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03-16-87 v AGENDA CITY OF ATLANTIC BEACH SPECIAL MEETING MARCH 16, 1987 Call to Order 1. Further consideration of an application for exception filed by William and Thomas Morton, owners of Ragtime Restaurant, for the purpose of upgrading their currently held beer and wine beverage use to allow the sale of distilled spirits. 2. Any other business Adjournment MINUTES OF THE SPECIAL CALLED MEETING OF THE ATLANTIC BEACH CITY COMMISSION HELD AT CITY HALL ON MONDAY, MARCH 16, 1987, at 7:00 P.M. Mayor Howell called the meeting to order at 7:00 P.M. for the purpose of considering the additional questions Commissioner Morris wanted clarified on the Ragtime Restau- rant request to upgrade their current license to be able to serve distilled spirits. This meeting is not a continuing the Public Hearing, which was closed, but would receive a report from the City Attorney and further discussion among the other members of the City Commission. Mayor Howell recognized Commissioner Morris at this point. Commissioner Morris presented the Commission with a petition he had typed having to do with the decision of the Community Development Board and he was seeking a reversal on the variance granted on the off-street parking. I think it is proper and I would like to make one correction. It is the ordinance number that amended section 24-49, it is 90-87-117 and not 90-87-115, as was in my agenda package for the one meeting I missed. The disucssion continued as to the balance of powers between the boards and the City Commission. The granting of a variance from parking should take the form of use by exception thereby allowing the Commission, not the board, to take the final action on it. That was not what was done, so I respectfully submit this petition with the reasons outlined that it is illegal. Mayor Howell stated that he believed Commissioner Morris agreed that it was a legal question. Commissioner Morris agreed it was a legal question. Mayor Howell asked the City Attorney (Mr. Mullis) if he was ready to give a legal opinion at this time. Mr. Mullis asked if this was on the decision of the Community Development Board on the variance only? Commissioner Morris stated the matter of the decision on the variance by the Community Development Board was the question. This is a procedural petition that is offered to the Commission. Mr. Mullis stated this is a little bit unusual for a person who is a member of a political body who is acting on a quasi-judicial policy to hear an appeal on a petition filed by one of the members who will be voting on that particular petition; and, the second thing that would give me a little concern, of course, is whether or not the procedure followed is the one required in order to give due process of law as far as the notice requirements are concerned in taking an appeal from a decision of the Community Development Board to the City Commission, and that is giving everybody notice that it is going to be presented; and I don't know, the ordinance, in reviewing it, does not seem to be clear as to when you would act on a petition sitting as an appeals board on a decision of the Community Development Boar but for reasons of fair play and justice demanded that you give certain procedural aspects and give notice to the other people that such is going to be considered. I don't know when you set the meeting for tonight whether you gave notice that such would be considered at this particular meeting, including the people that are concerned with it. Those are some observations as to the thing before the Commission tonight would be solely the question of the exception. Commissioner Morris stated the concerns he had were the Community Development Board took action as a variance that does not require the Commis:sdor appro . They have done this before, and as mentioned in the appeal I do not recognize the action they took before. As far as to how it applies to the offstreet parking requirements, for whatever reason, Atlantic Beach Commission Special Meeting - March 16, 1987 2 this just so happens to be bars and restaurants. In order for us to consider any appeal action under the old ordinance it had to go to court, now we at least have the vehicle that come before the Commission before these embarrassing things are done like taking it to court of law, and to read you Item 3, under Chapter 24_37 Appeals of the Decision of the Community Development Board: Any person or jointly or several agreed by any decision of the Community Development Board --- (quoted from the Atlantic Beach Code). Mr. Mullis stated he shared Commissioner Morris views of the off-street parking. They may not share the same reasons for having those reservations, but the review of this particular variance, if one could be granted by the Community Development Board, and he had some reservations about that being possible or is necessary to be done. He stated he knew of no building that is in existence now that could meet the requirements that was in existence in 1982 when the offstreet parking provision was adopted that could meet the off-street parking provision if they put an addition on the property. A good example would be the Sea Turtle. You require in the off-street parking requirements for a restaurant or lounge that there be one parking space for each two seats. A motel or hotel in addition to those has to have one parking space for each room, and it would appear to me that it would be unconscionable for a court to retroactively enforce on existing structures off-street parking requirements at the time of the passage of the off-street parking requirements because of private property rights that you have. Believe that you recognize that when you passed the off-street parking requirements because in 24-161 of the ordinance code, the off-street parking requirements shall be provided at the time of the construction of the main building. It would appear there are no legal require- ments to comply with off-street parking requirements. Had dinner tonight at the Rite Spot, and just happened to count the number of chairs in there. They would need, if they put on an addition, it does not matter how small, it would require 88 parking spaces. In viewing the Ragtime situation down here, there would be no way they could conform to the off-street parking requirements. Commissioner Morris stated they would be required to have the 88 parking spaces or request a use by exception to waive it, and in that instance it would become a use by exception for the old Planning Board or the Community Development Board, would be reviewed, recommended and passed on to this body, the Commission for final review, recommendation, change or against. That is the essence of my appeal. That is a procedural appeal. Mr. Mullis stated perhaps he was not making himself clear. He further stated he did not believe that the law requires a present structure any time an alteration is made that was in existence at the time the off-street parking requirements were passed that you have any off-street parking requirements. Commissioner Morris