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HomeMy WebLinkAboutMinutes 06-05-2007 Regular�- CITY COUNCIL. REGULAR MEETING CITY HALL ANNEX 111 Polk Avenue, Cape Canaveral, Florida TUESDAY June 5, 2007 7:00 PSI MINUTES CALL To ORDER: In the absence of the Chair, Mayor Pro Tenn Hoeg called the meeting to order at 7: 00 P.M. ROLL CALL- Council Members Present: Mayor Pro Tem Council Member Council Member Mayor Council Member Others Present: Bob Hoog Leo Nicholas Buzz Petsos Rocky Randels Shannon Roberts City Manager Bennett Boucher City Attorney Anthony Garganese City Clerk Susan Stills Building Official Todd Morley Acting Public Works Director Walter Bandish CONSENT AGENDA: 1. City Council Regular Meeting Minutes of April 3, 2007 2. City Council Regular Meeting Minutes of May 1, 200701 3. City Council Regular Meeting Minutes of May 15, 2007. 4. Proclamation for National Managerrent Week. Rev. Mayor Randels stated that the Conflict of Interest Form completed by Mayor Pro Tenn Hoog would be included with the May 15 meeting minutes. Mayor Randels asked if any member of Council, staff or interested parties desired to remove any of the Consent Agenda items for discussion. City of Cape Canaveral, Florida City Council Regular Meeting June 5, 2007 Page 2 of 13 No request was made to remove any of the items for discussion. Ms. Roberts asked if the City planned to do anything to honor its City management staff. Mayor Randels replied that none of City management staff were members of the Florida Space Coast Council National Management Association. Ms. Roberts stated that the purpose of the week was to generically honor those in management similar to her question at a previous meeting related to honoring City staff during Public Works Week. She asked if as a Council they could be thanked publicly as a part of this forum. Mr. Boucher stated that he would share her sentiments with staff during the morning meeting. A motion was made by Mr. Nicholas and seconded by Mr. Petsos to Approve Consent Agenda items No. I through 3. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tens Moog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms. Roberts, For. CONSIDERATIONS: S. Motion to Approve: Proposal for sanitary sewer Force Main Construction Support in the Amount of $21,614. Waiter Bandish, Assistant Public Works Director, explained that this was project management related to a critical line and an on -site engineer was needed to oversee the project. Mayor Randels explained that the firm would also produce the as -built drawings and submit a Certification of Construction. Ms. Roberts questioned Task 5 related to negotiation of change orders. Mr. Bandish replied that this would assist in adherence to the budget. Mayor Randels called Mr. Davies to the podium_ Mr. Steve Davies, General Contractor and Project Engineer, of Brown and Caldwell, explained that the concept of the change order was to reduce the pride. Mr. Davies explained how some things might not be required; however, they would proceed with anticipated caution. Mr. Davies stated that in crossing State Road Al A they might want to directional drill versus jack and boar. Mr. Davies informed that Expertech developed several ways to make the job more effective. Mr. Petsos questioned the number of monthly meetings related to separate tasks. Mr. Davies stated that $11,800 was calculated for meetings. However, he said that a fewer number of meetings would decrease costs. Mr. Davies stated that his goal was to find enough fuming to pay the engineer. Mayor Randels pointed out that there was funding for one Change order. Mr. Davies responded that one Change Order meeting was planned with Expertech. Mayor Pro Tern Hoog replied that the price was fair and if he could save the engineering fees that would be beneficial. Mr. Davies explained hour they developed a bare bones concept. Mayor Pro Tem Hoog expressed the possibility of an obstruction. Mayor Randels questioned Ms. June Smith as the monitoring manager. Mr. Davies informed that (Ills. Smith's had returned to work part-time. Mr. Davies informed that he is a Project Manager and logically he served in the interim and Ms. Debra [Ingersoll] Cole would sign and seal the documents City of Cape Canaveral, Florida City Council Regular !Meeting June 5, 2007 Page 3 of 13 for the state. Mr. Davies responded to Ms. Roberts that he resides in Orlando; however, he would be on --site during the project. Mr. Davies also informed that the project would begin within 45 -days from the signed contracts