PASCO COUNTY, FLORIDA

PASCO COUNTY, FLORIDA
INTEROFFICE MEMORANDUM

TO: Honorable Chairman and DATE: 7/19/02 FILE: DRCA02-02

Members of the Board of

County Commissioners

THRU: Samuel P. Steffey II SUBJECT: Appeal of Variance No. 1672

Growth Management Administrator Applicant: Dillard's Department

Stores, Inc.

BCC Meeting: 7/30/02

FROM: Debra M. Zampetti REFERENCES: Comm. Dist. 5

Zoning/Code Compliance TAZ #8

Administrator

It is recommended that the data herein presented be given formal consideration by the Board of County Commissioners.

DESCRIPTION AND CONDITIONS:

The applicant, Dillard's Department Stores, Inc., through its representative, Robert A. Williams, Esq., is appealing the Development Review Committee's decision of April 18, 2002, denying a variance (Petition No. 1672). The variance request for an increase in the maximum-allowed, total-combined, wall sign area from 300 square feet to 960 square feet for three wall signs and an increase in the maximum-allowed height of three wall signs from six feet to eight feet on the east, west, and north elevations in a C-2 General Commercial District.

The subject property is located on the west side of U.S. 19, approximately 300 feet south of Tacoma Drive within Gulf View Square Mall (Parcel ID No. 21-25-16-0000-00200-0040), and contains 10.38 acres, m.o.l.

The surrounding zoning districts and land uses are as follows:

Zoning District

Land Use

North:

C-2 General Commercial

Mall Parking; Tacoma Drive;

Commercial Strip Center

East:

C-2 General Commercial

Mall Parking; Bank; U.S. 19

South:

C-2 General Commercial

Gulf View Square Mall;

Mall Parking

West:

C-2 General Commercial

Mall Parking

FINDINGS OF FACT:

1. Presently, the subject site contains the Dillard's Department Store within the Gulf View Square Mall. It is comprised of 10.38 acres, m.o.l., and is located in a C-2 General Commercial Zoning District.

2. The applicant has stated that Dillard's has moved its business to another location in Gulf View Square Mall and wants to maintain the same wall sign presence it has had since it purchased the Belk-Lindsey store in Gulf View Square Mall in June of 1992. For this reason, Dillard's is requesting a sign variance that would allow Dillard's to relocate/reuse its three existing wall signs from its existing 107,030-square-foot anchor store in Gulf View Square Mall and install these three existing wall signs on its newly acquired 143,488-square-foot anchor store in Gulf View Square Mall. Dillard's is of the opinion that these wall signs provide a reasonable display of the Dillard's business name; are appropriate to the size and design of the Dillard's building; provides quick recognition as customers enter the mall property and drive on the outer ring road; have not and will not jeopardize the health, safety, and welfare of persons within Pasco County; have not and will not jeopardize traffic safety along U.S. 19, Tacoma Drive, or Salt Springs Road; and have not been and will not be detrimental to the visual environment along U.S. 19, Tacoma Drive, or Salt Springs Road. The section of the code affected is Section 601.15.B.3 for these three existing signs are eight feet high, and by rectangular shape calculation, contain 320 square feet for each sign.

At this time in Pasco County, there are no other properties except Gulf View Square Mall and its attached department stores that meet the definitions of a covered mall building and an anchor store as stated in the 2001 edition of the Florida Building Code. Properties of similar conditions of Gulf View Square Mall would be the covered mall buildings at Countryside Mall, Citrus Park Mall, International Plaza, and Brandon Town Center where Dillard's and other department stores are located. At these properties, Dillard's and other department stores have wall signs that represent what they typically install at covered mall buildings. Even in the original Operating Agreement at Gulf View Square Mall, it states "Department Stores having a minimum of 90,000 square feet may erect their typical signs. . . . "

These three existing wall signs that Dillard's is requesting to reuse/relocate from its existing building at Gulf View Square Mall have been in place since 1992, the year Dillard's purchased the store from Belk-Lindsey. The granting of this variance to reuse these three existing wall signs on the new Dillard's building is not conferring on Dillard's any privilege that is beyond what Dillard's has had since it took possession of the building ten years ago. In fact, the code allows structures one percent of Dillard's building size to have the same size, number, and placement of wall signs. Also, because of the Operating Agreement at Gulf View Square Mall, Dillard's is not allowed to have ground or pole signs without prior consent from the other department stores and the developer. Dillard's is allowed to have ground or pole signs per the Pasco County Land Development Code.

3. Access to the property is from U.S. 19, which has 217 feet of right-of-way.

4. The subject property is located in Flood Zone "A13," and development within this area is subject to the requirements of Article 700, Flood Damage Prevention, of the Land Development Code.

5. The surrounding area is characterized by commercial development.

6. The subject area has been designated ROR (Retail/Office/Residential) under the Comprehensive Plan. This request is consistent with that classification.