stated we need to change our code. Mr. Mullis advised that could be done if you make it retroactive. Commissioner Morris asked ii the Commission was going to allow the Community Development Board to grant variances on parking without ever coming before this Commission, or are we going to require that variances that take the form of use by exception and come to this Commission with their recommendations for this Commission to decide ultimately. That is the essence of the petition. Mr. Mullis stated in that respect whether the Board of Adjustment or the Community Development Board now has jurisdiction to grant off-street parking, the only possible language that you could hang your hat on would be a variance that would be as to area. If you have 0-lot line, then you don't have variance to area so would share your views as to Board of Adjustment, or now the Community Development Board, being authorized to Atlantic BEach Commission Special Meeting - March 16, 1987 3 grant a variance for off-street parking. There is rio way regardless of how many variances you grant that anybody that is in a present structure has zero lot line as you have here, could meet the off-street parking ordinance. Commissioner Morris asked where the attorney (Mr. Mullis) was gathering his definition in the code on area. Mr. Mullis restated the example given earlier regarding the Sea Turtle Restaurant and motel. Stated the number of spaces required and the present offstreet requirements. Mayor Howell intervened at this point. Commissioner Morris stated he was waiting for a legal opinion on this matter. Mayor Howell stated that Mr. Mullis stated that there is no requirements for parking on existing buildings. Mr. Mullis stated at the time of passage of the off-street parking ordinance. Commissioner Morris stated that does away with 24-161, is that what is being said? Mr. Mullis stated no but for structures that were in existance at the time the ordinance was enacted. It says that minimum off-street parking shall be provided at the time of construction of any main building. That contemplates that certain people could no way meet the off-street parking requirements at the time of the passage of the off-street parking ordinance. Commissioner wanted to know if the tail was wagging the dog, or the dog wagging the tail? Mr. Mullis re-stated the certain property rights every one has in this country and stated ' he knew Commissioner Morris recognized them. Mayor Howell intervened and asked if Mr. Mullis had said they did not have the authority to grant an exception, and this could be, and they granted a variance, and it should be an exception, are you saying that you want the whole thing to go back to the Board and have them and have it come forward as an exception; or, are you ready to vote tonight on the "exception"? Commissioner Morris stated as it stands now, the Commission has nothing to say about the off-street parking. Commissioner Cook stated there were two different things being considered here. Mayor Howell said they did have something to say about it. Any Commissioner could iiote it down for the liquor license. Commissioner Morris stated this would still allow them to still expand and the 150 seats. What he was saying was their action was illegal. They did not have the Code to back them up on that action. Commissioner Cook stated there is one thing they need to decide is whether the Board had the right to do what they did on this situation or any situation. If the City Attorney was understood by all present, the Commission did not have have anything to say about it any way. Atlantic Beach Commission Special Meeting - March 16, 1987 4 Commissioner Cook stated it was his understanding the building was there and the way the law reads they are able to rent the building or do anything they want to do with it. Mr. Mullis stated as far as the off-street parking was concerned, yes. Commissioner Cook asked if this was correct, to which the attorney answered he was correct. Commissioner Morris asked if this applied to all businesses, to which the attorney stated this was true as far as the off-street parking was concerned. If it is demolished, if it is destroyed, then it has to conform. Commissioner Gulliford asked whether the building existence was being recognized or the business existence being recognized? The points brought up by Commissioner Morris were valid about this Board out there, not specifically about this specific variance. He is concerned about the things this Board appears to be empowered to grant. The liquor license did not concern as much as the powers of the Board. Mr. Mullis stated under the present zoning code stated the Commission could place certain restrictions on use by exception. State statutes will allow certain businesses to have liquor licenses. The Commission could place certain restrictions on the Community Development Board; this board can be made advisory. Commissioner Morris stated the Commission had only addressed the "A" portion of his petition. He named other businesses that had been required to adhere to the provisions of the code. He was still concerned whether or not the Community Development Board had the authority to take the action they did on the particular request. Mr. Mullis stated it was a nullity. It was not authorized. Commissioner Morris stated then we assume their action was nullified. Commissioner Edwards-an exception to be considered:-for the parking? Mr. Mullis stated they had an exception before them for the liquor license. There was a general discussion among the Commissioners as to whether or not they were required to vote at all based on the information furnished by the City Attorney, Mr. Mullis. Mayor Howell intervened at this point and stated the business people had requested a vote of the Commission on their request for expansion of their business space to serve 150 patrons from the present 100 seating spaces. The question requires a vote for the expansion or against the request for expansion, rather than delay on a nitpicking point. Commissioner Morris stated he thought a 33% expansion, to serve 150 patrons, with 41 space shortage, 75 spaces required,is not a .nitplekiftg matter. Commissioner Cook stated it was understood Mr. Mullis had stated they did not have to have a vote of the Commission at this point. Another general discussion of requirements at this point for the Commission. Atlantic Beach Commission Special Meeting - March 16, 1987 5 Commissioner Gulliford stated he agreedwith Commissioner Morris that this ordinance does need to be amended in order that the future requests will apply to not only new construction but also to major renovation of any existing building in order to allow this Commission some options as this city becomes more dense. It was understood the Commission was asked to act on a use by exception at the last meeting, was this not correct? What criteria do I use or any other Commissioner use on voting for that exception? It was stated this was not a parking consideration. What is the criteria for a vote on this consideration? Mr. Mullis stated the criteria would be whether you would consider an exception that would be compatible with the characteristics of the nature in allowing the sale of alcoholic beverages in a restaurant and lounge of this type that met the requirements of state law as being unique and authorized use of their property. As far as the use,when you authorize the use of something in a particular classification in those areas, as long as the property is zoned correctly there is wherein they would be entitled to a building permit if they comply with those things. Now in this particular thing, the exception is solely in the increase in the capacity of the facility to take care of the 150 patrons to be seated at the tables and complies with the other special provisions of restaurants. 