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Home My WebLink AboutMinutes 04-02-1973City of Cape Canaveral DOPAO OF I,117USTD:ENT APRIL 2, 1.973 AGM0P, CALL TO ORDER ROLL CALL ITEM 1: REQUEST :>72-11 SPECIAL. ETCEPZrol; RPUD - FIRST INTERSTATE: 1)EVEI1p,-!FLIT. CORPORATION ADJOUi?i7 BOARD OF ADJUSTM% APRTL 2, 1973 THE BOARD OF ADJUSTMENT CITY OF CAPE: CANAVERAL MET ONAPRIL 5; 1973 AT 'Pill: CITY HALL, , 105 POLK AVENUE, CAPE CANAVERAL,, FLORIDA, AT 7:34. P.M. MEETING WAS CALLED TO ORDER BY CHAIRMAN LEO NICHOLAS. ROLL WAS CALLED BY THE DEPUTY CITY. CLERK. PRESENT: MR. NICHOLAS, MR. NIACLAY, MR. LITTLER, MR. BALOUGH, MR. GRAEFE. EX OFFICIO MEMBER, MR. BURKETT .ASSISTANT CITY ATTORNEY, RICHARD SCOTT DEPUTY CITY CLERK, ELSIE FRAZIER SGT. AT ARMS:OFFICER HILL /OFFICER CANNON THE MINUTES OF THE MARCH 5, 1973 MEETING WERE READ BY THE DL•PU'1•Y CLERK. IT 14AS ASKED BY MR. NICHOLAS THAT Till: TAPE BE CHECKED AND THAT THE MINUTES BE CORRECTED TO. INCLUDE THE MOTION 11HICH HAD SET THE FOUR (PEEK CON- TINUANCE DATE. MOTION WAS MADE BY MR. MACLAY THAT THE MINUTES BE APPROVED WITH THE CORRECTION,. SECONDED BY MR.,GRAEPE AND PASSED BY UNANIMOUS VOTE. .MIR. NICHOLAS THEN READ PORTIONS 01: THE RULES OF PROCEDURE FOR 1'1111 BENEFIT OF THOSE: IN ATTENDANCE:.' 1T WAS MOVED BY MR. BALOUGII THAT OATHS BE ADMINISTERED TO ALL WHO TESTIFY, SECONDED BY MR. MACLAY. MR. GRAEFG ASKED TIIAT. ALL IIIENT•IFY'WHETHER THEY ARE TESTIFYING OR SIMPLY ASKING QUESTIONS. MOTION CARRIED BY UNANIMOUS VOTE. ITEM: REQUEST #72-11 SPECIAL EXCEPTION RPUD - FIRST INTERSTATE DEVELOPMENT CORPORATION MR. NICHOLAS REVIEWED THE FILE AND PAST ACTION ON. THE REQUEST FOR THE BENEFIT OF THOSE IN ATTENDANCE. IT WAS NOTED THAT A'SPECIAL 11011K SHOP WAS HELD MARCH 30th 1973, NOTICE BEING POSTED ON, THE CITY HALT. BULLETIN BOARD. THE LEGAL OPINION OF THE ATTORNEY WAS READ BY MR. NICHOLAS AND MAUI: A PARE OF THE RECORDS. (SEE COPY ATTACHED). IT WAS NOTED THAT COURTESY NOTICES HAD BEEN SENT TO ALL PROPERTY OWNERS WITHIN A RADIUS 01: 500 1:1-11'1• PRIOR TO EACH HEARING. AT THIS TIME MR. JOAN STARLING, ATTORNEY FOR FIRST INTERSTAT'I. WAS RECOGNIZED BY THE CHAIR. HE MADE NOTE THAT HIS REMARKS. WERE PRELIMINARY AND NOT TESTIMONY AND SO WAS NOT SWORN IN. ITE REQUESTED THAT MR. MACLAY EXCUSE HIMSELF FROM THIS BOARD AS HE HAD SHOWN THAT HE WAS AGAINST THE: RE- QUEST, AND FIRST INTERSTATE DID ,NOT FEEL THAT THEY WOULD. RECEIVE FAIR TREATMENT, AND THAT IF HE DID NOT EXCUSE HIMSELF THAT ACTION 01: TRIG BOARD. SHOULD 111: SET ASIDE. MR. SCOTT POINTED OUT THAT THE RULES OF PROCEDURE MAKFS NO PROVISION FOR THIS AND THAT IT WOULD NOT Bl: MANDATORY FOR MIR.. MACLAY TO EXCUSE HIMSELF UNLESS TIE 111S11ED TO UO SO.. MIR. SCOTT TlI ASKIiD MR. MACLAY IF IIE F0THAT HE COULD MARE AN MR. SCOTT TlI#ASK IMPAR-I IALDECISION IN THIS CASE. MR. MACLAY ANSI'.