Planning and Zoning Board - Regular Meeting

Call the order here. Today uh is the board of zoning appeals meeting on September 22nd, 2025 at the last year community room. And we'll do a roll call, please. Tony Gray here. Patrice Patrick here. Robert Cyr here. James Wilton here. John Rinders here. Charles Lewis here. Heather Knuck here. Thank you. Um we'll all rise and say the pledge of allegiance. I pledge algiance 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.

Uh there any announcements, zoning official? Not at this time. Okay. Um, our next meeting is October 27th. Everybody look at their calendar if you have a problem. Let Rachel know or Sarah. Um, we we're going to have to swear and the clerk's going to have to swear in people. You want to do that now? If everybody will rise is going to testify or speak today and be sworn in. Anyone intending to provide testimony at today's proceedings, please stand and raise your right hand. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth in today's proceedings? I do. Thank you.

Um, we have the minutes that have just been passed out to everybody. We have to approve those um from the July 28th meeting because we our September meeting was cancelled. So, I'll entertain a motion to approve the July 28th minutes. Somebody seconded. So moved and second. Okay. So I don't know who moved it, but it's been moved and second that we approve the July 28th minutes for the uh board. Can I get clarification on the motion in the second? Well, Chuck Chuck gave the motion. Okay. Second. Okay. Yes.

Um so that's everybody's been approved. The um today's today we're going to consider the quasi judicial public hearing on v--3-2025 a request by Carlos Perez as the authorized applicant on behalf of open concept developers LLC property owner pursuant to chapter 26 section 16.10 10 upon the board of code for a 10-ft setback reduction to allow a 15t rear setback reduction instead of the required 25 ft of proposed multif family develop in a proposed multif family development. City, you're up.

Good afternoon board. Uh Rachel Barry, zoning official for the record and I have been sworn. The uh screen that is up right now is the proposed site plan that was included in your agenda packets in the staff report. So, just a basic summary of the request and some background information. Um, so just as it states in the title, this is a setback reduction request, a 10-ft reduction uh to allow a 15- ft rear yard setback instead of the required 25 ft. The property is located at 3930 San Roco Drive and it is zoned GM15, which is general f general multif family with a maximum density of 15 units per acre. The applicant is proposing an 8-unit development. Um they did meet with staff in design studio appointments. Uh misinformation indicated a 15t rear setback. So when we met with the applicant um earlier this year or late 2024, I believe it was earlier this year 2025. Um that's when we noticed the 15t setback in the rear and um noted that we could not approve it because the LDR state 25 ft. Um so the applicant has now applied for the variance. Uh section 1610B of the LDRs lists the approval criteria u which is also listed out on pages two and three of your staff report as well as the burden of persuasion. So, the burden of persuasion states, "The applicant shall be required to demonstrate that the granting of a variance will alleviate a clearly demonstrable hardship approaching confiscation as distinguished from a special privilege or convenience sought by the applicant, or that strict application of the ordinance would effectively prohibit or unreasonably restrict reasonable use of the property by reason of any one of the following that are listed um in the staff as well as on the the screen in front of you.

So, there's three criteria there. One would be exceptional narrowness, shallowess, size or shape of a specific property at the time of enactment of this ordinance which would be referring to the LDRs. Exceptional topographical conditions or other extraordinary and exceptional situation or conditions of such property or the condition situation or development of property immediately adjacent to the subject property. Um, if you have any questions for me, I can answer them or the applicant and agent are here. Um, and they would like they have some information for you all. I have a question. Sure.

Have there been any other requests in this subdivision for a reduction of your sift? Not to my knowledge. I know that the villas that are across the street um on on the same San Roco uh they received variances for additional driveways. Um that was a number of years ago but as far as setback reduction requests I'm I'm not aware of. Okay. Thank you. Yes. One question. Chuck Lewis for the record. Is this property subject to the deed restrictions first door aisles?

Uh possibly. But if so we we would not be involved in enforcing them. Okay. Apple, you're up. Thanks. Well, my name is Carl Rees. Thank you for this meeting. And actually, we are not real estate developers. Actually, we started this project. Can you use the microphone for me, please? Sure. Thank you so much. Actually, they record everything. So you know

ah okay well my name is Carlos Reyes and as I was explaining we are not real estate developers. This project started more than two years ago just after a dinner with friends in our families. Diego is one of our best friends. He's a civil engineer and his wife. Another friend from New York who was having dinner with us and his wife. I'm a cruise ship designer, an architect by training, but I designed cruise ships for the last 25 years. And we are not developers. And my wife is a real estate agent. And she said, "Well, Pontagora is the place where the construction and the activity is moving in Florida." And we said, "Well, why don't we find a lot and and build a nice property which we know how to design and that's how the project started." So

yeah. So, oh it's charging the presentation. Sorry. So, that's how we started the project and we have been designing. We like to believe that there are very nice spaces in cruise ships. So, we thought we can do something very modern and nice. We took a lot of time trying to find the right property. So I think that the frame that I would like to give you to to be able to start this presentation is that San Roeros is a project developed in full cooperation with zoning and regulatory offices. All decisions throughout the project have been based on meetings, official guidance and comments from the city staff always in the utmost good faith of compliance. That's the main thing in our frame. And as you will see through the presentation, we have take into consideration and apply every single point even if it if is small in the whole development of the project. That's what we are used to designing cruise ships. It has a lot of regulations and we cannot miss one ever. So even though it's a very long process because we have been two years into this project and we still don't have a a building permit, we have hundreds of emails that goes back and forth which would be impossible to show and explain to you. So we have compressed the presentation in 10 major happenings that happened through time in these two years and I believe that going through those 10 major points you will clearly understand where we are standing today. So if you kindly go to the next presentation to the next one. What you see in the screen is a timeline that we have prepared for you. As you see, it's a 24 months timeline from October 2023 to today. Those 10 happenings will explain you exactly where we are today and why we are here. After investing months on looking different properties here in in in in the city and actually one of our partners lives here, so that helped a

