HomeMy WebLinkAboutRE Oak Lane and Variance Request No 2016-02 Public Records Request under Ch 119Good Morning Anthony,
Thank you for taking the time to speak to me on Friday. I also very much appreciate that you cancelled the October 24 hearing with the Special Hearing Officer.
I want to correct a statement in your email below, however. While I certainly requested that the Oct. 24 hearing be cancelled, my request regarding a new hearing, as expressly stated
in my prior emails, is that the City should reschedule the original hearing before the Board of Adjustment (it should not reschedule the "appeal" with the special hearing officer).
The special hearing officer could attend the rescheduled BOA hearing in order to provide the City Council with an independent view.
The proper procedure is to vacate the first hearing (Aug. 23) and reschedule a new Board of Adjustment Hearing. As I am sure you are aware, this is what courts require under due process
in this instance, given that the Applicant did not provide notice of that August 23 hearing to my LLC, me, or the other owners of the houses he built on Oak Lane (those most directly
impacted). Such notice is was required by the City Code Due Process section and Variance Application section (and Constitutional Due Process and State law). While I understand your
explanation for a reason for lack of notice, that doesn't cure the due process errors, particularly when Applicant had actual knowledge of my and my neighbors contact information.
Rescheduling the BOA meeting would allow me and others who may want to participate to have a full opportunity before the Board of Adjustment, utilizing all the procedures outlined for
such a hearing in the Code. As you acknowledged on the phone with me, there are no procedures in the Code for an "appeal" before a special hearing officer. Any "appeal" from the BOA
decision would then be heard by the City Council utilizing the quasi-judicial procedures as required by law.
Again, this should not result in any delay, because if the City Council has the authority to obtain an independent view from a "hearing officer" before making its decision (after a full
quasi-judicial hearing of its own), that hearing officer could attend the same BOA hearing on this matter and review the same evidence he otherwise would have reviewed. Moreover, unless
the process is started from the beginning and according to City Code, the objections to the process will likely continue and both the Applicant and the City will likely be required
to start over 3 months from now, which would really cause a delay.
Thank you for your consideration of this request. Also, thank you for sending me the surveys of 123 and 127 Oak Lane. I will review these documents and look forward to receiving the
responses to my remaining Public Records Requests. I would be happy to discuss prioritizing the requests or offer key words for searches if records are kept electronically.
Kind Regards,
Terri L. Bowman
Cypress Shareholders, LLC
202-276-2700
--------------------------------------------
On Fri, 10/21/16, Anthony A. Garganese <agarganese@orlandolaw.net> wrote:
Subject: RE: Oak Lane and Variance Request No. 2016-02; Public Records Request under Ch. 119
To: "Terri" <terrilynbowman@yahoo.com>
Cc: "d.greene@cityofcapecanaveral.org" <d.greene@cityofcapecanaveral.org>, "m.goforth@cityofcapecanaveral.org" <m.goforth@cityofcapecanaveral.org>, "d.lefever@cityofcapecanaveral.org"
<d.lefever@cityofcapecanaveral.org>
Date: Friday, October 21, 2016, 5:46 PM
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#yiv6395755436 Terri, It was nice talking to you this
afternoon and I hope I was able to clarify a few points for
you. As we discussed, apparently the
City received outdated address information from Brevard
County that did not include the 5/17/2016 recent purchase of
your property. That explains why your LLC did not receive
actual mailed notice. It is my understanding from
talking to you that you are seeking additional time to
prepare for the hearing before the advisory hearing
officer. Under the circumstances, the City Manager
understands that your property is located adjacent to the
subject variance property, although on the opposite side
of the subject variance request. As such, he has agreed to
your request to postpone the hearing on Monday, October 24,
2016 to afford you the additional time that you seek so that
you can determine for yourself whether this variance request
may impact your property. Attached is a Notice of
Cancellation which is in the process of being distributed by
the City. In addition, for your convenience,
I have attached the three (3) surveys that we discussed
for your consideration. The surveys are numbered in the
right hand corner 1 through 3. The first is the original
Walker Survey (dated 10-21-15) relied upon by the City to
issue the building permit for the construction of the new
single family home at 127 Oak Lane. The second survey is
the Riehl Reliable Survey (dated 1/15/16) that was
subsequently presented to the City by the owner of 123 Oak
Lane (Turner) contesting the accuracy of a portion of the
Walker Survey. Specifically, Riehl Reliable Survey depicts
and calls out a slightly angled common boundary line between
127 Oak Lane and 123 Oak Lane. This survey was apparently
presented to Walker Surveying and they apparently concurred
with the Riehl Reliable Survey because they withdrew the
10-21-15 survey and resubmitted a revised survey for 127 Oak
Lane using the common boundary line surveyed and depicted in
the Riehl Reliable Survey. The Third, revised Walker
Survey (dated 8-11-16) is the current survey being relied
upon by the City. As I understand it, because the
eastern boundary of the property located at 127 Oak Lane was
redrawn further west on an angle, the house under
construction was no longer in compliance with the 8 foot
zoning minimum side setback requirement. Therefore,
Sheropa LLC decided to seek a 4 foot side setback variance
on the east side of the house near the common boundary
between 127 Oak Lane and 123 Oak Lane. No other variance
is being requested by Sheropa LLC for 127 Oak Lane.