-FRED THAT HE COULD AND WOULD BE ABLE TO DO SO, AND DECLINED TO EXCUSE 11IMSELF FROM TIIF: BOARD. Jtit. STARLING TIDIN SUDMITTED A COPT' 01: THE STATEMENT 01: JUSTII:1- CATION AND AMMUNDMENTS TO BE MADE A PART OF THE RECORDS AND SLIDE AN OPEN- ING, SUMMARY OF Till: REQUEST. WITNESSES IN IMIALF OF FIRST INTERSTATE SWORN IN BY MR. SCOTT WERE.: MR. ROY F. COLWEL, MR. LARRY FONTS AND MR. RICHARD BIERY. PROPENENTS SPEAKING FROM Till' FLOOR WERE: JAMES MORGAN, JACK KOR\BLIT, SIRS.. CHARLES BECKS AND CHARLES MALEY. THE FLOOR WAS OPENED TO '1'110SE I1110 OBJECTED 7'0 THE REQUEST BEING GRANTED. THE FOLLOWING PERSONS SPOKE AGAINST THE REQUEST: ROBERT MA'ICIIN111I, MARIA LUDWIG, GEORGE WOLEVER, JUNE BERMAN, HARRY RHAME, MRS. DAN LESSER AND FRANK MARTIN. MR. MARTIN WAS SWORN IN BY MR. SCOTT, AS HE WISIIED TO PRESENT TESTIMONY. HE PRESENTED A HISTORY 01: THE CASK TO BE MADE A PART 01: THE. RECORDS. MR. BURKii'I"I OBJECTED TO PART OF THE HISTORY AND MR. SCOTT ASKED HIM TO WAIT UNTIL. THE REBUTTAL PERIOD TO MAKE HIS OBJECTION. COLETTE• CANNON, FORREST BURKE, HELEN FILKENS, PAT. BLACK, SANDY BRILE AND ALICE BURKE ALSO SPOKE AGAINST THE REQUEST. , A REBUTTAL PERIOD FOLLOWED WITH MR. COWEL AND MR. STARLING DIRECT- ING THEIR REMARKS TO Till: BOARD. MR. NICHOLAS THEN READ'CORRESPONDANCE PERTAINING TO THIS REQUEST. EACH OF THE BOARD MEMBERS WAS THEN GIVEN TIME TO QUESTION THOSE PRESENT IN REGARDS 7'0 ALL AREAS OF Till: REQUEST. RE: FIRE WALLS, RIGHT OF WAYS, GREEN AREAS, RECREATION FACILITIES, POPULATION, UTILITIES, PARKING, DEFINITIONS, INTERPRETATIONS AND LEGALITIES ETC. DURING THIS DISCUSSION PERIOD SIR.. JACK HURCK WAS SWORN IN AND GAVE TES'FPIONY. IT IS TO BE NOTED THAT AT APPROMIATELY 10:15 P.M. OFFICER CANNON REPLACED OFFICER TALI. AS SGT. AT ARMS AND THAT A RECESS WAS HELD FROM 10:55 TO 11:15 P.M. MR. NICHOLAS CALLED 1:OR'A MOTION. MR. BALOUGH MOVED TIIAT THE AP- PLICATION. BE DENIED. THIS MOTION DIED FOR LACK 01: A SECOND. SIR. SCOTT NOTED THAT FOUR AFFIRMATIVE VOTES WOULD BE NEEDED FOR ACTION. MR. NICHOLAS MOVED THAT THE APPLICATION BE APPROVED. SECONDED BY SIR. %LNCLAY. MR. GRAITI: ASKED FOR STIPULATIONS. MR. STARLING STATED THAT THEY UNDERSI-0011 THAT THEY WOULD HAVE TO COMPLY WITH WHATEVER WAS STIPULATED. MR. MACLAY WITHDREW HIS S17COND AND MR. NICHOLAS RESIATED IIIS MOTION. 'fill: NOTION WAS RESI'A'11:1) AS FOLLOWS: THAT THIS PROJFCT BE APPROVED SUR.IEcT TO THIS I30AIlD AT SOME LA'T'ER DATE, SAI' WITHIN TEN. DAYS, PROVIDING CONDI'FlONS, 01' APPROVAL' REGARDING DEVELOPMENTS Olt OTIIER FACET'S THAT WE WOULD LIKE TO SI:I: ADDED TO TII1S FItOJL•C'I', BE 1'RI.SI:N'II:D '1'0 Tim. DEVELOPERS. MOTION' SECONDED 13Y MR. MACLAY. .Till: VOTE ItAS. AS FOLLOWS: FOR, ' MR. GRAEFE,ANII MR. LITTLER.. AGAINST, MR. N.ICIR)LAS, I.M. MACLAY AND IdR. BALOUGII. MR.NICHOLAS 1111:N -ASKED EACII BOARD MEMBI:It`TO COMIMENT:ON TIII: REASONS. FOR HIS VOTE,' THESE COMMENTS. TO BI: MADE A PART 01: TIIE. mINUTI:S. (SI-.E ATTACHED COI'Y,) MR. GRAIM: MOVED FOR ADUUURNMENT,-.S000NIIED BY 1,111. MACLAY. AIOTIOS PASSED'. UNANIMOUSLY. TIIE MEETING. WAS ADJOURNED AT 12:10 A.M. r> 6 'cTCIIOLAs, CHAIMMrcN v:+?•S: 9^«..n'r.+. .li cannrn!'albnrallae, ni n_n^s--+t nq F}tn 7•+nl nn ...�. retro^r •'nHr `hat.it 1 . -nar.i ble ..•i kh th'^ r,tr•nr:.at r,. a,i+a �, 1« , ^a«ihl^'wi«++ «h., teas, nln s•+ ^t.^,'i nr nas t•ut it it r•.t, { r ^-esti hi 11 tv •..r i.h «he , evrl nn^,� e,t•rnt^- i.nr, a-nas nnnn+e w++^ arn i^ ^•rist-Ind rr,jnnt, at this tic slln•tl i kaon .