1 CITY OF
2 LAND USE AND ZONING
3 COMMITTEE
4
5 SPECIAL MEETING
6
7
8 Proceedings held on Tuesday, January 15,
9 2008, commencing at 4:10 p.m., City Hall, Council
10 Chambers, 1st Floor,
11 Diane M. Tropia, a Notary Public in and for the State
12 of
13
14 PRESENT:
15 MICHAEL CORRIGAN, Chair.
CLAY YARBOROUGH, Vice Chair.
16 RICHARD CLARK, Committee Member.
MIA JONES, Committee Member.
17 ART SHAD, Committee Member.
JACK WEBB, Committee Member.
18
19 ALSO PRESENT:
20 JOHN CROFTS, Deputy Director, Planning Dept.
SEAN KELLY, Planning and Development Dept.
21 TRACEY ARPEN, Office of General Counsel.
DYLAN REINGOLD, Office of General Counsel.
22 JESSICA STEPHENS, Legislative Assistant.
MERRIANE LAHMEUR, Legislative Assistant.
23
- - -
24
25
Diane M.
Tropia,
2
1 I N D E X
2 ITEM/FILE NO.
3 2007-835 RESO-Q RE APPEAL OF FINAL ORDER BY PLANNING
COMMISSION APPROVING APPLICATION FOR ZONING
4 EXCEPTION E-04-117 TO AARON HILL TO ALLOW
FOR RETAIL SALES AND SERVICE OF ALL
5 ALCOHOLIC BEVERAGES FOR ON-PREMISE
CONSUMPTION WITH SERVICE OF FOOD FROM A
6 MENU IN CONJUNCTION WITH A BONA FIDE
RESTAURANT (4-COP SRX) AT 7701
7 EXPRESSWAY, PURSUANT TO
ORDINANCE CODE; REPEAL RESOLUTION
8 2005-331-A AND REHEARING APPEAL OF ZONING
EXCEPTION E-04-117; ADOPT RECOMMENDED
9 FINDINGS AND CONCLUSIONS OF LUZ.
(DISTRICT 1- YARBOROUGH)
10
11 - - -
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25
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
3
1 P R O C E E D I N G S
2 January 15, 2008 4:10 p.m.
3 - - -
4 THE CHAIRMAN: Okay. Ladies and gentlemen,
5 we are ready to get started with our Land Use
6 and Zoning special appeal hearing. I'll call
7 the meeting to order.
8 I'm LUZ Chairman Michael Corrigan. Also
9 present with us is Councilmember Jack Webb,
10 Councilmember and Vice Chairman Clay Yarborough,
11 Councilwoman Mia Jones and Councilmember
12 Art Shad.
13 We're here to hear bill number 2007-835.
14 Before we get started, I will call on our
15 representative from the Office of General
16 Counsel, Mr. Tracey Arpen, to lay the ground
17 rules for us.
18 MR. ARPEN: Thank you, Mr. Chairman.
19 Actually, what you're here on now is an
20 appeal of a zoning exception. It may seem
21 strange that it's an appeal, but a zoning
22 exception which was granted in 2004.
23 Just as a way of background, a little bit
24 of how you got here today, the exception was
25 granted back in 2004. There was an appeal to
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
4
1 the LUZ Committee in 2004, which was denied, and
2 that recommendation to the LUZ Committee was
3 upheld by the council. After that, there was a
4 lawsuit filed against the City as a result of
5 the denial of the appeal and the granting of the
6 exception.
7 Among the allegations in the lawsuit
8 were that the opponents of the rezoning -- I'm
9 sorry -- of the zoning exception were denied due
10 process, that there were ex-parte communications
11 and several other issues.
12 And so we thought that the fairest and most
13 simplest way to resolve that lawsuit might be to
14 grant a rehearing before the LUZ Committee with
15 the opportunity for disclosure of any ex-parte
16 communications and opportunities.
17 What you will actually have before you is a
18 more elaborate process than the 2004 LUZ
19 Committee had because, under this circumstance,
20 the parties have requested a more formal
21 proceeding.
22 And so you actually had attached to your
23 agenda for the appeal a memorandum from myself
24 and Shannon Eller of the office explaining the
25 procedure that would be followed for a formal
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 appeal. And so it will actually be a little bit
2 longer than you might typically experience for
3 an appeal on a zoning exception, but it's what
4 we consider the formal appeal process.
5 Again, you will be rehearing an appeal as
6 though it had never been heard by this body
7 before. You will hear presentations by both
8 sides, and then you will make a decision on
9 that.
10 There is one preliminary matter which would
11 need to be taken up before we get to the
12 presentations. There is an issue as to whether
13 one of the individuals is considered to have an
14 affected party status under the rules. An
15 affected party, under the formal rules, has an
16 opportunity to speak for a longer length of
17 time, to make a 15-minute presentation as
18 opposed to a three-minute public comment
19 section.
20 Mr. Ted Wendler believes he is properly
21 entitled to an affected party status. So as a
22 preliminary matter, Mr. Wendler would make a
23 presentation as to why he believes he is an
24 affected party.
25 The committee would then have to make a
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 determination because he was not a party who was
2 entitled to written notice as being within a
3 350-foot range of the site. But under the law,
4 he may still be an affected party if he can
5 demonstrate that he is suffering or will suffer
6 an adverse effect to an interest protected or
7 furthered by the comprehensive plan or the
8 zoning code and can demonstrate that the alleged
9 adverse effects, if shared in common with other
10 people in the community at large, exceed in
11 degree the general interest in community good
12 that's shared by all persons.
13 So, in other words, he's not within the
14 350 feet. But if he can show that he has an
15 adverse effect and that those adverse effects
16 exceed what anybody else in the community
17 outside the 350-foot range would suffer, then he
18 would be entitled to an affected party status.
19 So what we have suggested is a presentation
20 by Mr. Wendler of up to five minutes as to why
21 he believes he would be an affected party and
22 then a decision by the committee as to whether
23 or not he is entitled to that status. If he is,
24 he would get 15 minutes to speak. If he's not,
25 he's still entitled to speak to the committee
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 during the three-minute public comments in favor
2 or opposition to the appeal.
3 THE CHAIRMAN: Okay. Well, just a point of
4 clarification, two things. One, when he
5 finishes his -- when Mr. Wendler finishes his
6 five-minute presentation, a voice vote will be
7 taken to determine whether he's an affected
8 party?
9 MR. ARPEN: That's correct, Mr. Chairman.
10 THE CHAIRMAN: And then in his presentation
11 in the five minutes, he's to speak only on why
12 he's an affected party, not pro or con on this
13 particular legislation?
14 MR. ARPEN: That's correct.
15 The presentation on the affected party
16 status should not go to the merits of whether or
17 not the zoning exception was a good idea or a
18 bad idea but just as to how, if granted, it
19 would affect him in a degree other than anybody
20 else who's outside the 350-foot range. It would
21 basically put him more in the category of people
22 who would live closer in the sense that he would
23 have a greater adverse affect than everybody
24 else who's beyond 350 feet.
25 THE CHAIRMAN: Councilmember Shad, do you
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 have a question?
2 MR. SHAD: Yes. Thank you.
3 Mr. Arpen, do all affected parties get
4 15 minutes? Because there's dozens of affected
5 parties, correct? Can you explain that?
6 MR. ARPEN: Actually, in this case, there
7 are only two others that are affected parties.
8 So under the rules and under the case you have
9 before you today, there are two affected parties
10 who are qualified as affected parties.
11 I'm not sure whether they will both be here
12 or whether they will speak for themselves or
13 have an agent or spokesman on their behalf, but
14 Ann Burt and Donald Smith [sic], both clearly
15 qualify as affected parties and being within the
16 350 feet, and I believe they appeared at the
17 Planning Commission back in 2004.
18 So you really have two, possibly three
19 affected parties.
20 MR. SHAD: My question was, where did the
21 15 minute -- is it just a standard rule that
22 every affected party gets 15 minutes?
23 MR. ARPEN: What happens is --
24 MR. SHAD: I know we have some cases.
25 We've had dozens.
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 MR. ARPEN: That's correct,
2 Councilmember Shad, under the rules we have
3 adopted, what you most often use, which is the
4 informal hearing process.
5 But if either side opts to avail themselves
6 of the formal hearing process, there's actually
7 in the council rules a procedure set out, which
8 is sort of tracked in the attachment to the
9 agenda, which sets forth opening statements,
10 presentations, public comments, rebuttal
11 evidence and so forth.
12 So those time frames and format come
13 straight from the council rules where either
14 party decides to invoke the possibility of a
15 formal hearing.
16 MR. SHAD: So going forward, if there's
17 five affected parties on one side, they would
18 get five times 15?
19 MR. ARPEN: That's correct.
20 MR. SHAD: And then the other side, if
21 there was just the applicant, would he get just
22 15 or would he get five times 15?
23 MR. ARPEN: Typically, if there's one
24 applicant, they would get only 15. But we would
25 always advise the committee if there's any issue
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 of fairness or an opportunity to fully rebut
2 issues raised by either side, that you err on
3 the side of granting full opportunity for an
4 argument to be made as opposed to cutting
5 somebody off when they believe they've had an
6 inadequate amount of time to rebut a lengthier
7 argument by the other side.
8 MR. SHAD: Thank you.
9 THE CHAIRMAN: Thank you, Councilmember
10 Shad.
11 (Mr. Wendler approaches the podium.)
12 THE CHAIRMAN: Mr. Wendler.
13 MR. WENDLER: That's correct.
14 THE CHAIRMAN: Good afternoon.
15 Welcome. You have five minutes to present
16 your argument.
17 MR. WENDLER: I could have saved him that
18 long speech. I withdraw my request.
19 THE CHAIRMAN: All right. Thank you very
20 much. You're making our job phenomenally
21 easier.
22 Thank you, Mr. Arpen.
23 Now that we've concluded that portion, I
24 believe we're now ready for the resolution to be
25 read. Will you be reading that or Legislative
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 Services, or who will be handling that?
2 MR. ARPEN: I believe that Legislative
3 Services would if they have it available in
4 front of them. If not, I can find it.
5 THE CHAIRMAN: Okay.
6 MR. ARPEN: Mr. Chairman, the resolution is
7 several pages long. I had advised staff to read
8 the title of the resolution, and we have a copy
9 that would be available to anybody who would
10 need to read the entire resolution itself.
11 THE CHAIRMAN: All right. If we could just
12 read the title to the resolution, please.
13 MS. STEPHENS: "A resolution concerning
14 appeal of final order issued by the Planning
15 Commission approving the application for zoning
16 exception E-04-117 to Aaron Hill to allow for
17 the retail sales and service of all alcoholic
18 beverages, including beer, liquor or wine, for
19 on-premise consumption in conjunction with the
20 service of food from a menu in conjunction with
21 a bona fide restaurant (4-COP SRX) on property
22 located in Council District 1 at 7707 Arlington
23 Expressway, pursuant to Section 656.141,
24 ordinance code; repealing resolution 2005-331-A
25 and rehearing the appeal of zoning exception
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 E-04-117; adopting recommended findings and
2 conclusions of the Land Use and Zoning Committee
3 providing an effective date."
4 THE CHAIRMAN: Thank you.
5 We are now ready for any disclosure of
6 ex-parte communications by council members. Are
7 there any declarations to be made?
8 Councilwoman Mia Jones.
9 MS. JONES: Thank you, Mr. Chairman. I
10 apologize for my voice.
11 On May 25th, 2005, I arrived approximately
12 8 p.m. at the restaurant, and then I proceeded
13 to conversate with some of the patrons and the
14 employees. I placed an order for dinner after
15 going over the menu in more detail and speaking
16 with the musicians who were there that evening.
17 After choosing not to have desert, I requested a
18 bill and paid with my credit card.
19 Before I finished my meal, I asked the
20 owner what his plans were for the business. He
21 indicated that it would be similar to what would
22 be called a supper club and would provide for a
23 full bar for patrons for lunch and dinner and
24 late night dining. He went on to say that he
25 also had a private dining room for private
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 parties. He offered to give me a tour and
2 shared with me some of the details of the
3 renovation that had already taken place.
4 I thanked him for the tour and encouraged
5 him to move forward with his vision and
6 providing quality food, great entertainment, and
7 a relaxing ambience. Please do not hesitate to
8 contact me.
9 This was going to our general counsel when
10 asked about the notes that I had taken after the
11 meeting that took place.
12 THE CHAIRMAN: Thank you very much.
13 Councilmember Yarborough.
14 MR. YARBOROUGH: Thank you, Mr. Chairman.
15 I'd like to declare ex-parte communications
16 with Mr. Ted Wendler, December 9th, 2007, at
17 3:30 p.m. to discuss the history of this issue.
18 Thank you.
19 THE CHAIRMAN: Thank you.
20 Seeing no other ex-parte declarations, we
21 are ready to have the matter introduced. We are
22 going -- let me let the speakers know. We are
23 going to have each one of you sworn in, as you
24 come up and speak, by our court reporter. We
25 will do that individually as you come up to the
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 podium for the first time, and I'll try to
2 remind you in further appearances that you're
3 still under oath.
4 So with that, I'll turn to the Planning
5 Department and ask for their introduction of the
6 matter with the Planning Department staff.
7 MR. KELLY: Thank you.
8 To the Chair, this application, again, was
9 an exception allowing for the retail sale and
10 service of all alcoholic beverages, including
11 beer and wine, for on-premises consumption in
12 conjunction with the service of food from a menu
13 and in conjunction with a bona fide restaurant.
14 Staff reviewed the application, found it to
15 be consistent in that the service of alcohol was
16 incidental to the service of food at this
17 location.
18 Given the license stature, the location on
19 Arlington Expressway, in addition to the use
20 that had previously occupied that same location,
21 which was a Red Lobster, which was also a
22 bona fide restaurant, staff had supported the
23 exception which did go to the Planning
24 Commission, and the Planning Commission then
25 also approved in conjunction with the staff
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1 report.
2 THE CHAIRMAN: Thank you, Mr. Kelly.
3 If I could ask my court reporter, is it
4 more efficient for us to swear everybody in at
5 one time or individually?
6 (Discussion between the Chairman and the
7 Court Reporter.)
8 THE CHAIRMAN: We'll do it as I described
9 earlier. That will be fine.
10 We are now ready for an opening statement
11 by the applicant, who's Aaron Hill or his
12 applicant agent, Mr. Harden.
13 (Mr. Harden approaches the podium.)
14 THE CHAIRMAN: Good afternoon.
15 MR. HARDEN: Thank you, Mr. Chairman.
16 Paul Harden, 1301 Riverplace Boulevard.
17 THE CHAIRMAN: You have three minutes,
18 Mr. Harden, for your opening statement.
19 MR. HARDEN: If I go over on my opening
20 statement, you can take that time off my
21 15 minutes, if that's okay, because I think
22 that's probably the longer portion of my
23 presentation.
24 Mr. Chairman, as you have heard from
25 Mr. Arpen and Mr. Kelly, an application was
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1 filed for retail sale of alcohol at a location
2 on the Arlington Expressway back in 2004. This
3 location was previously a Red Lobster
4 restaurant.
5 That Red Lobster restaurant located at that
6 site served alcohol for somewhere around 12 or
7 15 years before it was shut down and then was
8 vacant for a while, and then my clients acquired
9 the site.
10 The application was filed in late 2004.
11 That application on its face shows that it meets
12 all nine of the criteria of the zoning code for
13 granting of the SRX license.
14 THE CHAIRMAN: Mr. Harden, if I can
15 interrupt you and stop the time for a second, I
16 did not swear you in.
17 MR. HARDEN: Well, this is an opening
18 statement. None of this is evidence. I think
19 it would be appropriate to swear -- you can ask
20 Mr. Arpen; he's your lawyer -- but you swear
21 people in when we get to the evidentiary
22 portion.
23 THE CHAIRMAN: I agree with you. I just
24 want to make sure the other side understood the
25 parameters.
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 Go ahead. Thank you.
2 MR. HARDEN: Following the application,
3 which showed on its face that my client met all
4 of the criteria of the zoning code, the Planning
5 Department researched the application and on
6 January 27th, 2005, issued a detailed report
7 finding that the applicant met each and every
8 one of the nine criteria of the zoning code for
9 granting of the SRX license.
10 This is important because, as you know, in
11 a quasi-judicial function, you are to base your
12 decision only on the competent and substantial
13 evidence as to whether those nine criteria are
14 met.
15 On January 27th of 2005, the Planning
16 Commission met. They considered all of the
17 evidence, considered the Planning Department
18 report, and they found by a seven to one vote
19 that my client met each and every one of the
20 criteria and granted the exception.
21 An appeal was taken to the LUZ Committee,
22 then, at that time, consisting of members of the
23 LUZ Committee in 2005. That committee found
24 that my client met each and every one of the
25 criteria, that the appellant did not meet the
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1 standard for the appeal, and, again, upheld the
2 application for the grant of the exception.
3 We are now -- that matter was then
4 considered by the full council who by super
5 majority vote also found that my client met all
6 the criteria and was entitled to the exception.
7 We are back here before the LUZ Committee
8 on what Mr. Arpen explained was an agreement
9 between the appellant and the General Counsel's
10 Office to rehear this matter to which my party
11 was not a client -- my client was not a party.
12 I said that backwards.
13 Decisions on zoning exceptions, as noted,
14 are to be based solely on the criteria of the
15 zoning code. On at least three occasions, three
16 separate bodies -- the LUZ committee, the
17 Planning Commission, and the full council --
18 have found that my client met each and every one
19 of the criteria.
