ERNEST BURGUIÈRES: The Sucette Spectacle of Fear goes into extra innings

July 5, 2023: Coverage of the City Council’s special meeting to discuss the Sucette Harbor project

By Ernest A. Burguières

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Ernest A. Burguières is a Mandeville attorney who formerly served as District III Councilman. Mandeville Daily is honored to publish Mr. Burguières’ column with permission which is a combined reporting of the goings on in Mandeville government with his personal commentary.

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The Sucette Spectacle of Fear continued its plod toward a resolution of some sort. The Sucette people made what they consider to be substantial changes to their plan. They reduced the number of apartments by about 10% by converting some three bedroom units to two bedroom units. (Last week they said they could not reduce the number of apartments, what changed?) They increased parking by cutting out buildings or moving footprints. It is difficult to say because there were no real final renderings of what they want or where exactly they want it. Overlays of different colors would have been helpful. But no change on the height. It kind of looks like they are dialing back on the buildings or services associated with the marina.

The discussion then slipped into the marina that was not being considered but was nonetheless part of the project. (How do you consider and discuss a marina that is on a different piece of property that is not being considered in this application? This may be one of those mysteries of life.) Terri Hamilton commented on the fact that it was merely a body of water at this time and had no clues that it was a marina. Then came the legal gymnastics. The City Attorney proclaimed that it used to be a marina and therefore basically, it will always be a marina under the CLURO. To this a question and comment by Bill Kropog: CLURO Section 8.2.3.9, 2b states that you can maintain a marina by Repair of Non-Conforming Docking Structures. The problem is that there are no docking structures, they were all removed around 2018. The City Attorney disagreed and maintained that potential repair of imaginary docking structures was sufficient to maintain marina status. This is the kind of stuff that gives the law a bad name. Only special shamans can tell us lowly peasants that the true meaning Repair of Non-Conforming Docking Structures obviously refers to docking structures that only shamans can see.

Then another invaluable shaman interpretation occurred when Van Mayhal asked about CLURO 4.3.3.8, this is the section that states:

4.3.3.8. Review and Evaluation Criteria.

The Planning Director, the Planning Commission and the City Council shall review and evaluate and make the following findings before granting a Conditional Use Permit or Planned District zoning using the following criteria:

There are 12 criteria that are listed which are below, but Mr. Mayhal, an attorney but apparently not a shaman, stated that in the law when the word “shall’ is used in a statute you must do whatever follows. (A shaman is a member of certain traditional societies, who acts as a medium between the visible world and an invisible spirit world and who practices magic or sorcery for purposes of healing, divination, and control over natural events.) The simple conclusion to be drawn from the introductory statement above is that all three entities; The Planning Director, the Planning Commission and the City Council must review and evaluate Sucette by answering the following:

1. Comparison with applicable regulations and standards established by the Comprehensive Land Use Regulations applicable to the proposed use and site.
   
2. Compatibility with existing or permitted uses on abutting sites, in terms of building height, bulk and scale, setbacks and open spaces, landscaping and site development, and access and circulation features.
   
3. Potentially unfavorable effects or impacts on other existing conforming or permitted uses on abutting sites, to the extent such impacts exceed these which reasonably may result from use of the site by a permitted use.
   
4. Modifications to the site plan which would result in increased compatibility, or would mitigate potentially unfavorable impacts, or would be necessary to conform to applicable regulations and standards and to protect the public health, safety, morals, and general welfare.
   
5. Safety and convenience of vehicular and pedestrian circulation in the vicinity, including traffic reasonably expected to be generated by the proposed use and other uses reasonable and anticipated in the area considering existing zoning and land uses in the area.
   
6. Protection of persons and property from erosion, flood or water damage, fire, noise, glare, and similar hazards or impacts.
   
7. Location, lighting, and type of signs; and relation of signs to traffic control and adverse effect on adjacent properties.
   
8. Adequacy and convenience of off-street parking and loading facilities and protection of adjacent property from glare of site lighting.
   
9. Conformity with the objectives of these regulations and the purposes of the zone in which the site is located.
   
10. Compatibility of the proposed use and site development, together with any modifications applicable thereto, with existing or permitted uses in the vicinity.
    
11. That any conditions applicable to approval are the minimum necessary to minimize potentially unfavorable impacts on nearby uses and to ensure compatibility of the proposed use with existing or permitted uses in the same district and the surrounding area.
    
12. That the proposed use, together with the conditions applicable thereto, will not be detrimental to the public health, safety, or welfare, or community aesthetics, or materially injurious to properties or improvements in the vicinity.
    

