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HomeMy WebLinkAboutP & Z Minutes August 12, 2009PLANNING & ZONING BOARD MEETING MINUTES AUGUST 12, 2009 A Regular Meeting of the Planning & Zoning Board was held on August 12, 2009, at the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. Bea McNeely, Chairperson, called the meeting to order at 7:00 p.m. The Secretary called the roll. MEMBERS PRESENT Bea. McNeely Lamar Russell John Fredrickson Donald Dunn Harry Pearson John Johanson Ronald Friedman OTHERS PRESENT Dennis Clements Barry Brown Kate Latorre Susan Chapman Chairperson Vice Chairperson 1 st Alternate 2nd Alternate Building Department Representative Planning & Development Director Assistant City Attorney Board Secretary All persons giving testimony were sworn in by Kate Latorre, Assistant City Attorney. NEW BUSINESS Approval of Meeting Minutes: May 27, 2009. Motions by Harry Pearson, seconded by Bea McNeely, to approve the meeting minutes of May 27, 2009. Vote on the carried unanimously. 2. Recommendation to the Board of Adjustment Re: Variance Request No - 09 -03 to Allow a Six -Foot High Chain Link Fence Within 25 Feet of a Public Right -of -Way in the C-1 Zoning District (8801 Astronaut Boulevard), Section 15, Township 24 South Ranae 37 East Parcel 817.0 - David Gal. Applicant for Xtreme Fun LLC Petitioner. Barry Brown, Planning & Development Director, advised that this request was for a Variance to allow a six fit. high fence within 25 ft. of a public right-of-way. The applicant was David Gal, property owner of Traxx Family Fun Center, located at the northwest corner of`A1A and Central Blvd. The property was located in the C-1 zoning district. Th& surrounding zonings were to the north and south C-1, to the east C-2, and R-3 to the west. The surrounding uses were RaceTrac qas station to the north, Sheldon Cove professional offices to the east, Zachery's Restaurant to the south,; and Puerto del Rio condominiums to the west. Planning & Zoning Board Meeting Minutes August 12, 2009 Page 2 Mr. Brown described the property as The Traxx Family Fun Center, an amusement center that included: go-carts, miniature golf, arcade games, batting cages, and laser tag. He advised that Traxx currently had a 6 ft. high chain link fence located along the west, north, and portions of the east side of the property along A1A and the south side of the property along W. Central Blvd. A 4 ft. high, multi -colored, wood fence was currently erected along the remaining portions on the east and south sides of the property. The applicant was requesting to extend the 6 ft. high chain link fence, along the remainder of the east and south boundaries, to completely enclose and secure the property, because of theft and vandalism. Mr. Brown referred the Board members to the reports from the Brevard County Sheriff's Department contained in their Board packet. He pointed out that according to Section 110-470 (3) of the City code, the maximum height of a fence within 25 ft. of the right-of-way was 4 ft.; therefore, the applicant would need a Variance to install a 6 ft. high fence within 25 ft. of the right-of-way. He voiced his opinion that the City code was appropriate in most cases, but he could understand where this type of business had special security needs, that were not anticipated in the code. Mr. Brown advised that because of the way that the property was developed, they could not move a 6 ft high fence back 25 ft. to meet City code, so they wanted to place it on the property line. He explained that other businesses in town had equipment that might be a target for thieves, but this type of use probably had more equipment (i.e. go carts) and machines, with cash and coins, that would be targeted by thieves. Mr. Brown advised that the business was not open and did not have on-site security 24 hrs/day. He brought to the Board's attention that there was another similar type of business to this one, Funntasia Fantasy Golf, at the corner of N. Atlantic Avenue and Holman Road, which currently had a 6 ft. high chain link fence around the boundary of the property. Mr. Brown pointed out that a 6 ft. high chain security from intruders, but would also add standpoint. He believed that their were unique business that would support the Variance, there of the Variance, with the condition that when them E link fence is installed, the existing multkcolor� paralleled the new chain link fence be removed. link fence would not only add security from a child safety circumstances to this type of ore he recommended approval iew vinyl coated 6 ft. high chain �d 4 ft. high wood fence that Moshe Gal, representative for David Gal, petitioner, distributed a sketch of the property to the Board members, which highlight,eid the area where the 6 ft. high fnnro Wr%i IIrj ho Inrnfod Tho oLc�+nh We - nn+_r_N:;-to +he r..co-4 as Exhibit E3 I — vrvwru Nt evvuL�.u. I I1%i ara'✓LL,n vv CIO UI ILUIU" III LIIC IGL�VIU AJ Lhl IILA U. Planning & Zoning Board Meeting Minutes August 12, 2009 Page 3 Mr. Gal explained that there was an existing 6 ft. high chain link fence around the perimeter of the property with the exception of where the 4 ft. high wood fence was located. The property has 1,375 ft. of chain link fence, and 433 ft. of 4 ft. high wood fence. He advised that he would remove the 4 ft. wood fence when the new fence is erected. Mr. Gal testified that they were not requesting the Variance for the reason of visibility, but for security, due to vandalism and theft. He advised that over the past three years they have had 10 incidents of break-ins, with no convictions. The Sheriff's department