Clearwater residents ask judge to reverse condo project

Administrative Law Judge Francine Ffolkes listens as a resident describes how a condominium project will affect his Edgewater Drive neighborhood during an Aug. 27 appeal hearing. The judge said her eventual ruling decision “will determine whether the Clearwater Development Board appropriately followed the law” when it approved a condo project.

CLEARWATER — Edgewater residents got another chance to block a condominium project that they believe will ruin the character of their neighborhood of single-family homes.

The neighborhood hopes their arguments during the Aug. 27 appeal hearing will lead an administrative law judge to reverse a June 25 Community Development Board ruling allowing the construction of a seven-story condo. They believe the tall building will destroy the serenity of the neighborhood, create traffic congestion, and destroy views of St. Joseph’s Bay.

During the appeal hearing, opponents argued their case before Administrative Law Judge Francine Ffolkes, sent by the Florida Division of Administrative Hearings to determine whether the CDB reached its decision appropriately.

“My decision will determine whether the CDB appropriately followed the law,” Ffolkes said at the conclusion of the appeal hearing, “and whether there is substantial evidence in the record on whether they followed the central requirements of the law.”

A lawyer for Valor Capital Group, LLC argued that the neighborhood lost its chance to appeal the ruling; the time to do so was back in June.

A little background is in order

During the June CDB hearing, residents referred to the city’s own zoning rules to argue against the project. Citing Clearwater Community Development Code Section 3-914, Edgewater Neighborhood Association President Kate Belniak, Clearwater Neighborhoods Association representative Bill Jonson, and neighborhood residents argued that the city’s own zoning rules required the CDB to block the project.

That section, which has been upheld in court, states that new development projects in Clearwater must:

• Be in harmony with the scale, bulk, coverage, density, and character of the properties in which it is located

• Not significantly impair the value of adjacent land and buildings

• Minimize traffic congestion

• Be consistent with the community character of the immediate vicinity, and

• Not adversely affect visual, acoustic and olfactory senses on adjacent properties.

Attorney Kim Kaszuba, a family law attorney who lives in the Edgewater neighborhood, argued the neighborhood’s appeal before Ffolkes.

“Unfortunately, I was out of the country on the day of the (June 25) hearing,” she told the Beacon, “but after reviewing the video I felt it was incumbent on me to help defend our neighborhood association. A reasonable mind would say the condo project does not fit the neighborhood. At all.”

She believes the board’s failure to address Section 3-914 could lead the judge to reverse the board’s approval.

CDB’s performance at center of appeal

“Essentially, the CDB didn’t hold the applicant to the fire to make sure that each and every one of the elements was met,” she said.

During her closing arguments, Kaszuba told Ffolkes the CDB didn’t properly identify witnesses on June 25 to ensure they were speaking to residents. Opponents of the project believe the developer had gathered “cheerleaders” to populate the audience at the June 15 hearing.

“The CDB did not ask members of the public who came in favor of this project where exactly they lived,” Kaszuba told Ffolkes. Then, using a falsetto voice to imitate those witnesses, she said, “They came in and said, ‘Hi, I’m from Clearwater, I like to walk my dog there.’ And ‘Hi, I think it will be great, it will look good.’ They never asked them where they live.”

She also told Ffolkes the CDB did not verify whether other witnesses had been properly sworn in.

“Those persons that live in the Edgewater Neighborhood very aptly stated their addresses, ‘This is where I live,’ yet they also weren’t sworn in as witnesses.”

During the June 25 hearing, commercial real estate attorney and CDB Chairman Michael Boutzoukas underscored the lack of experts on the residents’ side. After Valor Capital’s traffic expert said that 80 new condo units would not increase neighborhood traffic appreciably, Boutzoukas noted there was no one to counter that for the residents.

“The one part that really bugs me time and time again, is (the residents) not having a traffic engineer to contest (the developer’s) traffic study,” Boutzoukas said at the end of the marathon hearing. “The traffic patterns shift, you need an expert to come and contest that.”

Residents vs. traffic experts

For Kaszuba, the chairman’s statement was proof that the board did not properly weigh residents’ worries about traffic. She also stated that testimony from residents who experience traffic daily in the area should have been given equal weight to the traffic expert’s.

“There were plenty of lay witnesses in the community who voiced their opposition, both those with party status and those that were just in the public, who voiced their concern about traffic congestion,” she said.

Clearwater residents ask judge to reverse condo project

Box and files of exhibits belonging to lawyer Brian Aungst Jr. stand ready at an Aug. 27 appeal hearing in Clearwater. Aungst represents Valor Capitol Group in its bid to build a seven-story condominium on Edgewater Drive.

Brian Aungst, the lawyer representing Valor Capital, told the Beacon after the appeal hearing that the board gave proper weight to the traffic expert’s testimony supporting the project.

“The record is clear, the CDB properly relied upon the expert witness testimony of the city’s traffic engineering department and (professional traffic planner) Robert Pergolizzi in determining the project is designed to minimize traffic congestion,” he said.

He quoted a development case in which an administrative law judge gave too much weight to landowner concerns about traffic congestion (“there were no facts to support his concerns”) while at the same time, the developer’s expert had provided testimony based on traffic studies and other factual measurements.

Aungst also emailed the Beacon a statement from Valor Capitol that said, in part, “We worked hand-in-hand with the neighbors for almost a year to design a project in keeping with the character of the community and in compliance with the city’s Code and Comprehensive Plan. We are humbled by the overwhelming support the final design enjoys.”

Ruling could come in November

Belniak told the Beacon after the appeal hearing that she felt a lot better than she did following the June 25 hearing. As she and a zoning expert argued their case that day, the CDB interrupted them more than once for failing to follow procedures that govern quasi-judicial hearings. On Aug. 27, Belniak smiled as she watched Kaszuba argue the community’s case.

“I feel they heard us,” said Belniak, a dispatcher with Pinellas 911. “As inexperienced as I was at the first hearing, I felt much more confident having an attorney speaking for us, so I do think they may have heard us a little clearer today.”

According to Ffolkes, Edgewater residents and the developers will next submit transcripts of the hearing and write rulings for her consideration, which means the final ruling should come out in November.

Ffolkes said she could make one comment for publication:

“Both sides spoke well, and I listened very carefully,” Ffolkes told the Beacon.