As we further discussed, you will
note that the two Walker Surveys depict and describe the
same western boundary, which is the common boundary with
your property. Further, the side setback of the proposed
single family house near your common property line appears
to be noted as 11.5 feet. In addition, you will note that
all three surveys, the two by Walker and the one by Riehl
Reliable, depict and describe the same southern right-of-way
boundary line for Oak Lane (S 89 38’ 33” E).
Lastly, unrelated to the variance
request, I mentioned to you that the City is in the process
of having preliminary design plans prepared for possibly
paving the existing Oak Lane ROW and improving drainage.
However, the preliminary plans have not been finalize and
formally presented to the City Council for review and
consideration at one or more public meetings. At this
time, no decision has been made by the City to pursue and
construct the Oak Lane project. Although I understand that
these preliminary plans are incomplete and a
“work-in-progress,” I believe the City has made these
preliminary, incomplete plans available for inspection on
the City’s website. You can inspect them on the website
or at City Hall. Please contact me if you have any
questions regarding this matter. Regards, Anthony Anthony A Garganese,
EsquireBoard Certified City, County &
Local Government LawGarganese, Weiss &
D’Agresta, P.A.
111 N. Orange Avenue, Suite 2000
Orlando, Florida 32801
P.O.
Box 2873 (32802-2873)
Phone (407) 425-9566
Fax (407) 425-9596
Cocoa (866) 425-9566
Website:
www.orlandolaw.net
Email: agarganese@orlandolaw.net Any incoming e-mail reply to this
communication will be electronically filtered for
"spam" and/or "viruses." That filtering
process may result in such reply being quarantined (i.e.,
potentially not received at our site at all) and/or delayed
in reaching us. For that reason, we may not receive your
reply and/or we may not receive it in a timely manner.
Accordingly, you should consider sending communications to
us which are particularly important or time-sensitive by
means other than e-mail. Confidentiality Note: This e-mail,
and any attachment to it, contains privileged and
confidential information intended only for the use of the
individual(s) or entity named on the e-mail. If the reader
of this e-mail is not the intended recipient, or the
employee or agent responsible for delivering it to the
intended recipient, you are hereby notified that reading it
is strictly prohibited. If you have received this e-mail in
error, please immediately return it to the sender and delete
it from your system. Thank you. From: Terri
[mailto:terrilynbowman@yahoo.com]
Sent: Friday, October 21, 2016 12:48
PM
To: Anthony A. Garganese
Cc: d.greene@cityofcapecanaveral.org;
m.goforth@cityofcapecanaveral.org;
d.lefever@cityofcapecanaveral.org
Subject: Re: Oak Lane and Variance
Request No. 2016-02; Public Records Request under Ch.
119
Anthony, Thank you for your below
response. I don't follow how this hearing is appropriate
under the Code provisions you cite and given the lack of
notice to me or, as is now apparent, any of the homeowners
on Oak Lane other than the applicant of the August hearing.
That is a violation of Constitutional due process, Florida
law, your code, and your practice and procedures. In this
instance generalized notice is not sufficient.
I repeat
my objection to the October 24 Hearing and repeat my request
for a new hearing on the variance request to be scheduled in
accordance with the Code. It is inaccurate and improper
for the City to assume that the variance request does not
impact my property rights. The issue underlying the variance
request seems to involve a dispute regarding property lines.
I own an adjacent parcel to the offending parcel -- the
issues involved in this hearing are highly relevant to my
property rights. I should have been provided the
opportunity to participate in the August variance hearing to
determine the extent of any issue. This request to re-schedule
the original hearing is particularly important because the
City has not responded substantively to my Records Requests.