lot. We found one that we said okay this one is the one. So on October 18 we selected the lot and that was our first visit to the Soning in Punta Gorda before we purchased the lot obviously to clearly understand what is it that we could do with it as so through this presentation you will see that the timeline will have yellow indicators in the points that we are explaining and as we move along they will become green meaning we already explained them. So at all times you will see where we are in the presentation. So right now we are going to refer to the October 18 when we selected the lot. We did the first visit to Pontaorta Sony department. In that visit h we we met a gentleman called Frank Bear. Super nice guy. Super nice gentleman. We went to the office probably in the right day in the right time. He devoted like an hour and a half with us and explained us exactly every single aspect of the lot and he gave us the information that we were looking for. What was the maximum density? What was the setbacks? What was the distances between the the road and the the properties? What was the maximum height? And to our surprise, actually those are two lots. What you see there is not only one lot, it's two lots. If we would purchase one lot, we could do three homes. If we purchase two lots, we could do 11 homes. But then which to us didn't make sense but it is what it is. So we start observing the density of the street. You see in front of the lot we have some multifamilies but actually we did count of the units in front of us and 11 units was too high for the density of the of the street in our opinion. Sometimes it's not just about the regulation. We could stuff 11 units there, of course, and is easier to sell because they are smaller, but it would disrupt the normal use of the street that has a density

that in our opinion was more important than the regulation itself. So, because of that, we decided that nine units was a lot more consistent with the density of the of the place and we decided ourselves to lower it to nine units. So what you see on the right is his handwriting with his recommendations plus the the piece where indicates the regulation itself. So when we left that meeting the it was very clear outline of the guidelines and 11 units allowed. Can I interrupt you just for a minute please? This this says in the handwriting it says the rear set back 25 ft. Correct. We we go we go there. We're going to get to that.

Yes. Absolutely. And we never ignore it. We will show you. So if we go to the next one after that meeting and having really really clear what is it that we could do with the lot, we purchased the lot on November 9. This one is the copy of the closing statement. We purchased the lot for $213,328.72. Very happy day for all of us. So then after we purchased the lot, we went to the second meeting in Soning Bunt. Obviously from the moment that we start deciding on this lot and we purchased the lot, we start working on the design to see what we could fit with the guidelines that we were given and it was pretty good. So we went to the second meeting in Sony and if you kindly go to the next one what you see there is the two approaches that we had at that time. Obviously it was the first approach first time we visit it was very likely to be off and actually it was off. So we had two different options in which we preferred the second one because it had a nice entrance from the center of the of the project from the street to the park behind. And it turned out that we were completely wrong because the space in the back for maneuvering in the two rear units, it was not enough. And in addition to it, as you can see, we had the two entrances on the sides right at the property line. And they said no no no you cannot have that. You need 7 feet 6 inches before you start having driveway. So obviously that killed immediately both options because it was impossible to make it work. But okay with this new guidelines uh please note and this is very important that even from the first approach that we had first time we presented we have 25 ft in the back. So we went back to the drawing board and work on a solution of course and then

you kindly go to the next one. We went on December 28 to the third meeting. This meeting is very important. You will see because is later on you will see in the presentation that is the reason why we are here today. So we went to the third meeting. If you could go to the next one and we present this other option. This option allow enough space in the back to maneuvering as per the regulations. They were happy with it. We addressed the fact that we were entering in right right next to the property line and now you can see the distance the 76. So they were happy with that. But two new issues came in that meeting. The first one was that we had the two side entrances plus four other entrances as you see to the houses from the street from San Roco and they said no no no that's not allowed you cannot have six entrances in the same street you can have both entrances on the on the end at the ends and you can have with a permission that is no problem because it has been granted before one more entrance that's all and uh also the separation between the blocks became an issue. I don't know if it's clear for you to see there, but we have one block that goes parallel to the street, which is the horizontal one, and we have two other blocks on each side of the of the area right there where Diego is showing. The regulation said that we should have 10 ft separation between the blocks. And what you see there is 10 ft separation. But actually the regulation said that is 10 ft separation minimum. or half of the height of the building. Whatever is greater, we omitted that. And actually the building has 40 ft. So actually we should have 20 ft separation between them. So okay, both issues were flagged

there. But fortunately they were resolved right there with the great help of the experts that were sitting there. There were five people including the director especially one really senior gentleman who was everybody was referring to him and he was super helpful. So in the next slide you will see this. We took five sets of drawings to be able to give paper copies to everyone and he took one of them. The red lines that you see there are not our red lines are his red lines. So as we were addressing the different issues, he gave us the idea of moving the garage entrance to the two, no the next one. The next one that you see in the first block in front there are two houses in the extreme. So he said, why don't you move the car entrance to the side? So then you don't need those entrances coming from San Roco and then the two center ones just make it one and then you are in compliance. So okay, that was very easy at this point. As you could see, we lost another house. We had nine at the beginning. Now we have eight because since we had to leave all those distances of the side, it was impossible to fit nine. So we dropped another house. Okay, it is it was necessary. And then the 20 ft distance between the blocks, it would require 10 more feet. So then they said what you can do is move the two side buildings to the back 10 ft to allow the 20 ft between the building allowing 15 ft in the back. Now the next piece that I will show you is absolutely critical for for this case. If you could kindly see the screen and listen to the audio. [Music]

[Music] to have a 15

actually. [Music] How tall are they? [Music] It's half the building height for building.