20 Now, the burden that the appellant has
21 today is a much more difficult burden than
22 determining if the criteria are met. I want to
23 cite to the committee Irvine versus the City of
24 Jacksonville Planning Commission.
25 This is a Florida Supreme Court case, and
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1 it says, "Once the petitioner has met the
2 initial burden of showing that his application
3 meets the statutory criteria for granting the
4 exception, the burden to demonstrate by
5 competent substantial evidence presented at the
6 hearing is that the application does not meet
7 the standards and" -- this is a very important
8 and -- "was, in fact, adverse to public
9 interest."
10 So my client, having met the burden of the
11 criteria, they have to prove not only that we
12 don't meet the criteria, but, in addition to
13 that, that the granting of this exception to
14 sell alcohol that another operator operated on
15 for 15 years at the exact same location was
16 against the public interest.
17 Now, since we've heard this appeal a couple
18 of times, I know what the pitch is that the
19 appellants are going to make, and their argument
20 is that the report of the Planning Department
21 does not form competent substantial evidence to
22 uphold the application.
23 I would cite to the committee two cases,
24 one out of the Second District Court of Appeal
25 and one out of the Fifth District Court of
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1 Appeal.
2 The first one is Hillsborough County vs.
3 Longo. It says that you can base an application
4 solely on competent substantial evidence by the
5 report of staff. Likewise, in Battaglia Fruit
6 vs. City of Maitland, one of my favorite cases,
7 the Fifth DCA, you can, again, base a zoning
8 approval solely on the evidence based on -- from
9 the planning staff.
10 So notwithstanding the earlier arguments of
11 the applicant, the competent substantial
12 evidence of the Planning Department has been
13 held by both the three courts of appeal as well
14 as the Florida Supreme Court that it can be the
15 sole criteria to base your competent substantial
16 evidence.
17 In this particular case, we have two years
18 of activity on the site. If you go back and
19 were to read the record, which you already have
20 before you -- and let me confirm through
21 Mr. Arpen that in the record is the Planning
22 Department report --
23 MR. ARPEN: (Nods head.)
24 MR. HARDEN: -- the May 2005 transcript of
25 the LUZ committee, the January 2005 transcript
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1 of the Planning Commission.
2 So the complaints, if you will, that were
3 suggested, which I will tell you do not rise to
4 the standard of adverse to public interest, over
5 two years have not been proven out.
6 Mr. Hill has operated this business and
7 this restaurant for two years. There have been
8 no police reports. There have been no incidents
9 to shutting down. There have been no complaints
10 by the alcohol and beverage folks. There have
11 been no violations of his liquor license, all
12 the suggested horrors that the appellants
13 suggested last time.
14 I would respectfully request that you
15 uphold the actions previously by the Planning
16 Department, the Planning Commission, the LUZ
17 Committee, and the full council.
18 Now, let me also give you one other tidbit
19 for you to consider. In order to file this
20 appeal, the applicants have to explain to you
21 why they want you to overturn the actions of the
22 Planning Commission, and here I'm reading from
23 their appellant document.
24 It says, "Give a description of the
25 specific error you believe the Planning
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1 Commission committed. Please provide a
2 description in the space below."
3 The answer is, "The Planning Commission did
4 not properly consider the preponderance of
5 evidence of record" -- "preponderance of
6 evidence of record presented at the public
7 hearing, and the proposed use does not meet the
8 standards and criteria of an exception."
9 That does not meet the burden of an
10 appellant. So even if they were to prove what
11 they said, which they can't because you have the
12 Planning Department's report finding they meet
13 each and every one of the criteria and both
14 Battaglia Fruit and Hillsborough County say that
15 is sufficient competent substantial evidence to
16 shift the burden, even that doesn't mean the
17 appeal should be upheld.
18 Because as Irvine, the Florida Supreme
19 Court case, unluckily, in an appeal that came
20 from the City of Jacksonville Planning
21 Commission -- and I'm sure Mr. Arpen did his
22 best on defending -- says that in addition to
23 showing that they don't meet the nine criteria,
24 which we know they do because there's competent
25 substantial evidence for Battaglia, they then
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1 have to prove it is adverse to the public
2 interest, a very, very difficult burden.
3 I would respectfully suggest to you the two
4 years of activity at this site where Mr. Hill
5 has run a very, very fine establishment, very
6 similar to the Red Lobster activity, for 12 to
7 15 years shows that it's not adverse to the
8 public interest.
9 With that, I'll sit down and let them make
10 their opening statement and then present the
11 evidence upon which we rely.
12 Thank you, Mr. Chairman.
13 THE CHAIRMAN: Thank you, Mr. Harden.
14 MR. ARPEN: Mr. Chairman, just to respond
15 to one of the questions Mr. Harden raised, I
16 would like to state for the record that the
17 materials before the committee do include the
18 transcript of the January 27th, 2005, Planning
19 Commission meeting.
20 However, because this is a rehearing,
21 basically starting fresh, we did not include in
22 the materials the transcript -- the
23 presentations and debate before the LUZ
24 Committee the last time they took it up.
25 So what you've got is the Planning
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1 Commission transcript but not the prior LUZ
2 transcript since this is a rehearing.
3 MR. HARDEN: Most importantly the report of
4 the Planning Department is, however, part of the
5 record, Mr. Arpen; is that correct?
6 MR. ARPEN: It is. That's correct.
7 MR. HARDEN: Okay. Mr. Chairman, I would
8 respectfully request that the May 2005
9 transcript, which is sworn testimony, whether
10 the outcome of it is inconsequential as
11 Mr. Arpen suggested, but the testimony itself is
12 relevant and admissible, and I would ask that
13 that be introduced unless there's an objection.
14 THE CHAIRMAN: Okay.
15 MR. HARDEN: Thank you, Mr. Chairman.
16 THE CHAIRMAN: Seeing no objection, at this
17 point we'll allow it.
18 Mr. Harden, I show that you took eight
19 minutes for your opening statement. I'll deduct
20 those five minutes from your --
21 MR. HARDEN: By my math, eight minus 18
22 would leave me ten minutes for my presentation.
23 THE CHAIRMAN: Exactly.
24 MR. ARPEN: Mr. Chairman, if it's
25 acceptable to the committee, one recommendation
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 I would make -- and I imagine Mr. Harden or the
2 other side wouldn't have any opposition to it --
3 would be that we make available to the committee
4 and put in the record the testimony and evidence
5 presented during the LUZ hearing but not include
6 the deliberations, which were -- which were the
7 committee's discussions, again, since in our
8 view this ought to be a fresh rehearing and not
9 be affected by what the committee may have
10 discussed previously, but certainly the
11 evidence -- no sense in repeating it.
12 MR. HARDEN: May I be heard on that issue
13 and it not be deducted from my time?
14 THE CHAIRMAN: Quick response.
15 MR. HARDEN: With all due respect to
16 Mr. Arpen's opinion, the actual finding of the
17 committee that we met the criteria -- not the
18 debate; I understand the issue on the debate --
19 the finding of the committee that we met the
20 nine criteria, I believe, is relevant under a
21 finding that a quasi-judicial body is to give
22 deference to findings by parties who have that
23 obligation. And, in this particular case, it
24 was the obligation of the LUZ Committee to make
25 a finding one way or the other. You don't have
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 to agree with it, but it's admissible evidence,
2 and you're required to give deference to it.
3 That's my pitch.
4 MR. ARPEN: Mr. Chairman, I think our
5 office position on that would be that although
6 there was a previous decision of the committee,
7 that the effect of this resolution in granting
8 the rehearing would be to repeal the previous
9 action and to rehear and decide it freshly.
10 So our view would be that the evidence
11 could be relevant but that the decision of this
12 committee should be made independently of the
13 committee in 2005.
14 MR. HARDEN: I don't disagree that it's an
15 independent decision. I'm just saying the
16 finding, I think, is relevant. That's, again,
17 without --
18 THE CHAIRMAN: Thank you, Mr. Harden.
19 MR. HARDEN: Thank you.
20 THE CHAIRMAN: Mr. Yarborough has a
21 question.
22 MR. YARBOROUGH: I just wanted to make a
23 comment. If we do what Mr. Harden suggests and
24 introduce that in, I haven't had -- I had an
25 opportunity last night to read over the Planning
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 Commission transcript, but I have not had an
2 opportunity to read over what the LUZ Committee
3 did.
4 So I don't know if we would be in the -- I
5 mean, it's up to the committee -- if we'd be in
6 the proper posture to take action. But not
7 having reviewed all the documents that may be
8 pertinent to this proceeding, I don't know if it
9 would be appropriate to move forward and act on
10 it if we have not had time to review all the
11 pertinent documents, Mr. Chairman.
12 THE CHAIRMAN: Thank you.
13 I'll take Mr. Harden's request into
14 consideration. I believe Mr. Crescimbeni is
15 going to --
16 MR. CRESCIMBENI: Mr. Chairman, just as a
17 point of order, if we're going to include the
18 testimony or the evidentiary portion of the May
19 17th, 2005, LUZ meeting -- is that what you're
20 asking for, Paul?
21 MR. HARDEN: Yes.
22 MR. CRESCIMBENI: This was also heard at
23 the July 19th, 2005, LUZ meeting. I would ask
24 that you also consider entering that as well
25 since both of these meetings were conducted by
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
28
1 LUZ on this issue.
2 THE CHAIRMAN: Well, here's what I'm going
3 to do: I'm going to allow it to be referenced
4 by either party, both of those meetings. As
5 Councilman Yarborough has pointed out, we
6 haven't been afforded the opportunity to review
7 those before we arrived today.
8 So both parties may reference them in their
9 discussions, but they'll have to educate this
10 committee as part of that discussion, and it
11 will count as part of your time as you do that.
12 From the opposition side, I have Ann Burt
13 or agent or Donald Smith or agent. Who would
14 like to go first?
15 (Audience member approaches the podium.)
16 THE CHAIRMAN: Are there any other affected
17 parties here today that are wishing to speak?
18 AUDIENCE MEMBERS: (No response.)
19 THE CHAIRMAN: Seeing none, good
20 afternoon. Give your name and address for the
21 record and your opening statement, please.
22 Obviously, since I had leniency in
23 Mr. Harden's time, I'll have some leniency in
24 yours and we'll deduct it off of your
25 presentation time at the end.
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 AUDIENCE MEMBER: Thank you.
2 THE CHAIRMAN: Good afternoon.
3 AUDIENCE MEMBER: My name is Ann Burt. I
4 reside at 7866 Glen Echo Road North in
5 Jacksonville.
6 I would like to begin by stating that
7 Mr. Harden is not correct as to why we were
8 here.
9 We are here because we were denied
10 procedural due process to present our facts
11 relating to other matters in this case. We are
12 not here to argue the point that Mr. Hill has
13 the right to operate a restaurant in this
14 location.
15 We have no argument with the Planning
16 Commission report. We are here to present
17 substantial competent evidence that the
18 establishment known as Arielle's engages in
19 nightclub activity. We are here to correct a
20 grievous error made by general counsel regarding
21 the right of the City to condition a zoning
22 exception in regard to hours of operation. And
23 we are here to request that this committee
24 condition the hours of operation on this
25 establishment and thereby ensure the
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 compatibility of this establishment with the
2 surrounding neighborhood.
3 And I am designating John Crescimbeni to
4 speak as my agent during the other portion.
5 THE CHAIRMAN: Thank you very much.
6 MS. BURT: Thank you.
7 THE CHAIRMAN: Donald Smith.
8 (Audience member approaches the podium.)
9 THE CHAIRMAN: Mr. Smitha -- I've been told
10 that it is Smitha.
11 DR. SMITHA: Smitha.
12 THE CHAIRMAN: I apologize. I thought it
13 was a typo, and it was not, so I apologize.
14 DR. SMITHA: My name is Donald Smitha. My
15 address, for the record, is 812 Alderman Road,
16 Jacksonville. It is immediately adjacent to the
17 subject property.
18 I would request that -- I have some records
19 here to submit for the record. Number 1, a
20 petition for the Writ of Certiorari. Number 2,
21 a first amended complaint, Case No.
22 162005CA006374. And, number 3, a first amended
23 petition for the Writ of Certiorari.
24 I have these to submit, but I would like to
25 have my time be applied to my agent, John
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 Crescimbeni, please.
2 THE CHAIRMAN: Okay. We can do that.
3 Thank you much.
4 You can give that information to
5 Legislative Services.
6 MR. HARDEN: Mr. Chairman, those are
7 irrelevant documents. I would like for -- I
8 don't know who you would get rulings from, but
9 certainly if the finding of the LUZ Committee
10 were relevant court documents -- it's just their
11 petition for certiorari that was never heard by
12 the circuit court.
13 THE CHAIRMAN: Mr. Arpen.
14 MR. ARPEN: Your Honor -- not Your Honor.
15 MR. HARDEN: I like that, though.
16 MR. ARPEN: Mr. Chairman.
17 THE CHAIRMAN: I did stay at a Holiday Inn
18 Express last night.
19 MR. ARPEN: I've been in court too much
20 this week.
21 Anyway, it would be our advice to you that
22 because this is -- it's like a step back in
23 time. You're putting yourselves back in the
24 shoes of the LUZ Committee that heard this back
25 in 2005 before there was an appeal filed, and it
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
32
1 would be our recommendation that the committee
2 not consider the court pleadings that were filed
3 subsequent to that.
4 But certainly to the extent there were any
5 issues raised in those pleadings that they would
6 like to raise this time, they could certainly
7 include that as part of their presentation.
8 In our view, it would be inappropriate to
9 include in the record court pleadings which took
10 place after the prior hearing when the purpose
11 of this rehearing is to put you back in the
12 shoes of the committee in 2005, sort of a step
13 back in time.
14 THE CHAIRMAN: Okay. On advice of counsel,
15 we will not allow them to be submitted.
16 Mr. Smitha did indicate that
17 Mr. Crescimbeni will be representing him and
18 Ms. Burt as their agent.
19 So, Mr. Crescimbeni, do you have any
20 opening statements as part of their
21 presentation? Is that a no?
22 MR. CRESCIMBENI: Does the applicant go
23 first?
24 THE CHAIRMAN: If you could come to the
25 microphone, please.
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 MR. CRESCIMBENI: Sorry. They concluded
2 their opening statements, so --
3 THE CHAIRMAN: Okay. Thank you very much.
4 Thank you, Mr. Crescimbeni.
5 We are now ready for presentation of
6 evidence. If I could have -- Mr. Crescimbeni,
7 are you going to speak for both -- for both the
8 agents? Are you going to be the only speaker on
9 the presentations?
10 MR. CRESCIMBENI: More than likely.
11 THE CHAIRMAN: Okay. If I could have
12 Mr. Crescimbeni and Mr. Harden please come
13 forward and be sworn in by the court reporter.
14 MR. CRESCIMBENI: (Complies.)
15 MR. HARDEN: (Complies.)
16 THE REPORTER: Would you raise your right
17 hand for me, please.
18 MR. CRESCIMBENI: (Complies.)
19 MR. HARDEN: (Complies.)
20 THE REPORTER: Do you affirm that the
21 testimony you're about to give will be the
22 truth, the whole truth, and nothing but the
23 truth?
24 MR. CRESCIMBENI: I do.
25 MR. HARDEN: I do.
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 THE REPORTER: Thank you.
2 THE CHAIRMAN: Thank you very much.
3 We are now ready for presentations of
4 evidence. We'll begin with the applicant who's
5 represented by Paul Harden.
6 Mr. Harden, you have ten minutes remaining
7 for your presentation.
8 MR. HARDEN: I won't take nearly the ten
9 minutes.
10 Paul Harden, 1301 Riverplace Boulevard.
11 Let me, again, clarify for the record that
12 we would like to introduce into evidence the
13 report of the Planning and Development
14 Department regarding application for zoning
15 exception E-04-117, dated January 27th, 2005.
16 May I have an indication on the record that
17 is in evidence, please.
18 THE CHAIRMAN: Okay.
19 MR. HARDEN: Is that a yes, it's in
20 evidence?
21 THE CHAIRMAN: Yes, it is evidence.
22 MR. HARDEN: I'm sorry?
23 THE CHAIRMAN: It is evidence as will be
24 explained by you.
25 MR. HARDEN: Well, actually, Mr. Chairman,
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 it's not evidence to be explained by me.
2 Again, I know you're going to rely on your
3 own lawyer, but they have asked for the formal
4 hearing. As such, I would like to require that
5 they be held -- this portion is now just
6 presentation of evidence. It can no longer be
7 argument and opening.
8 I'm going to go through the Planning
9 Department report and present my position on it
10 as well, but that the evidence -- that this
11 report itself is evidence, and we would ask that
12 you rely on --
13 THE CHAIRMAN: The Planning Department
14 report is definitely evidence.
15 MR. HARDEN: Thank you very much.
16 Appreciate it.
17 The first criteria for consideration -- I
18 want to provide you with evidence on that -- is
19 whether the proposed use is consistent with the
20 comprehensive plan.
21 The subject property is in the neighborhood
22 commercial functional land use category. You
23 have attached to that application, and I would
24 confirm that it is accurate, the map indicating
25 that the site is surrounded by commercial uses
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 on all four sides. The front is on the
2 Arlington Expressway, a road that has about
3 80,000 trips a day on one side of the road.
