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Request to Appeal.pdf6. REQUEST TO APPEAL Planning Board Case No. 16-16 — Denial of Conditional Use — Riverfront Development Group, LLC, Applicant for Conditional Use Permit to allow fifteen (15) upper floor residential units and four (4) first floor residential units within four downtown buildings located on the 100 Block of N. 2nd Street — Michael Woodward, Legal Counsel, Riverfront Square, LLC. Mayor Hill said this is a quasi-judicial process and opened the hearing. Don Holmes, City Attorney, provided groundwork and guidelines for the appeal process. He asked the Commission to disclose any ex parte communications from those for or against that should be disclosed. Mayor Hill said he has had communication with those both for and against the project. Mr. Holmes said this is an appeal of the Planning Board's denial of a conditional use. Sec. 94- 3.7 of the Municipal Code reads that action taken by the planning board to approve or deny a conditional use shall be deemed final unless a request is filed within 30 days is filed for the City Commission to hear an appeal. The Commission sits as a legislative body and as a quasi- judicial body. They are now sitting as an appellate body, which means they cannot receive new evidence, and can only consider the record below, which in this case is the record of the Planning Board's proceedings. In order to overturn their decision, they will have to find fault with their proceedings based upon what they considered. Mr. Holmes said conditional uses are bound by the zoning statute. He read the definition of a conditional into the record, it being 'a use that would not be appropriate generally or without restrictions within a zoning district, but if controlled as to number, area, location or relation to the neighborhood, would promote the public health, safety, welfare, morals, order, comfort, convenience appearance prosperity or general welfare." It is a use that is generally not permissible but if restricted as to certain criteria, might be. The applicant was asking for permission for multi -residential use. The Planning Board should make a written finding that the use would not affect the interest of the public, health, safety, etc. for approval. Section 94-3 (4) (a) through (k) contain specific matters for consideration and should have been addressed appropriately. Those include off-street parking and loading (c), and general compatibility (i). That is what the Planning Board was charged with. If the Planning Board denies a conditional use they have to fully state that in the record. In this case, the Planning Board voted 7 -1 to deny based upon parking (c) and compatibility (i). That is the record below. That is the decision this Commission must review. Kevin Sharbaugh, Counsel for Riverfront Development Group, Appelant, questioned regarding having more leeway in the quasi-judicial hearing, and raised for the record the case Taxi USA of Palm Beach, LLC v. Cit of Boca Raton, FL heard before the 4th District Court of Appeals, Case No 4D14-2397, citing this case for the proposition that the standard of review is not as restricted as Mr. Holmes states. Mr. Holmes said it would have been helpful if he had been provided this prior to the meeting. Mr. Sharbaugh read a passage concerning a "hybrid appeal" where the council is not held to a strict appellate record, contending there is flexibility not strictly based upon the lower "court's" review. The elected officials can review this. The Planning Board was appointed by the City Commission to review and make recommendations to the Commission. The Commission is the authority. They don't have to find there was an error on the Planning Board's part. Mr. Holmes said it appears the ordinance the City of Palm Beach was working with is called a "hybrid" appeal where it wasn't specified in the Code that the board was sitting in an appellate capacity. He asked for a recess to review this case. RECESS — Mayor Hill recessed the meeting at 8:44 p.m. by consensus of the Commission. RECONVENE - Mayor Hill reconvened the regular 5/26/16 meeting at 9:00 pm and continued with the Orders of the Day. Mr. Holmes stated he stood by the advice he offered earlier; the Commission should confine itself to the record below. The case cited was not on point. The person was appealing to the circuit court complaining that the appellate body erred by taking new evidence. The appellate court argued that the code they were operating under allowed them to take new evidence. The Palm Beach code stated the appellant was allowed to present other evidence. This is not the normal standard of review. He does not find that case to be on point. It is dealing with a different code provision. Mr. Sharbaugh stood by his objection. Tom Townsend, Spokesperson for Riverfront Development Group, LLC, said Mr. Sharbaugh would take them through the transcript of the