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10:50:26 Tampa City Council
10:50:27 Thursday, January 15, 2009
10:50:35 10 a.m. Special Session
10:54:28 [Sounding gavel]
10:54:29 >>THOMAS SCOTT: Tampa City Council will now come to
10:54:30 order.
10:54:30 Roll call.
10:54:31 >>GWEN MILLER: Here.
10:54:34 >>LINDA SAUL-SENA: Here.
10:54:35 >>JOSEPH P. CAETANO: Here.
10:54:37 >>MARY MULHERN: Here.
10:54:38 >>THOMAS SCOTT: Here.
10:54:40 Councilman Dingfelder is --
10:54:51 >>GWEN MILLER: Yes.
10:54:53 >>MARTIN SHELBY: For the purposes of the record, Mr.
10:54:55 Fletcher, do you intend to address items 1 and 2 at
10:54:58 this time?
10:54:59 >>CHARLES FLETCHER: At this point I was going to
10:55:01 explain to you what procedurally we have before the
10:55:03 council today, and then speak to item number 1, and

10:55:06 then after conclusion of item number 1, including the
10:55:10 closing of that public hearing, we would then move on
10:55:12 to item number 2 and Julia Cole would handle that
10:55:16 item.
10:55:18 Then, Mr. Chairman, I would ask with regard to item
10:55:20 number 1 there be a motion to open the public hearing.
10:55:24 >>GWEN MILLER: So moved.
10:55:26 >>JOSEPH P. CAETANO: Second.
10:55:26 (Motion carried).
10:55:32 >>MARTIN SHELBY: Secondly, council, I would ask that
10:55:34 all information and e-mails and written material that
10:55:36 have been available for public inspection in City
10:55:39 Council offices be received and filed at this time by
10:55:42 motion.
10:55:42 >>GWEN MILLER: So moved.
10:55:44 >>LINDA SAUL-SENA: Second.
10:55:45 >>THOMAS SCOTT: All in favor signify by saying Aye.
10:55:47 Opposes?
10:55:49 >>MARTIN SHELBY: Thirdly, I would suggest, council,
10:55:50 that you disclose any ex parte communications if any
10:55:55 occurred relating to this matter.
10:55:58 Finally, Mr. Chairman, I would ask that this being a

10:56:01 nonquasi-judicial proceeding, there is no need to
10:56:04 swear in the witnesses.
10:56:05 There will be on item number 2 when that comes up.
10:56:08 Thank you, Mr. Fletcher.
10:56:09 I'm sorry to interrupt.
10:56:11 >>CHARLES FLETCHER: Thank you, Mr. Chairman.
10:56:14 Chip Fletcher, city attorney.
10:56:16 We are here on two items, small-scale comprehensive
10:56:21 plan amendment and an associated rezoning.
10:56:24 The comp plan amendment is file PA-05-31 and is item 1
10:56:30 on your agenda.
10:56:31 The rezoning is item 2, file number Z-07-94.
10:56:38 These items are both related to and the result of some
10:56:43 extensive litigation that the city has been involved
10:56:46 with defending the council's prior denial of these two
10:56:52 actions that was in Hillsborough County circuit court
10:56:57 civil division, case style Angela Montanaro versus
10:57:04 City of Tampa, Case No. 06-CA-004281.
10:57:11 I will be addressing here, as Mr. Shelby indicated in
10:57:16 opening the public hearing, item 1, the small scale
10:57:19 comprehensive plan amendment, file PA-05-31.
10:57:29 In the order from the circuit court judge in the

10:57:37 matter that I previously referenced, the court ordered
10:57:41 that the city -- this is on page 2 of the order which
10:57:45 I believe -- did you wish to have those distributed?
10:57:50 >> If you would, please, Marty, if they have not been
10:57:53 distributed already.
10:57:54 >> Copy to the clerk?
10:57:58 >> Yes.
10:58:00 >> Just Ford record the circuit court judge in that
10:58:09 case granted the plaintiff's petition for declaratory
10:58:16 judgment, and page 2, items B and C, ordered that the
10:58:21 city, the proposed amendment to Tampa comprehensive
10:58:26 plan from res 6 to CMU 35 is valid and should be
10:58:33 granted, and city must accept process and issue,
10:58:38 whatever resolutions, ordinances and other documents
10:58:41 are necessary for the approval of the proposed
10:58:44 amendment to the Tampa comprehensive plan, from res 6
10:58:49 to CMU 35 for the subject property on an expedited
10:58:55 basis.
10:58:57 That's why we are here before you today.
10:58:59 Our recommendation is that the council comply with the
10:59:04 court order and take action approving that
10:59:09 comprehensive plan amendment as proposed before you in

10:59:11 item number 1.
10:59:12 >>THOMAS SCOTT: Thank you.
10:59:18 >> We would entertain a motion at this point.
10:59:24 I don't know that any additional evidence on the
10:59:27 record is necessary.
10:59:27 >>MARTIN SHELBY: Well, it is a public hearing.
10:59:31 Did you want to take comments from the public?
10:59:34 >> Yes.
10:59:35 >>MARTIN SHELBY: And the first point is whether the
10:59:37 petitioner wishes to make a presentation in advance on
10:59:40 item number 1.
10:59:44 >>> Graham Carothers, 101 East Kennedy Boulevard here
10:59:48 in Tampa on behalf of the plaintiff, petitioner in the
10:59:52 case, which Mr. Fletcher was referring and the
10:59:54 petitioner here today.
10:59:56 Just one very quick comment.
10:59:58 In addition to the language that Mr. Fletcher read
11:00:00 into the record, I would also like the record to
11:00:02 reflect the sentence which immediately follows that,
11:00:07 which I'll read into the record now.
11:00:08 In addition, a mandatory injunction is issued in favor
11:00:11 of plaintiff and against defendant requiring the

11:00:13 defendant to accept the proposed amendment to the
11:00:15 Tampa comprehensive plan from res 6 to CMU 35 and
11:00:19 process documentation on an expedited basis.
11:00:24 That's all I have.
11:00:32 >>MARTIN SHELBY: Anybody from the public.
11:00:35 >>THOMAS SCOTT: Anyone from the public that wishes to
11:00:37 come forward at this time, you have three minutes.
11:00:39 State your name and address for the record.
11:00:41 Anyone wishing to address council may come forward.
11:00:51 >>> Hi.
11:00:52 I'm Joanne McNabb, a resident of Palma Ceia west
11:00:58 neighborhood and also a member of the Palma Ceia west
11:01:03 neighborhood association.
11:01:05 And it appears some of this is a done deal, so I'm
11:01:12 collecting my thoughts a little bit here.
11:01:15 We are kind of an unusual neighborhood.
11:01:16 We are bordered all the way around by a busy streets,
11:01:23 and we have Dale Mabry, we have Henderson, Manhattan,
11:01:27 Lois, we have church.
11:01:31 We like our proximity to businesses or we wouldn't be
11:01:34 there.
11:01:34 I have been there over 30 years.

11:01:37 This particular piece of property, I took some
11:01:43 pictures yesterday, and I would like to show you so
11:01:46 you know what we are talking about, and for the record
11:01:50 I'm a little concerned about the fact that maybe
11:01:54 council members wouldn't go out and get involved and
11:01:57 look at some of these.
11:01:59 That's kind of way thought I heard from the previous
11:02:03 discussion.
11:02:08 This is the property.
11:02:11 And from Estrella, looking north from Estrella.
11:02:15 You can see there is a house with some vehicles parked
11:02:19 there that have been there for quite long.
11:02:21 On the left side of the picture, as I'm looking at it,
11:02:25 you see it looks like a driveway or alley or street.
11:02:30 And there is cement block wall, which my understanding
11:02:36 the neighbor to the west constructed, because of
11:02:40 problems with patrons from some of the bars on the
11:02:45 strip mall at Dale Mabry that were drunk, driving
11:02:51 through their property.
11:02:59 And that's just another picture of that drive and the
11:03:07 sign that says private drive, which I believe the
11:03:09 owner has a right to do that.

11:03:12 We have some concerns that there are three very nice
11:03:21 size oak trees.
11:03:22 That's one right on the front on the side of Estrella.
11:03:26 There's also the one in the previous picture I showed
11:03:28 you right in front of the house.
11:03:39 Some views.
11:03:40 That's from the north.
11:03:43 I have to look over a wall because I couldn't walk
11:03:46 down that alley.
11:03:47 And that car that's parked there is the back of a
11:03:52 commercial property on Dale Mabry.
11:03:55 The cars can come in off Dale Mabry and park there.
11:03:59 And they must be allowed to drive down that alley -- I
11:04:04 call it an alley but that may not be the correct term,
11:04:08 and exit on Estrella.
11:04:11 Because I saw that happen when I was there yesterday,
11:04:13 two times.
11:04:14 And that may be an agreement and that may be fine.
11:04:17 I'm just telling you what the layout is.
11:04:21 And that is the entrance to --
11:04:27 (Bell sounds)
11:04:27 Is that my time?

11:04:28 That is the entrance.
11:04:30 My main concern is, we are always concerned westbound
11:04:36 transitioning into our neighborhood.
11:04:38 And just how it transitions is very important.
11:04:44 That piece of property is not right adjacent to the
11:04:46 commercial property.
11:04:48 There is a vacant piece of property between the two.
11:04:51 So in the consideration that they should be identified
11:04:55 with the commercial property rather than the
11:04:58 residential property, there's a vacant piece of
11:05:01 property in between.
11:05:02 And we don't know what's happening with that.
11:05:05 So they are a little closer to the residential than
11:05:09 they are the other.
11:05:11 There's other speakers.
11:05:12 >>THOMAS SCOTT: Thank you very much.
11:05:14 Anyone else from the public wish to address council?
11:05:22 >>> Good morning.
11:05:22 My name is Karen gay.
11:05:24 I live at 3916 San Nicholas street.
11:05:27 I have been in front of you before for different
11:05:29 issues.

11:05:31 I'm secretary of the board of the Palma Ceia west
11:05:34 neighborhood association.
11:05:36 I have a letter here from our president opposing this.
11:05:42 If you do not have it as part of your package.
11:05:44 I want to go on the record for saying, many times, we
11:05:48 have met with businesses.
11:05:49 We have met with Publix, Bank of America, Citrus Bank.
11:05:53 They have all come to our board meetings, expressed
11:05:56 what they want to do.
11:05:57 We have compromised.
11:06:00 We have been very good neighbors for all the
11:06:03 businesses that surround us.
11:06:05 They are important to us.
11:06:07 This petitioner came to one board meeting, I think
11:06:11 three years ago, and we were willing to compromise.
11:06:14 We don't have a problem with offices, to have a gentle
11:06:19 transition from strictly commercial to residential.
11:06:22 Something very low key that doesn't have a lot of
11:06:25 traffic.
11:06:27 Last year they were offered that.
11:06:29 They turned it down.
11:06:30 We are really concerned about multi-units being there.