7. The Development Review Committee has approved other similar variances as follows:

a. Petition No. 1454 on July 23, 1998, for a wall-sign height increase to eight feet for K-Mart located on the corner of U.S. 19 and Beacon Woods Drive.

b. Petition No. 1464 on September 24, 1998, for a wall-sign height increase to eight feet and a combined wall-sign area increase to 387 square feet for K-Mart located on the east side of Collier Parkway, approximately 180 feet south of S.R. 54.

c. Petition No. 1582 on August 24, 2000, for a wall-sign height increase for two signs to 14'2" and 8'6" for Sam's Club Store located on the corner of U.S. 19 and Trouble Creek Road.

8. However, on January 25, 2001, the Development Review Committee denied a variance (Petition No. 1605) for three wall-sign height increases to 9 feet and 7 feet, and a combined, wall-sign area increase to 1,245 square feet for Wal-Mart located on the corner of S.R. 54 and Little Road. Subsequently, the applicant filed an appeal (Petition No. DRCA01-04) to the Board of County Commissioners. On March 27, 2001, the Board of County Commissioners denied the appeal and upheld the Development Review Committee's decision of denial.

9. Staff has noted that the subject signage has existed on the old Dillard's store, located in the center of the mall, since June 1992 and is only to be relocated to the new Dillard's store at the north end of the Gulf View Square Mall. The applicant proposes no increase in height or area than what is already existing.

10. Staff finds that the presence of Dillard's represents an anchor store in a regional mall.

11. Staff has reviewed the proposed request in accordance with Article 300, Subsection 316.1.A.1, of the Land Development Code.

12. Staff has concluded that the granting of the variance will be in harmony with the general intent and purpose of the Pasco County Land Development Code and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare. Also, it is consistent with the existing Dillard's signage in existence since 1992, as an anchor store in a regional mall.

13. Staff made a recommendation of approval with conditions as follows:

CONDITIONS:

a. The owner/applicant shall obtain all required permits.

b. The owner/applicant acknowledges that any provisions of Pasco County ordinances not specifically waived shall be in full force and effect.

c. The owner/applicant is hereby notified that the effective date of this approval shall be the date of the final County action; however, no activity shall commence on site until such time as the acknowledgment portion of this document is completed (including notarization) and received by the Zoning/Code Compliance Division.

OWNER'S/APPLICANT'S ACKNOWLEDGMENT:

The owner/applicant acknowledges that it has read, understood, and accepted the above-listed conditions of approval.

Date DILLARD'S DEPARTMENT STORES, INC.

STATE OF FLORIDA

COUNTY OF

Title

The foregoing instrument was acknowledged before me this

(date), by

(name of officer or agent, title of officer or agent acknowledging) of

(name of corporation acknowledging) a

(State or place of incorporation) corporation, on behalf of the corporation. He/she is personally known to me or who has produced

(type of identification) as identification.

Seal:

NOTARY

14. On April 18, 2002, the Development Review Committee denied Variance Petition No. 1672 for the following reason:

That a literal enforcement of the provisions of the Land Development Code would not result in unnecessary hardship.

This decision was based upon study and consideration of the factors outlined in Section 316.1.A of the Pasco County Land Development Code and the evidence presented at the public hearing on the application.

15. Subsequently, the applicant, Dillard's Department Stores, Inc., filed a timely Notice of Appeal to the Board of County Commissioners pursuant to Section 317 of the Pasco County Land Development Code contending that the Development Review Committee's decision was made in error. The applicant's reasons given are as follows:

a. The Development Review Committee considered a request for variance on April 18, 2002. At the time of the hearing, the only testimony presented was citizen testimony that amounted to mere opinion. This classification of testimony can amount to competent substantial evidence only if it is fact-based and not expressions of mere opinion. The opponents to the variance opined that the request of the applicant should be denied simply because the request was for a variance. The Development Review Committee did not fully review the facts surrounding the request when it ignored the evidence presented by the applicant relating to the elements of the request. The record is absent any competent, substantial evidence to support the conclusions of the Development Review Committee.

b. The applicant requests that it be allowed to present additional evidence relating to the prior permits and approvals for the existing signs. The denial of a variance allowing the relocation of existing wall signs amounts to waste and is evidence of the hardship peculiar to the applicant. The applicant met its burden of proof through the evidence presented to the Development Review Committee and is, therefore, entitled to a variance to relocate the existing signs.

In a nutshell, this Board must adhere to the following standards of review upon appeal of final orders granting or denying Variances:

1. No new testimony or evidence may be heard or presented.

2. Review is limited to the transcript and record from the Development Review Committee.

3. The Board may not reweigh or re-evaluate evidence previously presented before the Development Review Committee.

4. The Board must only determine whether the Order of the Development Review Committee is supported by substantial, competent evidence, and follows the essential requirements of law.

5. If the Order is supported by substantial, competent evidence, the Board must uphold the Development Review Committee.

6. If the order is not supported by substantial, competent evidence, the Board must remand the case back to the Development Review Committee for further disposition consistent with this hearing.

