Community Development Board - Regular Meeting

Good afternoon. This meeting of community development board is called to order on January 20. Welcome, everyone. If you would please rise and join me with the invocation followed by the pledge of allegiance.

Oh, invocation now? Invocation. Sure. Okay. Dear father, thank you for today. Thank you for beautiful day outside. Thank you for the lives of everyone in this room or even the opportunity to serve on this board. I pray you give us wisdom to lead with integrity and make decisions in accordance with the laws of the city. We praise you for your grace. We praise you for your mercy. It must be slow to speak, quick to listen today, that you give us wisdom in all decisions we make. Thank you for the grace and mercy in our lives. We pray this in Jesus name. Amen. Amen. Amen.

Please join us in the pledge of allegiance. I pledge allegiance to the flag of The United States Of America and to the republic for which it stands, one nation under god, indivisible, with liberty, and justice for all. This board consists of seven members and one alternate who are appointed by the city council and serve voluntarily. I am Michael Butzczak, and I'll ask the other members and the staff to introduce themselves beginning on my left.

Andy Park. Mike Mastrocero.

Jay Danio, attorney from the board.

Rosemary Call, City Clerk.

Matt Minich, Assistant City Attorney.

Ted Kozak, Planning and Development.

Lauren Matzke, Planning and Development. Diane Achanelli.

Kurt Heinrichs.

Michelle Chenault.

Andrew Huff. Please remember to turn off your cell phones so that they do not become a distraction during the meeting. Please also refrain from having conversations in this room so that we might hear all the testimony given today. To ensure a complete record of this board's actions, we ask that each individual wishing to speak, including the applicant, speak into the microphone at the podium in front of us. Clearly state your name and spell your last name for the clerk. And I will ask all those in attendance today who plan to speak to please rise and be sworn in by the clerk.

Thanks for that team. Do you affirm the public truth throughout your entire testimony? Yes.

Thank you.

Agenda of today's meeting are on the podium to your left near the entry door. Also on this podium are a roster of the community development board, the list of city staff and experts on their resumes, the board's rules of procedure, and the annual schedule of this board. Our first order of business to review and approve the minutes from last month's meeting. May I have a motion for approval of minutes?

I make a motion to approve the minutes from last month's meeting.

Do I second? Second. Motion made and seconded. Any discussion? There being none, all in favor say aye. Aye. All opposed? Motion carries. This board has adopted, excuse me, Is there any person wishing here today wishing to address the board on matters that do not appear on today's agenda? Seeing none, we'll continue on.

This board has adopted a consent agenda format, and the consent items are identified as such on the agenda. Consent agenda items are those items for which the planning and development department recommends approval and the applicant is in agreement with any proposed conditions. Please note that written comments to the case that have been received today do not result in any item being removed from the consent agenda. Items may be removed from the consent agenda today by a member of the board, a member of the staff, or any person in the audience for questions or objections. I will read each item on the consent agenda, and if any person wishes to remove this item from the consent agenda, please state or raise your hand and we will remove it from the consent agenda.

Items removed from the consent agenda will be heard in the regular order of the meeting. Items that remain on the consent agenda will be approved with a single vote as to each type of hearing. Mister chairman, I

wanna interrupt you. You have a couple of requests for continuance before you get to the individual items on the consent agenda, Okay.

We'll approach those first. There are two requests for continuance on today's agenda. They are for item 4.1, CPA 02/2001 comprehensive plan amendments to establish new planned redevelopment district overlay future land use category with associated bonuses and incorporate policies for a new North Greenwood Community overlay district. Does anybody wish to have that? We'll do continue as well as one motion.

It seems like it'd be the same applicant technically, right? And next is 4.2 LUP twenty twenty five-eleven thousand and five, a city initiated amendment to the future land use map to apply a new plan to redevelopment district overlay to the area encompassing the North Greenwood CRA boundary. That's probably sufficient to get everybody to notice where we're at. Do I have a motion to continue from anyone? Do we have any questions of the city?

I move to continue case number 4.1 CPA two zero two five-ten zero one and four point two LUP twenty twenty five-eleven thousand and five on today's agenda based on the evidence in the record, including the application and the staff report, and hereby adopt the findings of fact and conclusions of law stated in the staff report with conditions of approval as listed.

Last part, we need to adopt anything. We're adopting everything.

Yeah. Okay.

That works. Second. Second. Motion made and seconded. Is there any discussion? There being none, all in favor say aye.

Aye.

All opposed? Motion carries. Okay. Back to the consent agenda. I've read the introductory portion already. Now I'll begin reading the cases so we can, see which ones remain at consent. First matter is FLD twenty twenty five-seven thousand seventeen and TDR two zero two five dash zero seven zero zero one. This is a flexible development approval to add one resort attached dwelling unit through a transfer of development rights as part of a proposed six resort attached dwelling units in the tourist zoning district and the old Florida district of Beach by design for the property located at 612 Bay Esplanade. Does anybody wish to have this matter removed from the consent agenda?

Right. Mr. Chairman, just so you know, we did provide the board with a memo that had an additional condition of approval. We just want to make sure that was incorporated into whatever

Whatever motion we have, yeah. Do see that? Any other two relate to the appeals? Okay. Thank you for bringing up my attention.

Next item on the consent agenda is FLD two zero 25Dash08021 approval for an existing two unit resort attached dwelling in the tourist zoning district in the Old Florida district of Beach by design for the property located at 26 Hollywood Street. Does anybody wish to have this item removed from the consent agenda? Seeing none, that will remain. And next one is FLD2025Dash09023, a flexible development approval for the conversion to retail sales and services, a wellness clinic in the office district as a comprehensive infill redevelopment project for the property at 611 Druid Road East, Suites 305 And 306. Does anybody wish to have this matter removed from the consent agenda?

There being none, do I, as noted by the city, there is an additional conditional approval for FLD2025Dash zero seven zero one seven and TDR two zero two five dash zero seven zero zero one, which is item 5.1 on the consent agenda. So with that in mind, that would be part of any motion for approval we'd have today. So do I have a motion to approve the items of the consent agenda?

I make a motion to approve the three items on the consent I'll

be happy to read that to you, Mr. Jones. Condition approval number 22, prior to the issuance of any permits utilizing the transfer development rights, a special warranty deed transferring the development rights prepared to the city's satisfaction shall be executed and recorded prior to the issuance of any permits. Thank you for asking that question. Okay. Continue with your motion, I'm sorry.

I have a motion to approve the three cases starting with 5.1 FLD 20,250,717 TDR two zero two five dash seven zero zero one five point two, which is FLD2025Dash80215.3 FOD 202509023. I move to approve these cases on today's consent agenda based on the evidence in the record, including the application and staff report and hereby adopt the findings of fact and conclusions of the law stated in the staff reports with conditions of approved as listed.

Together with this amendment.

Along with the conditional approval that prior to the issuance on item number 5.1, that prior to the issuance of any permits utilizing the transfer development rights TDRs, a special warranty deed transferring the development rights prepared to the city satisfaction shall be executed and recorded prior to issuance of any

think, other one, is is approved? Think, carries. The motion next item on our agenda is 6.1, appeals. We don't do a lot of appeals, but so I'm certain, mister or Jay, we've followed level three, more or less procedures.