561.20 Florida Statute for restaurants with sale of alcoholic beverages - this is a special restaurant license under the state law, passed in 1955. Mayor Howell stated that the state licensing office could call City Hall, ask Mrs. Tucker if this business is properly zoned, to which she replies they are, with an exception. The state will not issue the license because the city does not allow the exception, and the business peoplego to court. Commissioner Cook brought out the fact the property on both sides of the street is owned by the same people, and they were willing to pave the lot next to Pixie Cleaners. Commissioner Gulliford was concerned about the source of this statement. Commissioner Cook asked if this were not the information furnished by Mr. Silver, of Silver's drug, Neptune Beach, to which Mr. Silver replied this was right. This was the information furnished to someone else in the meeting (voice not known) . Commissioner Gulliford stated he wanted to go back to the question asked of Mr. Mullis earlier. The criteria for the vote the use by exception is before the Commission is that the compatibility of this business with adjacent neighborhood. Then, how on God's green earth could parking not be a part of that consideration? If you are asking me to establish a criteria as to its compatibility in the neighborhood and the area surrounding it, the first question that comes to mind is what creates incompatibility and what could potentially create incompatibility? Everybody recognizes it is very congested and very dense in the summer particularly. In my mind that is incompatible. Commissioner Cook asked if the Commission was going to have any restrictions in this exception? Mayor Howell stated the Board of Adjustment and the Community Development Board agreed also that this new expansion could not be open until 5:00 P.M. for use, and this was also agreed to by the other business people in that area. Commissioner Morris asked why was that? Mayor Howell asked of the City Attorney what action should be taken on Mr. Morris petition? There was a suggestion by the City Attorney that proper notification of all involved. Atlantic Beach Commission Special Meeting - March 16, 1987 6 Mayor Howell asked Mr. Mullis how the Commission could handle the petition. Mr. Mullis stated under the circumstances the Commission could vote it up or down. Commissioner Gulliford was concerned about Commissioner Morris offering not to vote after he was the person presenting the petition to the Commission on the authority of the Community Development Board's decision. Commissioner Morris stated he had had Mr. Fellows contact Mr. Mullis regarding the possibility of having Michele's (Mrs. Morris) name placed on the petition, but he elected not to do that simply because it required one action and that was to nullify by recognizing the Community Development Board's action was illegal in granting a variance for parking. Mr. Mullis said at one point in time that is correct. There was a nullity in their action. I want it substantiated by a vote of this Commission. Based on Claude's advice I'll vote, I will or won't. His contention was that you cannot act as judge and jury . . . Mr. Mullis interjected, "and prosecutor". Commissioner Morris stated based on that he could not vote on the matter. Mayor Howell stated he had something he wanted cleared up before Commissioner Morris left the meeting. His understanding of a public body of the Great State of Florida could not refuse to vote if present. He is here and he cannot refuse to vote. It cannot be a conflict of interest because he has no gain out of it. Mr. Mullis gave his opinion as to whether Commissioner Morris would have a problem as to ethics by voting and who would give this ruling. He went on to state that it would be repugnant to anyone's sense of justice to allow someone to sit as a grand juror and bring the charges against someone and have it repealed. He related some instances where the Commissioner on Ethics in Tallahassee had to rule on cases in recent weeks in the City of St. Augustine. He stated Mr. Morris had to search his conscious and determine whether he can make a just and fair decision, but as far as telling him whether he has a conflict of interest, he would have to decide that himself. Commissioner Morris stated he does not have a conflict of interest. He did say he could absence himself from the meeting. Commissioner Cook stated he was told several years ago he had to declare a conflict and he could not vote. Then, they changed the law and said you must vote whether you have a conflict or not. Mr. Mullis said the law had been changed and that if you have a conflict you are not supposed to vote and neither are you to participate in the deliberations. If you have a conflict of interest is it a conflict, is what they say. . . Commissioner Cook asked how could he not express his opinion? Mr. Mullis stated if you have a conflict of interest you cannot try to influence the other fellow or the elcted officials or other members of the board. Mayor Howell said he wanted to state where he thought they all stood at that moment. Mr. Morris is challenging the right of the Community Development Board to grant a variance to Ragtime to expand within the walls of that existing building, and/or allow a variance in the parking requirements. Atlantic Beach Commission 7 Special Meeting - March 16, 1987 Mayor Howell asked what Commissioner Morris was stating or what he was asking. Commissioner Morris is petitioning to appeal the decision of the Community Development Board seeking a reversal of the variance granted for off-street parking at Ragtime. Mayor Howell stated that Commissioner Morris is challenging their authority to grant a variance for the number of parking spaces under ordinance no. 24-161. Commissioner Morris stated the answer was no, it was under 24-49, amended by 90-87-117, who stated he understood what Mayor Howell was trying to do, but he was not going to fall into that trap. Mayor Howell stated that whether Commissioner Morris liked the ruling or not of the City Attorney the Commission has noone else to turn to. The City Attorney has ruled, if the Mayor's hearing was correct, that the off-street parking requirements do not apply to existing building, as stated in 24-161. It was in existence at the time the zoning law was