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HomeMy WebLinkAbout10-02-2018 Special Agenda Packet CAPE CANAVERAL SPECIAL CITY COUNCIL MEETING City Hall Council Chambers 100 Polk Avenue, Cape Canaveral, Florida 32920 AGENDA October 2, 2018 6:00 P.M. CALL TO ORDER: PLEDGE OF ALLEGIANCE: ROLL CALL: PUBLIC PARTICIPATION: Any member of the public may address any items that do not appear on the agenda and any agenda item that is listed on the agenda for final official action by the City Council excluding public hearing items which are heard at the public hearing portion of the meeting, ministerial items (e.g. approval of agenda, minutes, informational items), and quasi-judicial or emergency items. Citizens will limit their comments to three (3) minutes. The City Council will not take any action under the"Public Participation"section of the agenda. The Council may schedule items not on the agenda as regular items and act upon them in the future. ITEM FOR ACTION: 6:15 p.m. 6:30 p.m. 1. In accordance with Sec. 110-33 of City Code, consider an appeal filed by Mr. Bernard Lennon (owner of 126 Oak Lane) contesting the decision of the Board of Adjustment to approve Variance Application No. 16-02,which granted Sheropa,LLC. a four(4) foot side yard setback variance from the adjacent eastern residential lot line for property located at 127 Oak Lane ADJOURNMENT: Pursuant to Section 286.0105, Florida Statutes,the City hereby advises the public that: If a person decides to appeal any decision made by the City Council with respect to any matter considered at this meeting, that person will need a record of the proceedings, and for such purpose that person may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. In accordance with the Americans with Disabilities Act: all interested parties may attend this Public Meeting. The facility is accessible to the physically handicapped. Persons with disabilities needing assistance to participate in the proceedings should contact the City Clerk's office (868-1220 x207 or x206) 48 hours in advance of the meeting. [City Seal] City of Cape Canaveral City Council Agenda Form City Council Meeting Date: 10/02/2018 - RESCHEDULED Item No. 1 Subject: In accordance with Sec. 110-33 of City Code, consider an appeal filed by Mr. Bernard Lennon(owner of 126 Oak Lane) contesting the decision of the Board of Adjustment to approve Variance Application No. 16-02,which granted Sheropa, LLC. a four(4) foot side yard setback variance from the adjacent eastern residential lot line for property located at 127 Oak Lane. Department: Community Development Appellant: Bernard Lennon— neighboring resident located across the street at 126 Oak Lane from the subject property Applicant: Sheropa, LLC. —owner of subject property, 127 Oak Lane, Cape Canaveral Subject Property: 127 Oak Lane, Cape Canaveral Zoning Request: Sheropa LLC is requesting a 4 foot side yard setback variance on the eastern side of the subject property located at 127 Oak Lane (Variance Application No. 2016-02) Type of Matter: This matter presented to the City Council involves a Quasi-Judicial zoning decision regarding Variance Application No. 2016-02 Purpose and Subject Matter of City Council Hearing: A. This Agenda Item is presented to the City Council for the sole purpose of conducting a quasi- judicial land use hearing on whether to affirm or reverse,wholly or in part, the August 23, 2016 decision of the Board of Adjustment granting Sheropa LLC's request(Variance Application No. 2016-02) for a four(4)foot side yard setback variance on the eastern side of the property located at 127 Oak Lane. Without a variance being granted, an eight (8) foot side yard setback is ordinarily required by Section 110-297(a)(2) of the City Code. B. Pursuant to Section 110-33 of the City Code, any party aggrieved by any final decision of the Board of Adjustment has the right to appeal the final decision to the City Council by filing the appeal within 10 calendar days of the date of the Board's final decision. C. Bernard Lennon did not attend the August 23,2016 Board of Adjustment meeting. However, on August 26, 2016, Bernard Lennon timely filed a written appeal of the Board Adjustment's August 23, 2016 decision. In his written appeal, Mr. Lennon states the specific reason for his appeal, but does not state any specific reason why he has standing, as an aggrieved party, to challenge the actual decision made by the Board of Adjustment. A copy of the written appeal is attached to this Agenda Item. D. There is a long procedural history regarding Variance Application No. 2016-02 and this appeal which is