There are meaty subjects in these 12 items. We don’t know what the Planning Director did except that she did not deviate from the Sucette plan. However, there is no evidence that Planning and Zoning reviewed, evaluated or made any findings involving these individual 12 items so we don’t know specifically what they decided, or why. All that we can infer is that because they voted (4-3) to move this on to council that they must have considered these criteria. What? Can an inference be a finding? Is that what is contemplated by 4.3.3.8? If this matter goes before a judge, what can he determine about the review and evaluation process and why a certain decision was made. You really can’t without more information hence the need for a finding on each issue. Maybe nobody thinks this will ever get to court and therefore the City of Mandeville does not need to worry about it? Why wouldn’t you want to be clear about what you did, and why? Maybe I have answered my own question.

Larry Grundman, a persistent critic, lamented the fact that all of the questions mostly raised by citizens in the Planning and Zoning hearings and to some extent, the council hearings, appeared to have fallen off into the ether. Were the questions ever answered? How can anyone tell? If you cannot find the questions or the answers what have you learned? Nothing. Does that mean that the protestations of the unwashed masses (e.g. the citizens) is merely an irritation to those in charge who are on a mission?

I can really understand how citizen questions can be repetitive, tedious and off the mark. But the citizens in a democracy have always been the theoretical owners, the client. Now when you throw in an educated populace, one that is motivated, the questions become more pointed and considered. Especially when their lifestyle is jeopardized.

At this point I made a comment suggesting that some of the responses, or lack of responses by some council people suggested that they may have had a hard time actually visualizing the basis for all of this citizen angst. I implored them to do a field trip to the site and bring the City Attorney and Director of Planning so that the questions and comments of citizens would be less abstract. How will that Sysco tractor trailer truck make that right turn from Monroe on to W. Antibes? The Mariners Island is only 100′ from the event center? How will several hundred more cars and trucks shuffle in and out of this small peninsula of land every day?

The conversation then drifted off with a pronouncement by the Director of Planning that the City of Mandeville of Mandeville could prohibit the sale of Parcel U in order to maintain its tie to the Parcel D development. What?

Then the question of how or why this could be done landed in the City Attorney’s lap who asked Councilman Jason Zuckerman if he wanted to waive attorney client privilege since he was the client. Now attorney client privilege is in place so your adversaries don’t discover your attorney’s confidential communication. Oh, and in this case, in case you didn’t know, you and I are the adversaries.

Local attorney Kevin Vogeltanz tried to remind the council that this property is currently zoned residential, albeit planned development residential which is why in 1998 it was approved for 10 single family homes, which was specifically supported by that council at that time because it maintained the residential atmosphere of the Old Town. No more. We apparently cannot afford to maintain that residential quality. It disappeared not in a specific change in the law or Comprehensive Plan but rather through a lawyer’s interpretation of what should be.

Does anyone get the feeling that all of this planning stuff, and the legal interpretations that support it, might as well be a foreign language that somehow loses sight of the fact that it is supposed to represent the will of the people?

Moving on. Larry Grundman, Brian Rhinehart and Kevin Vogeltanz got up and again asked why nobody was even considering going item by item through the 12 criteria in 4.3.3.8. Crickets.

Then the discussion moved to height. We all might think this is a cut and dried issue. How tall is it? Well, no. Do you measure from the ground, the first floor of a garage, the first floor where people live and walk? Now Councilman Jason Zuckerman is an architect and he works for a big contractor. He has done a few buildings. Mr. Hoffman and Mr. Zuckerman got into a discussion about whether the buildings are 60′, 70′ or 80′. Hoffman talked about “architectural features” at the top. Zuckerman called that a roof. Part of the problem is that the ground is not flat. The elevation may change by many feet in a very small area. If you have to have the first floor above a certain elevation for flood purposes then that can add to the total height of the structure. And so it went.

Then Terri Hamilton got up and shared a photo an engineer friend did that imagined Sucette in place surrounded by Mariners Island and Tops’l, the immediate adjacent condos that are I believe around 35′ high. Well, the depiction envisioned a 60′ Sucette (instead of 70′ or 80″) which literally made it twice as high. It dwarfed its neighbors. Will there be a finding that this is compatible?

The evening finished up with Councilwoman Jill McGuire expressing frustration that she was either getting no advice or conflicting advice from the City Attorney or the Director of Planning. Are we at a point where the Council should hire its own attorney? We may be past that time.

Councilman Jason Zuckerman finished by questioning the vague and over inclusive language of the ordinance. The ordinance purports to “re-zone to the extent necessary”. What does that mean? “All variances are granted”. What variances? They said they weren’t required to get any variances, why are they asking for a blank check on variances?

The next episode will be Wednesday, July 12th Spitzfaden Center at 6:00pm.

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