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HomeMy WebLinkAbout03-09-2005 Agenda PacketCity of Cape Canaveral PLANNING & ZONING BOARD REGULAR MEETING CITY HALL ANNEX 111 POLK AVENUE MARCH 9, 2005 7:30 P.M. Call to Order Roll Call NEW BUSINESS: 1. Motion Re: Approval of Meeting Minutes for February 23, 2005. (Workshop Meeting and Regular Meeting) 2. Discussion Re: Requirements for Street Lighting - City Planner. 3. Discussion Re: Submittal Requirements for Special Exceptions and Variances - City Planner. 4. Review and Recommendation to City Council Re: Proposed Ordinance to Change Site Plan Approval Procedures - City Attomey. 5. Discussion Re: Oak Park Condominiums - City Attorney. Pursuant to Section 286.1015, F.S., the City hereby advises the public that if a person decides to appeal any decision made by the Planning and Zoning Board with respect to any matter rendered 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 aMoWed by law. This meeting may include the attendance of one or more members of the Cape Canaveral City Council, Board of Adjustment, Code Enforcement and/or Community Appearance Board who may or may not participate in Board discussions held at this public meeting. Persons with disabilities needing assistance to participate in any of these proceedings should contact the City Clerk's office at 868-1221, 48 hours in advance of the meeting. 105 Polk Avenue • Post Office Box 326 • Cape Canaveral, FL 32920-0326 Telephone: (321) 868-1222 • SUNCOM: 982-1222 • FAX: (321) 868-1247 www myflorida.com/cape • email: c apoamaveral@c8.s oom PLANNING & ZONING BOARD WORKSHOP MEETING WITH CITY COUNCIL MEETING MINUTES FEBRUARY 23, 2005 A Workshop Meeting of the Planning & Zoning Board was held on February 23, 2005, at the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. Board Chairperson Bea McNeely called the meeting to order at 6:00 p.m. The Secretary called the roll. MEMBERS PRESENT Bea McNeely Leo Nicholas Lamar Russell John Fredrickson Alice Filteau Donald Dunn Chairperson Vice Chairperson 1st Alternate 2nd Alternate MEMBERS ABSENT Walter Schoenfeld (Excused) CITY COUNCIL MEMBERS PRESENT Rocky Randels Mayor Robert Hoog Vice Mayor James Morgan Buzz Petsos CITY COUNCIL MEMBERS ABSENT Steve Miller OTHERS PRESENT Susan Chapman Todd Peetz Anthony Garganese Todd Morley DISCUSSION: Board Secretary City Planner City Attorney Building Official 1. City Code Review - Chapter 102 - Landclearinq. City Manager, Bennett Boucher explained that City Attorney, Anthony Garganese started a working draft based on a prior City Council workshop and meeting with City staff. Mr. Boucher gave a brief overview of the Board packet information and advised that City Council adopted an ordinance placing a moratorium for land clearing permits for 60 days. Mayor Randels advised that this came about as a result of developers removing vegetation at new project sites. He explained that the code is outdated and should be updated to preserve existing vegetation. City Attorney Garganese explained that he provided an incomplete draft, amending Chapter 102, to encourage protection and preservation of the maximum number of viable trees, enhance vegetation, and create green area. Planning & Zoning Board Workshop Meeting with City Council February 23, 2005 Page 2 Lamar Russell commented drainage facilities can result in the removal of a lot of trees. The Board members discussed the Ocean Woods development as an example for saving trees. Discussion followed regarding retention ponds, water retention, percolation, stormwater, common retention areas with adjoining properties, creating incentives for saving trees, requiring a tree survey with an overlay of what trees are existing and what improvements are proposed, reducing densities and increasing height. The Board members and City Council reviewed and discussed the proposed updated definitions, enforcement and penalties, mitigation, permits and application requirements, and permitting exceptions for emergency removal from permitting requirements. Followed were comments from the public followed. The Board members and City Council reviewed the ordinance draft through page 8. The next workshop meeting was scheduled for 5:00 p.m. next Tuesday, March 1, 2005, before the regular City Council meeting. The workshop meeting was adjourned at 7:55 p.m. Bea McNeely, Chairperson Susan L. Chapman, Board Secretary PLANNING & ZONING BOARD MEETING MINUTES FEBRUARY 23, 2005 A Regular Meeting of the Planning & Zoning Board was held on February 23, 2005, at the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. Board Chairperson Bea McNeely called the meeting to order at 8:00 p.m. The Secretary called the roll. MEMBERS PRESENT Bea McNeely Leo Nicholas Lamar Russell John Fredrickson Alice Filteau Donald Dunn MEMBERS ABSENT Walter Schoenfeld OTHERS PRESENT Susan Chapman Todd Peetz Anthony Garganese Robert Hoog Todd Morley Chairperson Vice Chairperson 1st Alternate 2nd Alternate (Excused) Board Secretary City Planner City Attorney Mayor Pro-Tem Building Official All persons giving testimony were sworn in by City Attorney Garganese. NEW BUSINESS: 1. Approval of Meeting Minutes: February 9, 2005. Motion by Chairperson McNeely, seconded by Lamar Russell to approve the meeting minutes of February 9, 2005. Vote on the motion carried unanimously. 2. Recommendation Re: Special Exception Request No. 04-04 to Allow Outside Storage of Recreational Vehicles, Trailers, and Trailerable Items in the C-2 Zoning District, (192 Center Street) - Ron Abeles, Petitioner. Todd Peetz, City Planner, advised that the request was tabled at the previous two meetings for additional information. He reviewed the submitted exhibit and noted that the number of proposed parking spaces exceeded code requirements. Ron Abeles, Petitioner, testified that he was petitioning to be allowed to have outside storage of trailers and Trailerable items. He verified that he provided the additional exhibit as requested by the Board at the last meeting. The Board members reviewed and discussed the exhibit. Mr. Abeles verified that he was the property owner of the entire area shown on the survey. Planning & Zoning Board Meeting Minutes February 23, 2005 Page 2 The Board members reviewed the special exception worksheet. Mr. Abeles verified that all code requirements would be met with this request. He promised that it would not become a junk yard. He agreed to install a tow away sign for inoperable and untagged vehicles. Referring to the exhibit map, he testified that he would limit parking to 55 spaces, storage will only be located within the yellow highlighted area, and ingress and egress will be limited as depicted on the survey in the orange highlighted area. The Board reviewed each item of the application worksheet. Burt Bruns, citizen, cautioned the Board on granting the request for the special exception to run with property because Mr. Abeles may sell the property in the future. City Attorney Garganese responded that the special exception for outside storage will be limited to the items specified on the application. Todd Morley, Building Official advised that any violation to the granted special exception would be turned over to code enforcement. Motion by Mr. Fredrickson, seconded by Mr. Nicholas to recommend approval of Special Exception Request No. 04-04 with the condition that parking be limited to 55 spaces. Vote on the motion carried unanimously. 3. Recommendation Re: Special Exception Request No. 05-01 to Allow Residential Use in the C-1 Zoning District, Section 23, Township 24 South, Ranqe 37 East, Block 1, Lots 1, 2 & 3, Avon by the Sea - Nancy Murray, Petitioner. Todd Peetz, City Planner, gave a staff report of the request and advised that the property was located on the corner of N. Atlantic and Washington Avenues. Ron Wallen, Representative for the Petitioner, testified that they intended to construct four townhouse units. He further testified that the auto shop, which exists to the South of subject property, constructed a concrete wall which abuts this property and therefore, there could never be an alley; the Tots are only 100 ft. in depth; the warranty deed (Exhibit A) is a legal description of the entire property. Todd Peetz advised that the property to the East is vacant and it would be up to the Board if they wanted to add buffering around the property boundaries although, it is not required by code. The Board reviewed Section 110-566 regarding buffering requirements. Discussion followed. Mr. Wallen advised that he planned to provide a landscaping buffer around the entire property. He noted that 50 ft. of Lot 1 will be a retention area for the entire property and would need to be maintained by the property owner of Lot 1. James Hale, citizen, asked if the existing Oaks trees and one Bottle Brush tree will remain. Mr. Wallen responded that as long as the trees are not within the driveway area the trees would remain. City Attorney Garganese responded that they would need to abide by the requirements of the code in place at the time the site plan is approved. Judy Hale, citizen, commented that she would hate to see the trees removed that are within the City right-of-way. Planning & Zoning Board Meeting Minutes February 23, 2005 Page 3 Motion by Mr. Nicholas, seconded by Mr. Fredrickson to recommend approval of Special Exception Request No. 05-01. Vote on the motion carried unanimously. 4. Motion Re: Revised Site Plan for Portside Villas - Allen Engineering, Applicant. John Wilt, Representative for Allen Engineering, submitted a revised sketch of the submitted revised site plan showing additional changes to the guardhouse at the project entrance. He advised that the guardhouse would be removed due to setback requirements but would like the entrance gate to remain. He advised that the other revision was to increase the size of the swimming pool and cabana, which was shown on sheet 1 of the revised site plan. The Board members reviewed and held discussion regarding the site plan. Motion by Mr. Russell, seconded by Mr. Nicholas to approve the revised site plan for Portside Villas for the pool change and cabana area only. Vote on the motion carried unanimously. 