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HomeMy WebLinkAboutBoard of Adjustment Packet - August 23, 2007 City of Cape Canaveral BOARD OF ADJUSTMENT MEETING AGENDA 111 POLK AVENUE AUGUST 23,2007 5:30 P.M. ("..,11 t" f'I,..rln,.. '-'011 l.V '-'I UC;;:I Roll Call NEW BUSINESS: 1. Consideration and Motion Re: Final Board Order of Administrative Appeal, Request No. 07-05, Coastal Terminals, LLC, Appellant. ADJOURN: Pursuant to Section 286.1015, Florida Statutes, the City hereby advises the public that: If a person decides to appeal any decision made by the Board of Adjustment with respect to any matter considered at this meeting, that person will need a record of the proceedings, and for such purpose that person may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise allowed by law, Persons with disabilities 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. This meeting may include the attendance of one or more members of the Cape Canaveral City Council and/or Quasi-Judicial Board members who mayor may not participate in Board discussions held at this public meeting. 105 Polk Avenue · Post Office Box 326 · Cape Canaveral, FL 32920-0326 Telephone: (321) 868-1222 · SUNCOM: 982-1222 .. FA,X: (321) 868-1247 www.myflorida.com/cape · email: ccapecanaveral@dl.rr.com DRAFT 08/14/2007 IN AND BEFORE THE BOARD OF ADJUSTMENT OF THE CITY OF CAPE CANAVERAL Administrative Appeal Request No. 07-05 COASTAL TERMINALS, LLC, A Florida limited liability company, Owner of property located at: 8952 N. Atlantic Avenue, Cape Canaveral, Florida, Appellant, v. THE CITY OF CAPE CANAVERAL, BUILDING OFFICIAL, TODD MORLEY Appellee. i ORDER THIS CAUSE having come on for consideration, after being duly noticed, before the Board of Adjustment of the City of Cape Canaveral, Florida on May 10,2007 and June14, 2007, at the request of Appellant, Coastal Terminals, LLC ("Coastal"). Pursuant to section 1 i 0-40, Cape Canaveral Code, Coastal seeks review of a final administrative decision of the City of Cape Canaveral Building Official, Todd Morley ("Building Official"), related to a City Code interpretation issue. In particular, Coastal seeks to reverse the Building Official's interpretation of the phrase "Liquefied Petroleum Products," as that phrase is used in section 110-354(c)(6), Cape Canaveral Code. The Board, having heard the arguments of Coastal, Building Official, other interested parties, and the evidence presented, and having reviewed the record and being otheJiNise fully advised, the following Findings of Fact and Conclusions of Law are incorporated into this Order as set forth herein. Standard of Review This action filed by Coastal is an administrative appeal taken under section 110- 40, Cape Canaveral Code. In relevant part, section 110-40 provides: Page 1 of 9 DRAFT 08/14/2007 (a) Any final administrative decision regarding the enforcement or interpretation of this chapter, where it is alleged there is an error by an administrative official, can be appealed as set forth in this section. Any of the following may seek review of an administrative decision pursuant to this section: n n n (3) Any person aggrieved or affected by any decision of the building official in the interpretation of any portion of this chapter. (b) Appeals shall be taken within 30 days after such administrative decision is made by filing a \vritten notice of appeal '.^lith the building official and the board of adjustment stating the name of the decision maker, date of the decision, applicable code provisions and the specific grounds for appeaL Upon receipt of the notice of appeal, the building official shall schedule the appeal before the board of adjustment and transmit all documents, plans, papers or other materials constituting the record upon which the action appealed from was taken. (c) The board of adjustment shall be required to review all administrative appeals and prepare written findings constituting its final decision on the administrative appeal based on the criteria set forth in this section. (d) Review of administrative decisions shall be based on the following criteria: (1) Whether the applicant was properly afforded procedural due process; (2) Whether the decision under review is supported by competent, substantial evidence; and (3) Whether the decision under review complied with applicable law, including a proper interpretation of any provision under this chapter. * * * (f) The board of adjustment shall have the right to reverse or affirm, wholly or in part, or may modify the order, requirement, decision or determination as ought to be made, and to that end, shall have all the powers of the officers from whom the appeal is taken. The concurring vote of four members of the board of adjustment