was doing everything they could, but the property was so big and so dark at night. He advised that two months ago a go-cart was stolen and lifted over the 4 ft. high fence and that was why they were requesting a Variance to allow the 6 ft. fence link fence in order to make it harder for vandals to lift equipment off of the property. He pointed out that they could not move the fence back to 25 ft. in order to meet the City code, because along the front there was a waterfall with a pond area that abutted the property line; and on the side along Central Blvd. was a retention area, so the only place they could erect the 6 fta high chain link fence was where the existing 4 ft. wooden fence was located. He pointed out that the area requested for the Variance was only 23% of the total property frontage. The new 6 ft. high chain link fence would be vinyl coated. Harry Pearson advised that there were other security devices available. Mr. Gal advised that they were considering other security measure, such as a better surveillance system. He explained that there was not only theft, but vandalism, because it was easy for the kids to jump over the 4 ft. fence at night, a 6 ft. high chain link fence would be harder for them to jump over. Chairperson McNeely asked legal counsel if this was an appropriate request for a Variance_ Kate 1 atorre, Assistant City Attorney, answered yes, the height of a structure including a fence was appropriate for seeking a Variance. The Board members reviewed the application worksheet, in accordance with Section 110-62 (A -F) of the City code and verified that: (A) Special conditions and circumstances exist which are unique to the land, structure or building involved and is not applicable to other lands, buildings or structures in the same district. Mr. Gal testified that they have had over 10 burglaries, break-ins, and thefts over the past three years with no captures or prosecutions, even with the use of Sheriff Department K -9s. Planning & Zoning Board Meeting Minutes August 12, 2009 Page 4 Mr. Gal explained that when the perpetrators enter the building is when the alarm is tripped and the police are called. He advised that one of the go-carts was stolen from the shop and it was lifted over the 4 ft. fence. David Gal testified that they have spent thousands of dollars upgrading the cameras, but they keep getting robbed. The Sheriffs Department had suggested that they install a taller fence and upgrade the surveillance cameras. (B) The literal interpretation of the provisions of the zoning ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district and would work unnecessary and undue hardship on the applicant. Mr. Gal testified that other properties were not as appealing as his property as far as theft and vandalism; and the property is large and dark with obstacles, including the miniature golf area where it was easy to hide from law enforcement and by the time law enforcement responds, open the gates and searches the property the vandals are long gone. Mr. Gal advised that the hardship was that the use of the property was an attractive nuisance and a 6 ft. high chain link fence was needed for added security and safety, which could not be moved back 25 ft. to meet the City code, because there were unique circumstances and obstacles, such as: a water fall that was located on the property line, and a retention area that was always wet. He added that when they purchased the property they were unaware that they would have problems with break-ins. Mr. Friedman asked the petitioner if he could move the new fence a minimum of 2 1 / ft. from the existing sidewalk and on the property. Mr. Gal agreed to move the new fence back 2 1I2 ft. so it would be located on the property and not in the right-of-way. (C) Special conditions and circumstances referred to in item (A) do not result from the actions of the applicant. Mr. Gal testified that it was not the actions of the applicant that were causing the vandalism and break-ins; the security issue was a result of trespassers; and the property owners are trying to keep the property safe from intrusion. Other businesses do not need such security measures, because they do not have attractive nuisances, such as go-carts and cash machines, and if they did they could move them inside, where most of attractive nuisances at this location are located outside. He added that he needed to secure his property and a 4 ft. high fence was not sufficient. Planning & Zoning Board Meeting Minutes August 12, 2009 Page 5 (D) Granting the Variance requested will not confer on the applicant any special privileges that are denied by the ordinance to other lands, structures or building in the same district. Mr. Russell advised that it was not a special privilege to allow a property owner, with attractive nuisances, to secure his property. The property owner testified that he already installed various security devices to assist in protecting his property. The property owner was trying to install one more measure of protection and was asking for relief from the City to allow him to do that. Donald Dunn questioned the petitioner if he could install a 6 ft. fence elsewhere on the property where the attractive nuisances existed and still meet the code. Mr. Gal answered that everything was getting vandalized on the property, not just in one specific area. It was impossible to erect a fence around the miniature golf area because there were so many obstacles in that area. There were other options he was considering such as solar motion lights to light the interior of the property, but the residents behind them