^re. rl�^ratio i^ .oba bn ma,. rt be At .rete furore�'A«e. :•1= -+• fe^linos arc, tha As ^ne of the agth— ^f «hit. AMmi esti^n 1-n^w what the i—nt waG when we n-It ?PM- it «he n-1 Znn-, an" it .•.ap not ` allnw maltioln 2w-1l1nn reevelnn-entr in n-1, of cnnrsr', wn Fieri. not th^ verhane i,n thorn the vrav it rhn.tl..+ hav- b^-n, hat, that was the into^« at that tion, ana I'have'tn stay in confnrmarcewith what I fel« was Tv intent and the i.ntentinns of the aathors at thAt time. That Is 'basically the reason fnr vnti.nn in npnnsitinn. ll3. *,.Y: VA like t.n sav that on nage 115 (nra.) it ^a15" or to aeny special excenti.nns '•rtlennot. in harmonv with the m^rose 'ane intent of this err+i.narrA." ane L'believe that the intent of the Ordinarce'•nh-n you con- sVnr that you '4 3,110 he. rllanninn 7M, nf. the r?mninino_ R-1 Ar—to Multi-. famil.v,' i.t is dofini.tely not in the twst interest of the Cit,,. I also say, that I belrt.ve that the City Council and 70;of the aaiarent' re,i-+ants, an," in fact the whole tnvm in their v•+te nrrnsa the City, shv-ro their nnmsition to this snerial exceotlnn. PR, gainnr.H: well of course i''feel that the Citi?enn of ^arn Canaver,11 ,�o rot Desire inrrea^.ea Density, an? T also fnrl after rea�irm all, nerti- nnnt rictinns of. th^ OrHnancri. An;1 listerina to thne^ nenrle w1lo hel—A tarite the Ordinann-n, that. APon in R-1 was intnnaer+ for cinrla-fnmily, an.i not "ilii-fart lv, t'•erefnri7 cast my vete ar^ar•li nclw„ r!a CIA?Fg: The roa=nn 1 rest my vote Pn.^. was that I ?nr't feel that we lnnally nre in a nrsi.tl— " A, t•'bat we have just P—e. I i'.tst feel that ;.he nrau—nts that'r unirr, Althnunll I aoree m with s rf these, aren't the lenal arouments.01i,11. vin nee�l in ora:•, to q•tstairt'hat we're trvin, to An. ?Li, t,T'rmt,cR: 11" Per this nrAinAnre if it hasn't be-n intenaea fn- RP'Tr, to b^ rermitted in R-1. Zone it wnnl.a never have been in the nrAinarce. There imulfl havh finer nn reason for t:rUn in a r--tnventionAl ??-1 Area thnt 1•na to he cut up ,^a Aevelnn^A. L ruoxc ,.ic.x sco*+ DIS �, err I t"nnn Ptuuu s, nw April 2, 1973 Mr. i-eo Nicholas Chairman. (bard of Adjustment City of Gipe Canaveral Cape Canaveral, Florida Re: RPUD Application of First interstate Development Corporation, Case No. 72-3154-A Dear Mr. Nicholas: This letter is In response to tile request of the Ibarcd of Adjustment for our opinion regarding the status or the RPUD Application pending before the Board, filed by First interstate Development Corporation. Specifically, the Hoard has requested two opinions from us. These are as follows: (l) whether or not an RPUD for multi -family dwellings may be located within an R-1 zoning district. (2) whether or not the Board of Adjustment has the jurisdiction to hear or decide the preliminary RPUD Application which is now pend- ing before the Board. After nn exhaustive and complete survey and research of the subject matter, it is our opinion that the Board of Adjustment must proceed with deliberation and determination of the First Interstate prellmin- ary application now pending, jurisdiction by the Board of this preliminary application is vested in the Board by virtue of action taken by the (bard of Adjustment at its meeting on November 6, 1972. At that time, the Board of Adjustment was requested to review an administrative decision of the Building Official regarding the above RPUD application. Specifically, the Board was asked to review the (continued) Page 2 April 2. 