So you're going to have to him to move. Not him. [Music]

Well, the good news is the the equipment equipment. Well, I mean, [Music]

any [Music] joined them and the whole thing back then. We have a lot of things. We have 10 plus.

Okay. So, as you hear it, we were very clearly been told five times during the conversation that we could have 15 ft in the back, not only verbally, but in writing. So, obviously, we were very happy because that would solve both issues right away. We left home. Yeah. By who, what date? I'll tell you in a sec those address. And did those people agreed to have their um conversations recorded. Yes, of course. You have you have a signed Actually, the conversation was recorded. Actually, you have a signed document that says that they agreed to have that conversation recorded. You have that.

Please allow me to answer. The record was taken by the Sony and ourselves. So, they said we are going to have an audio of the conversation and we said absolutely no problem. Can we have ours? Yeah, absolutely. No problem. So, we put a cell phone and this and the zoning has the same exact recording. Am I correct, Rachel Barry? Zoning official for the record. Um, that is correct. We record all of our design studio meetings and so um even if someone doesn't record theirs at the same time, they could submit a public records request and then get the audio that way. Mhm. So, uh you ask about the date for address. It was December 18th.

28th. 28th, sorry, December 28th and is in the records and it was recorded. Yes. By the city h so we can continue please after that. Oh after that in

on March 20th we went back and do do the work you know now we do these new indications. So on March 20 we came back to the zoning department to have another meeting and at the same day we had the meeting with the fire department. It is necessary to obtain an authorization from the fire department. So we had the meeting at the same time. So if you go to the next one we came with this new drawing. So now you see the 15 ft setback updated as per the previous meeting. Now you see the 20 ft block separation as it was required. H the fire department review was great was approved right away immediately. So at this point with all clear understanding and everything 100% clear we hired links engineering to develop the civil engineering. Now we started spending a lot of money on engineering work. Please continue. So links engineer start the their work. Um we developed what the principle that they wanted to approach for water management etc. And then on April 11, we have the fifth meeting with the zoning department. If you go please to the fifth meeting. This is the fifth meeting. Um as you see now the principle of water drainage is implemented but still it shows exactly the same as in the first one. 15 ft in the back 20 ft separation. And now we propose to to zoning if we will be allowed to include those two guest spaces between the buildings even though we were already meeting the regulation. Each house has two parking spaces inside the house and two guest spaces outside. But you know again farther to what the regulation calls for is important to provide a a good experience and good service in the design. So having four more parking

spaces always helps. So we asked Sonin if they would have any problem if if we have those two parking spaces on each side. They said no it's no problem you can have it. You are fulfilling already the levishing but it's okay you can have it. Great. So we presented we showed the principle and as a result of this meeting we hire now car engineering. Karens engineering they do the full development of the project. They do electrical mechanical structural everything. Now it's a lot more money into engineering. So we started the work. Well, what you see now in the screen, it was a really bad thing that has nothing to do with Sony, but we want to to show you is only one slide that would explain the whole situation just for you to understand. From May 24 to April 25th, we lost one year of time. And you will see why. On the meeting that we have on May 21st, uh we were asked to contact the Florida Department of Environmental Protection, Southwest Florida Management District. They are the ones who evaluate the principle of how you make the drainage in lot. So we did exactly as they said and on May 21st we went to see them. The whole year development it will be explained in one slide but it was critical for us because we lost one year. Can you please go at the 1124 5th meeting in zoning we were instructed to contact the Florida Department of Environmental Protection specifically the Southwest Florida Water Management District. Of course we did. We sent them the civil engineer that was developed by links and the assigned specialist asked a large number of requests for almost a year. Lynx Engineering repeatedly said that the requests were not applicable to this type of project, but the specialists continue rejecting their work. On

midFebruary, we fired Lynx. Obviously, we thought, well, you're not meeting what they are requiring. You're not doing your work. So, we fired them, which later proved to be very unfair and we felt terribly as they were correct. On February 26, 25, we received an email from the South Florida Management District and you will see it in the next page. The specialist handling the case was not working with them anymore and the file was now in the hands of the supervisor who realized that the requested information for almost a year was not needed. Exactly what Lynx has pointed out several times. I got a phone call from the the the supervisor when I was in the mall in Bocaratan and she told me this. Within 2 hours before I left the mall, she sent me the clearance from the uh water management district. It took her 2 hours and it took us one year of money grounded basically. So it was a terrible situation but what could we do at that point? Le linked engineer was very upset with us of course and we hired to we had to hire another company blue sky engineer to finally finish in the process on April 25. Obviously additional cost I know has nothing to do with zoning but it's just to portray to you the hard time that we have had with the project if we could kindly continue. This is the document that she sent us but it says that we were not requested to have all that documentation. It it took as I said two hours to fix it. Could you please continue? see. Okay. Now having that resolved after a year on May 1st we met the building department. So we had a meeting with if you can go further we had a a meeting with Ronald which was super helpful and he also send sat with us like for an

hour and review the drawings. What you see on the left is the list of the drawings that we do. We follow exactly the same level of detail that we follow with a cruise line project. He looked at the drawings. He was the chief building official. Reviewed the drawings and found it very complete which we were happy to hear that. He said that he did not see any issues and we agreed submitting that day for the permit. Nevertheless, he pointed out the 15t setback. But we explained the whole story behind and then he said, "Okay, if that is the case, I don't have anything to do with zoning. I'm building you send me the drawings and I'll do my work. It was very good news for us because he pointed out that maybe in three weeks, four weeks, we could have the the permit done. So after two years, it was a light after the in the tunnel, you know. So we left his office with Diego and before we went back home we said well why don't we stop for a second in the zoning department and let them know that we are going to to submit the drawings today. So we went it's just few blocks is five minutes. So we went there that was same May first visit to the Sony department. When we were there we were a little bit surprised because the office was empty. There were two people. So they told us that all the previous employees were let go all of them. So only there were two people. the new director who kindly met us and she also we didn't even have an appointment or anything like that but she also developed gave us a lot of time and look at the drawings and she pointed again the same issue with the 15 ft. So obviously we didn't have all the material to to defend ourselves like we have now but we we explained the situation. We show the drawings that we submitted to the point that we had them at that day