7. The Board does have jurisdiction to hear and render its interpretation of the Comprehensive Plan during the hearing on appeal of a Variance.

As you know, under the new Land Development Code, the final decision-making authority for Variances lies with the Development Review Committee. Consequently, this Board functions similarly to the Circuit Court in reviewing appeals of such actions. Review, therefore, is limited to a narrow determination of jurisdiction below and whether the action taken was in accordance with essential requirements of law and supported by competent, substantial evidence. City of Lakeland v. Florida Southern College, 405 So. 2d 745 (Fla. 2nd DCA 1981); Fort Lauderdale Board of Adjustment v. Nash, 413 So. 2d 855 (Fla. 4th DCA 1981); and Board of County Commissioners of Hillsborough County v. Casa Development, Ltd., 332 So. 2d 651 (Fla. 2d DCA 1976). In other words, this Board's review is restricted solely to the evidence presented and the record created at the proceedings before the Development Review Committee. This Board may not hear new testimony nor reweigh or re-evaluate the evidence previously presented to the other boards. You may only determine whether their decision, in this case denial of a Variance, was supported in the record by substantial, competent evidence. The Supreme Court of Florida has defined the phrase "substantial, competent evidence" as ". . . such relevant evidence as a reasonable mind would accept as adequate to support a conclusion." DeGroot v. Sheffield, 95 So. 2d 912 (Fla. 1957). In accordance, Becker v. Merrill, 20 So. 2d 912 (Fla. 1944), and Laney v. Board of Public Instruction, 15 So. 2d 748 (Fla. 1943). Lay testimony, opinions, or objections by local residents do not constitute substantial, competent evidence upon which a zoning board can rely to deny or approve an application. Bailey v. City of St. Augustine Beach, 538 So. 2d 50 (Fla. 5th DCA 1989), and BML Investments, Inc., v. City of Casselberry, 476 So. 2d 713 (Fla. 5th DCA 1985).

In the case before you, the application in question was for a Variance. In Gomez v. City of St. Petersburg, 550 So. 2d 7 (Fla. 2nd DCA 1989), the Court stated that:

As a general rule the applicant has the burden to come before the Board of Adjustment and establish the requirements for a variance. Board of County Commissioners v. The First Free Will Baptist Church, 374 So. 2d 1055 (Fla. 3d DCA 1979). The burden upon a petitioner for a variance is more extensive than the burden upon the party seeking a permissible use by special exception. Irvine v. Duval County Planning Commission, 466 So. 2d 357 (Fla. 1st DCA 1985), quashed, 495 So. ed 167 (Fla.), dissent adopted 504 So. 2d 1265 (Fla. 1st DCA 1986).

Finally, Chapter One, Plan Administration and Format, of the Comprehensive Plan provides that all land development regulations developed pursuant to Section 163.3202, Florida Statutes, shall be consistent with the Plan and all development orders shall be issued pursuant to the requirements of those land development regulations. Moreover, that Chapter also allows an aggrieved or adversely affected party to request an official interpretation by this Board of confusing or debatable policies, goals, objectives, or recommendations of the Plan. Consequently, it is the opinion of the County Attorney's office that this Board also has proper jurisdiction to hear and render its interpretation of the Comprehensive Plan during the hearing on appeal of a Variance.

ALTERNATIVES AND ANALYSIS:

The Board of County Commissioners has the authority to uphold or reverse the decision of the Development Review Committee.

1. The Board of County Commissioners may find that the Development Review Committee's decision was indeed supported by substantial competent evidence and, therefore, upholds the Development Review Committee's decision of denial of Variance Petition No. 1672.

2. The Board of County Commissioners may find that the Development Review Committee's decision was not supported by substantial competent evidence, and therefore, may approve Variance Petition No. 1672 with conditions.

CONDITIONS:

a. The owner/applicant shall obtain all required permits.

b. The owner/applicant acknowledges that any provisions of Pasco County ordinances not specifically waived shall be in full force and effect.

OWNER'S/APPLICANT'S ACKNOWLEDGMENT:

The owner/applicant acknowledges that it has read, understood, and accepted the above-listed conditions of approval.

Date DILLARD'S DEPARTMENT STORES, INC.

STATE OF FLORIDA

COUNTY OF

Title

The foregoing instrument was acknowledged before me this

(date), by

(name of officer or agent, title of officer or agent acknowledging) of

(name of corporation acknowledging) a

(State or place of incorporation) corporation, on behalf of the corporation. He/she is personally known to me or who has produced

(type of identification) as identification.

Seal:

NOTARY

3. The Board of County Commissioners may remand Variance Petition No. 1672 back to the Development Review Committee for further disposition consistent with this hearing.

4. The Board of County Commissioners may take other appropriate action.

ATTACHMENTS:

1. Appeal Application

2. Variance Petition No. 1672

3. Verbatim Minutes

4. Copies of Visuals

DMZ/EPR/ai/l070904

BOARD OF COUNTY COMMISSIONERS ACTION:

APPROVED AGENDA ITEM FOR

DATE