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HomeMy WebLinkAboutBoard of Adjustment Packet - August 23, 2007City of Cape Canaveral BOARD OF ADJUSTMENT MEETING AGENDA 111 POLK AVENUE AUGUST 23 2007 5 30 P M 11 t fI rln011lVIUCI Roll Call NEW BUSINESS 1 Consideration and Motion Re Final Board Order of Administrative Appeal Request No 07 05 Coastal Terminals LLC Appellant ADJOURN Pursuant to Section 286 1015 Florida Statutes the City hereby advises the public that If a person decides to appeal any decision made by the Board of Adjustment 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 allowed by law Persons with disabilities needingassistancetoparticipateinanyoftheseproceedingsshouldcontacttheCityClerksofficeat868122148hoursinadvanceofthemeetingThismeeting may include the attendance of one or more members of the Cape Canaveral CityCouncilandorQuasiJudicialBoardmemberswhomayormaynotparticipatein Board discussions held at this public meeting 105 Polk Avenue Post Office Box 326 Cape Canaveral FL 32920 0326Telephone3218681222SUNCOM9821222FAX3218681247 www myflorida com cape email ccapecanaveral@dl rrcom DRAFT 0814 2007 IN AND BEFORE THE BOARD OF ADJUSTMENT OF THE CITY OF CAPE CANAVERAL Administrative Appeal Request No 07 05 COASTAL TERMINALS LLC A Florida limited liability company Owner of property located at 8952 N Atlantic Avenue Cape Canaveral Florida Appellant v THE CITY OF CAPE CANAVERAL BUILDING OFFICIAL TODD MORLEY Appellee i ORDER THIS CAUSE having come on for consideration after being duly noticed before the Board of Adjustment ofthe City of Cape Canaveral Florida on May 10 2007 and June14 2007 at the request of Appellant Coastal Terminals LLC Coastal Pursuant to section 1 i 040 Cape Canaveral Code Coastal seeks review of a final administrative decision ofthe City of Cape Canaveral Building Official Todd Morley Building Official related to a City Code interpretation issue In particular Coastal seeks to reverse the Building Official s interpretation of the phrase Liquefied Petroleum Products as that phrase is used in section 110 354 c 6 Cape Canaveral Code The Board having heard the arguments of Coastal Building Official other interested parties and the evidence presented and having reviewed the record and being otheJiNise fully advised the following Findings of Fact and Conclusions of Law are incorporated into this Order as set forth herein Standard of Review This action filed by Coastal is an administrative appeal taken under section 110 40 Cape Canaveral Code In relevant part section 110 40 provides Page 1 of 9 DRAFT 08 14 2007 a Any final administrative decision regarding the enforcement or interpretation of this chapter where it is alleged there is an error by an administrative official can be appealed as set forth in this section Any ofthe following may seek review of an administrative decision pursuant to this section nnn3 Any person aggrieved or affected by any decision of the building official in the interpretation of any portion of this chapter b Appeals shall be taken within 30 days after such administrative decision is made by filing a vritten notice of appeal lith the building official and the board of adjustment stating the name of the decision maker date of the decision applicable code provisions and the specific grounds for appeaL Upon receipt of the notice of appeal the building official shall schedule the appeal before the board of adjustment and transmit all documents plans papers or other materials constituting the record upon which the action appealed from was taken c The board of adjustment shall be required to review all administrative appeals and prepare written findings constituting its final decision on the administrative appeal based on the criteria set forth in this section d Review of administrative decisions shall be based on the following criteria 1 Whether the applicant was properly afforded procedural due process 2 Whether the decision under review is supported by competent substantial evidence and 3 Whether the decision under review complied with applicable law including a proper interpretation of any provision under this chapter f The board of adjustment shall have the right to reverse or affirm wholly or in part or may modify the order requirement decision or determination as ought to be made and to that end shall have all the powers of the officers from whom the appeal is taken The concurring vote of fourmembers of the board of adjustment shall be necessary to reverse