HomeMy WebLinkAboutResolution No. 2016-08 . CAPE CANAVERAL CITY
PO BOX 326 CFM 201 6124054,OR BK 7649 PAGE 718.
k Recorded 06;27/2016 at 04 13 PM Scott Ellis:Clerk of Court:,:
CAPE CANAVERAL FL 32920 Brevard County
11 Pas.0
RESOLUTION NO. 2016-08
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA,
DECLARING THE PRIVATE ROAD, CHERIE DOWN
LANE, ABANDONED BY THE OWNERS OF RECORD
AND A PUBLIC NUISANCE DUE TO ABANDONMENT
AND LACK OF REGULAR MAINTENANCE AND
REPAIR; DECLARING THE CITY'S INTENT TO
REGULARLY MAINTAIN AND REPAIR CHERIE
DOWN LANE SUBSEQUENT TO THE EFFECTIVE
DATE OF THIS RESOLUTION PURSUANT TO
SECTION 95.361, FLORIDA STATUTES; PROVIDING
THAT ANY PERSON, CORPORATION OR ENTITY
CLAIMING AN INTEREST IN CHERIE DOWN LANE
MAY FILE A CLAIM IN EQUITY OR WITH A COURT
OF LAW AGAINST THE CITY TO CAUSE A
CESSATION OF THE MAINTENANCE AND
OCCUPATION OF CHERIE DOWN LANE
AUTHORIZED BY THIS RESOLUTION; PROVIDING
THAT AFTER SEVEN (7) YEARS FROM THE
EFFECTIVE DATE OF THIS RESOLUTION, ALL
RIGHTS, TITLE, EASEMENT AND APPURTENANCES
IN AND TO CHERIE DOWN LANE SHALL BE VESTED
IN THE CITY OF CAPE CANAVERAL BY OPERATION
OF LAW; PROVIDING THAT AFTER SEVEN (7) YEARS
THE CITY SHALL CAUSE A MAP TO BE FILED WITH
THE CLERK OF THE BREVARD COUNTY CIRCUIT
COURT VESTING TITLE OF CHERIE DOWN LANE IN
THE CITY OF CAPE CANAVERAL; PROVIDING FOR
THE RECORDING OF THIS RESOLUTION IN THE
OFFICIAL RECORDS OF BREVARD COUNTY IN
ORDER TO PROVIDE PUBLIC NOTICE OF THE
CITY'S DECLARATION AND INTENT EXPRESSED IN
THIS RESOLUTION; PROVIDING FOR THE REPEAL
OF PRIOR INCONSISTENT RESOLUTIONS,
SEVERABILITY,AND AN EFFECTIVE DATE.
WHEREAS, the City is granted the authority,under Section 2(b),Article VIII,of the State
Constitution,to exercise any power for municipal purposes, except when expressly prohibited by
City of Cape Canaveral
Resolution No.2016-08
Page 1 of 6
law; and
WHEREAS, Cherie Down Lane is a private road located within the City of Cape
Canaveral that is legally described in two separate plats, Beach Park Village Plat (Plat Book 32,
Page 89 and replat of a portion thereof recorded in Plat Book 36, Page 11 of the Public Records
of Brevard County, Florida) and the First Addition to Beach Park Village (Plat Book 37, Page
16 of the Public Records of Brevard County, Florida); and
WHEREAS, although a private road, Cherie Down Lane was dedicated to the perpetual
use of the public pursuant to the terms and conditions stated in the aforesaid Plats; and
WHEREAS, the City Council hereby finds that Cherie Down Lane has been in a state of
disrepair due to lack of maintenance for a number of years prior to the effective date of this
Resolution, and that if regular maintenance and repairs do not occur in the future, Cherie Down
Lane will continue to deteriorate and become dangerous for the traveling public; and
WHEREAS, in order to ascertain the owners of Cherie Down Lane and to attempt to
cause the owners to provide future maintenance of Cherie Down Lane,the City Attorney obtained
a title report from Old Republic National Title Company, dated March 2, 2016 ("Title Report");
and
WHEREAS,the Title Report indicated that the record owners of Cherie Down Lane are the
Beach Park Village Homeowners Association, Inc., a dissolved Florida corporation, as to the East
portion, and Beach Park Enterprises, Inc., a dissolved Florida corporation, as to the west portion;
and
WHEREAS, the Florida Department of State's website indicates that Beach Park Village
Homeowners Association, Inc. was involuntarily dissolved on or about November 16, 1987, and
that Beach Park Enterprises, Inc. was administratively dissolved on or about September 24, 1999;
and
WHEREAS, to the best of the City's knowledge and belief, the Beach Park Village
Homeowners Association, Inc. does not appear to be a functioning homeowners association and
the Association and the members thereof have not taken any steps to maintain Cherie Down
Lane, as required by the Declaration of Restrictions and Protective Covenants for Beach Park
Village, which were recorded at Brevard County Official Record Book 3009, Page 0029; and
WHEREAS, notwithstanding the dissolution of Beach Park Enterprises, Inc., the City
Attorney's office attempted to locate the last named members of the board of directors of said