I asked for expedited response given the very short notice
I received of the "appeal" hearing (having had no
notice of the underlying hearing). The failure to respond to
my requests has simply perpetuated the problem created by
lack of notice. The City should do the right thing here
and reschedule this hearing and give proper
notice.
I have
received no direct communication regarding responses to my
requests, submitted more than a week ago. I reviewed the
website - when it is functioning - and while I see a lot of
email correspondence with Mr Lennon and miscellaneous items,
I do not see the responses to my requests. If they are
posted, please indicate with specificity by file and
subtitle where I may find the responses to my specific
requests.
Also,
please indicate to whom I may send my statement and
objection for submission into the public record for the
October 24 hearing if it proceeds. Thank you. Respectfully, Terri BowmanCypress Shareholders
LLC202-276-2700
Sent from my
iPhone
On Oct 14,
2016, at 6:52 PM, Anthony A. Garganese <agarganese@orlandolaw.net>
wrote:Ms. Bowman,
The undersigned is the City
Attorney. It is my understanding that the City Clerk has
been in contact with you regarding your public records
request and the City will be handling that request in
accordance with its records policy.
I noticed that several requests in your letter
(the first sequence, numbered 1 through 5) are not really a
public records but a request for background information that
may or may not be contained in a record. As a courtesy to
you, I would like to provide that background information to
you.
1. The appeal to the
City Council regarding the Board of Adjustment's
decision on the variance application is provided under
Sections 110-27 and 110-33, City Code.
2. The advisory hearing officer was
authorized by the City Council at the City Council's
September 6, 2016 meeting in accordance with the City
Council's general and home rule powers.
3. The hearing officer's
name is attorney Drew Smith.
4. The general standard of review and
procedures for the hearing are set forth in Chapter 110,
Article II, of the City Code. Variances in particular are
also governed by Sections 110-36 and 37. Such proceedings
are also governed by applicable case law.
5. The hearing for the
advisory hearing officer is scheduled for Monday, October
24, 2016 at 4:30 p.m. at the City of Cape Canaveral Public
Library, 201 Polk Avenue, Cape Canaveral, Florida. The
hearing officer will deliver a written recommendation to the
City Council for its final decision at its December 20, 2016
regular meeting to be held at 6:00 p.m. in the Cape
Canaveral Public Library, 201 Polk Avenue, Cape Canaveral,
FL.
Have a good weekend.
Anthony A
Garganese, Esquire
Board Certified City,
County & Local Government Law
Garganese,
Weiss & D’Agresta, P.A.
111 N. Orange
Avenue, Suite 2000
Orlando, Florida
32801
P.O. Box 2873 (32802-2873)
Phone (407) 425-9566
Fax (407)
425-9596
Cocoa (866) 425-9566
Website: www.orlandolaw.net
Email: agarganese@orlandolaw.net
Any incoming
e-mail reply to this communication will be electronically
filtered for "spam" and/or "viruses."
That filtering process may result in such reply being
quarantined (i.e., potentially not received at our site at
all) and/or delayed in reaching us. For that reason, we may
not receive your reply and/or we may not receive it in a
timely manner. Accordingly, you should consider sending
communications to us which are particularly important or
time-sensitive by means other than e-mail.
Confidentiality Note: This e-mail, and any
attachment to it, contains privileged and confidential
information intended only for the use of the individual(s)
or entity named on the e-mail. If the reader of this e-mail
is not the intended recipient, or the employee or agent
responsible for delivering it to the intended recipient, you
are hereby notified that reading it is strictly prohibited.
If you have received this e-mail in error, please
immediately return it to the sender and delete it from your
system. Thank you.
-----Original Message-----
From: terrilynbowman@yahoo.com
[mailto:terrilynbowman@yahoo.com]
Sent: Thursday, October 13, 2016 7:10 AM
To: Anthony A. Garganese; d.greene@cityofcapecanaveral.org;
m.goforth@cityofcapecanaveral.org;
d.lefever@cityofcapecanaveral.org
Cc: terrilynbowman@yahoo.com
Subject: Oak Lane and Variance Request No.
2016-02; Public Records Request under Ch. 119
SUBJECT: Oak Lane and
Variance Request No. 2016-02; Public Records Request under
Ch. 119
Dear Mr. Garganese,
Mr. Greene, Ms Goforth, and Mr. lefever:
I write in my individual
capacity and as the owner of Cypress Shareholders, LLC,
which is the owner of 131 Oak Lane, Cape Canaveral FL
32920.