Actually following level two. Level two. I just

want to make sure that I read the correct instructions. So same as a level two case. Very good. Now I'll read those procedures and we'll just go on to that matter. All level two cases such as flexible development are considered quasi judicial hearings.

In quasi judicial hearings, the Community Development Board reviews the application, the staff report correspondence and all evidence presented today and makes the final decision subject to appeal. This board has previously qualified all the city staff who will testify as experts in the area of professional training, education, and experience. Melissa City Staff Experts and their resumes are in the handbook on the podium near the entry door. Any other professionals who desire to be qualified as an expert witness shall so request at the beginning of the case and present a resume to each board member. The board shall determine whether or not to qualify the person as an expert and in what field of study.

At the beginning of each level two case, will ask for anyone who wishes to request party status to come forward and state your reasons. Party status may be granted if the person requesting such status demonstrates that he or she is a substantially infected person. The board will then determine whether or not to grant party status, then the case will proceed as follows. Requests for party status, presentation by planning and development staff, ten minutes maximum, presentation by the applicant, ten minutes maximum, presentation by persons with party status, five minutes per party maximum, cross examination of witnesses by planning and development staff, cross examination of witnesses by applicant, cross examination of witnesses by persons with party status, comments by the public, three minutes per person, closing remarks by the planning and development staff, three minutes maximum, closing remarks by the person party status, three minutes maximum, and closing remarks by the applicant, three minutes maximum. Then we'll close the public hearing and have a discussion and vote by the board.

Our first level two case today is APP2025Dash12001. It's the appeal of a denial of a minimal state minimum standard development tree removal permit. Medium density medium high density residential district for the property located at 1934 Marlington Way. Requested is to approve to remove a shade tree, a live oak adjacent to the Southeast Property Line and replace with two accent trees, crape myrtle adjacent to the Southwest Property Line. And that's the description of the case today, and we were ready to proceed.

Before we go forward, I did want to, it's kinda partly public service, but also so people are aware, there was an email related to this case that went out to the party that is appealing, and it sought to collect a development services review fee of some 3 and a half thousand dollars. It looked very official. It had the City of Clearwater logo on it, and

it

had, at the very bottom, Community Development Board Chair of Buczikas invoice attached and instructed the person receiving it not to respond any other way by email, and they would be given wire instructions and then to make sure all the details are correct so that wire can be confirmed. That did not come from the city. It certainly did not come from me. But I bring it to people's attention because I think that the applicant or the appellate was was wise in capturing capturing that and bringing it to the city's attention. There are a lot of scams out there nowadays, and this is but one of them.

And the city wouldn't be communicating that way. It was a very interesting email address. I think it was something like city of Clearwater Community Development Board something else at USA dot com. So it was not the typical city domain and the email, and I think that might have been what triggered them, but we appreciate the fact that they reached out and we were able to clarify for the for them that this was not a city request, and please don't be fooled. So that's part public service, but also so it's clear to everybody that we weren't looking to do anything unusual here. Certainly not

me. At least it come from an Arab prince this time.

Pardon me?

At least it didn't come from an Arab prince this time.

That's true. That's true. You never know. I'm not an Arab prince either, so that's good to hear. So if we want to proceed.

I I think the appellant took him, he said, three seconds to realize fraudulent this morning.

That's, yeah, it, I looked at it and I'm like, okay, course, when I saw my name, said, this has got be fraudulent. But I do appreciate it being brought to attention.

Do we need to do requests for party status first?

Oh, I'm sorry, Request for party status. Thank you. Does anybody wish to seek party status in this case? Seeing none, then does any board member wish to have any disclose any ex parte communications on this appeal? Other than that email, none.

Okay.

Okay. So let's go ahead and proceed then.

All right. I got a couple of expert witnesses for the board today. First, I'd ask the board accept Mr. Ted Kozak as an expert witness in general planning, zoning, annexations, land use, rezoning amendments, demographics, site plan analysis of the land development code, land development code amendments, comprehensive planning, special area plans, and overlay districts, tree rating assessment, inventory, tree preservation techniques, Florida grades and standards for landscape materials and trees, international society of agriculture standards, land development code regarding trees and landscaping, and all the matters he is about to testify here on. My lord, Ted.

So motion to accept

do you wanna do them

all in one motion or

I was gonna do them one at a time.

Okay. We'll do

one at a

Do I have a motion to accept mister Kozak as an expert?

I move

to approve

mister Kozak as an expert.

Second? Second? Motion made and second. All in favor, say

aye. Aye.

All opposed? Motion carries. Please proceed.

Next, I'd ask the board to accept mister Robert Robichaud as an expert witness in tree rating, assessment inventory, tree preservation techniques, erosion and sediment control for construction, Florida grades and standards for landscape material and trees, International Society of Arbocutra standards, Land Development Code regarding trees and landscaping, and all other matters he is about to testify here on.

Do I have a motion to accept?

Second. I make a motion we accept Robert Robicheaux as expert witness.

Second. All in favor, aye. Aye. All opposed? Motion carries. Do you have any more or is that

That's all I've got for today.

I want

to be certain. And, Jay, just wanted to check with you. It's an appeal, but do we go first, the city first? Or do we go appellate first?

Yeah. No, appreciate the question. The code requires us to handle this in the standard quasi judicial under our procedures. It is important to note here, though, that when you get to the end, and this is set out in your staff report, but what you're looking for here is if you intend to move or find that the evidence supports granting the appeal and thereby overturning or modifying the decision appealed from, you would need to make three findings that are set forth in four-five zero four sub b. And sub b requires that you make those findings.

And the first is that the decision appealed from misconstrued or incorrectly interpreted the provisions of the development code, and that the decision of the Board will be in harmony with the general intent and purpose of this development code, not the decision below the decision of this Board will be in harmony. Okay? And finally, that the decision of the Board will not be detrimental to the public health, safety and general welfare. You would need to make a positive finding on all three of those to reverse or modify the decision appealed from. I know we don't do these a lot. That was set out in your staff report, but I just want to make sure we were

You have to cover all three, not just one. Correct,

please. So, you're inclined to move

that way, we want make sure they're

all cleared.

What was the third one again?

That the decision of the Community Development Board will not be detrimental to the public health, safety and general welfare.

So page six of the staff report right before where it's signed by Mr. Kozak has those three elements listed on there, and the code section that requires that, so everybody's aware. So as when we get to the point where we're discussing it and we have a motion, we can address those three elements. All right, so then since we are gonna proceed in the normal order since we file that according to the code as written, the city can proceed.

Thank you. The preamble will take longer than this hearing, but the once again, Ted Kozak, Planning and Development. And to my right is Robert Rameshow, if we could queue up the PowerPoint. Thank you. So this is APP 2020 Five-twelve-one-nineteen 34 Arlington Way.

As you can see, the tree at hand is in the photo. This is facing towards the home itself. And this is as the staff report talks about, a tree removal permit appeal. There was a permit that was denied for removal by Land Development Arborist staff, Robert here. And so we'll go briefly over some of the PowerPoint elements and where this is located.