explained in more detail below. However, the City Council must now hear Mr. Lennon's appeal of the Board of Adjustment's August 23,2016 decision to grant Sheropa LLC's request for the four(4)foot side yard setback variance. The City Council will conduct a de novo hearing and consider relevant testimony and evidence of any interested party pursuant to Section 110-33 of the City Code. City Council Special Meeting Date: 10/02/18 Item No. 1 Page 2 of 6 E. Since Mr. Lennon is the Appellant, in order to reverse the Board of Adjustment's decision, it will generally be Mr. Lennon's burden to demonstrate by competent substantial evidence, not only why he believes he has legal standing to bring this appeal, but also why he believes Variance Application No. 2016-02 does not comply with the variance criteria specifically enumerated in Section 110-37 of the City Code. F. Sheropa LLC., as the applicant, shall likewise generally be permitted to present competent substantial evidence why they believe Variance Application No. 2016-02 does comply with the variance criteria. G. The criteria to be applied by the City Council regarding the variance application request at issue in this hearing is as follows: All variance decisions shall be based on an affirmative finding as to each of the following criteria: (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. (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 work unnecessary and undue hardship on the applicant. (3) That the special conditions and circumstances referred to in subsection (1)do not result from the actions of the applicant. (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. (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. (6) That approval of the variance will be in harmony with the general intent and purpose of this chapter, and will not Underlying Reason for and Procedural History of Variance Application No. 16-02: A. On October 5, 2015, the City issued Sheropa LLC a building permit for the construction of a single-family structure at 127 Oak Lane. The building permit was based upon the original survey prepared by Walker Surveying, dated October 21, 2015. B On or around January 15,2016, a different survey prepared by Riehl Reliable was submitted by the owners(Suzanne Turner and Gerry Beecher) of 123 Oak Lane,which is property that lies east and adjacent to 127 Oak Lane. The Riehle Reliable survey depicts an angular common side boundary line between 123 Oak Lane and 127 Oak Lane which indicated an apparent four-foot discrepancy with the original Walker survey submitted with the building permit application for 127 Oak Lane. City Council Special Meeting Date: 10/02/18 Item No. 1 Page 3 of 6 C. Based on the Riehle Reliable survey, John Dismore, agent for Sheropa, LLC, on July 19, 2016 filed an application for a side-yard variance to address the four-foot side setback discrepancy on the eastern side of the property located at 127 Oak Lane. The variance is necessary in order for Sheropa LLC to pursue the issuance of a final certificate of occupancy for the substantially constructed new single-family home located on 127 Oak Lane. D. Sheropa, LLC. then submitted a revised Walker survey prior to the Board of Adjustment variance hearing, dated August 11, 2016, which depicts the same common boundary line between 127 Oak Lane and 123 Oak Lane as depicted on the Riehle Reliable survey. The revised Walker survey depicts the single-family house under construction approximately four (4)-feet closer to the common boundary line between 127 Oak Lane and 123 Oak Lane than the original Walker survey. E. On August 23, 2016, the City's Board of Adjustment approved Variance Application No. 16-02, which granted a four foot side-yard setback variance on the eastern side of the property located at 127 Oak Lane. F. In an email to the City Clerk, dated August 26, 2016, Mr. Bernard Lennon,property owner at 126 Oak Lane, filed an appeal to the BOA's approval of Variance No. 16-02. G. Due to several serious unfounded allegations made by Mr. Lennon against City officials and Staff around the time of the notice of appeal, the City Council approved the hiring of an independent advisory hearing officer, and in September of 2016,the City formally engaged Mr. D. Andrew Smith, as an advisory hearing officer to conduct an evidentiary hearing in order to prepare a report to establish "findings of fact and conclusions of law" to be considered by the Council as part of Mr. Lennon's appeal. The hearing was scheduled for October 24, 2016. H. However, prior the October 24, 2016 hearing date, Ms. Tern Bowman of Cypress Shareholders