your affidavit that you provided, I guess, to Mr. Gore who provided it to the court dated December 2004.
Do you have a copy of that?
>>> Yes, I do.
>> In paragraph 14, by the way, council, this is tab 25 for those who are following along, paragraph 14, page 6, specifically -- and we don't have to go through each one of these by want to make sure you still hold to your position that you swore to about a year ago.
It says since the adoption of the city ordinance creating the Hyde Park district multifamily high-rise, A.R.C. to be built in the historic district except for the project known as one Bayshore, which is distinguishable from the DeSoto condominium project in a number of significant respects including but not limited to, and then you said A, B, C and D.
And I won't necessarily read those into the record but I want to make sure that you still affirm that what you swore to last December, you still would swear to today, because you are under oath.
>>> Yes, I do.
>>JOHN DINGFELDER: Okay.
>>GWEN MILLER: Next.
>>DAVID SMITH: David Smith, city attorney.
I'll tray to be brief.
Great job done by great neighborhood.
I said that at the beginning, it's a great group of people.
I think what's important to remember, however, is the context.
And I'll get to that in a second.
I would like to respond to just a couple of points, primarily in defense our department.
It's not the case that anytime somebody sues we are going to negotiate with them.
It depends on the facts of the case.
It's done on a case-by-case basis.
If the facts warrant it, we'll negotiate.
And if the facts warrant a settlement, we'll recommend it.
If they don't, we won't.
That's what we are going to get from this office.
You have a recommendation because of our evaluation of the facts, our evaluation of the law, and our evaluation of some of the other related circumstances and events.
It's not a question of us having a preference for this particular building.
That's irrelevant and we don't have it.
We are only acting as attorneys evaluating the risk to the city as best we can.
I've had conversations with all of you.
If you guys disagree with that analysis, obviously you're free to take a different course.
But I think that it's important that it be understood exactly what we understand our role to be, and that's what it is.
One of the things that was said is that -- I believe -- I'm sorry, Mr. Nelson again -- that we need to take more depositions, more discovery, et cetera.
That's kind of a corollary to what I addressed at the outset.
This situation is not as a personal injury suit or business damage business, tort, and other business contract complaints.
This is driven by the text, and by a record primarily.
There's not a lot of gotcha's that you obtain in the course of depositions in this kind of a lawsuit.
There will be some depositions taken if we go back.
And we'll see what we can do with them.
But believe me, we thought we had more than enough information for the recommendation we made to you or we wouldn't have made it.
Someone indicated that money is not a problem.
I think I was told initially "-initially that's the city's problem, and yes, exactly right, it is the city's problem, and therefore it's my problem.
And as my problem it is part of way take into account when I recommend to you action.
We think we have a significant risk, and we're talking about significant dollar risk.
If you want us to risk a million or two and go back and litigate it you're free to do that. You're elected legislative officials.
I think that's a mistake.
That's why I'm recommending you settle.
But you're free to do that.
I think it's important to remember that with Del Acosta testimony was simply staff testimony.
He does not speak for the A.R.C..
He is not authorized or empowered to act as the A.R.C..
So any testimony to that effect is irrelevant because that is not the capacity in which he was before you today.
He was simply before you today as a staff person, providing you his opinion as to whether he thinks this settlement proposal complies with the guidelines as he understands them.
I think the issues with regard to the Bayshore Royal have already probably been addressed.
Mr. Dingfelder's question with regard to whether or not you can know whether I'm telling you the same thing I'm telling other counsel members, I'm a little surprised at that question but you can count on it because that's the way I am.
I don't do things differently than that.
I'm not entirely surprised that a personal injury lawyer doesn't find any merit in the legal argument.
>>JOHN DINGFELDER: Wait.
You addressed me.
Let me address you back.
That comment wasn't meant to impugn you or anything you did. My guess is that the five or ten minutes we spent back there at 5:00, okay, and the content of what we discussed, might have been different, okay, than what you discussed with them.
By the constraints of time or for whatever reason.
And that's it.
>>DAVID SMITH: Fair enough.
It wasn't different.
I didn't get much time from anybody.
>>JOHN DINGFELDER: My only point was I have no way of knowing.
I wouldn't want to know because that would break sunshine.
>>> I think that sunshine is fine.
I'm glad to know it wasn't intended in that fashion.
I think the problem here is, what is the context of what's going on here?
It isn't what do we want ton see placed on that lot?
If that were the question, the answer would be easy.
It's also not the question who has the best baby pictures and who has the best neighborhood.
They have a great neighborhood.
They have a great group of people.
What they want to see happen there is a fantastic idea. The problem is we have to deal with the constraints that we have to deal with.