So the property is where this orange rectangle is located in the a townhome development that was previously occupied by a nursery and developed from 2017 to 2019. Just Northwest of Belcher Road, and this property is along the end of a line of townhomes, and there's a retention man made lake, if you will, just to the back. So at the time of approval, this didn't need did not need any type of flexibility, so it met code in all respects when it was approved by a building permit in twenty sixteen, twenty seventeen. So there were some landscape plans that met code, site plans that met code, so everything was in accordance with the approved plans and the community development code, and that was what was built. Just very briefly, just showing you the zoning district, medium high density residential district off of Belcher Road.

Now we'll go through a line of photos since it's a little unusual. And just for the record, 2009 was the last time there was an appeal for a tree removal permit. So every seventeen years it seems like we do one. The to the left is a visual that's facing towards the house around facing northwest, so you can see mostly the tree crown. And then on the right facing down the street, we'll see more street photos, but this is facing along the home itself and the root area, concrete improvements and such.

Just another visual of the tree facing a little bit that you can see the tree lined street. So along Marlington Way, they're all the same they're all planted around the same time. So they're actually doing all quite well and quite healthy. You can see the root ball there, and there potentially we could we'll have a discussion at the very end that there could be some root pruning done, but essentially staff rep does not recommend the removal of this tree since it is healthy. And then facing down the street, you can see more of those mature and well growing trees that are in the neighborhood.

And then as discussed, this is the criteria that we are going to consider for the tree appeal pursuant to CDC Section 4.504. Substantial competent evidence needs to be met, and as already discussed, there are three decision appealed was misconstrued or

incorrectly

interpreted of the provisions of the development code. The decision of not approving the tree removal was based on ISA standards, as well as the other aspects of the land development code that talks about when you are eligible to remove a tree. At this point in time, there was none of that criteria met. And then two and three, the decision of the CDB. So, harmony with the general intent and purpose of the code.

Staff considers that as planted, it meets the code, and so did the landscape plans. So the landscape plan and the site plan were approved and were consistent and as planted. And then finally, the decision of this board, not detrimental to public health, safety, and general welfare, listed two or three future land use plan elements aspects. So it is staff's thought that the approval of the tree removal permit would not be consistent with the comprehensive plan. And that, I can take questions.

And we have a couple of things we could show on the I forget what this is called. I call it an overhead. This morning we met with the appellant, and because he did say his residents have concerns about future problems with roots per se. And he asked for suggestions, and you'll see here some if we could turn this on Some ways that you could mitigate future root growth at this time, the tree isn't large enough that it's an immediate impact or problem. However, trees grow, just like humans.

So on the left would be potentially a tree without any type of root mitigation or prevention measures. On the right is a snippet of one of the many different types of tree root mitigation companies, and they install a root barrier and also some chemicals and potentially preventing a rapid growth out that would potentially damage the adjacent concrete improvements. We could flip over to another one of these. And that's another visual again, cutting off the company name. There are many different company names.

So, just Sidewalk Shield, they call this. And then the last example we have here is almost similar to what we see here, a rectangle with future potential impacts to concrete improvements. So as this was would be installed as some type of a barrier with some type of chemical prevention measures. And then on top of this, all of these, we did talk with the appellant. He can provide his input on what we said, but it was receptive pretty positively.

He would still like to, of course, have this discussion today because it is important and it's obviously important to him and his neighbors that what could be done in the future. And it's a common issue throughout the city that and we really recommend and we really are very happy that the as a person of his board, he is willing to have this discussion. At the end, I have nothing else to prepare. So go ahead if you have any questions or we can hear from the appellant.

Anybody have any questions on this at least?

Are there alternatives to removing the tree? Is there a mitigation bank or is there anything that you provide for some other substitution of this issue right now?

You mean if removed or if not removed? I'm following the

question. If removed, yeah.

The if we can remove this. But the appellant offered in his appeal to replace this with two smaller trees on the side.

Is there a mechanism within the city code, whereas I know a lot of trees in my business I've removed, and I had to pay into a fund or something to that effect for the diameter of the tree. Does the city allow that or no?

We do, but and Robert could respond to that. In this case, since it's fairly new, it's not like an older development that has 30 inches tree that they're mitigating and paying to the tree fund. In this case, the inches that would be provided by the appellant with two crape myrtles versus a note could offset it, but it doesn't offset the one's a shade tree, one's an accent tree, one grows 15 to 30 feet high, which is accent. Mature trees go 35.

We So can't pay into a fund or anything to that effect?

Generally, we only do that if it's for construction. Okay. So this is simple tree permit that's just stating we want this tree removed, and we're gonna replace it, as opposed to we're building this, and the tree is going to be too drastically affected to preserve it, but it's a good tree.

Then we would accept mitigation.

What if he cut it down?

What do you mean?

What's the

What's the alternative Like, if

he was

to remove the tree tomorrow, what would what would occur?

It would be a fine.

And that amount is what?

$48 per inch.

That's a 12 inches tree, maybe.

Something like that. Eight, maybe.

So that Nine inches.

There also would be potential for enforcement fines if they did that without a permit.

That would be where the fine would come from.

So it would be $500 to remove the tree, plus or minus?

Pretty much, and then we would require

a replacement

tree. I don't know what sorry. Lauren Maskey, Planning and Development. If people are intentionally circumventing our rules, which fortunately this applicant is not, you know, we would have the ability to request from the Municipal Code Enforcement Board appropriate fines based on what the situation is. So, while our base code has a cost per inch of tree, we do have the ability to seek something beyond that as irreparable damages or things like that. So, I don't want to get into necessarily No,

I'm just trying to You know, would it

be less expensive

to just kind

of down

alternatives are. Because where my office is on Fort Harrison, we have 15 oak trees in the right of way that was planted by the townhouse project. And I assume the city has to maintain those now that they're in the right of way. Is that correct? And the entire sidewalk up and down is you know, there's trip hazard, which they express in these notes all along the right of way, and the city hasn't done anything about it.

I've tripped over it many times walking down the Publix, and, you know, I understand oak trees. I I live it. I breathe it every day. And is there an alternative tree they could plant here versus an oak since they don't like it? A palm tree, similar inches or something to that effect?

They this being a shade tree and that all the trees that were planted along that tree would be a shade tree. There are multiple species that would meet that. But at the end of the day, removing a tree every few years just to allow them to grow to certain a point and then cutting them down again would not achieve city goals and policies for shade. The intent of meeting the code is moving forward for a lifetime of shade. But beyond that, there are other ways you could address their request if, for some reason, we considered removal of this tree up and down the street through a new permit.

But, again, it's not meeting our criteria. It's there is a mechanism. Whether or not we agree with that mechanism is why we're here today.

Could they uplift it and move it to another location within the area?

It's not that old. It's as you get a tree that's larger than, let's say, 10 inches, it's more difficult to relocate, but it can get expensive. Even relocating a tree of eight years would probably be well over a few thousand dollars without it dying.

I guess I'm

I'm sorry. Go ahead, Andy.

Yeah. Brought could. It's I

brought bigger diameter down to the beach and planted it around my house. And when I was building a new home, they were too close to my footprint, and the city wouldn't allow me to move them even though I brought them down. And I did it anyway. I moved them 10 feet farther out and argued with the the landscape expert with the city, and I did it on my own anyway. I'm just wondering if there's an avenue for that because, obviously, they don't like the location of the tree and where it is. You know, it's their personal preference,

and I

recognize that. Just knowing through my experience throughout the state, yes, there are fields that would be far greater for a tree like this, but I've seen far more narrow spaces. And there are opportunities right now, while it's younger, to get down below in the roots. You have you could put some vaults, structural soils. All these are could get really expensive really quickly.