and we were explained that the the all the background and the justified dimensions. After reviewing we were informed that we could not ask even for a variance. So okay, we went back home to to the board again to try to resolve it with the new with the new information. Obviously trying to keep the existing engineering because we already had spent a lot a lot of money in engineering. So we went back home, we started working on it, myself, Diego, two more architects from our company and unfortunately the result was that it's impossible. We cannot make it work with the same engineering. we would need to do again the project and it would take a tremendous amount of time in redesign and obviously all the expenses related to it because the engineering doesn't work. So on June 5th we went again to the zoning department to explain that actually it was impossible to do it. We tried to do our best to comply with what we were requested now to go back to the 25 ft. But now at the stage that we were it was impossible to make it work. So we met with three people that were not in the zoning department that day and they were very attentive to our explanation and they really tried to to understand what was going on. Of course they couldn't make a decision at that second but they said okay we found grounds for you to at least ask for a for a variance. So you kindly go to the next one. H as I said we met with the three people that you see in your screen and it was impossible to adjust the design using the engineering already fully developed. We will need to redesign a new unit to be implemented in the two sides which would require new engineering new sets of drawings new water drainage calculations very expensive and very time consuming. For that reason we requested a new meeting at the zoning department to explain again the

situation. And on June 5th, we met three people who after our presentation found Mary to request the variance and we applied for the variance cent. And then September 22nd, today we are here in the variance meeting. So I think that these 10 points gives you a clear idea of why we are here and most important in the idea that we have not try to hide the fact that we knew about the 25 ft is that we were told that we could move it and based on that we designed the whole engineering and the point where we are today. If you kindly go to the next one now I would like to explain you the specifics of the parians. Our lot is located our lot is the blue the blue rectangle that you see in your screens. We are located behind Home Depot. The main parking lot is far away from the front of the building. You see the upper side of your of your screen is the entrance to the Home Depot. And that trapezoid form that you see above the the building is the parking lot for the Home Depot. Behind us there is a very small overflow I guess parking area where we have never seen car park I mean more than one or two cars parked there. Behind the building is the loading area but the loading area has a different entrance as you see on the right of your screen. There is an entrance from the street behind. Probably one time we have seen a a truck par there but actually no one uses it. The left corner of our lot, behind our lot is a lake where no construction will ever happen in the future. Now, the next slide is going to show you. Can we go to the next one, please? A closer view. The parking area behind is rarely used, as I said, and is not the main entrance at all for the lot.

San Roco Drive is a dead end. If you keep driving to the right, let's say, it ends at some point. There is a country club and you cannot keep going. So it's a it's a close dead end. Now it caught my attention of course I haven't measured but just by perception which sometimes is even more important than than dimensions. If you see in the floor plan the second house to the left of ours ours are the gray shaded areas that house seems almost align with ours is yeah so perception wise is almost the same as as what we are requesting today. I'm not saying that it's the same because I haven't measured it. But the point is one side of the 10 feet that we are getting close is in the corner of the lake which really doesn't make any difference. And the other one which is not the entire building, it's just the two points of the building. It's the two ends of the building is to a rear parking lot where you don't see absolutely any difference. There is in our opinion no community benefit or community harm in any possible way. If we move 10 ft to the back, the front of the building, which would be a completely different situation, is fulfilling the regulation 100%. If we go to the next one, please. Now you see the the 15 versus 25 setback create creates no change in the impact of the per the perception. Even in our opinion, it looks aligned with the with the left house. As I told you, h the neighbors would not be affected since the difference in the setback is not towards their property. You know, we have two neighbors, one on each side, but we are not requesting in any case to go any closer to them. So, they would not be affected at all. It's just two points in the setback. If we can go to the next one, please. We did a computerized rendering of how the property would look at 25 ft and 15 ft.

And because of the perception, if you were looking at the drawing floor or floor plan from above from the sky, obviously you could very easily see that there is a difference of 10 ft because you're looking at in this way. But none of us can do that. We are we will always be standing on ground. On ground is very difficult for the eye to catch that you're 10 ft farther or 10 ft closer. And on top of it, the parking lot where where we are standing there, it has an a difference elevation than our lot is lower than the lot, which makes even more difficult to have a real perception of distance. So in both cases, 10 ft or 15 ft, this is what you see from the parking lot, which it will be seen by no one, probably the driver of that pickup truck if he ever pay any attention at all. So again what I was saying it's no harm or benefit for the community in any way. If you go to the next one we would like to give you an idea of how the the project looks like. This is basically how it looks like. So the issue that we are having is in the far left point that you see in the wall right there where when you're standing in in the street is absolutely impossible to notice if it's a little bit farther or a little bit closer. You go to the next one. This has nothing to do with the distance. It's just for you to have a feeling of how the the project will look like. Next one. This is from another angle how it will look like. And this is what you would see if you are inside one of the homes. If any of you have interest in seeing how the project works inside and how the design is done, of course, we have all the drawings here and we will be very happy to to show you if you keep going. Now I would like to give you a market information of the last two year which affect us horribly. The national