passed. This building was. If that is correct their whole action becomes moot , but the next question is this: If they walked up tomorrow to get a building permit, is the building department going to issue it to them or are they going to have to take the matter to court? Commissioner Morris continued with - or is the Building Department going to tell them how many spaces they are going to be required to have? Commissioner Cook restated that this has been declared irrelevant. Commissioner Edwards stated this was his understanding too. Mayor Howell stated that whether they like it or not that is what the City Attorney has said, and Commissioner Morris could argue from now until doomsday. Commissioner Morris stated then the Commission should vote on the petition, and then be prepared for any business that wants to open in any building to say well I am not going to need any off-street parking requirements because that is what you are saying. Mayor Howell stated this was not what they were saying. Did you hear what the City Attorney said - any building in existence? This was for any building in existence prior to the passage of the ordinance in 1983. You cannot construe that to mean any building in the city because there have been many of them built in the city after July, 1983. Commissioner Morris stated there have been several that have been built prior to that. Mayor Howell stated that was correct. There was a general discussion of the entire matter once more with reference to the petition presented by Commissioner Morris. Commissioner Morris read the action taken by the Community Development Board on Feb.17, 1987. The Board considered and approved an application for variance for the parking requirements for Ragtime, at the corner of Atlantic Boulevard and Ocean Boulevard which would permit expansion into the adjacent unit and the additional 50 seats. The variance was issued contingent upon hours of the new addition being opened from 5:00 P.M. until legal closing time, that a rear entrance be constructed, and that the rear parking lot be lighted and landscaped as indicated in their plans. You all won't have to do, according to Mr. Mullis, any of that lighting and landscaping because parking does not count. The Board also considered application by Ragtime to expand their current beer and wine license to include the on-premises consumption of liquor. The Board recommends approval of the Atlantic Beach Commission Special Meeting - March 16, 1987 8 request. That is a recommendation to this body to act. The action they took as a variance does not require this Board's action; however, I am appealing that. Commissioner Gulliford stated that even if they had not taken that action, as Claude (Mr. Mullis) said they really should not have done, they would have still have come to us for a use by exception, which by that action would have been totally independent of anything they acted upon. Mr. Louis MacDonell asked, member of the Community Development Board, if someone else came into Atlantic Beach and wanted to rent that building (Ragtime) for a restaurant and came to City Hall for an occupational license, would the new tenant be granted a license? Mayor Howell and the City Attorney, Mr. Mullis, and others answered yes. Another general discussion followed with Commissioner Morris pointing out again that any business, restaurant or whatever, that expanded would be expected to furnish some of the amenities like additional lighting and paved parking areas, etc. Commissioner Cook restated that we all have to operate under the existing law. If we want to change it, then that can be done; but, until then, we operate under the present. The discussion continued with someone in the audience speaking, but not clearly enough to be understood. Mayor Howell stated he wanted to get something straight before Commissioner Morris started to leave the meeting. Commissioner Gulliford stated the primary reason for actions by the Commission is the wellbeing of our citizens and if there is a conflict where that use is not compatible with the wellbeing of the citizens or situation in the adjacent neighborhood, then I am going to be voting with the citizens and not with the commercial venture because I feel that is my obligation to do so. That is why I was hitting Claude on the criteria. Then, we do back to the criteria and the consideration - then consider the parking, the congestion and other things, throughout the area. Commissioner Cook stated he did not see the Commission as sitting there making laws. They are there to vote for the law the way it is written. We cannot make laws just because of a whim that has come along. The law is the law. Commissioner Gulliford stated that they were not making laws, but they were allowed a certain amount of discretion. When the law states the Commission can rule on a use by exception then they are within the guidelines of the law. Otherwise, we would just say here is the law and you live by it. Commissioner Cook stated there is no further use since there's SO much congestion now there is no place to park. If they cannot park they leave. Mayor Howell stated they would go somewhere else if there was no place to park. Commissioner Gulliford stated he disagreed with that because he lives in that area, and in the summer I see infringement in front of peoples houses down Ocean Blvd. and I know this is going to happen. Everybody is going to say that is city right-away, and you are right it is city right-away, but some peoples property is infringed on. The people come in here and complain the visitors are parking in their driveways. Commissioner Gulliford moved that we act on the request for use by exception and stop the 'who shot John' , with the restrictions that they not open the expanded area until 5:00 Atlantic Beach Commission Special Meeting - March 16, 1987 9 o'clock in the evening, that they landscape the parking lot, that they provide lighting in the parking lot, that they provide a visible back entrance that is not hidden in order to encourage the people to go to that lot and park. Mr. Mullis stated he would suggest that what you are doing does not apply to someone else down the road, it is a special restaurant license exception authorized by Florida Statute Section 561.20, the sale for consumption would not be allowed until after 5:00 P.M. , and the license would not be issued until the facility has seating capacity of 150 patrons and 2500 sq. ft. Commissioner Gulliford agreed to the addition to his motion of the above addition by Mr. Mullis. Commissioner Cook seconded the motion. Commissioner Morris stated he would like to call to the attention of the Commission that in 1985 Ragtime was given the opportunity to expand based on certain conditions they did not meet. One was the lighting of the parking lot and directing the traffic to the lot then. What is going to assure us they are going to do it this time? Mr. Fellows stated they would put up a bond. Commissioner Morris called the attention of the Commission to a variety of petitions that have been turned in with people speaking against this