any order requirement decision or determination of the building official Importantly section 110 40 contemplates an appellate proceeding which requires Page 2 of9 DRAFT 08 14 2007 the BOA to review the specific grounds for appeal and the record that the Building Official had before him when he rendered his interpretation decision See S 100 40 b Cape Canaveral Code Board of Adjustment required to review the specific grounds for appeal and the record This review by the Board of Adjustment is limited to a three prong test which provides 1 Whether the applicant was properly afforded procedural due process 2 Whether the decision under review is supported by competent substantial evidence and 3 Whether the decision under review complied with applicable law including a proper interpretation of any provision under this chapter Neither Coastal nor the Building Official nor any other interested person argues that the applicant Coastal was not properly afforded procedural due process Therefore only prongs two and three are relevant and subject to review in this case Jurisdiction of the Board of Adiustment The Building Official does not challenge the Board of Adjustments jurisdiction to hear this appeal However at the June 14 2007 hearing Ruth Anders a citizen of CapeCanaveilslmadeseveialargumentswhichinessencechallengetheBoardof Adjustment s jurisdiction In this case the sequence of events is important Coastal filed its application on August 29 2006 the Building Official rendered his final interpretativedecisiononFebruary12007theCityCouncilconductedfirstreadingofOrdinance01 20071 on February 6 2007 and the City Council adopted Ordinance 01 2007 on February132007Fromthissequenceofeventsitisreadilyapparentthattherelevantactions resulting in this appeal occurred prior to the adoption of Ordinance 01 2007 Therefore the Board of Adjustment finds that it has jurisdiction to hear Coastal s appeal pursuant to the due process clause under the Florida and United States Constitutions The other arguments raised by Ms Anders are without merit as well Limited Issue Presented on Appeal Based on the briefs submitted by Coastal and the Building Official the issue presented on appeal to the Board 6fAdjLJsthlerit is whethefthe Building OffiCial s February12007writteninterpretationdecisionregardingthemeaningofthephraseLiquefiedPetroleumProductsundersection110354c6CapeCanaveralCodewassupportedbycompetentsubstantialevidenceandwhetherthatdecisioncompliedwithapplicable I Ordinance No 01 2007 repealed the special exception at issue in this case Further the Ordinance adopted a definition of Liquified Petroleum Gas which appears consistent with the BuildingOfficialspositioninthisappeal Page 3 of9 DRAFT 08 14 2007 law In addition it is important for the Board of Adjustment to note that while this interpretation question arises out of Coastal s special exception application dated August 29 2006 the issue presented is not whether Coastai is entitied to a speciai exception for the storage of liquefied petroleum products under section 11 0 354 c 6 Given that the Building Official s administrative decision resulted in the City not processing Coastal s application the issue is whether Coastals application for a special exception can proceed to an independent and separate special exception hearing If the Board of Adjustment upholds the Building Official s interpretation in this case the application shall not proceed to a special exception hearing On the other hand if the Board of Adjustment reverses the Building Official s interpretation the application can proceed to a special exception hearing At this time the Board of Adjustment renders no decision or comment whatsoever on the merits of Coastal s special exception application because the merits of the application are not currently before the Board of Adjustment Findings of Fact and Conclusions of Law on the Issue Presented Based upon the legal briefs evidence and testirnony presented at these hearings the Board of Adjustment finds 1 Coastal and the Building Official through their respective attorneys submitted legal briefs and supporting exhibits to the Board of Adjustment prior to the May 10 2007 scheduled meeting Coastals brief was submitted to the City by application dated March 1 2007 The Building Official s brief was filed on April 27 2007 Other Exhibits and testimony were also presented at the June 14 2007 hearing relevant to the issue presented and relevant tothe Board of Adjustments jurisdiction to hear this