producer price index data shows that the construction input costs have increased approximately by 1.3% year-over-year as of early 2025. Additionally, the long-term residential construction inflation averages about 5 to 6% annually in non-extraordinary periods. meaning that we have experienced already in this delay probably 12% difference in the price of the construction but that is not the worst the worst is that meanwhile local data you can refer to red fin or zillow in our case we also refer to the MLS which is the multiple listing system that the realtors use because my wife has access to it so we can do the proper analysis and unfortunately the prices in Puntaorta different to what two years ago was shown have declined time 19 to 20%. So what you can see is that while our construction prices have increased the projected sales prices have decreased. So that the divergence between the rising cost of the failing revenues in addition to the investment idling for two years make impossible to obtain any financial gain in this project today. Hopefully things change in the future. Can you go to the next what the variance deny would mean to us? We have invested a total of $363,000 consisting of the purchase of the lot, surveys, design, civil engineer, mechanical, electrical, plumbing and structural engineering, detail, drawings and legal expenses. With two years of burial investment, the construction cost increase over that time and the current selling prices, we are just aiming to break even. It would be financially impossible to absorb the cost of additional expenses in design engineering and the time that it would require also bearing the some cost of the work already invested.

Uh so the closing that I would like to give you is that in the best of our knowledge our project always was always in full compliance with all official guidance. We pay attention to the last absolute last point not omitting anything. We acting in the utmost good faith always following all instructions undoubtedly relying on zoning staff. I mean for us whatever they said we didn't even question ever because who else can we ask delays and reversals cause significant financial harm a lot nothing to do with the zoning department is the the the situation that I explained you with the water management district. If the variance is denied, we will be forced to abandon the project and it will be caused an undue hardship for our families who actually funded this project. So we respectfully request you approval of the variance. So I hope that this explain pretty much why we are here. Thank you very much to all of you.

Thank you. Very good.

Questions? Jeeoff, you got any questions? One shoot. Um, I took a tour of the street today and I photographed some buildings that were already on there. The building you showed won't look anything like it, but a lot of the buildings have a um they show like six and eight units with parking. And this is the the one they were talking about that had the driveway that had the variance for the pavement in the front. Um, and then the other thing that Mr. Leco, can zoning override a deed restriction in the local neighborhood? Well, I did talk to the president of the Association for Burnt Store Isles

and they haven't talked to you about any of this and they haven't approved anything. Who's sorry? I don't know who they are. The assoc the homeowners association of burnt store Isles where this project is located. We we were not even informed that there was an association in any way association and I talked to them today and you're clearly within the in their jurisdiction. It's first time we hear that there was an association. Well, you've had a lot of surprises for this. This is just another um surprise in the Greek tragedy apparently, but uh yeah, you need another proof. Okay. So, that's another thing that we have to

Right. Okay, we'll do it. Of course, the thing is if we don't have the variance, it's not even a point of doing it because we have to abandon the project. So, if we have the variance, of course, we will do whatever is needed in the process.

It exceeds everything that's in there. All those other buildings are in there with a 25 ft setback except for yours. So I I I don't in in my mind you haven't demonstrated to me the need to put I think you should redesign the building and make it fit in the footprint and then go get your approval from the builder association or homeowner association in in um in the aisles and get your permit. Well, we will submit to them whatever we need to submit to them. They won't approve this.

Well, as I as I said, this is news for us. It's the first time we hear about an association. I was a little shocked, too, when I was talking to them on the phone. All right. Thank you for the information. I have no questions. Um, well, I'll go first. I was just going to ask to see the the slide that you put up that had the um the the three I guess the burden of persuasion that's 16108C

um actually can you go I'm sorry can you go back to slide five I think it Here's the the requirement. A 15t rear yard. And which one is that? Slide. You talking about Rachel's slide or the applicants? Um the requirement I guess I was looking somewhere it was written. The requirements that it should be 25 foot if it backs to a water way, a street I or what was the third? Was that the burden of persuasion branches? No, it's No,

it's whatever the that was mentioned um in the audio during their presentation. I can try to see about pulling that up here.

And the audio was who who was giving you this guidance? five people that we made the the um what it design studio is that who it was regards meet what they call design studio so they get people on the right track. Mhm. Kind of on the wrong track I guess but yeah so I guess it wasn't clear were they advising you to to seek a 10-ft variant or were they saying it didn't qualify for the 25 and it qualified for a 15 foot? That's the part I I didn't

Oh we have provided copy of it. What they said is that we could and they suggested to move the two side units 10 ft back because there was no problem having 15 feet in the back. That's why we moved. Richard, what were they what were they saying? I don't I don't understand it either. Why would they

That was my understanding as well. I I don't know the why. Um I could make presumptions, but I I don't want to put, you know, any assumptions on record. Um I I I don't know why that was mentioned. Um, you know, the the single family district has different setback requirements. Um, but the multif family district, which is up on your screen now, um, minimum rear yard abuing another yard 25 ft, waterway or golf course 25 ft. But if you go up to the previous section, single family, um, that's where it does rear yard abuing another lot or green belt 15t. So for single family, it would be permitted. And then also if you are building a single family in a multif family lot then you can follow single family setbacks.

But unfortunately this so the the multifamily the requirement is if it's um backed to another person's yard a waterway a street or a golf course. And so maybe they were saying that G4 doesn't need to is there an or else? So, it doesn't abut a residential yard specifically. Um, but when we go to the highway commercial district, it does have a rear yard requirement as well. And so, that that's what it's referring to. Whether it's a residential yard or commercial yard, it's just the the separation requirements from um each zoning district. Can you say that again?

Sure. So, even though Home Depot doesn't necessarily have like a yard, you know, the way that we would commonly think of it behind the building in the code, um, if we were to go to the highway commercial district 3.10, um, they also have rear yard requirements as well.