5. Recommendation to City Council Re: Revised Site Plan for Madison Cav aka Shores of Artesia, Phase II - Roger Smith, Applicant. Todd Peetz, City Planner, advised that this request was a change to the vested site plan to remove the swimming pool for additional parking. He noted that leaving the existing garage structure would require a Variance because it does not meet the minimum setback requirement. Mr. Smith, applicant, advised that he did not care if the garage structure needed to be removed. He advised that he needed approval to remove the pool to provide additional parking. Todd Peetz, City Planner, advised that current ordinance requires three parking spaces per townhouse unit, but due to the fact that the vested site plan was initially approved in 1984, it required only two parking spaces per townhouse unit. Further, he advised that if the swimming pool and garage were removed from the site, the project could gain a total of 19 parking spaces, having the effect of voluntarily complying with today's ordinance. Mr. Smith confirmed that he was the property owner. City Attorney Garganese commented that any changes to the vested site plan would need to meet current code requirements. He advised that the garage structure needed to be removed as part of the vested site plan agreement. Motion by Mr. Russell, seconded by Mr. Nicholas to recommend approval to remove the garage structure and remove the pool to provide the additional parking spaces. Vote on the motion carried unanimously. Planning & Zoning Board Meeting Minutes February 23, 2005 Page 4 6. Recommendation to City Council Re: Draft Ordinance to Amend the Special Exception Requirements for Minimum Lot Sizes and Distances for Vehicle Rentals and Sales - Anthony Garqanese, City Attorney. City Attorney Garganese gave the Board an overview of the proposed ordinance. Discussion followed. Motion by Chairperson McNeely, seconded by Mr. Russell to recommend approval. Vote on the motion carried unanimously. There being no further business for the Board to consider the meeting was adjourned at 10:18 p.m. Bea McNeely, Chairperson Susan L. Chapman, Board Secretary Memorandum To: Planning and Zoning Board From: Todd Peetz, City Planner Date: March 2, 2005 Re: Agenda Overview for the March 9th P&Z Meeting The following is an overview for the March 9th meeting. 1) The building official would like the P&Z board to discuss adding a street lighting ordinance to the code. Attached are sample sections of a few other codes. 2) The building official would like the P&Z board to discuss adding additional application requirements for special exceptions. Attached are the current application requirements. The idea is to ensure that both the P&Z board and Board of Adjustment have the information they need to make a decision. Of note that building elevations a requested with residential special exceptions in commercial even though this requirement is not in the code. Also sketch or concept drawing requirements should be provided for certain types of special exceptions. 3) Review proposed ordinance changing the approval procedures for site plans. 4) The City attorney provided an opinion of the testimony provided during the site plan review of Oak Park. It was asked that this be discussed at the meeting. 5) The P&Z Board and City Council may continue their review of the proposed tree protection and land clearing ordinance pending additional information to be provided by the City Attorney. If you have any questions, or need further information please feel free to contact me at 407-629-8880. Winter Park Sec. 58-387. Utility and required street improvements. (h) The subdivider shall furnish street lights in each new subdivision; these lights to be of the mercury vapor type with a minimum of 4,000 lumens. All lights shall be mounted on pre -stressed concrete, poles, or aluminum, stainless steel or other metal poles. Such poles and the lights attached thereto shall be furnished and installed by the subdivider at this expense. After such installation, the city will assume all payments for electrical power for the operation of such. Construction details, spacing and location shall be approved by the city engineer. The city will consider more efficient type light sources provided they give the same amount of light. Cocoa Beach ARTICLE I. Sl'1h PLAN Section 5-01. General. In order to secure a final development order or building permit, a site plan shall be submitted with every application for a change of use, modification to an approved site plan or a request for building permit for any building or use that is required to provide off-street parking except a single-family home or duplex on a single parcel. The plan shall be drawn to a scale of not less than one (1) inch to twenty (20) feet, and shall accurately depict and designate the required design standards of this chapter. The site plan shall include location of structure in relation to property and lot lines, setbacks and easements, off-street parking and loading spaces, service areas, walls, fences, public streets, driveways, open spaces and sidewalks, utilities, showing the same underground where required, drainage, and the location and type of signs, pole lights and site lighting. In addition, lot areas, percentage of building ground coverage, floor elevations and square footage in each structure shall be included as data on such plans. The location, screening and control of noise -producing devices, and information concerning abutting land areas, such as land use, zoning, existing structures and existing streets shall also be included. (Ord. No. 1349, § 2, 2-20-2003) Melbourne Sec. 29-6. Required improvements. (8) Utilities. c. Luminaries. Luminaries including street lights shall be installed within the street rights -of -way and shall conform to the latest FDOT or Florida Power and Light design standards in effect at the time of construction plan approval for residential development or commercial development, depending on the type of subdivision. All street light utility systems shall be provided with minimum separation and shall be designed to reduce glare on non-public property. Street light locations shall be approved by the city engineer. r\geY1-em Luminaries shall be provided throughout the subdivision upon issuance of a building permit for construction of fifty 50 ter cent of the units in the development. For the purposes of public safety street lights may be installed in strategic areas in the subdivision prior to construction of fifty (50) per cent of the units of the development. Port Orange Chapter 5 SUBDIVISIONS Section 5: Utility improvements. (a) Water and sewer. Utility improvements shall be constructed as outlined in chapter 11 of this code, including potable water, sanitary sewer, and reclaimed water systems. (b) Electric. The developer shall be responsible for installation of electric utility lines, with all lines to be constructed underground unless otherwise permitted in section 8, chapter 11 of this code. (1) Street BEm and walkway fights The developer shall forward approved development plans to the power utility franchisee for street light and walkway light design in com • fiance with the standard construction details. (a) Street lights shall be generally provided at all intersections, and at major entry roads into the subdivision as designated by the administrative official. Street lights or walkway lights shall be provided at intervals along each street of between 300 and 400 feet. (b) The develo l er shall pay the cit a sum established by resolution of the city council for all street lights and walkway required to serve the subdivision at buildout and located along public streets. lights (c) When street lights or walkway lights are provided by the power utility franchisee for the subdivision, the developer shall arrange for installation and the city shall request energization of street lights and walkway lights at major entry roads into the subdivision and at all intersections before the final plat for the subdivision is recorded. The city will request installation and energization of all other street lights and walkway lights at the time that 25 percent of the platted lots in the subdivision have been issued certificates of occupancy. (d) When alternate design for street lights or walkwa is used, the developer shall arrange for installation and energization of such (e) Prior to installing any alternate design street or walkway lights along public streets, the developer and homeowners' association shall enter into an agreement with the city. The developer or homeowners' association shall say all costs related to construction and installation of such street lights or walkway lights. In addition, the homeowners' association shall pay all maintenance and operatin . costs, including repair, replacement and electricity, for such street lights or walkway (f) Prior to installing any walkway lights along state or county roads, the developer and homeowners' association or adjacent property owner shall enter into an agreement with the city. The developer, homeowners' association or adjacent pro 9 ert owner shall pay all costs related to construction and installation of such walkway lights. In addition, the homeowners' association or adjacent property owner shall pay all maintenance and operating costs, including repair, replacement and electricity, for such walkway lights lights lights lights ARTICLE II. BOARD OF ADJUSTMENT* Page 1 of 3 DIVISION 2. SPECIAL EXCEPTIONS