appeal 2 By application dated August 29 2006 Appellant Coastal Terminals LLC filed an application with the City for a special exception under section 11 0 354 c 6 Cape Canaveral Code The application stated that the request is for a bove ground storage of liquefied petroleum products specifically liquid petroleum on real property owned by Coastal at 8952 N Atlantic Avenue Cape Canaveral Florida PropertyCoastals Brief EXHIBIT A 3 The application states that the Property is currently zoned M 1 Light Industrial and Research and Development District Coastal s Brief EXHIBIT A 4 Soon after the application was filed Coastal through its attorney made several requests to hold the special exception application in abeyance Board of Adjustment Composite EXHIBIT C The application was held in abeyance for several months until January 17 2007 when the City Manager received a letter Page 4 of 9 DRAFT 08 14 2007 from Coastal s Attorney requesting that the City move forward in processing the application as submitted Board of Adjustment Composite EXHIBIT C 5 On February 1 2007 the Building Official sent a letterto Coastals attorney stating that based Oil his reading of section 11 0 354 c Cape Canaverai Code it was his opinion that Coastal s special exception application is ineligible for processing because the City Code does not provide for special exceptions for the storage of liquid petroleum in the M 1 Zoning District Coastal s Brief EXHIBIT B 6 In general the Building Official s letter cites primarily to three sources in support of his decision a state law b public testimony provided by the Cape Canaveral Fire Chief at the August 23 2006 Planning and Zoning Board meeting and 3 legislative history of the City Code related to the differentiation between liquid ne le m anrl I e rl I U f a fl D e EXHIBIT BtVIUUIIIjUIlIJUflIJUVIIJIIIvvLal011I 7 On March 1 2007 Coastal timely filed an appeal of the Building Official s decision in accordance with section 110 40 Cape Canaveral Code Said appeal included a detailed legal brief and supporting exhibits refuting the code interpretation conclusion reached by the Building Official in his February 1 2007 letter 8 The Board of Adjustment was provided with well written legal briefs and numerous supporting exhibits regarding the issues presented The briefs and exhibits provided a significant amount of evidence Such evidence included the evolvinghistoryoftheCityCoderelatedtopermittedusesintheCitysindustrialzoning district the development history of Coastals property the history of Liquefied petroleum and Florida statutory and administrative code referencesto petroleumproductsandliquefiedpetroleumgasHoweverinrenderingthisdecisionthe Board of Adjustment has relied primarily upon the following salient facts as competent substantial evidence A Coastal filed an application for a special exception on August 29 2006 B On February 1 2007 the Building Official interpreted the City Code that was in effect at the time the application was filed and in effect on February 1 2007 C At the time the Building Official rendered his decision the City Code did not define liquefied petroleum products Z 2 The Board ofAdjustment recognizes that subsequent to Building Official s decision the CityCouncilonFebruary202007amendedtheCityCodeandadoptedadefinitionandadditionalregulationsforLiquifiedPetroleumProductsHoweverthenewCodewasnotsubjecttotheBoardofAdjustments review of this case because it was not in effect atthe time Coastal submitted its application for specialexceptionandnotineffectatthetimetheBuildingOfficialrenderedhisdecision Page 5 of9 DRAFT 0814 2007 D Prior to July 5 1967 the City Code differentiated between gasoline oil and petroleum storage tanks and storage tanks containing liquefied petroleum commonly known as bottled gas for purposes of imposing special requirements for uses in the M 2 zoning district Building Official s s Brief EXHIBiT 8 excerpt of Ordinance 81 64 page 25 Coastal s Brief EXHIBIT C It appears from reading the excerpt that this differentiation was for purposes of imposing special requirements for fire protection purposes not for purposes of identifying said storage as either a principle or special exception use However the intent of the M 2 zoning district was for lands used by a variety of commercial storage and industrial operations E On July 5 1967 the City Council adopted Ordinance No 81 64 L which created the M 3 zoning district that listed the storage of petroleum products as a principle use