4 That's where it fronts on there, with the
5 service road, of course, in between.
6 The future land use element calls for the
7 providing of land use and zoning activity to
8 integrate commercial areas into the area. I
9 would cite to you objective 3.2 of the 2010
10 comprehensive plan, and I would render to you my
11 opinion that this site meets the -- is, in fact,
12 consistent with the comprehensive plan.
13 I would also note to you that your experts,
14 the Planning Department, have found that the
15 site -- that the exception is consistent with
16 the comprehensive plan.
17 The second criteria is whether or not the
18 use is compatible with the existing uses or
19 zoning and the general character of the area.
20 The Planning Department has opined -- and I
21 agree with that opinion -- that the subject
22 property is zoned CN.
23 It's an existing 8,000-square-foot
24 building. That building previously was a
25 Red Lobster. It was in this same exact use. It
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 had a zoning exception for alcohol at that
2 location. The orientation of the structure is
3 towards the Arlington Expressway, which, as I
4 indicated to you, is approximately 80,000 trips
5 a day along that one location.
6 The Planning Department has in their list
7 of criteria number 2 -- and I will confirm the
8 accuracy of that -- indicated the surrounding
9 uses to which the property is placed.
10 As such, I would tell you that because of
11 the orientation and scale of the structures,
12 that no existing property values will be
13 affected and that there are similar uses in the
14 area.
15 With regard to the third criteria, whether
16 there will be an environmental impact
17 inconsistent with health, safety, and welfare, I
18 would tell you that this building was used for
19 this exact same use for approximately 12 to
20 15 years. During that time, there were no
21 environmental impacts.
22 For two years this property has been in
23 this same use. So the opinion of the Planning
24 Department back in 2005 as to criteria 3 has
25 been confirmed. There are no negative
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 environmental impacts or should I say
2 environmental impacts inconsistent with health,
3 safety, and welfare of the community for the use
4 which has been in effect for two years.
5 The fourth criteria is whether the proposed
6 use has a detrimental effect on vehicular or
7 pedestrian traffic.
8 The site plan, which you have in evidence,
9 shows that there are existing curb-cuts along
10 the service road along the Arlington Expressway
11 and then one along Alderman Road. The site has
12 sufficient on-site parking to meet the
13 requirements of the zoning code.
14 The Planning Department found that that
15 criteria was met, and I would confirm by my own
16 personal experience that criteria number 4 is
17 met.
18 The fifth criteria is whether the proposed
19 use will have a detrimental effect on
20 development in the area.
21 The Planning Department found no -- I would
22 point out to you that the site is surrounded by
23 developed-out properties, if you will. The only
24 properties not currently developed are
25 properties that have previously been developed
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 and are now either vacant or need reuse
2 activity. So there is no activity on the site.
3 For 12 to 15 years, again, Red Lobster
4 located there at -- that was located at this
5 location, it did not affect the future
6 development of the site. And indeed the last
7 two years would show that the restaurant
8 location with the retail sale of alcohol did not
9 detrimentally affect the future development of
10 the site.
11 Criteria 6 is whether the proposed use
12 would create objectionable and excessive noise,
13 lights, vibrations, fumes, odors, dust. The
14 Planning Department opined that it did not.
15 I will tell you that for two years they
16 have operated at this location. There have been
17 no police reports. There have been no
18 complaints to the Environmental Protection
19 folks. So I think that -- would respectfully
20 suggest to you that there are no objectionable
21 or excessive noise, lights, vibrations, fumes,
22 et cetera, as a result of the use.
23 The seventh criteria is whether it will
24 overburden existing public facilities. The
25 Planning Department opined that there is
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 available public facilities to the site, that it
2 had been previously developed into the
3 commercial use, and that there were adequate
4 facilities. And, again, for two years they have
5 used the public facilities at that location with
6 no problem.
7 The eighth criteria is whether there's
8 sufficient access for police and fire to the
9 site. As you can see, there are -- there's
10 frontage, 275 feet, along the Arlington
11 Expressway, as you can see from the site plan I
12 should say, and that there is adequate access
13 for fire, police and other services.
14 Finally, the ninth criteria is whether the
15 use is consistent with the definition of a
16 zoning exception. I will render to you my
17 opinion that, in fact, it is consistent with the
18 zoning exception request.
19 The zoning for the retail sale of alcohol
20 is a listed exception in the CN zoning category,
21 which is what is at this site, as well as the NC
22 future land use map category, and as such meets
23 the ninth criteria.
24 And I would ask you to note for the record
25 that the Planning Department found that all nine
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 of the criteria were met, that on two occasions
2 the Planning Commission and the Land Use and
3 Zoning Committee found that all nine of the
4 criteria are met, and we would respectfully
5 suggest that that meets the burden required of
6 the applicant.
7 Thank you, Mr. Chairman.
8 THE CHAIRMAN: Thank you, Mr. Harden.
9 There is an opportunity for
10 cross-examination of the witness by the other
11 party.
12 MR. HARDEN: There's a lot of lawyers that
13 would like to have this chance.
14 Mr. Crescimbeni, do you want to
15 cross-examine me?
16 MR. CRESCIMBENI: (Shakes head.)
17 THE CHAIRMAN: Seeing no cross-examination,
18 it is now time for the presentation of evidence
19 by the affected parties. Mr. Crescimbeni, as
20 the affected parties have indicated, will be
21 representing them.
22 (Mr. Crescimbeni approaches the podium.)
23 THE CHAIRMAN: Mr. Crescimbeni, you have
24 15 minutes for your presentation of evidence.
25 MR. CRESCIMBENI: Thank you.
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 If I can get these distributed to the
2 committee members.
3 Thank you.
4 John Crescimbeni, P.O. Box 8962,
5 Jacksonville, 32239.
6 MR. HARDEN: Mr. Chairman, before you
7 give -- I would just like to look at whatever
8 else -- I wanted to look at it before you give
9 it to them.
10 MS. STEPHENS: (Tenders documents to
11 Mr. Harden.)
12 MR. CRESCIMBENI: If I could just go ahead
13 and just start, Mr. Chairman.
14 Dr. Smitha and --
15 THE CHAIRMAN: Can I clarify?
16 Are you speaking for both or are you going
17 to speak one at a time or --
18 MR. CRESCIMBENI: I will speak for both. I
19 don't think I'll need their total time.
20 THE CHAIRMAN: Thank you. I appreciate it.
21 MR. CRESCIMBENI: To begin with, I don't
22 think Dr. Smitha and Ms. Burt agreed to be here
23 today. They, I think, would have just as soon
24 had their day in court. This appeal was a
25 mechanism to make the court case go away for the
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 City and the City Council. So I want to make
2 that clarification.
3 And, secondly, I don't think Dr. Smitha or
4 Ms. Burt have any objection to the Planning
5 Department report at this time, and they concur
6 that, you know, the nine criteria that
7 Mr. Harden took you through were all met.
8 The primary objection they do have,
9 however, is one of compatibility, and by
10 granting this exception without a condition
11 limiting the hours of operation would not be
12 compatible with the surrounding area.
13 Let me remind you that this establishment
14 is operating in a building formerly occupied by
15 a Red Lobster restaurant, but here's the
16 important part: It's in a neighborhood
17 commercial land use category, a category defined
18 by the zoning code as one which is to, and I
19 quote, serve the daily needs of contiguous
20 residential neighborhoods, end quote.
21 Most other restaurants or establishments
22 that operate as restaurants with a 4-COP SRX
23 license, instead, operate in the much more
24 intense community/general commercial land use
25 category. And you have a part of that record,
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 and I'm going to go ahead and I'll submit this
2 for the secretary.
3 You have a listing of 4-COP SRX licenses on
4 a number of restaurants in Jacksonville, and
5 there are four on there, including Arielle's,
6 that operate in the neighborhood commercial land
7 use category.
8 THE CHAIRMAN: Can you provide one of those
9 to Mr. Harden, please.
10 MR. CRESCIMBENI: Yes, he does have one.
11 MR. HARDEN: I have one.
12 This is irrelevant to the nine criteria.
13 They have stipulated we meet the nine criteria.
14 That's all we're here to suggest to you.
15 THE CHAIRMAN: It's his presentation. If
16 he wants -- you can rebut --
17 MR. HARDEN: With all due respect, they
18 asked for a formal presentation.
19 MR. CRESCIMBENI: No, we didn't ask for a
20 formal presentation, Mr. Harden. We didn't ask
21 for this.
22 MR. HARDEN: Who did then?
23 THE CHAIRMAN: First off, we're not going
24 to have an argument between the two of you at
25 the podium.
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 I'll go to Mr. Arpen, who's our legal
2 counsel, to advise us on what we should do.
3 MR. ARPEN: Actually, Mr. Chairman, I
4 believe that -- and Ms. Sheppard was the one who
5 coordinated the arrangements for the formal
6 hearing. It was my understanding through her
7 that one of the parties had requested a formal
8 hearing.
9 Now, I don't know whether it was Ms. Burt,
10 Dr. Smitha or Mr. Wendler who requested it, but
11 I do know there was a request from one of the
12 three of them that there be a formal
13 proceeding -- one of the three of them or their
14 agent, that there be a formal proceeding in this
15 case. Under the rules, once any party requests
16 it, it invokes the right to it.
17 So I don't know what origin the request
18 was, just that our office received a request
19 that it be handled as a formal hearing, which is
20 why we're in the more extended --
21 MR. CRESCIMBENI: Let me back up and
22 restate that, then.
23 We didn't necessarily request that it be
24 reheard by LUZ. But when LUZ decided to rehear
25 this, we did, in fact, request a formal hearing
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
46
1 when the City decided to hear this case or hear
2 this matter again. But, like I said, we would
3 have just as soon taken it up with the Circuit
4 Court.
5 THE CHAIRMAN: Okay. I have a question
6 from Councilmember Webb.
7 MR. WEBB: Thank you.
8 Through the Chair to General Counsel and, I
9 guess, for the Chair as well. To Mr. Harden's
10 point, what is the procedure? What are the
11 council rules with regard to the question of
12 determination of relevance in this type of
13 proceeding? Is it the Chair that rules on the
14 question of relevance or is it a majority vote
15 of the council? What is the procedure?
16 THE CHAIRMAN: Mr. Arpen.
17 MR. ARPEN: Actually, I would need to
18 refresh my recollection.
19 Through the rules, I believe the committee
20 Chair rules on the issue of admissibility. And
21 I would presume that subject as -- under any
22 other issues of the council, that if any member
23 of the committee wishes to contest that ruling
24 through a vote of the full committee, that could
25 be done.
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 But I would think that rather than having a
2 vote on each objection that may be raised and
3 any question of whether anything would come in,
4 that the Chair make the ruling subject to the
5 opportunity for the committee as a whole to
6 overturn that ruling.
7 MR. WEBB: Okay. I guess back through the
8 Chair to General Counsel. With regard to our
9 posture this evening regarding this appeal, we
10 are hearing -- this is a rehearing of the appeal
11 to the full -- excuse me -- to the LUZ,
12 challenging the ruling of the LUZ on this
13 application that came -- that was back in '05;
14 is that correct?
15 MR. ARPEN: It -- it's actually a -- I'm
16 not sure if I followed that.
17 What it is, it's actually this committee
18 standing in the shoes of the 2005 committee and
19 rehearing the appeal from the Planning
20 Commission as though it were being heard the
21 first time today.
22 So you are actually not reviewing the
23 decision made in 2005 by the LUZ Committee and
24 the council. You are hearing fresh the appeal
25 of the decision of the Planning Commission,
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 which was to grant the zoning exception. So
2 it's as though three years had not elapsed or
3 two years had not elapsed and you were the body
4 hearing the appeal of the zoning exception grant
5 from 2005.
6 MR. WEBB: Okay. Thank you.
7 THE CHAIRMAN: Okay. My question to
8 Mr. Arpen is, if this is an appeal, we are
9 strictly hearing evidence presented at the
10 original Land Use and Zoning Committee meeting
11 or the Planning Commission meeting or the
12 Planning and Development staff report, correct?
13 It's not an opportunity to introduce new
14 evidence. Typically, when we hear an appeal, we
15 don't hear new evidence. We hear argument of
16 why the previous evidence wasn't considered
17 accurately.
18 MR. ARPEN: That's correct.
19 Under Section 656.143 of the ordinance
20 code, under the scope of review for the council
21 action on a zoning appeal, actually what it says
22 is, "The council's review shall be a de novo" --
23 which means a new -- "review of the record and
24 applicable law, provided however any council
25 member may view the property and consider that
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
49
1 view."
2 And then it says, "The record shall include
3 all evidence and testimony presented to the
4 commission" -- and that would also include the
5 downtown review board for downtown properties --
6 "as well as any evidence presented to the
7 appropriate committee of the council."
8 So it's a de novo hearing in that you --
9 the ruling of the Planning Commission really
10 doesn't come to you so much with a presumption
11 of correctness. It's evidence you can consider,
12 but it's your review of the record and the law
13 to determine whether it meets the criteria set
14 forth in the ordinance code for zoning
15 exceptions.
16 THE CHAIRMAN: Okay. I have two
17 questions.
18 Councilmember Yarborough.
19 MR. YARBOROUGH: I guess I'll ask the
20 Chair, then, in line with what Mr. Arpen said,
21 if you will allow this evidence to be admitted
22 if it's not new, meaning between 2005 and -7,
23 that Mr. Crescimbeni has given for our review,
24 will you allow that to be admitted?
25 THE CHAIRMAN: I'll answer that in just a
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 minute.
2 MR. YARBOROUGH: Thank you.
3 THE CHAIRMAN: Councilmember Webb.
4 MR. WEBB: Thank you.
5 Through the Chair to General Counsel,
6 again, my understanding of the ordinance with --
7 this is a shifting burden analysis, in my
8 understanding of the ordinance, that the --
9 the applicant has the burden of satisfying the
10 nine points listed with regard to consistent
11 with the -- consistency with the comprehensive
12 land use plan -- excuse me -- ordinance.
13 At that point, though, however, once he
14 satisfies that burden, it may shift -- the
15 council may consider evidence -- or the
16 commission may consider evidence of adverse
17 impact to the community; is that correct?
18 MR. ARPEN: That's correct.
19 Although adverse impact to the community is
20 one of the criteria which is to be considered in
21 the review of the zoning exception, which one of
22 them -- for example, item 3 is -- item 2 is
23 whether it's compatible with existing conditions
24 and zoning in the area, and number 3 is whether
25 it will have an environmental impact
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 inconsistent with the health, safety, and
2 welfare of the community.
3 So the adverse impact is a matter you may
4 consider, but it's also one of the criteria for
5 the initial decision on the zoning exception as
6 well.
7 MR. WEBB: Okay. That being the case,
8 though, the evidence of Mr. -- and I don't want
9 to beat this horse to death, but the evidence
10 that Mr. Crescimbeni is introducing is relevant
11 to the criteria that are -- that were before the
12 commission that's being appealed here today; is
13 that correct?
14 MR. CRESCIMBENI: And if it will help,
15 Mr. Chairman, we introduced this evidence at the
16 LUZ meeting -- the two previous LUZ Committee
17 meetings.
18 MR. WEBB: Through the Chair to the General
19 Counsel, I guess my -- or to the Chair, I guess
20 my concern is that we -- we're de novo at this
21 point. We're back to where we started. So
22 we're not limited by the evidence that was
23 necessarily introduced back in '05; is that a
24 fair statement, Mr. Assistant General Counsel?
25 MR. ARPEN: Through the Chair, I believe
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1 that's correct.
2 I think that's reinforced by the fact that
3 Mr. Harden previously made reference to
4 conditions that have existed since 2005
5 operating out at the site. So to the extent
6 that the committee is to consider evidence
7 presented by Mr. Harden as to the lack of
8 adverse effects in the two years it's been in
9 operation -- and then certainly the other side
10 would be able to present any evidence to the
11 contrary even though it may have occurred since
12 the 2005 decision.
13 MR. HARDEN: I don't disagree with that.
14 That's not my objection, just so you will know.
15 THE CHAIRMAN: Okay.
16 MR. HARDEN: It's a relevancy objection.
17 THE CHAIRMAN: Mr. Crescimbeni, what were
18 you trying to introduce to the committee?
19 MR. CRESCIMBENI: I'm sorry. Let me back
20 up a little bit.
21 What I was trying to tell the committee was
22 that this establishment operates in a
23 neighborhood commercial land use category. Most
24 restaurants or establishments that operate as
25 true restaurants operate in a much more intense
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1 land use category. And the table that we're
2 introducing, which was introduced previously,
3 lists a number of restaurants in the area, and
4 you will note that only four of them exist in
5 the neighborhood commercial land use. The rest
6 of them are in more intense land use and zoning
7 districts.
8 THE CHAIRMAN: Okay. So the table you're
9 trying to introduce had been previously
10 introduced at a previous hearing?
11 MR. CRESCIMBENI: That's correct.
12 THE CHAIRMAN: Okay. Then I'll allow that.
13 MR. CRESCIMBENI: At the Planning
14 Commission hearing, you know, I believe the
15 Planning Commissioners recognized that.
16 And we're interested in limiting the hours
17 of operation as a condition to this exception.
18 In fact, Commissioner Register specifically
19 asked staff the following question, quote, I
20 know that we don't, as a part of the approval
21 process, require someone to give us hours of
22 operation, but I also know that in the past we
23 have put some contingents on conditions as a --
24 MR. HARDEN: I don't want to keep
25 interrupting, but I have to preserve my
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1 objections. So maybe you could give me a better
2 way to do it because I don't want to interrupt
3 Mr. Crescimbeni --
4 THE CHAIRMAN: Well, you're going to have a
5 chance for rebuttal.
