HomeMy WebLinkAboutUntitled (10)
1/28/2017
To: Mia Goforth, City of Cape Canaveral City Clerk
105 Polk Ave
Cape Canaveral, FL 32920
m.goforth@cityofcapecanaveral.org
<mailto:m.goforth@cityofcapecanaveral.org>
(321) 868-1220 Ext 220
1) The Chairperson for the August 23, 2016 Board of Adjustment
hearing was Douglas Raymond. Can you please have him verify the accuracy
of David Dickey’s response to question #1 sent to you in an email on
10/19/2016 Subject: RE: Information required for Oct 24 hearing.
“A number of documents were submitted to the Board of Adjustment the
night of the August 23, 2016 hearing. This was due to the fact that the
request to have them considered was made subsequent to the agenda packet
being distributed to the board members. These included a hand-written
letter from Ms. Suzanne Turner who resides at 123 Oak Lane. Also, 2
Certified letters (August 17, 2016 and August 20, 2016) from yourself
were submitted to the Board. One was not submitted to the board due
(letter received on August15, 2016) to an oversight when reviewing the
file for copying. Also, seven emails (related to the variance request)
sent by yourself to various City Staff members were distributed to the
board members.”
2) Why was this email excluded from the public records request for
Oak Lane 2016 and 2017?
3) Are there any other communications that were excluded?
4) The following letter was drafted with the intention to send it
to the independent hearing officer. David Dickey states he never sent
it. Can you please have Hearing Officer Attorney D. Andrew Smith confirm
he did not receive this letter?
I will send a copy of this letter to all City employees, elected
officials, and the residents of Oak Lane.
A signed certified [7015 0640 0001 6159 4533] copy to: Mayor Bob Hoog
210 Jefferson Ave Cape Canaveral, FL and [7015 0640 0001 6159 4540] to:
Governor Rick Scott 400 S. Monroe St. Tallahassee, FL. 32399-0001
Thank You
Bernard Lennon
126 Oak Lane
Cape Canaveral, FL
Abc777@cfl.rr.com <mailto:Abc777@cfl.rr.com>
_______________________________________________________________________
_________
The following was sent 1/27/2017 4:51pm
To: Bernard Lennon, Council members, Anthony Garganese and Mia Goforth
From: David Dickey
Ex Parte Communication. You assert that City Staff initiated ex parte
communication with the independent hearing officer, Andrew Smith,
regarding your filed appeal challenging the variance application at 127
Oak Lane. Your assertion seems based on your review of a draft
memorandum that I prepared addressed to Mr. Smith, dated October 11,
2016. Notwithstanding your assertion, no such ex parte communications
occurred with the hearing officer. The draft memorandum was only
distributed for internal review to the City Attorney and Attorney Jim
Beadle, the City's outside Counsel in this matter. The memo was never
sent to Mr. Smith. In fact, the memorandum was prepared by me in
anticipation of the hearing scheduled for October 24, 2016. It was my
intention to introduce this memorandum at the hearing in order to
memorialize, for the benefit of the hearing officer, the facts that I,
and members of staff, were prepared to place on the record at the
hearing for the hearing officer's consideration regarding your appeal.
Again, the hearing officer never received this memorandum because it was
never sent to him and was never introduced at the hearing because the
hearing was cancelled. There was no ex parte communication, and
certainly no effort on the City's part to "taint the hearing that would
affect [your] property rights" or to pervert the Sunshine Law like you
apparently suggest in your email to the Mayor Pro Tern.