Coastal s Brief EXHIBIT I F On August 4 1971 the City Council adopted Ordinance No 12 71 Coastal s Brief EXHIBITS M N O P and Q Given its extensive scope said Ordinancewas apparently a comprehensive re writeofthe City s zoning code and it included a new M 3 zoning district which was different than the one adopted on July 5 1967 Storage of liquified petroleum products was listed as a principle use in said district The reference to gasoline oil and petroleum storage tanks and the differentiation referred to in paragraph 0 of this Order Nere eliminated G On or about July 11 1973 The Canaveral Corporation now Coastal Terminals LLC according to Coastal received a building permit from the City to construct tNe 2 petroleum storage tanks and related pipe lines lights and motors on property zoned M 3 Coastals Brief EXHIBIT S H On February 15 1983 the City Council adopted Ordinance No 2 83 amending the City Code by adopting another set of comprehensive zoning regulations Coastal s Brief EXHIBIT Z Ordinance 2 83 The amendments repealed section 630 of the Zoning Code and adopted a new M 1 zoning district which allowed the storage of liquefied petroleum products as a special exception in the M 1 zoning I It also appears that the M 2 and M 3 zoning districts were eliminated by Ordinance No 2 83 as well because the City s Official Zoning Map no longer depicted lands with the M 2 and M 3 zoning district designations Coastal s Brief EXHIBIT AA Official Zoning Map dated March 15 1983 depicting lands zoned M 1 and not M 2 or M 3 see also Coastal s Brief EXHIBIT U Official Zoning Map dated October 28 1975 depicting lands zoned M 1 M 2 and M 3 Page 6 of 9 DRAFT 08 1412007 J On or about August ii 1986 Rockwell International was granted a specialexceptionbytheBoardofAdjustmenttoconstructabuildingtostorepetroleumproductsincludingpetroleumoilandlubricantsonpropertyzonedM1Coastals Brief EXHIBIT BB K On or about June 10 1991 Coastal Fuels Marketing Inc now Coastal Terminals LLC according to Coastal was granted a special exception by the Board of Adjustment to construct a new 120 000 barrel storage tank for diesel fuel Coastal s Brief EXHIBIT DD 9 During an approximate twenty year time period between 1964 and 1983 the CityCounciladoptedseveracomprehensiveamendmentstotheCityszoningcode These amendments directly impacted the kind of land usesthat would be permittedinthevariousCityindustiialzoningdistrictsAlthoughtheBuildingOfficialarguesthatthe1971amendmentreferencedinparagraph8Faboveclearlyindicatedthe City Councils intent to prohibit the storage of liquid petroleum products the Board of Adjustment finds that nothing in the record expressly represents what the CityCouncilsintentwaswhenitadoptedthenumerousamendmentsrelatedtothe issue presented in this case 10 Notwithstanding the Building Official s contrary argument the numerous code amendments referenced herein create an ambiguity uncertainty and doubt as tothe meaning of the phrase liquefied petroleum products as used in the Cape Canaveral Code especially given that the phrase is not defined in said Code 11 As a result of this ambiguity uncertainty and doubt the Building Official looked to state law and other materials in order to assist him in defining the term liquefiedpetroleumproductsOntheotherhandCoastallookedtothelonghistoryover 20 years of the City authorizing the storage of liquid petroleum products under numerous versions of the City Code including versions which only permitted the storage of liquefied petroleum 12 Based on the competent substantial evidence presented the Board of AdjustmentfindsCoastalsargumentregardingthehistoricalapplicationoftheCityCodetobe 13 In the case of doubt as to the meaning of a statute courts may resort to contemporaneous construction interpretation of the statute in questionespeciallywhentheinterpretationhasprevailedforalongperiodoftimeSee48 Fla Jur 2d Statutes S161 In other words when interpreting ambiguousordinancesitispermissibleforthereviewingtribunalliketheBoardofAdjustmentinthiscasetotakeintoconsiderationthemannerinwhichtheordinancehasbeen interpreted by those required to administer the law and those affected by the law Page 7of9 DRAFT 08 14 2007 especially when a particular interpretation has been long continued ld see also 48 Fla Jur 2d Statutes S163 the well reasoned views of agencies implementing a statute constitute a body of experience and informed judgement to which courts and litigants may properly resort for guidance 14 I n addition contemporaneous