Planning Board meeting, which shows they are talking about opinions instead of facts. He understands the Commission has the right to deny their requests. The Planning Board needs to operate under the criteria. They will show they did not via a lengthy and thorough PowerPoint, which touches on relevant and irrelevant issues. Opinions matter, but criteria and rules should be followed. Staff recommended one thing and the Planning Board recommended something else. Mr. Sharbaugh narrated the appeal of the Planning Board's Decision concerning Case #16-16. Their request tonight is for the Commission to "reverse the denial, supporting the applicant and allow for 15 upper floor units and four 1st floor units along with other staff conditions" noting the 1St floor units require a Development Contract amendment. Mr. Sharbaugh noted the Staff Recommendation was incorrectly indicated on the summary sheet. Staff's recommendation was to allow for 16 upper floor units, total units not to exceed 18 units." That is the outcome they are asking for. He is still asking for Staff's recommendation to be allowed, for 15 but up to 18 upper floor units. The finding can be reversed, overturned, or upheld. Mayor Hill said he is appealing the original request. If there is a modification, that can be done by the Commission. Mr. Sharbaugh said all the images he used are out of the staff report and he quoted directly from the PowerPoint, minutes or verbatim transcript of the meeting. The floor plan(s) showing 12 2nd floor units as proposed was shown. Zoning designations were noted by Mr. Sharbaugh. The property is located in Downtown Riverfront zoning district, so designated in Sec. 94-161. Staff notes this allows for multi -family housing. Any reference to student housing is not relevant to the Code. This is a proposal for multi -family housing, specifically 2BR-2 bath apartments with full kitchens. The purpose to provide a pedestrian oriented, retail/entertainment area that has historically been downtown waterfront. Permitted principal uses includes residential uses. Conditional uses include 3 or more residential dwellings located above the first floor or a commercial unit. A five -story building fronting on St Johns Ave. is required to have one floor of commercial and two dwelling units per floor, or more than two dwelling units by conditional use permit. This is a mixed use project that includes ground floor commercial. By right, eight residential units are allowed on upper floors. The total units proposed by conditional use were 19; this includes three on the third floor, 12 on the 2nd floor, and four on first floor. Conditional Use Criteria for Planning Staff review was shown. The Staff analysis (page 6 of staff report - filed) was shown, which states that 20 residential units per acre are allowed in downtown zoning as a maximum density in entire DB and DR aggregate. You don't have to own an acre to have 20 units. The Comp Plan anticipates a maximum of residential units. This project seeks to create 19 dwelling units. It is supported by policies supporting infill and mixed use downtown. It does not conflict with the Goals, Objectives and Policies. It meets Criteria #1. As to Ingress and Egress/Off-street Parking, (b) and (c), the analysis by staff said Code requires 32 parking spaces. The parking lot provides 35 spaces. By Code, parking is sufficient. Additional staff commentary said while staff does not recommend it, the Planning Board has the ability to limit residents to address parking concerns. Staff found it met the criteria. The Staff report refers to Code Sec. 94.262 requiring two spaces per dwelling unit. Staff has used criteria for paragraph (a) which does not apply to DR Zoning; for uses in DB and DR, off-street parking requirements requires one space per dwelling unit. Sec 94-161(i) also carries that requirement. For this development, the number of parking spaces required is 16 total. The Project has 35 parking spaces, almost twice as many as required by zoning. Mr. Sharbaugh said during the break, the Planning Director stated to him that he misread that requirement. They have a lot of parking for the project. This proposals also complies with 4, 5, 6 and 7, as well as 8 listed in Staff's report. As to general compatibility to adjacent properties (i), noting from the Staff Report, Mr. Sharbaugh said Staff has stated it cannot provide any data that rental apartments or student housing would present compatibility issues. Staff believes it is important to increase mixed use nature of downtown uses. Staff's principal concern is the appearance of the properties, given their high visibility. The final area of concern was first floor residential, which Staff objected to. Staff upheld the prohibition against residential on first floor, which is not supported by zoning. Staff stated criteria #9 meets the conditions. Criteria #10 and 11 are not applicable. Staff reviewed this