The following was sent
To: Anthony Garganese, jim@sbmlawyers.com <mailto:jim@sbmlawyers.com> ,
David Green
From: David Dickey
Anthony – as we discussed I have prepared a draft finding of fact memo
for purposes of the variance appeal hearing. Perhaps we can discuss at
our Monday meeting prior to it being sent to the hearing officer. Dave
October 11, 2016
TO: Attorney D. Andrew Smith, III - Hearing Officer
FROM: David Dickey, Community Development Director
SUBJECT: Board of Adjustment – Variance No. 2016-02 – APPEAL -
Finding of Facts
At its August 23, 2016 Regular Meeting, the Cape Canaveral Board of
Adjustment unanimously approved Variance No. 2016-02. The variance
authorizes a reduction in the eastern side yard setback from the
required eight (8) feet to four (4) feet for the structure located at
127 Oak Lane.
This approval was based on competent, substantial evidence presented to
the Board by City Staff and as gathered at the public hearing on August
23, 2016. The approval was based on an affirmative finding to each of
the following criteria outlined in Sec. 110-37(b) (staff response shown
in italics):
*
(1) That special conditions and circumstances exist which are peculiar
to the land, structure or building involved and which are not applicable
to other lands, buildings or structures in the same zoning district. The
unique nature of this situation is tied to the discrepancy on the
location of the common side lot line shared by 123 and 127 Oak Lane.
Surveys were completed on behalf of the owners of 123 and 127 Oak Lane
which establish the discrepancy. Available records indicate that this
is a unique circumstance to this property and that this situation is not
found on any surrounding properties.
(2) That literal interpretation of this chapter would deprive the
applicant of rights commonly enjoyed by other properties in the same
zoning district under the terms of this chapter and would cause
unnecessary and undue hardship on the applicant. Should the Code be
literally interpreted in this situation, the single-family structure
would not meet the side yard setback requirements. The surrounding
properties also contain single-family homes. The remedy would be to
either demolish the structure or that portion of the structure that is
in violation of the side yard setback. This would pose a significant
hardship on the applicant as opposed to applying for and receiving a
variance.
(3) That the special conditions and circumstances referred to in
subsection (1) do not result from the actions of the applicant. When the
applicant applied for the building permit, a survey prepared by a
licensed surveyor was submitted indicating compliance
with R-2 zoning standards – specifically the setback requirements. In
addition, a warranty deed was submitted that included the same legal
description as the survey. This was the same survey and deed that was
provided at conveyance from the previous owner. Based on this, the City
issued a building permit for 127 Oak Lane on October 6, 2015. It was
after the permit was issued and construction had begun that a second
survey was submitted on January 15, 2016, by the owner of 123 Oak Lane
that the conflict was documented.
(4) That approval of the variance requested will not confer on the
applicant any special privilege that is denied by this chapter to other
lands, buildings, or structures in the same zoning district. Approval of
the variance only confers the right for the construction of a
single-family structure on the property. This is a right enjoyed by
surrounding properties and properties within the same zoning district.
(5) That the requested variance is the minimum variance from this
chapter necessary to make possible the reasonable use of the land,
building or structure. Based upon the dimensions indicated in the
submitted survey, the requested variance is the minimum needed to make
reasonable use of the property.
(6) That approval of the variance will be in harmony with the general
intent and purpose of this chapter, and will not be injurious to the
neighborhood or otherwise detrimental to the public welfare. The
variance will allow for the construction of a single-family home which
is consistent with the surrounding development pattern. The separation
between the homes authorized by the variance will be compatible with the
neighborhood. Also, the stormwater system to be constructed on the
property will properly convey stormwater from the Ocean Gardens
development to a designated swale system for treatment. Currently,
stormwater sheet flows from the north across the subject property. All
other City codes have/will be met.
(c) Under no circumstances shall the board of adjustment grant a
variance to permit a use not generally or by special exception permitted
in the district involved or any use expressly or by implication
prohibited by this chapter. As indicated in Section 334(c)(10) of the
City Code, a single-family residential structure is allowed as a special
exception in the C-1 zoning district. As the property is zoned C-1, on
June 12, 2014, the City’s Board of Adjustment approved a modification to
Special Exception No. 2013-06 to allow the construction of four
single-family homes.