and receipt of the shop drawings related to purchasing materials. A motion was made by Mayor Pro Terri Hoog and seconded by Mr. Petsos to Approve the Proposal for sanitary Sever Force Main construction support in the Amount of $ The vote on the motion carried 5.0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms. Roberts, For. G. Motion to Approve: Request for State and Federal Transportation Project Funding. Rev. Mayor Randels reviewed the previous year's projects: 7) Reconfigure alignment of intersection of State Road Al A, International Drive and N. Atlantic Avenue (Old State Road 401); 2) Construct a pedestrian overpass at State Road Al A and Columbia Drive; 3) Install a tragic signal with pedestrian features at State Road Al and Columbia Drive; 4) Install an overhead boom/ mast arm signals at (4) locations at State Road Al A; 5) Street lighting plan and implementation at State Road Al A; 6) Synchronize traffic tights on State Road Al A; and 7) Design and construct an urban roadway profile for State Road Al A. Mr. Boucher informed that only item No.1 made the list. Mayer Randels noted that today's tragic accident was an indication that action was needed. Mr. Boucher reported that the Florida Department of Transportation had not implemented any of the items on the project - funding list to date since 1999. Ms. Roberts questioned the Columbia Avenue overpass as well as pedestrian traffic signals that appeared to be conflicting. Mayor Randels clarified that those projects were listed for either one but not both. She also questioned the street lighting plan and implementation. Mr. Boucher replied that this was part of the 1999 plan. Ms. Roberts mentioned to include these projects in the city's strategic planning session. Mr. Boucher stated that all of the justification and community input was done as well as the associated funding costs and the awaited decision was from the Florida Department of Transportation. Ms. Roberts mentioned that the project was eight years old and discussion reflective of the never members in the community might be warranted. Mr. Boucher informed that Mr. Mayors now serves on the Brevard Metropolitan Planning Organization and he could argue the points in favor of priority. Mr. Petsos stated that Item Number 7, to design and construct curbing for State Road Al A, had a major impact to the City. Mayor Randels clarified Mr. Nicholas' request to re- prioritize Item Number 7 up to Second place and reorder lterns Numbers 3 through B accordingly. Ms. Roberts suggested revisiting this discussion during the year as an Action Item in anticipation of the coring year. City of Cape Canaveral, Florida City council Regular Meeting June 5, 2007 Page 4 of 13 A motion was made by Mr. Nicholas and seconded by Ms. Roberts to Re- Prioritize the Request for State and Federal Transportation Project Funding Moving Stern No. 7 to the second Place and Reordering items 3 through 5. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tens Hong, For; Mr. Nicholas, For; Mr, Petsos, For; Mayor Randels, For and Ms. Roberts, For. A motion was made by Mr, Nicholas and seed by APIs. Roberts to submit the Request for State and Federal Transportation Project Funding. The vote on the motion carried 5-3 with voting as follows: Mayor Pro Tern Hoog, Far; Mr. Nicholas, For; Mr, Petsos, For Mayor Randels, For and Ms. Roberts, Far. ORDINANCES: First Public Head 7. Motion to Approve: ordinance No. C�-�7, Amending chapter 110, clarifying the Intent of the R -4, R -2, and R4 Residential zoning Districts, Defining the Terms "`Resort Dwelling' and "Resort Condominium," for second Reading. Mayor Randels summarized that the proposed Ordinance would prohibit Resort Dwellings and Resort Condominiums within the R -1 , R -2, and R-3 Residential zoning Districts and Provide a Permitted Use in the commercial zoning District. The proposed Ordinance establishes non -conforming use status for expiration. Mayor Randels explained that discussion elevated from a parking, garbage issue to a life/ safety issue. Mayor Randels commended the Planning and zoning Board for their efforts. Mayor Randels asked the audience to refrain from extraneous comment in order to allow the C ouncil ample discussion time on the issue. Mayor Randels review the six items attached to the City Manager's report as: t) Proposed Ordinance 4 -2007; Planning & Zoning Board recommendation letter; Building Official's 05/29/07 memo for changing occupancy classification; City Manager's analysis of 0 1/05/07; Building Official's 03121/07 memo