criteria and this was their recommendation. On the whole the recommendation states that the application meets the conditional use criteria. Staff recommended approval of 16 upper floor, not to exceed 18 total upper floor units. The conditions for approval were listed. Riverfront Development Group (RDG) has no problem with these conditions, but they do not agree that 1st floor residential is prohibited. Mr. Sharbaugh stated after the presentation by Staff, Mr. Woodward, Esquire, spoke on behalf of the developer, and spoke to the 33% commercial vacancy rate downtown. Mr. Sharbaugh said during the Planning Board meeting, members of the Planning Board started asking questions. Mr. Harwell's statements were highlighted as to the quality of persons dictating the quality of downtown. He is an architect and looks at architectural concerns. He made very detailed architectural inquiries before Mr. Holmes steered the conversation back to the matter at hand. He agrees with Mr. Holmes' statement that the focus really be on the factors that are in the conditional use criteria and that are specified there as they relate to the request to increase the multifamily units. He attempted to bring the focus of the board to relevant criteria on multiple occasions. Inquiries were made as to size of the units. The record shows Mr. Killebrew asked several questions concerning street access by residents and people who shouldn't be there. They discussed the installation of security cameras. Mr. Harwell again asked questions concerning architectural concerns. The questions raised by the Planning Board did not address relevant conditional use criteria. At that point, the Planning Board meeting was opened to public comment. Six people stood up to speak. They all spoke to the item #5. Mr. Sharbaugh broke out the speakers between those who lived in and outside of the City of Palatka and continued with his recap on speakers as follows: Speaker Bates stated he was disappointed in the motel development, questioned the validity of the amount of rent, wants the developer to stick with the initial proposal, but agrees it won't work. He then spoke about compatibility and density and lack of multi -family housing. He raised parking issues. Mr. Holmes then questioned Mr. Bates as to what he does for a living and for how long, and if he is familiar with the rental market in Putnam County. He asked how this proposal compares to the Palatka Market. This action steps beyond his legal role as counsel to the Planning Board when he questioned Mr. Bates like he was a witness. He tried to establish Mr. Bates as an authority, which was not relevant. This tainted the decision making process. This is not part of the criteria. At the conclusion of Mr. Bates' remarks, Mr. Woodward was not allowed to ask Mr. Bates questions, and was told to wait. Speaker Turner said he doesn't think the comp plan supports the density, and supported Mr. Bates' remarks. He stated he initially supported demolition and raised the parking concerns. Speaker Martinez said he was in full agreement with speakers Bates and Turner, and stated his concerns about it being occupied by transient residents with no concern for the City of Palatka. Speaker Beck said he was the largest taxpayer in Palatka, supported Speaker Bates' comments and stated he supported demolition of the buildings in the beginning. Speaker McClain said he was disappointed with the motel and asked the Planning Board to deny the request, stating this development is not "better than nothing." Mr. Sharbaugh noted Mr. Woodward was then allowed to respond. In his response he noted that it seems that some are still fighting for demolition of the buildings, stating that discussion was outside of the scope of the criteria. An additional speaker, Mr. Spalding, also noted his father at one time had a business in the building, and said building needs to remain commercial. Mr. Sharbaugh said The Planning Board's discussion was not limited to the criteria. Mr. Holmes gave them instructions regarding denying or approving the permit. He told them they can't reject the request because they are not high end condos. If they move to deny it must be based upon issues of compatibility, parking, and/or not consistent with the public interest. Chairman Sheffield also stated the motion should be stated based upon the criteria for granting or denying conditional use. Mr. DeLoach then moved to deny the request based upon overcrowding, saying overcrowding was not the original intent of the development. Chairman. Sheffield asked Mr. Crowe to help to form an appropriate motion for denial. Mr. Crowe said they could make an argument in this case that there are too many of these units in one area, which overwhelms that particular block. Mr. Homes said the parking would be ancillary to that. Mr. Sharbaugh said tt this point they were just looking for a reason that would pass muster for a decision that