shall be necessary to reverse any order, requirement, decision or determination of the building official. Importantly, section 110-40 contemplates an appellate proceeding which requires Page 2 of9 DRAFT 08/14/2007 the BOA to review the "specific grounds for appeal" and "the record" that the Building Official had before him when he rendered his interpretation decision. See S 100-40(b), Cape Canaveral Code (Board of Adjustment required to review the "specific grounds for appeal" and "the record"). This review by the Board of Adjustment is limited to a three prong test, which provides: (1) Whether the applicant was properly afforded procedural due process; (2) Whether the decision under review is supported by competent, substantial evidence; and (3) Whether the decision under review complied with applicable law, including a proper interpretation of any provision under this chapter. Neither Coastal nor the Building Official nor any other interested person argues that the "applicant," Coastal, was not properly afforded procedural due process. Therefore, only prongs two and three are relevant, and subject to review, in this case. Jurisdiction of the Board of Adiustment The Building Official does not challenge the Board of Adjustment's jurisdiction to hear this appeal. However, at the June 14, 2007 hearing, Ruth Anders, a citizen of Cape Canaveilsl, made seveial arguments, which in essence, challenge the Board of Adjustment's jurisdiction. In this case, the sequence of events is important: Coastal filed its application on August 29,2006; the Building Official rendered his final interpretative decision on February 1,2007; the City Council conducted first reading of Ordinance 01- 20071 on February 6,2007; and the City Council adopted Ordinance 01-2007 on February 13, 2007. From this sequence of events, it is readily apparent that the relevant actions resulting in this appeal occurred prior to the adoption of Ordinance 01-2007. Therefore, the Board of ,A~djustment finds that it has jurisdiction to hear Coastal's appeal pursuant to the due process clause under the Florida and United States Constitutions. The other arguments raised by Ms. Anders are without merit as well. Limited Issue Presented on Appeal Based on the briefs submitted by Coastal and the Building Official, the issue presented on appeal to the Board 6fAdjLJsth'lerit is whethefthe Building OffiCial's February 1, 2007 written interpretation decision regarding the meaning of the phrase "Liquefied Petroleum Products" under section 11 0-354(c)(6), Cape Canaveral Code, was supported by competent substantial evidence, and whether that decision complied with applicable I Ordinance No. 01-2007 repealed the special exception at issue in this case. Further, the Ordinance adopted a definition of "Liquified Petroleum Gas" which appears consistent with the Building Official's position in this appeal. Page 3 of9 DRAFT 08/14/2007 law. In addition, it is important for the Board of Adjustment to note that while this interpretation question arises out of Coastal's special exception application dated August 29,2006, the issue presented is not whether Coastai is entitied to a speciai exception for the storage of "liquefied petroleum products" under section 11 0-354( c )(6). Given that the Building Official's administrative decision resulted in the City not processing Coastal's application, the issue is whether Coastal's application for a special exception can proceed to an independent and separate special exception hearing. If the Board of Adjustment upholds the Building Official's interpretation in this case, the application shall not proceed to a special exception hearing. On the other hand, if the Board of Adjustment reverses the Building Official's interpretation, the application can proceed to a special exception hearing. At this time, the Board of Adjustment renders no decision or comment whatsoever on the merits of Coastal's special exception application because the merits of the application are not currently before the Board of Adjustment. Findings of Fact and Conclusions of Law on the Issue Presented Based upon the legal briefs, evidence and testirnony presented at these hearings, the Board of Adjustment finds: 1. Coastal and the Building Official, through their respective attorneys, submitted legal briefs and supporting exhibits to the Board of Adjustment prior to the May 10, 2007 scheduled meeting. Coastal's brief was submitted to the City by application dated March 1, 2007. The Building Official's brief was filed on April 27, 2007. Other Exhibits and testimony were also presented at the June 14, 2007 hearing relevant to the issue presented and relevant to the Board of Adjustment's jurisdiction to hear this appeal. 