Sec. 110-46. Application; procedures. The board of adjustment shall hear and decide only such special exceptions as the board of adjustment is specifically authorized to pass on by the terms of this chapter. The board of adjustment shall decide such questions as are involved in determining whether special exceptions should be granted and shall grant special exceptions with such conditions and safeguards as are appropriate under this chapter or other applicable ordinances or shall deny special exceptions when not in harmony with the purpose and intent of this chapter. A special exception shall not be granted by the board of adjustment, except according to the following: (1) A written application for a special exception is submitted indicating the section of this chapter under which the special exception is sought and stating the grounds on which the special exception is sought and stating the grounds on which it is requested. (2) All proposed special exceptions shall be submitted to the planning and zoning board for study and written recommendation. Such proposal shall be submitted at least 14 days prior to the planning and zoning board meeting at which it is to be considered. The board of adjustment shall consider the recommendation of the planning and zoning board as part of the official record when hearing an application for a special exception. (3) The property owner for which a special exception is sought shall provide the names and addresses of all affected property owners to the city at least 30 days in advance of the planning and zoning board meeting. For the purpose of this section, an affected property owner or owners shall mean any property owner of record owning property which lies within a radius of 500 feet from any boundary of the property for which a special exception is sought as reflected in the survey or that portion of the map maintained by the tax assessor reflecting the boundaries of the parcels affected. (4) A notice shall be prepared and mailed by the office of the city clerk using certified mail to all affected property owners, stating the time, date, and location of the planning and zoning meeting and further indicating that the role of the planning and zoning board is advisory in nature and that final administrative approval or denial will be before the board of adjustment at a subsequently scheduled meeting; provided however, that failure to receive such notice shall not affect any action or proceeding taken hereunder or constitute a defect upon which any claim can be made against the city. (5) When any proposed special exception lies within 500 feet of the boundary of any property under another government's jurisdiction, notice shall be forwarded to the governing body of the appropriate government authority in order to afford such body an opportunity to appear at the hearing and express its opinion on the effect of said proposed special exception. (6) Notice shall be given at least 15 days in advance of public hearing. The owner of the property for which a special exception is sought or his agent shall be notified by certified mail. Notice of such hearing shall be posted on the property for which the special exception is sought and at the city hall and shall be published in a newspaper of regular circulation within the city. (7) Any party may appear in person or be represented by an attorney at the public hearing. enD i� http://library2.municode.com/gateway.dlllf lflorida/33136/33327/33329?f=templates$fn=docu... 2/16/2005 ARTICLE II. BOARD OF ADJUSTMENT* Page 2 of 3 (8) The board of adjustment shall make such findings as it is empowered to make under the various sections of this chapter, but in no case shall the board of adjustment grant a special exception that in any way adversely affects the public interest. (Code 1981, § 645.21; Ord. No. 18-2002, § 2A, 12-17-02) Sec. 110-47. Written findings certifying compliance. (a) It is the intent of this section to promote compliance by the city board of adjustment with this Code, state law and judicial precedent which provide for written findings of fact in support of board decisions. Such findings should be more than mere conclusory statements or recitations of legislative language. Before any special exception shall be issued, the board of adjustment shall make written findings on forms which are on file in the city clerk's office and which may be amended from time to time by a resolution duly adopted by the city council. The written findings shall certify compliance with the specific rules governing individual special exceptions, and that satisfactory provision and arrangement has been made concerning the following, where applicable: (1) Adequate ingress and egress may be obtained to and from the property, with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or emergency. (2) Adequate off-street parking and loading areas may be provided without creating undue noise, glare, odor or other detrimental effects upon adjoining properties. (3) Adequate and properly located utilities are available or may be reasonably provided to serve the proposed development. (4) Adequate screening and/or buffering will be provided to protect and provide compatibility with adjoining properties. (5) Signs, if any, and proposed exterior lighting will be so designed and arranged so as to promote traffic safety and to eliminate or minimize any undue glare, incompatibility or disharmony with adjoining properties. (6) Refuse and service areas, with particular reference to the items in subsections (a)(1) and (a)(2) of this section. (7) Required setback and other open space. (8) Height. (9) Landscaping. (10) Renewal and/or termination dates. (11) That the use will be reasonably compatible with surrounding uses in its function, its hours of operation, the type and amount of traffic to be generated, the building size and setbacks, its relationship to land values and other facts that may be used to measure compatibility. (b) In granting any special exception, the board of adjustment may prescribe appropriate conditions and safeguards in conforming with this chapter. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall be deemed to be a violation of this chapter and punishable as provided by this chapter. (Code 1981, § 645.23; Ord. No. 43-93, § 1, 12-7-93) http://library2.municode.com/gateway.d11/f /florida/33136/33327/33329?f=templates$fn=docu... 2/16/2005 ARTICLE II. BOARD OF ADJUSTMENT* Page 3 of 3 Sec. 110-48. Expiration. Any special exception granted under this chapter shall expire if the applicant has not obtained a certificate of occupancy or occupational license as appropriate and utilized the special exception within 12 months of the date of its issuance; provided, however, the board of adjustment may extend this time period by an additional 12-month period if the applicant can show good cause for the delay. If the applicant desires an extension, the applicant shall submit its request directly to the board of adjustment prior to the expiration of the first 12-month period. Additionally, a special exception shall expire and become null and void if the use granted thereunder is abandoned or otherwise ceases to exist or a period of 18 consecutive months. As used herein, abandoned shall mean that the applicant has gone out of business, let all business licenses lapse or has otherwise changed the use of the property in conformance with the Code of Ordinances of Cape Canaveral, Florida. Once a special exception has lapsed due to abandonment, the applicant must resubmit its special exception request pursuant to section 110-46 of the Code of Ordinances of Cape Canaveral, Florida. (Ord. No. 5-96, § 1, 6-4-96) Secs. 110-49--110-60. Reserved. http://library2.municode.com/gateway.dll/fl/florida/33136/33327/33329?f=templates$fn=docu... 2/16/2005 ARTICLE II. BOARD OF ADJUSTMENT* Page 6 of 8 may extend this time period by an additional 12-month period if the applicant can show good cause for the delay. If the applicant desires an extension, the applicant shall submit its request directly to the board of adjustment prior to the expiration of the first 12-month period. Additionally, a special exception shall expire and become null and void if the use granted thereunder is abandoned or otherwise ceases to exist or a period of 18 consecutive months. As used herein, abandoned shall mean that the applicant has gone out of business, let all business licenses lapse or has otherwise changed the use of the property in conformance with the Code of Ordinances of Cape Canaveral, Florida. Once a special exception has lapsed due to abandonment, the applicant must resubmit its special exception request pursuant to section 110-46 of the Code of Ordinances of Cape Canaveral, Florida. (Ord. No. 5-96, § 1, 6-4-96) Secs. 110-49--110-60. Reserved. DIVISION 3. VARIANCES Sec. 110-61. Variance. Variance from this chapter shall be obtained only through action of the board of adjustment. The specific terms of each variance are binding and may not be changed, except by a new variance or by reversion to conformity with this chapter. (Code 1981, § 643.13) Sec. 110-62. Applications; procedures. (a) The board of adjustment shall authorize upon appeal in specific cases such variance from this chapter as will not be contrary to the public interest, when owing to special conditions a literal enforcement of this chapter would result in unnecessary hardship. A variance from this chapter shall not be granted by the board of adjustment, except according to the following: (1) A written application for a variance is submitted demonstrating that: a. 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 district. b. Literal interpretation of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter. c. The special conditions and circumstances referred to in subsection (a) (1)a. of this section do not result from the actions of the applicant. d. Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures or dwellings in the same district. No nonconforming use of neighboring lands, structures or buildings in the same district and no permitted use of land, structures or buildings in other districts shall be considered grounds for the issuance of a variance. (2) All proposed variances shall be submitted to the planning and zoning board for http://library2.municode.com/gateway.dll/f /florida/33149/33340/33342?f=templates$fn=docu... 3/1/2005 ARTICLE II. BOARD OF ADJUSTMENT* Page 7 of 8 study and written recommendation. Such proposal shall be submitted at least 14 days prior to the planning and zoning board meeting at which it is to be considered. The board of adjustment shall consider the recommendation of the planning and zoning board as part of the official record when hearing an application for a variance. (3) The property owner for which a variance is sought shall provide the names and addresses of all affected property owners to the city at least 30 days in advance of the planning and zoning board meeting. For the purpose of this section, an affected property owner or owners shall mean any property owner of record owning property which lies within a radius of 500 feet from any boundary of the property for which a variance is sought as reflected in the survey or that portion of the map maintained by the tax assessor reflecting the boundaries of the parcels affected. (4) A notice shall be prepared and mailed by the office of the city clerk using certified mail to all affected property owners, stating the time, date, and location of the planning and zoning meeting and further indicating that the role of the planning and zoning board is advisory in nature and that final administrative approval or denial will be before the board of adjustment at a subsequently scheduled meeting; provided however, that failure to receive such notice shall not affect any action or proceeding taken hereunder or constitute a defect upon which any claim can be made against the city. (5) When any proposed variance lies within 500 feet of the boundary of any property under another government's jurisdiction, notice shall be forwarded to the governing body of the appropriate government authority in order to afford such body an opportunity to appear at the hearing and express its opinion on the effect of said proposed special exception. (6) Notice of public hearing shall be given as specified for a special exception in section 110-46 et seq. (7) Any party may appear in person or may be represented by an agent or by attorney at the public hearing. (8) The board of adjustment shall make findings that the requirements of subsection (a)(1) of this section have been met by the applicant for a variance. (9) The board of adjustment shall further make a finding that the reasons set forth in the application justify the granting of the variance and that the variance is the minimum variance that will make possible reasonable use of the land, building or structure. (10) The board of adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. (11) It is the intent of this subsection to promote compliance by the city board of adjustment with this Code, state law and judicial precedent which provide for written findings of fact in support of board decisions. Such findings should be more than mere conclusory statements or recitations of legislative language. All findings made by the board of adjustment in accordance with this section shall be in writing on the forms which are on file in the city clerk's office and which may be amended from time to time by a resolution duly adopted by the city council. (b) In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable as provided by this chapter. Under no circumstances shall the board of adjustment grant a variance to permit a use not generally http://library2.municode.com/gateway.dlUfUflorida/33149/33340/33342?f=templates$fn=docu... 3/1/2005 •ARTICLE II. BOARD OF ADJUSTMENT* Page 8 of 8 or by special exception permitted in the district involved or any use expressly or by implication prohibited by this chapter. (Code 1981, § 645.25; Ord. No. 43-93, § 2, 12-7-93; Ord. No. 18-2002, § 2B, 12-17-02) Secs. 110-63--110-85. Reserved. http://library2.municode.com/gateway. dll/fl/florida/33149/33340/33342?f=templates$fn=docu... 3/1/2005 ORDINANCE NO. 03-2005 AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, FLORIDA, AMENDING CHAPTER 110 OF THE CODE OF ORDINANCES, ZONING; AMENDING THE PROCEDURE BY WHICH SITE PLANS ARE REVIEWED AND APPROVED; GRANTING THE CITY COUNCIL FINAL DECISION -MAKING AUTHORITY REGARDING SITE PLAN APPLICATIONS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; INCORPORATION INTO THE CODE; SEVERABILITY; AND AN EFFECTIVE DATE. WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, pursuant to the Cape Canaveral City Code, the Planning and Zoning Board currently reviews all site plans for final approval; and WHEREAS, the City Council, as the City's elected body, desires to be held accountable to the citizens of the City of Cape Canaveral with regard to final approval of development projects within the City; and WHEREAS, the City Council believes that amending the City Code so that the Planning and Zoning Board reviews and makes recommendations for approval or denial of proposed site plans to the City Council, while the Council maintains the final approval authority over any proposed site plan, would ensure that the Council remains responsible to the citizens with respect to their desires regarding development within the City; and WHEREAS, the City Council of the City of Cape Canaveral, Florida, hereby finds this Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Cape Canaveral. BE IT ORDAINED by the City Council of the City of Cape Canaveral, Brevard County, Florida, as follows: Section 1. Recitals. The foregoing recitals are hereby fully incorporated herein by this reference as legislative findings and the intent and purpose of the City Council of the City of Cape Canaveral. Section 2. Code Amendment. Chapter 110, Zoning, of the Code of Ordinances, City of Cape City of Cape Canaveral Ordinance No. 03-2005 Page 1 of 5 A-0Y161G, -\-cY11�� • Canaveral, Florida, is hereby amended as follows (underlined type indicates additions and ,trrit�out type indicates deletions, while asterisks (* * *) indicate a deletion from this Ordinance of text existing in Chapter 110. It is intended that the text in Chapter 110 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance): CHAPTER 110. ZONING * ** ARTICLE VI. SITE PLANS Sec. 110-223. Review procedures. * ** * ** (f) All plans shall be made available to the planning and zoning board for its review and recommendation to the city council. All sitc plans rcquircd uridh,r this aiticL shall b rL,visWc for approval by plarurirrg aid z.onirig board. The building official shall prepare a site plan checklist to be submitted to the planning and zoning board when a site plan is reviewed. (g) The planning and zoning board, following public hearing and review of any submitted site plan, shall make a written recommendation to the city council recommending approval, approval with conditions, or denial of inay apprevepprovc vvith conditions, .,i de11 the application based upon the site plan's compliance with the city's Code and comprehensive plan. Such recommendation shall include the reasons for the board's recommendation and show the board has considered the applicable site plan criteria set forth in this Article. he plan , Uf appeal to the amity vielow. (h) Upon receipt of the planning and zoning board's recommendation, and following public hearing and review of the submitted site plan, the city council shall make a final decision on the application. If the city council determines that the planning and zoning board has not made a recommendation on an application within a reasonable period of time, the city council may, at its discretion, consider an application without the planning and zoning board's recommendation. Any decision of the city council is final and subject to judicial review. (ih) If the city council plarrrrrrrg an Lurrrrrg bua, cl elects to grant conditional approval of a site plan subject to any conditions or contingencies, the applicant shall have 90 days from the date of conditional site plan approval to satisfy any such conditions and/or contingencies. City of Cape Canaveral Ordinance No. 03-2005 Page 2 of 5 If all conditions and/or contingencies are satisfied, the final site plan approval date shall be either the expiration of the 90-day period; or the date the building official certifies by notation on all city site plan copies, that all conditions and/or contingencies are satisfied, whichever first occurs. If the conditions and/or contingencies are not satisfied before the expiration of the 90-day period the conditional approval shall be automatically withdrawn and the application shall stand as denied. The 90-day compliance period may be extended at the discretion of the city council , upon written request of the applicant prior to the expiration of the 90-day compliance period, and where the applicant demonstrates unusual circumstances or undue hardship. (ii) The planning and zoning board and city council shall have no authority to consider a proposed site plan unless: (1) The applicant has adequately and completely addressed all items on the site plan checklist prepared by the building official; and (2) The applicant has otherwise complied with all matters contemplated under this section. At any me table and resc d e any si an scheduled, consideration, ich is determi ed y the building o icial n o ha e complied ith all of the req irements of this ction,: A finding b the building /ffici that a sit p n is read for consideratio by e planning a zoning board or uncil s 1 not be construed as binding the board or council to approve the site plan. tlg held for that purpose, the planning and zoning board or city council shall (lam) Following a public hearing on any application for site plan approval [before] the city council plauiiiiig acid wiling buaid the city clerk board' sccrrtary shall send to the applicant, by certified mail, return receipt requested, written notice of the action taken and the right to judicial review an appca as p1oaided bclow. ec. lltl-1L.S.J. Appeal. Any persons) or the city aggiicvcd 1 y rslon of ttic pand Luiuiig t'uaia to t1i� tlrc pand Lai isio�l by the city council is rc�id�rcd. (a) Tlre-apphcal,t may7noti-ater-tirarrten-catenttar71-ays-after-rec:eiving-notice-offmal--actiarr. wily cic1k a written ivquappCcd 1 caiiiig rd iClatulg to sitc plan approval, • Of the city councu. �ou�lcil shgacst. The city council shall hca', acid 1 appcal vVit• pp• cal i �t�lmlilation oil, tll • City of Cape Canaveral Ordinance No. 03-2005 Page 3 of 5 Lol,11e11 scar,iTg. V1lb�V VI IllAd uffei�d by 0.1iy ,ntL.rc ted pe whetllel tli� �rlalllling allu coningboarcl-properir denied -an -application -for -site -plan —approval -in awvldali�c wrtl, lily City Cock, a„d L,ity wuiYlvlmn n, plaii. vlilial iuou not apply. eny the appeal by majority vote In acLordanLL wi's t{uviaiil i�.