was not predicated upon a criteria. Chairman Sheffield then tried to clarify the motion. Draft minutes of the meeting state that "Mr. DeLoach moved to deny the request, based upon the conditional use definition pertaining to the number and frequency of uses, in this case that being a too -high concentration of units in one small area which overwhelms this block, noting that the project would overcrowd an already overcrowded area and off-street parking supply would be negatively impacted." This was a challenge to whomever was putting these minutes together. Mr. Sharbaugh stated the applicant met the parking requirements. The denial was based upon negative impact to parking. Seven board members voted in favor of denying the permit. The term "frequency" is not a part of any relevant criteria. Density is fully addressed by the Comp Plan and Sec. 94-161, which is the zoning. The project is well within those requirements. The request was for 19 units including four first floor units. Based upon the Commission's action to deny the contract amendment for four first -floor units, he has amended this request to override the Planning Board and grant conditional use permit for 15 upper floor units, with a maximum allowed of 18. It is their contention that the developer has met all of the criteria. Thad Crowe, Planning Director, was asked by Mr. Sharbaugh to re -address the parking requirements for DR zoning. Mr. Crowe said Code requires one parking space per unit. Mr. Holmes said he would limit himself to the standard of review, which is whether or not from the record the PB erred in its decision. Appellate review doesn't mean whether they would have done the same thing, but with the record that was established, whether they could or did rely upon factors in evidence; whether or not the record supports what they did. If they re -weigh the evidence, that is not the standard of appellate review. Mr. Sharbaugh said the Planning Board does not make a final recommendation; it is only final if an aggrieved party does not seek review of the standards. Mr. Holmes said the Planning Board's decision is not a recommendation. It is specifically stated in the Code that it is final unless it is appealed. If they were to look at this as a recommendation, they are totally changing the context of the ordinance. It is not a ratification of a decision. Commissioner Norwood noted in the Summary, Staff has stated they can support, reverse or amend the denial. They can allow 16 first floor units along with other conditions, or completely reverse the Planning Board and allow the request. Or they can uphold the denial. He asked if this commission finds that the decision was not made based upon criteria set forth, if the case can be sent back to the Planning Board. Mr. Holmes said they can send this back to the Planning Board. As to Staff's recommendation, He is not confident they can reverse the Planning Board and then make their own decision. This is not consistent with an appeal. They can send this back to the Planning Board for reconsideration. If they reverse the denial and do something in the middle, he cannot condone that. They need to concern themselves with the appellate process. If they find it was flawed, they can reverse it or uphold it. Staff makes recommendations, but not decisions. They can uphold it, overturn it or remand it back to the Planning Board. Mr. Sharbaugh read from the Code concerning modifying or reversing Planning Board decision. The ordinance specifically says they can approve, reverse or modify. Mr. Holmes said the ordinance says if the Commission modifies it and someone feels they have been aggrieved by the modification, that person can appeal to circuit court. Discussion ensued as to clarification. Mr. Sharbaugh said to resolve the issue they can grant the request directly as it was presented; as they are still contractually restricted from building on the first floor. Commissioner Norwood moved, based upon the evidence and criteria that was used for the motion, to reverse the decision of the Planning Board and remand the Case #16-16 back to the Planning Board for re -hearing,. The Motion died for lack of a second. After further Commission discussion, Mayor Hill said the Commission needs to make this decision; they need a clear record of the motion based upon evidence presented. Commissioner Borom moved to reverse the Planning Board's denial of RDG's application for conditional use, PB Case #16-16, and to support Staff's recommendation to allow no more than 16 upper floor units and no first floor units, with other staff conditions as noted in Staff's Summary. Commissioner Brown seconded the motion. There being no further discussion, a roll-call vote was taken, which yielded the following results: Commissioners Borom, Brown and Campbell, Yes; Commissioner Norwood and Mayor Hill, No. The motion was declared passed upon a margin of three in favor, opposed by