But the quickest and easiest and least expensive is what we just showed here. With you know, it's going to slow down the roots. It will give you maybe ten, twenty extra years before you have to move to the next step for potentially you dig down and you now modify the soils and allow the roots to grow in a different manner. Yes, I think this is a perfect location for this tree. It's almost equally in the middle of the rectangle, so.

Is the owner of the property only wanting to remove the tree simply to protect against a utility infringement, or does he have another personal reason? I mean, what is his real intention just because it might impact utilities that are nearby?

I'm pretty sure all of the above, but he's ready to answer it.

So they'll be speaking next.

Do you

have we have my question right here.

I'm not an expert on Theresa. Sensed that there were I think you used the phrase other mechanisms to work toward a solution. Did I hear that correctly?

There are. I mean, there are mechanisms that include just removal of tree starting again, and then there's mechanisms like we talked about, the tree barriers, the tree the root barriers, the root pruning, the structural structural soils. So incrementally different costs. But the easy solution, one of the mechanisms, which we don't agree with, is you remove this tree, which will be a domino effect that others will want the same given to them, and then all the trees will be the same age down come down the street. And there is a mechanism through a permitting process

to do this. Is there any type

of arborist report provided on this tree?

There is. I'm glad you asked. It should be in the packet, but we kept it here just to

is an arborist report from the city?

This is the ISA tree assessment form that was completed for the removal. And it takes into account all the mitigating factors of hazard risk.

Kenneth, can you explain like what the report

for? The fourth page of the go back to your

Mr. So the report is completed to go hand in hand with the denial and the assessment and why the city does not find

it. The

tree removal permit should be meeting a three

separate Robert, would you mind just explaining how you go about this when we have a permit request come in, perhaps understanding our process and how something comes about would be helpful.

So in general, when a tree permit is submitted, it will have the location, the species, and the reason for removal on the tree removal application. We will go to the site and do a assessment of the tree, taking in account everything from the roots to the shoots. We're grading the tree as it is in the field that day. And if the tree rates below a good tree, per our code, three is a good tree. If it's below a three, then we would issue the removal permit. If it's a three or greater, we would deny the tree removal permit.

Are these private residences or condo?

They're privately owned townhouse development.

Are they under an HOA or

Yes, it's under an association. Is that a tree in

the common area or is it in their footprint?

Okay.

There's two left. Think there's two left.

He said something normally allow tree removal for construction. I mean, don't know. Could he put in for a construction permit to build something there? If

it's irrelevant to the tree and its footprint, then it would like, you can't submit a permit to fix something in your kitchen and apply for a tree removal permit.

I'm just thinking like a

patio or something like that.

Allowed. Patio would be allowed, yes.

I'm trying to stay in our lane here while we're ruling on. If the applicant provided a countering arbors report stating some type of damage, what would the city's response be?

We would assess it and obviously have a communication with that person, we didn't proceed with such report. Just as we'll find out the concern about future impacts to utilities in the adjacent hardscape.

In that circumstance, the ultimate decision would be up to you

to Which which arbiters we would accept. So that would be a great question if you'd like to put it up again when appellate brings up, does their presentation, and then if we have questions So

from one of the pictures, it looks like and correct me if I'm wrong, please. It looks like the tree the utility services are parallel with your tree. So if the tree damaged the utility services, would the city of Clearwater bear that price to fix it? I mean, I know that just from the box to the house is mine. Right? And then from the box out to the street is yours. I

don't want to speak to that.

We're going way out.

That's outside of our scope and our department's scope. Mean, you're trying to street.

Mr. Chairman, let me jump You're in certainly trying to ask a question, but I don't know if if they need to respond for a second.

Chairman Park spoke well about staying in our lane. Like, we don't do these. I don't think we've had an appeal on this Board in five years, to my recollection, and not a tree appeal in seventeen years. So, we are still within the confines of our evidence. I know that it is a natural inclination to look for practical solutions. And as much as those can be achieved to be achieved with the appellant working with the city to do that, for our purposes, we need to conduct our quasi judicial hearing based on the evidence that's going to be presented to you and make our decision Do based upon

we have any other specific questions for the city? I'd like to get the appellant's presentation, because then I think as part of the cross examination process, can go back and ask some additional questions of each that would help us. Having just one side of the story at this point makes it it's taking us down a lot of ifs and what ifs, and that's not really going to give us a decision, or one that would could sustain challenge. So does anybody have any other questions for the city, or should we have the come forward? I'll have the applicant come forward. Nobody spoke up fast enough.

Diane, you had some attachment letters that they passed on. Oh, no. I

have those. Oh, great. Yeah. No. Just.

Good afternoon.

My name is James Persickney. I'm the one with the tree that we want to take out. I'd like to commend Robert and Ted. They've done a fine job. A lot of my questions have already been answered. And and one of the questions were, what's the fine? And, obviously, the fine is $48 per per inch of tree. It's about a nine inch tree. My question would be, is that a one time fine, or is it a fine followed on by an additional fine until compliance is rendered? So that I don't I don't know.

Yeah. The board the board isn't able to give you legal advice on that. I would suggest that either retain counsel, because I don't want for anyone on this Board to say, Oh, the fine's going to be X, and then the fine winds up being X times 35. And then you say, Well, I was promised. The Code Enforcement Board has a separate existence. They operate under Chapter 162. I think that city planning staff has already indicated that a fine for a potentially irremediable or irreparable fine can and frequently does extend much greater than that. So I would proceed I would recommend proceeding with caution, but also say that this Board cannot render legal advice to you.

No, no. I don't want any long term headaches. Can

you speak a little louder or talk to microphone?

Turn the microphone a little bit towards you.

There you go. Thank you.

How's that? Better?

Much better.

Okay. Sorry. Sorry. Okay. So, from a common sense point of view, it's a trip hazard. My concrete driveway has risen up probably about a half inch, you know, maybe three quarters. Some of my neighbors, a little bit more than that. So, you you know, yeah, I love the tree, but I also love not being sued. So we have to somewhat take that into consideration. We have to make a common sense decision here.

The the I agree with everything that Ted and and Robert presented. They're they they taught me a lot. In the comment I made to them, I I said I felt like I was teeing off with Tiger Woods. I'm I'm way out of my league. So I would commend them that they've done a wonderful job, but I was hoping that the panel could please reconsider my appeal such that we could come up with a better solution than the root block because that's gonna cost money.

The and I'm looking for the cheapest solution that that solves the problem. And to me, it's removal of the tree. We'll put something else in there. We'll put the great myrtle alongside the house to block the sun coming in the windows, and away we go. So that's about all I had to say. Any questions?

Did you retain and harbor yourself?

No. No. No. No. I relied on Robert's report.

How bad is the uneven sidewalks? And I mean, if there has there been any accidents whatsoever? No.

As a matter of fact, it's it's not too bad at this point, but if if someone were to trip on the sidewalk, I'm I'm liable.

What what's the homeowners association say about it all?

I'm actually on homeowners board. So, I'm kind of the focus of everybody's frustration regarding these trees. We all understand that there were almost two fifty trees on the on the property. So, we had to put them back somewhere. They all had to be placed somewhere. And and nobody has anything against trees. It's just that where they're sitting right now, it's not not the best place they could be.