11:06:34 A lot of parking, apartments.
11:06:37 That concerns us.
11:06:38 We really don't want that in our neighborhood.
11:06:40 We voted against it for years.
11:06:45 So that's all I have to say.
11:06:46 Thank you for hearing me.
11:06:47 >>MARTIN SHELBY: May I ask, the letter you are
11:06:50 referring to, is that from Juan Hernandez dated
11:06:53 January 12th?
11:06:54 >>> Yes.
11:06:55 >>MARTIN SHELBY: That is in the file, been received
11:06:57 and filed.
11:06:58 >>> Thank you very much.
11:06:59 I want to introduce an attorney that was representing
11:07:01 our district.
11:07:06 >>> Deborah Martohue, Martohue Land Use Law Group,
11:07:15 2429 Central Avenue, St. Petersburg. Sorry for the
11:07:24 last minute.
11:07:24 I tried to e-mail the assistant city attorney last
11:07:27 night and Mr. Carothers.
11:07:28 I was just retained last evening.
11:07:32 And while I realize there's been extensive legal and

11:07:36 political history on this project, I do respect the
11:07:38 city attorney's position on the comprehensive plan,
11:07:42 and it seems unusual that the circuit court has left
11:07:46 very little room for discretion with the City Council
11:07:50 this morning on that case.
11:07:51 However, I believe the rezoning matter that will be
11:07:54 the next issue on the agenda is a little bit
11:07:58 different, and I will be speaking representing the
11:08:03 association in that case as well, and on a very short
11:08:08 basis trying to support some of staff's findings of
11:08:13 inconsistency.
11:08:15 So I just want to let you know I'm here.
11:08:17 I apologize that it is such short notice.
11:08:20 But the council at some point feels either on this
11:08:25 comprehensive plan that they need some time, or they
11:08:27 need time on the rezoning.
11:08:29 Please continue it and allow all of the parties to
11:08:33 discuss how to best handle this case.
11:08:36 Thank you.
11:08:38 >>THOMAS SCOTT: Thank you.
11:08:46 Anyone else from the public?
11:08:47 >>GWEN MILLER: Move to close the public hearing.

11:08:53 >>THOMAS SCOTT: Does petitioner want to add anything
11:08:54 else?
11:08:55 >>> I have nothing more to add, I think.
11:08:57 Most of the comment deal with the rezoning anyway.
11:09:00 I would like the record to reflect that neither Ms.
11:09:05 McNabb nor Ms. Gay contacted me before this hearing
11:09:09 and shortly before 10:00 last night.
11:09:13 >>THOMAS SCOTT: Any additional questions by council?
11:09:15 Okay.
11:09:18 >>MARTIN SHELBY: Mr. Fletch per, did you want to
11:09:20 address anything for council relative to the testimony
11:09:22 that's been offered?
11:09:23 Or the comments that have been offered?
11:09:29 >>> Primarily, I feel if we were in a different
11:09:32 procedural posture they would probably be relevant but
11:09:35 here today where we have a mandatory injunction and
11:09:37 order from the court, I don't feel that really it's
11:09:40 appropriate for the council to entertain those issues
11:09:44 at this point.
11:09:46 And our recommendation as I made previously was to
11:09:49 honor the court's order and go ahead and adopt the
11:09:53 comprehensive plan amendment.

11:09:54 >>THOMAS SCOTT: Thank you.
11:09:57 Councilwoman Mulhern.
11:09:59 >>MARY MULHERN: I have a question.
11:10:00 I'm sorry this didn't occur to me yesterday when I
11:10:03 spoke with you and Mr. Shelby.
11:10:06 But were there previous times where this situation
11:10:13 came up where circuit court judge directed this City
11:10:21 Council to vote a certain way on the land use change?
11:10:34 >>> There are two proposal opportunities for these
11:10:35 types of issues to be reviewed.
11:10:37 One is administrative proceeding under chapter 163,
11:10:40 and one is the avenue that was chosen here to go to
11:10:43 circuit court.
11:10:50 In my view under both of those scenarios, the judge,
11:10:56 administrative law judge, or the circuit court judge,
11:10:59 does have the authority under limited circumstances to
11:11:04 order those plan amendments be adopted.
11:11:08 It's explicit in statute in chapter 163.
11:11:12 There's case law in this regard.
11:11:15 It is somewhat unusual for it to be written as
11:11:18 strongly as it is here, and that a mandatory
11:11:22 injunction be issued on an expedited basis.

11:11:25 But we have reviewed that, and we think at this point
11:11:29 it would be essentially ministerial act.
11:11:34 >>MARY MULHERN: Is the city continuing to appeal this?
11:11:39 >>> We do have an appeal pending on this issue that we
11:11:42 could pursue if need be, but we believe that in my
11:11:48 judgment this is the appropriate course of action at
11:11:51 this time.
11:11:54 >>MARY MULHERN: I don't know if this is a question for
11:11:57 you, but before you came on as city attorney there was
11:12:05 a question at one point about how we define "the city"
11:12:12 and I'm not sure how that was resolved.
11:12:14 But our former city attorney seemed to feel the
11:12:21 administration was the city and the defendant in any
11:12:24 case, and as the legislative branch, this is
11:12:34 questioning a ruling on a decision that we voted on.
11:12:38 And I guess what I would like from you is a commitment
11:12:46 going forward, the City Council is treated as an equal
11:12:55 partner when at any time that there's any kind of
11:12:58 action against the city.
11:13:06 Because frankly I don't feel very comfortable in my
11:13:09 time on council that we have that.
11:13:10 And I'm hoping that you are going to tell us today

11:13:13 that going forward, council becomes an equal client to
11:13:21 our administration.
11:13:21 >>CHARLES FLETCHER: Well, there's a number of
11:13:28 different questions in there.
11:13:29 Let me start by saying that I view you all as my
11:13:32 client, our department views you all as our client.
11:13:36 I think under the charter that's accurate and we have
11:13:38 done quite frankly I think the best to defend the
11:13:41 position that council is taking on this issue.
11:13:44 And it obviously didn't go as we advocated for in
11:13:50 court and we talked about this both in closed session
11:13:52 and with a number of members privately as to how we
11:13:56 got to this point.
11:13:59 And we will be proposing to you at some point in the
11:14:03 future a series of procedural changes to minimize the
11:14:09 opportunities for things like this to happen again.
11:14:13 Which I think is important.
11:14:18 I believe that we did defend this vigorously, and I
11:14:21 think we did our level best to prevail on it.
11:14:24 It turned out to be a very difficult case.
11:14:29 In my judgment at this point, I think partly because
11:14:34 of the other counts that we also lost on that aren't

11:14:38 really at issue here today, I believe the prudent
11:14:41 action is to move forward and adopt this to honor the
11:14:47 court's order on this issue, on this particular count,
11:14:50 which is count one from the complaint by the property
11:14:53 owner.
11:14:57 I can give you an example of the situation where we
11:14:59 have appealed, W when an appeal was tossed that we
11:15:03 actually got back an appellate decision which was more
11:15:06 onerous than what we started with, which would be the
11:15:09 Citivest case.
11:15:10 So I think that the prudent course of action here is
11:15:12 to go ahead and adopt this amendment and resolve the
11:15:20 rezoning and comprehensive plan issues from litigation
11:15:26 and then we can deal with the rest of it subsequently.
11:15:29 But really here we have got two issues that the court
11:15:31 plan was both procedural and from my view a
11:15:37 substantive process issue and procedural issues which
11:15:39 is somewhat unusual for a court to make those
11:15:43 findings.
11:15:44 So I think it partly a factual situation here which
11:15:47 put us into this unusual situation of having these
11:15:51 direct orders from the court which are not your

11:15:58 typical resolution of a land use matter.
11:16:10 I may have missed one of your questions in there.
11:16:12 >>MARY MULHERN: Thank you.
11:16:13 >>THOMAS SCOTT: Motion to close.
11:16:14 Second?
11:16:16 >> Second.
11:16:17 (Motion carried)
11:16:22 Muscle
11:16:24 >>LINDA SAUL-SENA: I think all my colleagues share my
11:16:27 discomfort with the posture we have been put in but we
11:16:29 are told this is a mandatory injunction and we need to
11:16:32 adopt this, and we have very little room for
11:16:34 discretion, and I apologize to the neighbors, but I
11:16:39 will move this for adoption.
11:16:40 >> Second.
11:16:45 >> Read the title of the ordinance.
11:16:47 >>CHARLIE MIRANDA: I am going to read this.
11:16:49 I'm not a miserable person to think of something like
11:16:52 this.
11:16:52 We did wrong.
11:16:53 In the eyes of the court.
11:16:55 When a judge hands out an order, in essence says you

11:17:01 have got to do it or you are going to be held
11:17:03 responsible for your own actions.
11:17:05 >>THOMAS SCOTT: Right.
11:17:07 >>CHARLIE MIRANDA: You have got to face the realities
11:17:11 of facts, that this is not the only case coming down
11:17:15 the pike because of this.
11:17:16 >>THOMAS SCOTT: Right.
11:17:17 >>CHARLIE MIRANDA: There's others.
11:17:21 When we try to do contract zoning, in view of my
11:17:25 support for the neighborhoods -- and I love them
11:17:27 all -- and we try to do contract zoning, the general
11:17:31 taxpayers are going to pay the brunt of the action.
11:17:33 And this is one of some others that are coming, and
11:17:39 there might be a lot more coming because of the
11:17:42 sidewalk ordinance.
11:17:43 The way it's written.
11:17:44 So I'm going to read this ordinance.
11:17:46 >>THOMAS SCOTT: Before you read it, councilman
11:17:49 Miranda, let me also say to those from the community,
11:17:53 from the civic association, all of that, what you have
11:17:55 to understand is this is a court order, court order,
11:17:59 and if we don't move forward, it is my understanding

11:18:01 we could become personally liable.
11:18:03 So while we may not agree, you have to understand the
11:18:09 position that we are in.
11:18:10 We have to move forward.
11:18:11 So with that being said, Mr. Miranda, please.
11:18:14 >>CHARLIE MIRANDA: Thank you, Mr. Chairman.
11:18:16 Move an ordinance for first reading, item number 1.
11:18:20 An ordinance amending the Tampa comprehensive plan,
11:18:22 future land use element, future land use map, for the
11:18:28 property located at 3809 west Estrella street, from
11:18:34 residential 6 to community mixed use 35, providing for
11:18:39 repeal of all ordinances in conflict, providing for
11:18:43 severability, providing an effective date.
11:18:45 I don't have the ordinance.
11:18:46 I'm reading from the document.
11:18:48 So I hope that's word for word.
11:18:52 >>THOMAS SCOTT: We have a motion.
11:18:55 Seconded by Saul-Sena?
11:18:59 >>MARTIN SHELBY: Actually, I believe the motion was by
11:19:02 Councilwoman Saul-Sena.
11:19:03 Who was it seconded by?
11:19:05 >> Mr. Caetano.