Commissioner Norwood and Mayor Hill. 6. REQUEST TO APPEAL Planning Board Case No. 16-16 — Denial of Conditional Use — Riverfront Development Group, LLC, Applicant for Conditional Use Permit to allow fifteen (15) upper floor residential units and four (4) first floor residential units within four downtown buildings located on the 100 Block of N. 2nd Street — Michael Woodward, Legal Counsel, Riverfront Square, LLC. Mayor Hill said this is a quasi-judicial process and opened the hearing. Don Holmes, City Attorney, provided groundwork and guidelines for the appeal process. He asked the Commission to disclose any ex parte communications from those for or against that should be disclosed. Mayor Hill said he has had communication with those both for and against the project. Mr. Holmes said this is an appeal of the Planning Board's denial of a conditional use. Sec. 94- 3.7 of the Municipal Code reads that action taken by the planning board to approve or deny a conditional use shall be deemed final unless a request is filed within 30 days is filed for the City Commission to hear an appeal. The Commission sits as a legislative body and as a quasi- judicial body. They are now sitting as an appellate body, which means they cannot receive new evidence, and can only consider the record below, which in this case is the record of the Planning Board's proceedings. In order to overturn their decision, they will have to find fault with their proceedings based upon what they considered. Mr. Holmes said conditional uses are bound by the zoning statute. He read the definition of a conditional into the record, it being 'a use that would not be appropriate generally or without restrictions within a zoning district, but if controlled as to number, area, location or relation to the neighborhood, would promote the public health, safety, welfare, morals, order, comfort, convenience appearance prosperity or general welfare." It is a use that is generally not permissible but if restricted as to certain criteria, might be. The applicant was asking for permission for multi -residential use. The Planning Board should make a written finding that the use would not affect the interest of the public, health, safety, etc. for approval. Section 94-3 (4) (a) through (k) contain specific matters for consideration and should have been addressed appropriately. Those include off-street parking and loading (c), and general compatibility (i). That is what the Planning Board was charged with. If the Planning Board denies a conditional use they have to fully state that in the record. In this case, the Planning Board voted 7 -1 to deny based upon parking (c) and compatibility (i). That is the record below. That is the decision this Commission must review. Kevin Sharbaugh, Counsel for Riverfront Development Group, Appelant, questioned regarding having more leeway in the quasi-judicial hearing, and raised for the record the case Taxi USA of Palm Beach, LLC v. Cit of Boca Raton, FL heard before the 4th District Court of Appeals, Case No 4D14-2397, citing this case for the proposition that the standard of review is not as restricted as Mr. Holmes states. Mr. Holmes said it would have been helpful if he had been provided this prior to the meeting. Mr. Sharbaugh read a passage concerning a "hybrid appeal" where the council is not held to a strict appellate record, contending there is flexibility not strictly based upon the lower "court's" review. The elected officials can review this. The Planning Board was appointed by the City Commission to review and make recommendations to the Commission. The Commission is the authority. They don't have to find there was an error on the Planning Board's part. Mr. Holmes said it appears the ordinance the City of Palm Beach was working with is called a "hybrid" appeal where it wasn't specified in the Code that the board was sitting in an appellate capacity. He asked for a recess to review this case. RECESS — Mayor Hill recessed the meeting at 8:44 p.m. by consensus of the Commission. RECONVENE - Mayor Hill reconvened the regular 5/26/16 meeting at 9:00 pm and continued with the Orders of the Day. Mr. Holmes stated he stood by the advice he offered earlier; the Commission should confine itself to the record below. The case cited was not on point. The person was appealing to the circuit court complaining that the appellate body erred by taking new evidence. The appellate court argued that the code they were operating under allowed them to take new evidence. The Palm Beach code stated the appellant was allowed to present other evidence. This is not the normal standard of review. He does not find that case to be on point. It is dealing with a different code provision. Mr. Sharbaugh stood by his objection. Tom Townsend, Spokesperson for Riverfront Development Group, LLC, said Mr. Sharbaugh would take them through the transcript of the Planning Board meeting, which shows they