And the constraints we have is an ordinance that has been passed, that has a set of requirements that have to be applied, they have to be applied in a way that does not come across as arbitrary and capricious.
The standards have to have meaning.
They have to be consistently applied.
In light of all of those facts, we think we have a problem.
We the city.
And that's why we are recommending a settlement to you.
Now, what you have to do, however, and I want to be reiterate that, because otherwise there is a contract zoning issue, you have to make first a determination that you believe this reduced project, whether it's reduced or not are all issues you are going to have to determine, not in terms of acceptability in the abstract but in terms of compliance with the ordinance, does it comply with the criteria of the ordinance?
If you find that it does, then you move on to the second stage and you determine whether you're accepting the settlement agreement.
If you find it does not, in your opinion, based on substantial, competent evidence, comply with the requirements of the ordinance, then there's no reason to accept the settlement agreement.
You don't accept the settlement agreement first and then are constrained in the application of your discretion.
You make the determination first with respect to the requirements.
I can only tell you why we're here before you with this recommendation.
And that is based upon all the factors that we became aware of in the course of discovery, and the witnesses were interviewed, and the testimony that I was told was going to be provided by our experts that you heard tonight, based on that, I was of the opinion that it makes sense to settle this.
Now, if you don't find the testimony provided tonight by our staff credible, and you don't think this complies with the ordinance requirements, I think it is within your purview to not approve it.
I tell you that's a difficult situation to disprove however in litigation.
And that's why we made the recommendation.
It wasn't with respect to this building in the abstract.
>>SHAWN HARRISON: You just said something, you said what we have to do is find that this project complies with the ordinance.
>>> That's correct.
>>SHAWN HARRISON: That's something we have to do here tonight.
And we've heard testimony -- I think we heard testimony about five hours ago from Mr. Acosta that said that it does comply with the ordinance.
Is that correct?
>>> That's my understanding of his testimony.
>>SHAWN HARRISON: But we also heard people say that it is not Mr. Acosta's decision whether or not it complies with the ordinance.
>>> It is not his decision.
>>SHAWN HARRISON: He only makes a staff level evaluation and a recommendation.
>>> The procedural context is it has come back to you, the body that handled it prior to the litigation, in your appellate capacity, it has come back to you to make that decision. The question you have to answer today is do you have enough substantial competent evidence sitting in your capacity of hearing this as it came back to you to agree with the position articulated by Mr. Acosta?
If you do not, then you don't make the predicate finding.
If you do, then you make the predicate finding, and we move onto the next stage.
>>SHAWN HARRISON: Do we also take into consideration all the other testimony we heard that it does not comply?
>>DAVID SMITH: Absolutely.
You need to take into account all the testimony that was presented.
You need to decide on the credibility, the expert level of the parties who provided that testimony and determine whether or not you think this project as contained in the settlement agreement complies with the guidelines established by the ordinance.
>>SHAWN HARRISON: Would someone remind me what those guidelines are?
>>JOHN DINGFELDER: They are in the book.
>>LINDA SAUL-SENA: The guidelines are scale, height, width, setback, vertical, orientation, site coverage.
Mr. Acosta handed all of us somewhere in this pile of stuff a whole page with all those things.
>>DAVID SMITH: It was in Mr. Acosta's presentation.
He's looking for that page now so we can put it on the Elmo.
>>JOHN DINGFELDER: Exhibit 3 in the notebook.
Exhibit 2 is actually the entire code.
David, whale they are looking, I want to get a clarification from you.
You threw around some numbers, some dollar numbers very loosely.
You said if we want to risk one or two million dollars, you know, that's our prerogative, that sort of thing.
A, I don't think there's been any evidence whatsoever as to the, you know, that ware at liability for attorney fees.
I think everybody always claims attorney fees, there's a potential for attorney fees.
I mean --
>>> just a potential.
>>JOHN DINGFELDER: Right.
It's just a potential.
And in terms of the amount, there's been no discovery whatsoever about what their fees have been and what our fees have been.
The other part I wanted to make, and I thought about this for awhile, is you provided me with a list of pending cases in your office, and I appreciate that.
That included 28 pending adult use cases, okay?
28 pending adult use cases.
And this city has had, you know, dozens and dozens of pending adult use cases over the years that often we litigate against Mr. Redner, he often wins, and we often pay him hundreds and hundreds of thousands of dollars.
I heard one time even more than that, in attorney fees.
And why is that?
It's because the City Council and the administration at the particular time, assumedly the community, believed that those were battles were fighting, and risks worth taking.
So that's my only point about this dollar risk.
Sometimes you take a risk for what you believe in.
I've got more comment but --.
>>GWEN MILLER: Mrs. Alvarez?
>>MARY ALVAREZ: Mr. Smith, I'm totally confused.