2. By application dated August 29,2006, Appellant, Coastal Terminals, LLC., filed an application with the City for a special exception under section 11 0-354(c)(6), Cape Canaveral Code. The application stated that the request is for "[a]bove ground storage of liquefied petroleum products, specifically liquid petroleum" on real property owned by Coastal at 8952 N. Atlantic Avenue, Cape Canaveral, Florida ("Property"). (Coastal's Brief EXHIBIT "A"). 3. The application states that the Property is currently zoned M-1 , Light Industrial and Research and Development District. (Coastal's Brief EXHIBIT "A"). 4. Soon after the application was filed, Coastal, through its attorney, made several requests to hold the special exception application in abeyance. (Board of Adjustment Composite EXHIBIT "C"). The application was held in abeyance for several months until January 17, 2007, when the City Manager received a letter Page 4 of 9 DRAFT 08/14/2007 from Coastal's Attorney requesting that the City "move forward in processing the application as submitted." (Board of Adjustment Composite EXHIBIT "C"). 5. On February 1 , 2007, the Building Official sent a letter to Coastal's attorney stating that based Oil his reading of section 11 0-354(c), Cape Canaverai Code, it was his opinion that Coastal's special exception application is "ineligible for processing because the City Code does not provide for special exceptions for the storage of liquid petroleum in the M-1 Zoning District." (Coastal's Brief EXHIBIT "B"). 6. In general, the Building Official's letter cites primarily to three sources in support of his decision: (a) state law; (b) public testimony provided by the Cape Canaveral Fire Chief at the August 23, 2006 Planning and Zoning Board meeting; and (3) legislative history of the City Code related to the differentiation between "liquid" ne+,.,.,.le"m anrl "I;,." 'e+;"rl" ~"~,."I,,U~ (f""a~+^fl~ D":e+ EXHIBIT "B") t-' .. VI U" U III..jU IlIJU f-lIJU VIIJ III. \ vv ;:'Lal;:' 011 I . 7. On March 1,2007, Coastal timely filed an appeal of the Building Official's decision in accordance with section 110-40, Cape Canaveral Code. Said appeal included a detailed legal brief, and supporting exhibits, refuting the code interpretation conclusion reached by the Building Official in his February 1, 2007 letter. 8. The Board of Adjustment was provided with well-written legal briefs and numerous supporting exhibits regarding the issues presented. The briefs and exhibits provided a significant amount of evidence. Such evidence included the evolving history of the City Code related to permitted uses in the City's industrial zoning district, the development history of Coastal's property, the history of "Liquefied petroleum," and Florida statutory and administrative code references to "petroleum products" and "liquefied petroleum gas." However, in rendering this decision, the Board of Adjustment has relied primarily upon the following salient facts as competent substantial evidence: A. Coastal filed an application for a special exception on August 29, 2006. B. On February 1, 2007, the Building Official interpreted the City Code that was in effect at the time the application was filed and in effect on February 1, 2007. C. At the time the Building Official rendered his decision, the City Code did not define "liquefied petroleum products,"Z 2 The Board of Adjustment recognizes that subsequent to Building Official's decision, the City Council, on February 20, 2007 amended the City Code and adopted a definition and additional regulations for "Liquified Petroleum Products. However, the new Code was not subject to the Board of Adjustment's review of this case because it was not in effect at the time Coastal submitted its application for special exception and not in effect at the time the Building Official rendered his decision. Page 5 of9 DRAFT 08/14/2007 D. Prior to July 5, 1967, the City Code differentiated between "gasoline, oil and petroleum storage tanks" and "storage tanks containing liquefied petroleum, commonly known as bottled gas" for purposes of imposing special requirements for uses in the M-2 zoning district. (Building Official's's Brief EXHIBiT "8;" excerpt of Ordinance 81-64, page 25; Coastal's Brief EXHIBIT "C"). It appears from reading - - - - - the excerpt that this differentiation was for purposes of imposing special requirements for fire protection purposes, not for purposes of identifying said storage as either a principle or special exception use. However, the intent of the M- 2 zoning district was for lands "used by a variety of commercial, storage, and industrial operations." E. On July 5, 1967, the City Council adopted Ordinance No. 81-64-L which created the M-3 zoning district that listed the "storage of petroleum products" as a principle use. (Coastal's Brief EXHIBIT "I"). F. On August 4,1971, the City Council adopted Ordinance No. 12-71. (Coastal's Brief EXHIBITS M. N. O. P and Q). Given its extensive scope, said Ordinance was apparently a comprehensive re-write ofthe City's zoning code, and it included a new M-3 zoning district which was different than the one adopted on July 5, 1967. "Storage of liquified petroleum products" was listed as a principle use in said district The reference to "gasoline, oil and petroleum storage tanks" and the differentiation referred to in paragraph 0 of this Order 'Nere eliminated. G. On or about July 11, 1973, The Canaveral Corporation (now Coastal Terminals, LLC according to Coastal), received a building permit from the City to "construct tNe (2) petroleum storage tanks and related pipe lines, lights, and motors" on property zoned M-3. (Coastal's Brief EXHIBIT "S"). H. On February 15,1983, the City Council adopted Ordinance No. 2-83 amending the City Code by adopting another set of comprehensive zoning regulations. (Coastal's Brief EXHIBIT "Z"; Ordinance 2-83). The amendments repealed section 630 of the Zoning Code and adopted a new M-1 zoning district which allowed the storage of "liquefied petroleum products" as a special exception in the M-1 zoning I. It also appears that the M-2 and M-3 zoning districts were eliminated by Ordinance No. 2-83 as well because the City's Official Zoning Map no longer depicted lands with the M-2 and M-3 zoning district designations. (Coastal's Brief EXHIBIT "AA" Official Zoning Map, dated March 15, 1983 (depicting lands zoned M-1 and not M-2 or M-3); see also, Coastal's Brief EXHIBIT "U" Official Zoning Map, dated October 28, 1975 (depicting lands zoned M-1, M-2, and M-3). Page 6 of 9 DRAFT 08/1412007 J. On or about August ii, 1986, Rockwell International was granted a special exception by the Board of Adjustment to "construct a building to store petroleum products" including petroleum oil and lubricants on property zoned M-1. (Coastal's Brief EXHIBIT "BB"). K. On or about June 10, 1991, Coastal Fuels Marketing, Inc. (now Coastal Terminals, LLC according to Coastal) was granted a special exception by the Board of Adjustment to construct a new 120,000 barrel storage tank for diesel fuel. (Coastal's Brief EXHIBIT 'DD"). 9. During an approximate twenty year time period, between 1964 and 1983, the City Council adopted severa! comprehensive amendments to the City's zoning code. These amendments directly impacted the kind of land uses that would be permitted in the various City industiial zoning districts. Although the Building Official argues that the 1971 amendment referenced in paragraph 8 F above "clearly" indicated the City Council's intent to prohibit the storage of "liquid" petroleum products, the Board of Adjustment finds that nothing in the record expressly represents what the City Council's intent was when it adopted the numerous amendments related to the issue presented in this case. 10. Notwithstanding the Building Official's contrary argument, the numerous code amendments referenced herein create an ambiguity, uncertainty and doubt as to the meaning of the phrase "liquefied petroleum products" as used in the Cape Canaveral Code, especially given that the phrase is not defined in said Code. 11. As a result of this ambiguity, uncertainty, and doubt, the Building Official looked to state law and other materials in order to assist him in defining the term "liquefied petroleum products." On the other hand, Coastal looked to the long history (over 20 years) of the City authorizing the storage of "liquid" petroleum products under numerous versions of the City Code, including versions which only permitted the "storage of liquefied petroleum." 12. Based on the competent substantial evidence presented, the Board of Adjustment finds Coastal's argument regarding the historical application of the City Code to be 13. In the case of doubt as to the meaning of a statute, courts may resort to contemporaneous construction (interpretation) of the statute in question, especially when the interpretation has prevailed for a long period of time. See 48 Fla. Jur. 2d Statutes S161. In other words, when interpreting ambiguous ordinances, it is permissible for the reviewing tribunal, like the Board of Adjustment in this case, to take into consideration the manner in which the ordinance has been interpreted by those required to administer the law and those affected by the law, Page 7of9 DRAFT 08/14/2007 especially when a particular interpretation has been long continued. ld.; see also, 48 Fla. Jur. 2d Statutes S163 (the well reasoned views of agencies implementing a statute constitute a body of experience and informed judgement to which courts and litigants may properly resort for guidance). 