Planning & Zoning Board

1. MEETING CALLED TO ORDER BY PRESIDING OFFICER 2. CELL PHONE ANNOUNCEMENT 3. PLEDGE ALLEGIANCE 4. ROLL CALL Richard Harris- Chair Linda Driscoll- Board Member Michael Hurtubise- Board Member Lynn Fisher- Board Member Diana Crabill- Board Member Marvin Shavlan- Board Member Ross Sanchez- Vice-Chair Chris Downing- Alternate Board Member* Gary Potenziano- Alternate Board Member* * Per Sec. 70-3, alternate members shall only vote on any matter when a board member is unavailable. 5. APPROVAL OF MINUTES 5.A Approval of the Planning & Zoning Board Meeting Minutes of September 21, 2023. PZ 9-21-23 Minutes.pdf 6. STATUS UPDATE ON PRIOR PLANNING AND ZONING CASES Staff will address questions, comments, and/or concerns from the Board pertaining to prior cases. 7. HEARING PROCEDURES City Attorney explains hearing procedures. 8. EX-PARTE COMMUNICATION DISCLOSURE 9. ADMINISTRATION OF OATH Public speakers are sworn in. PLANNING & ZONING REGULAR MEETING THURSDAY, OCTOBER 19, 2023 – 2:00 PM CITY HALL AUDITORIUM, 120 108TH AVENUE, TREASURE ISLAND, FL 33706 MEETING NOTICE AND AGENDA

10. PRESENTATION OF ITEMS 10.A SPEC-000392-2023- 290 107th Ave- Special exception use request to modify the existing 16 slip marine structure and 2 slip marine structure multi-use private docks into commercial docks. 1. Supplemental Staff Report.pdf 2. Staff Report.pdf 3. Application.pdf 4. Warranty Deed.pdf 5. Dolphin Reef LLC - Sunbiz Filing.PDF 6. Affidavit to Authorize Agent.pdf 7. Special Exception Use Narrative.pdf 8. Joint Stipulation - 290 107th Ave.pdf 9. Public Comments on Case No. SPEC-000392-2023.pdf 10.B SITE-000393-2023- 290 107th Ave.- A site plan approval for an existing 42-unit hotel/motel with a pool, lounge, 16 slip marine structure, and 2 slip marine structure. 1. Staff Report.pdf 2. Application.pdf 3. Warranty Deed.PDF 4. Dolphin Reef LLC - Sunbiz Filing.PDF 5. Affidavit To Authorize Agent.pdf 6. Site Plan Narrative.pdf 7. As-Built Survey.PDF 8. Submerged Land Lease Survey- Dock.PDF 9. SWFWMD Permit.pdf 10.C VAR-000407-2023- 11870 5th St E- An after-the-fact variance request to Sec. 68- 541, to allow an existing covered front porch to encroach approx. 2’-1” into the 15’ front yard setback. 1. Staff Report.pdf 2. Application.pdf 3. Variance Hardship Narrative.pdf 4. Neighbor Petition.pdf 5. Final Survey.pdf 6. Administrative Waiver.pdf 7. Affidavit to Authorize Agent.pdf 8. Warranty Deed.pdf 10. Public Comments on Case No. VAR-000407-2023.pdf 10.D VAR-000399-2023- 10232 Tarpon Dr.- An after-the-fact variance request to Sec. 68- 458, to increase the waterfront solid fence height from 30” to 6’ for an existing 24’ x 6’ solid PVC fence. 1. Staff Report.pdf 2. Application.pdf 3. Variance Narrative.pdf 4. Survey & Site Plan.pdf 5. Fence Cross Section.pdf 6. Site Photos.pdf 7. Code Enforcement Board Order.pdf

8. Warranty Deed.pdf 11. PUBLIC COMMENTS ON NON-AGENDA ITEMS 12. REPORTS AND COMMENTS OF CITY ATTORNEY, STAFF AND BOARD MEMBERS 13. PLANNING & ZONING BOARD / LOCAL PLANNING AGENCY MEETINGS NEXT P&Z MEETING: November 16, 2023 at 2:00 P.M. NEXT LPA MEETING: TBD 14. ADJOURNMENT