Please see the
attached letter.
I can be
reached by phone at 202-276-2700 or by email at terrilynbowman@yahoo.com.
I would be happy to discuss any of these requests.
Thank you,
Terri L. Bowman
Individually
and as
Member/Manager of Cypress
Shareholders LLC terrilynbowman@yahoo.com
202-276-2700
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 writingri BowmanCypress Shareholders
LLC202-276-2700
Sent from my
iPhone
On Oct 14,
2016, at 6:52 PM, Anthony A. Garganese <agarganese@orlandolaw.net>
wrote:Ms. Bowman,
The undersigned is the City
Attorney. It is my understanding that the City Clerk has
been in contact with you regarding your public records
request and the City will be handling that request in
accordance with its records policy.
I noticed that several requests in your letter
(the first sequence, numbered 1 through 5) are not really a
public records but a request for background information that
may or may not be contained in a record. As a courtesy to
you, I would like to provide that background information to
you.
1. The appeal to the
City Council regarding the Board of Adjustment's
decision on the variance application is provided under
Sections 110-27 and 110-33, City Code.
2. The advisory hearing officer was
authorized by the City Council at the City Council's
September 6, 2016 meeting in accordance with the City
Council's general and home rule powers.
3. The hearing officer's
name is attorney Drew Smith.
4. The general standard of review and
procedures for the hearing are set forth in Chapter 110,
Article II, of the City Code. Variances in particular are
also governed by Sections 110-36 and 37. Such proceedings
are also governed by applicable case law.
5. The hearing for the
advisory hearing officer is scheduled for Monday, October
24, 2016 at 4:30 p.m. at the City of Cape Canaveral Public
Library, 201 Polk Avenue, Cape Canaveral, Florida. The
hearing officer will deliver a written recommendation to the
City Council for its final decision at its December 20, 2016
regular meeting to be held at 6:00 p.m. in the Cape
Canaveral Public Library, 201 Polk Avenue, Cape Canaveral,
FL.
Have a good weekend.
Anthony A
Garganese, Esquire
Board Certified City,
County & Local Government Law
Garganese,
Weiss & D’Agresta, P.A.
111 N. Orange
Avenue, Suite 2000
Orlando, Florida
32801
P.O. Box 2873 (32802-2873)
Phone (407) 425-9566
Fax (407)
425-9596
Cocoa (866) 425-9566
Website: www.orlandolaw.net
Email: agarganese@orlandolaw.net
Any incoming
e-mail reply to this communication will be electronically
filtered for "spam" and/or "viruses."
That filtering process may result in such reply being
quarantined (i.e., potentially not received at our site at
all) and/or delayed in reaching us. For that reason, we may
not receive your reply and/or we may not receive it in a
timely manner. Accordingly, you should consider sending
communications to us which are particularly important or
time-sensitive by means other than e-mail.
Confidentiality Note: This e-mail, and any
attachment to it, contains privileged and confidential
information intended only for the use of the individual(s)
or entity named on the e-mail. If the reader of this e-mail
is not the intended recipient, or the employee or agent
responsible for delivering it to the intended recipient, you
are hereby notified that reading it is strictly prohibited.
If you have received this e-mail in error, please
immediately return it to the sender and delete it from your
system. Thank you.
-----Original Message-----
From: terrilynbowman@yahoo.com
[mailto:terrilynbowman@yahoo.com]
Sent: Thursday, October 13, 2016 7:10 AM
To: Anthony A. Garganese; d.greene@cityofcapecanaveral.org;
m.goforth@cityofcapecanaveral.org;
d.lefever@cityofcapecanaveral.org
Cc: terrilynbowman@yahoo.com
Subject: Oak Lane and Variance Request No.
2016-02; Public Records Request under Ch. 119
SUBJECT: Oak Lane and
Variance Request No. 2016-02; Public Records Request under
Ch. 119
Dear Mr. Garganese,
Mr. Greene, Ms Goforth, and Mr. lefever:
I write in my individual
capacity and as the owner of Cypress Shareholders, LLC,
which is the owner of 131 Oak Lane, Cape Canaveral FL
32920.
Please see the
attached letter.
I can be
reached by phone at 202-276-2700 or by email at terrilynbowman@yahoo.com.
I would be happy to discuss any of these requests.
Thank you,
Terri L. Bowman
Individually
and as
Member/Manager of Cypress
Shareholders LLC terrilynbowman@yahoo.com
202-276-2700
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