11:19:06 >>MARTIN SHELBY: It was read by Mr. Miranda but the
11:19:11 motion stands as the way it was made.
11:19:13 >>THOMAS SCOTT: That's all right.
11:19:15 All in favor signify by saying Aye.
11:19:17 Opposed?
11:19:20 >>THE CLERK: Mulhern voting no. Motion carried with
11:19:23 Dingfelder being absent.
11:19:24 Second reading and adoption will be on January
11:19:26 29th at 9:30 in the morning.
11:19:33 >>CHARLIE MIRANDA: Move to reopen public hearing item
11:19:36 number 2.
11:19:39 >>THOMAS SCOTT: Second?
11:19:40 Do we have a second?
11:19:41 >> Second.
11:19:41 (Motion carried).
11:19:43 >>THOMAS SCOTT: Witnesses have to be sworn.
11:19:45 So those that are going to address council, will you
11:19:47 stand, please, and be sworn at this time?
11:19:49 (Oath administered by Clerk)
11:20:02 >>JULIA COLE: Legal department.
11:20:03 As Mr. Fletcher indicated, this is the second part of
11:20:07 the court order which came back to you, and this one

11:20:12 is particularly as a court order, and I am going to
11:20:15 read the case, and you do have this in front of you,
11:20:17 was from Angela Montanaro, and the court as issued an
11:20:30 order issuing Mrs. Montanaro's writ of certiorari and
11:20:37 issuing the writ.
11:20:38 As you may recall this is rezoning Z 07-94 and this
11:20:42 came in front of you and Abbye Feeley is going to
11:20:45 describe the case in whole but the posture is it is
11:20:48 remanded back to you, from the court, after issuing
11:20:51 the writ of certiorari, the court specifically found
11:20:56 in denying the original rezoning petition that the
11:20:59 City Council failed to comply with the essential
11:21:02 requirements of the law, failed the basic decision on
11:21:06 competent substantial evidence, and failed to grant
11:21:09 due process.
11:21:12 What the court did is issued the order and reversed
11:21:14 and quashed the previous decision of City Council, and
11:21:18 that was rezoning was from RS-75 to a planned
11:21:23 development district.
11:21:23 In taking that option, any writ of certiorari, since
11:21:29 the court looks at a record as a whole and the
11:21:31 evidence placed in the record at the time and came to

11:21:34 the conclusion that in essence we failed to do the
11:21:37 things we needed to do as a city.
11:21:38 It's back in fronts of you.
11:21:40 You will need to consider it from the previous record
11:21:43 and from what Ms. Feeley is going to indicate to you.
11:21:47 You may recall that there were a number of technical
11:21:50 objections within the rezoning.
11:21:54 Now that you have had the determination made on the
11:21:56 comprehensive plan amendment, any objection to the
11:21:59 rezoning as it being inconsistent with the
11:22:02 comprehensive plan will have been resolved, and the
11:22:04 only issues in front of you are the technical
11:22:07 objections.
11:22:07 However, as we do in any rezoning, if there are
11:22:11 technical objections resolved which in this
11:22:13 instance -- and Ms. Feeley will explain -- they are
11:22:17 going to be resolved between first and second reading.
11:22:19 It is the legal department's recommendation that you
11:22:21 go ahead, given the court order and given the fact
11:22:23 that the technical objections are being resolved,
11:22:26 again as they would through any other rezoning, that
11:22:29 you go ahead and approve the rezoning.

11:22:31 >>LINDA SAUL-SENA: I have a question.
11:22:34 Do we have any discretion?
11:22:37 >>> You have a very broad court order in this matter.
11:22:40 You have the CMU 35 which has now been placed on our
11:22:47 property for your previous vote.
11:22:49 As Ms. Feeley is going to explain to you in the nature
11:22:52 of the rezoning that's in front of you, it's a PD to
11:22:55 allow two specific types of uses, and it is those --
11:23:02 those uses are wholly contained within a CMU 35
11:23:05 allowability so long as the technical objections have
11:23:08 been met, it really does place knew a position where
11:23:10 there wouldn't be a lot of evidence in this record as
11:23:12 was set forth below, or unless there's any
11:23:15 catastrophically new evidence, which I don't believe
11:23:18 there will be, that you can make a decision other than
11:23:21 to approve.
11:23:23 >>LINDA SAUL-SENA: The question I meant specifically
11:23:25 is, for example, there's some significant trees on the
11:23:28 site.
11:23:28 Can we specifically protect those trees?
11:23:31 >>> Per our chapter 13 they would have to protect
11:23:34 those trees, and that's not something they are seeking

11:23:37 waivers from.
11:23:38 As in any other rezoning, that issue comes up.
11:23:41 It's difficult to deny any type of rezoning because
11:23:43 there's trees on-site.
11:23:44 If there are mechanisms under our chapter 13 to
11:23:47 protect those trees.
11:23:49 And so from just a general development standpoint,
11:23:55 chapter 13 can be met and that can be dealt with the
11:23:57 site plan, that wouldn't be a valid basis to deny the
11:24:00 rezoning.
11:24:02 I am going to ask Ms. Feeley to come up and go through
11:24:05 the site plan again.
11:24:06 This is the same plan that was in front of you
11:24:09 previously, go through the technical objections as she
11:24:11 would in any other instance and let you know the
11:24:13 result of it.
11:24:14 Mr. Garcia from the Planning Commission is here and he
11:24:16 will reiterate his position as it related to the
11:24:19 rezoning from the first hearing.
11:24:21 Thank you.
11:24:38 THE WITNESS: Is there an extra copy?
11:24:41 Thank you.

11:24:42 >>ABBYE FEELEY: Land Development Coordination.
11:24:46 I have been sworn.
11:24:47 The case before you this morning is Z 07-94.
11:24:51 It is located at 3009 -- 3809 Estrella street.
11:24:58 Petitioner is requesting to rezone from RS-75
11:25:03 single-family residential zoning district to PD
11:25:06 planned development for professional business office,
11:25:09 retail, lawn and garden.
11:25:13 The following waivers are applicable to both
11:25:17 development scenarios.
11:25:18 Section 27-242 to reduce the number of required
11:25:21 parking spaces from 12 to 10 for development scenario
11:25:26 1 and 12 to 9 for development scenario 2 and section
11:25:30 27-246-A to reduce the required thrive aisle from 20
11:25:35 feet to 15 feet and that is for that 15-foot easement
11:25:38 on the west side of the property that allows access
11:25:41 onto the property, which was referenced by public
11:25:45 member just a few minutes ago.
11:25:48 Let me go ahead and familiarize you with the site and
11:25:50 then we'll talk a little bit about the recommendation
11:25:53 and the outstanding technical objections.
11:26:06 This is Estrella to the south.

11:26:07 Church to the west.
11:26:09 Dale Mabry to the east.
11:26:10 Neptune to the north.
11:26:12 Many of you are familiar with this area of the city.
11:26:23 Just to the north of the property.
11:26:25 Let me show you the aerial.
11:26:29 The property is shown in green.
11:26:42 Standing on Estrella to the north.
11:26:44 This tree has been retained in both development
11:26:46 scenarios.
11:26:48 Moving west on the property, this is the access, the
11:26:55 waiver that's just described.
11:26:56 6-foot masonry wall.
11:27:00 That's residential property, further to the west.
11:27:04 Here is that property I just mentioned.
11:27:07 Moving east from the subject site, there is vacant
11:27:11 property, parking.
11:27:15 This is moving further east toward Dale Mabry.
11:27:18 This is a view looking toward Dale Mabry.
11:27:21 On the south side of Estrella, immediately across from
11:27:25 the property, is Colonial Bank parking lot.
11:27:31 Moving west, single-family residential homes.

11:27:45 And to familiarize you with the intersection, Dale
11:27:51 Mabry and Estrella looking north and south.
11:27:57 The two development scenarios being proposed, the
11:27:59 first is for a 3500 square foot office building with a
11:28:03 maximum height of 30 feet.
11:28:06 The site setbacks include 25-foot fence, 25.5 west,
11:28:10 10-foot east and 43-foot rear.
11:28:13 It is requiring 12 spaces and 10 spaces are being
11:28:17 provided.
11:28:18 A second scenario retains the existing 975 square foot
11:28:22 single-family residential home, and also adds a 2025
11:28:28 square foot building with a maximum height of 30 feet.
11:28:32 Setbacks for that scenario are 20-foot fence, 25.5
11:28:36 west, 10-foot east, 8-foot rear.
11:28:41 There are several large trees on the site including a
11:28:43 35-inch grand oak, a 30-inch live oak, 26-inch live
11:28:47 oak and 25-inch Laurel oak.
11:29:02 On the revision sheet, the site plan needs to be to
11:29:04 scale.
11:29:04 The site plan currently is not scaling.
11:29:06 It's a 1 to 20 scale as indicated on the plan.
11:29:10 The second is they need to show the location of a

11:29:13 potential outside display area associated with the
11:29:16 lawn and garden use.
11:29:18 The third is to revise the parking waivers, as I
11:29:21 stated to you, for the first from 12 to 10 for
11:29:24 development scenario 1, and from 12 to 9 for
11:29:28 development scenario 2.
11:29:30 The third is to revise the parking calculation.
11:29:34 And then as you can see bullet number 5 on the
11:29:37 revision sheet speak to a number of corrections that
11:29:39 are associated with the labeling of trees, the tree
11:29:42 table, and requested revisions in association with
11:29:45 that.
11:29:46 Moving down they have some solid waste issues.
11:29:52 In relationship to scenario 1, solid waste has it
11:30:01 curbside.
11:30:01 Solid waste is asking that dumpster visualization be
11:30:05 removed and that a notation be added related to
11:30:08 curbside.
11:30:11 If you refer to that scenario you will also see the
11:30:13 refuse part has been shown on that as well.
11:30:15 So that was probably just an oversight and was
11:30:20 retained.

11:30:22 Scenario revision 2, I have provided a visual that was
11:30:29 provided by solid waste. in order for solid waste to
11:30:32 access the dumpster and be able to maneuver on-site to
11:30:38 access the dumpster, provide service and liens, there
11:30:44 are some changes that need to be made.
11:30:46 That's why this space will need to be removed, the
11:30:49 handicapped shifted over, power pole to be relocated,
11:30:54 and they need some notations added on the plan in
11:30:58 relationship to that.
11:30:59 Staff has discussed -- I'm sorry, Ms. Cole has
11:31:02 discussed these revisions with petitioner.
11:31:04 Petitioner is aware, and has acknowledged that these
11:31:07 changes would be made in between first and second
11:31:10 reading.
11:31:11 The last was a note that needed to be added for
11:31:13 stormwater, the developer will retain the 50 year
11:31:17 storm with no credit for any existing impervious.
11:31:20 Staff is available for any questions.
11:31:27 >>LINDA SAUL-SENA: Is there any indication on the site
11:31:29 plan about signage?
11:31:30 >>> I believe there's a note of compliance for 20.5
11:31:34 for signage.

11:31:36 They would be allowed a wall sign and a free-standing
11:31:39 sign, yes.
11:31:40 >> Pole sign or monument sign?
11:31:42 >>> A ground sign.
11:31:45 >>GWEN MILLER: Questions?
11:31:47 Planning Commission.
11:31:53 >>TONY GARCIA: Planning Commission staff.
11:31:54 I have been sworn in.
11:31:56 Just a couple of additional comments to add on to Ms.
11:31:58 Feeley's comments.
11:32:00 First of all Planning Commission still maintains its
11:32:03 original finding of consistency with the comprehensive
11:32:05 plan.
11:32:05 But going into the intended purpose of the CMU 35
11:32:08 category, being that the applicant is proposing a PD
11:32:13 to come into consideration before this body this
11:32:16 morning, the PD is a site plan controlled district,
11:32:20 the applicant could have come in with CMU 35 being
11:32:22 approved for CG Euclidean zoning district which allows
11:32:25 a variety of other uses much more intensive than what
11:32:28 is being proposed.
11:32:29 There are only two uses that are being proposed for

11:32:33 use on this site as proposed this morning.
11:32:37 Two specific uses.
11:32:38 If there are any other uses that they would want to do
11:32:40 on this site they would have to come in for another
11:32:43 rezoning so there are protections, A, having the site
11:32:46 plan controlled district where you have a site plan,
11:32:48 where you can exercise some specific controls, and,
11:32:50 two, only two uses that are allowed.
11:32:53 Under the CG, which would be allowed under also the
11:32:56 PD, there are a variety of other uses such as a
11:32:59 drive-through bank, or a fast food restaurant, that
11:33:03 could be allowed also with the drive-through.
11:33:06 A variety of automotive uses.
11:33:08 So a lot of other uses that would be potentially much
11:33:10 more adverse as far as impacting the residential
11:33:13 character of the neighborhood that lies directly to
11:33:14 the west of the site.
11:33:20 >>THOMAS SCOTT: Questions?
11:33:21 Thank you, sir.
11:33:22 Petitioner?
11:33:24 >>>
11:33:36 >>THOMAS SCOTT: State your name for the record.