LLC ("Cypress"), owner of the property at 131 Oak Lane, notified the City and the City Attorney's office around October 13, 2016 that she did not receive the mailed 500 foot courtesy notice which was sent out by the City for the original,August 23rd Board of Adjustment meeting. To provide these hearing notices, the City relies on a mailing list provided by the Brevard County Property Appraiser's database. In this instance, the City reviewed the claim made by Cypress and determined that the written notice had, indeed, been mailed to the registered owner of record at 131 Oak Lane. However, the notice was apparently inadvertently addressed to the applicant, Sheropa, because Sheropa had recently sold the house to Cypress, and the Brevard County Property Appraiser's database had not been updated yet listing Ms. Bowman and Cypress as the owner of 131 Oak Lane. Cypress objected to the October 24, 2016 hearing and demanded that the Board of Adjustment rehear Variance Application No. 2018-02. I. Faced with competing requests for hearings made by Cypress and Mr. Lennon, the City scheduled a Board of Adjustment meeting to rehear Variance Application No. 2018-02. Mr. Lennon was notified by the City Clerk by email, dated October 26, 2016, of this decision and that the Board of Adjustment would again consider the Variance Application at a meeting scheduled for November 22, 2016. But due to the close proximity to the Thanksgiving holiday, some interested parties could not apparently make that hearing date and the meeting was City Council Special Meeting Date: 10/02/18 Item No. 1 Page 4 of 6 cancelled with the intention of rescheduling the Board of Adjustment hearing after the upcoming holidays. J. However, the Board of Adjustment meeting did not occur because on or about January 24, 2017, Cypress filed an Amended Complaint against Sheropa, et. al., in the Circuit Court of the Eighteenth Judicial Circuit, in and for Brevard County, Florida, Case No. 05-2016-CA-048956. Upon review of the lawsuit, the City determined that the outcome of that lawsuit could potentially have some bearing on the outcome of the pending Variance Application. As such, on January 25, 2017, the City advised Sheropa, in writing, that the City was administratively staying (stopping) any further action on their Variance Application and the issuance of a certificate of occupancy for the almost-completed single-family home being constructed at 127 Oak Lane. Therefore, as a result of the administrative stay, the new Board of Adjustment hearing was also stayed (stopped) pending the outcome of the litigation between Sheropa and Cypress. Mr. Lennon and Sheropa LLC were both made aware of this decision by the City. K. Over a year and half later, the City was advised by Sheropa that a settlement had been reached on May 15, 2018 between Sheropa, et. al, and Cypress, and the lawsuit was dismissed with prejudice. One outcome of the settlement was that Cypress sold the property at 131 Oak Lane back to Sheropa. Therefore, at this time, Cypress no longer owns property on Oak Lane based on the land records contained in the current Brevard County Property Appraiser's database and as a result,they appear to no longer have any interest in the Variance Application, and there is no need to have the Board of Adjustment rehear the Variance Application as demanded by Cypress. L. Further, since the lawsuit between Cypress and Sheropa was resolved, Sheropa requested that the City proceed with making a final decision on their Variance Application. The request to reinitiate the processing of the Variance Application was administratively granted by the City because Sheropa has the right to receive a final decision either approving or denying their Variance Application. As a result,the City Council is now being presented with the appeal filed by Mr. Lennon on August 26, 2016. Background: On October 5, 2015, the City issued a building permit to the property owner, Sheropa, LLC, for the construction of a single-family structure at 127 Oak Lane (Attachment 1). Per the Building Department's practice, the permit was issued in reliance upon information included in the building permit application, to include a survey from Walker Surveying (Attachment 2), a licensed surveyor in the state of Florida, which indicated compliance with City Code requirements, including property lines, setbacks, the location of improvements, etc. Subsequent to the issuance of the building permit and prior to the issuance of a Certificate of Occupancy (CO), the property owner of 123 Oak Lane submitted a competing survey (Attachment 3),prepared by