corporation in order to attempt to obtain a quit-claim deed from the dissolved corporation
conveying the west portion of Cherie Down Lane to the City; and
City of Cape Canaveral
Resolution No.2016-08
Page 2 of 6
WHEREAS, although the City Attorney located one of the last known board members of
said corporation, that member (Attorney John B. Shoemaker) refused, by email to the City
Attorney dated April 29,2016,to execute a quit-claim deed to the City; and
WHEREAS, the City also does not have a legal means to compel the reformation of the
homeowners association for purposes of either requiring the association to maintain Cherie Down
Lane or to convey Cherie Down Lane to the City; and
WHEREAS, given that both corporations have been dissolved, and appear to have been
inactive for many years, the City Council finds that it is unable to require the record owners of
Cherie Down Lane to take appropriate action to adequately maintain Cherie Down Lane or to
convey Cherie Down Lane to the City; and
WHEREAS, based on the aforesaid recitals, the City Council hereby fmds that Cherie
Down Lane appears to be an abandoned private road which is not being adequately maintained
and repaired; and
WHEREAS, the City Council also declares that Cherie Down Lane constitutes a public
nuisance due to the fact that it has been abandoned by the property owners of record and has not
been regularly maintained and that the City does not have the ability to require any interested
third party to remedy the public nuisance; and
WHEREAS,due to the lack of an available remedy to require an interested party to abate
the public nuisance declared by this Resolution, the City Council desires to attempt to abate this
public nuisance by declaring the City's intent to regularly maintain Cherie Down Lane in the
future to the extent feasible; and
WHEREAS, the City Council also desires to declare the City's intent to exercise the
rights granted to municipalities under Section 95.361, Florida Statutes, in order to vest all rights,
title, easement, and appurtenances in and to Cherie Down Lane in the City immediately after
seven(7)years from the effective date of this Resolution; and
WHEREAS,the City Council of the City of Cape Canaveral deems that this Resolution is
necessary to protect the public health, safety,and welfare of the citizens of Cape Canaveral.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA,AS FOLLOWS:
Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this reference
City of Cape Canaveral
Resolution No.2016-08
Page 3 of 6
and are deemed findings of fact that are a material part of this Resolution.
Section 2. Cherie Down Lane. The road referred to in this Resolution is legally described as
follows:
Parcel 1 —Private road aka the East 'h of Cherie Down Lane as described in
Plat Book 32, Page 89,of the Public Records of Brevard County, Florida.
Parcel 2 - Private road aka the West '/2 of Cherie Down Lane as described in
Plat Book 37, Page 16, of the Public Records of Brevard County, Florida.
Cherie Down Lane is depicted on the attached two page composite EXHIBIT "A," which is
hereby fully incorporated herein by this reference.
Section 3. Declaration of Public Nuisance. Based on the findings of fact set forth in the
recitals, the City Council hereby declares that Cherie Down Lane is a public nuisance requiring
the City to take immediate steps to abate said nuisance. The City further declares its intent to
regularly maintain and repair and occupy Cherie Down Lane in the future in order to protect the
public health, safety and welfare of the citizens of Cape Canaveral. This declaration of nuisance
shall remain in effect until such time the City is vested with all rights, title, easement, and
appurtenances in and to Cherie Down Lane pursuant to Section 95.361, Florida Statutes, or the
property owners of record take steps to regularly maintain and repair Cherie Down Lane to the
satisfaction of the City or a person, firm, corporation, or entity having or claiming any interest in
and to Cherie Down Lane successfully causes a cessation of the maintenance and occupation of
Cherie Down Lane by the City pursuant to Section 5 of this Resolution.