would not like that; using K -9s was also considered, but they can get loose and possibly hurt someone, so that was no longer an option. (E) The reasons set forth in the application justify the granting of the Variance, and the Variance, if granted, is the minimum that would make possible use of the land, building or structure. Mr. Gal testified that they were also considering upgrading the existing surveillance system, but if he couldn't eliminate people from stealing and lifting items over a 4 ft. fence, the added surveillance system would not be very helpful. He further testified that go-carts were scattered throughout the property and not confined to just one area, because he had three go-cart tracks. (F) The granting of the Variance will be in harmony with the general intent and purpose of the zoning code; will not be injurious to the neighborhood, or otherwise detrimental to the public welfare. Mr. Gal answered that the request was strictly for the purpose of security, which would not endanger the community. Mr. Dunn added that another consideration was that the property was already enclosed with a 6 ft. chain link fence, and he was requesting just for a little bit more fencing. Mr. Russell added that the expansion of the existing 6 ft. high chain link fence would add to the security to deter vandals and therefore, would save the Sheriffs department from responding to so many calls at that location. Planning & Zoning Board Meeting Minutes August 12, 2009 Page 6 Motion by Harry Pearson, seconded by John Fredrickson, to recommend approval of Variance Request No. 09-03 to the Board of Adjustment. An ensuing discussion followed. Mr. Russell identified the hardship of the request. He stated that the property owner could not effectively secure his property without the granted Variance. Mr. Johanson commented that chain link fences were ugly. He advised that the City was trying to improve its looks, and suggested that an aluminum fence be installed. Mr. Gal advised that an aluminum fence was four times more expensive than a vinyl coated chain link fence. Joyce Hamilton, citizen, advised the Chairperson that there were comments from the audience. David Schirtzinger, citizen, stated that he was in support of the 6 ft: high fence. He commented that Mr. Johanson had touched on something very important, which was the visual aspect of the type of fencing the applicant was proposing to install at one of the most visible corners of the City. Mr. Schirtzinger voiced his opinion that he had never seen a nice looking chain link fence; however the vinyl chain link would look nicer than uncoated chain link. He commented that although aluminum fencing would be more expensive for the applicant, it would be a much nicer look for the citizens of the community. especially at a time when the City was trying to clean up its look, and therefore it was not unrealistic to impose on the applicant to utilize a different type of fence other than chain link. Donald Dunn commented that the code did not mandate fence types. Mr. Johanson advised that conditions could be placed on Variances_ Ms. Latorre gave her legal opinion that it would be considered a reasonable condition of approval, and the Board was authorized to recommend reasonable terms and conditions in granting a Variance or Special Exception, that would benefit the community or mitigate any potential harm caused by the Variance. Mr. Pearson commented that it was ridiculous to impose a condition to replace the existing wood fence with another type of fence that he didn't even know what it looked like. He advised that RO°- of his property would stili have the chain. link. He voiced his opinion that it would be better to have all the fencing the same. He explained that if this was a brand new facility, that had never been built, and they were asking for this Variance, then he would agree to consider another type of fencing, but that was not the case with this request. Mr. Gal clarified that the existing fence along A1A was vinyl chain link. Mr. Russell and Mr. Dunn both advised that they did not support an aluminum fence for this application. Planning & Zoning Board Meeting Minutes August 12, 2009 Page 7 Discussion was held regarding if fences were still required to be approved by the Community Appearance Board. Mr. Brown responded that he would check on the question and report back to the Board. Kate Latorre advised that she recalled an administrative directive that the Building Department was not going to require Community Appearance Board review anymore for fences. Joyce Hamilton, citizen, advised that Mr. Gal had made tremendous upgrades to the security since he purchased the property, and she was sure that he would plant something very nice and colorful along the fence to make it conducive to looking at it from A1A. Mr. Pearson advised that he would not support the idea as a condition, because 80% of the fence already existed along A1A. He pointed out that the applicant was only asking for completing his encirclement of his property with a fence that will give him added security. Mr. Russell identified the hardship was that the property owner could not effectively secure his property without the granted Variance. The Board held discussion regarding conditions of the recommended approval. Following discussion, the Board members agreed to include two conditions. 1. The new fence shall be located a minimum of 2 1/2 ft. from the existing sidewalk and on the applicants property. 