HomeMy WebLinkAboutRE Oak Lane and Variance Request No. 2016-02; Public Records Request under Ch. 119 (2)Anthony and all:
Thank you very much for this decision. I will reach out to Mr. Lennon and explain that I requested this and the reasons.
I look forward to hearing of the new date.
Kind Regards,
Terri
--------------------------------------------
On Wed, 10/26/16, Anthony A. Garganese <agarganese@orlandolaw.net> wrote:
Subject: RE: Oak Lane and Variance Request No. 2016-02; Public Records Request under Ch. 119
To: "Terri" <terrilynbowman@yahoo.com>
Cc: "d.greene@cityofcapecanaveral.org" <d.greene@cityofcapecanaveral.org>, "m.goforth@cityofcapecanaveral.org" <m.goforth@cityofcapecanaveral.org>, "d.lefever@cityofcapecanaveral.org"
<d.lefever@cityofcapecanaveral.org>, "David Dickey" <D.Dickey@cityofcapecanaveral.org>
Date: Wednesday, October 26, 2016, 9:14 AM
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#yiv6238115375 Teri, The City will reschedule a BOA
meeting. At that meeting, the BOA will be advised to
rescind their prior decision and conduct a new hearing. At
that point, Mr. Lennon’s appeal will be moot and not
necessary. Public notice will be provided
shortly. Staff will be contacting Mr.
Lennon and the Developer and advising them of this change.
The City will briefly explain to Mr. Lennon the basis of
this decision and why his appeal is not going forward at
this time. Should you be in contact with Mr. Lennon on
this matter, the City will appreciate your explaining to him
that this rescheduling decision was made by the City at your
request. Regards, Anthony From: Terri
[mailto:terrilynbowman@yahoo.com]
Sent: Monday, October 24, 2016 9:49
AM
To: Anthony A. Garganese
Cc: d.greene@cityofcapecanaveral.org;
m.goforth@cityofcapecanaveral.org;
d.lefever@cityofcapecanaveral.org
Subject: Re: Oak Lane and Variance
Request No. 2016-02; Public Records Request under Ch.
119
Thank
you.
Sent from my iPhone
On Oct 24,
2016, at 9:07 AM, Anthony A. Garganese <agarganese@orlandolaw.net>
wrote:Terri,
I will review your position and request with
the City Manager and get back to you.
Anthony
-----Original Message-----
From: terrilynbowman@yahoo.com
[mailto:terrilynbowman@yahoo.com]
Sent: Monday, October 24, 2016 8:52 AM
To: Anthony A. Garganese
Cc: d.greene@cityofcapecanaveral.org;
m.goforth@cityofcapecanaveral.org;
d.lefever@cityofcapecanaveral.org
Subject: RE: Oak Lane and Variance Request No.
2016-02; Public Records Request under Ch. 119
Good Morning Anthony,
Thank you for taking the time
to speak to me on Friday. I also very much appreciate that
you cancelled the October 24 hearing with the Special
Hearing Officer.
I want to
correct a statement in your email below, however. While I
certainly requested that the Oct. 24 hearing be cancelled,
my request regarding a new hearing, as expressly stated in
my prior emails, is that the City should reschedule the
original hearing before the Board of Adjustment (it should
not reschedule the "appeal" with the special
hearing officer). The special hearing officer could attend
the rescheduled BOA hearing in order to provide the City
Council with an independent view.
The proper procedure is to vacate the first
hearing (Aug. 23) and reschedule a new Board of Adjustment
Hearing. As I am sure you are aware, this is what courts
require under due process in this instance, given that the
Applicant did not provide notice of that August 23 hearing
to my LLC, me, or the other owners of the houses he built on
Oak Lane (those most directly impacted). Such notice is
was required by the City Code Due Process section and
Variance Application section (and Constitutional Due Process
and State law). While I understand your explanation for a
reason for lack of notice, that doesn't cure the due
process errors, particularly when Applicant had actual
knowledge of my and my neighbors contact information.
Rescheduling the BOA meeting would allow me and others who
may want to participate to have a full opportunity before
the Board of Adjustment, utilizing all the procedures
outlined for such a hearing in the Code. As you
acknowledged on the phone with me, there are no procedures
in the Code for an "appeal" before a special
hearing officer. Any "appeal" from the BOA
decision would then be heard by the City Council utilizing
the quasi-judicial procedures as required by law.