The Appellant, Mr. Bernard Lennon, who resides at 126 Oak Lane,
submitted three separate certified letters (dated 8/12/16, 8/17/16 and
8/20/16) that outline his opposition to Variance No. 16-02. Many of his
arguments are repeated through the three letters. The following is an
attempt to summarize his major arguments and to provide a response to
same (staff response shown in bold/italics).
1. That the structure does not meet the front-yard setback of 25
feet as required by Sec. 110-297(a)(1). Each of the three surveys
(Walker/Riehl Reliable/Revised Walker) that have been submitted leading
up to and as part of the application for Variance No. 2016-02, agrees on
the location of the north property line/bearing line along the southern
right-of-way line of Oak Lane. The two Walker surveys indicate that the
residential structure at 127 Oak Lane meets the minimum front-yard
setback of 25 feet.
2. Mr. Lennon repeatedly asserts that the City will be
taking/giving his property to Sheropa, LLC upon approval of the variance
and that the City is suggesting that the right-of-way markers/pins be
relocated to match the flawed surveys. At no time has the City suggested
that the Oak Lane right-of-way markers be moved or relocated. The only
related comment has been that the City will be surveying Oak Lane at
some point in the future for purposes of improving the right-of-way and
that based upon the survey findings, additional property may be needed
to complete the proposed improvements. The City Engineer, John Pekar,
P.E., has completed preliminary design work on the Oak Lane project
utilizing legal descriptions from recorded deeds to establish the
rights-of-way. Mr. Pekar’s work places the right-of-way in the same
location as the previous three surveys (Walker/Riehl Reliable/Revised
Walker). Note that there are no funds in the City budget for the Oak
Lane improvments.
Mr. Lennon has been repeatedly told that in order for the Oak Land
right-of-way to be expanded, the City Council would need to do so
through approval of a resolution which would be at the conclusion of a
noticed public hearing. With respect to the claim that the surveys are
flawed, see response above.
3. Mr. Lennon claims in his August 17th letter that the house at
127 Oak Lane has “issues with elevation that can potentially cause
problems with flooding and sewage backing up into their homes.” As part
of the City’s building permit application process, the builder is
required to provide a boundary that includes finished floor elevations
to ensure that the structure is consistent with the City’s stormwater
management requirements and that it is not in the flood zone. Note that
the City Engineer reviews drainage plans prior to the approval of a
building permit and then conducts a field review prior to the issuance
of a Certificate of Occupancy. If and when Oak Lane is improved, there
will be no stormwater from Oak Lane or properties to the south that will
encroach onto Mr. Lennon’s property at 126 Oak Lane.
4. A derivation of paragraph 2 above, Mr. Lennon states in his
letter dated August 17, 2016, that “By allowing these homes to be built
into the right of way, the city is inferring that the right of way has
been moved, thus changing my property lines, in effect stealing my
property without notice or a hearing.” City staff has informed Mr.
Lennon that to move/expand the Oak Lane right-of-way, the City Council
would be required to do so through the adoption of a resolution. This
would require a properly noticed public hearing where residents
(including Mr. Lennon) would have an opportunity to speak to the issue.
At no time has the City suggested that the right-of-way line be moved.
As indicated above, there is no evidence from the submitted documents
that the Oak Lane right-of-way lines are incorrect or that they will
need to be moved.
According to the preliminary design work completed for the proposed
improvements to Oak Lane referenced in paragraph #2 above, Mr. Lennon’s
property will be approximately ten (10) feet north of the edge of
pavement.
For purposes of the evidentiary hearing to be held on October 24, 2016,
City Staff provided notice consistent with Sec. 110-28. – Due process;
special notice requirements. Note that the required notices were
mailed/posted on September 26, 2016; twenty-eight (28) days prior to the
hearing date on October 24th. City Code requires 14 calendar days.
Xc: Honorable Mayor and City Council
Anthony Garganese, City Attorney
Jim Beadle, Esq.
David Greene, City Manager
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
ting
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