1. MEETING CALLED TO ORDER BY PRESIDING OFFICER 2. CELL PHONE ANNOUNCEMENT 3. PLEDGE ALLEGIANCE 4. ROLL CALL Richard Harris- Chair Linda Driscoll- Board Member Michael Hurtubise- Board Member Lynn Fisher- Board Member Diana Crabill- Board Member Marvin Shavlan- Board Member Ross Sanchez- Vice-Chair Chris Downing- Alternate Board Member* Gary Potenziano- Alternate Board Member* * Per Sec. 70-3, alternate members shall only vote on any matter when a board member is unavailable. 5. APPROVAL OF MINUTES 5.A Approval of the Planning & Zoning Board Meeting Minutes of September 21, 2023. PZ 9-21-23 Minutes.pdf 6. STATUS UPDATE ON PRIOR PLANNING AND ZONING CASES Staff will address questions, comments, and/or concerns from the Board pertaining to prior cases. 7. HEARING PROCEDURES City Attorney explains hearing procedures. 8. EX-PARTE COMMUNICATION DISCLOSURE 9. ADMINISTRATION OF OATH Public speakers are sworn in. PLANNING & ZONING REGULAR MEETING THURSDAY, OCTOBER 19, 2023 – 2:00 PM CITY HALL AUDITORIUM, 120 108TH AVENUE, TREASURE ISLAND, FL 33706 MEETING NOTICE AND AGENDA 1

10. PRESENTATION OF ITEMS 10.A SPEC-000392-2023- 290 107th Ave- Special exception use request to modify the existing 16 slip marine structure and 2 slip marine structure multi-use private docks into commercial docks. 1. Supplemental Staff Report.pdf 2. Staff Report.pdf 3. Application.pdf 4. Warranty Deed.pdf 5. Dolphin Reef LLC - Sunbiz Filing.PDF 6. Affidavit to Authorize Agent.pdf 7. Special Exception Use Narrative.pdf 8. Joint Stipulation - 290 107th Ave.pdf 9. Public Comments on Case No. SPEC-000392-2023.pdf 10.B SITE-000393-2023- 290 107th Ave.- A site plan approval for an existing 42-unit hotel/motel with a pool, lounge, 16 slip marine structure, and 2 slip marine structure. 1. Staff Report.pdf 2. Application.pdf 3. Warranty Deed.PDF 4. Dolphin Reef LLC - Sunbiz Filing.PDF 5. Affidavit To Authorize Agent.pdf 6. Site Plan Narrative.pdf 7. As-Built Survey.PDF 8. Submerged Land Lease Survey- Dock.PDF 9. SWFWMD Permit.pdf 10.C VAR-000407-2023- 11870 5th St E- An after-the-fact variance request to Sec. 68- 541, to allow an existing covered front porch to encroach approx. 2’-1” into the 15’ front yard setback. 1. Staff Report.pdf 2. Application.pdf 3. Variance Hardship Narrative.pdf 4. Neighbor Petition.pdf 5. Final Survey.pdf 6. Administrative Waiver.pdf 7. Affidavit to Authorize Agent.pdf 8. Warranty Deed.pdf 10. Public Comments on Case No. VAR-000407-2023.pdf 10.D VAR-000399-2023- 10232 Tarpon Dr.- An after-the-fact variance request to Sec. 68- 458, to increase the waterfront solid fence height from 30” to 6’ for an existing 24’ x 6’ solid PVC fence. 1. Staff Report.pdf 2. Application.pdf 3. Variance Narrative.pdf 4. Survey & Site Plan.pdf 5. Fence Cross Section.pdf 6. Site Photos.pdf 7. Code Enforcement Board Order.pdf 2

8. Warranty Deed.pdf 11. PUBLIC COMMENTS ON NON-AGENDA ITEMS 12. REPORTS AND COMMENTS OF CITY ATTORNEY, STAFF AND BOARD MEMBERS 13. PLANNING & ZONING BOARD / LOCAL PLANNING AGENCY MEETINGS NEXT P&Z MEETING: November 16, 2023 at 2:00 P.M. NEXT LPA MEETING: TBD 14. ADJOURNMENT 3