6 MR. HARDEN: That's not the point,
7 Mr. Chairman.
8 They've asked for a formal hearing, and
9 that's why, although it may have been introduced
10 into evidence before, there wasn't an
11 opportunity for me to object because it was an
12 informal hearing. Now we're on the record at
13 their request for a formal hearing. They have
14 to comply with the rules which allow me to
15 object to relevance.
16 None of this, what he's saying, is
17 admissible as evidence. Again, I don't mean --
18 you hear it all the time in the normal committee
19 hearings, but they've asked for a different type
20 hearing that Mr. Arpen explained to you. So I
21 have to preserve, without looking like a jerk,
22 my objections for the record.
23 I'm trying not to interrupt him, but his
24 reading from transcripts is not evidence that's
25 relevant for the committee's consideration.
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1 And, again, maybe it's best to have
2 Mr. Arpen --
3 MR. CRESCIMBENI: Mr. Chairman, Mr. Harden
4 introduced the Planning Commission transcript.
5 If it's not relevant, I'm not sure why he
6 introduced it. He introduced the transcript
7 from the Planning Commission earlier in his
8 presentation.
9 MR. HARDEN: Actually, it was already in
10 the record, but that's not, again, my issue.
11 I have to preserve for the record my
12 objections, and you tell me the best way to do
13 it without interrupting him, and I will be happy
14 to do it.
15 THE CHAIRMAN: Well, what you have to
16 understand is that most of us up here, with the
17 exception of Mr. Webb, are not in the legal
18 field. So we're having to rely on our Office of
19 General Counsel for guidance as we proceed
20 through this matter.
21 We want to ensure that both parties have a
22 fair hearing, but at the same time we have to
23 make sure it's done in an orderly fashion.
24 While I recognize Mr. Harden's opposition
25 to this being presented, we're going to give you
Diane M. Tropia, P.O. Box 2375, Jacksonville, FL 32203
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1 a little bit of leeway to discuss it because
2 of -- we're not strictly adhering to the rules.
3 It's just -- we gave Mr. Harden more than three
4 minutes for his opening statement, but I'm not
5 going to have a whole lot of leeway.
6 MR. CRESCIMBENI: Thank you, Mr. Chairman.
7 THE CHAIRMAN: So let's stick to the issue
8 and get done.
9 MR. CRESCIMBENI: We are here only because
10 we didn't get a fair hearing last time. That's
11 why we're here today, bottom line.
12 So if I could continue.
13 THE CHAIRMAN: Well, before you continue,
14 one quick housekeeping -- if you have arrived
15 for the 5 o'clock Land Use and Zoning Committee
16 meeting, that will take place. We are now
17 hearing an appeal hearing that started shortly
18 after 4 o'clock, and the Land Use and Zoning
19 Committee meeting will start immediately
20 following this appeal.
21 MR. CRESCIMBENI: Thank you, Mr. Chairman.
22 Backing up again, we believe the Planning
23 Commission had an intent or desire to perhaps
24 limit the hours of operation for this
25 establishment.
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1 Commissioner Register specifically asked
2 the following question, quote, I know that we
3 don't, as a part of the approval process,
4 require someone to give us hours of operation,
5 but I also know that in the past we have put
6 some contingents on conditions as it relates to
7 hours of operation, and you can give any comment
8 to the thought process, end quote.
9 Mr. Herzberg, one of the staff members of
10 the Planning Commission, responded as such,
11 quote, through the Chair, I'd be --
12 MR. ARPEN: Mr. Chairman, if I could just
13 interrupt.
14 THE CHAIRMAN: Go ahead.
15 MR. ARPEN: Before we get to that, I
16 think -- just to make the record clear, I think
17 we probably need a ruling.
18 As I understand, Mr. Crescimbeni is going
19 to, at this point, be referring to the
20 transcript of the LUZ Committee. And as I
21 understand -- Mr. Harden has, as I understand
22 his objection, an objection to this being
23 considered by the committee?
24 MR. HARDEN: No. We're now past opening
25 statements. They're the ones who wanted this
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1 procedure.
2 THE CHAIRMAN: Mr. Harden, could you come
3 to the microphone, please.
4 MR. HARDEN: I'm sorry.
5 We're not in argument stage now. We're
6 only in the presentation of evidence. His
7 reading transcripts is not admissible evidence
8 at this point of the proceeding.
9 Again, I'm trying to follow the rules that
10 are set out, and I have to object if I believe
11 that the evidence is inappropriate or
12 objectionable for any reason.
13 His reading of the transcript and giving
14 you his opinion of what they were saying is not
15 relevant evidence.
16 THE CHAIRMAN: I guess the reason I'm
17 having trouble with it is that we were presented
18 the transcript and the documents we received as
19 part of the preparation for this. So,
20 therefore, we are already taking that document
21 into consideration.
22 MR. HARDEN: Which is fine. But just like
23 in a court proceeding, one witness testifies.
24 The next witness can't get up behind him and
25 read what the last witness said as part of the
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1 evidence. That's basically what he's trying to
2 do.
3 THE CHAIRMAN: Councilmember Webb.
4 MR. WEBB: Thank you.
5 I beg your indulgence of this. Through the
6 Chair to Mr. Arpen, again, this is a de novo
7 review with the findings of the Planning
8 Commission; is that correct?
9 MR. ARPEN: That's correct.
10 MR. WEBB: All right. So we're looking at
11 this with a fresh face, right?
12 MR. ARPEN: (Nods head.)
13 MR. WEBB: Now, I understand Mr. Harden's
14 objection, but at the same time I think what
15 Mr. Harden is objecting -- well, Mr. Harden has
16 presented the findings of the Planning
17 Commission; is that correct?
18 MR. ARPEN: That's correct. Yes, he has.
19 MR. HARDEN: Planning Department.
20 MR. WEBB: The Planning Department. I'm
21 sorry.
22 MR. HARDEN: Which is admissible evidence
23 for the cases that I submitted.
24 MR. WEBB: It's admissible. Okay. Very
25 good.
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1 According to the case law that you
2 provided, it can serve as competent substantial
3 evidence. Not necessarily so, but it can.
4 MR. HARDEN: I disagree with your view of
5 that, but --
6 MR. WEBB: Okay. But just to be clear,
7 you've introduced the findings of the Planning
8 Department. All right.
9 Okay. All right. Very good. I
10 understand.
11 MR. HARDEN: Now he's reading the opinions
12 of fact finders, which is not evidence. It's
13 the opinion of a fact finder just like you,
14 which is not relevant to the proceedings. You
15 hit it dead on.
16 MR. WEBB: Well, very good.
17 Why would it not be relevant? Again, this
18 is de novo. So why would the transcripts from
19 the Planning Commission not be relevant in a
20 de novo proceeding?
21 MR. HARDEN: A transcript from the Planning
22 Commission of evidence would be. What he's
23 reading is a statement by a member of the
24 Planning Commission as to -- as to asking
25 questions of general counsel of a legal
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1 opinion. That's not evidence. That's a
2 question of a judge, if you will, a
3 quasi-judicial officer. That's not evidence.
4 MR. WEBB: Okay. Thank you. I understand
5 your objection.
6 THE CHAIRMAN: Councilman Yarborough.
7 MR. YARBOROUGH: Thank you, Mr. Chairman.
8 I was still wondering if what had been
9 handed in that was, I guess, dated before 2005,
10 which would be part of that original evidence
11 that was introduced that's sitting right there
12 on the table, if we could take a look at that?
13 That's the list that he's referring to, I think.
14 THE CHAIRMAN: Let me get us back in the
15 proper posture. There was evidence presented by
16 Mr. Crescimbeni regarding other establishments
17 in the city. That is admissible evidence, in my
18 opinion. That was presented at a previous
19 hearing. It was evidence presented at a
20 previous hearing. That is allowable.
21 I've now had time during this discussion to
22 review the Planning Commission transcript, and I
23 will allow -- I will allow Mr. Crescimbeni to
24 recite other witnesses' testimony at that
25 particular hearing, but I will not allow him to
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1 present -- recite the commissioners' transcript
2 to us as part of this documentation because
3 they're sitting in a similar role as we are.
4 They are not expert witnesses. In that
5 document, they were giving their opinion of
6 that.
7 So, Mr. Crescimbeni, if you could keep your
8 quotation of previous testimony to witnesses
9 only and not to commissioners, I would
10 appreciate it.
11 MR. CRESCIMBENI: One of the fundamental
12 portions of the lawsuit dealt with an inaccurate
13 legal opinion that was given by the General
14 Counsel's Office. That's why there was a
15 lawsuit, and I think we need to address that.
16 And I think it's fair to recite the question
17 that was asked of the general counsel and the
18 answer, and then we have some statutes that we'd
19 like to refer to as to why the opinion was
20 incorrect.
21 THE CHAIRMAN: I'm okay if you recite what
22 the General Counsel's Office testified. I'm
23 just not okay using the discussions of the
24 commission members as part of your evidence.
25 MR. CRESCIMBENI: Well, then, would you
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1 accept my paraphrasing what the question was?
2 Because without the question, you may not
3 be able to interpret the answer from the general
4 counsel.
5 THE CHAIRMAN: I think it's fair for you to
6 say at the commission meeting, the question was
7 raised --
8 MR. CRESCIMBENI: At the Planning
9 Commission meeting, there was a question raised
10 as to the desire to limit the hours of operation
11 for this establishment. A question was asked of
12 staff, and staff responded by saying that they
13 thought they could do it, but they would defer
14 to the general counsel.
15 Are you implying that I can read you the
16 general counsel's answer to the question? Would
17 you like to hear that?
18 THE CHAIRMAN: That's your prerogative.
19 MR. CRESCIMBENI: General counsel said,
20 "Through the Chair, I do think that there's a
21 problem with trying to establish what hours the
22 business can operate as long as they're within
23 statutory guidelines" --
24 MR. ARPEN: Mr. Chairman, if I could just
25 add -- just for ease of reference, if he could
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1 refer to the page.
2 MR. CRESCIMBENI: I'm sorry. It's the
3 Planning Commission meeting of June 27th, 2005,
4 page 126 of the transcript.
5 THE CHAIRMAN: Thank you.
6 MR. CRESCIMBENI: The general counsel said,
7 quote, Through the Chair, I do think that
8 there's a problem with trying to establish what
9 hours the business can operate as long as
10 they're within the statutory guidelines on
11 alcohol sales and operating within the
12 constraints of a bona fide restaurant, end
13 quote.
14 With all due respect to the general
15 counsel, that opinion was flat wrong. Both the
16 Planning Commission and the City Council have
17 the authority and power to limit hours of
18 operation, and in the case of an exception such
19 as this may do so as a condition of the
20 exception.
21 Florida Statute 462 --
22 MR. HARDEN: Mr. Chairman,
23 Mr. Crescimbeni's legal opinion is irrelevant,
24 and, again, for the record, I object to him
25 providing you with -- again, we're at the point
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1 in the proceeding where he's presenting evidence
2 and his legal opinion is of no relevance.
3 THE CHAIRMAN: But his opinion would be
4 allowed if he could just remove the --
5 MR. HARDEN: Not to a legal matter.
6 He's opining that the legal opinion of the
7 general counsel is wrong. It would be similar
8 to a lawyer opining in court that the judge is
9 wrong.
10 THE CHAIRMAN: Mr. Harden, if you are going
11 to speak, you're going to have to come to the
12 microphone.
13 MR. HARDEN: I'm sorry. I'm trying not to
14 interrupt him.
15 So I, again, object to Mr. Crescimbeni
16 presenting his legal opinion on the matter.
17 THE CHAIRMAN: Your objection has been
18 noted, and I'm sure Mr. Crescimbeni will take it
19 into account as he rephrases what he just said.
20 MR. CRESCIMBENI: Thank you, Mr. Chairman.
21 Florida Statute 462.45 says, quote, Nothing
22 contained in the beverage law shall be construed
23 to affect or impair the power or right of any
24 county or incorporated municipality of the state
25 to enact ordinances regulating the hours of
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1 business, end quote.
2 In addition, the Department of Business and
3 Professional Regulation, the DBPR, takes the
4 position that a local government has the right
5 to limit hours of operation because of the
6 compatibility factor.
7 For the record, we'll submit this document,
8 which you have. At the bottom of the page,
9 there are a number of cases cited that support
10 the ability of local government to limit hours
11 of operation.
12 MR. ARPEN: Mr. Chairman, again, I think
13 this gets a little confusing because we're
14 operating so far out of the realm in which the
15 LUZ Committee typically operates. And I think
16 now I'm following Mr. Harden's objection, which
17 is that what you're hearing now -- it's okay to
18 put the statutes in as evidence, and it would be
19 our view that it's okay to put in portions of
20 the transcript that may have been -- what may
21 have been stated before.
22 As I understand Mr. Harden's objection, I
23 would advise the committee -- I think it's well
24 taken -- that once you go beyond putting the
25 statute in and begin arguing in terms of what
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1 that means or what that permits you to do, then
2 you're sort of moving -- think of yourself in
3 the courtroom. You're moving beyond the phase
4 of putting evidence into the record, and you're
5 now moving to the phase of closing argument.
6 That really ought to be issues that are
7 addressed in the closing argument; whereas, this
8 block of time is for getting the evidence into
9 the record. The closing argument portion is the
10 time in which you comment upon the evidence that
11 you were able to get into the record.
12 THE CHAIRMAN: Okay. Having received that
13 advice from general counsel, Mr. Crescimbeni, I
14 urge you to strictly enter things into the
15 record, and you can make the relevance of them
16 in argument at a later point.
17 MR. CRESCIMBENI: Thank you, Mr. Chairman.
18 In addition, the Planning Department
19 maintains a database of zoning actions for 4-COP
20 and SRX licenses that have included limitations
21 on hours of operation.
22 The point I'm trying to make here is that
23 there are limitations quite often imposed on
24 establishments such as restaurants. In order to
25 be compatible with the contiguous surrounding
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1 residential neighborhood -- which the NC land
2 use category, again, specifically states that
3 this establishment is to serve the daily needs
4 of -- it is not unreasonable for this committee
5 to ask for an 11 p.m. closing time.
6 You'll note on the document that I did
7 submit, the four -- the list of all the
8 restaurants, the four that are located in the
9 neighborhood commercial land use category, they
10 do have closing times listed at the bottom of
11 page 3 which are set. I mean, they have -- they
12 don't operate until midnight, 1 o'clock,
13 2 o'clock, 3 o'clock in the morning. They're in
14 an NC neighborhood -- an NC land use category,
15 and they have early closing times.
16 In testimony before the Planning
17 Commission, the applicant stated that he was
18 going to operate much like the former
19 Red Lobster restaurant. In fact, the applicant
20 stated the following -- and these all come from
21 the Planning Commission transcript of January
22 27th.
23 Quote, What I'm doing is nothing much
24 different than what a Red Lobster is doing, end
25 quote. Quote, Now, we're not doing anything
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1 different than what a Red Lobster is doing other
2 than you can enjoy some music with your dinner,
3 end quote. And quote, We're not doing club, end
4 quote.
5 In testimony -- I'm sorry. We're going to
6 skip the LUZ testimony. However, there's
7 considerable evidence that I'd like to submit
8 that suggests that this establishment is not
9 operating as a restaurant.
10 If I could have the committee aide put this
11 on the screen, please.
12 Some of the marketing materials associated
13 with this establishment certainly suggest that
14 they're more than a restaurant, and you have
15 those in your handout.
16 The first one is a set of postcards
17 advertising events on Tuesday evening. You can
18 see they talk about drink specials. The second
19 one is an entertainment flier. It talks about,
20 at the bottom, that dinner is no longer served
21 once the show begins.
22 The next page is off the Web site for the
23 applicant. It talks about Sundays, that food is
24 only served from 12 to 6 p.m. On Fridays and
25 Saturdays, it talks about late night dancing and
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1 dancing all night.
2 The next page has a postcard that
3 references speed dating. It talks about 6 p.m.
4 until. There's no established closing time. At
5 the bottom of that page, corporate Wednesdays,
6 it talks about drink specials and hours of
7 5 p.m. until. Again, no closing time.
8 The following page talks about corporate
9 Wednesdays at the bottom. They have a buffet
10 that ends at 8:30. Power jams with Dr. Doom
11 until 2 a.m.
12 And then the following are some postcards.
13 The top one talks about the doors opening at
14 9 p.m.
15 As evidenced by these marketing materials,
16 we think it's reasonable to conclude that this
17 establishment is not always operating like a
18 Red Lobster which used to close at 10 p.m. on
19 weekdays and 11 p.m. on weekends and is,
20 instead, operating as something much more than a
21 restaurant.
22 In testimony of the Planning Commission
23 meeting of January 27th, 2005, page 73 of the
24 transcript, the applicant said that he had been
25 in the entertainment business all of his life.
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1 No reference to the restaurant business, the
2 entertainment business.
3 There was also evidence, based on the
4 number of cars witnessed in the parking lot,
5 that this establishment's peak traffic hours are
6 at times not normally associated with dinner
7 time.
8 I pass this establishment on a regular
9 basis myself. In the early evening hours, 6, 7,
10 8 o'clock at night, there's virtually no cars in
11 the parking lot. But at 11 or 12 o'clock at
12 night, there are 30 or 40 cars in the parking
13 lot. There are other speakers available to
14 testify to this as well if needed.