11:33:39 You have 15 minutes.
11:33:40 >>> Graham Carothers, here on behalf of the applicant.
11:33:45 Also joining me today is my client Mr. Montanaro,
11:33:52 Ethel Hammer who will be providing the report and
11:33:55 testimony as a professional planner, as well as one of
11:33:56 my colleagues and partners, Tammy Giroux.
11:34:03 I know that you all recall our being here a year ago
11:34:05 before you on this very same application, because a
11:34:09 whole year has passed, and because I have some
11:34:12 additional information which I think will be helpful
11:34:14 to the council based upon the concerns and comments
11:34:17 that were raised a year ago.
11:34:19 I would like to take a few minutes, although I will be
11:34:22 as very brief as I can, to bring council's attention
11:34:27 to a number of factors which we feel are very
11:34:29 important for purposes of your consideration.
11:34:34 As Ms. Feeley indicated the property is located -- is
11:34:38 this working?
11:34:40 Less than a block west of south Dale Mabry on Estrella
11:34:46 street.
11:34:47 The property is this area here.
11:34:50 It's important to note that all of the property to the

11:34:53 east and to the north and a section to the northwest
11:34:56 of the property are all zoned and used for general
11:35:01 commercial purposes.
11:35:02 These are a liquor store and bar, some other retail
11:35:06 uses here, another bar, and a small restaurant.
11:35:09 To the north of that is the new south town project
11:35:12 which includes -- it's a multi-use project which
11:35:16 includes offices, retail, restaurants, and some
11:35:27 parking here subject to the property.
11:35:29 To the south is a retail banking center, the only
11:35:32 ingress for which if one uses the teller services
11:35:42 across from the subject property, and to the west of
11:35:47 the subject site is the 6-foot masonry wall, and a
11:35:52 property owned by 2001 individuals, husband and wife,
11:36:00 mark Conner and his wife.
11:36:02 This is a property which is a primary residential for
11:36:04 Mr. and Mrs. Pine.
11:36:05 It's also, for many years, been used for
11:36:09 nonresidential commercial purposes.
11:36:13 That is an issue which I was questioned and challenged
11:36:16 on when we were here last year.
11:36:20 In an effort to preempt any questions or concerns, I

11:36:25 had a few things I would like to submit into the
11:36:27 record at this time.
11:36:28 I have corporate annual reports for BayStar builders
11:36:31 incorporated which was formerly known as Marc Pine
11:36:36 builder.
11:36:40 From 2008 going all the way back to 2001.
11:36:43 Also is a copy of Mr. Pine's professional business
11:36:47 card.
11:36:49 All of these records show the primary business address
11:36:55 for this company being the property located
11:36:59 immediately to the west.
11:37:00 I would also like to submit into the record an excerpt
11:37:04 from the sworn deposition testimony of Mr. Pine in
11:37:08 which he describes in detail the daily commercial
11:37:11 activities which transpire on this property.
11:37:13 It is not just a home office.
11:37:16 Construction materials and supplies are stored there.
11:37:18 Construction vehicles, commercial vehicles are stored
11:37:21 there.
11:37:23 The employee or employees who work for the company
11:37:27 report to that location for work and come and go on a
11:37:30 daily basis.

11:37:32 So I would like to submit that.
11:37:33 Also, last week, excerpts from the sworn deposition
11:37:39 transcript of Abbye Feeley who testified earlier,
11:37:44 including a detailed description of an on-site visit
11:37:49 which she had in advance of the January 2008 hearing
11:37:54 with Julia Cole, Cathy Coyle, and Gloria Moreda, all
11:38:00 senior staff members, and at that time Ms. Feeley
11:38:04 observed some commercial activity happen at the site.
11:38:06 So at this time I would like to submit this.
11:38:19 >>THOMAS SCOTT: Pass it around.
11:38:23 >>> I think with that documented evidence, it's a
11:38:27 perfectly fair and appropriate statement for me to
11:38:30 make, which is the subject property is in fact
11:38:34 entirely surrounded by properties which are zoned
11:38:38 and/or used at least in part for commercial purposes.
11:38:43 And a statement was made earlier today, I believe, by
11:38:46 Mrs. McNabb in the other proceeding regarding a
11:38:49 vacant property to the east.
11:38:50 That's true there was a small narrow vacant parcel of
11:38:53 property directly to the east of the subject property
11:38:55 which is for general commercial uses and could be used
11:38:58 for purposes such as those which the Planning

11:39:01 Commission representative described, and without any
11:39:04 further action by this council.
11:39:05 Just a few photographs, if I could.
11:39:14 This is the view from across Dale Mabry looking at the
11:39:16 corner of Dale Mabry and Estrella.
11:39:18 This white truck you will see parked here is parked at
11:39:21 the corner of the subject property.
11:39:25 This is taken almost directly across Dale Mabry from
11:39:27 that intersection.
11:39:29 Again you will see the same white truck.
11:39:31 The structure that you see behind it is Mr. and Mrs.
11:39:36 Pine's residence and construction company offices.
11:39:39 This is the liquor store I referenced before and the
11:39:41 bank here.
11:39:42 So I think this gives a good perspective of just how
11:39:45 close the subject property is to Dale Mabry Highway.
11:39:49 This is a view of Dale Mabry looking south from just
11:39:52 north of the intersection of Dale Mabry and Estrella.
11:39:57 This is a photograph of the subject property, the
11:40:02 aforementioned 15-foot driveway or easement, 6-foot
11:40:08 masonry wall here.
11:40:10 You can see this is operates from the property located

11:40:15 to the west.
11:40:15 I think it's important to note the 6-foot masonry
11:40:18 wall, this is a very important issue, that's exactly
11:40:20 what is required under the City of Tampa zoning code
11:40:23 as a buffer between residential and nonresidential
11:40:26 uses.
11:40:27 That already exists in this case.
11:40:29 In addition, we had an easement area, 15 foot easement
11:40:32 area which was granted many years ago to the City of
11:40:35 Tampa, which provides an additional 15 feet of buffer
11:40:40 in addition to the 6-foot masonry wall.
11:40:42 This is the parking lot behind the liquor store and
11:40:44 bar at the corner of Dale Mabry and Estrella.
11:40:48 You see this is used as a parking area.
11:40:51 The dumpsters are also behind that.
11:40:54 This fence southbound, the subject property being just
11:40:59 here.
11:41:00 And finally, just head-on shot of the property itself.
11:41:05 And again the beautiful oak trees there in the front
11:41:10 being maintained and preserved under both development
11:41:12 scenarios,s are all of the trees.
11:41:15 And while I am on the subject let me just say there is

11:41:17 one tree which is being removed, which fountain
11:41:21 weren't so strange would be considered a grand tree
11:41:23 based on its size.
11:41:24 It's actually two different species of trees which are
11:41:27 growing out of the same -- the folks looked at and
11:41:34 said it is not a protected tree.
11:41:36 We are removing it and agreeing to replace it on an
11:41:39 inch-per-inch basis either on-site or off site, at the
11:41:44 city's discretion.
11:41:47 I would also like to submit into the record some
11:41:49 historic information which we did get through last
11:41:53 year.
11:41:54 So I won't spend much time on it.
11:41:56 But going back as far as the early 50s, this subject
11:41:59 property has commercially been used for nonresidential
11:42:01 purposes, including from time to time an auto repair
11:42:05 shop, a fruit market, sod and grass company, a
11:42:08 trucking company, sod and landscaping company again,
11:42:12 this represents about 20 years of nonresidential use.
11:42:18 Were those received into the record?
11:42:47 >>GWEN MILLER: We do that at the end of the meeting.
11:42:49 >>> I would like to turn to the site plan again.

11:42:55 As was stated earlier, we had two specific defined
11:43:06 uses which would be allowed for this PD.
11:43:08 One was professional offices.
11:43:12 The maximum square footage, any improvements would be
11:43:15 consistent with the site plan.
11:43:16 The maximum square footage would be 3500 feet, which
11:43:23 is respectful of the nearby residential uses.
11:43:28 My point is the 3500 square feet is not much larger
11:43:32 than in South Tampa.
11:43:36 The second scenario which would allow for the
11:43:39 specialty lawn and garden type use, as long as it's
11:43:41 3,000 feet of improvements, we have also -- you have
11:43:48 elevations which have been proposed and submitted
11:43:51 which we think we purposely designed to look as
11:43:56 residential in nature as we could, again in an effort
11:43:59 to be respectful of the nearby neighborhood.
11:44:06 I want to be very clear on a couple of things in terms
11:44:09 of our history here.
11:44:12 We obviously attended a DRC meeting before the
11:44:17 original hearing.
11:44:18 We also participated in a number of meetings with
11:44:23 various staff members from both the Planning

11:44:25 Commission and the city.
11:44:32 Before we got to the stage that we were presenting
11:44:34 what you see before you today, we had a number of
11:44:36 other uses and some other configurations and ideas
11:44:39 which we have eliminated based on the concerns and
11:44:43 ideas that were shared with us by the staff of the
11:44:46 city and the Planning Commission.
11:44:47 For example, we had originally -- we would like to
11:44:51 have included a medical office use, which basically
11:44:56 some parking concerns we agreed to eliminate.
11:44:58 Based on several means of the neighborhood association
11:44:59 and owners of surrounding properties we also agreed to
11:45:04 drop multifamily residential as a proposed use.
11:45:06 We are not asking for that here.
11:45:11 So the point is that we have worked over the past
11:45:13 three and a half years, really, with the staff and the
11:45:17 neighborhood in an effort to resolve their concerns.
11:45:21 At one point, we even agreed, because the neighborhood
11:45:26 had a concern about their inability to enforce any
11:45:29 violations of the site plan conditions.
11:45:32 We prepared and submitted to them a declaration of
11:45:36 restricted covenants which would encumber this

11:45:39 property in perpetuity, it would be binding on any
11:45:43 subsequent property owners, which specifically
11:45:45 prohibited the use of this site for those uses with
11:45:48 the neighborhood association and its members,
11:45:51 expressed concerns to us about.
11:45:53 I have not been contacted by any of those people for
11:45:57 about two years now.
11:45:59 And I have gotten -- I have received no calls from any
11:46:09 of the people in advance of this hearing.
11:46:12 I would like to submit a number of letters from me to
11:46:14 various members of that neighborhood association, and
11:46:16 officers over the past two to three years.
11:46:20 These meetings were by the way initiated at my
11:46:22 request.
11:46:22 We approached them in an effort to be a good neighbor.
11:46:26 And a copy of the draft declaration which we had
11:46:28 suggested and which they rejected.
11:46:44 I'm joined Dan by Ethel Hammer, a professional planner
11:46:47 in Tampa.
11:46:47 I think you have all probably seen her before on a
11:46:49 number of occasions.
11:46:50 Ms. Hammer is here to briefly talk about the

11:46:53 conclusions of her report.
11:46:56 She's extensively studied this site, this proposal,
11:46:59 and has some conclusions that she would like to share
11:47:02 with you.
11:47:03 She'll also specifically address the concern that was
11:47:05 an issue a year ago with respect to the ingress and
11:47:09 egress of this site being available only onto what the
11:47:12 city defines as a local street as opposed to a larger
11:47:16 corridor type street.
11:47:17 So at this time I will ask Ms. Hammer to come forward
11:47:21 and make her presentation.
11:47:26 >>> Ethel Hammer, Englehart, Hammer and associates.
11:47:30 My testimony today is to support the Planning
11:47:34 Commission's recommendation and my finding was that in
11:47:38 fact this property or this rezoning would be
11:47:41 consistent with the surrounding land use pattern, and
11:47:45 it would be consistent with the comprehensive plan.
11:47:48 One of the things that I did, that I think will be
11:47:51 very helpful for you, is to take the zoning map one
11:47:55 step farther and show what parcels are actually used
11:47:59 as commercial development so that you can see the real
11:48:02 impact of surrounding uses on this property.