A parking lot is considered a real job. So in the requirements for that district, it does have a minimum rear yard of 25 ft. And so they're 25 ft yard and this multif family yard would be abuting each other. Even though like I said, it's not like a typical yard that we would think of. You know, it is just space behind Home Depot. Any more? Yes. One last question. Uh Heather Kovki for the record.

Uh if one government body is giving advice and that conflicts with what we think our standards are, how do we resolve those issues? Well, that's a good question and we have an attorney here who can answer that. Don't put me on.

Yeah, I'm putting you on the hot spot. I I guess you know the the question is we have we've obviously have a mistake from the city. They've they've had a lot of mistakes too. They're not we're not the sole culpable party here I don't think. But what is the what does the case law say? Steven Levich for the record the interim city attorney for the city of Pagorta. So it has put the city into a conundrum here. because we've got the audio. I was apprised of it prior to today as well. So the position that the city is in is can they demonstrate when I say they I mean the applicant demonstrate that they relied upon the advice of city officials. So there's what's called specific performance. Did they rely upon bad advice? Sure they did. But it was the city officials that gave it to them. So if they relied upon it and if they can show that they are harmed in a way and excluding the 200 and I think it was $20 and some,000 they paid for the lot. I'm just going to round up to $100,000 they have in engineering and other costs. Could the city be on the hook for costs for their damage? Potentially. Um, so it puts the city into a unique position and the city is not opposed to the applicant being granted the variance because of where it butts up to. It butts up to Home Depot. Now, I'm not aware of the burnt store aisles HOA down there. Even if the city said we're not

opposed to it, or if you guys recommend, yeah, go ahead and have your 15t or your 10-ft variance, they may still have other problems with Burnt Store isles HOA, if that's what it's called, that we have no control over. Um, but hearing the audio and I was apprised of it, it puts the city into a unique position. There was a different case here not too long ago as well. The difference is is in that other case they had actually laid the foundation and had done a lot more. Here they've relied upon advice and actually have written drawings that have the city employees dictations on it. So they're relying upon it. Um but I can tell you the city's not opposed to them being able to build. But it may take a different avenue with burnt store. But Miss Nuvki, but to answer you directly, potentially the city could be on the hook for if they could demonstrate that they have damages. Whether they'll be successful in court, that I don't know.

Okay. Thank you. Okay. Does that answer your question? I I guess. I mean, I I I thought when Attorney Leven gave his opinion that he said that the city had no obligation to to make any changes. Um, not that they weren't culpable or liable for it, but they had no obligation to do that and the city could do as they please. That is correct. That is correct. Okay. Although the code says a 25- ft setback. Yeah,

that's what the code says. And we can take a hardline rule and say, "Look, it's a 25 foot setback regardless." Uh, they're asking for a variance based on bad advice provided by city employees. So, are you guys obligated to approve a proposed variance? No, you're not because of bad advice. I'm just letting you know there could be issues down the road. I don't know if it actually would or not. Um, but I would agree with Mr. Leaven. You're not obligated. Okay. Buy it. Anything else while I'm standing here? While he's up there.

Thank you. Appreciate it. I see you starting to No. All right. Um, I I do have a couple questions. Have you guys built any other multif family projects in in the county in the city? No, I don't know. No, you probably never built another one either. I I can show you 18 cruise ships but not one house. No. So So you do you know about the city's website that we have the entire land development regulations and you can access those? We did and that's where we gave that we should have 25 ft.

But obviously two things happened when we open our office in the east coast. We did all the drawings for the office and we went to the to the building department and then denied the permit because a regulation have changed. It was a minor thing that we resolved with no time and the answer from the gentleman was well we are here to have meetings with you. You know the website sometimes are not current to the regulations that's why we are here. So we learned that lesson in in a hard way. Easy to fix but in a hard way. So yes, we went to the website of course and that's why as you see our first issues of the design called for 25 ft we were respecting that as you know

we changed it because we were told by the utmost authorities in zoning that we could change it otherwise we wouldn't we would find another solution but now we are too much invested in time and and money relying 100% as you were saying on the advice from the best officials that we could ask So, so to answer your question, yes. Okay. Is is there can you put a cost on what it would if could you revise these at all? You can't revise these at all and keep would you have to lose a building? Would you lose parking?

As I explained in in the conversation when we were told that we could not even ask for the variance, we went back to redesign it. of course trying to use the same engineering and we did all our efforts to do it and the result is is impossible to redesign it using the same engineering. We would need to wipe it out and start all over again which at this point we better don't do anything. Yeah. Well, you did a great presentation very thorough and uh thank you. We understand where you're coming from which is 100% accurate. Okay. I do have one question, Tony Gray, for the record. Um,

on the other facility or the home that is a couple of blocks over that is clearly looks like it's in line with what your property would be requesting. That is a single family home. Is that correct? It's not a

No, I think it's is double like two homes, but many things could happen. Maybe that h that that construction is been there for 30 years. Who knows? And maybe the regulation was different. It could be a matter of perception. Sometimes what could happen is that you see it from above and it looks identical but maybe the lot line is a little bit shifted. So still fulfilling. But you you're right actually the the house seems to be in the same alignment. So that's why we insist that there is no harm to anyone at all if we go 10 ft or not 10 ft. It would be I mean you you could say no. Of course you can. And just just to let you know, we are not looking after the city, compensating us for anything at all. It's we just want to build it. That's it. You know, if you if you go back when you bought that property, you probably got a title insurance policy. That title insurance policy would reference if the homeowners association, the deed restrictions restrict your construction. It should have a you could get a copy from them too of of the thing. And some of those I'll get a copy then

have expired because of of age. We have a we have a statute that wipes them out. So I don't know I know I think all of the creek right has turned it over the deed restriction sort of to the city. They they no longer enforce theirs and that's Bernto aisles is part of Isles. It's just a different section. So I don't know. You need to you need to look at your title insurance and hire an attorney to have them see what what rights they have and what rights you have. My advice. Well, thank you very much. But we we hope we don't have to get to lawyers and without due respect or or anything like that. We just want to build it. That's all. Not not bothering anyone. I'm talking about the homeowners association to the city.