on occupancy classification; and the city Planner's consistency review memo of 05/16/07. The Ordinance was properly noticed as a First Public Hearin. Attorney Oarganese stated that it might be beneficial to address the resulting flaw chart from the Planning and zoning Board meeting that he used to draft the Ordinance. He explained that there were stringent Building and Fire Code requirements that would apply to Resort Dwellings and Resort Condominiums. He referenced the flowchart that showed how in, "not allowing resort dwellings, then no enforcement was required. However, if the Council decided to change the code, then the concept would allow "Resort Dwellings" and "Resort Condominiums" as an authorized use, they would need to be defined in the City Code, and they would be allowed as an existing use in some zoning district. According to the flowchart, the Planning and zoning Board recommended to allow these uses in the C--1 zoning district provided a residential special exc was granted. As a result, these were subject to Building and Fire Code Inspections, state licensure of the units before they were allowed too rate as well as an a . operate ap propriate Certificate of Occupancy. City of Cape Canaveral, Florida City Council Regular Meeting June 5, 2007 Page 5 of 13 Attorney Garganese related that the Building official testified that there were different Certificates of occupancy requirements for Resort Dwellings and Resort Condominiums. Attorney Garganese concluded that the existing Resort Dwellings would be grandfathered under certain circumstances. Individuals would have to register their intent to have a Resort Dwelling or Resort Condominium with the City Manager. Within 30 days of registering their intent, they would need to submit a life/ safety plan with the Building Official which would basically explain what they intend to do to bring the unit into compliance with building and fire codes. Within 90 days thereafter they would need to file the actual plans and specifications to do the work required to bring therm into compliance with building and fire codes. All of this would need to done within one year with extensions of time granted with good cause shown to the building official and fire chief. Finally, these resort dwellings and resort condominiums would not be allowed in any other zoning district. Attorney Garganese reviewed the Ordinance and referred to Pages 3 and 4 for the statutory definitions of Resort Dwellings and Resort Condominiums. Attorney Garganese referred to Subparagraph (15) of the proposed Ordinance which read, "Resort dwellings or resort condominiums duty licensed by the State, provided a special exception for a residential dwelling has been granted for the subject property. " Attorney Garganese then referred to Subparagraph (1) Section 110- 485(a), Nan - conforming Use Status that requires that the owner file a Notice of Intent with the City Manager. Mr. Petsos asked if the language related to existing dwelling units. Attorney Garganese replied any dwelling units. Attorney Garganese proceeded to Subparagraph (2) and clarified that if the owner failed to obtain the licensure and Certificate of Occupancy, then they were barred to obtaining that type of use. Attorney Garganese reviewed Subparagraph (4) that outlines the owner's responsibility to comply subject to the Building Official and the Fire Chief. Attorney Garganese referred to Page 8 and outlined how one could lose non-conforming status. Lastly, Subparagraph (d) emphasized that resort dwellings and resort condominiums must meet the City's zoning and Certificate of Occupancy requirements and the City could seek injunctive relief for non - compliances. On a final note, Section 110 -486 reads that, "It shall be unlawful for any person to rent a dwelling unit for less than seven (7) consecutive days. Mayor Randels reviewed the content of the Planning and Zoning recommendation letter stating that the Board did not desire to see resort dwellings in the R_1 x R -2, and R -3 but in the C -1 zoning district. Mayor Rarxlels also noted that anyone who has been or desired this use has a 30-day window from the approval of this Ordinance. Mayor Randels reviewed the studies performed by the City Planner seeking to find if resort dwellings and resort condominiums were consistent. Todd Peetz submitted a report determining that the businesses were not favorable in the R-1, R-2 R-3 zoning districts along the ocean or the river. Ms. Roberts thanked the City Attorney, and Dave Sargeant, Fire Chief, and Todd