Section 4. Future Maintenance and Repair of Cherie Down Lane; City Assessment Lien
to Abate Public Nuisance. Upon the effective date of this Resolution, the City hereby declares
its intent to regularly maintain and repair Cherie Down Lane for the benefit of the general public
to the extent deemed reasonably necessary by the City. Such future maintenance and repairs shall
be at the sole discretion of the City. Nothing herein is intended to create any specific third party
beneficiaries under this Resolution. Any monies expended by the City to maintain and repair
Cherie Down Lane from the effective date of this Resolution including, but not limited to labor
and materials, shall constitute a City assessment lien upon and against Cherie Down Lane until
fully paid by the owners of record. However, if the City is eventually vested with title and
ownership in and to Cherie Down Lane, the assessment lien shall hereby automatically be deemed
forgiven and released.
City of Cape Canaveral
Resolution No.2016-08
Page 4 of 6
Section 5. Right to Contest the City's Interests Declared by this Resolution. In accordance
with Section 95.361 (4), Florida Statutes, any person, firm, corporation, or entity having or
claiming any interest in and to Cherie Down Lane shall have and is hereby allowed a period of
seven(7) years after the initial date of regular maintenance or repair of the road (effective date of
this Resolution)to file a claim in equity or with a court of law against the City of Cape Canaveral
to cause a cessation of the maintenance and occupation of Cherie Down Lane by the City. Such
timely filed and adjudicated claim may prevent the City from acquiring title to Cherie Down Lane
after seven years from the effective date of this Resolution.
Section 6. Filing of Man With Clerk of Court After Seven (7)Years. After seven(7) years
have passed from the effective date of this Resolution, the City Manager is hereby authorized to
file a Map in the office of the Clerk of the Brevard County Circuit Court showing Cherie Down
Lane and reciting on said Map that Cherie Down Lane has vested in the City of Cape Canaveral
in accordance with Section 95.361(3), Florida Statutes, as may be amended, or by any other
means of acquisition, duly certified by the Mayor and City Clerk. The Map shall be prima facie
evidence of ownership of Cherie Down Lane by the City of Cape Canaveral. Further, to the
extent deemed necessary by the City Manager or City Council after seven(7) years, the City may
also perfect title in Cherie Down Lane by filing a quiet-title action pursuant to Chapter 65, Florida
Statutes, to ensure marketable title to Cherie Down Lane is vested in the City of Cape Canaveral
by court order.
Section 7. Recording the Resolution. Upon approval of this Resolution by the City Council
and full execution by the City, the City Clerk shall record this Resolution in the Official Public
Records of Brevard County, Florida, in order to provide public notice of the City Council's
declaration and intent to regularly maintain and repair Cherie Down Lane for the benefit of the
general public and to afford the City all of the rights vested in municipalities pursuant to Section
95.361, Florida Statutes.
Section 8. Repeal of Prior Inconsistent Resolutions. All prior resolutions or parts of
resolutions in conflict herewith are hereby repealed to the extent of the conflict.
Section 9. Severability. If any section, subsection, sentence, clause, phrase, word, or
portion of this Resolution is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, such portion shall be deemed a separate, distinct and independent
provision and such holding shall not affect the validity of the remaining portion hereto.
Section 10. Effective Date. This Resolution shall become effective immediately upon adoption
by the City Council of the City of Cape Canaveral,Florida.
City of Cape Canaveral
Resolution No.2016-08
Page 5 of 6
ADOPTED by the City Council of the City of Cape Canaveral, Florida, in a regular
meeting assembled on this 21st day of June,2016.
,,-.2-nt ',AVEttl;tif
,t.. d t,..0 •i �` , ,, 0 ' / `
ATTE T: a 0, Bob Hoog,Mayor
Mia Goforth
City Clef k;,, ``,. ,*.•'< ,, ,�.
°at` �', `F�\. Name For Against
John Bond Motion
Mike Brown x
Bob Hoog x
Brendan McMillin S es and
Betty Walsh x
Approved as to legal form and sufficiency
for the o Cape Canaveral only by:
/40p,
Ant . y A.Garganese,City Attorney
City of Cape Canaveral
Resolution No.2016-08
Page 6 of 6
Resolution No.2016-08
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