�juilcincnt Gvntaiilcd ui thv City Cliaitci. I'alluie to ,cad a iiiajoiity vvty will ltsult nt vilial .,f it, app . Any dispute of fact inns t be dLei ded on the basis of a co l% Lnt and SUbStanti viisio11 of the city council is fnal. aild Teiiiedies sit forth in tliis section have been cxllads tcd. Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Council, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 4. Incorporation Into Code. This Ordinance shall be incorporated into the Cape Canaveral City Code and any section or paragraph, number or letter, and any heading may be changed or modified as necessary to effectuate the foregoing. Grammatical, typographical, and like errors may be corrected and additions, alterations, and omissions, not affecting the construction or meaning of this ordinance and the City Code may be freely made. Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this Ordinance. Section 6. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Council of the City of Cape Canaveral, Florida. ADOPTED by the City Council of the City of Cape Canaveral, Florida, this day of , 2005. ATTEST: SUSAN STILLS, City Clerk ROCKY RANDELS, Mayor Bob Hoog Jim Morgan Rocky Randels _ Buzz Petsos Steve Miller City of Cape Canaveral Ordinance No. 03-2005 Page 4 of 5 For Against First Reading: Legal Ad published: Second Reading: Approved as to legal form and sufficiency for the City of Cape Canaveral only: ANTHONY A. GARGANESE, City Attorney City of Cape Canaveral Ordinance No. 03-2005 Page 5 of 5 BROWN, GARGANESE, WEISS & D'AGRESTA, P.A. Attorneys at Law Usher L. Brown' Jeffrey P. Buak° Suzanne D'Agresta° Anthony A. Garganese° John H. Ward' Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer °Board Certified City, County & Local Government Law VIA HAND DELIVERY Planning and Zoning Board City of Cape Canaveral 105 Polk Avenue Cape Canaveral, FL 32920 Offices in Orlando, Kissimmee, Cocoa & Viera March 1, 2005 Debra S. Babb-Nutcher° Joseph E. Blitch Victoria L. Cecil Lisa M. Fletcher Amy J. Goddard Katherine Latorre Erin J. O'Leary J. W. Taylor Of Counsel FILE COPY Re: Oak Park Condominium Site Plan Approval / Perjurious Testimony City of Cape Canaveral — General Zoning Our File No.: 513-008 Dear Madam Chair and Members of the Board: Please allow this correspondence to address the Planning and Zoning Board's concerns regarding its site plan approval of the Oak Park Condominium project generally located on North Atlantic Avenue and Shorewood Drive. Specifically, this correspondence shall address the legal effect of and remedies for the allegedly perjurious testimony of William "Dude" Braselton, Vice President of Oak Park of Brevard, Inc., at the September 22, 2004 Planning and Zoning Board meeting. I. Background The crux of this issue revolves around whether Mr. Braselton ever sought consent from Coastal Fuels for the purpose of gaining ingress and egress to and from Oak Park via Shorewood Drive, a private road. The Planning and Zoning Board has expressed its traffic flow concerns with regard to Oak Park having a curb cut on North Atlantic since the inception of this site plan review. The site plan for Oak Park Condominiums was considered by the Planning and Zoning Board at its August 25, 2004 meeting, at which City Planner Todd Peetz commented that throughout the site plan review process, city staff has requested that the applicant work with Towne Realty and Villages of Seaport for access to Shorewood Drive. City Manager, Bennett Boucher, provided that Towne Realty and Coastal Fuels owned Shorewood Drive and that no party involved with the Oak Park project had approached Towne Realty for the purpose of gaining access to Shorewood Drive. Mr. Braselton Aeftda testified that he had contacted Tom Downs, developer of Villages of Seaport and Craig Smith, representative for Coastal Fuels, regarding access to Shorewood Drive, but they were not interested in negotiating shared access. Likewise, Mr. Braselton's attorney commented that Coastal Fuels had flat out refused to work with Oak Park, and that further discussions were fruitless. Despite Mr. Braselton's representations that he had made an effort to contact the parties controlling access to Shorewood Drive, the Planning and Zoning Board moved to table consideration of the site plan for two weeks to give Mr. Braselton time to negotiate with the Shorewood Drive property owners. At the September 22, 2004 meeting, the Oak Park site plan was once again considered by the Planning and Zoning Board. At this meeting, Mr. Braselton testified, under oath to the following: "1 did contact the two property owners that we had spoken of last time. I talked to Mr. Craig Smith of Coastal Fuels on August 31st and I talked to Mr. Kohn Bennett from Towne Realty and Benko on September 14tt'. I have a signed affidavit that I'll enter into the record showing that both those tasks were completed." Mr. Braselton did submit for the record a signed and notarized affidavit attesting to the above information. Mr. Braselton next explained to the Planning and Zoning Board that no agreement could be reached with the Shorewood Drive property owners due to additional terms and conditions being imposed upon him by the property owners. When pressed by the Board for the details of the terms and conditions, Mr. Braselton's answers were vague. Excerpts from his relevant testimony follow: "The two parties, Coastal Fuels and Towne Realty, who I talked to, they are going to add additional conditions onto obtaining access onto Shorewood, as well as a request for compensation. And as such, the request of the Board to pursue -- that is really beyond the scope of any of the ordinances of the City, and at this time we would like to request just a motion for approval." * ** "The conditions entail parties beyond only Coastal Fuels and Towne Realty as well as compensation for access onto the road." * ** "Like I said there are additional conditions which those parties will impose onto us which are inequitable and beyond something we feel we can satisfy." * * * 2 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: firm@orlandolaw.net "The trouble is, is if the list of people involved in an action grows, if I'm negotiating, you know, with one person, you got one point of contact, you've got one set of conditions, you've got one set of people you're ttying to satisfy, but as the number of people you've got related to one item in an action grows, it becomes expeditiously difficult to satisfy them and it also becomes increasingly difficult to even know what they all want or align all their interests together." After much discussion, the Planning and Zoning Board moved to approve the site plan for the Oak Park Condominiums with the condition that ingress and egress be limited to a right in, right out traffic pattern on North Atlantic Avenue. The motion passed three votes to two. During an unrelated agenda item at its January 12, 2005 meeting, the Planning and Zoning Board questioned Craig Smith of Coastal Fuels regarding his discussion with Mr. Braselton and the issue regarding access to Shorewood Drive. Mr. Smith indicated that he never spoke with Mr. Braselton, contrary to Mr. Braselton's testimony at the September 22, 2004 meeting. II. Issue The Planning and Zoning Board has now inquired as to the effect of Mr. Braselton's allegedly perjurious testimony. Specifically, what is the Planning and Zoning Board's remedy for relying on false or misleading testimony with respect to its approval of the Oak Park Condominiums? III. Short Answer There is no foolproof evidence that Mr. Braselton committed perjury on September 22, 2004. As the matter stands, it is currently his word against Craig Smith's of Coastal Fuels. It is also important to consider that much, although not all, of what Mr. Braselton testified to has been corroborated by Kohn Bennett of Towne Realty as being true. Proving that perjury took place will be extremely difficult to prove in order for the City to gain some sort of meaningful remedy. Assuming, Mr. Braselton did perjure himself, such perjury was, indeed, material to the issues before the Planning and Zoning Board; however, there is currently no explicit legal support for revocation of the site plan approval. Furthermore, if the City were to attempt such revocation, it is likely this action will lead to additional, more complicated legal issues, including presenting a novel quasi-judicial case of first impression to the courts based on principles