Morley, Building office for their input during the discussion. Mayor Randels read Ordinance No. 04-2007 by title. City of Cape Canaveral, Florida City Council Regular Meeting June 5, 2007 Page 6 of 13 AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, FLORIDA, AMENDING CHAPTER 110, ZONING, OF THE CODE OF ORDINANCES; CLARIFYING THE INTENT OF THE R -'I, R -2 AND R-3 RESIDENTIAL ZONING DISTRICTS; DEFINING THE TERM "RESORT DWELLING "; DEFINING THE TERM "'RESORT CONDOMINIUM "; PROVIDING FOR THE LOCATION AND REGULATION OF RESORT DWELLINGS AND CONDOMINIUMS UNDER CONDITIONS STATED HEREIN; AMENDING THE SUPPLEMENTAL ZONING DISTRICT REGULATIQNS TO RESTATE THAT ANY RENTAL OF A DWELLING UNIT SHALL BE FOR A MINIMUM OF SEVEN (7) DAYS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; INCORPORATION INTO THE CODE; SEVERABILITY; AND AN EFFECTIVE DATE. Mr. Nicholas questioned the "no" side of the flow chart and said that a no would still allow for 7 -day rentals. He Concluded that whether or not the Code was Changed, the City would still allow for a minimum of 7-day rentals. Attorney Garganese affirmed. Mr. Nicholas stated that the pays rentals concerned him. Attorney Garganese stated that it was a carry forward. Mr. Nicholas stated discussion appeared to ultimately return to the same position; a permitted minimum 7-day rental of only three times per year. Attorney Garganese affirmed and stated that doing so would not incur the licensing or Certificate of Occupancy requirement. Ms. Roberts questioned the terminology related to resort dwellings and asked if that was an all - encompassing dwelling unit. Ms. Roberts questioned if each unit owner would need to be licensed? Mr. Boucher confirmed that one manager could handle all of the licensing. Mr. Boucher replied that one resort condominium dwelling was under State enforcement proceedings. Mayor Pro Tem. Hoop questioned how one agent could represent more than one condominium. Mr. Boucher affirmed that that was permissible if that individual were properly licensed by the State. Ms. Roberts expressed concern that the license given to the larger community could result with a possible loss of a licensing provision. Mr. Boucher explained how the requirement would apply to a unit owner versus the entire condominium. Ms. Roberts referred to Page 8, under Subparagraph (3) and asked if the provision was referring to normal citizen complaints. Mr. Boucher stated the provision was addressing life/ safety type issues. Ms. Roberts expressed a oancem from the previous Planning and Zoning Board discussion and asked if one year were long enough to obtain the licensing and the required provision in fight of extension with good cause. Mr. Boucher stated that he would defer to the Fire Chief and the Building Official. Fire Chief Dave Sargeant replied that the first issue was the number of people that registered with the City Manager and from that point inspections would follow. Chief Sargeant stated that if plans were submitted within 90 days and a permit was issued, then the application would have to meet the requirements. Ms. Roberts stated that one of the residents of the community brought up the question of transient dwellings and how the ordinance would address transient apartments, rooming houses, and bed and breakfasts. Attorney Garganese replied that the Council would address the transient use called hotel and motel that was in the Code. He stated that the Ordinance did not specify other transient uses that were licensed by the State. However, the Council had a blanket City of Cape Canaveral, Florida City Council Regular Meeting June 5, 2007 Page 7 of 13 protection with the use of its minimum of 7-day rental provision. At this time, discussion on other transient dwellings could occur at another date. Ms. Roberts stated that some of the residents would express the concern that the Council was addressing the issue in a piece- meal and not a whole fashion. Todd Morley, Building official, reminded the Council that the Florida Building Code addresses those instances which Ms. Roberts listed under the R -'l occupancy classification use and would still require that the lifet safety issue be met; however, whether it was a permitted zoning use was another issue. Attorney Garganese pointed out that he did not believe that the Code allowed transient apartment complexes. Mr. Boucher informed that under the state Statute for transient apartments, 25 percent could be rented for short -term as long as 75 percent of the complex was long -term rentals. Ms. Roberts