11:48:25 You can see the relationship of this to Neptune and
11:48:28 Dale Mabry.
11:48:28 The map on the north is where I have actually colored
11:48:30 in additional uses this is the parking lot of the
11:48:37 south town development.
11:48:38 You can see how far down on the property that extends.
11:48:40 This is -- I'm not sure why these parcels have split
11:48:43 zoning but the structures actually go back to almost
11:48:45 the reefer of the property line.
11:48:47 So this is all commercial.
11:48:49 Had we colored this property, which is being used
11:48:52 commercially, the red color, on this map, would you
11:48:55 see that this property is in fact totally surrounded
11:48:59 by commercial uses.
11:49:02 Another factor which I definitely wanted to highlight
11:49:05 was that 15-foot easement on the western property
11:49:08 boundary.
11:49:09 (Bell sounds)
11:49:13 May I have a few extra minutes?
11:49:15 >> Go ahead.
11:49:15 >>> Thank you very much.
11:49:18 When I did my site inspection I stayed on the property

11:49:20 for about 15 minutes.
11:49:23 That 15-foot easement on the western property boundary
11:49:26 is the only access to the rear of the commercial
11:49:29 properties to the north.
11:49:31 That is where they received deliveries, their garbage
11:49:36 truck pickups.
11:49:37 While I was there for 15 minutes, there were at least
11:49:40 three or four trucks that were going in and out.
11:49:42 That is on this property.
11:49:43 It is very heavily impacted by the commercial activity
11:49:47 to the north.
11:49:49 Since I only have a few more minutes, let me talk
11:49:52 about one of the assignments I was asked to look at,
11:49:54 which is, would this rezoning be similar in character
11:50:00 or similar in nature to other rezonings that the city
11:50:03 has approved in two respects? Number one would be
11:50:08 access onto a residential street, and number two, the
11:50:11 relationship of this property as it transitioned
11:50:16 between commercial and residential.
11:50:18 And my conclusion was definitely yes.
11:50:20 And I didn't have to go very far.
11:50:22 My first example is just a block to the south.

11:50:27 This is a PD development right here, which is between
11:50:31 Estrella, and west Angeles street.
11:50:35 This was approved as an extension of this commercial
11:50:38 development.
11:50:39 The western portion of this PD development is a
11:50:43 parking lot that accesses only onto Angeles, and the
11:50:48 building actually for the commercial part was allowed
11:50:51 to extend within a very short distance of the rear
11:50:53 property line.
11:50:59 This PD to the south of Angeles and San Rafael is a
11:51:03 fast food restaurant who's principal access to the
11:51:06 drive-through is off of San Rafael.
11:51:09 This is an office building, this PD right here, which
11:51:13 accesses off of church.
11:51:14 And this PD has access which accesses off of church.
11:51:19 So the point of this is that here we are, similarly
11:51:24 situated, church is very similar in character to
11:51:28 Estrella as the type of street, intersecting with a
11:51:31 more major street.
11:51:32 So this, in my opinion, validates the city's --
11:51:39 hopefully decision today, that access has been granted
11:51:44 in very similar circumstances right within a block or

11:51:47 two of the subject property, and the use that is being
11:51:50 proposed here is transitional, and is very similar in
11:51:53 character to other uses which have been approved
11:51:56 within one or two blocks of the subject site.
11:51:59 Thank you.
11:52:03 >>> Mr. Chair, I have a couple other to enter into the
11:52:07 record.
11:52:07 I promise it won't be --
11:52:09 You only have 15 total.
11:52:10 How much time did we just give Ms. Hammer?
11:52:16 I'll allow you two additional minutes.
11:52:19 >>> Thank you, sir.
11:52:19 I would also like to submit into the record Mrs.
11:52:22 Hammer's CV as well as a copy of her professional
11:52:25 report.
11:52:26 Copies of photographers of the number of similarly
11:52:29 situated properties where the only access on or off of
11:52:34 the property is from a residential street but for
11:52:38 which there are commercial uses.
11:52:41 At the trial in this matter back in October the city
11:52:44 retained and put on as an expert witness Mr. Lee
11:52:47 Pallardy as a real estate expert consultant.

11:52:51 Mr. Pallardy testified at the trial -- I have his CV
11:52:58 and copy of his report here as well that I would like
11:52:59 to submit.
11:53:00 He testified under oath at trial that in his
11:53:02 investigation on behalf of the city, he was unable to
11:53:04 find any property, any property, in his investigation
11:53:08 that was zoned for and used for residential purposes,
11:53:12 and which was entirely surrounded by commercial uses
11:53:15 or commercially zoned properties as is the case that
11:53:17 we have.
11:53:19 Finally, I have a number of letters of support from
11:53:22 surrounding property owners and people in the
11:53:24 neighborhood association.
11:53:27 Many of these were collected just in the last day or
11:53:30 two.
11:53:30 Some others are copies of the one that is were
11:53:32 previously submitted last year, when we were here.
11:53:35 Finally I just want to submit into the record the
11:53:38 three orders pursuant to which we are back before you
11:53:41 today so they will be part of the record in the
11:53:43 proceeding.
11:53:44 I'm available to answer any questions, if you have

11:53:46 them.
11:53:48 >>THOMAS SCOTT: Questions by council?
11:53:50 >>MARY MULHERN: I just had one question.
11:53:54 Mr. Carothers, did you say that the person, Lee
11:53:59 Pallardy that the city retained, I didn't quite catch
11:54:03 what you said.
11:54:04 He couldn't find any?
11:54:08 >>> Yes.
11:54:09 He was asked at trial and testified under oath whether
11:54:12 or not he had been able to identify any other
11:54:16 properties similarly situated to the subject property
11:54:19 in this case.
11:54:23 Where you have a residentially zoned property which is
11:54:25 used for residential purposes but which is entirely
11:54:27 surrounded by commercial uses.
11:54:30 And his answer to that was, no, he was unable to find
11:54:32 any such examples.
11:54:36 >>THOMAS SCOTT: Thank you, sir.
11:54:38 This is a public hearing.
11:54:39 Anyone wishing to address council may come forward at
11:54:41 this time.
11:54:42 This is a public hearing.

11:54:43 Anyone wishing to address council, will you please
11:54:45 come forward, state your name and address for the
11:54:47 record, please.
11:54:48 You have three minutes.
11:54:51 >>> Joanne McNabb, 2404 south Park Avenue, Tampa.
11:55:00 It seems like we have a lot of information here all
11:55:02 over the place.
11:55:03 Some of this is brand new to me that I'm hearing
11:55:06 today.
11:55:09 My concern as a resident of the Palma Ceia west
11:55:13 neighborhood -- and I'm not a direct neighbor -- has
11:55:16 just always been in protecting that transition area
11:55:19 from the commercial to the residential.
11:55:26 I was just notified, or all of us in the association,
11:55:29 were only given the date of this hearing on January
11:55:33 5th.
11:55:34 So in response to your saying I did not contact you, I
11:55:39 find it a little bit disrespectful that a private
11:55:42 citizen like myself would have to do that when you
11:55:48 could have contacted our board.
11:55:51 I don't think that's right.
11:55:53 That being said, I'm going to back up a little bit to

11:55:56 the previous time we were here.
11:56:00 What our association was hoping for was small
11:56:06 business, something that transitions, not an apartment
11:56:10 complex, not a bar, not an extension of the bars or
11:56:13 the alcohol-related businesses that are in that mall,
11:56:18 strip mall right there on Dale Mabry.
11:56:22 If you had come and presented this plan to us, we
11:56:25 would probably be here today supporting you.
11:56:29 That is what we asked for the first time.
11:56:34 Show on going this far the taxpayers expense for a
11:56:40 court case, the taxpayers expense for this, when all
11:56:42 we asked was, would you communicate with us?
11:56:46 And Mr. Montanaro, who I don't even know, would you
11:56:52 please tell us what your plan was?
11:56:53 There was no plan last time.
11:56:55 They just asked for PD.
11:56:56 Now you are giving us very definite, if I understand
11:56:59 this right, and do I understand it right?
11:57:01 They can only do those two things?
11:57:04 Is that correct?
11:57:08 THE WITNESS: Well, your purpose now is to comment to
11:57:10 the planned development rather than engage in a

11:57:12 dialogue.
11:57:13 >>> The planned development.
11:57:14 Can they only do the two things that are presented
11:57:16 here?
11:57:18 >>MARTIN SHELBY: If council wishes to ask that
11:57:20 question of staff, they can choose to do so.
11:57:22 >>> Then I'll just leave that open.
11:57:24 But if that's the case, we probably don't have an
11:57:27 issue.
11:57:28 That's what we wanted.
11:57:29 That's what we asked for, and council tried to give
11:57:34 the clients the opportunity before.
11:57:38 There's other inconsistencies. But just on Monday,
11:57:43 this last Monday, the 12th of January, a week ago
11:57:45 Monday, our neighborhood association president called
11:57:48 the zoning commission and actually he went here and
11:57:53 was shown the proposed use for this lot.
11:57:55 He said two plans were submitted.
11:57:57 One shows a large apartment unit.
11:57:59 The other shows a smaller six-unit apartment.
11:58:03 That's why we are here with our concern.
11:58:05 That's what we were told from a week ago.

11:58:08 So if we are getting incorrect information, I
11:58:11 apologize.
11:58:11 But what we were asking for a year ago was, please,
11:58:16 tell us what your plan is, and if it slows transition,
11:58:24 we are okay.
11:58:25 I just feel we are all over the place here.
11:58:27 I'm not sure what to believe and I apologize for that.
11:58:29 But I do hope that consideration is given to the
11:58:33 trees.
11:58:33 The trees help our neighborhood with absorbing
11:58:39 pollution, absorbing sound.
11:58:41 So I hope that is a consideration.
11:58:43 And I was told actually yesterday, because when I took
11:58:46 the pictures, the people from solid waste were there,
11:58:50 and I thought the understanding was the easement could
11:58:55 not be used for trucks and garbage use.
11:58:58 (Bell sounds)
11:59:00 Garbage trucks and stuff.
11:59:01 So that's confusing to me now, too.
11:59:04 Thank you.
11:59:04 >>THOMAS SCOTT: Okay.
11:59:06 To help clarify earlier, and I am going to ask our

11:59:12 attorney to state on the record again, if you don't
11:59:14 mind, it's my understanding they can only use those
11:59:16 two plans, two projects, if they deviate from that it
11:59:21 has to come back before this council.
11:59:24 >>ABBYE FEELEY: Land Development Coordination.
11:59:29 The two uses that are being proposed for this planned
11:59:32 development are business professional office and
11:59:35 retail lawn and garden.
11:59:37 Those are the two uses.
11:59:38 Those would be the only two uses allowed under this
11:59:41 planned development.
11:59:42 If an additional use were to be added or requested, it
11:59:46 would require rezoning.
11:59:49 >>CHARLIE MIRANDA: What was requested in the previous
11:59:53 hearing a year or so ago?
11:59:56 And I have heard that this was not the first time.
11:59:58 There was another hearing before another council.
12:00:00 Am I correct?
12:00:05 >>> I believe there was a prior rezoning.
12:00:08 What was presented in January of '08 is the case and
12:00:11 the site plan that is being presented to you today,
12:00:14 the exact copy.