of equity. IV. Legal Analysis Section 837.02, Florida Statutes, relating to "perjury in an official proceeding," 3 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: firm@orlandolaw.net provides that perjury occurs when a person makes a false statement, which he or she does not believe to be true, under oath in an official preceding, in regard to any material matter. Such perjury constitutes a felony in the third degree. Thus, the instant question becomes two -fold: A. Did Mr. Braselton perjure himself during his September 22, 2004 testimony? B. If yes, was his perjurious testimony material to the issues before the Planning and Zoning Board? A. Did Mr. Braselton Commit Perjury? Whether or not Mr. Braselton perjured himself in front of the Planning and Zoning Board, as it stands right now, is a matter of "he said/he said." Mr. Braselton testified that he spoke with Craig Smith of Coastal Fuels on August 31, 2004 regarding gaining access to Shorewood Drive, while Mr. Smith denies such conversation ever taking place. There is no way to truly prove who is telling the truth, one way or the other. Mr. Braselton could have knowingly misled the Planning and Zoning Board; Mr. Smith simply may not recall speaking to Mr. Braselton; or Mr. Braselton may be mistaken as to the individual he spoke with at Coastal Fuels. There is really no way to know for sure. Several calls over recent weeks to Craig Smith have gone unanswered. I have, however, been able to confirm that Mr. Braselton spoke with Kohn Bennett of Towne Realty, as Mr. Braselton represented to the Planning and Zoning Board during his testimony and in his signed affidavit. Mr. Bennett was kind enough to confirm that he met with Mr. Braselton on September 14, 2004, and to recount the details of their meeting. Mr. Bennett confirmed that he informed Mr. Braselton that Towne Realty maintained ownership over a portion of Shorewood Drive and had an access easement for the remainder of the road. In addition, Mr. Bennett explained that the Canaveral Port Authority maintained ownership over a portion of the road and that the Port Authority would have to be party to any agreement regarding access to Shorewood Drive. Specifically, Towne Realty is party to an agreement entered into March 5, 1999, and recorded at Official Record Book 4034, Page 0589, Brevard County, under the terms of which Towne Realty and other developers paid to the Port Authority nearly $750,000 for the design and construction of Shorewood Drive. (See Exhibit A). Towne Realty was also party to an easement agreement dated March 15, 1999, and recorded at Official Record Book 3980, Page 1998, Brevard County, which explicitly requires Towne Realty to exercise a good faith effort to obtain, as a condition of allowing ingress and/or egress to/from other lands on Shorewood Drive (e.g. Oak Park Condominiums), reimbursement for all of the development and construction costs incurred by the parties to the easement agreement. (See Exhibit B).' 1 Excerpts from the relevant pages of the agreements are attached to this letter. The agreements in their 4 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: firm@orlandolaw.net The information provided by Kohn Bennett corroborates Mr. Braselton's testimony to the Planning and Zoning Board on September 22, 2004 quoted herein indicating that an additional party would have to be brought into any access agreement. Additionally, Mr. Braselton's claim that monetary consideration would have to be granted to the other parties involved in order to gain that access to Shorewood Drive proves to be true as well. Apparently, these are the details Mr. Braselton alluded to during his testimony, but refused to clarify. But vagueness alone does not show that Mr. Braselton was at all dishonest or purposefully misleading in his testimony. Indeed, the fact that the majority of his testimony proved to be accurate and truthful tends to lead to the opposite conclusion. B. Was the Perlury Material to Mr. Braselton's Testimony? Assuming Mr. Braselton did perjure himself, the next determination must be whether such perjury was material to the issues before the Planning and Zoning Board. A matter is "material" within the meaning of the perjury statute if it has the mere potential to affect the resolution of the issue before the tribunal. Kline v. State, 444 So. 2d 1102 (Fla. 1984). Section 110-222, Cape Canaveral Code, requires that applicants for site plan review provide a "traffic flow diagram to ensure that an orderly and safe traffic flow is permitted within the site and that no traffic problems are created by the proposed ingress and egress routes." Because the City's ordinance requires information related to traffic flow, whether or not Mr. Braselton sufficiently sought access to Shorewood Drive in order to provide a safer traffic pattern becomes material to whether the Planning and Zoning Board approved or denied the Oak Park Condominium Site Plan. Even though a determination of materiality can be established, it remains unclear whether or not perjury actually occurred. Additionally, despite significant time expended on legal research, we could not find any explicit legal authority that would allow the City to revoke its approval of the site plan based on false or misleading information. Any legal attempt by the City to revoke the site plan would have to be made on principles of equity and proving Mr. Braselton perjured himself in order to obtain the rights granted under the site plan permit. Although we believe that under the right circumstances a strong case can be made for revoking a site plan permit that was obtained by perjurious testimony of an applicant at a quasi-judicial hearing, this is likely not the case given the facts known today. V. Future Courses of Action It is worth noting two steps the City can take to improve its position should another situation such as this occur: (A) entering into an interlocal agreement with Brevard County regarding curb cut permits; and (B) amending the City's code authorizing revocation of site plan approval if based on false or misleading testimony. entirety have been forwarded, under separate cover, to the City Manager for the City's files. 5 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: firm@orlandolaw.net A. Interlocal Agreement Prior to the City's site plan approval, Mr. Braselton was already in possession of a curb cut permit issued by Brevard County for access to North Atlantic Avenue. The permit was issued on February 8, 2004 and Mr. Braselton obviously relied on that curb cut permit to design the Oak Park project. This permit put the Planning and Zoning Board in a difficult position during the site plan process. The City may want to consider proposing an interlocal agreement with Brevard County in order to prevent issuance of such permits prior to the City's site plan approval process. The City would then be in a better position to require ingress/egress points on county roads more to the City's liking. B. Amending City Code The City Code provides in section 110-171 for the temporary suspension or permanent revocation of special exceptions granted to establishments serving alcoholic beverages if it is determined by competent, substantial evidence that the special exception was granted based on false statements, fraud, deceit, misleading statements, or the suppression of material facts. The City may wish to add a similar section to Chapter 110 applicable to all land use decisions so that the City has the explicit authority to revoke or suspend site plans and other land use decisions if and when presented with the current or similar circumstances. V. Conclusion Based on the information presented herein, there is simply no clear and convincing evidence showing whether or not Mr. Braselton's sworn testimony at the September 22, 2004 Planning and Zoning Meeting constituted perjury. Therefore, the City would not be justified in pulling its previous approval of the Oak Park Condominium site plan, related permits or issuing stop -work orders on development of the same. Should any additional information or evidence come to light, the City may reconsider this issue. Please contact my office should you require further information regarding this matter. I will keep the City Manager informed regarding any new information or evidence the City may want to consider. Very Truly Yours, Kate Latorre Assistant City Attorney Cc: Mayor and City Council Bennett Boucher, City Manager Anthony A. Garganese, City Attorney 6 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: firm@orlandolaw.net Enclosures 7 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: firm@orlandolaw.net uG/14/V3 14:Z8 VAX 414 27e '710 Y&M/ZILBER/TOWNE 005 4 • Coo E1 0 ci:ru 091.3297 • an aoowPsea: 4034 / 0590 • construct a Nortb-South conutcoor, which will connect ratty Drive to too south boundary of The Road (or the mad to be constricted) ee shown on Exhibit "C", within two yearn from; the.date of this Agreement. Tha Developer and Ruin shall bc allowed to use the North -South cormector and Yetty Drive for ingress and egr'ee5 to their properties temporarily until such limo as The Road is completed. Tho Port ..Authority- ag cca to prDvidc a second. access point to .the west of -the .Initial Connection Point, shown on Exhibit"D", on remaining Ruffin land at a ]location to betnutaallyagreed upon bythe pattioshcret° (the "ScoandConnection Paint'". Tho •Port Authority. shall- initially pay for all design and construction costs of The Road and othtr coats to compete The Road. In addition. the Port Authority will install a twelve (12) inch diameter water main in The Road. Altar construction the Port Authoritywill transfer the miler mama to the City of Cocoa. Tito Port Authority will - -grant Developerar dRuffinamazement atthe YnitislConneotionpointorthoSecond Connechcn