But the principle would be the same with the homeowners association. We don't want to bother the homeowners association. We don't want to build 11 units that we are entitled to. Yeah. Because we feel that it would harm the the the street. The density that they have is different. is it's not if a lot of people in one point putting 11 units there that would harm the the the street even though we could but we don't want to do that. We want to not have trouble with anyone. You can put 11 units there and be within the 25 foot restriction. You don't have to deal with the board.

Yes. But the problem with that is that you would have if you put 20 units 11 units there you have 22 cars every morning. That change completely the dynamics of the low density that the street has. It has nothing to do with the regulations. Of course, we can do there's condos across the street from it. They don't have so many. Those condos across it has four four units in one in one building. Correct. So, and it looks like there's about 15 of them. Yeah. But spreading a lot more space than ours. We will be concentrating a lot of people in just two lots, you know. I'm just saying what you're what you can do by the wall.

Yeah. I 2 by right cuz you can put your 11 units in there and still have a 25 ft setback and then you don't have to do the special exception. You can do that. That is correct. I would suggest. Okay, that is correct. But that's another year and another $100,000 which we would never ever be able to get out. So So Okay. So I'm I'm I'm hearing it's an added expense. I'm also hearing you saying you don't want to do it because it's both things of a um you know personal standard that you think you're going to impact that that is correct.

But if you own property and you want to build the building, you have rights and those rights are outlined in the building and zoning code and you can do that. You could put 11 units on that house and nobody's going to say a thing. 25 foot setback. You are 100% correct. But we would prefer not to have 11 units if we can not to harm the street. It would change the dynamic tremendously. The precedent that would be set allowing you to go around a setback would open a floodgate that I'm not interested in opening.

Well, when when the time comes if we get the variance, of course, I will have a meeting with the president and I will explain exactly what you're saying. I said we can build 11 homes, which in my opinion is crazy for the community. Sometimes it's not what you're entitled to. It's it's what is reasonable to do. Of of course probably we will get more profit if we build 11 units. But all the neighbors would be upset with us with all reason. I would be very upset if I have my house in front and somebody put 11 units in front of me. But yes, we would we would be entitled for but it's not the right thing to do. I don't know. Any more questions? Yeah, Jim Wilton for the record. Um, I wasn't aware of Berntore Isle's jurisdiction on this either until you mentioned it, Chuck.

Mhm. And do we know for sure that they have authority over this property because they're not here and I talked to Bill Page. Bill Page is the president. I mean, but that's their responsibility, right? They would have their own setting and their own hearing. Exactly. Right. I'm just I'm just saying if if we take a step here today and Bernto Isles comes in and turns out they do have jurisdiction over this and they can impose their requirements on this property, then they could blow everything up completely. That's right.

And I'm just I'm just wondering about moving forward in any way on this now if it's a fact that and we have to assume because we don't know there's no testimony on any of that about Bird Isles, right? that they would blow this whole thing up. So, I'm wondering whether it is advisable to table this to allow time to go to Bernto aisles because I don't want you to spend any more time on this if you don't have to either. But if we would approve it and you end up having to answer to Bernto aisles and they say, "No, we're never going to allow that." They have the authority to do that. Then all of this is for nothing. For nothing.

You're you're absolutely right. Even though I doubt that somebody who's looking for the well-being of the of the condominium, let's call it of the association would say, "I rather have you building 11 units and putting all that in the street than giving you 10 ft where nobody ever can see them. That would be so unreasonable." I understand. But if you went to them and they said, "We hear what you're saying and we won't object to it and you could bring that back to us," then that would be much more valuable information for us to base a decision on. I agree.

Bob Cyper for the record. You know, Jim, I think I think the problem here is going to put them even in more delay. That's way outside of our jurisdiction. That's a private right between land owners. The city has no control. the city. It's nothing to do with the city. We have to deal with city matters. I think we should make a decision here and move on. All right. So, we make our we make a decision and this goes up to city council to be voted on. Right.

It does. And if if I would assume if the homeless association has anything to do with it and I think that a lot of those associations that were formed more than 50 years ago, um I think most of those have died, tell you the truth. So, a lot of them are voluntary now. I know all of PGI, not not the burnt store part, the PGI part, they've they've turned down. So, I I'm not sure that's an issue, but it's not our issue. That's all I'm saying. That if they want to appear, I'm sure these guys will be talking to him. Yeah, cuz he was pretty adamant. Bill Page is running for city council, so his people should be at the next meeting. So,

that's how I look at it. Well, any any more questions from these applicants so we can move on. Okay. If none, thank you and great job. You did a good job. Thank you very much. Let's have let's have some discussion here and see what we want to do. You I'll start at your end. Um, are you looking for my opinion on the matter? Yes, I'm looking for your opinion on how we should move forward. We deny this.

I think we should approve the Can you put up the persuasion again while we're talking? Um, I think the second persuasion gives us an opportunity to call this an extraordinary circumstance in extraordinary and or exceptional situation. you know, uh I think they could make a I think I would make a strong case that they built their opinion on um on the advice of officials,

you know, and if if there was some harm, like if there was, you know, a single family home behind them and now they're going to have some huge thing, but that's a commercial property. It's the back of a commercial property. It's a parking lot. I don't think Home Depot um they might go away, but I don't think that structure as a commercial lot is going away anytime in the foreseeable future. So, I don't really see um harm to anyone to to okay a variance and I think we got enough there with number two exceptional situation.