12:00:17 >>CHARLIE MIRANDA: Were there any changes that
12:00:18 occurred at the site plan today of the two proposals?
12:00:25 How different is it from the site plan that was
12:00:28 presented in January?
12:00:29 Because I've heard now contrary remarks that there was
12:00:33 something else other than what was presented today.
12:00:34 >>ABBYE FEELEY: It's the same site plan.
12:00:37 >>CHARLIE MIRANDA: So January 1, and a year ago in
12:00:40 '08, and the one in '09 are identical?
12:00:44 >>> Yes, sir.
12:00:45 The site plan we brought before you in January of '08
12:00:48 was dated 12-6-07.
12:00:53 And that is the case and the site plan that you
12:00:55 received today.
12:00:55 >>CHARLIE MIRANDA: Thank you very much.
12:00:57 >>THOMAS SCOTT: Okay.
12:01:05 Let's finish with the public and then come back to
12:01:08 that, okay?
12:01:08 >>> Todd seamy, Tampa, Florida.
12:01:15 I'm sorry, I have not been sworn.
12:01:21 (Oath administered by Clerk)
12:01:22 >>> I do.

12:01:25 Thank you.
12:01:25 Councilman, I just want to add one factor here.
12:01:28 And you may say it's a defense, if you will, or a
12:01:33 point to bring up before you as you well know, when
12:01:37 people come before rezoning, it may not be in this
12:01:40 case the testimony from the woman representing
12:01:42 homeowners association was that she had not seen or
12:01:45 was not privy to the site plan.
12:01:47 Sometimes staff or people will come before you for a
12:01:50 rezoning.
12:01:51 What we would call a blanket rezoning and say we want
12:01:54 to go to PD and not have a site plan, and I know that
12:01:59 for instance in a case that -- and again the
12:02:03 homeowners association with Al Steenson where someone
12:02:06 has come before you and asked, did not provide a site
12:02:09 plan.
12:02:09 And so they are asking for a blanket rezoning where
12:02:12 the neighborhood association and the people do not
12:02:14 know per se what that plan may contain.
12:02:18 Now, I don't know if that was the case here.
12:02:20 But I just want to bring that before you.
12:02:22 Sometimes these things may happen, and you are trying

12:02:24 to get some definitive answer from the applicant.
12:02:28 Hey, what is it that you actually want to build or put
12:02:30 here so that we know and the neighborhood knows?
12:02:34 So I just want to say in defense of staff and the
12:02:36 planning.
12:02:38 God bless you.
12:02:39 Thank you.
12:02:39 >>THOMAS SCOTT: Thank you.
12:02:40 Next speaker.
12:02:47 >>> Again my name is Karen gay, 3916 San Nicholas
12:02:51 street.
12:02:52 A couple points I want to make.
12:02:53 Last year, they were offered this and refused.
12:03:00 We did not have the same site plan last year.
12:03:03 All we asked is, what do you want do?
12:03:05 And they were very evasive.
12:03:07 Everything that's happened in the last year, the
12:03:08 homeowners association was not told.
12:03:10 We didn't know there was a court case.
12:03:12 We didn't know any of this was going on.
12:03:14 Until last week.
12:03:16 Another point I want to make is, if you look at the

12:03:19 map, it is scary what is happening to our
12:03:24 neighborhood.
12:03:24 All of the commercial is surrounding us.
12:03:27 When is it going to stop?
12:03:28 How much further will they keep encroaching on us?
12:03:32 In defense of the contractor, he's running a home
12:03:35 office out of his house.
12:03:36 It not zoned commercial.
12:03:37 My husband and I have a home office in our house.
12:03:40 There are no signs.
12:03:41 There's no commercial comings and goings.
12:03:45 To represent and say this is commercial all the way
12:03:47 around this property is false.
12:03:50 That's not what's going on.
12:03:51 So we are very concerned.
12:03:55 I thought that as a homeowner association we would
12:03:57 have more input.
12:03:59 I'm very disappointed that our wishes have not been
12:04:04 followed or listened to.
12:04:05 Thank you.
12:04:11 >>JULIA COLE: Legal department.
12:04:12 Given the past couple of pieces of testimony I think I

12:04:16 need to clarify something legally.
12:04:18 What is in front of you is the site plan, the rezoning
12:04:24 and the site plan that was denied in January of 2008.
12:04:28 It was that site plan and rezoning that was litigated.
12:04:31 It was that site plan and zoning that resulted in the
12:04:34 court order sending it back to you, remanding it back
12:04:37 to you for an action that is required to be consistent
12:04:40 with that court's order.
12:04:41 So nothing in that regard has changed.
12:04:44 And this is the site plan, we had a public hearing on
12:04:47 in January, this is the public hearing today, was
12:04:50 properly noticed, and I just want to reiterate that
12:04:53 because it sound like there's some confusion, but
12:04:55 really we are legally obligated to bring this exact
12:04:58 same matter back to you for the first reading public
12:05:02 hearing on that ordinance.
12:05:03 >>MARTIN SHELBY: Can I just add to that, just for
12:05:06 purposes of clarification, because you have requested
12:05:08 revisions.
12:05:10 To cure technical issues.
12:05:12 And that is something that council now has before it
12:05:15 that would be made part, that would be corrected

12:05:18 between first and second reading.
12:05:19 >>> Consistent with our process, back in January 2008
12:05:24 when we heard this, you heard this on a first reading
12:05:26 public hearing for the ordinance, and that is what is
12:05:29 denied.
12:05:30 If that had gone forward, the technical objections
12:05:33 that were going to be made part of the record would
12:05:35 have been changed consistent with the processes
12:05:38 between first and second reading.
12:05:39 So you are sitting here back in that same regard in
12:05:42 that first reading public hearing with the exact same
12:05:46 site plan that was in front of you during that first
12:05:48 public hearing, and therefore, depending on the action
12:05:52 taken, if you do approve this on first reading, and
12:05:55 consistent with our processes, technical objections
12:05:57 per our code can be resolved between first and second
12:06:00 reading with changes to the site plan.
12:06:04 >>THOMAS SCOTT: Thank you.
12:06:04 >> Debra Mortohue representing Palma Ceia west
12:06:14 neighborhood association, and as well an individual.
12:06:20 Obviously there has been a lot of information this
12:06:23 morning.

12:06:23 I was retained last night.
12:06:25 My clients were not informed and I can tell you, I'm a
12:06:27 land use attorney.
12:06:28 I'm also a certified planner.
12:06:30 And a former landscape architect.
12:06:32 And I think I know what's important.
12:06:36 When I looked in the agenda packet.
12:06:38 And I looked on plein last night and scanned 82 pages
12:06:42 and printed out what I thought was important.
12:06:44 I can tell you that the site plan described and heard
12:06:47 about today is different online than I found.
12:06:53 And if I had difficulty finding it, imagine a lay
12:06:57 person who doesn't really know what they are looking
12:06:58 for.
12:06:59 So let me just say, and I think the argument that
12:07:04 because somebody is illegally using their property for
12:07:09 heavy commercial purposes gives them some type of
12:07:11 entitlement.
12:07:11 I mean, don't go there.
12:07:15 That's not a good argument.
12:07:18 Now, with the business, the small business use and the
12:07:22 office use, which is what my clients apparently have

12:07:25 historically been asking for, I think that's
12:07:27 acceptable.
12:07:28 But I do have some points of clarification.
12:07:30 If it is approved going to second reading, and these
12:07:33 technical issues are not resolved, does the council
12:07:36 then at that point have -- you can answer them all
12:07:40 because I have several questions later.
12:07:42 Does the council have the right to deny for not being
12:07:45 resolved?
12:07:46 One of the technical -- if it's technical that I did
12:07:49 not see addressed or hear address -- was the reduction
12:07:53 of the aisle size from 15 feet to 20 feet by
12:07:57 transportation.
12:08:00 Some of the departments are finding this inconsistent
12:08:02 with your code.
12:08:02 So I want to make sure for the record that that is
12:08:04 also resolved.
12:08:05 That is a significant issue.
12:08:08 I do think that you have a staff recommendation in
12:08:13 front of you, a planning recommendation that clearly
12:08:15 states that because the use is -- can only access a
12:08:21 local street, that the use should be limited to office

12:08:25 use only, not the other scenario that also had retail
12:08:31 use.
12:08:31 Now, the neighborhood seems to be okay with the
12:08:36 smaller retail use.
12:08:37 But I'm just letting now, that staff recommendation,
12:08:40 that professional analysis is competent, substantial
12:08:43 evidence, as is Ms. Hammer's.
12:08:45 You absolutely have the discretion to choose between
12:08:49 that evidence to support whatever decision your
12:08:53 findings of fact in here.
12:08:54 So if these things are not resolved to make sure that
12:08:58 this lot, which is not immediately adjacent to the
12:09:00 commercial, it's immediately adjacent to the
12:09:02 residential, a vacant lot in between.
12:09:05 It is on a local street.
12:09:06 It not a redevelopment scenario where the commercial
12:09:09 lot adjacent to Dale Mabry is maybe, you know,
12:09:13 reconsolidating or redeveloping.
12:09:16 Where you can provide more buffers between the
12:09:18 residential and the commercial use.
12:09:22 Historically what's been done on this property is of
12:09:25 no relevance whatsoever to the decision that you are

12:09:28 going to make.
12:09:29 None.
12:09:32 If this property has been doing these uses for however
12:09:35 many years and the process was down zoned, that
12:09:40 happened a long time ago.
12:09:41 I ask your indulgence as the applicant had 20, 25
12:09:45 minutes, I would like a few.
12:09:46 (Bell sounds).
12:09:47 >>THOMAS SCOTT: Two additional minutes.
12:09:49 I granted him two additional minutes.
12:09:50 You are allowed two minutes.
12:09:51 >>> Thank you.
12:09:52 So what I'm saying is, I think the neighborhood has
12:09:54 made it very clear, it sounds as if the applicant has
12:09:58 moved in the direction of making this a transition
12:10:01 property.
12:10:02 But I will say, online the application states
12:10:07 multifamily, six units, 5,000 square feet of office.
12:10:12 Medical office, actually.
12:10:15 Very high intense use.
12:10:17 You can imagine from their perspective that's a lot
12:10:21 different than what you are hearing about today.