Point or such locations as may bo mutually agreed by 'the parties, provided that the connection is pad ofa loop syatemwluoh Wends moth through the DeveloporLanrds and comnocts to the existing City of Cocoa watermain in the North Atlantic Avenue Corridor. Developer and Ruffin ab►a►U bo responsible for obtaining tho right to corn ct with the water main in Thelma from the City of Cocoa at their eicponse once the City of Cocoa dctermiaes that there will be do detrimental effects to water service at the Port. It is agreed by the parties hereto that Port Authority shall have the right to install arty and all necessary traffic control at the Initial Connection Point at such time that such traffic control is deemed necessary by Port Authority. The cost of installing such traffic control shall bo shared fifty percent by Port Authority and fifty portent by Developer and Ruff pesigr► and Consnotion Cog! of If►gic93d. Within ten (10) days of notice from Port Authority to Developer and Ruffin that The Road has been completed and is available for use by the Developer and Ruffin, Developer and Ruflin shall bc obligated to pay S742,000.00 to Port Authority as a contribution towards the deign, construction and other cars of The Road. The Developer's and Ruffin's obligation to pay the cast reimbursement to the Port Authority.of $742,000.00 shall be scoured by the posting by Developer ofa bond in the amount ofS742,000.00, subject to the approval of the Port Authority as to the form Of tho bond and the bonding company. Such bond shall be issued by Developer and its bonding company no later than thirty (30) days atter execution of this agreement. Unti1'payment of the S142,000.00 by Developer and Ruffin to Port Authority, Developer and Rutrui shall not have any right to use the The Road and the Port Authority shall havd any and all rights to barrioado and block access to Tho Road. It shall be the responsibility of the Port Authority to maintain The Road at its coat. 4. Roeidwav and_Lltili4Y Easements_ Upon the completion of construction and payment 2 NM / 0M? 3H £ ' •V•d 3S3NV dt9 8 SS13M NVWZIVS NMOd8 uo!4P4s xe3 -7t M tt9C 179L IZC XVd TT:ST S00Z/90/Z0 Wd60:e 500Z 80 clad xe3 paniaJaa named as an additional Insured as its interest appear under the general liability policy of the constructing parry with respect to such work (d) All work performed by the constructing party shall be the subject of performance and payment bonds in the estimated amount of the cost of said work, which bonds shall name the non -constructing party as an obligee thereunder, provided, however, that if the constricting party Ls one of the GRANTEES, then ToWNE may, in lieu of such bond, furnish to GRANTOR a guaranty of the performance and payment for sald work In a form mutually agreeable to the GRANTOR and TowNE, and In the event that the GRANTOR Is the constructing party, then the GRANTOR may, instead of bonding his construction work, furnish the GRANTEE with a guaranty comparable In form to the guaranty to be provided by TOWNE. 13. Dedication of the Roadways and/or UnuTIES: Private Easement _Area. The GRANTEES shall have the option, in their sole discretion, to dedicate the roadways within the EXISTING EASEMENT AREA and NEW EASEMENT AREA to the CrrY. The GRANTOR hereby agrees to join in any such dedication to the CITY so long as the City does not place any condition on such dedication which would prevent the GRANTOR'S adjacent lands from having access to and usage of such roadways. GRANTOR's dedication shall include the landlord's fee Interest In the EXISTING EASEMENT AREA and NEw EASEMENT AREA if required by the CRY. To the extent that the GRANTEES desire to dedicate any of the UnunEs to third parties, the GRANTOR agrees to join in such dedication. In the event that the roadways referred to above in this Paragraph 13 have not been dedicated by the GRANTEES, and in order to develop the GRANTOR'S adjoining lands. dedication of such roadways is required by the City, then GRANTOR shall be entitled, at his sole option, to dedicate such roadways, and GRANTEES hereby agree to join in such dedication. The easements, licenses, tights and privileges established, created and granted by the provisions of this FOURTH AMENDMENT shall be for the benefit of and restricted solely to the GRANTOR and the GRANTEEs and the other parties referred to in Paragraph 14 hereof. This FOURTH AMENo41eNT is not intended to create, nor shall it be construed as creating, any rights in and for the benefit of the general public or any rights in or to any portion of the DEVELOPMENT PARCEL or the other easement areas or lands described herein, including the GRANTOR'S adjacent lands, except as expressly set forth herein. In the event that any of the owners (or the City on their behalf) of the lends to the south of the Shorewood Condominium Protect, the Development Parcel or the lands presently owned by the Gamma, seek ingress and/or egress for themselves end/or their properties over the roadways referred to in this Paragraph 13, then the GRAANTEEs and the GRANr413shall exercise mutual good faith efforts to obtain, as a condition of allowing such ingress an or grass. rei ursement for all of the development and ' construction costs (includi laid values) incurred by GRANroR and GMT Wtt1h respect to suaces and egress rs granted and obtained. `GRANTOR shall receive thirty percent (30%) of so reimbursement end anAtirrEEs spa 1 receive seventy percent (70%) of such reimbursement 14. Benefit This FOURTH AMEniomEMT shalt be binding upon and Inure to the benefit of the parties hereto, their heirs, estates, personal representatives. trustees, successors and assigns. This FOURTH AMENDMENT shall be binding upon and inure to the benefit of all persons, parties and entitles acquiring any interest in or to the DEVELOPMENT Paws., including but not limited to their guests, business Invitees, condominium unit owners and condominium associations. 15. Construtlon. This FOURni AMENDMENT has been entered into by parties of equal bargaining power and business acumen, and all partial have been represented by counsel. in construing the meaning of this FOURTH AMENDMENT, both parties shall be deemed to have drafted this FouRTN AMENGNENT, and no rule of favorable Interpretation to one party over the other shall be employed except that this FOURTH AMENDMENT shall be construed liberally in favor of the parties hereto to enable the GRANTEES to carry out their development plans with respect to the DEVELOPMENT PARCEL and to enable the GRANTOR to carry out his development plans with respect to his adjoining ands. Page 5 of 15 Pages 111111111111111111 crw:9110511118 oReoewolo.: 3980 / 2002 oZOIJ I�x / oxHss Od • ' 'V'd 3S3NVOZIV9 ? SSIBM NVWZ1VS NMOd1 : uoL}ell YEA tt9C 1/SL TZC XVd ST:ST SOOZ/90/ZO Wd6O:e SOOZ 20 clad : X2J pania3aa Page 1 of 1 Susan Chapman From: Todd Peetz [TPeetz@millerlegg.com] Sent: Thursday, March 10, 2005 12:53 PM To: Bennett Boucher; Todd Morley; Anthony Garganese Cc: chapman-cape@cfl.rr.com; Andy Kirbach; Ed Gardulski; John Cunningham; Shannon McNally; Beatrice McNeely Subject: FYI 3/9/05 P&Z meeting Just an update from last night's meeting Items 1 & 2) There was a brief discussion on street lighting and required materials for special exception applications. It was discussed as something for them to consider when we have the joint workshops on Chapter 110. Item 3) Ordinance amendment to have the City Council be the final approval for site plans. Approved 4-1. Concerns were raised over additional cost, time and the meaning of "reasonable period of time". Item 4) Oak Park Site Plan Approval/Perjurious Testimony, The report prepared by the City Attorney was read. The findings determined that at this point in time there was no clear and convincing evidence that the testimony by Mr. Braselton on September 22, 2004 constituted perjury. The City Attorney was going to follow up with Mr. Smith's Attorney. The Attorneys recommendations include a joint planning agreement with Brevard County concerning the issuance of driveway permits. Another recommendation was to include new code language that would allow the City to temporarily suspend or revocation of site plans or other land use decisions based upon fraudulent or misleading statements. If you have any questions, please feel free to contact me. Sincerely, Todd Peetz, AICP Senior Planner Miller Legg & Associates, Inc. 631 South Orlando Ave., Suite 200 Winter Park, FL 32789 407-629-8880 407-629-7883 (fax) CE News 2002 & 2003 "Top 50 Best Places to Work in the USA" 03/10/2005 BROWN, SALZMAN, WEISS & GARGANESE, P.A. Attorneys at Law Usher L. Brown • Suzanne D'Agresta° Anthony A. Garganese° Gary S. Salzman° John H. Ward • Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer °Board Certified Business Litigation Lawyer °Board Certified City, County & Local Govemment Law Offices in Orlando, Kissimmee, Cocoa & Viera April 14, 2004 The Honorable Chair and Members of the Board of Adjustment City of Cape Canaveral 105 Polk Avenue Cape Canaveral, Florida 32920 Debra S. Babb-Nutcher Joseph E. Mitch Jeffrey P. Buak° John U. Biedenharn, Jr. Lisa Fletcher -Kemp Douglas Lambert Katherine Latorre Michelle A. Reddin Kimberly F. Whitfield Erin J. O'Leary Of Counsel FILE COPY Re: Special Exceptions - Procedures and Criteria City of Cape Canaveral - Building Code Enforcement Our File No.: 513-008 Dear Honorable Chair and Members of the Board of Adjustment: This correspondence is written following a request by the Board of Adjustment for a legal opinion regarding consideration and approval or denial of applications for special exceptions under the City's zoning code. Generally A special exception is a legislatively established use of property, not specifically permitted by right in a particular zoning classification, but which maybe appropriate under certain conditions and safeguards.' To be entitled to a special exception an applicant must show: (1) that the proposed use is recognized as potentially appropriate under the zoning classification; 'A special exception is not equivalent to a rezoning. A rezoning completely changes the property's zoning classification (e.g. from R-1 low density residential to C-1 low density commercial). A special exception does not change the zoning, but merely allows the board to exercise discretion whether it is reasonable based on legislative criteria to permit a unique use within a particular zoning district. 