because of the traffic and parking. Commissioner Cook asked who was supposed to see that they adhered to these requirements on the prior expansion? Who from the city is supposed to followup on this for the city? The Building Department was the answer from several voices. Commissioner Morris stated that according to the code when they don't meet these variance restrictions they are in violation. Commissioner Cook stated he agreed with Commissioner Morris and they should have lived up to the requirements. Mayor Howell asked the attorney, Mr. Mullis, if the city could ask some kind of bond. . Mr. Mullis stated that in this particular case that you could not approve the certificate of zoning until the requirements are met as far as applying for the beverage license; or, you could require a surety bond or insist the restrictions have been met like the con- struction things. Mr. Fellows stated this would be just like the City requires on construction units, as letter of credit or a bond. Mr. Mullis stated the letter of credit would be probably easier for them and would be better for the city, more protection too. Mr. Fellows stated the city can call the letter of credit and have the necessary items completed. Commissioner Morris stated that if this request goes through they would have established a use that would be otherwise prohibited in the city. That is in the code. Mayor Howell stated the use of the property is for a restaurant. Is that correct? Does the zoning code say in that zone is a restaurant allowable? Atlantic Beach Commission Special Meeting - March 16, 1987 10 Mayor Howell stated it says 'it is allowable in that zoning area' . Commissioner Morris stated the Commission was getting ready to set a precedent. Mayor Howell stated they were not. Commissioner Morris stated they were. Mayor Howell said they were not. That was his (Commissioner Morris) opinion, not mine. Commissioner Morris stated that was what the book says. Mayor Howell stated that was Commissioner Morris interpretation. Mr. Mullis stated when you put the conditions on the exception, another alternative you have is to bring proceedings to rescind those actions if they don't meet the requirements of the exception. Commissioner Morris stated that is already in the code. They are already in violation of the code. city Mr. Mullis/has the right to rescind the granting of the exception, but the City cannot just close them down. Commissioner Morris asked what do you have to do to do that? File a petition? Mayor Howell stated you could revoke their license. Mr. Mullis stated you could file a petition with the Commission.On the granting of an exception you have conditions on the exception that you have the authority to support the conditions of the exception. Commissioner Morris stated he still had a problem with how he coud sidestep this petition and take that action. It is a serious problem. Commissioner Cook asked how they could be sure the conditions placed on the Ragtime exception would be adhered to this time? Mr. Mullis stated they could instruct the City Manager to bring it to the attention of the Board within a certain number of months if you grant the exception - to rescind the action of the Commission by not giving them the exception. Mayor Howell asked how about not certifying to the state that they have now met the zoning until those things are met, as part of the motion. Did you add anything about a surety bond? Mr. Mullis stated that when you pass any action with certain conditions you expect the administation and others to see the law is complied with. Commissioner Cook stated this is part of what Mr. Morris is concerned about that they did not comply with the REQUIREMENTS AS OUTLINED WITH THEIR PRIOR EXCEPTION. Commissioner Gulliford stated the surety bond could be addressed when it is finally passed. Atlantic Beach Commission Special Meeting - March 16, 1987 11 Mr. Morton arose to state that was not a condition of the last variance and 'I am resenting it a little bit that someone is trying to make it sound like we did not comply with it: . Commissioner Morris said he would be glad to read to Mr. Morton from the minutes of April 18, 1985, with the Board of Adjustments Members: MacDonell, Blanchard, Tassone, Kerber and Howie. The motion for variance of Ragtime Tavern. Two variances requested. 20' set-back moved to 82 ft. so he could expand. No one spoke against the request. Howie moved the request be granted, seconded by MacDonell. MacDonell stated the older buildings were not built with provisions of parking storage & traffic circulation. He felt these tenants were suffering some hardships in trying to fit the configuration into the design. Vote carried 4-1, with Mr. Tassone voting against the request. The second request for variance was for expansion of the facility his parking did not meet the requirements. He stated the majority of the business takes place after 5 P.M. when the other establishments are closed and their parking spaces become available. The only parking is in the rear on East Coast Drive and the lot is usually half full. Mrs. Kerber felt the parking at the east side of the building should be changed to parallel parking to help eliminate some of the congestion in the area. MacDonell said they should have a directional sign indicating off-street parking was located at rear. Mr. Morton assured her there would be lighting at the rear of the building. There being no one else speak on the request Mrs.Kerber motioned the request be approved subject to the parking be marked for parallel parking rather than angle parking and that Mr. Morton guide his customers to the rear of the building to off-street parking. Howie seconded.4-l. Mr. Tassone voted against the motion. There were some assurances there would be lighting there. Commissioner Cook stated that it boils down to what is sufficient lighting. It does not say. Commissioner Morris asked Mr. Morton to tell the Commissioners. Mr. Morton stated there were street lights and stated he has lights up at the back of their building. This is a technicality and he stated he would not deny that he said that. The intention was that they would do things to improve the building, and I resent the tone that is coming out of the city that we tried to trick the city,with our variance. Commissioner Morris stated that he apologized if he gave him that impression. That was not my intention. All I am saying is that you said you would, but you didn't. Mayor Howell stated they had a motion and a second. Do you want to add anything about the fact that the zoning is not to be certified to the state alcohol beverage permit until the requirements hereto are met. Commissioner Gulliford stated he did not want to add anything to it. If somebody else wanted to address that in another motion. Commissioner Morris stated he wondered about putting tails on the donkey after he is gone doesn't work. Commissioner Gulliford what kind of tails are we talking about? Commissioner Morris stated that doing goodies after the fact doesn't work. rnmmiccinnar Gulliford ctatar1 if tha rannest is Granted_ anyone