12:10:23 So I would just, because PDs usually have
12:10:27 development agreements attached, not development
12:10:28 scenario one, development scenario two, I would ask
12:10:31 that if there is an approval at second reading that
12:10:34 this council be very, very specific in the conditions
12:10:39 on what it's going to permit on this property to
12:10:42 respect the fact that there are transportation issues
12:10:45 here.
12:10:45 This is to some degree commercial encroachment into a
12:10:48 historic neighborhood, one of two in that area.
12:10:52 Has always been RS-75.
12:10:55 So with that, I did want a motion -- I'm coming in on
12:10:59 the fly, I acknowledge that.
12:11:00 I have learned a lot this morning.
12:11:02 I read a lot last night.
12:11:04 I had a hearing till 1:00 in the morning.
12:11:06 So it's the business, right?
12:11:08 But I just think that there needed to be better
12:11:13 communication, and what's online and available to
12:11:18 these lay people is not necessarily really what we
12:11:21 heard this morning.
12:11:22 And I know what to look for.

12:11:24 And I certainly did not have the impression, when I
12:11:28 came in this morning, that it was that limited.
12:11:31 So I really hope that if it is approved today, and I
12:11:35 definitely want to double check, that when it comes
12:11:37 back on second reading these things are not resolved,
12:11:40 including that transportation aisle, that you have the
12:11:43 discretion to say, no, until these things are fixed.
12:11:48 And let them come back, whatever, let's get it fixed
12:11:53 and get it right so there's no misunderstanding down
12:11:56 the line about what's going to be permitted.
12:11:59 Thank you.
12:11:59 >>THOMAS SCOTT: Okay.
12:12:01 I will ask the attorney to come speak to that.
12:12:03 Then Councilwoman Mulhern and Councilwoman Saul-Sena.
12:12:06 >>JULIA COLE: Legal department.
12:12:10 I understand you just got an opportunity to get
12:12:12 involved in this and I don't think she has been
12:12:13 involved in City of Tampa processes.
12:12:15 But as you know when you make your motion to approve
12:12:17 and there are technical objection that is are going to
12:12:19 be resolved at first reading that those objections --
12:12:23 that the resolution of those technical objections are

12:12:25 in fact made part of your motion.
12:12:27 City staff will then receive a new site plan showing
12:12:30 the resolution of those technical objections.
12:12:33 And if those technical objections are not resolved
12:12:37 through that site plan that has been resubmitted, then
12:12:42 the zoning staff cannot certify the site plan and
12:12:45 bring it before you.
12:12:47 As you do know at second reading our new site plan
12:12:49 will be presented to you, and it will be indicated at
12:12:54 that time all the objections have been complied with,
12:12:56 as per your motion, and therefore it is acceptable to
12:12:59 move forward with second reading.
12:13:02 And sometimes, and it does happen, you don't get a
12:13:05 site plan that is showing that all those technical
12:13:07 objections have been met, and per our code, city staff
12:13:10 does not certify that site plan, and it creates an
12:13:14 automatic continuance.
12:13:15 I think it's for two weeks to allow that to be
12:13:20 complied with.
12:13:21 So in terms of Mrs. Martohue objections, those must be
12:13:30 resolved between first and second reading or it
12:13:32 doesn't come back on second reading.

12:13:34 And the one drive aisle, to let you know, there is a
12:13:37 waiver of that particular issue on the site plan which
12:13:39 is very consistent with how we handle these things and
12:13:41 how to handle these things in the past, and this is an
12:13:44 existing aisle that has been on this property, and
12:13:47 while transportation does object, it's what we call
12:13:50 technical objection, and they haven't provided any
12:13:56 reason why that's problematic so that would be
12:13:58 consistent, with that waiver in mind.
12:14:01 I'll go ahead and allow the hearing to continue just
12:14:05 resolve those two issues but at the end I would like
12:14:07 to say a couple of additional things.
12:14:09 >>MARY MULHERN: I have a question actually that maybe
12:14:14 Ms. Feeley can answer this.
12:14:16 Linda, can you pass me that site plan?
12:14:27 This is the site plan wee we have which I will give to
12:14:30 the clerk if she doesn't already have it.
12:14:32 Is this the exact same site plan that we saw last
12:14:35 year?
12:14:37 >>> That site plan should have a notation of 12-6-07
12:14:41 on it.
12:14:42 And, therefore, would be the exact same site plan that

12:14:46 you reviewed as part of the rezoning application that
12:14:48 came forward in January 2008.
12:14:52 >>MARY MULHERN: So where is the confusion coming as
12:14:55 far as what she's finding online as far as different
12:14:58 scenarios?
12:14:59 >>> I may let Abbye respond to that a little more but
12:15:02 for the purposes of the site plan, we don't put those
12:15:05 online because technologically, our computer processes
12:15:08 won't allow us to do that.
12:15:13 I'll let Abbye explain as to what is online.
12:15:17 >>ABBYE FEELEY: Land Development Coordination.
12:15:22 There are several exhibits to our rezoning
12:15:24 applications.
12:15:25 One of those is a transportation management form which
12:15:29 is filled out so that transportation can assess the
12:15:32 potential impacts associated with what is proposed for
12:15:34 development.
12:15:35 As Mr. Carothers spoke, initially when this site plan
12:15:38 came in -- and I do have one of the original site
12:15:41 plans prior to DRC, there were other development
12:15:44 scenarios on this site which included medical office,
12:15:47 as Mr. Carothers stated and also multifamily units.

12:15:51 I believe that what the other attorney may have pulled
12:15:55 off of the web site was that transportation management
12:15:58 form that talked to all of those potential units or
12:16:01 potential uses when this application was originally
12:16:04 filed, and that was what was amended and then brought
12:16:09 forward as part of the petition, which the applicant
12:16:13 was amended to remove those other uses and only move
12:16:17 forward with business, professional office and retail
12:16:20 lawn garden as shown on the site plan that was the
12:16:23 controlling site plan for the PD as this request moved
12:16:26 forward.
12:16:32 >>LINDA SAUL-SENA: Thank you, a quick question.
12:16:36 One of the chief concerns that council has
12:16:38 consistently stated is the desire to protect the
12:16:41 neighborhood that's located to the west from the
12:16:45 commercial activity to the east at Dale Mabry, which
12:16:50 is obviously the appropriate commercial corridor for
12:16:54 commercial traffic.
12:16:55 So when you all reviewed this, did you think about
12:16:58 requiring any kind of channelization in the driveway
12:17:03 so that the commercial traffic would indeed go to the
12:17:07 east rather than negatively impacting the residential

12:17:12 neighborhood to the west?
12:17:15 >>JULIA COLE: Legal department.
12:17:16 I am going to need to go ahead and answer that,
12:17:18 because we are not in just a genre zoning posture as
12:17:22 part of the litigation, and you may recall back from
12:17:25 when we first had this conversation, and Ms. Martohue
12:17:32 brought it up and the Land Development Coordination
12:17:34 staff did object to one of the plans and raise the
12:17:38 concern about this being on a local road with the only
12:17:42 access on a local road which is kind of part and
12:17:44 parcel of what you are talking about.
12:17:45 But all of those issues were litigated, and that is
12:17:48 exactly what occurred.
12:17:50 We went through this process.
12:17:52 We made those argument in the litigation as to why it
12:17:56 was problematic to have this in that location, and the
12:18:00 judge found there was no competent substantial
12:18:02 evidence to support that, and the judge found we did
12:18:05 not follow the essential requirements of the law.
12:18:07 >>LINDA SAUL-SENA: To get to my question which is the
12:18:12 channelization of the drive aisle, that is oriented
12:18:17 back toward Dale Mabry rather than through the

12:18:19 residential --
12:18:21 >>> And maybe the petitioner would be happy to make
12:18:23 that change but we can't obligate him to make that
12:18:25 change because the whole premise of that particular
12:18:27 change is the fact of the concern blood pressure
12:18:29 having this level of activity on a local road, and
12:18:33 it's been the position of the legal department that
12:18:35 issue has been litigated, and in order to act
12:18:37 consistent with the court's order, that is not an
12:18:40 issue that we can deal with at this time.
12:18:43 Thank you.
12:18:43 >>LINDA SAUL-SENA: Maybe the petitioner could address
12:18:46 that.
12:18:46 >>CHARLIE MIRANDA: Real quickly.
12:18:49 This change between first and second reading, this is
12:18:53 not a unique situation?
12:18:55 >>> That's correct, sir.
12:18:56 >>CHARLIE MIRANDA: I am ask that for the record, and
12:18:58 also I would say there's 20, 30, 40, to 50% of the
12:19:05 items that we pass on first reading, you come back in
12:19:09 second reading and said, all these from two to eight
12:19:13 have all complied with what the requests were.

12:19:18 We have never passed one that I know of that hasn't
12:19:21 met the muster of the intent at the time of first
12:19:24 reading.
12:19:25 Am I correct in that?
12:19:26 >>> Yes, sir, with the exception of Euclidean re
12:19:29 zonings that do not have site plans, I would say that
12:19:32 75 to 80% of the time the cases we bring before you at
12:19:35 a typical rezoning evening hearing do have a revision
12:19:39 sheet and do require modifications in between first
12:19:42 and second reading.
12:19:43 >> And if they don't, they are given an additional two
12:19:45 weeks when the council meets back as a council, not as
12:19:51 a CRA, to come back and clarify those items that have
12:19:54 to be adjusted.
12:19:56 >>ABBYE FEELEY: Yes.
12:20:01 Sometimes that two weeks difference is because the
12:20:04 last hearing, first hearing, or a holiday, but it is
12:20:07 typically a two-week time period.
12:20:09 >>CHARLIE MIRANDA: Thank you very much.
12:20:10 >>THOMAS SCOTT: Anyone else who has not addressed
12:20:12 council may come forward at this time.
12:20:15 Anyone else from the public, if you have not come

12:20:18 forth and want to address council.
12:20:20 Okay, then petitioner, you have five minutes on
12:20:22 rebuttal.
12:20:24 >>> Graham Carothers on behalf of the petitioner.
12:20:27 Just a couple of comments.
12:20:29 I appreciate Ms. Feeley's clarification about the
12:20:33 process.
12:20:35 She is in fact correct.
12:20:36 The initial submittal includes multifamily residential
12:20:40 as well as medical office use.
12:20:42 And it was as a direct result of our meetings and our
12:20:47 efforts to accommodate the city staff's concerns and
12:20:51 the neighborhood association's concerns, that those
12:20:54 two uses were taken off the site plan in advance of
12:20:57 the January 2008 hearing.
12:21:01 No one is talking about apartments anymore.
12:21:04 Mrs. McNabb had a concern about bars opening on the
12:21:07 site.
12:21:07 No one has ever talked about a bar on this site.
12:21:12 Mrs. Gay indicated to you that my testimony regarding
12:21:17 the use of the bay star builders site as commercial
12:21:22 was false.

