HomeMy WebLinkAboutBL to BH ltr rec 1-30-171/28/2017
To: Mia Goforth, City of Cape Canaveral City Clerk
105 Polk Ave o\~ ~~aw~ n
JAN 3 0 2017 ~ m.goforth@cityofcapecanaveral.org
Cape Canaveral, FL 32920
(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.
'~ 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 Auqust15, 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 Hoag 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
The following was sent 1/27/2017 4 :51pm
To : Bernard Lennon , Council members , Anthony Garganese and Mia Goforth
From : Dav id Dickey
Ex Porte 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 {yourl 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, 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, Ill -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, substantia l 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 wou l d 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, storm water 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 assert s that the City will be taking/giving his property to Sheropa,
LLC upon approval of the variance an d that t he City is suggesting that the right-of-way
markers/p i ns be relocated to match th e fla w e d 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 i n 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, th us changing my property lines, in effect stealing my
property without notice or a heari ng ." 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.
Xe: Honorable Mayor and City Council
Anthony Garganese, City Attorney
Jim Beadle, Esq.
David Greene, City Manager
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