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net • Email: firm@orlandolaw.net The Honorable Chair and Members of the Board of Adjustment April 14, 2004 Page 2 (2) that the criteria for the exception would be met; and (3) that public interest would not be adversely affected.2 Initially, the burden of proof in special exception proceedings is upon the applicant. Therefore, a property owner requesting an exception must show that it has met each of the. criteria provided above. If these conditions have been met, an application cannot be denied unless there is substantial and competent evidence (presented by the City or a third. party) to show that the criteria has not been met, such as the requested exception is adverse to the public interest.3 The procedures to be implemented and the criteria to be considered by the Board of Adjustment and Planning and Zoning Board for the.City of Cape Canaveral are provided in sections 110-46 through 110-48 of the City Code. The process begins with an application for special exception, which shall indicate the section of Chapter 110 for which the special exception is requested and the grounds upon which it is sought and requested. Planning and Zoning Board's Role In Cape Canaveral, the Planning and Zoning Board is charged with review of any application for special exception and for written recommendations to the Board of Adjustment. Such recommendation may be for approval as submitted, approval with conditions or denial. There is no requirement in the City Code or under current Florida law that such recommendation be in the form of formal findings and conclusions of law, however, such may helpful to the Board of Adjustment in its consideration of the recommendation. Any such recommendation should by based upon consideration of applicable special exception criteria. Board of Adjustment's Role In Cape Canaveral, the Board of Adjustment is given the final decision making authority, subsequent to review and recommendation of the Planning and Zoning Board, to approve special exceptions. Any approval granted by the Board of Adjustment may be subject to conditions and safeguards that are reasonably necessary and appropriate under Chapter 110 of the City Code or other applicable City Ordinances. Alternatively, the Board of Adjustment can deny a special exception application where the special exception does not comply with applicable special exception criteria. 2 AT&T Wireless Services of Florida, Inc. v. Orange County, 23 F. Supp. 2d 1355,1359 (M.D. Fla. 1998). 3 Florida Power & Light Company v. City of Dania, 761 So. 2d 1089 (Fla. 2000); Jesus Fellowship, Inc. v. Miami Dade County, 752 So. 2d 708, 709 (Fla. 3`d DCA, 2000). The Honorable Chair and Members of the Board of Adjustment April 14, 2004 Page 3 The Board of Adjustment, after consideration of the Planning and Zoning Board recommendation and testimony and evidence submitted at the public hearing, shall make formal written findings and conclusions of law based upon the considerations provided below. Any interested party may appeal (by certiorari review) the decision of the Board of Adjustment to the circuit court. See e.g., Footnote 3 Standard of Review Each application for special exception should be considered and reviewed against the following criteria to determine whether: (1) such request is in conformance with the City's Comprehensive Plan; (2) such exception is permitted under the applicable zoning category; (3) the request is in compliance with specific rules governing individual special exceptions (i.e. distance requirements between uses which sell or dispense alcoholic beverages); (4) In accordance with section 110-47, City Code, satisfactory provisions and/or arrangements have been made concerning: (a) Adequate ingress and egress to and from the property, including automotive, pedestrian, and emergency access; (b) Adequate off-street parking and loading to avoid creating undue noise, glare, odor, or other detrimental effects; (c) Adequate and properly located utilities are available or reasonably provided; (d) Adequate screening and/or buffering will be provided to protect and provide compatibility with adjoining properties; (e) Signs and proposed exterior lighting arranged to promote traffic safety and minimize undue glare and incompatibility or disharmony with adjacent properties; (f) (g) (h) Adequate refuse and service areas; Required setbacks and other open space; Height; The Honorable Chair and Members of the Board of Adjustment April 14, 2004 Page 4 (i) Landscaping; (j) Renewal and/or termination dates; and (k) The use will be reasonably compatible with surrounding uses in its function, its hours of operation, the type and amount of traffic, the building size and setbacks, its relationship to land values and other facts used to measure compatibility. and (5) Such exception is any way adversely effects the public interest. Inconsideration of the above criteria, the boards shall examine the application, which should be of sufficient detail that it addresses the criteria provided above. The board should also considerthe testimony and evidence provided by the applicant or other interested parties relative to the application. The boards may question the applicant and interested parties relative to the application in order to flush out any other evidence deemed relevant by the boards to determine whether or not the applicant satisfies the special exception criteria. The board should also follow other applicable quasi-judicial rules including an applicant's right to cross-examine adverse witnesses and accepting expert testimony only from duly qualified experts. Although not specifically required by the code, the Planning and Zoning Board has required applicants to submit a conceptual plan so that the Board could adequately apply the special exception criteria. We believe requiring a conceptual plan is a valuable tool and necessary competent substantial evidence in considering the current special exception criteria. However, the City may wish to consider amending the Code such that the conceptual plan is legislatively imposed by the City Council. In City of Naples v. Central Plaza of Naples, Inc., 303 So. 2d 423, 425 (Fla. 2nd DCA 1974), the court found that the only criteria which may be considered are those which are set forth in the Ordinance itself. Imposition of Conditions and Safeguards on Approved Special Exceptions The Board of Adjustment has the discretion, on a case -by -case basis, to impose reasonable safeguards and conditions on the approval of any special exception. It is our view that such reasonable conditions must tend to reduce any adverse impact which the special exception use may have upon the community or upon its neighbors. Further, the conditions must bear a relation to the standards set forth in the ordinance, cannot be arbitrary or discriminatory, and must be supported and necessitated by competent and substantial evidence. See Board of County Commissioners v. Snyder, 627 So. 2d 469 (Fla. 1993). The Honorable Chair and Members of the Board of Adjustment April 14, 2004 Page 5 Importantly, any conditions and safeguards must be expressly and clearly made a part of the special exception approval to be valid and enforceable. In re Kostenblatt, 640 A. 2d 39 (Vt. 1994) is instructive on the importance of this point. In Kostenblatt, the Vermont Supreme Court ruled that a property owner was not bound by, his representations at a zoning board special exception hearing, but only by the conditions imposed on the face of the permit. Particularly, the owner represented that a proposed firing range would have a maximum of five people at a time and would only allow 625 gun shots per day. The board approved the special exception on only the express conditions relative to the days and months of operation of the firing range. After the firing range commenced operations, the neighbors complained that the property owner was violating the special exception permit conditions because the use was exceeding the representations that the property owner made at the special exception hearing. The property owner was, however, complying with the express conditions imposed_ by the board on days and months'of operation. Because the property owner was in compliance with the express conditions, the court held that the property owner was not in violation of the permit as argued by the neighbors. Conclusion Special exception applications must be approved by the Board of Adjustment if the applicant demonstrates by competent substantial evidence that the application complies with the standard of review criteria for special exceptions. The Board of Adjustment may expressly and clearly impose reasonable conditions and safeguards on a special exception permit. However, a special exception application may be denied if the application fails to comply with the standard of review criteria for special exceptions, is not in compliance with the comprehensive plan, or is adverse to the public interest. We hope the foregoing is helpful and responsive to your inquiry. If you have any questions please feel free to call our offices Anthony A. Garganese City Attorney AAG/Ig cc: City Council City Manager Planning & Zoning Board Todd Peetz, City Planner