are talking about opinions instead of facts. He understands the Commission has the right to deny their requests. The Planning Board needs to operate under the criteria. They will show they did not via a lengthy and thorough PowerPoint, which touches on relevant and irrelevant issues. Opinions matter, but criteria and rules should be followed. Staff recommended one thing and the Planning Board recommended something else. Mr. Sharbaugh narrated the appeal of the Planning Board's Decision concerning Case #16-16. Their request tonight is for the Commission to "reverse the denial, supporting the applicant and allow for 15 upper floor units and four 1st floor units along with other staff conditions" noting the 1st floor units require a Development Contract amendment. Mr. Sharbaugh noted the Staff Recommendation was incorrectly indicated on the summary sheet. Staff's recommendation was to allow for 16 upper floor units, total units not to exceed 18 units." That is the outcome they are asking for. He is still asking for Staffs recommendation to be allowed, for 15 but up to 18 upper floor units. The finding can be reversed, overturned, or upheld. Mayor Hill said he is appealing the original request. If there is a modification, that can be done by the Commission. Mr. Sharbaugh said all the images he used are out of the staff report and he quoted directly from the PowerPoint, minutes or verbatim transcript of the meeting. The floor plan(s) showing 12 2nd floor units as proposed was shown. Zoning designations were noted by Mr. Sharbaugh. The property is located in Downtown Riverfront zoning district, so designated in Sec. 94-161. Staff notes this allows for multi -family housing. Any reference to student housing is not relevant to the Code. This is a proposal for multi -family housing, specifically 2BR-2 bath apartments with full kitchens. The purpose to provide a pedestrian oriented, retail/entertainment area that has historically been downtown waterfront. Permitted principal uses includes residential uses. Conditional uses include 3 or more residential dwellings located above the first floor or a commercial unit. A five -story building fronting on St Johns Ave. is required to have one floor of commercial and two dwelling units per floor, or more than two dwelling units by conditional use permit. This is a mixed use project that includes ground floor commercial. By right, eight residential units are allowed on upper floors. The total units proposed by conditional use were 19; this includes three on the third floor, 12 on the 2nd floor, and four on first floor. Conditional Use Criteria for Planning Staff review was shown. The Staff analysis (page 6 of staff report - filed) was shown, which states that 20 residential units per acre are allowed in downtown zoning as a maximum density in entire DB and DR aggregate. You don't have to own an acre to have 20 units. The Comp Plan anticipates a maximum of residential units. This project seeks to create 19 dwelling units. It is supported by policies supporting infill and mixed use downtown. It does not conflict with the Goals, Objectives and Policies. It meets Criteria #1. As to Ingress and Egress/Off-street Parking, (b) and (c), the analysis by staff said Code requires 32 parking spaces. The parking lot provides 35 spaces. By Code, parking is sufficient. Additional staff commentary said while staff does not recommend it, the Planning Board has the ability to limit residents to address parking concerns. Staff found it met the criteria. The Staff report refers to Code Sec. 94.262 requiring two spaces per dwelling unit. Staff has used criteria for paragraph (a) which does not apply to DR Zoning; for uses in DB and DR, off-street parking requirements requires one space per dwelling unit. Sec 94-161(i) also carries that requirement. For this development, the number of parking spaces required is 16 total. The Project has 35 parking spaces, almost twice as many as required by zoning. Mr. Sharbaugh said during the break, the Planning Director stated to him that he misread that requirement. They have a lot of parking for the project. This proposals also complies with 4, 5, 6 and 7, as well as 8 listed in Staff's report. As to general compatibility to adjacent properties (i), noting from the Staff Report, Mr. Sharbaugh said Staff has stated it cannot provide any data that rental apartments or student housing would present compatibility issues. Staff believes it is important to increase mixed use nature of downtown uses. Staff's principal concern is the appearance of the properties, given their high visibility. The final area of concern was first floor residential, which Staff objected to. Staff upheld the prohibition against residential on first floor, which is not supported by zoning. Staff stated criteria #9 meets the conditions. Criteria #10 and 11 are not applicable. Staff reviewed this criteria and this was their recommendation. On