12:21:26 You need only look to the information that I
12:21:28 submitted.
12:21:30 The owner of the property himself admitted under oath
12:21:32 that in fact the property is being used on a daily
12:21:35 basis for commercial purposes.
12:21:37 It's not really subject to debate, in my opinion,
12:21:40 based on that testimony.
12:21:43 She also indicated that no one got notice until
12:21:47 January 5th.
12:21:49 It's clear in the city clerk's records, these
12:21:54 proceedings were in fact properly noticed, certified
12:21:58 mail receipt certificate of mailing is included in
12:22:00 your records.
12:22:02 All the required property owners as well as the
12:22:04 neighborhood association were in fact properly
12:22:07 notified of this proceeding.
12:22:17 One last thing that I failed to mention in my prior
12:22:20 comments, you may recall that the easement which was
12:22:27 granted many years ago in favor of the city was only
12:22:30 used -- only to be used for the sewer department
12:22:34 purposes.
12:22:42 The testimony that the trucks were going up and down

12:22:47 the site, not being an allowed use by, I believe, Ms.
12:22:52 Gay, is also therefore false.
12:23:01 The commercial properties to the north do have direct
12:23:03 access onto Dale Mabry, just not to access their
12:23:08 parking lot.
12:23:09 And I think that concludes my comments.
12:23:10 Oh, just one other thing.
12:23:12 About the status of the site plan, this confusion over
12:23:15 what was before you a year ago.
12:23:18 Ms. Gay was actually at the hearings in January of
12:23:22 2008.
12:23:22 She testified at the hearing.
12:23:25 The very same site plan was in front of you and her at
12:23:28 the time.
12:23:28 So I'm not sure where that confusion comes in.
12:23:31 She actually was here and presented testimony on the
12:23:34 very same site plan and made specific comments about
12:23:37 the site plan at the time.
12:23:38 Thank you.
12:23:38 >>LINDA SAUL-SENA: Quick question for the petitioner.
12:23:43 Could you do any channelization in your driveway to
12:23:46 direct your traffic toward Dale Mabry?

12:23:50 >>> We are willing to look into that.
12:23:52 The answer to that question is a very practical
12:23:54 matter.
12:23:56 And let me explain that very briefly.
12:23:59 Several years ago, the power poles that are situated
12:24:03 at the easterly edge of the 15-foot easement were
12:24:08 installed by TECO, and I believe it was done
12:24:11 simultaneously with the south town development.
12:24:14 I think part of the south town development gets its
12:24:18 power from TECO poles.
12:24:21 TECO doesn't have an easement over that area.
12:24:23 Legally they are not entitled to be there.
12:24:25 We have been told that in order to move or relocate
12:24:28 any of those poles it would have to be at Mr.
12:24:31 Montanaro's expense which he's not willing to do, nor
12:24:34 do we think he should be obligated to do.
12:24:37 It's his property and there's no easement.
12:24:42 So I think in order to answer that question, I need to
12:24:45 have a better idea of the location of those power
12:24:47 poles, in order to be able to tell you whether it's
12:24:49 even physically possible for to us curb the driveway.
12:24:54 Perhaps another option would be a sign.

12:24:56 We would prefer to keep the site right turn only, or
12:25:01 something.
12:25:02 I think we would prefer to keep it the way it is, the
12:25:05 way it was before you a year ago, the way it's been
12:25:07 litigated, but we understand the concern and we'll
12:25:10 certainly take a look at it, vis-a-vis the physical
12:25:13 orientation of those power lines.
12:25:15 >>LINDA SAUL-SENA: One quick question for our
12:25:17 attorney.
12:25:19 If we approve this, are we in any way legitimizing the
12:25:24 illegitimate uses left on the residentially zoned
12:25:27 property?
12:25:28 >>JULIA COLE: Legal department.
12:25:29 That really -- from that perspective, we are going to
12:25:34 not present this.
12:25:35 We need to investigate whether or not there is some
12:25:37 kind of code violation and take appropriate action.
12:25:42 >>LINDA SAUL-SENA: Our action in no way legitimizes
12:25:45 it?
12:25:46 >>> No.
12:25:46 It's either a legal use or illegal use.
12:25:49 That has to be investigated.

12:25:50 >> But our action doesn't legitimize an illegal use.
12:25:54 >>> No, we can't legitimize an illegal use.
12:25:59 >>THOMAS SCOTT: Motion to close?
12:26:01 >> So moved.
12:26:02 >> Second.
12:26:02 (Motion carried).
12:26:04 >>GWEN MILLER: What's the pleasure of council?
12:26:06 >>> It's not pleasurable at all.
12:26:09 But when you have a court order and the ones that are
12:26:11 paying the bill are the citizens of the City of Tampa,
12:26:14 I mean, you have heard it said before, you are caught
12:26:16 between a rock and a hard place.
12:26:18 And I understand the legitimacy of the concerns of the
12:26:23 neighborhood.
12:26:23 What I'm still confused about is, was this plan the
12:26:27 original one in 2007?
12:26:28 I've heard conflicting -- and I am going to check with
12:26:31 the clerk later on to find out for sure, and I feel --
12:26:35 not positive but I feel certain it is.
12:26:37 So I'm going to review those records of 2008, of
12:26:44 January 7th, to find out exactly what was said,
12:26:47 what was not said.

12:26:50 And I've heard things, city government, well, this
12:26:55 individual has deep pockets.
12:26:56 This is not about a deep pocket or no deep pocket.
12:26:59 Might have deep pockets and short hands.
12:27:02 But what I'm saying is that it is incumbent to -- this
12:27:12 has got to come to an end or the clock is going to
12:27:14 keep running and the taxpayers are the ones that are
12:27:17 going to be held responsible for.
12:27:18 This what I am concerned about, and they can get upset
12:27:21 with me if they like, I want a much stronger legal
12:27:27 department telling us and guiding us in a much
12:27:29 stronger City Council attorney telling us during these
12:27:33 hearings, you can't do that, or you can do that.
12:27:38 I think that we are all responsible, and I -- if I'm
12:27:42 wrong, point a finger at me and tell me, stop right
12:27:46 there.
12:27:49 I don't have the answer to everything in the world.
12:27:51 I wish I did.
12:27:52 We wouldn't be in this that worry.
12:27:57 But I need representation to tell us, you cannot go
12:27:59 past that line, you are creating a problem, and that
12:28:03 problem is going to come back.

12:28:06 Attorneys that come here, no matter what school you
12:28:10 went to, you passed the bar examine.
12:28:14 And you are much smarter than a lot of us.
12:28:17 So what I'm saying is, if they know that we erred, it
12:28:24 doesn't take much to file a lawsuit.
12:28:26 It takes a lot to defend one.
12:28:28 And that's what I'm faced with.
12:28:33 If the ordinance is the same one that I have here,
12:28:38 there's nothing I can do other than follow a court
12:28:41 order.
12:28:41 If I don't follow a court order, not only I but the
12:28:46 rest of us become liable for whatever effect we may
12:28:53 have to the property owner.
12:28:55 My heart goes to the neighborhood.
12:28:56 I think Ms. Saul-Sena asked the right question about
12:28:59 does this legitimize any further?
12:29:01 And the answer was no, to any further intrusion of
12:29:04 commercial into this neighborhood.
12:29:07 This neighborhood is no different than the
12:29:10 neighborhood where all of us live.
12:29:12 We all feel the same way.
12:29:17 Over 100 commercial sites change within three blocks

12:29:19 of where I live because of one individual hospital.
12:29:25 100.
12:29:26 So I know what you feel.
12:29:30 So that's my feeling on it.
12:29:31 And if it's the ordinance is here, if it's the same
12:29:34 that's on this document, on page 2, I'll read it.
12:29:37 >>THOMAS SCOTT: Go ahead, read it.
12:29:39 >>CHARLIE MIRANDA: Thank you, Mr. Chairman.
12:29:41 I'm going to read it and with a caveat saying all
12:29:44 these things that were not addressed between first and
12:29:48 second reading will be addressed by the time second
12:29:51 reading appears.
12:29:53 Is that understood?
12:29:54 All right.
12:29:55 Move an ordinance for first reading, and ordinance
12:29:57 rezoning property in the general vicinity of 3809 west
12:30:00 Estrella street in the city of Tampa, Florida and more
12:30:03 particularly described in section 1 from zoning
12:30:05 district classifications RS-75 residential
12:30:08 single-family, to PD, planned development,
12:30:11 business/professional office, retail, lawn and garden,
12:30:16 providing an effective date.

12:30:20 >>LINDA SAUL-SENA: What's before us today is much more
12:30:22 limited and much less noxious than the those proposed.
12:30:31 The trees being kept.
12:30:32 The site plan is reasonable.
12:30:34 And I will support this because I really -- if you
12:30:40 were to have a commercial use, this is much less
12:30:43 onerous a commercial use than a medical use or
12:30:46 multifamily.
12:30:48 My big concern is, as a planner, is that this is a
12:30:52 residential neighborhood those located to the west,
12:30:58 and this is a very narrow residential street, and I
12:31:01 really think that the underlying land use should be a
12:31:04 much less intensity, and I think that the two uses
12:31:07 before us could almost be accommodated in a
12:31:10 neighborhood serving commercial which would have been
12:31:12 much less onerous for the neighborhood.
12:31:23 >> Let me just say that Mr. Miranda made a statement
12:31:30 about a much stronger legal department.
12:31:32 I must say in the time I have been here, when legal
12:31:35 stood up and warned us, and we proceeded anyway, to
12:31:39 their defense.
12:31:40 Many times they have stood up and said you shouldn't

12:31:45 be doing that, or try to correct us or try to correct
12:31:48 the record, and just letting us know.
12:31:54 And many times you hear me say, at the end of the day,
12:31:58 I have to hear what my counsel said, what the city
12:32:01 attorney said, what the city attorney's counsel said
12:32:04 no. Disrespect to any other attorney.
12:32:06 But these are the people defending us, got to defend
12:32:10 the city.
12:32:11 So lie to them for their opinion, and when they opine
12:32:15 on those issues.
12:32:17 That's a motion on the floor.
12:32:18 All in favor signify by saying Aye.
12:32:19 Opposes?
12:32:20 Okay.
12:32:22 >>THE CLERK: Motion carried with Mulhern being absent
12:32:24 at vote.
12:32:27 Second reading and adoption will be on January 29ality
12:32:30 9:30.
12:32:31 >>THOMAS SCOTT: I need to make a motion and then we'll
12:32:33 be out of here.
12:32:34 Motion we have that Weaver the Super Bowl gospel
12:32:41 celebration, going to be at the sun dome.

12:32:43 I would like for them to appear on the 22nd to give a
12:32:47 commendation.
12:32:49 >>GWEN MILLER: Motion and second.
12:32:50 All in favor of the motion say Aye.
12:32:53 Opposed, Nay.
12:32:55 (Motion carried).
12:32:56 >> Move to receive and file all the documents.
12:32:59 >> Second.
12:32:59 (Motion carried).
12:33:00 >>JOSEPH P. CAETANO: I would like to have a
12:33:04 commendation made for a young man who lives in my
12:33:07 district who goes to the rank of Eagle Scout.
12:33:11 >>LINDA SAUL-SENA: Second.
12:33:12 >>THOMAS SCOTT: When do you want that presented?
12:33:14 >>JOSEPH P. CAETANO: Well, it's sometime in January.
12:33:17 >>THOMAS SCOTT: All right, that's fine.
12:33:19 All in favor signify by saying Aye.
12:33:20 (Motion carried)
12:33:22 I want mine on the 22nd.
12:33:26 >>LINDA SAUL-SENA: I would like the city
12:33:28 administration to look into the legality of the
12:33:34 commercial use that was alleged to be next to the

12:33:37 petitioner in this case, and give us a report back
12:33:40 under staff reports in 30 days on whether that's
12:33:43 legitimate.
12:33:49 >> Second.
12:33:50 >>THOMAS SCOTT: Moved and seconded.
12:33:51 (Motion carried)
12:33:53 Motion to receive and file.
12:33:55 >>GWEN MILLER: We did that already.
12:33:56 >>THOMAS SCOTT: Then we stand adjourned.
12:33:58 Thank you, council.
12:48:18 (Meeting adjourned)

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