said that the State Statute did not address percentages of transient dwellings. Ms. Roberts recommended the inclusion of transient apartments, rooming houses, and bed and breakfasts. Attorney Garganese reminded that the ordinance was advertised related to Resort Dwellings and Resort Condominiums. Attorney Garganese stated that in his opinion, adding another category of use would require the Council to begin a new discussion. He stated that this would, however, delay the process. Mr. Nicholas agreed with the City Attorney and stated that this would require yet another advertisement and therefore would waste the time and money on this particular issue. Ms. Roberts recommended strongly that the Council move to add this to the other definitions. Mr. Petsos agreed with Ms. Roberts on the need to proceed and give clear direction to the Building and Fire Departments. Mr. Petsos expressed that the ordinance was adding a window of time to allow for additional properties for resort dwellings in residential zoning when these were not in the right zoning. He expressed this as an error upon an error. Mr. Petsos also expressed an amortization of the four or less units. Mr. Petsos stated that once the Fire and Building Inspectors write up their findings, are the existing units allowed to operate while they come into compliance. Chief Sargeant stated that permission to date depended on the lifet safety plan presented to the Fire Chief and the Building official. He stated that when the residence becomes a transient rental, then there must be a life/ safety requirement. Chief Sargeant related why Cape Winds was in compliance at this time; however, would not be if they did not present an acceptable lifer safety plan. Mr. Moriey added that if they did not have the requisite Certificate of occupancy, they were operating illegally and would not be allowed. Attorney Garganese stated that he agreed with the Building official on having a Certificate of occupancy and to have the State licensure to operate. Attorney Garganese stated that the City should not condone that at all. Attorney Garganese replied to lolls. Roberts that the Building official has cease and desist powers under the Florida Building Code that would not permit any additional short -term leasing and the City had the ability to seek an injunction for non - compliance. City of Cape Canaveral, Florida City Council Regular Meeting June 5, 2007 Page 8 of 13 Ms. Roberts questioned if this would require significant resource burden on the Fire Department. Chief Sargeant affirmed that it would be significant based on the number of units. He also informed of an imminent new fee schedule. Ms. Roberts asked a second question, if it were clear to the community that homestead status would be lost. Attorney Garganese affirmed that the community would be informed. Ms. Roberts also asked Mr. John Grandlich that the time -share owner owned for the week or was the rental an exchange. Ms. Roberts asked for clarification of the time-share ownership. Mr. John Grandlich, of the Ron John Cape Caribe Resort, explained hove since there were 52 weeps in a year a unit could have 52 individual owners. Mr. Grandlich explained that the owners had the option to occupy the unit, or exchange the unit, or rent the unit and a management agent would rent the unit through the Association. He stated that typically 20 to 30 percent of the owners might rent their units; however, typically the amenities were conducive of ownership. Attorney Garganese asked what percentage of the units was rented out more than three times in a given year. Mr. Grandlich replied that there were 52 owners and if they did not use their unit, they would attempt to rent the unit. The effort was to find some use for that unit. Attorney Garganese asked how many people were licensed by the State. Mr. Grandlich responded that the Association applied for the license and then the managing agent would have a Broker's license or be licensed by the state. Mr. Grandlich responded that the Resort Condominium fell under Section 721 of the Time share Act. Mr. Nicholas asked if there were more than three violations, does the entire organization lose its licensure. Mr. Grandlich questioned if the city had now included a previously approved Site Plan in its revised Ordinance. He asked if that was the Council's intent. He stated that there were three additional buildings to be constructed in the City's R -3 zoning. Mr. Grandlich stated that the resort however was up to code. Attorney Garganese explained hover the