2. The existing_ wooden fence shall be removed when the new fence is installed. Mr. Russell moved to amend the motion to add the two conditions as stated. Mr. Pearson seconded the motion to the amendment. Vote on the amendment carried unanimously. Vote on the main motion as amended carried unanimously. 3. Recommendation to City Council Re: Proposed Ordinance Amending Chapter 110 - Non -Conforming Structures - Kate Latorre, Assistant City Attorney. Kate Latorre, Assistant City Attorney, advised that staff pro r"'iosed revision) to clarify the City non -conformities, in regards to what a structural alteration is and when a property owner can structurally modify a non -conforming building to preserve a longer life or to maintain it. She advised that.the ordinance provided two new definitions. One was regarding a structural alteration. Planning & Zoning Board Meeting Minutes August 12, 2009 Page 8 Ms. Latorre explained that in short, it was talking about replacement of structural or load bearing materials; as opposed to maintenance, which was just to keep something in good and sound condition without going to the actual load bearing aspect of the building. She advised that the ordinance also clarified other provisions when alterations are permitted and when they are not. Chairperson McNeely advised that the only concern she had was regarding the safety of the alteration. Ms. Latorre answered that a building permit would be required for any alteration, which would require inspections and verification that the alteration met code requirements. The code would be interpreted by the Building department, on a case by case basis, depending on what the property owner wanted to do to the structure. She added that the proposed ordinance was fashioned with her working with the Building Official. She advised that the new definition was from the Florida Building Code. Mr. Russell read the definition of an alteration. Ms. Latorre advised that the purpose and intent of the Ordinance was to eventually weed -out existing structures that are non- conforming (i.e. because they are too tall or too close to the property line, etc -)- She clarified that what ever was non -conforming they eventually wanted them to be replaced with conforming structures and uses. She explained that if the City was going to continue to allow structural alterations to be made to non- conforming structures to extend their life, it goes against the intent of this part of the code. She added that the Building Official's recommendation was to look to load bearing aspects of a structure. She explained that if the structure needed to be repaired, it had to be done in a way it would make the structure come into conformance with the requirements of the current zoning code. Discussion followed. Mr. Friedman interpreted the ordinance to prevent a property owner from making a repair to a structural component of a structure that was non -conforming. Barry Brown, Planning Director, answered that they would have to do away with the part of the structure that is non -conforming. Mr. Friedman advised that if that was so, then in some cases they would have to tear down and rebuild a whole new structure. That would be causing the property owner a lot of expense, and if he had a vote, he would vote against the ordinance. Mr. Johanson advised that he had spoken with the Building Official about the ordinance, and he was told that the ordinance only effected commercial. The Building Official explained to him that if a commercial building was non- conforming by two feet, it would need to be moved back two feet to make it conforming. For residential, there was exclusion in Section 110-200, and a special permit. Planning & Zoning Board Meeting Minutes August 12, 2009 Page 9 Dennis Clements, Building Department Plans Examiner, stated that the provision in Section 110-200 applied to both commercial and residential. He advised that there was a provision where a special permit could be applied for to possibly get some relief from the City Council. Mr. Brown advised that the City was trying to clear-up some of the contradictions in the existing code so that eventually non- conforming structures would be extinct. He explained that as the code was currently written, they could just keep repairing and repairing, so the City was never actually able to get rid of a non -conforming structure. The proposed ordinance clearly defined what a structural alteration was, compared to repair and maintenance. He commented that sometimes you have to draw the line and say o.k. the City's intent is to have these structures demolished and move on with some modern development. Discussion followed. Tom Garbowski, citizen, asked if a certificate of occupancy came into question regarding a non -conforming structure. Attorney Latorre answered that the structure complied with the applicable codes at the time when it was built; however, it would be non -conforming under today's code. She clarified that the structure would now be considered legally non -conforming. Discussion followed regarding various existing non -confirming structures within the City. Discussion was held regarding City code Sections 110-191, 110-193, 110-198, and 110-200. The Board members agreed that the Building Official, Todd Morley, should be at the meeting to explain the intent of the proposed ordinance and answer any questions the Board members may have. Motion by Mr. Pearson, seconded by Lamar Russell to postpone this agenda item until the Building Official can attend the meeting to explain the proposed ordinance.. Mr. Russell reviewed his second to the motion �otioi � for the reason of additional discussion. By unanimous consensus of the Board members the motion was withdrawn. Donald Dunn