I I had a couple other questions mainly for the city, I guess. But on on is the do something with the roofs to condense them or whatever so

they don't grow. There's a cost involved.

Yes.

Who picks up that cost? You or the city?

It would be us. Almost.

You. And if you don't do anything and just let it grow in twenty five years down the road, it's even a worse problem. Who picks up that cost? You or the city?

Well, I'll be I'll be replacing concrete. And I don't know what it costs to replace a slab of concrete, but I'm guessing in the thousands. I'd rather not do that if I don't have to. It it seems to me this is I'm just going you know, it's a black and white issue to me because I'm uninformed about trees. But it seems to me, if we can mitigate a 3 or $4,000 problem in the future for relatively cheaply now, let's do it. That's where I'm coming from.

Does anybody else have any questions of the applicant? And then we can go do the cross examination portion where they can each ask or we can ask each of them kind of questions bantering back and forth.

Is this common? Is this happening and maybe you did mention it to all the other residences down the street? Since all these trees appear to be in the same line.

Yeah.

And are growing at kind of the same rate. Are you getting damage to sidewalks and driveways further down?

Not everyone, no.

Not at this point. But many of us are, so

I don't know if I You can't really I'm sorry, you can't really speak from there, so

I did receive a letter, so if I may speak

When public comment comes, you can definitely address that question. Yeah. We just can't record you from there either, so that's problematic.

What did you think about the city's suggestion of root pruning to keep damage from happening to your truck? Well, I don't know what it costs.

It seems like it's feasible, but if the the cost outweigh the benefit, I I don't see it. I don't see it. Yeah. We gotta we gotta think on you know, we have 88 people in the in the neighborhood. Not everyone has this problem, but enough do that I'm trying to find a solution. You know, I got gotta being on the board, I have to find some kind of solution, and it's gotta be economical if if possible.

Do you know what utilities run within that area?

Water is, if you're facing the tree, the the the water is to the right about six feet, and there's an electric box to the left about seven or eight feet. And the the the sewer line is nowhere near it. It sewer's about 20 feet away.

Well, so the green box is electric.

That's electric. Yes.

Yeah. That's Anybody

else have any questions of miss Wurzicki? We're at the point with cross examination. If there's questions that you wanna it might be helpful if we have any additional questions before we open up the public comment to have both Ted and him at the podium. We can ask some questions if anybody has any more questions. If I'm going about that way. The city have any cross since nobody's comment, does the city have any cross examination? Do you have any cross examination. No? Okay. Do you have any questions of the city that you wanna ask them based upon what they said today?

No. But I just wanna once again, just wanna commend Robert and and Ted for their cooperation. They did a great job.

Now we come to the point of the meeting where we can take comments from the public. So sir, if you want to come forward, state your name when you get to the microphone, and please speak in the microphone. You have three minutes.

Hey, guys. Thank you. My name is Tom Ryan. I live right across the street from Jim. I did receive one of the notices as well, and I do have the exact same problem.

For the record, while I am not an arborist and have not submitted myself as an expert in a past life, I spent over twenty five years in the landscape and green industry. I am an Ohio certified nursery technician, a rainbird tech, and I've managed many commercial properties just like the one I live in now. Just to flesh out some of the issues, according to the University of Florida Extension and the Florida Natural Plant Society, a live oak which is the tree in question. Live oaks have large spreading canopies which is one of the limiting factors in using live oaks in smaller yards and landscapes. What we saw from the pictures as submitted is that this tree is surrounded on three sides by driveway, sidewalk, and the road.

The tree that we're seeing is an immature tree. These trees are going to get 40 to 80 feet tall by 40 by a 100 feet wide. And what they'll tell you is that the root systems of these live oaks are going to be as wide as the canopy. Okay, so I have the exact I did bring pictures I do have one on my phone if you'd like see it my water meter is within three feet or my water main is within three feet within the root system my sidewalk is already buckling it's up a half inch So what we're hearing is solutions that down the road what we heard is twenty years from now you might have to replace the tree, but I would respectfully disagree what I saw was number three in the code. I already have a safety hazard.

My wife is over 60 years old. I have grandchildren, and I have a tripping hazard caused by the wrong tree in the wrong place. Now I don't know how the landscape plan got approved. I don't know who put a live oak in that limited space. That really doesn't matter. It's water under the bridge. I understand shade trees. I'm a conservationist. I don't wanna see trees removed. What we have suggested is let's put trees you saw the picture of the lake.

We can put shade trees around the lake. We can do lots of things that are gonna protect our neighborhood and yes unfortunately this is a domino effect because the builder just came in and did this. We've got sweet gums and we've got live oats throughout the neighborhood and you know in in closing when can I

say one more

I'll give you a few more seconds?

Go ahead. When the city of Clearwater needed two clear power lines right outside my neighborhood they came in and took live outs down and shaved the sidewalk. So it seems like when there's an issue with general property, we can remove trees and do sidewalks. And we're simply asking for the same common sense issues. We'd like to get this issue resolved so that my property maintains its value.

Thank you. Is there anybody else from the public who has any comments to add on this matter? So now we shift on to closing remarks by planning and development staff.

Just in closing, just a reminder that a shade tree, as we talked about, would still be required to be replaced. So even the two, Craig Myrtles, do not qualify. So new shade tree would be required. If so, it to be removed. And shade tree would include, but not limited to, live oak, red maple, sweet gum, all types of species that are in the neighborhood or in.

I want to just go ahead and make a rather boring legal argument to you all, but still one that I think is important. As we know, this is a quasi judicial proceeding, which means the burden of proving their case is with the applicant and they must face their evidence on competence, substantial evidence here. We have three different criteria that are laid out for appeals. The first is that a decision appealed from misconstrued or incorrectly interpreted the provisions of this development code. We did not hear evidence today supporting this from the applicants, so I thought I would just make that clear to you all.

The second criteria, which I do not believe was met today, was the decision that the CDP will be in harmony with the general intent and purpose of this development code. I do not believe we heard any testimony on this either. Number three, in my opinion, it's debatable. However, this is just my legal argument, but I thought I should point that out to you all because in order to grant an approval of the appeal, that's to be based on competent substantial evidence presented at this proceeding, which I do not believe we heard. So Can

I ask a question?

Not to the other side, it's closing argument. We'll I'll go do a few more questions before we close the public hearing for your benefit. Want to see if the applicant has any closing comments.

I just want

to follow-up procedure. Yeah. Procedure laid out. Do you have any closing argument? You've got three minutes if you do.

I'm not able to answer all three conditions of what it takes to override the the permit denial. I'm just gonna go back to common sense again. And, really, what we need in this neighborhood is we need, you know, kind of a redo on our our landscape plan. And I would look to Ted and Robert to help us out with that. I can show you some pictures of the trip hazards, but it's not going to matter because we it's like I haven't fulfilled all three features that that we had to overcome here.

So based on that, if if we were to approve this override, it'd be it would be greatly appreciated because it would give us a basis to get started on a on a re landscape plan for these trees. We don't have any problem with the homeowner association spending money on doing this right. And the thing that we want to do, obviously, is mitigate future expenses. You know, we don't want to throw these people into a situation where in five years, they're going to spend 5,000 on a driveway, and then they're going to replace sidewalks and things like that. So that's all. Thank you very much for your time, by the way.