14. I n addition, contemporaneous construction of a statute constitutes an invaluable aid in determining the meaning of a doubtful statute. See, M., C.1.R. v. Schleier, 515 U.S. 323 (1995); Florida Wildlife Federation v. Collier County, 819 So. 2d 200 (Fla. 1st DCA 2002) (a court was required to be "highly deferential" to a department's interpretation of a statute given that the legislature delegated to the department the power to enforce the statute). Furthermore, the leading treatise on municipal corporations, McQui!lins on Municipal Corporations, cites favorably to legal authority that states that the contemporaneous construction of ordinances by officials charged with enforcing it prior to an interpretation controversy is "very persuasive." See 6 McQuillins Mun. Corp. S20.45 ("There is no question that the practical construction of a statute by those for whom the law was enacted, or by public officers whose duty it is to enforce it, acquiesced in by all for a long period of time is of great importance in its interpretation in a case of serious ambiguity." (Citations omitted)). 15. When contemporaneous construction of a statute is employed to determine the meaning of statute, the reviewing agency's interpretation need not be sole possible interpretation or even most desirable one, but need only be 'Nithin range of possible interpretations. Orange Park Kennel Club, Inc. v. Florida Dept. Of Business and Professional Regulation, 644 So. 2d 574 (Fla. 1st DCA 1994). 16. Despite all the various code changes by the City Council in this instance, there is no evidence in the record that indicates that the City Council intended to adopt the narrow definition of "Liquefied petroleum" being advocated by the Building Official. To the contrary, the application of the City Code during all the amendments evidences a different broader meaning. On three separate occasions in 1973, 1986, and 1991, the former building official and the Board of Adjustment, who were charged with interpreting and enforcing the City Code, approved the storage of petroleum products on industrial lands even though the petroleum would not fit the definition of "liquefied petroleum" being advocated by the Building OfficiaL Such products included what the Building Official would categorize as "liquid" petroleum including oil, diesel fuel, and gasoline. Further, no evidence was presented thatthe City Council disapproved of these decisions at the time. In fact, the prior City Council appears to have been on notice of a prior proposal to expand Coastal's tank farm in May of 1991 prior to the Board of Adjustment granting Coastal's previous special exception request. See Board of Adjustment EXHIBIT "0" submitted by Werner Grewe, a citizen of Cape Canaveral (Letter to Coastal from former Mayor Joy C. Salamon, dated May 2, 1991); See also, Paragraph 8 K herein. Had the Page 8 of 9 DRAFT 08/14/2007 Council disapproved of previous interpretations made by the Board of Adjustment and the previous building official, they could have amended the City Code to define the term "Liquefied Petroleum" as the Building Official advocates, especially after the last special exception was granted. The City Council did not, and we find that fact very persuasive regarding the code interpretation issue before us. 17. Given the fact that the City Code did not define the phrase "Liquefied Petroleum Products "at the time Coastal submitted its application for special exception, and at the time the Building Official rendered his interpretative decision on February 1, 2007, the Board of Adjustment hereby finds that the phrase should be construed to include the storage of "liquid" petroleum products in light of the City's long history of applying the phrase in this 'Nay. 18. in accordance with the findings stated herein, the Building Official's interpretation is hereby reversed, and Coastal shall be eligible to proceed with processing the August 29, 2006 special exception application. BASED UPON THE FOREGOING FACTS AND CONCLUSIONS, IT 15 HEREBY ORDERED: That the Building Official's decision, dated February 1, 2007, which concludes that Coastal's application for a special exception, dated August 29, 2006, is "ineligible for processing" is hereby reversed. Coastal's application may proceed through the special exception process in accordance with applicable provisions of the City Code. DONE AND ORDERED at Cape Canaveral, Florida this day of ,2007. BOARD OF ADJUSTMENT OF THE CITY OF CAPE CANAVER.AL, FLORiDA Earl McMillin, Chairperson Copies furnished to: Appellant, Coastal Terminals, LLC Building Official Cape Canaveral City Council Cape Canaveral Case File Page 9 of 9