has a concern about Atlantic Beach Commission Special Meeting - March 16, 1987 12 the enforcement of it has the right to offer any motion to direct the administration as they see fit. Mayor Howell requested the motion of Commissioner Gulliford be read. Mrs. Tucker read the motion as follows Jade by Commissioner Gulliford, with the approved addition from Mr. Mullis, City Attorney, for further clarification. Motio. : Commissioner Gulliford moved to grant the request for use by exception with the provisions that they would open after 5:00 P.M. , they would landscape and provide lighting for the back lot and entrance, (Mr. Mullis) added: this license is not to be issued, the zoning not be certified until all provisions were complied with, and a special restaurant license as provided in Chapter 561.20 (Florida Statute). Commissioner Morris asked that a provision be placed in the motion that no alcoholic beverage be served over 14% until after 5 o'clock. Commissioner Gulliford stated he did not think they could do that. Asked the attorney. Commissioner Cook said that theoretically that will draw cars there while the other businesses are still open. Commissioner Morris stated it was already 41 spaces short. Commissioner Cook asked why aggravate the problem? Commissioner Gulliford, Mrs. Tucker you said "moved to act" and I believe it was, "moved to grant their : request for use by exception", correct? Mr. Mullis stated it was correct. Mr. Fellows asked Mrs. Tucker if she said 'back entrance lighting' or 'back entrance and lighting'? Mrs. Tucker stated she probably said 'back entrance lighting' but meant to say 'back entrance and lighting' . Commissioner Morris asked if the Fire Chief ruled on any of this expansion. Asked Tom Morton what the present seating capacity is. Mr. Morton asked if that was relevant. Commissioner Morris asked what the allowable occupancy was at Ragtime now? 100? Further discussion of the fire rating and the necessary inspections by Fire Marshal. Mayor Howell asked Commissioner Gulliford to explain one thing in his motion. Commissioner Gulliford stated he would try, but after the last hour he did not know. Mayor Howell said he understood exactly what he was saying, but he was a little confused on one point - you said to grant the exception. Commissioner Gulliford said to approve their request for the use by exception for what they applied for with those conditions. Mayor Howell stated this is where he is confused. Asked if Comm. Gulliford was saying that his motion is (1) to allow them to expand, (2) grant them the exception as required under the ordinance for having to come to the City Commission if theywant to sell the Atlantic Beach Commission Special Meeting - March 16, 1987 13 Commissioner Gulliford stated he thought that was the point of their request. Mr. Mullis stated the Commission would be granting that right to engage in the Special Restaurant license authorized by Section 561.20 (Florida Statute), which is the only one applicable to the sale of alcoholic beverages 14% weight or more of a restaurant meeting those requirements of a restaurant with seating of 150 or more, and 2500 sq. ft. Commissioner Morris asked about the food service. Mr. Mullis stated this was included in the state statute. Commissioner Gulliford asked if he could call the question and request a roll call vote. Mayor Howell stated it would be by roll call. Asked the Commissioners if they were ready for the question? We'll vote by roll call. Commissioner Cook: I once stated that my vote cast although I don't think a vote is needed. I don't think we have jurisdiction over this. I vote - Aye Commissioner Edwards: Aye Commissioner Gulliford: No Commissioner Morris: I am voting "NO" and am qualifying it because I feel the petition to appeal the decision of the Community Development Board should have been a concern before this vote was cast. Mayor Howell: I am voting "Aye" on the basis that what the exception we are voting on is to whether or not they can serve alcoholic beverages providing they have met the requirements to expand to 150, and the 2500 sq. ft. That is my opinion as to what we are voting on. Mayor Howell: What was the vote? Three to two. The motion carries. Do we have anything else to act on tonight? Commissioner Morris stated he would one more time like to have some action on this petition. What happens next time? does the Board have the authority to grant variances on parking? Old or new? According to the code, they do not. Commissioner Cook stated he did not feel they could not change the law. Whatever is in there will have to be interpreted by some legal body. We can change the law by ordinance, but through due process. As the law is written we cannot pass witha vote and say it say anything. Mr Fellows state after what he has heard tonight; however, that we are going to have to make a decision if anybody comes to us with a request for business. or other things relative to parking requirements for buildings that were constructed prior to 1983, the question of off-street parking is misleading. Commissioner Cook stated that would be unless the Commission passes another ordinance. Commissioner Morris stated they may find this tested in court. /and act on Commissioner Gulliford moved to recognize Commissioner Morris petition to reverse the decision of the Community Development Board that was granted to Ragtime for off-street parking variance. Atlantic Beach Commission Special Meeting - March 16, 1987 14 Commissioner Gulliford stated he views this petition as Commissioner Morris was asking the Commission not recognize the decision of the Community Development Board. Mr. Mullis stated that in one place Commissioner Morris stated the Board did not have jurisdiction. Next to the last paragraph. Commissioner Gulliford stated he was not sure whether Commissioner Morris was asking the Commission since they do not have jurisdiction, asking the Commission to reverse the decision, or not recognize their decision. I do not know. You are the attorney. Which would be more appropriate: not recognizing the decision they made? Okay, not recognizing the decision. It has not been seconded yet any way. Commissioner Cook stated Commissioner Morris asked for a reversal. Commissioner Morris replied that was exactly right. That would be the same as denying their authority to make the decision. Commissionr Cook said no this would be recognizing their authority- We are saying the decision they made has some validity. Mr. Mullis stated that was the whole point he was trying to make. Commissioner Cook states that if it is our position that they don't have the power to do that, then we cannot reverse something they did not have the power to do. He ruled that it is a nullity, which means it had no bearing. Commissioner Morris asked where do they stand as far as off-street parking is concerned? Commissioner Cook stated the Commission is back to square one. Commissioner Gulliford stated the motion since it still has not been seconded is to not recognize their authority in the granting of off-street parking. Mrs. Tucker read Commissioner