the whole the recommendation states that the application meets the conditional use criteria. Staff recommended approval of 16 upper floor, not to exceed 18 total upper floor units. The conditions for approval were listed. Riverfront Development Group (RDG) has no problem with these conditions, but they do not agree that 1st floor residential is prohibited. Mr. Sharbaugh stated after the presentation by Staff, Mr. Woodward, Esquire, spoke on behalf of the developer, and spoke to the 33% commercial vacancy rate downtown. Mr. Sharbaugh said during the Planning Board meeting, members of the Planning Board started asking questions. Mr. Harwell's statements were highlighted as to the quality of persons dictating the quality of downtown. He is an architect and looks at architectural concerns. He made very detailed architectural inquiries before Mr. Holmes steered the conversation back to the matter at hand. He agrees with Mr. Holmes' statement that the focus really be on the factors that are in the conditional use criteria and that are specified there as they relate to the request to increase the multifamily units. He attempted to bring the focus of the board to relevant criteria on multiple occasions. Inquiries were made as to size of the units. The record shows Mr. Killebrew asked several questions concerning street access by residents and people who shouldn't be there. They discussed the installation of security cameras. Mr. Harwell again asked questions concerning architectural concerns. The questions raised by the Planning Board did not address relevant conditional use criteria. At that point, the Planning Board meeting was opened to public comment. Six people stood up to speak. They all spoke to the item #5. Mr. Sharbaugh broke out the speakers between those who lived in and outside of the City of Palatka and continued with his recap on speakers as follows: Speaker Bates stated he was disappointed in the motel development, questioned the validity of the amount of rent, wants the developer to stick with the initial proposal, but agrees it won't work. He then spoke about compatibility and density and lack of multi -family housing. He raised parking issues. Mr. Holmes then questioned Mr. Bates as to what he does for a living and for how long, and if he is familiar with the rental market in Putnam County. He asked how this proposal compares to the Palatka Market. This action steps beyond his legal role as counsel to the Planning Board when he questioned Mr. Bates like he was a witness. He tried to establish Mr. Bates as an authority, which was not relevant. This tainted the decision making process. This is not part of the criteria. At the conclusion of Mr. Bates' remarks, Mr. Woodward was not allowed to ask Mr. Bates questions, and was told to wait. Speaker Turner said he doesn't think the comp plan supports the density, and supported Mr. Bates' remarks. He stated he initially supported demolition and raised the parking concerns. Speaker Martinez said he was in full agreement with speakers Bates and Turner, and stated his concerns about it being occupied by transient residents with no concern for the City of Palatka. Speaker Beck said he was the largest taxpayer in Palatka, supported Speaker Bates' comments and stated he supported demolition of the buildings in the beginning. Speaker McClain said he was disappointed with the motel and asked the Planning Board to deny the request, stating this development is not "better than nothing." Mr. Sharbaugh noted Mr. Woodward was then allowed to respond. In his response he noted that it seems that some are still fighting for demolition of the buildings, stating that discussion was outside of the scope of the criteria. An additional speaker, Mr. Spalding, also noted his father at one time had a business in the building, and said building needs to remain commercial. Mr. Sharbaugh said The Planning Board's discussion was not limited to the criteria. Mr. Holmes gave them instructions regarding denying or approving the permit. He told them they can't reject the request because they are not high end condos. If they move to deny it must be based upon issues of compatibility, parking, and/or not consistent with the public interest. Chairman Sheffield also stated the motion should be stated based upon the criteria for granting or denying conditional use. Mr. DeLoach then moved to deny the request based upon overcrowding, saying overcrowding was not the original intent of the development. Chairman. Sheffield asked Mr. Crowe to help to form an appropriate motion for denial. Mr. Crowe said they could make an argument in this case that there are too many of these units in one area, which overwhelms that particular block. Mr. Homes said the parking would be ancillary to that. Mr. Sharbaugh said tt this point they were just looking for a reason that would pass muster for a decision that was not predicated upon a criteria. Chairman