Again, this should not result
in any delay, because if the City Council has the authority
to obtain an independent view from a "hearing
officer" before making its decision (after a full
quasi-judicial hearing of its own), that hearing officer
could attend the same BOA hearing on this matter and review
the same evidence he otherwise would have reviewed.
Moreover, unless the process is started from the beginning
and according to City Code, the objections to the process
will likely continue and both the Applicant and the City
will likely be required to start over 3 months from now,
which would really cause a delay.
Thank you for your consideration of this
request. Also, thank you for sending me the surveys of 123
and 127 Oak Lane. I will review these documents and look
forward to receiving the responses to my remaining Public
Records Requests. I would be happy to discuss prioritizing
the requests or offer key words for searches if records are
kept electronically.
Kind
Regards,
Terri L. Bowman
Cypress Shareholders, LLC
202-276-2700
--------------------------------------------
On Fri, 10/21/16, Anthony A. Garganese <agarganese@orlandolaw.net>
wrote:
Subject: RE: Oak
Lane and Variance Request No. 2016-02; Public Records
Request under Ch. 119
To: "Terri"
<terrilynbowman@yahoo.com>
Cc: "d.greene@cityofcapecanaveral.org"
<d.greene@cityofcapecanaveral.org>,
"m.goforth@cityofcapecanaveral.org"
<m.goforth@cityofcapecanaveral.org>,
"d.lefever@cityofcapecanaveral.org"
<d.lefever@cityofcapecanaveral.org>
Date: Friday, October 21, 2016, 5:46 PM
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Terri, It was nice talking to you this afternoon and I
hope I was able to clarify a few points for you. As
we discussed, apparently the City received outdated
address information from Brevard County that did not
include the 5/17/2016 recent purchase of your property.
That explains why your LLC did not receive actual mailed
notice. It is my understanding from talking to you
that you are seeking additional time to prepare for the
hearing before the advisory hearing officer. Under the
circumstances, the City Manager understands that your
property is located adjacent to the subject variance
property, although on the opposite side of the subject
variance request. As such, he has agreed to your request
to postpone the hearing on Monday, October 24,
2016 to afford you the additional time that you
seek so that you can determine for yourself whether this
variance request may impact your property. Attached is
a Notice of Cancellation which is in the process of being
distributed by the City. In addition, for your
convenience,
I have attached the three (3)
surveys that we discussed for your consideration. The
surveys are numbered in the right hand corner 1 through 3.
The first is the original Walker Survey (dated 10-21-15)
relied upon by the City to issue the building permit for
the construction of the new single family home at 127 Oak
Lane. The second survey is the Riehl Reliable Survey
(dated 1/15/16) that was subsequently presented to the
City by the owner of 123 Oak Lane (Turner) contesting the
accuracy of a portion of the Walker Survey.
Specifically, Riehl Reliable Survey depicts and calls
out a slightly angled common boundary line between
127 Oak Lane and 123 Oak Lane. This survey
was apparently presented to Walker Surveying and they
apparently concurred with the Riehl Reliable Survey
because they withdrew the
10-21-15 survey
and resubmitted a revised survey for 127 Oak Lane using
the common boundary line surveyed and depicted in the
Riehl Reliable Survey. The Third, revised Walker Survey
(dated 8-11-16) is the current survey being relied upon by
the City. As I understand it, because the eastern
boundary of the property located at 127 Oak Lane was
redrawn further west on an angle, the house under
construction was no longer in compliance with the 8 foot
zoning minimum side setback requirement. Therefore,
Sheropa LLC decided to seek a 4 foot side setback variance
on the east side of the house near the common boundary
between 127 Oak Lane and 123 Oak Lane. No other variance
is being requested by Sheropa LLC for 127 Oak Lane.
As we further discussed, you will
note that the two Walker Surveys depict and
describe the same western boundary, which is the common
boundary with your property. Further, the side setback
of the proposed single family house near your common
property line appears to be noted as 11.5 feet. In
addition, you will note that all three surveys, the two by
Walker and the one by Riehl Reliable, depict and describe
the same southern right-of-way boundary line for Oak Lane
(S 89 38’ 33” E).