AGENDA ITEM NO. 5.A Item Cover Page DATE: October 19, 2023 SUBMITTED BY: Jesse Miller, Community Development ITEM TYPE: Minutes AGENDA SECTION: APPROVAL OF MINUTES SUBJECT: Approval of the Planning & Zoning Board Meeting Minutes of September 21, 2023. BACKGROUND: . POLICY/PURPOSE: . STRATEGIC PLAN RELEVANCE: . ANALYSIS/DISCUSSION: . FUNDING: . MOTION: I move to approve the Planning and Zoning Board Meeting Minutes for September 21, 2023. PLANNING & ZONING BOARD AGENDA ITEM REPORT ATTACHMENTS: PZ 9-21-23 Minutes.pdf 4

1 PLANNING & ZONING BOARD REGULAR MEETING THURSDAY, SEPTEMBER 21, 2023 – 2:00 PM CITY HALL AUDITORIUM 120 108TH AVENUE TREASURE ISLAND, FL 33706 MEETING MINUTES 1. MEETING CALLED TO ORDER BY PRESIDING OFFICER Chair Richard Harris called the meeting to order at 2:00 PM. 2. CELL PHONE ANNOUNCEMENT Chair Richard Harris directed those in attendance to silence their phones during the meeting. 3. PLEDGE ALLEGIANCE Chair Richard Harris led the pledge of allegiance. 4. OATH OF OFFICE FOR APPOINTED AND REAPPOINTED BOARD MEMBERS City Clerk Celine Kidwell swore in Marvin Shavlan, Gary Potenziano, Chair Richard Harris, and Linda Driscoll. 5. ROLL CALL Present - 9 Richard Harris- Chair Linda Driscoll- Board Member Michael Hurtubise- Board Member Lynn Fisher- Board Member Diana Crabill- Board Member Marvin Shavlan- Board Member Ross Sanchez- Vice Chair Christopher Downing- Alternate Member Gary Potenziano- Alternate Member Absent - 0 Staff present: Jennifer Cowan- City Attorney Kathryn Younkin- Community Development Director 5

2 Jesse Miller- Principal Planner Staff Representative: Regina Kardash, Esq.- Persson, Cohen, Mooney, Fernandez & Jackson, P.A. 6. ANNUAL ELECTION OF OFFICERS A motion was made by Marvin Shavlan, seconded by Chris Downing, to elect Richard Harris as Chair for the Planning & Zoning Board. The motion passed unanimously. A motion was made by Chair Richard Harris, seconded by Michael Hurtubise, to elect Ross Sanchez as Vice Chair for the Planning & Zoning Board. The motion passed unanimously. 7. APPROVAL OF MINUTES A motion was made by Diana Crabill, seconded by Lynn Fisher, to approve the August 17, 2023, Planning & Zoning Board meeting minutes. The motion passed unanimously. 8. STATUS UPDATE ON PRIOR PLANNING AND ZONING CASES Jesse Miller, Principal Planner, and Kathryn Younkin, Community Development Director, addressed questions, concerns, and comments from the Board on the updates of recent Planning and Zoning Board cases. 9. HEARING PROCEDURES Jennifer Cowan, City Attorney, verified that those board members absent during the August 17, 2023, board meeting were aware of the evidence and testimonies presented. J.Cowan, stated Michael Hurtubise, Board Member, may participate in the hearing discussions but an Alternate Board Member will vote in his place due to Michael’s absence during the August 17, 2023 meeting. Hearing procedures were explained. 10. EX-PARTE COMMUNICATION DISCLOSURE Chair Richard Harris stated he discussed mutual acquaintances with Mark Bentley, Johnson Pope Bokor Ruppel & Burns, LLP, the applicant's agent prior to the meeting but did not discuss the case. 11. ADMINISTRATION OF OATH City Clerk Celine Kidwell swore in those speaking on the cases. 12. PRESENTATION OF ITEMS 6