Thank you. And there are no parties party status. Before I close the public hearing, you had a question. I wanted I would just wanna see if there's any more questions we wanna pose so we can then deliberate amongst ourselves rather than start a discussion and have to reopen public comment. So you have a question?

I have a question for the the expert of the for landscaping. So this is a large shade tree. It's gonna grow very large. The root ball is gonna get very large. Do you see it problematic that all the utilities within this immediate vicinity of this tree are gonna be compromised?

I just had to pay $20,000 to run three phase power to an industrial building I have because of an oak tree that is probably 20 feet away from where the power line goes underground. And you have water, sewer, and electric, it looks like along that whole right away running parallel and then running perpendicular into the building. So it seems like it's surrounded completely, but you wanna go have a hazard to trim around that tree. Do you see that as a problem going forward over the next five to ten years for every one of these property owners that where their sidewalks can be pushed up, their utilities are in the way of pruning the roots? I mean, I wouldn't wanna go down there and do that.

Not five to ten years. No. We're looking at the we're talking fifty years. We're talking seventy years. As I described, there are incremental steps that can be taken as the tree grows.

It's no different. Humans have different incremental steps to keep healthy in difficult situations. So not to deflect the question, but there's you could say that that is a rationale for every single tree and say that could be a problem five years, ten years, twenty years, then we wouldn't have any tree stock whatsoever in the city. So, there are steps, and the immediate step could be, as I described, as simple as some root pruning, very inexpensive. Then it's going to have to step up.

It's the reality of the urban landscape. If we were all five acre parcels and acreages, then it's not gonna be an issue. But it's clear water is clearly in in urban communities, and we we value our trees. So it's a balance, and and, we're we welcome a dialogue and work towards every neighborhood that will hopefully have a tree canopy, both in the front and the rear.

To

the point he posed relative to new landscape plan, would you permit this current landscape plan now the way you see it set up, or would you look at it differently?

It would be, if we saw this tomorrow, we'd meet the rationale of what we see all the time. It meets the requirements of size and spacing, and the tree was planted. There's sometimes builders that put a tree and just jam it right up against the curb, but in this case it it was centered at least. But we would approve the landscape plan tomorrow.

The question I have for you is looking what the or the appellant asked for was to come back with a plan. Is there anything in denial of the appeal that would preclude them from doing so? Is there a time period where they can't come back and ask again? Or if they go get an arborist and find arborist that disagrees or something along those lines or they come up with a plan, they'd say, listen, a community as a whole would like to change our plan, so we can not have these issues on an ongoing basis into the future. Is any of that precluded by a denial of the appeal?

Ted, if you don't know the answer off the top of your head, I can

look it up. You're looking it up because I can only

tell you

the orange

because sometimes you can't reapply for something within a certain period of time, in which cases remedies are limited. In other instances, it's now the appeal, but if he's maybe coming back asking for something different, does the failure of the appeal preclude him for asking for something different? I would be surprised if it does, but I I don't know the answer to it myself. I'm asking it,

John Fam. I don't believe there is one. I don't

believe Well, my guess is it's not gonna be available on municode.com yet, but that was in the amendments that we brought forward last year, and we streamlined a little bit of it. And level one approvals, which are tree removal permit request is, just based on my best recollection, because I don't have that in front of me, does not have that same limitation. Level two applications have the timeframe delay, generally speaking, where it either has to be substantially different or you have to wait six to nine

months. And I I I got few, few, because because because we get appeal, so we get so few appeals from So level one it's not I I didn't I didn't think that the reset button was gonna happen where he couldn't come back right away, and I just want to because I think that that impacts the way I'm looking at this in a lot of ways.

Under a new application or

in the form of a continuance?

Under a new application.

Right, which

But, you know, he's got, again, I think that, and we'll get into, I'll explain my reasons for that when I, when we have our discussion, because I'm gonna go first and kind of explain some of my thoughts about some of the stuff I see, so we're on a safe footing from the standpoint of our procedures.

I have a question.

Sure. To whom are you addressing?

To the city, think, and to Lauren a little bit. But under the CDC Section four-five zero four, the code, the actual code for landscape developments, I hear from Andy, and I I know personally in Grovewood, our our literally our sidewalks are like this. It's unbelievable. The trees are the street is lifted up in a big natural hump, speed bump from that root. I I see this issue throughout the city in a lot of older communities.

So my question is and it's pretty broad, but I just wonder if that code should be reevaluated in a general sense. I know that's a big broad stroke, but it just seems like that our city is suffering after fifty years later not initially like this one. It's only eight years old, but he's trying to be preemptive, and and he sees what's coming. And I'm wondering if maybe we as a city shouldn't look at the code itself and prevent these repetitive situations from occurring throughout the city based on the code. Why not why not stop it at the beginning and allow shade trees around the water, allow shade trees other places when the development the developer or builder submits that plan.

I have the benefit not only of a crystal ball, but a past at least two, three different code updates. I've grinded my way through.

Okay. In different municipalities?

Different municipalities. Okay. One took twenty years.

Oh.

And the other took five years. And it becomes extremely political.

Okay.

And you will get every Sierra Club, every you will get both sides. And I'm just we're open to the counsel's pleasure, but it's not as simple as

And of course, know, I try to stay out of your I

know where you're going go. Go ahead.

But please, please.

You have an application before

you. Right.

Whether the code should or should not be modified at some point, it's certainly a valid question. It is, however, not relevant to this proceeding today.

If I can only because it was asked just one last addendum is we have updated the landscaping code a few times in my tenure here, smaller pieces not wholesale rewrites. And that would be as an example that some of you may be familiar with where prior to the more recent changes, I guess it would be in there probably like five, eight years ago or more, landscape islands in parking lots were much smaller and more frequent. And with that change, we made them, you know, more fewer but larger. So it's the size of, you know, two parking spaces instead of one and twenty spaces apart instead of 10. So to give more room for the shade trees to grow.

So there have been incremental changes as needed. We do try to respond to those things. We are fortunate. We actually have five arborists, certified arborists just on our planning and development staff, and we have several that are trained in landscape architecture. So when I when we're speaking to this, it really does come from a broad base of experience and education. So, thank you.

Thank you. That's great. Okay.

Asked, so we And then I'm going close-up the code. Go ahead.

I got the code in front of me actually. Okay. Looks like we're good. The prohibition on time to apply actually applies to level two cases, it's nine months, and then twelve months for level three cases. This was a level one case, so therefore those time frames would not apply, so they could go ahead and

try So he can pursue this, continue trying to pursue this, but in a different manner, and again, I'll talk, the answer to that question gives me some things I want to say during our discussion up here, but thank you.

Yeah, no problem.

Okay. You

had a question, and then

Very briefly, if the applicant was able to take the tree and move it, for lack of better term, somewhere else on the property in a manner that kept the tree healthy and sustainable, is that something the city would

accept? We can't look at that in a vacuum. At this point in time, perhaps, but then you get every tree that violates the approved landscape plan to be located elsewhere on a property, then if you shove every tree to the rear, then now you have no street trees, it's completely different than an approved landscape plan. Essentially, it would not be approved to relocate. We potentially, they could relocate this tree, plant a new tree that's a shade tree again in the same place. That's slightly better, but it's still not meeting. Okay.