Lastly, unrelated
to the variance
request, I mentioned to you
that the City is in the process of having preliminary
design plans prepared for possibly paving the existing Oak
Lane ROW and improving drainage. However, the preliminary
plans have not been finalize and formally presented to the
City Council for review and consideration at one or more
public meetings. At this time, no decision has been made
by the City to pursue and construct the Oak Lane project.
Although I understand that these preliminary plans are
incomplete and a “work-in-progress,” I believe the
City has made these preliminary, incomplete plans
available for inspection on the City’s website. You
can inspect them on the website or at City Hall. Please
contact me if you have any questions regarding this
matter. Regards, Anthony Anthony A
Garganese, EsquireBoard Certified City, County &
Local Government LawGarganese, Weiss & D’Agresta,
P.A.
111 N. Orange Avenue, Suite 2000
Orlando, Florida 32801
P.O.
Box 2873 (32802-2873)
Phone (407) 425-9566
Fax (407) 425-9596
Cocoa (866)
425-9566
Website:
http://cp.mcafee.com/d/avndy0Od1NJ5wsephp78LCXCTTPhOyeojd79JZYQsEzC773rXVEVh7ccECTTPhOMqem6jhOrQzIieM-DwGIjZwxk_j70QTm9-MgGvFzwqrj8cn-XP_nVcQsIfI8LZuVt5V5XDXFTpuuVqWdAklrFIYG7DR8OJMddECQPt-jLuZXTLuV
KVIFRoDX12F-Ce1FKvNz8YJ0xkMHI0kmQDmLbCQXEIL6Mmd96y0cqld40lS7Cy3o86y0cX6mMJVEw1vyPvQCq80pnzh0Dt5MLtc46y0bdA3Vmd40b-RoEkd40bYmr-APh0T13UCy0i9Yq84kjhOrupdF6sPb3f1c5mk
Email: agarganese@orlandolaw.net
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Thank you. From: Terri [mailto:terrilynbowman@yahoo.com]
Sent: Friday, October 21, 2016 12:48
PM
To: Anthony A. Garganese
Cc: d.greene@cityofcapecanaveral.org;
m.goforth@cityofcapecanaveral.org;
d.lefever@cityofcapecanaveral.org
Subject: Re: Oak Lane and Variance
Request No. 2016-02; Public Records Request
under Ch.
119
Anthony,
Thank you for your below
response. I
don't follow how this hearing is appropriate under the
Code provisions you cite and given the lack of notice to
me or, as is now apparent, any of the homeowners on Oak
Lane other than the applicant of the August hearing.
That is a violation of Constitutional due
process, Florida law, your code, and your practice and
procedures. In this instance generalized notice is not
sufficient.
I repeat
my objection to the October 24 Hearing and
repeat my request for a new hearing on the variance
request to be scheduled in accordance with the Code.
It is inaccurate and improper for the City to assume
that the variance request does not impact my property
rights. The issue underlying the variance request seems to
involve a dispute regarding property lines.
I own an adjacent parcel to the offending
parcel -- the issues involved in this hearing are highly
relevant to my property rights. I should have been
provided the opportunity to participate in the August
variance hearing to determine the extent of any issue.
This request to re-schedule the original hearing is
particularly important because the City has not responded
substantively to my Records Requests.
I
asked for expedited response given the very short notice I
received of the "appeal" hearing (having had no
notice of the underlying hearing). The failure to respond
to my requests has simply perpetuated the problem created
by lack of notice. The City should do the right thing
here and reschedule this hearing and give proper
notice.
I have
received
no direct communication regarding responses to my
requests, submitted more than a week ago. I reviewed the
website - when it is functioning - and while I see a lot
of email correspondence with Mr Lennon and miscellaneous
items, I do not see the responses to my requests. If they
are posted, please indicate with specificity by file and
subtitle where I may find the responses to my specific
requests.
Also,
please
indicate to whom I may send my statement and objection for
submission into the public record for the October 24
hearing if it proceeds. Thank you. Respectfully, Terri
BowmanCypress Shareholders
LLC202-276-2700
Sent from my
iPhone
On Oct 14,
2016, at 6:52 PM, Anthony A. Garganese <agarganese@orlandolaw.net>
wrote:Ms. Bowman,
The
undersigned is the City
Attorney. It is my
understanding that the City Clerk has been in contact with
you regarding your public records request and the City
will be handling that request in accordance with its
records policy.