3 12.A SPEC-000392-2023- 290 107th Ave.- Special exception use request to modify the existing 16 slip marine structure and 2 slip marine structure multi-use private docks into commercial docks. Chair Richard Harris introduced Case # SPEC-000392-2023 Regina Kardash, Esq.- Persson, Cohen, Mooney, Fernandez & Jackson, P.A, introduced herself and explained that her role was to represent the staff. Applicant Presentation – 2:20 p.m. Mark Bentley, Johnson Pope Bokor Ruppel & Burns, LLP, stated they received a new staff report and proposed conditions on the site plan. My colleagues are reviewing these conditions kind of on the fly here. I have two expert witnesses I intend to call to testify. I think during the interim we have made a lot of progress. We are very close to the potentially agreed-upon conditions. From our perspective, we don’t need any conditions and I will explain why, with that being said I think there is some middle ground we can reach. When we concluded at the prior hearing the Board requested two things. First, analyze with staff any additional parking demand because the boat slips may be used by the general public. Secondly, try to resolve any conditions that staff suggested being imposed on the special exception. Note that at the end of the hearing, Ms. Younkin advised the Board that additional parking would be required because the project triggered what the City calls a change of use under the zoning code. This would be true if the client would be adding a new building or structure, which they are not. I just want to make it clear nothing is going to change at the property. It’s going to maintain the same operation procedure and there is not going to be any new construction. Ms. Younkin also advised the Board when we had insisted on knowing and asked that she identify on the record what parking code provision or standard would relate to the proposed commercial dock. Your code does not have any parking standard for a commercial dock and the rationale behind that is a commercial dock is not a stand-alone principal use it is subordinate to a hotel. If you look at the code it says a commercial dock has to be owned by a hotel or a motel, I am paraphrasing, it is an accessory use to a primary use which is a hotel versus a marina which is a stand-alone, independent, permitted principal use. We asked Ms. Younkin on the record which code section would apply, and she responded that it would be the marina parking standard. Ms. Younkin cited a code section and afterwards when we looked it up it related to marinas, and we will explain to you we are not a marina. For the record, a marina is not allowed in the zoning classification that relates to the subject property. We met with staff who retracted its position now agreeing with us that the parking requirements for a stand- alone marina as a principal use were not applicable and therefore because code does not have a parking standard relating to rental of commercial dock slips and that per the code staff could make alternative parking standards, which staff did. The important point resulting from staff seeking alternative parking ratios is that first staff did not apply the City’s parking standards for a marina as the commercial dock is not a marina as defined in the code. After our meeting with staff there was complete 7

4 agreement concerning the language in the proposed seven conditions, however, staff disagreed with our interpretation as it relates to condition number 5. We met with staff about eight days after the first hearing. When we walked out the door, we all agreed to the language of the conditions. The only point of disagreement was the interpretation of number five, which related to what a marina is. I really don’t understand the disagreement as you will see the code is not vague or ambiguous but to the contrary very clear in terms of what qualifies as a marina and when additional parking is required. In order to determine the appropriateness for any conditions on the dock we need to examine and analyze the code which notably has a section that directs staff on how it is to be interpreted. There is a rule in the code which directs staff to take out the discretion of these interpretations and our expert will talk about this. There is a section in code that explains when a code section says and this and that you include everything or when it says may, may doesn’t’ mean shall etc. A proper interpretation of the code will assist the Board in making a rational and fair decision based on the law not based on how staff would like a clear and unambiguous code to be interpreted. I would like to talk about the original staff report. In this report staff concludes that our application meets thirteen criteria based on the outstanding track record the client has established over the past four or five years’ operating and has not caused any detrimental effects. Even under criteria number eleven staff concludes that quote “the current multi-use private docks have not generated any adverse effects of noise, light, dust, fumes, or other nuisances” That being the case there is actually no basis to even impose conditions as they have apparently been operating as a model citizen for a number of years and established relationships and compatibility with the surrounding environment. Also note that conditions can only be imposed to protect a threat to the public health, safety and welfare or to eliminate or to mitigate actual harm. It cannot be based on speculation as to things that could possibly occur. You just have to assume everybody that receives a permit, or an authorization or development order is going to comply with the law. Conditions cannot be imposed without any nexus and are based on conjecture or what staff may see as a possible problem. Especially, in this case where a use is by virtue where operations have demonstrated its compatible use in the community. We need to clarify that the hotel with an accessory commercial dock does not meet the City’s definition of a marina. This is important as the staff report and conditions suggest this is not the case because the boat slips are being rented, which is referencing the marina definition which is one of the things in conjunction with a marina operation that it is a marina. A marina is not allowed in the zoning district, the code makes it clear this is not a marina use. To address this issue of interpretation the client obtained an expert Julie Mandell. Julie Mandell’s credentials were read into the record. Mr. Bently asked if there were any questions relating to Ms. Mandell's qualifications. Regina Kardash, Esq.- Persson, Cohen, Mooney, Fernandez & Jackson, P.A: I would like to clarify for the record the capacity in which she is testifying. I believe you stated that Ms. Mandell serves as an attorney and is a licensed attorney in the state of Florida. 8