15 In addition, there is evidence that a
16 limousine business is operating on the
17 premises. That use is not permitted by right or
18 exception in the commercial neighborhood zoning
19 district or the neighborhood commercial
20 neighborhood land use category. You have a
21 photo of the limousine service that's on display
22 there with additional signage, and there are
23 other speakers that can testify to that as
24 well.
25 With regard to the conditions the Planning
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1 Commission did impose, they did impose the
2 following four conditions on this exception.
3 The first three have not been complied with.
4 The fourth one, if complied with, is not being
5 performed in an efficient manner. Those four
6 conditions were the following:
7 The first condition required was,
8 "Perimeter landscaping along the right-of-way
9 and terminal islands at each row of parking" --
10 and those shall be provided pursuant to part 12
11 of the zoning code -- "and such landscaping
12 shall be subject to the approval of the Planning
13 and Development Department."
14 The second condition was, "One monument
15 sign shall be allowed and limited to a maximum
16 of 120 square feet and 20 feet in height and no
17 other signage."
18 The third condition was, "A privacy fence,
19 the height of which shall be the maximum allowed
20 under the zoning code, shall be erected along
21 the northern property line that is 100 percent
22 opaque."
23 And the last condition was that, "The
24 applicant and his or her employees police the
25 premises each morning for trash or other
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1 debris."
2 Again, the conditions requiring the
3 landscaping, fence, and removal of the pole sign
4 have not been complied with because the trash is
5 often found on adjacent properties, which we
6 have witnesses to testify to that if needed.
7 If that condition is being performed, it
8 certainly isn't being performed to the
9 expectation or objectives of the Planning
10 Commission and the City Council.
11 In conclusion, the primary objection we
12 have to this exception is one, again, of
13 compatibility. Granting this exception without
14 a condition limiting hours of operation is not
15 compatible with the surrounding area.
16 Again, the neighborhood commercial land use
17 category, only four restaurants on that chart in
18 that category. That category specifically
19 states, "Establishments in this land use
20 category are to serve the daily needs of" -- and
21 I quote -- "contiguous residential
22 neighborhoods," end quote.
23 Inasmuch as no other contiguous business
24 establishment is open past 11 p.m., it is not
25 unreasonable for this committee to ask for an
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1 11 p.m. closing time for this establishment.
2 Thank you.
3 THE CHAIRMAN: Thank you, Mr. Crescimbeni.
4 Mr. Harden, you have five minutes to
5 cross-examine.
6 MR. HARDEN: Okay. How do you want me to
7 do it? Do you want me to walk up and --
8 (Inaudible discussion.)
9 THE CHAIRMAN: Both of you need to be at
10 the microphone.
11 MR. HARDEN: Yell loudly?
12 THE CHAIRMAN: Yeah.
13 (Mr. Harden approaches the podium.)
14 MR. HARDEN: Okay. Mr. Crescimbeni, you
15 are the representative of both Mr. Smitha and
16 Ms. Burt in this proceeding, correct?
17 MR. CRESCIMBENI: That is correct.
18 MR. HARDEN: Do you agree, Mr. Crescimbeni,
19 that the report of the Planning Commission
20 establishes that all nine criteria of the zoning
21 code are met?
22 MR. CRESCIMBENI: We do.
23 THE CHAIRMAN: Gentlemen, if you're going
24 to do that, you're going to have to speak a lot
25 louder than that.
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1 MR. CRESCIMBENI: We've already agreed to
2 that, Paul.
3 MR. HARDEN: Okay. So you agree that the
4 nine criteria of the zoning code are met in the
5 application of the applicant?
6 MR. CRESCIMBENI: Yes.
7 MR. HARDEN: Your only objection is to --
8 or your main objection is the hours of operation
9 and the entertainment?
10 MR. CRESCIMBENI: Our objection is that
11 when the hours of operation question came up at
12 the Planning Commission, it was an inappropriate
13 legal opinion rendered, and we never got to
14 address that point in any of the subsequent
15 hearings, that's correct.
16 MR. HARDEN: You agree there's no
17 limitation on hours of operation currently in
18 the condition?
19 MR. CRESCIMBENI: That's correct.
20 MR. HARDEN: And you agree that
21 entertainment is a legal use at the site in the
22 CN zoning category?
23 MR. CRESCIMBENI: Under certain conditions,
24 yes.
25 MR. HARDEN: Okay. You agree that the
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1 business is operating consistent with the zoning
2 exception that was approved, including the lack
3 of hours -- current lack of hours of operation
4 and entertainment?
5 MR. CRESCIMBENI: No, I disagree.
6 The zoning exception provided for
7 conditions, none of which have been met.
8 MR. HARDEN: I'm sorry. Let me restate the
9 question.
10 There is no limitation currently on hours
11 of operation?
12 MR. CRESCIMBENI: That's correct. That's
13 why we're here. We're seeking a limitation on
14 the hours of operation.
15 MR. HARDEN: Okay. You agree that the
16 entertainment is a legal use at the site?
17 MR. CRESCIMBENI: Only under certain
18 conditions.
19 MR. HARDEN: But it is a legal use under
20 the CN zoning category?
21 MR. CRESCIMBENI: Only under certain
22 conditions.
23 MR. HARDEN: What are those conditions?
24 MR. CRESCIMBENI: In conjunction with a
25 restaurant, food sales have to be a certain
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1 percentage, et cetera.
2 MR. HARDEN: Okay. You are aware that for
3 two years that Arielle's has presented to the
4 food and -- the Division of Alcoholic Beverages
5 their food sale percentages and have met those
6 requirements?
7 MR. CRESCIMBENI: No, sir. I'm only aware
8 of one audit performed by the beverage folks.
9 MR. HARDEN: But in that audit, they found
10 they met the criteria of 51 percent; is that
11 correct?
12 MR. CRESCIMBENI: That audit was conducted
13 very early on, and I can't comment on anything
14 past that.
15 MR. HARDEN: So you have no personal
16 knowledge of whether or not they're meeting the
17 requirements of the beverage commission?
18 MR. CRESCIMBENI: There's been no audit
19 since the first audit was conducted.
20 MR. HARDEN: You have no personal knowledge
21 of whether they're violating the requirements of
22 the beverage commission; is that correct?
23 MR. CRESCIMBENI: I have no personal
24 knowledge as to whether they're meeting or
25 violating the requirements.
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1 MR. HARDEN: That's all I have,
2 Mr. Chairman.
3 THE CHAIRMAN: Okay. Thank you very much.
4 We are now ready to hear comments from the
5 public. The comments from the public will begin
6 with persons in support of the applicant, I
7 believe.
8 Mr. Arpen, am I correct on that?
9 MR. ARPEN: That is correct, Mr. Chairman.
10 Actually, the public comments first are
11 those in favor of the -- I would say in favor of
12 the zoning exception, and then followed by those
13 in opposition to the zoning exception.
14 THE CHAIRMAN: Okay. Do I have anyone in
15 the audience in support of the zoning
16 application?
17 MR. HARDEN: Mr. Hill is here, but he has
18 nothing else to add.
19 THE CHAIRMAN: Okay. Let the record
20 reflect that Mr. Hill is here and does not wish
21 to speak.
22 Do I have any members of the audience --
23 seeing no other members in favor, do I have any
24 members of the public that are in opposition to
25 this zoning exception?
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1 (Dr. Smitha approaches the podium.)
2 DR. SMITHA: My name is Donald Smitha. My
3 address is 812 Alderman Road, Jacksonville,
4 33211.
5 THE CHAIRMAN: Before you start --
6 Mr. Arpen, he designated Mr. Crescimbeni as
7 his agent. Wouldn't he not have been speaking
8 through his agent or --
9 MR. ARPEN: That's correct, Mr. Chairman.
10 He did indicate, I believe, in response to
11 cross-examination, that his agent -- that
12 Mr. Crescimbeni indicated he was the agent for
13 both Ms. Burt and Dr. Smitha, so that
14 Mr. Crescimbeni was speaking on his behalf.
15 To the extent that Dr. Smitha wants to make
16 any additional comments, I think that the proper
17 procedure would be that he request that the
18 Chair permit him to -- to the extent
19 Mr. Crescimbeni hasn't used up the time for both
20 of the affected parties, that he request that
21 that portion of the hearing be reopened so that
22 he could make any comments that Mr. Crescimbeni
23 didn't cover, which ruling would be within the
24 discretion of the Chair.
25 THE CHAIRMAN: If he was able to do that,
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1 Mr. Harden would have the right to cross-examine
2 him, correct?
3 MR. ARPEN: That's correct.
4 THE CHAIRMAN: Okay. I believe
5 Mr. Crescimbeni had about three minutes left of
6 testimony. So if you would like to provide
7 testimony, please note that Ms. Burt would also
8 be part of that same scenario. So if she's
9 going to want to speak, both of you would have
10 to be within that three-minute time period, and
11 both of you have to be subject to
12 cross-examination.
13 MS. BURT: (Inaudible.)
14 THE CHAIRMAN: Come to the microphone if
15 you've got a point of order, please.
16 MS. BURT: Dr. Smitha had a 15-minute time
17 limit, and I had 15 minutes. So Mr. Crescimbeni
18 does not get 30 minutes; is that correct?
19 DR. SMITHA: Or did that include all of
20 Mr. Harden's interruptions?
21 MS. BURT: I'm just curious.
22 THE CHAIRMAN: Mr. Arpen.
23 MR. ARPEN: Mr. Chairman, under the
24 rules -- and I believe this was a question that
25 Councilmember Shad raised -- it's 15 minutes per
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1 affected party the way the rules are written.
2 So it's actually a total of 30 minutes for the
3 two affected parties, Ms. Burt and Dr. Smitha.
4 I don't know whether you were keeping track
5 of it on the basis of a 15-minute block of time
6 or a 30-minute block of time.
7 THE CHAIRMAN: We were doing it based on a
8 15-minute block of time. If that's going to be
9 the case, I will give Mr. Harden a total of ten
10 minutes of cross-examination based on those
11 findings.
12 MR. ARPEN: One other point is, to the
13 extent that they're making their presentation as
14 a part of the presentation of evidence as
15 opposed to opening statement or closing
16 argument, any witness that appears at this point
17 would also need to be sworn as well as being
18 subject to cross-examination.
19 THE CHAIRMAN: Sure. Okay. Do you
20 understand that Mr. Smitha?
21 DR. SMITHA: Yes, sir.
22 THE CHAIRMAN: Okay. If I could have the
23 court reporter -- Ms. Burt, if you plan on
24 speaking, if you'd come down as well and go
25 ahead and get sworn in, I would appreciate it.
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1 (Ms. Burt approaches the podium.)
2 THE REPORTER: Would you raise your right
3 hand for me, please.
4 DR. SMITHA: (Complies.)
5 MS. BURT: (Complies.)
6 THE REPORTER: Do you affirm that the
7 testimony you're about to give will be the
8 truth, the whole truth, and nothing but the
9 truth?
10 DR. SMITHA: Yes, ma'am.
11 MS. BURT: I do.
12 THE REPORTER: Thank you.
13 THE CHAIRMAN: Thank you.
14 Go ahead, sir. Remember, we're presenting
15 evidence is the nature that we're in right now.
16 DR. SMITHA: Yes.
17 My dental practice has been located on the
18 corner of the street immediately adjacent to
19 Arielle's since 1985. And during that time, we
20 had many years of a good relationship with
21 Red Lobster. And in the past two years of
22 operation of Arielle's, my observation has been,
23 as was testified to earlier, that there is
24 little or no traffic at the noon hour, little or
25 no traffic in the late afternoon or early
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1 evening.
2 I do not have personal knowledge except for
3 one occasion when I saw a packed parking lot at
4 about 11 o'clock, but that was my only
5 observation late in the evening. But typically
6 during the dinner hour or lunch hour, there's
7 nothing there. And the trash does seem to
8 collect along the fence row on the other side of
9 Arielle's, next to the tire store, and I just
10 see no likely -- likeness of Arielle's with the
11 Red Lobster.
12 Thank you.
13 THE CHAIRMAN: Thank you.
14 (Mr. Harden approaches the podium.)
15 THE CHAIRMAN: Would you like to
16 cross-examine?
17 MR. HARDEN: If you can come close, I'll
18 speak loudly.
19 DR. SMITHA: Sure.
20 MR. HARDEN: Dr. Smitha, you heard --
21 Mr. Crescimbeni is your representative?
22 DR. SMITHA: Yes.
23 MR. HARDEN: And you heard him say that he
24 agreed that the nine criteria of the zoning code
25 were met by the Planning Department report; is
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1 that correct?
2 DR. SMITHA: I heard that, yes.
3 MR. HARDEN: Okay. Do you agree with that?
4 DR. SMITHA: I'm not qualified to answer
5 that question.
6 MR. HARDEN: You have no reason to disagree
7 with the testimony; is that correct?
8 DR. SMITHA: I have no reason to disagree.
9 MR. HARDEN: You have no personal knowledge
10 of the restaurant operation being more than
11 51 percent of the gross sales of the Arielle's;
12 is that correct?
13 DR. SMITHA: Except it is my understanding
14 that their only time of restaurant operations is
15 in the early evening when we observe no traffic
16 there.
17 MR. HARDEN: Well, do you have any personal
18 knowledge that they're not complying with --
19 DR. SMITHA: No, I do not.
20 MR. HARDEN: Okay. That's all I have.
21 THE CHAIRMAN: Thank you.
22 Ms. Burt.
23 (Mr. Burt approaches the podium.)
24 MS. BURT: I live in Alderman Park, a
25 community of 800-plus homes located just north
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1 of Arielle's. I pass Arielle's every day, twice
2 a day on my way to and from work, and I also
3 pass there on my way to shop on the weekends.
4 Once again, regarding the late hours,
5 during normal mealtimes, I observe basically an
6 empty parking lot. It's even difficult to
7 determine if they're open if I was looking for a
8 meal.
9 On the other hand, just my daughter, who
10 was working a restaurant on Atlantic Boulevard,
11 would close down that restaurant in her work as
12 a waitress and come back and asked me one night,
13 "Well, what's going on at Arielle's? After
14 other restaurants are closed, Arielle's is not
15 closed."
16 On Tuesday, January 8th, a week ago, I
17 drove up to Arielle's at 7:45, and there were
18 four cars in the parking lot. At 11:45, when I
19 drove back, there were 45 cars in the parking
20 lot. I counted them. This indicates the
21 activity at Arielle's takes place late at night,
22 and this is not compatible to the neighborhood.
23 We in Old Arlington have already
24 experienced the negative impact of -- the
25 adverse impact of nightclub activity in
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1 locations where nightclubs do not belong.
2 You may or you may not -- I know it's a new
3 council, but we had the issue of the old
4 Chi-Chi's restaurant, which was Nautica
5 Seafood. Once again, the applicant said, "I'm
6 going to be a seafood restaurant," and he really
7 did give it a good-faith try. It didn't fly,
8 and almost overnight he became Club Nautica.
9 The negative effect on that neighborhood,
10 which was exactly like this, abutted right up to
11 residential. Mr. Harden always says it's
12 commercial, but I think the people who live
13 right behind Arielle's would call themselves --
14 THE CHAIRMAN: We have a point of order
15 from the opposition.
16 MR. HARDEN: I would object to the
17 relevance of the operation of another facility.
18 It has no relevance to whether this meets the
19 nine criteria.
20 MS. BURT: My feeling is that it is
21 relevant if nightclub late night activity has a
22 negative impact on a community.
23 We have already experienced the negative
24 impact of a restaurant that said they were going
25 to be a restaurant that morphed into a
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1 nightclub. And if you want to go back that far
2 in the transcripts, we'd have to go find them,
3 but those residents experienced intrusion into
4 their parking area. They heard conversations
5 outside their walls, urination on their walls at
6 night. They suffered an adverse effect.
7 Now, I'm not saying that has happened with
8 Mr. Hill's establishment, but I'm telling you
9 that this is late night activity next to a
10 residential area. We had to deal with that. We
11 dealt with Sharky's.
12 Someone told me one time that when you've
13 been kicked enough, you know when a kick is
14 coming, and that is what I feel.
15 So would you like to cross-examine me?
16 MR. HARDEN: Yes.
17 THE CHAIRMAN: Ms. Burt, does that conclude
18 your testimony?
19 MS. BURT: Almost. Almost.
20 MR. HARDEN: Thank you for volunteering.
21 MS. BURT: It says, "In connection with a
22 bona fide restaurant."
23 THE CHAIRMAN: Okay. Thank you.
24 Mr. Harden, you now have the right to
25 cross-examine for five minutes.
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1 MR. HARDEN: Ms. Burt, Mr. Crescimbeni is
2 your representative?
3 MS. BURT: Yes.
4 MR. HARDEN: You heard him say that you
5 agree that the nine criteria of the zoning code
6 were met in the application; is that correct?
7 MS. BURT: And the application states, "In
8 conjunction with a bona fide restaurant." So
9 the answer is yes, in conjunction with a
10 bona fide restaurant.
11 MR. HARDEN: You agree with Mr. Crescimbeni
12 that the nine criteria of the zoning code are
13 met for the exception; is that correct?
14 MS. BURT: As a bona fide restaurant, yes.
15 MR. HARDEN: Do you have any personal
16 knowledge as to whether or not Arielle's meets
17 the 51 percent requirement?