I noticed
that several requests in your letter (the first sequence,
numbered 1 through 5) are not really a public records but
a request for background information that may or may not
be contained in a record. As a courtesy to you, I would
like to provide that background information to you.
1. The appeal to the
City Council regarding the Board of
Adjustment's decision on the variance application is
provided under Sections 110-27 and 110-33, City Code.
2. The advisory hearing
officer was
authorized by the City Council
at the City Council's September 6, 2016 meeting in
accordance with the City Council's general and home
rule powers.
3. The
hearing officer's
name is attorney Drew
Smith.
4. The general
standard of review and
procedures for the
hearing are set forth in Chapter 110, Article II, of the
City Code. Variances in particular are also governed by
Sections 110-36 and 37. Such proceedings are also
governed by applicable case law.
5. The hearing for the
advisory hearing officer is scheduled for
Monday, October 24, 2016 at 4:30 p.m. at the City of Cape
Canaveral Public Library, 201 Polk Avenue, Cape Canaveral,
Florida. The hearing officer will deliver a written
recommendation to the City Council for its final decision
at its December 20, 2016 regular meeting to be held at
6:00 p.m. in the Cape Canaveral Public Library, 201 Polk
Avenue, Cape Canaveral, FL.
Have a good weekend.
Anthony A
Garganese, Esquire
Board
Certified City,
County & Local
Government Law
Garganese,
Weiss & D’Agresta, P.A.
111 N. Orange
Avenue, Suite
2000
Orlando, Florida
32801
P.O. Box 2873
(32802-2873)
Phone (407) 425-9566
Fax (407)
425-9596
Cocoa (866) 425-9566
Website:
http://cp.mcafee.com/d/k-Kr6x8q6jqb0UsOyOehvdTdLLCzB4sMCqejrXVEVh7cee6TTPhOyeophdLLCzBwQsIcCzATF7oAtxZf1loDX12F-Ce1FKIjZwxk_j70QSCgoLZTD-LOpEVovohvWZOWbObTfTjKOYZORQr8EGTjpVkffGhBrwqrjdFCXYDuZXTLuZP
tPpjGNfS25jZcs3js_z6hVq12Fxno0EJFeJundFThpudwIqid40oQGq80HIfd46Mgd40pScJxrPh02_5C_FcQg0OL6y1eWbxuWo8d40mr87OIq80nZGNgEq80nUITZ9Cy1K27Nd40AjUQg8ECzASYOr3_hE4w4A
Email: agarganese@orlandolaw.net
Any
incoming
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Confidentiality Note: This e-mail, and any
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-----Original
Message-----
From: terrilynbowman@yahoo.com
[mailto:terrilynbowman@yahoo.com]
Sent: Thursday, October 13,
2016 7:10 AM
To: Anthony A. Garganese; d.greene@cityofcapecanaveral.org;
m.goforth@cityofcapecanaveral.org;
d.lefever@cityofcapecanaveral.org
Cc: terrilynbowman@yahoo.com
Subject: Oak Lane and Variance Request No.
2016-02; Public Records Request under Ch.
119
SUBJECT: Oak Lane
and
Variance Request No. 2016-02; Public
Records Request under Ch. 119
Dear Mr. Garganese,
Mr. Greene,
Ms Goforth, and Mr. lefever:
I write in my individual
capacity and as the owner of Cypress
Shareholders, LLC, which is the owner of 131 Oak Lane,
Cape Canaveral FL 32920.
Please see the
attached
letter.
I can be
reached by phone at 202-276-2700 or by email at
terrilynbowman@yahoo.com.
I would be happy to discuss any of these requests.
Thank you,
Terri L. Bowman
Individually
and as
Member/Manager of
Cypress
Shareholders LLC terrilynbowman@yahoo.com
202-276-2700
Florida has a very broad public records law. As a result, any written communication created or received by the City of Cape Canaveral officials and employees will be made available to
the public and/or media upon request, unless otherwise exempt. Under Florida Law, email addresses are public records. If you do not want your email address released in response to a
public-records request, do not send electronic email to this entity. Instead, contact our office by phone or in writing