I'm going go ahead and close the public comment so we can deliberate as a Board. Usually, I'll speak last, but I'm going to speak first because of a couple of thoughts I just wanted to share. I do think that it's very important that we come back to, at the end of the day, the three elements, all of which have to be met for us to do the, to grant the appeal and send this back. That being said, the reason why I asked the question about whether the applicant is precluded from starting from scratch Ties into two things. One thing that I've seen on this board, my previous tenure of two terms, now come back on, which is ending soon, on this tenure, is the number of times where people have come to us, and it really does require expert testimony, and we have an expert from the one side, we have no expert from the other side.

There's nothing really to contradict the city's expert here, and that's a concern because I think from an equitable standpoint, there may be some other options out there. It's not for us to figure out what those options are. So a lot of the if questions, as nice as they are, they don't get us to what our job is, and had there been an expert, we could have asked the experts and decided we feel that this is a more prudent path and reversed the appeal, or we feel the city's path is a more prudent path based upon the expert testimony and stuck with the city's decision, and we kind of only have the one expert today, And that, and the reason why I asked the question, going back to the question about is he precluded from refiling, he could go out there now, get an arborist, get an expert, identify what the options are, what those costs are, what alternatives are under our code, and go back to the city either with a new application or a proposal, that might even be something that the association, the HOA comes back with to try and change what they've got going in their community as a whole for the benefit of the members of that HOA.

I don't think he's there yet, and I think that option remains, and that brings me to the point of the three elements. I do think that, you know, sidewalks being raised up pose a public health safety and general welfare hazard, and it will only get worse over time. I am going to guess, but I don't think it's relevant whether I guess or not, so I'm just gonna point out there as a guess. I'm gonna guess that the, either the HOA or the homeowners are responsible for their sidewalks. I do know that in other parts of the city, have gone and shaved sidewalks with their oak trees and a lot of paths and trails.

I live in the countryside area near Chautauqua Park, and the sidewalks that go along the whole back of the neighborhood on that driveway that takes you back the park have all been shaved and in some instances replaced just because people use it on a regular basis for exercise and the like and they prevent the trip hazards. So the city does do that on the sidewalks it controls, but in many HOAs, those lot lines either go to the middle of the street or to the curb and the sidewalks are maintained by the HOA or the property owner, and so I don't know which way it is here, but I think that there are ways to also take care of the sidewalk without impacting or compromising the tree. Those, shaving the concrete for the uneven stuff is something that's actually fairly cost effective and works as well to reduce that safety hazard that might be posed to others. I'm an attorney, I don't do personal injury law, so I'm a transactional attorney, but I do know that, you know, when you own real estate, you're liable for anything and everything that happens down there, whether you cause it or not, you're the owner of the real estate.

And, but that's a fact of owning real estate. You don't have that responsibility when you're a tenant, don't have that responsibility in other situations, but when you own the real estate, it's part of what goes with it, and I think it's significant in that respect. I do think, just to share from a personal experience for the applicant, and part of what you know, we apply common sense, we apply what we know from our experience in

the past.

I have two trees on my property that I would love nothing more than to remove. One of them has lifted my driveway up close to an inch and a half on the part that's closest to my garage. I didn't apply. I hired an arborist, and the arborist said this tree is healthy. It's this type of an oak. It's not likely gonna get removed. Five or ten years from now, call me up again. We'll take a look at it because of the age of the tree and the likely and there are other factors that might result in a zero permit. You have to replace with other things, but you're not gonna get it now, and I it still sits here today. And our neighborhood was developed in the late nineteen eighties, early nineteen nineties.

The trees the tree in front of my house was probably printed in like 'ninety two or 'ninety three, so it's been there for thirty plus years, and, you know, it's a pain to me because I'm out there doing work in front of my house, but it is what it is, and that's kind of what you have to deal with. And sometimes that's just you you have to weigh those risks or those those interests, the the interest of the tree, the interest of the landscape code against what you wanna do with the property in certain ways. Last thing I want to comment on, Jay, if I'm off on this, please correct me. A lot of the arguments brought up really were what I would call equitable arguments, trying to do what's just in our role, we have to look at whether the code allows for this or doesn't allow for this, whether it was misinterpreted, it's not really an equitable type of issue to look at, so we have to find all three elements. Again, I do think number three was met, I don't think we've got any testimony that the removal of the tree is something that he can meet the burden on items one and two of those three things, and it's always a problem for me.

I agree with you, generally speaking. I mean, you know, you're talking this isn't meant to sound the way it's going to come out, but you're not bound here by common sense, bound the city's code. A lot of times what you guys do, frequently those things are congress, right? They make sense and sometimes they diverge. The job of the City Council is to make policy. It's this jobs board in this context to apply that policy here. Right. And so that's in in this in the quasi judicial setting of this hearing. You're absolutely correct.

So with those comments, because I did think I wanted to address both sides of the equation and maybe give some instruction or some guidance to the appellant. Does anybody else have any comments or feedback they would like to, for the board to discuss amongst yourselves?

And I agree with you that I think it's very one-sided with the expert testimony. I don't think maybe he didn't realize to be prepared to that degree.

It happens more often than it doesn't happen here, where the side that doesn't agree with the city's decision doesn't come with an expert and makes it difficult for us, and then we have our answer type. That's just wanted to come back to that because that's kind of where I see this going.

So

And then we're all in the same field, or not all of us, but quite a few of us are in the same field in construction and development, and it's not reasonable to say that fifty years from now that tree is gonna affect the utilities. That tree is gonna affect the utilities a lot quicker than you realize. And the cost associated with not only that property, but all the properties down that road. Is it, you know, who bears the money on it? Is it the city gonna have to come in and relocate all that? And who's paying to look in? I mean, there's a it it it's faster than people realize. I mean, I run into it all the time where it it

expert for the city really explained it in in in accurate way and really understands the impact that the placement of a tree like this, which has expanding surface roots versus a hickory tree that has deep roots. I mean, live oaks are notorious for upending curbing utilities, sidewalks, driveways throughout the city, and I think they should probably be revisited because we're experts because we see it every day, and we live it. And I I don't think you explained it or recognize it in your testimony today.

I'm not in the business, but yet I use common sense. And the problem took place when it was built. It should have never been approved, but going back its its its past history. But I I thought our job, not our job, but the job is to change problems, give solutions instead of trying just to live with and and put up with another problem, another problem, another problem. I know I'm not meeting the criteria. But common sense says we should do something about it, but yet we cannot because our hands are tied by a code.

If we approve the appeal, though, what what does that do? I mean, we just basically hopefully draw attention to the fact that perhaps the code needs to be reevaluated at some point when it's not gonna be a twenty year battle. But if we keep it keep upholding the code, will it ever get changed?

Or maybe in their decisions when you make go out there at these properties and you have all the know, gonna to to that that's part of your equation. It's I I like the tree too. I mean, I live in a neighborhood that we've got tons of them. We've been cutting them down because they're so old. They're dying, and they've caused damage and everything else.

But I think we liking the tree, but not seeing the whole impact of what could happen in the cost for it. That's why the city of Clearwater has a massive budget does sewer repairs on a constant basis. Mhmm. And the majority of those are not from age. A lot of them are from trees and roots and root systems and TV ing and finding what the damage is down there. It's pretty astronomical if you don't think about it.