18 MS. BURT: I do have knowledge.
19 I will say that my neighbor, who is a
20 certified public accountant, Mr. Ted Wendler,
21 who is here, has been in contact with the
22 department that regulates that. An audit has
23 been done, and they said that it met the
24 51 percent criteria.
25 I also -- he could tell you that it is not
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1 based on audited financial statements, meaning
2 that it is the representation of the owner to
3 provide a lie.
4 I'm an auditor with the school system. I'm
5 also a CPA, and if you don't have an audited
6 financial statement, you don't have much, but
7 we're not even arguing that point with this.
8 You -- the City elects to rely on that
9 department to establish that criteria. We're
10 saying fine. We're just saying protect us
11 because this is contiguous to residential, and
12 we're saying protect us with conditions.
13 MR. HARDEN: Your answer is the only
14 knowledge you have is that Arielle's meets the
15 requirement of a bona fide restaurant for food
16 sales?
17 MS. BURT: No. My answer is that that
18 department, based on what I consider a faulty
19 system for auditing, says that it does.
20 MR. HARDEN: Do you have personal knowledge
21 that Arielle's does not meet the criteria?
22 MS. BURT: If the criteria is 51 percent
23 food, how -- I have never been presented with
24 his financial statements.
25 MR. HARDEN: Do you have any knowledge that
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1 it does not meet the criteria?
2 MS. BURT: I think I answered your
3 question.
4 MR. HARDEN: I don't think you have.
5 MS. BURT: Did I not? What did I not say?
6 THE CHAIRMAN: Yes or no?
7 MS. BURT: I do not know what his financial
8 statement reads.
9 MR. HARDEN: You have no personal
10 knowledge?
11 MS. BURT: Correct.
12 MR. HARDEN: Okay. Now, you've talked
13 about Nautica and Sharky's. Those are two
14 separate establishments not located at the
15 Arielle's site?
16 MS. BURT: Located very close, along the
17 same area.
18 MR. HARDEN: Okay. And those are currently
19 existing facilities?
20 MS. BURT: Sharky's is gone, and
21 Club Nautica is closed up and another owner has
22 that building.
23 MR. HARDEN: They fronted along the
24 Arlington Expressway?
25 MS. BURT: Yes. They -- let me say they
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1 front along a service road that leads into
2 neighborhoods. Okay? That is not the
3 expressway. And, furthermore, they fronted
4 along a service road and Nautica backed up to
5 residents.
6 MR. HARDEN: Okay. Unlike Arielle's is
7 surrounded by commercial zoned -- CRO-zoned
8 property?
9 MS. BURT: The CRO, commercial, residential
10 office.
11 MR. HARDEN: Yes. CRO is the zoning of all
12 the surrounding properties?
13 MS. BURT: What was the question?
14 MR. HARDEN: This site is surrounded on all
15 sides by CRO property?
16 MS. BURT: It is surrounded by CRO,
17 commercial-residential-office property.
18 MR. HARDEN: None of that CRO is a
19 residential use, is it?
20 MS. BURT: I think if it says residential.
21 Are we not talking about the people that
22 live right behind this establishment?
23 MR. HARDEN: All of the CRO is in a
24 commercial use that surrounds this site; is that
25 correct?
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1 MS. BURT: Are not -- the apartments behind
2 there, is that not a -- is that not
3 residential?
4 I mean, I don't know. I'm asking. To me
5 it's residential. So you're saying it's
6 commercial, but I say it's residential.
7 MR. HARDEN: It's zoned CRO?
8 MS. BURT: Okay.
9 MR. HARDEN: Is that correct?
10 THE CHAIRMAN: "I don't know" is --
11 MR. HARDEN: If you don't know --
12 MS. BURT: I guess I don't know the answer
13 to that question.
14 THE CHAIRMAN: That's a fine answer.
15 MR. HARDEN: That's all I have.
16 Thank you.
17 THE CHAIRMAN: Thank you.
18 Okay. Committee members, as part of the
19 presentation of evidence, council members are
20 allowed to ask questions of the presenters. Are
21 there any questions of the presenters of
22 evidence?
23 Councilmember Yarborough.
24 MR. YARBOROUGH: Thank you.
25 Actually, if I can make one comment, and
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1 then I'll ask a few questions.
2 On the map that we were given, the
3 properties abutting Arielle's, just to the north
4 are CRO, but to the west, where Dr. Smitha's
5 office is, is CO. So it's not all CRO.
6 The other thing I'll note is that it's
7 within 400 feet of the first house in Alderman
8 Park, which is zoned RLD .
9 Mr. Harden, if you could come up, please,
10 sir. I just have a few questions for you.
11 THE CHAIRMAN: Mr. Harden.
12 (Mr. Harden approaches the podium.)
13 MR. YARBOROUGH: Thank you.
14 Mr. Harden, I think right across the
15 expressway from the property where Arielle's is
16 is Jim's Place, and I'm not certain how that's
17 zoned. But would you characterize that as a
18 bona fide restaurant or is that a nightclub; do
19 you know?
20 MR. HARDEN: It's in a commercial general
21 zoning category. Is that the question?
22 MR. YARBOROUGH: No. How would you
23 classify the restaurant? Would it be -- is it
24 bona fide? Is it a nightclub; do you know?
25 MR. HARDEN: Jim's I do not know, but I do
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1 know that the Arlington Expressway has 80,000
2 cars going one way on its side between it and
3 there. But I don't know -- I have no personal
4 knowledge of Jim's Place.
5 MR. YARBOROUGH: Okay. Thank you,
6 Mr. Harden.
7 If I could have Ms. Burt come back up or
8 Mr. Crescimbeni if he'd like to represent her.
9 I have just a couple of questions.
10 Thank you.
11 (Mr. Crescimbeni approaches the podium.)
12 MR. YARBOROUGH: Mr. Crescimbeni, am I
13 correct that I heard you -- when you were giving
14 your presentation, did you mention that when
15 Red Lobster was still occupying the building
16 there at 7707 Arlington Expressway, in your
17 opinion, did you believe that that had a
18 detrimental effect on the surrounding properties
19 there when it operated?
20 MR. CRESCIMBENI: Red Lobster operated as
21 bona fide restaurant until they relocated to the
22 Regency Square area, and they were compatible
23 with the neighborhood. But they did have a
24 closing time of weekdays at 10 p.m. and Friday
25 and Saturday or weekend nights at 11 p.m.
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1 MR. YARBOROUGH: Okay. And would -- in
2 your opinion, would the operation of Arielle's
3 there, as it is, have, I guess, a negative
4 effect on the property values, the surrounding
5 property values in the community there?
6 MR. CRESCIMBENI: I think if it operates as
7 a bona fide restaurant, it would not have an
8 adverse effect on property values. But that
9 zoning district doesn't accommodate anything but
10 a bona fide restaurant. It doesn't accommodate
11 a nightclub or a lounge or anything else, and
12 that could have an adverse effect on property
13 values.
14 MR. YARBOROUGH: Thank you.
15 One more question for Mr. Harden, if I
16 could, Mr. Chairman.
17 THE CHAIRMAN: Sure.
18 MR. YARBOROUGH: I was looking at the
19 definition of "bona fide restaurant,"
20 Mr. Harden, and I think it's that the building
21 would have to be such that it sells -- or it
22 takes in, I'm sorry -- derives not less than
23 51 percent of the income from the sale of food
24 sold and consumed on premises. It mentions some
25 other things.
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1 Is this classified as a bona fide
2 restaurant? And I ask that because some of
3 these visuals that we received that denote what
4 is supposedly taking place at Arielle's, this
5 looks more, to me, like a nightclub because it
6 does have a dance floor and an open area for a
7 live band, and there are nearly naked women on
8 this picture here.
9 MR. HARDEN: Now, Mr. Yarborough, I don't
10 agree with you that it's nearly naked women, but
11 let me answer your question.
12 MR. YARBOROUGH: Well, if you could answer
13 the question about it being a restaurant.
14 MR. HARDEN: Well, that was a comment, not
15 a question.
16 Arielle's restaurant has met continuously
17 for the last two years the requirements of a
18 bona fide restaurant, deriving more than
19 51 percent of its sales from food. Yes, it is a
20 bona fide restaurant.
21 The use of a restaurant with a dance floor
22 is a legal use in a bona fide restaurant. For
23 instance, you have Friday's. For instance, you
24 have -- there are a lot of restaurants that have
25 dance floors. That is not an illegal use.
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1 The use of a restaurant for entertainment,
2 for instance, the Alhambra restaurant, with an
3 SRX license is a legal use for a restaurant
4 use. You can have entertainment as a legal use
5 in a restaurant.
6 The definition for "bona fide restaurant"
7 is as you read, and for two years Arielle's has
8 met those requirements for a bona fide
9 restaurant.
10 MR. YARBOROUGH: Okay. The reason I'd
11 asked, Mr. Harden, is because the definition of
12 "nightclub" was a bar, tavern, dance club or
13 other like establishment typically characterized
14 by the service of alcoholic beverages, set aside
15 a floor area for dancing or live performance of
16 music, which Arielle's does have, but not
17 including a bona fide restaurant according to
18 the ordinance code.
19 MR. HARDEN: That's right. So if it
20 includes a bona fide restaurant, it meets the
21 requirement of a bona fide restaurant.
22 There are literally hundreds of
23 restaurants. The fact that the way the people
24 dress there might not meet your criteria doesn't
25 make it not a bona fide restaurant. The fact
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1 that the type of entertainment there may be
2 something that someone disagrees with doesn't
3 make it illegal. The type of people that visit
4 the restaurant doesn't make it illegal.
5 If it meets the 51 percent criteria, it's a
6 bona fide restaurant and, therefore, is
7 available to operate in the CN zoning category.
8 And, yes, let me make it very clear for the
9 record, Arielle's meets that requirement for a
10 bona fide restaurant.
11 MR. YARBOROUGH: Thank you.
12 THE CHAIRMAN: Thank you, Mr. Harden.
13 I actually have a question for
14 Mr. Crescimbeni -- or representing as an agent.
15 (Mr. Crescimbeni approaches the podium.)
16 THE CHAIRMAN: Mr. Crescimbeni, I heard a
17 number of references to a former Red Lobster
18 that was there. Is that, in your opinion, a
19 bona fide restaurant?
20 MR. CRESCIMBENI: I'm sorry. What was the
21 question?
22 THE CHAIRMAN: The Red Lobster that's been
23 referenced several times before, was that a
24 bona fide restaurant?
25 MR. CRESCIMBENI: Yes. I mean, in my
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1 opinion, it met the criteria of a bona fide
2 restaurant.
3 THE CHAIRMAN: Have we ever seen audited
4 records that showed the percentage of food
5 versus alcohol served in the Red Lobster at that
6 location?
7 MR. CRESCIMBENI: I couldn't answer that
8 question. We've never submitted the records.
9 THE CHAIRMAN: Okay. I guess the other
10 question, it was referenced -- I don't think you
11 made it or maybe you made it, but I know the
12 people you represent made it -- that they've
13 been there at various different hours and
14 there's not been any business there.
15 MR. CRESCIMBENI: I made that reference as
16 did some of the other speakers, yes.
17 THE CHAIRMAN: I mean, I guess --
18 MR. CRESCIMBENI: The -- I'm sorry.
19 Go ahead.
20 THE CHAIRMAN: Would you consider, for the
21 sake of discussion, an Outback restaurant to be
22 a bona fide restaurant?
23 MR. CRESCIMBENI: Yes.
24 But remember that this restaurant is in
25 the -- it's in the lowest intensity zoning
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1 district that a restaurant can be in, the lowest
2 intensity. On the list I submitted, there were
3 only four other -- there were three other
4 restaurants in that lowest intensity.
5 I think, you know, if you look on the list
6 and there's an Outback on there, it's probably
7 going to be a much more higher intense
8 district. And, yes, I would consider an Outback
9 to be a bona fide restaurant.
10 THE CHAIRMAN: The reason I asked the
11 question is that Outback doesn't open until
12 dinner at night. So they're not going to be
13 open during the hours that you typically --
14 MR. CRESCIMBENI: The more important
15 question, I think, Mr. Chairman, with respect to
16 my -- from my friends here would be what time
17 Outback closes.
18 THE CHAIRMAN: Right. Okay. Thank you. I
19 appreciate it.
20 I have Councilwoman Mia Jones.
21 MS. JONES: Thank you, Mr. Chairman.
22 Mr. Crescimbeni, if you could back come up.
23 (Mr. Crescimbeni approaches the podium.)
24 MS. JONES: The determination of whether a
25 business is a bona fide restaurant, you had
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1 stated that it's determined by whom? What
2 agency, organization would have the licensure
3 authority over that?
4 MR. CRESCIMBENI: The State, Department of
5 Business -- I'm sorry. DBPR, I believe, is the
6 one that inspects restaurants with regards to
7 the 51 percent audits, but this -- you know this
8 City Council has the ability to determine what's
9 a bona fide restaurant as well.
10 MS. JONES: So based on the information
11 that you've been able to gather and your clients
12 have been able to gather, that licensure from
13 that organization has never been taken from
14 Arielle's?
15 MR. CRESCIMBENI: Well, Ms. Jones, I'd love
16 to sit down with you at a future date and talk
17 to you about that process, the audit process,
18 which is very, very lax. But there's only been
19 one audit performed, one audit only, and that
20 was performed within a couple of months of the
21 establishment.
22 MS. JONES: Well, I'm an accountant, too.
23 And although I'm not a CPA, I know all about
24 organizations -- whether they be state, federal
25 or local -- have whatever their criteria is, and
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1 I believe that they would not hold this business
2 to any higher standard.
3 So I just want to hear from you whether or
4 not, based on the information that you have,
5 have they lost that licensure ability?
6 MR. CRESCIMBENI: Not to my knowledge.
7 MS. JONES: Thank you very much.
8 THE CHAIRMAN: Thank you.
9 Councilmember Webb.
10 MR. WEBB: Thank you.
11 Through the Chair to Mr. Crescimbeni,
12 please. The Planning Department findings, were
13 they challenged at the Land Use and Zoning
14 Committee?
15 MR. CRESCIMBENI: I would have to defer to
16 Ms. Burt.
17 MR. WEBB: Okay. Ms. Burt.
18 MS. BURT: We originally did challenge that
19 this would be detrimental to the community
20 because all of our evidence of late night hours,
21 liquor, and this very -- it's nonintense
22 zoning. It was supposed to serve the contiguous
23 neighborhood. It would have an adverse impact
24 on the neighborhood.
25 So, yes, we did challenge that. We put
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1 that forward. Today we put all that aside and
2 said protect us by conditioning this. And if
3 he's a bona fide restaurant, fine.
4 MR. WEBB: I understand. Thank you.
5 Through the Chair to the General Counsel's
6 Office. If an applicant or a successful
7 applicant for an exception is not acting in a
8 manner consistent with that exception, what is
9 ordinarily the remedy available to the
10 community?
11 MR. ARPEN: Actually, it would be -- there
12 is a mechanism for enforcement of the City
13 zoning code, which would include acting
14 consistently with any zoning ordinances or
15 zoning exceptions or variances which may be
16 granted relief -- or not relief -- an
17 enforcement action against a business or, for
18 that matter, any property owner who's not
19 complying according to the zoning code or the
20 grant of a rezoning or exception or variance is
21 subject to enforcement either through the
22 Municipal Code Enforcement Board or through a
23 citation under the City's ordinance code or
24 through an action filed in Circuit Court for
25 failing to comply with the zoning regulations
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1 applicable to that particular property.
2 MR. WEBB: Okay. Thank you.
3 Through the Chair to Mr. Harden. I have a
4 question for you, sir.
5 I want to get some clarification on some
6 testimony that you introduced. I believe you
7 stated that your client, the applicant, at --
8 and read some transcript as well -- at the
9 Planning Commission, that he would operate much
10 like a Red Lobster. Would you clarify that?
11 MR. HARDEN: I did not read any transcript
12 from the Planning Department. The issue was
13 whether or not it's a bona fide restaurant.
14 MR. WEBB: Let me --
15 MR. HARDEN: My point was that the
16 Red Lobster had an alcohol exception.
17 MR. WEBB: I understood that.
18 MR. HARDEN: Yeah. But I didn't read any
19 of the transcript.
20 MR. WEBB: Okay. Understood.
21 A question to Mr. Crescimbeni. Your
22 recollection of the testimony of the applicant
23 at the Planning Commission was that, what, that
24 this would, in fact, act --
25 MR. HARDEN: The transcript of the
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1 Planning Commission is in evidence. So his
2 recollection --
3 MR. WEBB: Okay. Well, we'll review that.
4 MR. CRESCIMBENI: Through the Chair to
5 Councilman Webb, I read the testimony of the
6 applicant. I can reread that into the record if
7 you'd like.
8 MR. WEBB: Could you just indicate to me
9 the relevant --
10 THE CHAIRMAN: The page number is all we
11 need.
12 MR. WEBB: The page number would be great.
13 MR. CRESCIMBENI: The Planning
14 Commission -- it's the transcript of the
15 Planning Commission of the meeting of January
16 27th, 2005, page 72, page 108, and page 109.
17 MR. WEBB: Thank you, Mr. Crescimbeni.
18 MR. CRESCIMBENI: Through the Chair to
19 Mr. Webb, if I could just elaborate.
20 You referenced the enforcement process or
21 there was a comment about the enforcement
22 process. Three of these conditions that were
23 applied by the Planning Commission and adopted
24 by the council were not performed.