construction ofa statute constitutes an invaluable aid in determining the meaning of a doubtful statute See M C 1R v Schleier 515 U S 323 1995 Florida Wildlife Federation v Collier County 819 So 2d 200 Fla 1st DCA 2002 a court was required to be highly deferential to a departments interpretation of a statute given that the legislature delegated to the department the power to enforce the statute Furthermore the leading treatise on municipal corporations McQui lins on Municipal Corporations cites favorably to legal authority that states that the contemporaneous construction of ordinances by officials charged with enforcing it prior to an interpretation controversy is very persuasive See 6 McQuillins Mun Corp S2045 There is no question that the practical construction of a statute by those for whom the law was enacted or by public officers whose duty it is to enforce it acquiesced in by all for a long period of time is of great importance in its interpretation in a case of serious ambiguity Citations omitted 15 When contemporaneous construction of a statute is employed to determine the meaning of statute the reviewing agency s interpretation need not be sole possible interpretation or even most desirable one but need only be Nithin range of possible interpretations Orange Park Kennel Club Inc v Florida Dept Of Business and Professional Regulation 644 So 2d 574 Fla 1st DCA 1994 16 Despite all the various code changes by the City Council in this instance there is no evidence in the record that indicates that the City Council intended to adopt the narrow definition of Liquefied petroleum being advocated by the Building Official To the contrary the application of the City Code during all the amendments evidences a different broader meaning On three separate occasions in 1973 1986 and 1991 the former building official and the Board of Adjustment who were charged with interpreting and enforcing the City Code approved the storage of petroleum products on industrial lands even though the petroleum would not fit the definition of liquefied petroleum being advocated by the Building OfficiaL Such products included what the Building Official would categorize as liquid petroleum including oil diesel fuel and gasoline Further no evidence was presented thatthe City Council disapproved of these decisions at the time In fact the prior City Council appears to have been on notice ofa prior proposal to expand Coastal s tank farm in May of 1991 prior to the Board of Adjustment granting Coastal s previous special exception request See Board of Adjustment EXHIBIT 0 submitted by Werner Grewe a citizen of Cape Canaveral Letter to Coastal from former Mayor Joy C Salamon dated May 2 1991 See also Paragraph 8 K herein Had the Page 8 of 9 DRAFT 0814 2007 Council disapproved of previous interpretations made by the Board of Adjustment and the previous building official they could have amended the City Code to define the term Liquefied Petroleum as the Building Official advocates especially after the last special exception was granted The City Council did not and we find that fact very persuasive regarding the code interpretation issue before us 17 Given the fact that the City Code did not define the phrase Liquefied Petroleum Products at the time Coastal submitted its application for special exception and at the time the Building Official rendered his interpretative decision on February 1 2007 the Board of Adjustment hereby findsthat the phrase should be construed to include the storage of liquid petroleum products in light of the City s long history of applying the phrase in this Nay 18 in accordance with the findings stated herein the Building Official s interpretation is hereby reversed and Coastal shall be eligible to proceed with processing the August 29 2006 special exception application BASED UPON THE FOREGOING FACTS AND CONCLUSIONS IT 15 HEREBY ORDERED That the Building Official s decision dated February 1 2007 which concludes that Coastals application for a special exception dated August 29 2006 is ineligible for processing is hereby reversed Coastals application may proceed through the special exception process in accordance with applicable provisions ofthe City Code DONE AND ORDERED at Cape Canaveral Florida this day of 2007 BOARD OF ADJUSTMENT OF THE CITY OF CAPE CANAVERAL FLORiDA Earl McMillin Chairperson Copies furnished to Appellant Coastal Terminals LLC Building Official Cape Canaveral City Council Cape Canaveral Case File Page 9 of 9