I'm not going to argue, but it's policy more than it is upon the code is my concern. And, you know, I'd like to try and think that we have to I think we're doing our job here from the standpoint of trying to provide some guidance to the applicant. But I will leave it to my comfort vote

and emotion.

Well, just as an engineer that's designed several 100 sites, that was my responsibility to make sure the trees weren't going to interrupt services on future. And so, you know, to say that it's the city's responsibility, well, they check the plans, but it's the design professional that lays the site out the development, the building, puts the trees where they put them, and they should be thinking of that. But, you know, to say the city should catch when we do it wrong is

Well, I think it's I think it's there's so many reviewers too, and people don't understand that when you go into planning development, you've got 10 reviewers or 20 reviewers, and neither one of them talk to the other one.

Jay wants

there. Want

to to with a hole.

A made a quick point, and I want to be careful. I forget how you phrased it, but along the lines of essentially, hey, here's some ideas for the applicant. We really can't do that, can Because practically, want to.

Clearly, can. We've been doing it for an hour, but what I would suggest to you is that you can't make it part of your decision making process. You are bound here by the code, and members should know the suggestion is well taken. If you have a you know, if there's an issue with the code, I will never suggest to you. I'm not going to advise you that you should, you know, make a decision that's contrary to the evidence and the code to send a message to counsel that they need to change

the code.

I would suggest instead that you, number eight on today's agenda, Board members to be heard, you don't like raise that. And I suggest that your city development staff may take that suggestion back to the folks who need to hear it and see how it comes out in legislative process. But yeah, you can make those suggestions, but you shouldn't and mustn't unless they are directly relevant to the criteria based your decision on them.

Well, and Jay, I do think that the conversation today is helpful to us kind of reading through our minds, coming back down to where the code what the code requires and what our obligations are. But those questions linger. You can't help as a human being not think about, gee, is there a way we can And do I want to give everybody the opportunity to explore that, but by the same token, I'm going keep reminding them, the end of the report is very clear and you started the you started the describing the procedural process out very clearly in the beginning that we have to and that was my big question. Is it all three? And the answer you answered in the very beginning. So

I do. And I and and and you're right. And there are functional our functions here are a little different. I'm here to advise you legally. And I recognize and appreciate, candidly, that you're looking for practical solutions to an issue. But I would be remiss in my job representing the Board if I didn't tell you to apply these things mechanically based That's on the what you're called to do by the city's code, and it does do violence to the city's code when those strictures are ignored.

Yeah. And for everybody's recollection, Jay's here to guide us. He's here to guide the city. So, his input isn't to take the city's position, his input is to say how we conduct ourselves correctly so that our decisions are beyond being contested. That being said, if there are any other discussion, or do I have a motion on the appeal? Do we have forms for the appeal? It's been

Yeah, it's in the back. It's in the back. So there's level two applications, whether inconsistent or consistent.

Well, and here, you're a little different. I agree that the level two motions are likely the most analogous to what we're doing here today. If your motion, though, is going to be to overturn, you would need to cite that code that we talked about, four-five zero four, and explicitly articulate those three factors. If it's not, then you can simply make a motion to deny based on the testimony and evidence of record.

Alright. That being said, do I have a motion for anyone on the appeal by mister Perzicki? If you move to deny his appeal, he's got process we kind of talked about, if you move to approve his appeal, you've got to follow Jay's guidance and cite those three elements and that they've been met and therefore the appeal is granted, but we also, I believe, have to give some direction to what we want staff to do with the appeal.

I move to approve case number four-fifty. I apologize. I move to approve the appeal and application a p p two zero two five dash one two zero zero one citing section code four dash five zero four dot b. Based on the evidence and testimony presented in application, the staff report, and at today's hearings, and hereby adopt the following findings of fact based on said evidence that are hold on. Said evidence.

Identify factual evidence and testimony relied upon to approve application. I believe that the application under code four dash five zero four dot b is not upheld in the three competent and as found based on substantial competent evidence presented by the applicant or other party that the following criteria has in fact been met. And hereby issue the conclusions of law that the application complies with the city community development code sections, again, Dash504DotB, and request that the staff develop a list of conditions of approval, including that he can move this tree to another area on the property or replace it with two crape myrtles and that the staff present a list of conditions for final approval at our meeting next month. Is that even close?

I'll second it. So I

want I just want to make sure that the record is clear. You're moving to grant the appeal. And in so doing, are moving that this board make a finding that the decision appealed from misconstrued or incorrectly interpreted the provision of the code. Is that right? And that this board's decision overturning the appeal or modifying the decision by moving the tree Correct. Will be in harmony with the general intent and purpose of the code. Is that correct?

That is correct.

And also that the decision of the board, if this motion carries modifying the decision appealed from will not be detrimental to the public health, safety and general welfare. Is that correct?

That is correct.

Is that the motion that you intend

to Yes, second.

You have a motion and a second.

So we have a motion and a second. Is there a discussion on the motion? I do have a comment. I heard the applicant specifically say he really can't speak to items one and two. So I don't know how that motion could be supported based upon the evidence we have in the record, but I'm throwing that out there in case anybody missed that in the transcript. So, does anybody else have any comments or discussion on the motion?

I like the motion. I think that the applicant can move the tree or replace similar diameter and place it somewhere in the rear of the property to meet the spirit of the code.

Any other comment or discussion on the motion?

I think she said you could move it or replace it with two non shade trees.

I did say that because that was in his application. So I will amend that if necessary to what the city had recommended that he replace this oak tree with another shade tree if requested.

Any other discussion on the motion?

I think you can say in another location.

In another location, correct.

I'll second.

Okay, so her amendment is acceptable to the second, so we don't have to vote on the amendments. The motion, as amended, calls for the relocation of an or replacement with another shade tree if it's not relocated on the property.

Correct. Okay. Thank you.

All in favor of the motion, aye.

Aye. I'm going ask you to do a roll call vote on this one.

Okay. Do a roll call vote.

Okay. Size what size shade tree? Similar.

And so the record is clear, if were voting in the affirmative, a yes vote on this motion means that you are voting To grant the appeal. To grant the appeal and modify the decision appealed from.

So, you want to call names off? Vote when your name is called off.

Member Echanelli? Aye. Member Heinrichs?

Nay.

Member Chenal? Aye. Member Huff?

Aye.

Member Butzigas?

Nay.

Member Park?

Aye.

Member Mastrocerio?

Aye. So we have

five-two. So the motion passes. And that will be reflected in the order that we prepared, and we'll go from there, I think. Okay? All right. Next item on our agenda is the director's report.

I would just like to remind everyone that next month's meeting in February is moved to Thursday due to the holiday week work session will be in the chambers on Tuesday. So that would be February 19 at our regular time, but Thursday, February 19.

Thank you for the reminder.

I had a

I remember you bring up last month and I don't think I entered it in my calendar, so that's helpful.

Thank you

so much. Anything else?

I do not have anything else to add. Thank you.

Thank you. Board members to be heard. And I'll say that I do think that we would have been better off directing the staff to take this up to City Council from one board to another than the action that we took, but that's my take on things just because of the hat I wear when I'm not here. There being nothing else, we are adjourned for today.