25 MR. WEBB: Mr. Crescimbeni, through the
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1 Chair, I don't want to get you in trouble on
2 appeal of this matter.
3 Okay. The last question, through the Chair
4 to general counsel. Again, procedurally, we're
5 considering this -- this review of the Planning
6 Commission decision de novo; is that correct?
7 MR. ARPEN: That's correct.
8 MR. WEBB: Are we precluded from hearing
9 evidence to refute some of the evidence that may
10 have been presented at the Planning Commission
11 some years back? I mean, this is like back to
12 the future. We know now what we didn't know
13 then.
14 MR. ARPEN: Through the Chair, that's
15 correct. You can consider evidence --
16 Because we're now at this point in time,
17 you can consider evidence as to the actual
18 operations of the facility in the last two years
19 or any other evidence that may be relevant in
20 the last couple of years. I think both sides
21 have presented evidence in that regard.
22 MR. WEBB: All right. Thank you.
23 I have no further questions. I would like
24 to review the transcript, though, please.
25 THE CHAIRMAN: Thank you.
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1 Councilmember Shad.
2 MR. SHAD: Thank you.
3 We're in committee? Did we close?
4 THE CHAIRMAN: No. We are actually
5 clarifying presented evidence from the two
6 sides.
7 MR. SHAD: When we get into committee, I'll
8 speak up.
9 THE CHAIRMAN: Thank you.
10 Councilwoman Jones.
11 MS. JONES: Mr. Crescimbeni, could you come
12 up.
13 MR. CRESCIMBENI: (Complies.)
14 MS. JONES: Or, actually, I think that
15 would be Ms. Burt. I think she was the one that
16 made a statement about the property values.
17 MS. BURT: I didn't make a statement about
18 property values. I did --
19 THE CHAIRMAN: If you're going to talk, you
20 have to come to the microphone.
21 MS. BURT: I'm sorry. I made no statement
22 about property values. I did make a statement
23 about having been negatively impacted by
24 nightclub activity in the past.
25 MS. JONES: I just wanted to bring it to
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1 the body's attention that when you look at the
2 sales over the past three years, they seem to be
3 going up.
4 In 2006, they look in that immediate
5 neighborhood behind the establishment that we're
6 talking about, 2- -- the highest is $285,000,
7 just in 2006, and the lowest in 2006 looks to be
8 about 145-. And back in previous years, in
9 2004, it was at 154- and 140-.
10 So I just wanted to make sure that the body
11 understood that there have been significant
12 sales in the area. And, to me, it doesn't
13 appear that they've been negatively impacted by
14 the establishment.
15 THE CHAIRMAN: Thank you.
16 Councilman Yarborough.
17 MR. YARBOROUGH: Thank you.
18 Actually, Ms. Jones prompted me to ask a
19 question of legal. Is it not true that property
20 values have been increasing in various places
21 all over the city of Jacksonville?
22 MR. ARPEN: I'm not sure that it's
23 appropriate for me to be the one to answer that
24 question. I think the committee can rely upon
25 their own common knowledge as to what may have
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1 occurred within the real estate market in the
2 city of Jacksonville in the last few years.
3 MR. YARBOROUGH: Thank you.
4 And I guess this question would be to the
5 Planning Department.
6 On criteria number 2, the question is,
7 "Will the proposed use be compatible with the
8 existing contiguous uses?" What do we use as
9 the definition of "compatible"?
10 Either to Mr. Crofts or Mr. Avery, what is
11 that definition? And I ask for a reason.
12 MR. CROFTS: Compatible uses in the
13 comprehensive plan and the zoning code are in
14 some cases like similar uses, identical uses
15 adjacent to the property or juxtaposition to
16 it. We have a range of uses that could be also
17 determined to be compatible as it relates to a
18 transition from a low density residential to an
19 office type of use to smaller density
20 multifamily use.
21 So compatibility deals with identical as
22 well as uses that have certain types of impact
23 such as noise, traffic and other intense or
24 dense types of characteristics.
25 MR. YARBOROUGH: Okay. Thank you.
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1 Mr. Chairman, at this point, would it be
2 appropriate to continue to comment on the item
3 or wait until we get into a motion?
4 THE CHAIRMAN: I'd prefer to get back into
5 committee.
6 MR. YARBOROUGH: Okay. I'll do that.
7 THE CHAIRMAN: Strictly questions for the
8 presentation of evidence.
9 Thank you, Councilmember Yarborough.
10 We're now ready for public comments. We've
11 inquired before as to the public comments from
12 Ms. Burt and Mr. Smitha, and they both were part
13 of the evidence. We now are looking for public
14 comments from anyone in favor of the -- in favor
15 of the --
16 MR. ARPEN: Mr. Chairman, to be consistent
17 with the order of presentation as we've followed
18 it so far, I would say first you would take any
19 public comments in favor of the applicant or the
20 zoning exception and then any public comments in
21 opposition to it.
22 THE CHAIRMAN: Okay. Seeing no speakers in
23 favor of the zoning application, we will now
24 turn to the opposition. I only have one card.
25 That's Mr. Ted Wedler -- or Wendler, excuse me.
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1 Mr. Wendler.
2 MS. BURT: I'm sorry. He just went to the
3 restroom.
4 THE CHAIRMAN: Okay. We'll be a little
5 lenient if he comes back in the next couple of
6 minutes.
7 I see no public comments issued at this
8 point. So, therefore, we have no reason to have
9 rebuttal evidence on the public comments.
10 We are now ready for closing statements.
11 The closing statements will begin with
12 Mr. Harden, who will have three minutes, and
13 followed by either Mr. Crescimbeni or Ms. Burt
14 or Mr. Smitha for a total combination of ten
15 minutes, followed by Mr. Harden, who will have
16 an additional two minutes at the end.
17 I'm hoping that Mr. Wendler would come back
18 in, but I do not see him.
19 MS. BURT: Sorry. He takes medication.
20 THE CHAIRMAN: That's okay.
21 All right. Based on that, we will begin
22 with Mr. Harden with closing statements.
23 MR. HARDEN: The evidence is finished?
24 You're not going to let anyone else talk?
25 THE CHAIRMAN: Unless he walks in the door
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1 before you get to the microphone, that is a
2 correct statement. I do not see him coming in
3 the door, so we are finished with the
4 presentation of evidence. We're now going to do
5 closing statements and then come into committee.
6 MR. HARDEN: Thank you, Mr. Chairman.
7 As I indicated in my opening statement,
8 your only job today is to determine whether or
9 not the nine criteria are met. Those nine
10 criteria have been met as stipulated by the
11 appellants. Both Mr. Crescimbeni and his two
12 clients indicated --
13 THE CHAIRMAN: Mr. Harden, Mr. Wendler is
14 here. Would you have an objection to him making
15 his comments or not?
16 MR. HARDEN: I'm going to do graciously
17 what you're going to make me do anyway.
18 THE CHAIRMAN: I appreciate your patience,
19 Mr. Harden.
20 Mr. Wendler.
21 MR. HARDEN: I have to turn my back to
22 these people that are waiting.
23 (Mr. Wendler approaches the podium.)
24 THE CHAIRMAN: Sir, I appreciate you
25 getting back in here. You have three minutes to
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1 make comments, please.
2 MR. WENDLER: I thought I could leave
3 because I didn't get called. I'm out of
4 breath.
5 Anyway, I drive by Arielle's quite often.
6 THE CHAIRMAN: Give me your name and
7 address for the record, please.
8 MR. WENDLER: Ted Wendler, 7876 Glen Echo
9 Road North, Jacksonville.
10 I drive by the old Red Lobster very often.
11 And during the day, there's never any business
12 at Arielle's. And even in the evening when I
13 would come back from dinner, say, at 7 o'clock,
14 there may be two or three cars there, which I
15 assume are maybe employees or whatever. And
16 then late at -- if I come by there late --
17 later, like 10:30 or 11 o'clock, there may be
18 40 or 50 cars. So that tells me that this place
19 is entertainment more than it is dinner.
20 Now, that's just my opinion, but I think
21 it's a reasonable position. People don't
22 typically eat at 10 o'clock. I know some people
23 do, but somebody should be there earlier if this
24 is really a restaurant. It's more like a club,
25 maybe a nightclub.
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1 And one other issue, I have done some
2 research on this 51 percent business. And
3 specifically I asked for the audit manual of the
4 ABT people who do these 51 percent audits, and
5 they've done one audit on this establishment.
6 Oh, by the way, I'm a certified public
7 accountant and have been for 35 years.
8 They have done one audit. That was done
9 shortly after they opened, within four months
10 when they opened. They have not done another,
11 and they don't intend to do another. Unless
12 there is a complaint, then they would.
13 I also asked them what the criteria was. I
14 asked for their audit manual, which is how CPAs
15 determine what they're going to do, how they're
16 going to audit. And they said if this place --
17 if a place looked like a club, they would use a
18 different process.
19 Well, they couldn't define what a club
20 looks like. They referred me to their legal
21 department. I asked them, "Does this give the
22 appearance of a club?" And they sent back, "We
23 don't know." So if they don't know what a club
24 looks like, how can they possibly audit it?
25 Now, this audit that was done -- and I have
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1 a copy of the audit -- was done using the
2 licensee's financial statements. They weren't
3 audited financial statements. At least they
4 didn't say they were.
5 I see my time is up, so I'll shut up.
6 THE CHAIRMAN: Thank you.
7 Does either side have any rebuttal
8 questions?
9 Mr. Crescimbeni, does your side have any
10 rebuttal evidence?
11 MR. HARDEN: No, that's fine.
12 MR. CRESCIMBENI: I don't need to speak.
13 THE CHAIRMAN: Mr. Harden, do you have any
14 rebuttal evidence?
15 MR. HARDEN: Yes.
16 Let me tell you again, in response to
17 Mr. Wendler, on every occasion we have met the
18 requirement of a bona fide restaurant. That is
19 the 51 percent income. There is no evidence to
20 the contrary tonight, and I will tell you that
21 we have met it under each occasion.
22 Second of all, it's not illegal to eat
23 dinner at 9 o'clock or 10 o'clock at night. I
24 often do it myself at a restaurant near my
25 house. And so the fact that there's cars there
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1 at different times doesn't make that illegal.
2 Again, it's not illegal under the CN zoning code
3 to have entertainment with your dinner. So
4 without conceding when the cars are or not
5 there, it's not an illegal use to serve dinner
6 at 9 or 10 o'clock in a restaurant.
7 THE CHAIRMAN: Does that conclude your
8 rebuttal evidence?
9 MR. HARDEN: It does.
10 THE CHAIRMAN: All right. We are now on
11 closing statements. We are going to begin with
12 those again.
13 Mr. Harden, you have three minutes,
14 followed by five minutes for Ms. Burt or
15 Mr. Smitha, and then followed by two minutes
16 from Mr. Harden.
17 MR. HARDEN: Thank you, Mr. Chairman.
18 Paul Harden, 1301 Riverplace Boulevard.
19 As I indicated, your sole duty as a
20 quasi-judicial officer today is to make a
21 determination as to whether or not the nine
22 criteria have been met. It has been conceded in
23 the record that the nine criteria have been
24 met.
25 I'll read to you very clearly from the
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1 Florida Supreme Court, Irvine versus City of
2 Jacksonville, that once the burden -- once the
3 petitioner has met the initial burden of showing
4 the application met the criteria, the burden
5 shifts. Once you meet those nine criteria, it
6 shifts. There has been no competent substantial
7 evidence -- actually, no evidence presented that
8 the criteria are not met.
9 The sole use of the Planning Department
10 report as the competent substantial evidence has
11 been confirmed by the Battaglia Fruit case.
12 Once that happens, which it has, they have
13 to present evidence that the criteria have not
14 been met. There has been no evidence. In fact,
15 it's been conceded that the nine criteria are
16 met.
17 But there is a further burden on top of
18 that you don't get to unless you prove the nine
19 criteria aren't met, and that is that it's
20 adverse to the public interest. There's been no
21 competent substantial evidence that the use is
22 adverse to the public interest.
23 Mr. Hill has continued to operate in
24 compliance with the terms of the zoning code.
25 This facility is located on a very, very busy
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1 thoroughfare. In all due respect, the
2 businesses on either side, if you were to
3 believe the opponents that all the activity when
4 they eat dinner and enjoy the facility is at
5 9 or 10 o'clock, those facilities are closed,
6 the tire store to the east, Dr. Smitha's office
7 to the west. There's a substantial buffer to
8 the CRO uses to the rear. There's been no
9 complaints by those folks.
10 So, again, basing it just on the criteria,
11 the competent substantial evidence -- not just
12 the competent substantial evidence, the totality
13 of the evidence is that we meet the nine
14 criteria. And based on that, meeting the nine
15 criteria, we are entitled to the exception, and
16 we would respectfully request that you grant
17 it.
18 Mr. Crescimbeni himself said they're not
19 here today to complain about the exception.
20 They want to deal with other issues. This is
21 not the forum. I think Councilman Webb
22 indicated there are -- yes, Mr. Arpen -- what
23 the other forums are.
24 There are other forums. We'll be happy to
25 deal in those forums if there's a suggestion
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1 that we aren't meeting the conditions, but what
2 we're here today to do is determine if we meet
3 the nine criteria, and all of the evidence shows
4 that we do.
5 Thank you, Mr. Chairman.
6 THE CHAIRMAN: Thank you, Mr. Harden.
7 Mr. Crescimbeni, how are you going to
8 handle the closing arguments?
9 MR. CRESCIMBENI: I'll handle them.
10 Thank you.
11 THE CHAIRMAN: Are the other two parties
12 going to speak or not?
13 MS. BURT: No. Thank you.
14 THE CHAIRMAN: Was that a no? I'm sorry.
15 MS. BURT: (Shakes head.)
16 THE CHAIRMAN: Mr. Crescimbeni, go ahead.
17 MR. CRESCIMBENI: Thank you, Mr. Chairman.
18 Again, Dr. Smitha, Ms. Burt, the
19 neighborhood doesn't have an objection to a
20 bona fide restaurant operating at the location.
21 The Red Lobster was a bona fide restaurant. The
22 Red Lobster closed at 10 p.m. on weekdays,
23 11 p.m. on weekend nights, and they were happy.
24 They just want a good neighbor there. That's
25 all they want.
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1 The question is -- and again, we recognize
2 that the criteria were met. We also know that
3 this council has the ability to restrict hours
4 of operation, period. And the question is, does
5 this establishment operate as a restaurant or
6 does it operate as something other than a
7 restaurant, something beyond a restaurant?
8 Because anything beyond a bona fide restaurant
9 can't happen in this zoning district. It cannot
10 happen in this land use category.
11 Restaurants with 4-COP SRX licenses are
12 generally in more intense zoning districts.
13 This is one of four on the table that I gave you
14 that's in the neighborhood commercial land use
15 category, the CN zoning district.
16 Restaurants close at reasonable times.
17 This one doesn't. Restaurants post their hours
18 of operations on the door. This one doesn't.
19 Restaurants typically don't have drink specials
20 or advertisements advertising that the food
21 service -- they stop serving food at 6 p.m., as
22 the evidence that we've submitted indicates, or
23 that they don't open until 9 p.m.
24 Restaurants usually comply with the
25 conditions of their exception. This exception
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1 was granted with some conditions; landscaping,
2 fencing, removal of signage. None of those have
3 taken place.
4 You talk about the process. Yeah, the
5 citizens have a process available to them. The
6 citizens use that process. They complained to
7 the City about those exceptions not being -- I
8 mean, about those conditions not being complied
9 with.
10 The applicant certainly has complied with
11 the sale of alcohol. He got that and four
12 conditions. He marched full steam ahead on the
13 sale of alcohol but didn't do anything about the
14 other conditions. They complained to the City.
15 Nothing happened. They took that complaint and
16 complained to a high-ranking Planning Department
17 person. We have that in writing. Nothing
18 happened.
19 So don't -- you know, the system is there,
20 but, folks, it doesn't work. It didn't work
21 when I was on the council, and it still doesn't
22 work.
23 You have the ability to limit hours. The
24 other four restaurants on that list that are in
25 the NC, the least intense zoning district, close
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1 at 10 and 11 o'clock, 10 o'clock on weeknights,
2 11 o'clock on weekends. That's all we're asking
3 for in this case, and you have every right to
4 make that limitation.
5 Mr. Harden mentioned the Alhambra. The
6 Alhambra is a great example. The Alhambra is in
7 a CCG-1 zoning district, not CN. And the cars
8 all arrive at the Alhambra at the same time, and
9 they generally stay until the performance is
10 over.
11 Again, they're looking for a good
12 neighbor. You've seen the evidence. Ask
13 yourself, is this a restaurant? Does a
14 restaurant post their hours? Does a restaurant
15 stay open till 2 or 3 or 4 o'clock in the
16 morning? Does a restaurant limit food sales at
17 a specific -- do they cut off food sales at
18 6 p.m.? Does a restaurant typically not open
19 till 9 p.m.?
20 You have the evidence before you. Make
21 that determination. If it's a bona fide
22 restaurant, the neighborhood is happy. We can
23 live with it, providing they perform the
24 conditions that were placed upon them. If it's
25 not a bona fide restaurant, it doesn't belong in
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1 the neighborhood commercial land use category or
2 the CN zoning district.
3 It's the least intense category. They're
4 one of only four restaurants in that category.