advised that he had a problem with using the word "alteration", because it implied change, because maintenance of a structure and repairing it was not a change. He voiced his opinion that a change was adding something to the structure, changing its design, or a change from what it was. Dennis Cements City Pans Revie���er, ad`v'ised that ti ie buildi ng code, by definition, Clements, would consider it either an alteration or repair. Discussion followed regarding examples of routine repair and maintenance; and alterations. Harry Pearson advised of a minor correction in paragraph 6 of the draft ordinance. Discussion continued. Planning & Zoning Board Meeting Minutes August 12, 2009 Page 10 Harry Pearson moved to table the agenda item for a recommendation to City Council to amend Chapter 110. Lamar Russell seconded the motion. Vote on the motion carried unanimously. DISCUSSION 1. Senate Bill 360 - Transportation Concurrency Exception Areas - Barry Brown. Planning & Development Director. Barry Brown, Planning & Development Director, explained that Senate Bill 360 was signed in law on June 1, 2009; in short, SB 360 removes state mandated transportation concurrency requirements in target areas designated as Transportation Concurrency Exception Areas (TCEAs). The TCEA provisions of SB 360 became effective on July 8, 2009. Under SB 360, a City with an average of 1,000 people, per square mile, and a minimum population of 5,000 is considered a Dense Urban Land Area; a city that meets the criteria of a Dense Urban Land Area is also a Transportation Concurrency Exception Area (TCEA). Designation as a TCEA gives local governments two options: A local government may continue to apply the Transportation Concurrency provisions of its existing Comprehensive Plan and Land Development Regulations in TCEAs if it desires to do so; or it may opt to no longer comply with state -mandated transportation requirements in TCEAs. If a local government wishes to eliminate state - mandated Transportation Concurrency requirements in TCEAs, the local government must amend its Comprehensive Plan and Land Development Regulations to delete such requirements. Until the local government nmPnric 9tq Comprehensive Plan and Land Development Regulations, existing Transportation Concurrency requirements continue to apply in TCEAs. After a TCEA becomes effective, the Department of Community Affairs no longer has the authority to review Comprehensive Plan amendments for compliance with state mandated Transportation Concurrency requirements. Also, within two years after a TCEA becomes effective, the local government must amend its Comprehensive Plan to include "land use and transportation strategies to support and fund mobility within the exception area, including alternative mode of transportation. Mr. Brown advised that there is a great deal of confusion throughout the State surrounding the interpretation of SB 360,. This was due lar eh/ to the ambiguity of the laan0.4ual e contained in 1 bill. The confusion vVcls g 7 y Y y g the 11 . evidenced by the various interpretation of the bili being offered, not only by local governments, private interests, and environmental groups, but also by the Secretary of the Department of Community Affairs, Tom Pelham, and the bill's sponsor, Senator Mike Bennett. He stated that a lawsuit has been filed by eight local governments challenging the constitutionality of SB 360. According to the Orange County Attorney, the lawsuit raises some viable points and has at least an even chance of succeeding. Planning & Zoning Board Meeting Minutes August 12, 2009 Page 11 Mr. Brown advised that if the lawsuit is successful, it is likely that the Court would declare that the enactment of SB 360 violated the Florida Constitution, and enjoin the enforcement of the bill. Regardless of the outcome of the lawsuit, the Legislature may come back in their next regular session or a special session and attempt to remedy the problems outlined in the lawsuit. Mr. Brown advised that he has asked the City's Transportation Planner, Joe Roviaro of Luke Transportation, to think about the options in the bill and the ramifications to the City. Some factors to consider included that Cape Canaveral is a barrier island City that is 93% built out; the City is projected to have capacity on its roadways through 2020, with little opportunity to increase capacity on Al A; and the greatest impact to the City's roadways is from surrounding communities, including Port Canaveral. He advised that in addition, a mobility fee may replace the current Transportation Concurrency System. The Legislature finds that Transportation Concurrency has not adequately addressed the State transportation needs and has determined that the State should consider implementation of a Mobility Fee. SB 360 directs DCA and FDOT to submit to the Legislature, by December 1, 2009, a report on their Mobility Study, recommended legislation, and a plan of implementation. The Legislature could enact a Mobility Fee System to replace Transportation Concurrency in the 2010 Session. He concluded that at this time, we do not have enough information to make a decision; we don't understand what mobility planning will entail and we don't know the result of the lawsuit. Mr. Brown recommended that the City keep its current Transportation Concurrency requirements as it follows the evolution of the bill, its interpretation, and lawsuit. He advised that -qtaff wni drl ktapn t.na,nnil apprised of the situation as it unfolded. There being no further business the meeting was adjourned at 9:12 p.m. Bea Mcg hairp : on Susan L. Chapman; Secretary