1973 Mr. Leo Nicholas Chairman, Board of Adjustment decision made by Building Official jack Ilurck; which decision is quoted as follows: "The Bull ding Official's interpretation of Zoning Ordinance 12-71 is such that it Is my feeling that the ItPUD request submitted by First Interstate Development Corporation in the area and -none of their application is a valid request and should be acted upon by the Zoning and Planning hoard." The appeal In November, 1972 was made at the request of Mr, harry Ithame and Mr. Prank Martin. Their request was made on tite basis that they believed the proposed project in Its present form eus prohibited by Ordinance 12-71 and that the decision to allow tine application by tic Building Official should be reviewed. As ),oil are aware, the Board of Adjustment defeated it motion to uphold the Build- ing Official's decision by a vote of 2 to 3. Rules of Procedure of the Board of Adjustment require that d affirmative votes are required in order to reverse or modify a decision of the Building Official. There- fore, in effect, tine Building Official's decision was upheld, since there were not sufficient votes to either reverse it or modify it. The legal effect of this decision by the Board of Adjustment is that the preliminary RPUD Application submitted by First interstate Develop- ment Corporation 1s a valid and legal application and must be reviewed In accordance with the terms of the zoning ordinance for such applications. The Board of Adjustment Is now estopped from denying' Its jurisdiction over such application for any reason. The applicadon must now be treated as any like application by the Board of Adjustment. Of course, it may be approved, disapproved or approved with conditions, in accordance with the Ordinance. We acknowledge the other opinion requested of its by the Board regarding the legality of a multi -family RPUD looting in the R-1 zoning district. (continued) ®' e Page 3 April 2, 1973 Mr, i.co Nicholas Chairman, Board of Adjustment Duc to tile fact that we have determined that the Board of Adjustment must hear the preliminary application before it and determine same, our opinion as to whether or not such an liPUD is valid at this time, is of no consequence, The Building Official made that determination as he is required to do by the Ordinance, that decision was appealed to the Board of Adjustment. The Building Official's decision was not reversed by the Board, nor was any Judicial appeal taken on the Board of Adjustment's action within the prescribed period of time. There- fore, that decision must stand, and for this reason we do not feel that we could properly give you our opt pion as to whether or not such all application is valid now or was valid then under the Ordinance existing at that time. Should you have any questions regarding tilts decision, we will be happy to discuss these with you. Yours very truult j l�ct�•('- (` Richard R. Scot[ S/C /