Gulliford's motion: The Commission not recognize the action of the Community Development Board in granting the variance tor otf-street parking. Commissioner Morris asked the Mayor to excuse him at this point in the meeting. From this point all taped minutes are typed verbatim. Mayor Howell: Under discussion. Will you tell me what your motion does? If you don't Commissioner Gulliford: I don't see that it does any more than his ruling is. I guess it is some type of official act on the part of this body to say that you have over stepped your bounds and we don't like what you did. Mayor Howell: Let's assume . . . I think Mr. Fellows. . .I think we are being extremely unfair to Mr. Fellows and the Building Department because I am going to be honest with you, if you are going to sit up here and say you don't recognize it, what position is Mr. Fellows to take when they come up here tomorrow or the next day, or whenever it is, to get a permit to start knocking out walls and one thing and the other, what is he going to do? The reason I made my comment on this last vote was that the exception we were voting on was to grant them license for alcoholic beverages, but in order to get to meet the requirements, they must expand their seating to 150. We did not give them an • Atlantic Beach Commission Special Meeting - March 16, 1987 15 exception for that. The only thing we did was grant license. Now if they can't. . . is Mr. Fellows to interpret the law then, so that according to the ruling of the City Attorney, they don't need any action by the City Commission or any Board to issue the permit. . .? Commissioner Gulliford: That is what the City Attorney said an hour or so earlier. Commissioner Cook: I am going to withdraw my second. If he declared it a nullity, then we have nothing to say about it. Mr. Mullis: I would think the better approach, if you express the philosophy of the Commission would be to make an amendments to the Ordinance Code to make it clear as to what authority the Community Development Board does have and let it go at that. Like you said earlier. . . Commissioner Cook: It is law, Claude. If the Supreme Court of the United States makes a ruling on a certain situation, does the Congress come along and pass a bill to say that we agree with the Supreme Court? Mr. Mullis: No, that's why I say I think . . . Commissioner Cook: We don't have to do that. Commissioner Gulliford: Did you withdraw your second? Commissioner Cook: Yes, sir. Commissioner Gulliford: Will you stop debating philosophy. Is anybody going to second the motion for discussion? Mr. Mayor, are you going to recognize a second, or if it doesn't get seconded, does it , in fact, die for lack of a second? Mayor Howell: Well he has withdrawn. Your motion . . . . I would be very happy to second the motion if you will tell me what happens. That's all I want to know. Commissioner Gulliford: I can't debate a motion until it has been seconded, so I can't tell you what happens. Mayor Howell: I'll second the motion. Commissioner Gulliford: I think what Mr. Cook was alluding to was maybe a statement of philosophy. I am more concerned about that than the specifics of this situation with Mr. Morton. I just worry about them overstepping what I preceive to be their boundaries. That Super Board which we have now that combines the two. Mayor Howell: Well, I don't want to get into that, but the Super Board has less power than the two previous Boards. Their powers have been limited. Commissioner Cook: In what way? Mayor Howell: Well prior to passage of this ordinance they were not restricted, according to the charter. Mr. Mullis: The Board of Adjustments had much broader and more powers in making a final decision than the Community Development Board. Atlantic Beach Commission Special Meeting - March 16, 1987 16 Commissioner Gulliford: Because of this . . .because of this avenue for petition and so forth? Mr. Mullis: Appeals and so forth. Mayor Howell: I need a point of order here, Claude. Mr. Morris is back in this chamber. Commissioner Morris: Do you want me to leave? Mayor Howell: I have got a problem, John. You are in the chamber, you are going to have to vote. Commissioner Morris: Oh, you have not voted? Mayor Howell: No, sir. It is going to take me sometime.(Comm Morris comment inaudible) (Comm. Morris was leaving the room as he spoke. ) Commissioner Gulliford: Mr. Mayor, don't accommodate me . . .inaudible. . .particularly at five after nine in the evening. Mayor Howell: Well I still want more than anything else some direction for the City Manager and the Building Department. Mr. Mullis: Well he has got it right now. (inaudible) Commissioner Gulliford: I don't see where any action on that motion one way or the other is going to necessarily give him any direction. Mayor Howell: Well supposing we passed it? Commissioner Gulliford: Supposing it is deadlocked? Mayor Howell: Well, okay. Commissioner Gulliford: One of your (inaudible) disappeared. Mayor Howell: Well that is the way is goes. . .I don't know. Commissioner Edwards: Didn't we condone what the Community Board did? We didn't condone that? Commissioner Gulliford: No. Commissioner Cook: Well we agreed with the decision they made. We did not agree they had the right to make the decision. I think that is what you are trying to get at. Commissioner Edwards: Yes. Commissioner Gulliford: Let's put this thing to bed. Mr. Mullis: Maybe since the Board is going to meet tomorrow night and since the Vice Chairman is here, maybe they would request the city attorney to give them a legal opinion as to their authority, if you think that would be appropriate? Mayor Howell: I think that would be an excellent suggestion for the future, but I am not exactly certain that is of anv treat benefit at 9:10 P.M. toninht. • Atlantic Beach Commission Special Meeting - March 16, 1987 17 Mr. Mullis: You may have cured the situation by inaction. Mayor Howell: Well I want to ask one further question: It's your opinion the action of that Board was moot, and since that building was constructed prior to 1983, that we could not enforce the off-street parking portion of the ordinance? Mr. Mullis: Correct. Mayor Howell: That is your legal opinion? Commissioner Gulliford: Don't stutter, Claude, don't stutter. (other voices inaudible) I tell you what, you have lost one Commissioner, and you are dadgummed close to losing the second one. Mayor Howell: Okay. That is the opinion. Then, if that's your opinion, then it is my opinion that it does not make any difference which way we go, the City Manager and the Building Department, if they come up here and ask for a permit, they are going to have to give it to them. Mr. Mullis: The building permit, to get to do what they are going to do, they won't get the permit of certificate of zoning until they get the 150 seats, plus the 2500 sq. ft. Mayor Howell: Exactly. They can get . . . . Commissioner Edwards: They can get (inaudible) lighting and all that. . . Mayor Howell: Exactly. But it is properly zoned for the restaurant and they can come up here and get --- if weren't concerned. . . Mr. Mullis: If they meet the building code and all other codes. Mayor Howell: Absolutely. They are going to have to do that and you all understand that. All right there goes my second stand. Any further discussion? All in favor? Commissioner Gulliford: Aye Commissioner Edwards: Aye Commissioner Gulliford: You got caught. Mayor Howell: You are voting Aye? Commissioner Edwards: Yes. Mayor Howell: Okay . The motion is carried that we are saying that they went beyond their bounds, but is a moot question. Any further business? Mr. Fellows: Yes, Mr. Mayor. The ordinance code requires a concept rule of Planned Unit Developments, and we have before the Community Development Board the Selva Links develop- ment. It is a very complicated procedure as there are a number of items in there that require a decision that the staff is not capable of making on their own. For example: Traffic Safety - the amount of traffic that is ¢nine to he rieveloned: thev are nronosing Atlantic Beach Commission Special Meeting - March 16, 1987 18 to put roads through city property, which in effect will make that city property not usable; they are proposing a drainage circulation system where the backs of the houses would oe very near a very large drainage retention area, where some erosion may occur. Now the ordinance says we may retain consultants to assist in the review. We would like to forward this to a consultant to get some in-put on this thing; but, these people have invested considerable sums and we are trying to accommodate them, but there are questions in here that need to be addressed before we go any further. We did not want to take this step because it is going to hold them up another 30-45 days, unless the City Commission agreed with the concept of submitting this thing to the consulting planners and engineers to get some in-put from them; and, of course the costs of that are borne by the applicant. We have not in the past been faced with anything of this magnitude, at least while I have been here, perhaps the Commission has, but there have been certain precedents set in the past which have not required other developers to go through this process. My inclination is to try to make a determination with you on this concept in-house but because the development has engendered a great deal of controversy by the people who live in that area, I thought perhaps we should be on safe ground and submit the thing to consultants to make sure our bases are covered. Mayor Howell: You are absolutely correct in the statement you made that this has never been done before. Again, we get back to this point-all kinds of stones in the road and it is a preliminary thing. Certainly this is preliminary. It has been my experience in con- sideration of this PUD stuff, that the concept of all this is that it went to the Planning Board, which is now the Community Development Board, basically they approved the concept. That is all we are trying to do at this point. I can well understand that there are some questions about some of the layout and so on and so forth, but if we are going to make developers spend thousands and thousands of dollars, and come in with these very detailed set of engineering plans on this particular concept that isn't going to get approved, and they have to go back and do this all over again, where in the world are we going to go? Mr. Fellows: That is my reaction also, Mr. Mayor, but I wanted to run this by the Commission tonight. It is my opinion that thisconcept procedure is a very broad approach of what they will do, and in no way can you get down to very precise details until it goes through the Community Development Board and they give approval to the concept or the idea, then, it is going to come before the City Commission, and at some point along the way they will have to make this investment; but, I see the investment being made after the Planned Unit Development is re-zoned with the conditions being to the satisfaction to the City Commission. Questions have been brought up by citizens and by others. Some of these questions need to be answered now before the concept stage. I am not qualified to judge what is a safe entrance and what is not. My reaction at this point is to say that after this goes to the Community Development Board and the City Commission, we will then employ whatever consultants are necessary to make sure that these questions are addressed and resolved to the approval of the City Commission. We don't need to take that step at this particular point as it a broad brush concept. It is an (inaudible). Mayor Howell: We did not take that approach with Selva Lakes, which is virtually a twin to this development where they were building duplexes, where these are single family homes. There in lies the difference. The density of this proposed subdivision is less than Selva Lakes; it has more ingress and egress than Selva Lakes. I don't understand why we have to start nitpicking at this point, nor why it cannot go through its normal way every other PUD has always gone through the city the way it has been handled, and let it come to the City Commission. At that point we get into it, which we have done every time. Mr. Fellows: That has been my observation, but I wanted the Commission to know that points have been raised by citizens and others, and I just wanted to make sure the procedure was approved by you and we will follow in the uenerally accepted precedent (inaudible). • Atlantic Beach Commission Special Meeting - March 16, 1987 19 (There is a space that is inaudible on this transcribing machine and tape - ) Commissioner Cook: I have seen two different plans. Evidently, somebody has already made some kind of judgement about one (inaudible) is that correct? Mr. Fellows: Yes, we have met with the developers on three (3) occasions, but there are some technical questions, Mayor, that I am not competent to answer nor is anyone else in the building department. Mayor Howell: Well were the technical questions raised by Selva Marina residents. In other words they are competent to raise the questions? Mr. Fellows: The number of citzens and people who have inquired into this, yes. Commissioner Gulliford: Well I don't think you can pre-empt every question that might arise in the future. And, as you have said, it is not something where precedence for that has been established. That would unique and out of the ordinary, and the exception to everything we have done in the past, therefore, I agree with you. Or, at least that is what I think you said. Mayor Howell: Well, so far as I know, I don't know why this one would come under different guidelines. Commissioner Gulliford: Well I agree with that. Mayor Howell: We have been up here for two hours arguing who has authority, whether it be a board or the City Commission, and I think it is going to be the City Commission. I think the final decisions will be made by the City Commission, whatever they may be. Commissioner Gulliford: That's right. Mayor Howell declared the meeting adjourned. 9:40 P.M. /`; 1 (4/ William S. Howell Mayor/Presiding Officer ATTEST: Adelaide R. Tucker .City Clerk