I agree with you very strongly and I think we have an applicant here who step by step was trying to do the right thing. In fact, I think ethically um you did you went above and beyond to try to do the right thing and the fact that we gave the city gave bad advice really um you were operating believing that that was the correct way to proceed. And it felt like the city assumed that they could get the variance, you know, that that felt implied like, okay, well, we'll just seek a variance here because sometimes the right thing to do is the right thing to do. Patrice, I agree, Jim. I do too. I do too.

I agree. Chuck, any more you want to add to it?

No. Okay. I I not going to agree. I I I I think that they have an option. They can roll back and they can build the building inside with the 25 foot set back 11 units. I also think they've got another hurdle that that they've got to get over at and burn store which is I think is going to be really impactful. And I think that they're just going with the idea that hey, we need to we need to punt the ball and you know regroup and redo the design and put the building up as is. Yeah. And just not worry about because if this goes to city council, it's it's not going to get approved. All right. Uh entertain a motion to

I'll make the motion to to I'll second the motion. Do you want to read it to request approve for the city council to request approval? Yeah, that's it. Do we have to read it? No, you read this part. Rachel Barry is zoning official. For the record, if I may, if you would also include um with your recommendation u just a statement setting forth the reasons why that is your recommendation. Well, do we need to read this? However, do you want to merge your motion? Make the motion. Hey, John, hold on real fast. Bob, did you close the

Oh, no. I just need you to close it first before any motions come. Um, I guess we should I didn't even ask the public uh input. Is nobody's here to speak. Joe, are you here to speak for or against this? I guess he is. Oh, you haven't been sworn though. So, you guys I have not been sworn. I Sorry, I was late. I'll tell the truth.

Been here, done this. Also, uh, Deputy City Clerk Jennifer Falner, for the record, I had to take over for Alex because she had to go pick up her son. Um, okay. Go ahead. Raise your right hand. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth in today's proceedings? Yes, I do. Please make sure you state your name for the record and indicate that you have been sworn. Thank you.

Joe Como, 3959 San Roco Drive, unit 221. I live across the street from this. Okay. In process, I'm not sure, but to the best of my knowledge, our homeowners association was never notified of this potential construction. So, the lady who just left is my next door neighbor. Um, we hadn't heard anything and if I hadn't stopped and read the sign, I wouldn't have even known about this. So, that's one of the reasons we're here. Next, um, that's the that's the Home Depot loading dock. If you want to buy a unit backing up to the Home Depot loading dock, be my guest. It's across the street from me, and I tell you, they are 24 hours a day, 7 days a week, and every time they raise and lower the door, you hear it. So, it is what it is. If you had 11 units instead of eight units, I guarantee you our homeowners association would be down here in force with comments because it is a quiet small street. And where this unit is looking at going, you've got a duplex, a forplex, a duplex, another vacant lot, another vacant lot, and down kind of near where I am, there is one one single family home on that street. Everything else is a condo or a duplex. And ours are forplexes. The way the buildings are set up, they're kind of a U-shape. Uh, and there's four buildings uh in each one. And there's nine buildings. BSI, as I recall from the last BSI newsletter, they are still in litigation over whether or not they have the right to uh impose deed restrictions over uh city rules and that sort of thing. uh they got a little what started it was uh metal roofs after the hurricanes because their deed restrictions say no metal

roofs. People started putting metal roofs on and now they're trying to go back and enforce their deed restrictions uh and they're trying to raise money to do it because their court costs are getting a bit high. So, I'm not sure all of the uh the legality or where they stand on their right to enforce deed restrictions uh on owners as it stands now. Um and and where where we are in this area, we're kind of estranged from the main part of BSI because we're over on that side of the road and there's just us and then a group of uh duplexes back there. But, um, from a personal point of view, I don't see any problem at all. You couldn't tell 10 ft from the back of that thing cuz all it is is a grove of trees and and like I said, the uh Home Depot loading dock, you know, and and that's it. There's just kind of trees back there. Uh, about half of them went down and Ian, haven't grown back, but, you know, it's just, you know, there's no clear delineation back there. It's just kind of rough shrubbery and and some trees and stuff like that on the back side of that dock. So, um I just, you know, that's just not an official position from the homeowners association or anything else. Half of them are still up north. Um but from somebody who lives across the street, uh and and drives back and forth in front of that multiple times every day, I don't see the back of it from the road. Yeah,

it's fine. So, this will block that view for you. That'd be good for you. No, it's up. It's up that way. Um, the trees that block my view basically went down in Ian and it's going to take 50 or 60 years for those trees to go back unfortunately. So, anyhow, thank you for your comments. Yes, sir. Thank you. Good to see you. This is the second call for anybody speaking want to speak at the public hearing. Seeing none, the third request for public speakers. Hearing none, close public entertain a motion to close the public hearing. Move to close public hearing. Second. Second. It's moved and second to close the public hearing. All those in favor say I. I.

Motion carries unanimously. Okay. So, I'll now entertain a motion to approve or deny this variance. Okay. I'll make the motion based on the evidence and testimony presented at this public hearing for item B 032025. I find that this request is consistent with the city of comp from the board of comprehensive plan and move that we recommend to the city council approval of this request. Is there a second? I second.

The tree seconds. Um, we've got a motion and a second and the motion is to approve DO32025 request by Carlos Rays as an authorized applicant on behalf of Open Concept Developers LLC property owner pursuant to chapter 26 section 16.10 code for a 10-ft setback reduction to allow a 15t rear setback yard setback instead of the required 25 ft for a proposed multif family development. All those in favor say I. Opposed? Nay. Motion pass six to one. Anybody? Oh, just go. Any comments? I'm stuck with you again. No comments. No comments. No. No.

No. Any comments? Just No. Good. No comment here. We're journ