Sheffield then tried to clarify the motion. Draft minutes of the meeting state that "Mr. DeLoach moved to deny the request, based upon the conditional use definition pertaining to the number and frequency of uses, in this case that being a too -high concentration of units in one small area which overwhelms this block, noting that the project would overcrowd an already overcrowded area and off-street parking supply would be negatively impacted." This was a challenge to whomever was putting these minutes together. Mr. Sharbaugh stated the applicant met the parking requirements. The denial was based upon negative impact to parking. Seven board members voted in favor of denying the permit. The term "frequency" is not a part of any relevant criteria. Density is fully addressed by the Comp Plan and Sec. 94-161, which is the zoning. The project is well within those requirements. The request was for 19 units including four first floor units. Based upon the Commission's action to deny the contract amendment for four first -floor units, he has amended this request to override the Planning Board and grant conditional use permit for 15 upper floor units, with a maximum allowed of 18. It is their contention that the developer has met all of the criteria. Thad Crowe, Planning Director, was asked by Mr. Sharbaugh to re -address the parking requirements for DR zoning. Mr. Crowe said Code requires one parking space per unit. Mr. Holmes said he would limit himself to the standard of review, which is whether or not from the record the PB erred in its decision. Appellate review doesn't mean whether they would have done the same thing, but with the record that was established, whether they could or did rely upon factors in evidence; whether or not the record supports what they did. If they re -weigh the evidence, that is not the standard of appellate review. Mr. Sharbaugh said the Planning Board does not make a final recommendation; it is only final if an aggrieved party does not seek review of the standards. Mr. Holmes said the Planning Board's decision is not a recommendation. It is specifically stated in the Code that it is final unless it is appealed. If they were to look at this as a recommendation, they are totally changing the context of the ordinance. It is not a ratification of a decision. Commissioner Norwood noted in the Summary, Staff has stated they can support, reverse or amend the denial. They can allow 16 first floor units along with other conditions, or completely reverse the Planning Board and allow the request. Or they can uphold the denial. He asked if this commission finds that the decision was not made based upon criteria set forth, if the case can be sent back to the Planning Board. Mr. Holmes said they can send this back to the Planning Board. As to Staff's recommendation, He is not confident they can reverse the Planning Board and then make their own decision. This is not consistent with an appeal. They can send this back to the Planning Board for reconsideration. If they reverse the denial and do something in the middle, he cannot condone that. They need to concern themselves with the appellate process. If they find it was flawed, they can reverse it or uphold it. Staff makes recommendations, but not decisions. They can uphold it, overturn it or remand it back to the Planning Board. Mr. Sharbaugh read from the Code concerning modifying or reversing Planning Board decision. The ordinance specifically says they can approve, reverse or modify. Mr. Holmes said the ordinance says if the Commission modifies it and someone feels they have been aggrieved by the modification, that person can appeal to circuit court. Discussion ensued as to clarification. Mr. Sharbaugh said to resolve the issue they can grant the request directly as it was presented; as they are still contractually restricted from building on the first floor. Commissioner Norwood moved, based upon the evidence and criteria that was used for the motion, to reverse the decision of the Planning Board and remand the Case #16-16 back to the Planning Board for re -hearing,. The Motion died for lack of a second. After further Commission discussion, Mayor Hill said the Commission needs to make this decision; they need a clear record of the motion based upon evidence presented. Commissioner Borom moved to reverse the Planning Board's denial of RDG's application for conditional use, PB Case #16-16, and to support Staff's recommendation to allow no more than 16 upper floor units and no first floor units, with other staff conditions as noted in Staff's Summary. Commissioner Brown seconded the motion. There being no further discussion, a roll-call vote was taken, which yielded the following results: Commissioners Borom, Brown and Campbell, Yes; Commissioner Norwood and Mayor Hill, No. The motion was declared passed upon a margin of three in favor, opposed by Commissioner Norwood and Mayor Hill.