Because I thought that in the beginning the A.R.C. denied this.
>>DAVID SMITH: That's correct.
>>MARY ALVAREZ: And then they appealed to the City Council.
>>> That's correct.
>> And we denied it.
>>> That's correct.
>> We deny it based on compatibility.
I don't remember -- I don't remember other than that, I remember the massing and the building, I think there was just too much.
I don't remember talking about the height at the time.
Maybe it was mentioned.
But it was a compatibility issue for me.
When did Mr. Acosta say that it was okay?
>>> I think Mr. Acosta should answer that.
>>DEL ACOSTA: The project that was denied was different than what's before you this evening.
It's a different project.
It's low and high, it's fewer stories and it's set back more.
That's the truth.
>>DAVID SMITH: I can see you're excused.
Let me explain.
This is a settlement proposal.
This is a different project than the one you reviewed in your appellate capacity and found that you agreed with the A.R.C.'s denial.
This is rather than the 346 or 343 foot, 24-story building, with apparently inadequate set backing according to Mr. Acosta's analysis now, this 220-foot, 19-story building, which is set back more dramatically, in fact, complies with the mass and scale and density guidelines of the code.
That's what his testimony is.
It's your decision as a fact finder, as a quasi-judicial body to find that.
>> So why didn't it come back to City Council?
>>> It has come back because it is in litigation currently.
>> Why didn't --
>>> it has come back to City Council.
>> But as part of the litigation, not part of the rezoning part of it.
>>> No, there's no rezoning pending.
>> Not the rezoning, I'm sorry.
>>> I realize this is late and I know you were up at 4:30 with a sick husband.
But what happened was, this is coming back to you out of the litigation as a proposed settlement.
But you can't simply accept the settlement.
You have to also use your analysis of whether it complies with the ordinance.
It has to comply with the ordinance.
If it does you can settle the case.
If you think you have got substantial, competent evidence, to find it complies with the ordinance and you settle the case.
If you don't, you don't.
>>LINDA SAUL-SENA: Thank you for the explanation.
Could you please take that thing down?
>>DAVID SMITH: Sure.
>>LINDA SAUL-SENA: It seems to me that at this point is to degree what's before us is compatible or is not compatible.
Based on a variety of evidence that I've heard tonight, I would like to begin to create a record that what's presented is not compatible, based on the --.
>>JOHN DINGFELDER: Or move to close.
>>LINDA SAUL-SENA: Move to close the public hearing.
>>GWEN MILLER: Motion and second to close the public -- question on the motion.
>>MARTIN SHELBY: I want to be clear there's not a motion to reopen.
If there's any additional testimony that you wish to elicit before you discuss it.
>>JOHN DINGFELDER: I think wife heard enough.
>>LINDA SAUL-SENA: Wait, I have one little question.
And I'm sorry, this is a question for Cate O'Dowd, and that is the petitioner stated that height was simply and very simplistically dictated by the zoning administrator with no consideration of concerns of the A.R.C..
Is that correct?
>>CATHLEEN O'DOWD: We read all the code provisions together so we look at those portions of chapter 27 with regard to the zoning code that Gloria Moreda addressed, and that is I believe table 4-2 under section 27-77.
And that talks about the maximum restrictions permitted, and what the setbacks are for the different zoning regulations.
We also look at the code requirements, I believe it's 27-216, of the historic preservation ordinance, with respect to the A.R.C. and the design guidelines.
And when we are looking at the issue of scale for new construction, that is defined as height and width.
So that is an issue before the A.R.C. for its consideration.
>>LINDA SAUL-SENA: Thank you for that clarification.
>>GWEN MILLER: Motion and second to close the public hearing.
All in favor of the motion say Aye.
>>JOHN DINGFELDER: I'm going to make a motion to -- I guess -- I'm going to make a motion that this proposed project does not comply with the requirements of the ordinance.
>>JOHN DINGFELDER: It's going to be a little lengthy because I want it to be very, very clear on the record what the basis is.
For one thing, I believe there's been adequate due process through this seven-hour proceeding that we just had.
Every side had plenty of opportunity to speak.
Nobody stood and demanded more time.
I believe that there's been compelling, competent, substantial evidence in support of the decision that hopefully this board will make to deny.
It was mentioned very interestingly by Jen Roberts that the values of the community are really what we should be focusing on, but there's also the law to deal with.
But I would say that the values of the community are codified in chapter 27, and that this project does not meet the chapter 27 requirement.
The petitioner, or somebody said, you know, that we can't rely on -- when people say, not in my backyard, or I don't like it, or I don't want it, they are 100% correct.
The law does not allow that.