5 M. Bentley: That is correct. R. Kardash: With a board certification? M. Bentley: Right R. Kardash: Is she representing the applicant as a lawyer or providing expert testimony? M. Bentley: Expert testimony. R. Kardash: With respect to that expert testimony is she providing and interpretation of the city code? M. Bentley: She will interpret the code but will get into the framework as to how the code is structured and rules in terms of actual interpretation of the code. R. Kardash: What I am seeking to clarify is if she is providing legal advice by interpreting the code for the Board. M. Bentley: She is not advising the code. Here again these are informal proceedings, so I am kind of getting grilled here. I have never seen this before at an informal Planning and Zoning hearing, but she is going to testify certain parts of your code and how they are supposed to be interpreted and how they mesh together and the rules for statutory construction for land use regulation. R. Kardash: Your position here is that providing an interpretation on the rules of statutory construction, which is predominantly done by lawyers is not legal advice? Is that your position here today? M. Bentley: She is not here to advise or give anyone legal advice. She is here to give a perspective based on her thirty years as a lawyer how land use codes are interpreted, and she has reviewed your code and has identified inconsistencies or conflicts in the code that she wanted to bring to the attention of the Board so they can make an educated decision. R. Kardash: She is providing advice on the code is what you just said. M. Bentley: She is providing a prospective. She is not this Board’s lawyer; she is not my client’s lawyer. She is an independent third-party objective witness. R. Kardash: But you said that she is providing her advice within the context of her experience as a lawyer. Is that correct? M. Bentley: If I said I modify that. She is providing her perspective on how these codes should be interpreted. If I can move on here? 9

6 R. Kardash: I have one more question. Does she hold any other certifications other than a Florida Bar license and Florida Bar certification? M. Bentley: I will let Julie answer that. She is also a partner of the Grey Robinson Law Firm in Tampa. Julia Mandell, 401 East Jackson St Tampa, FL 33602: I do not hold any other certifications other than the years of experience I have in drafting and interpreting codes as it relates to governmental and most specifically land use situations. R. Kardash: Has all that experience been solely as a lawyer or has it been in any other capacity other than a lawyer? J. Mandell: There have been other capacities that I have provided expertise. I have sat on the Mayor of the City of Tampa’s advisory board for the drafting of development procedures. I sat on that as not a lawyer per say as not lawyer to that advisory board but as someone with expertise in the field. I have also served as a professor at the University of South Florida as a planning law professor in the University of South Florida planning program not as a law professor. R. Kardash: My other question in respect to that board service is that was that during your employment with that City of Tampa or that was outside as a citizen? J. Mandell: That was outside as a citizen. M. Bentley: Ok, anything else? R. Kardash: I would like to preserve for the record my objection to the fact that she is providing legal advice. M. Bentley: Ok, we don’t view it as legal advice. Let’s agree to disagree. R. Kardash: That is why I am preserving it for the record. Chris Downing, Board Member: I appreciate the clarification. M. Bentley: Presented the City’s definition of a marina and asked J. Mandell to present her interpretation of the definition. J. Mandell: Provided her interpretation of the marina definition and how it appears to be a stand-alone use based upon the review of section 68-1 the rules of construction. Stated the rules of construction are what is to be utilized for the purposes of the code. Stated how the word “and” is used in the code. Stated the marina definition has two parts to it. From an interpretive perspective when you look at the rules of construction and this definition, putting those together is the way it has to be interpreted. Because of a provision in your rules of constructions that say you 10