5 Everyone else is in something much more
6 intense.
7 This abuts residential property. It abuts
8 commercial office property. The land use
9 category for neighborhood commercial says it has
10 to serve the contiguous residential
11 neighborhood. I didn't make that up. It's in
12 your zoning code.
13 Thank you.
14 THE CHAIRMAN: Thank you.
15 Mr. Harden, you have two minutes to make a
16 closing argument.
17 (Mr. Harden approaches the podium.)
18 MR. HARDEN: I'll go very quickly.
19 Thank you, Mr. Chairman.
20 In all due respect, notwithstanding the
21 fact you may have stayed at a Holiday Inn
22 Express last night, Mr. Crescimbeni's definition
23 of what a restaurant is is inaccurate. The
24 definition is in the zoning code, and it's in
25 the alcoholic beverage regulations. There are
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1 no closing hour requirements from the definition
2 of a bona fide restaurant. There are a lot of
3 restaurants open past 10 o'clock at night.
4 The only criteria for a bona fide
5 restaurant is the 51 percent sale of food.
6 There has been no evidence to the contrary that
7 Arielle's does not meet that. Indeed, it has
8 met that criteria for two years.
9 They, again, in their closing statement
10 concede that we meet the nine criteria. That
11 ends the question that we're here about
12 tonight. Whether or not it's a bona fide
13 restaurant, they could have another forum to
14 debate that, but there's no evidence to the
15 contrary. That's not -- whether or not they
16 meet the conditions is in another forum.
17 The only thing you're here tonight to
18 decide is whether or not the nine criteria are
19 met, and the totality of the evidence shows
20 that's the case.
21 Thank you, Mr. Chairman.
22 THE CHAIRMAN: Thank you, Mr. Harden.
23 That concludes the evidence presentation
24 from both parties.
25 Councilmember Yarborough, this took place
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1 in your district. Do you have any comments as
2 we get into committee?
3 MR. YARBOROUGH: I'll just ask Mr. Arpen,
4 and then I'll make a few comments.
5 To grant this, Mr. Arpen, if we move to
6 grant, it's -- the language is a little bit
7 tricky on the agenda, "Appeal of final order by
8 Planning Commission approving the application."
9 So if the appeal is granted, basically, then, it
10 revokes the application for the exception; is
11 that right, and puts it back?
12 MR. ARPEN: That's correct.
13 Through the Chair, the appeal that's before
14 you is an appeal of the City -- of the Planning
15 Commission's action granting the zoning
16 exception. So an action to deny the appeal
17 would be an action -- would be a vote to affirm
18 the vote of the Planning Commission.
19 MR. YARBOROUGH: Uphold the exception.
20 MR. ARPEN: Uphold the exception.
21 MR. YARBOROUGH: Okay. Thank you.
22 Thank you, Mr. Chairman.
23 Just three real quick observations, and
24 I'll be done with my comments.
25 I disagree with Mr. Harden's assertion that
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1 all the criteria have been met.
2 If you look in our book that we have on
3 this, number 2, as far as the question about,
4 "Will the proposed use be compatible with the
5 existing continuous [sic] uses," et cetera, and
6 then it talks about orientation of structures
7 and property values, the answer that was put in
8 by the department said "yes."
9 It goes on to say, "Retail sale and service
10 of alcoholic beverages" -- "permissible use by
11 exception." But it also says, "As stated in the
12 definition, these uses may be appropriate if
13 controlled as to number, area, location in
14 relation to the neighborhood and that promote
15 the public, health, safety, welfare" -- here's a
16 word -- "morals, order, comfort, convenience,
17 appearance, prosperity or general welfare of the
18 surrounding" -- or, I'm sorry, there's a period
19 there -- "prosperity or general welfare. The
20 proposed use is incidental with the primary use
21 as a restaurant.
22 I disagree that it promotes morals,
23 comfort, convenience of the contiguous
24 surrounding uses of the property at 7707, the
25 Expressway. That's one observation. So I don't
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1 believe the criteria has been met.
2 The other thing, as has been put in the
3 admissible evidence from Mr. Crescimbeni -- he
4 mentioned the other three restaurants in the
5 city that have been given the 4-COP SRX license
6 that are in an NC -- that have an NC land use
7 designation. The closing times for the weekdays
8 and weekends are all listed here, and they all
9 close -- the latest one is midnight, Chili's
10 Grill & Bar on Atlantic Boulevard. This would
11 be open much later than any of these other three
12 restaurants on a weekday or on the weekend.
13 And then, lastly, the other conditions have
14 not been met that could have been met between
15 the time this was done two years ago and now,
16 and those conditions were put into place two
17 years ago to protect and help the contiguous
18 neighboring properties around Arielle's.
19 So those could have been met, and I
20 understand they've been operating with the
21 exception for the past, I guess, year and a half
22 to two years, but these other conditions were
23 not met and they could have been, so that's a
24 concern too.
25 And when we put the conditions in, we're
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1 doing that to protect the neighboring
2 properties. And right along this we have the
3 dentist office, we have a playground, we have
4 the apartments, we have a tire shop. And then
5 right behind there is the entrance, right there
6 off the side road, to Alderman Park, an 800-home
7 neighborhood that sits right there behind this
8 location. So I would just ask that you support
9 this.
10 And those are all my comments,
11 Mr. Chairman.
12 Thank you.
13 THE CHAIRMAN: Thank you, Councilman
14 Yarborough.
15 Councilmember Shad.
16 MR. SHAD: Thank you.
17 To the committee, I did find Mr. Harden's
18 argument pretty persuasive. I think the -- you
19 know, I think we may have -- from testimony from
20 some of my colleagues, we may have some
21 questions on the process currently in front of
22 restaurants on becoming bona fide, and I -- I
23 understand. I've had a good deal of dealing
24 with that in my district, and I don't know what
25 ability we have except to acknowledge that the
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1 applicant is playing by the rules that we
2 currently have established.
3 If we want to, as a council, look at -- I
4 don't know if we can supersede what's governed
5 at the State level, but if we were able to put
6 something in play here, I think the applicant
7 would have the opportunity to abide by those
8 rules if we were going to put those in, but
9 currently there are other rules, the 51 percent.
10 The discussion of the hours I do find a
11 little silly. There are so many bona fide
12 restaurants that have -- that are open 24 hours,
13 that have drink specials, that have dance
14 floors. To use that as an argument against
15 being a bona fide restaurant I just find
16 completely unmoving.
17 So what is before us today, the nine
18 criteria being met, is not even in dispute, and
19 I don't see how we could do anything but support
20 the Planning Commission's decision, and then I
21 would work with any council member -- if we want
22 to tighten up the rules on bona fide
23 restaurants, let's do that, but that's not in
24 front of us today.
25 So I am going to make the motion to deny
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1 the appeal and support --
2 MS. JONES: Second.
3 MR. SHAD: So I'd make that motion.
4 That's a motion, that's a second, and then
5 I --
6 THE CHAIRMAN: Just to get us in the proper
7 order, we have a motion and a second to move to
8 deny the appeal.
9 Go ahead, Mr. Shad.
10 MR. SHAD: But it does concern me -- and I
11 would like to have -- I don't think it's part of
12 this proceeding, but the fact that there are
13 other conditions on that property that aren't
14 being met, whether -- I heard discussion about a
15 sign and about a privacy fence. That is
16 troubling, and I would like us -- you know,
17 whatever we could do to address that.
18 I don't believe that's in front of us now,
19 but I think it's something that was brought up
20 that should be addressed in the future, so I
21 would hope that that would be fixed going
22 forward.
23 Thank you.
24 THE CHAIRMAN: Thank you.
25 Councilwoman Jones.
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1 MS. JONES: Thank you, Mr. Chairman.
2 If I could get staff to give me a
3 definition for "contiguous."
4 THE CHAIRMAN: What is the Planning
5 Department's typical definition for
6 "contiguous?"
7 MR. KELLY: Through the Chair to
8 Councilmember Jones. My definition, although
9 it's not in the code, but I would say that
10 contiguous means adjacent to.
11 MS. JONES: Adjacent to, meaning touching
12 on whichever side of the --
13 MR. KELLY: Correct.
14 MS. JONES: -- property?
15 Okay. So, in this particular instance, the
16 properties that we are looking at that are
17 contiguous are the apartment complex behind it
18 and the tire shop on the, I guess, eastern side
19 of the property?
20 MR. KELLY: Correct.
21 The tire shop to the east is zoned CCG-2
22 and the apartment complex is zoned CRO.
23 MS. JONES: Okay. Thank you, Mr. Chairman.
24 I do support the motion that was just
25 made. And if we want to send something over to
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1 Tallahassee when I get over there, we'll look at
2 it.
3 THE CHAIRMAN: Thank you, Councilmember
4 Jones.
5 Councilmember Yarborough.
6 MR. YARBOROUGH: Thank you, Mr. Chairman.
7 MR. ARPEN: Mr. Chairman.
8 THE CHAIRMAN: Mr. Arpen.
9 MR. ARPEN: Before we move any farther,
10 just to clarify things and get the record
11 straight.
12 Actually, because there's a resolution
13 before you which did not presume which way the
14 vote would go, I believe the motion that
15 Councilmember Shad made is more appropriately a
16 motion to amend the resolution to proceed as he
17 made in his previous --
18 THE CHAIRMAN: My understanding was -- his
19 was an amendment to the bill is what my
20 understanding was.
21 Is that correct, Councilmember Shad?
22 MR. SHAD: Yes.
23 THE CHAIRMAN: That is it. Thank you.
24 MR. YARBOROUGH: Thank you, Mr. Chairman.
25 And back to the second criteria, I just
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1 want to hammer this out before we take the vote.
2 Because this was written by the Planning
3 Department, I'll pose this to them.
4 The answer was "yes" to criteria number 2,
5 which would bring it in line with the rest of
6 the other eight criteria. In listing those
7 descriptors of the effects on the properties,
8 where it mentions safety, welfare, morals,
9 order, comfort and convenience, what are the
10 definitions -- I couldn't find one in the
11 ordinance code -- for "morals" or "comfort" or
12 "convenience"?
13 It talks about the continu- -- contiguous,
14 excuse me, surrounding properties. So what is
15 our benchmark or definition for "morals,
16 comfort, and convenience"?
17 The answer was "yes," so I assume that
18 someone objectively evaluated this and came up
19 with the answer of "yes."
20 Could you elaborate, please.
21 MR. KELLY: Through the Chair to Councilman
22 Yarborough --
23 THE CHAIRMAN: Mr. Kelly, before --
24 Is this on the denial or is this on the
25 bill itself, Councilman Yarborough?
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1 MR. YARBOROUGH: It's on the denial. It
2 affects my vote on that, Mr. Chairman.
3 THE CHAIRMAN: I just wanted to clarify.
4 Thank you.
5 MR. YARBOROUGH: Thank you.
6 THE CHAIRMAN: Go ahead, Mr. Kelly.
7 MR. KELLY: Thank you.
8 With regards to the second criteria
9 regarding the existing contiguous uses, that the
10 proposed use will be compatible with existing
11 contiguous uses or zoning and compatible with
12 the general character of the area considering
13 the population, density, design, scale, and
14 orientation of the structures to the area,
15 property values and existing similar uses or
16 zoning -- is the criteria.
17 I would just add that the Red Lobster had
18 been closed for sometime. It was contributing
19 to the -- some of the blight along the Arlington
20 Expressway. We looked at that.
21 We looked at the scale of the use in that
22 the alcohol service was incidental, again, to
23 the service of food and primary use as a
24 restaurant.
25 We also looked at the orientation of that
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1 use in that the use was oriented towards
2 Arlington Expressway, those structures.
3 With regards to morals, order, comfort,
4 convenience, and general welfare, I guess
5 everybody has a different opinion of -- of what
6 that means.
7 MR. YARBOROUGH: Okay. So -- well, I guess
8 that concerns me a little bit too.
9 So it could be -- to me, it could be a more
10 strict perception of that or a more stringent
11 one. But to someone else, if they interpret it
12 more loosely, I mean, that seems to open it up
13 for -- you know, especially in a case like this,
14 I mean, some could argue that -- and I will --
15 that it does not uphold the morals or comfort or
16 convenience of the neighborhood.
17 I guess in the -- Mr. Kelly, in the
18 department's view, it does -- and I guess I
19 would ask what the definitions would be of those
20 because there has to be some objective criteria
21 as it relates to this that we're -- that we're
22 talking about.
23 MR. CROFTS: In representation of the
24 department, my position is that, particularly --
25 this is, obviously, a general motherhood and
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1 apple pie type of characteristic that flows with
2 the definition, but --
3 As we get into morals and we get into
4 comfort and this general welfare, I mean, that's
5 almost beyond our particular purview in terms of
6 assessing impacts, the legislation from a
7 planning standpoint.
8 We're looking at the physical development
9 of the area, the relationships, and looking at
10 the impacts, is it a threat, is it a traffic
11 impact, is there some sort of criminal kind of
12 implication or security kind of implication as
13 it relates to the particular use. That is the
14 extent of our review.
15 And I think where you're going, Councilman,
16 with all due respect, I think you're going
17 beyond what we would consider normally within
18 our particular review. We look at it from a
19 physical impact standpoint.
20 MR. YARBOROUGH: Okay. Well, I appreciate
21 the clarification, Mr. Crofts and Mr. Kelly.
22 Thank you.
23 I do take a different view on it. In my
24 opinion, I don't believe that the criteria has
25 been met, and I would just urge my colleagues to
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1 vote in support of the appeal.
2 And that ends my comments, Mr. Chairman.
3 Thank you.
4 THE CHAIRMAN: Thank you.
5 Councilmember Shad.
6 MR. SHAD: Yes, sir.
7 Just briefly, you know, we haven't heard
8 any testimony about the morals or the comfort or
9 convenience and anything negative in that
10 aspect. In fact, the only evidence we have is
11 the Planning Department report. And not only do
12 we not have any substantial competent evidence
13 to the contrary, there's no evidence at all to
14 the contrary. So, I mean, lack of any other
15 evidence, I think we have to support the
16 Planning Department report.
17 And I believe the applicant, even though
18 Councilman Yarborough is looking at -- and
19 trying to disagree with one of the nine
20 criteria, the applicants themselves, all three
21 individually, supported and agreed that all nine
22 criteria were met. So that's a little unusual
23 there, but . . .
24 The only thing we have in front of us, the
25 only evidence at all dealing with these nine
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1 criteria is the Planning Department report. And
2 certainly we didn't have any substantial
3 competent evidence against it. In fact, we
4 didn't have any evidence against it, so I would
5 encourage you to approve the motion as made.
6 Thank you.
7 THE CHAIRMAN: Thank you, Councilmember
8 Shad.
9 I'll tell you that I don't -- personally, I
10 can't tell you what I personally feel about
11 this. I haven't been to this establishment, but
12 today I'm here to make a decision based on the
13 evidence presented to me, and I heard -- all the
14 parties involved said they met the nine
15 criteria. So, as chairman of this committee, I
16 make my decision based on the evidence
17 presented.
18 Having said that, I'll support the
19 amendment as it -- that's on the floor now.
20 Seeing no further speakers, all in favor of
21 the amendment signal by saying aye.
22 Aye.
23 MR. SHAD: Aye.
24 MR. CLARK: Aye.
25 MS. JONES: Aye.
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1 THE CHAIRMAN: All opposed.
2 MR. YARBOROUGH: Aye.
3 MR. WEBB: Aye.
4 THE CHAIRMAN: Okay. The amendment
5 carries.
6 I need a motion on the bill.
7 MS. JONES: Move the bill as amended.
8 MR. SHAD: Second.
9 THE CHAIRMAN: I have a motion and a second
10 on 2007-835 as amended.
11 Question for Mr. Arpen, for me. There's
12 been a lot of discussion about the fact that
13 certain conditions have not been met at this
14 point on this particular project. I guess when
15 I listened to that and understand that this has
16 been in litigation and back before this
17 committee for several years, I don't -- I mean,
18 I'm disappointed it hasn't been done, but I'm
19 not shocked because at any point during this
20 process my understanding is that they could have
21 been denied the right to do what they're doing
22 and have to shut down, therefore, not do the
23 conditions. So I'm just assuming that once the
24 legalities of this is going to end that these
25 conditions will be met on a timely basis.
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1 Is that a fairly accurate way to describe
2 it?
3 MR. ARPEN: Actually, Mr. Chairman, during
4 the time that the appeal has been pending,
5 obviously the business has gone ahead and opened
6 and they've been proceeding because there's been
7 no decision of the court to the contrary.
8 You know, to the extent that they were not
9 already in compliance with them, any of the
10 conditions, certainly they are expected to be.
11 And to the extent that there is the availability
12 of enforcement action against any violation of
13 the conditions, that existed previously, in our
14 view, and will continue to exist once the
15 council decision is made.
16 THE CHAIRMAN: Okay. Well, I will tell
17 Mr. Harden as agent, I would be pleased to be
18 updated with a plan on how those conditions will
19 be met as soon as possible, pending the outcome
20 of this particular hearing, because I think it
21 is important that when we make promises to the
22 community that those promises are kept.
23 Councilmember Webb.
24 MR. WEBB: Thank you.
25 Through the Chair -- Mr. Chair, we're on
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1 the bill; is that correct?
2 THE CHAIRMAN: We're on the bill as
3 amended.
4 MR. WEBB: The bill as amended.
5 My understanding of what was before the
6