Riehl Reliable Surveying and Mapping,which was in conflict with the Walker survey submitted as part of the building permit application. The Riehl Reliable survey indicated the location of the shared side property line between 123 and 127 Oak Lane was further to the west by approximately four feet. City Council Special Meeting Date: 10/02/18 Item No. 1 Page 5 of 6 To remedy the discrepancy, Sheropa reported to the City they attempted to purchase a four-foot section of property from the owner of 123 Oak Lane,but was unsuccessful. As a result, Sheropa submitted a revised survey showing the property line in question shifting 4 feet to the west of the original location (Attachment 4). This resulted in a four-foot side yard setback to the house on 127 Oak Lane. For this purpose, a variance of four feet to the required eight-foot side-yard setback is requested. Sec. 110-37 of the City Code establishes certain criteria that must be evaluated when a variance is being considered. A detailed analysis of the requested variance's compliance with the criteria is provided below (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. hi 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. City Council Special Meeting Date: 10/02/18 Item No. 1 Page 6 of 6 (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, storm water sheet flows from the north across the subject property. All other City codes have/will be met City Staff Recommendation: City Staff's professional opinion is that Variance Application No. 16-02 is consistent with the variance criteria enumerated in Sec. 110-37 of the City Code, and therefore, City staff recommends that the City Council affirm the August 23,2016 decision of the Board of Adjustment granting Sheropa LLC's request for a four (4) foot side yard setback variance on the eastern side of the property located at 127 Oak Lane.Q Submitting Department Director: David Dickey Date: 9-25-18 Attachments: 1 - Aerial Map 2 -Walker Survey 3 -Riehl Reliable Survey 4 -Walker Survey (Revised) 5 -Notice of Appeal—B. Lennon Financial Impact: Staff time and effort to prepare the Agenda Item. Cost to provide public notice. Reviewed by Administrative/Financial Services Director: John DeLeo Date: 9/25/2018 The City Manager recommends that City Council take the following action: Pursuant to Sec. 110-33 of City Code, conduct a quasi-judicial hearing and consider an appeal filed by Mr. Bernard Lennon (owner of 126 Oak Lane) contesting the decision of the Board of Adjustment to approve Variance Application No. 16-02, which granted Sheropa LLC a four(4) foot side yard setback from the adjacent eastern residential lot line for property located at 127 Oak Lane. Approved by City Manager: David L. Greene Date: 9/25/18 Attachment 1 [Aerial photo] Attachment 2 [plat of land survey] Attachment 3 [map of survey] Attachment 4 [plat of land survey] Attachment 5 8/26/2016 Mia Goforth, I am requesting an appeal to the hearing held by the Board of Adjustment on August 23, 2016 regarding Variance Request No. 16-02. The reason for the appeal is: The notice sent to my home on August 11, 2016 stated comments can be sent to Cape Canaveral, Community Development Department, 110 Polk Avenue, P.O. box 326, Cape Canaveral, FL, 32920-0326. David Dickey assured me the following information would be given to the Board of Adjustment members prior to the August 23, 2016 hearing. Without this information it was impossible for the board members to make an informed decision on Variance Request No. 16-02. On August 16, 2016 Mike Toscano signed for certified letter 7015 0640 0004 1075 6866 titled Regarding Variance Request No. 16-02.The same day Mayor Hoog signed for certified letter 7015 0640 0004 1075 6859 titled Regarding Variance Request No. 16-02. On August 17, 2016 The City Manager signed for certified letter 7015 0640 0004 1075 6842 titled Regarding Variance Request No. 16-02. On August 19, 2016 Kim Kopp's office signed for certified letter 7015 0640 0004 1075 6835 titled Regarding Variance Request No. 16-02. On August 22, 2016 Mike Toscano signed for certified letter 7015 0640 0004 1076 4557 titled Regarding Variance Request No. 16-02. On August 22, 2016 Mike Toscano signed for certified letter 7015 0640 0004 1076 4984 titled Regarding Variance Request No. 16-02. David Dickey did not give any of this information to the Board of Adjustment members before or during the meeting. A signed copy of this letter has been sent certified mail 7015 0640 0004 1075 9027 to Mayor Bob Hoog at 210 Jefferson Avenue, Cape Canaveral, FL 32920. Bernard Lennon 126 Oak Lane Cape Canaveral Abc777@cfl.rr.com