7 shall use those rules of construction to interpret code. The definition is a whole and parts can’t be pulled in and out of the definition. It is all those things together. Stated how it is standalone use that provides repairs, slip rentals, etc. not an accessory use. Provided interpretation of commercial dock definition that a commercial dock cannot be a standalone use and has to be associated with or an accessory use to something. Something to point out is the rental concept. The commercial dock designation there is no discussion of any revenue generation as part of that definition. Meaning whether or not you can generate revenue from this use or not is not spoken to in this definition and it is not prohibited. Stated definition of guest in the Florida Statues section 509.013. The definition of guest is relatively broad and isn’t based upon if you are actually staying at the hotel. Stated definition of guest from Merrian- Webster. My point is you can be a guest of a restaurant and guest of a hotel for a variety of reasons. There are activities that can occur not specifically related to that hotel or restaurant. Going back to the definition of a commercial dock, it reads to me that the intention as part of the way it is constructed is to be associated with those uses for guests for those establishments. M. Bentley: Ms. Mandell would you take a look at the definition of marina? Part 2 it says marine services of all kinds including but not limited to the rental of covered or uncovered boat slips. If a commercial dock rents boat slips would that meet the definition of a marina? J. Mandell: If you were to take pieces out of this definition which your code is telling you not to do. If you read it that way, then if I have a parcel of property where I rent out space where people can park their boat does that make it a marina? Or alternatively, if I have a parcel of property where I sell boats does that make it a marina? I think it goes into the way this is written and constructed and the way it is looked at. When you start to take out pieces of the definition and utilize that for other places, I think that is where you get into a situation where you are not following the rules of construction. M. Bentley: For example, the first part of the definition deals with the sale of boats, for example, there is a boat sales facility located five miles from the water. If you parcel them out and don’t include the entire definition, then would the sale of boats meet the definition of marina? J. Mandell: I think that yes if you going to start to pull this apart and just say that any one of the components that are part of this definition are pulled apart and utilized to characterize something as a marina then yes you would fall into that issue and code is explaining why you shouldn’t do that. The last thing I want to point out in my experience with the processing of applications, certainly applications can be conditioned, and we all understand that, however, there are limitations to the way you can condition items. The basis of your condition must be based upon your concern over detrimental effects and from what I understand there has not been a determination of detrimental effects of the existing use. The other issue you have to be cognizant of is you need to be able to say those conditions are necessary to 11

8 protect public health, safety and welfare and you have to have an identifiable issue and identify what that public harm might be. Mr. Bentley mentioned this earlier, your idea of a condition can’t be speculative. Here is the use you are asking for, here is what we are concerned about, and we are trying to protect ourselves from the context of your code and make a decision based upon that. If anybody has any questions for me, I will remain available. R. Kardash: Can we go back to the definition of marina? Ms. Mandell, you were talking about the rules of statutory interpretation, but you didn’t really state which particular rules you were utilizing or going under. You are familiar with the principle that the plain language of a statute or in this case an ordinance is what applies correct? I’m asking if the plain language under the rules of statutory interpretation if the first thing you look at is the plain language. J. Mandell: It is hard to answer that question that way because you can’t look at it with a complete vacuum when you have a specific rule of statutory construction within your code. In your code looking at it under the general rules of statutory construction, it would be fine, but you also have other rules as it relates to that. R. Kardash: Absent anything to the contrary in section 68-1. A court will look to the plain language of the statute or ordinance to apply that. J. Mandell: Do you mean absent any provision in your code that talks about how your rules are supposed to be constructed or as a general matter? R. Kardash: Yes, as a general matter, and then under the plain language if there is an ambiguity in the plain language then you turn to other additional or alternative rules of statutory construction, correct? J. Mandell: As a general rule you have that opportunity. R. Kardash: Back to the definition of a marina. Under this particular provision, we have an opinion from staff that goes one way and an opinion from the applicant that goes another way with respect to the use of the word and. J. Mandell: That I am not aware of. I was only asked to look at these and give my opinion and interpretation. R. Kardash: Are you familiar with the use of an oxford comma or the case law that surrounds the use of an oxford comma as it pertains to legal drafting? J. Mandell: I have not looked at that particular issue. R. Kardash: If I were to say a comma used after a list of three or more items such as before the words and or or. Can you tell me in that section there whether or not there 12

9 is a comma after the word equipment? Is there a comma in between the word equipment and the word and? J. Mandell: There is no comma shown. R. Kardash: Ok, with respect to the plain language of this particular provision. When it provides for an illustrative enumeration of what is prohibited here. It specifically says rental of covered or uncovered boat slips. Is that correct? J. Mandell: Can I clarify what it is that you just said? You asked me if