Site Plan was a vested Site Plan. The intent was established. Mayor Randels also clarified that the Site Plan was vested. Mr. Nicholas re- stated that if they were under blanket licensure and there were more than three violations what would occur. Mr. Lamar Russell stated that the unwritten idea in the Ordinance reads that a person has 30 days to register, 30 more days to submit a plan and 350 days to come into compliance and after that, the time expired. Attorney Garganese explained that the intent was to address existing units; however, Cape Caribe was an anomaly with a very limited issue of a vested plan. Mr. Grandlich explained that the Association was licensed under Florida Statutes Section 721 of the Time Share Code that describes the plans and accommodations for that unit. if you are the owner for that on you ask. the Association to handle the rental. Mr. Boucher explained that if there were violations related to one unit, then that one unit might fall out of the rental cycle under the City's regulations. Mr. Grandlich stated that he believed the Association was licensed. Mr. Grandlich explained that Mr. Boucher was looking at one unit, but 52 owners. He stated that he would need to review State Statute 503. Chief Sargeant stated that whether they were willfully negligent makes the difference. Mr. City of Cape Canaveral, Florida City Council Regular Meeting June 5, 2007 Page 9 of 13 Grandlich replied that the City was giving Notice and the managing agent was responsible for the unit. Mr. Nicholas requested more research on this subject. Attorney Garganese clarified that the violation of more than three times in three years was the threshold. Ms. Roberts raised the category of exchange practice. Mr. Nicholas replied that the practice could vary based on 52 weeks and the change of ownership. Mayor Pro Tern Hoog asked about Resort Condominiums in the C -1 zones. Attorney Garganese reminded that residential Special Exceptions were no longer allowed in the C -1 zoning district based on an ordinance that the Council previously passed. He Clarified that if the residential zoning special exception had been granted or a new Special Exception for residential for C -1 was only allowed on North Atlantic Avenue. Ms. Roberts replied that she hoped not to see a proliferation of theca on North Atlantic Avenue either. Ms. Roberts requested to address the transient apartments, rooming houses, and bed and breakfasts. Mr. Boucher summarized that this would be a separate Ordinance. Mr. Boucher also pointed out that the owner was required to obtain a Certificate of Non- Conformity status under this Code section. Mr. Boucher solicited Council's input related to the Building Official and City Attorney's opinion stated that to operate without compliance was in violation of the Code. Ms. Roberts stated that there were still three opportunities within the provision of the Ordinance allowing for short -term rental. She expressed that the City would want them to cease and desist on the short4errn rentals except for the three tunes per year. Mr. Petsos stated that anything more than the time was a lifel safety issue. Ms. Roberts pointed out that a person was not put out of business they would still be able to operate. Attorney Garganese Clarified that once someone triggered the threshold as a resort dwelling or resort condominium then they would carne under the life/ safety code. Attorney Garganese Clarified further that they Could rent their unit for 30-day periods for up to three times per year. Mr. Morley stated that that was a Florida Building Code Occupancy Classification for R -2, R -3 of more than 30 days. Mayor Randels questioned if occupancy could occur sporadically. Mr. Morley clarified that as soon as they operate under the more hazardous use then they fail under the requirements of the more hazardous use. Mr. Harry Pearson, Planning and zoning Board Member, explained how two things trigger the operation as a short term rental: 1) less than a thirty (30) day rental, and 2} if the unit was advertised as such. Ms. Roberts asked if advertising was a distinction. Attorney Garganese clarified that if the unit was advertised as a place of rental for a period of less than 30 days that would affirm the distinction. Mr. Morley clarified for the record that when it Comes to grandfathering the extension for good cause shown, it only applies to the 365 -day mark. Ms. Leah Selig questioned if someone had a single-family residence that met the Criteria to be grandfathered in and they comply with all