But instead the competent, substantial evidence that we heard tonight, okay, included three -- three professional engineers and somebody who works with an engineering firm, George Deakin, who said the project is out of scale, John Phillips, engineer, said the project is out of scale, Dennis Vann said it's inappropriate under our code, and Chris Pascucci who works for engineers said it's out of scale.
We heard from two architects.
They provided this model.
The model picture speaks 100 words.
Roger Grunke and Randy both opined that this proposal -- and both of them serve on historic boards or have served on historic boards, both of them oh bind and -- opined and said the proposed development does not meet chapter 27 criteria or the Hyde Park criteria.
In addition, we heard of the importance of historic preservation.
And retaining the integrity of the historic preservation ordinance and process.
We heard that via a letter from Mary Britain, the president of HPPI.
We heard from a letter from the national trust for historic preservation.
We heard from the Anna Thomas, the president of Tampa Preservation, Inc. And we heard from the Sam Gibbons, who is everything.
But seriously, has a phenomenonal historical perspective on this.
We heard Professor Ersis on regard to the value of the property next door.
We heard extremely valuable and thoughtful opinions of the residents of the historic district.
We heard valuable and thoughtful opinions from realtors and developers.
And, yeah, we heard from some attorneys, too.
No, they were valuable, too.
I'm just kidding. But in all seriousness, the -- we heard from Mr. Acosta, who had one opinion, okay?
We heard all these other opinions to the contrary.
We don't have to -- and our attorneys will tell us, and they tell us night after nature -- we don't have to necessarily accept the staff report of our esteemed professionals.
Often we do.
But sometimes we don't.
And in this case, with all due respect to Mr. Acosta and Mr. Snelling, and Ms. Moreda, I don't think we necessarily have to agree with them.
We have heard from many other competent professionals to the contrary.
The only postulation was the gentleman who spoke about the view corridor for Bayshore Royal as much as we might want to protect their view corridor that testimony went nowhere as far as I'm concerned, because that's not the law. The law doesn't allow us to protect the view corridor for any property including the Bayshore Royal.
So that testimony from my perspective is moot.
The last thing I wanted to say was, one of the most compelling testimony always comes from one of the nice ladies who testify, and the woman who showed her house and her garage.
And what struck me in my mind on her testimony really says that the petitioner says we demand equal protection.
But what that woman said was that the residents of the historic district deserve equal protection, and in this case equal protection to be protected from projects like this which are not compatible with the historic district.
That's my motion.
>>GWEN MILLER: Mrs. Saul-Sena.
>>LINDA SAUL-SENA: Thank you.
To add to the conversation, several of the buzz words brought out the need -- that need to be supported to the idea of any new development blending with the surrounding residents and being in harmony in terms of the rhythm, the massing, scaling, and height.
And what we saw and what we heard and what we know in the proposal was not in harmony with the surrounding residences, did not blend, was not compatible, and based on that I would also support the motion.
>>ROSE FERLITA: Madam Chairman, thank you.
I don't think we all need to recant what you recounted to us in the last seven hours and in some cases often by our staff and our attorneys we are warned not to get caught up in an emotional reaction from a neighborhood.
We don't want this project there because we don't like it in our neighborhood.
We just don't want it.
Well, I think we have gone long and hard beyond that in terms of all kind of reasons or substantial, competent evidence.
We talked about on a scale and appropriate historic district, et cetera, et cetera, et cetera.
There have been many compelling reasons.
One particularly that I was making a notation of was one Ms. Johnson who came up and gave a very compelling reasons why this was not in compliance was when she was talking about the potential of this council perhaps violating Tampa comprehensive plan.
The city shall develop generalized guidelines for the visual qualities in the district, for example, height, scale, orientation, site coverage, setback and/or exterior features.
If we went along and said that this complied with the ordinance, we would violate that.
Don't think we should.
I don't think we can.
And obviously I am wholeheartedly in support plaintiff Dingfelder's motion for many reasons.
>>GWEN MILLER: Other comments from council members?
>>MARY ALVAREZ: I just have to add to this, because I don't like to be put in the position that we were put in today.
This is ridiculous.
And to the developers, if anybody -- I mean, you've got a full house here saying that they don't want you there.
Please, do them a favor, get out of there.
It's not a compatible project.
You've got a beautiful house next door that's two stories.
And then you have got a ten-story building behind you.
What else do you want?
You have got a historic neighborhood.
They just don't want you.
And if I were you, I'd get out.
>>GWEN MILLER: I have a motion and second on the floor.
All in favor of the motion say Aye.
[Motion Carried Unanimously]
>> JOHN DINGFELDER: Move to receive and file all documents.
>>GWEN MILLER: Anything else coming before council?
>>GWEN MILLER: We stand adjourned.
(Meeting adjourned at 1:18 a.m.)