of the standards and regulations, is that grandfathering as long as it continues to meet transfer of ownership. Mr. Nicholas pointed out that this was relative to Mr. Petsos's question related to amortization. Mr. Petsos stated that he was awaiting a motion to make an amendment to the motion. Attorney City of Cape Canaveral, Florida City Council Regular Meeting June 5, 2007 Page 10 of 13 Garganese clarified for Ms. Roberts that he recommended removing the provision of transferability from the Ordinance. He expressed that there was sufficient legal authority to declare that type of provision unlawful and he therefore recommended removing the provision. Ms. Roberts pointed out that a new property owner was required to be duly licensed. Attorney Garganese replied to Ms. Roberts that sway to address it was that the new owner would need to be duly licensed. As a buyer, one would need to be duly licensed at the time of property transfer. Ms. Roberts expressed that she did not desire to see the owner Convey the property with a nontransferable right. Mr. Boucher stated that the Certificate of Non - Conforming status would spell out how an application Could be lost. Ms. Roberts mentioned that if a condominium had an association management change then to make sure that the license continues. Attorney Garganese concluded that if the property owner sells then the new buyer must be licensed by the state. Mr. Petsos referred to the City Attorney's recommendation to remove the provision related to transferability. He questioned if amortization would be a defensible clause. Attorney Garganese firmed. Mr. Petsos clarified that he was seeking a 20 -year amortization schedule after which the non- conforming use status would no long be a permitted use. Mayor Pro Tem Hoog questioned why resort condominiums" were being removed from the amended motion. Mr. Petsos replied that four or less did not for the most part have property management. Ms. Roberts expressed her Concern with some of the approved establishments. Mr. Grandlich stated that what the Council was discussing would significantly impact tune- shares. Mayor Pro Tem Hoag stated that this would not apply the Ordinance fairly. Ms. Roberts stated that over the time of the ordinance, the resort dwellings would transition out. Mr. Petsos stated that he was looking out for the benefit of the citizens. He expressed that there were too many areas in the City where residents tolerate constant noise already. Ms. Roberts suggested bringing up Mr. Petsos's point on amortization at the same time as the other previously mentioned points aside from the main motions. Attorney Garganese clarified that he did not believe that the Council would be legally prohibited from imposing an amortization provision at a later time as long as the Council met the requirements for amortization provisions. GIs. Roberts stated that if the Council Could make progress at this meeting, then the amortization period could be added later. Mr. Nicholas stated that if the City imposed the amortization schedule, that would allow more time for more applicants for resort dwellings to come in. Mayor Pro Tem Hoog stated that personally he was ready to support the ordinance as written; however, the Changes would need to apply fairly to all. Mayor Pro Tern Hoog stated that he did not desire to take away a right and he would not support the ordinance due to the amendment. Mayor Randels expressed that he shared the concerns with someone who purchased a single-family residence and one who purchased a condominium. Ms. Roberts stated that the nuisance ordinance could provide for more stringent regulation and be tied back to this City of Cape Canaveral, Florida City Council Regular Meeting June 5, 2007 Page 11 of 13 ordinance as a short -term rental issue. Mr. Petsos clarified that they would still have the home with the right to rent for 30 days or more. Ms. Roberts expressed that the chronic nuisance ordinance would allow for more regulation and would point out the potential loss of license. Mr. Petsos offered to withdraw his amendment. Mr. Attorney Garganese stated that under Robert's Rules of order, the Council would need unanimous consent on the amendment to the main motion. An amendment to the main motion was made by Mr. Petsos and seconded by Mr. Nicholas for a proposed 20 -year amortization schedule in the ordinance related to the non - conforming use status for resort dwellings which would cease to exist after that time, The vote on the neon failed 3 -2 with voting as follows: Mayor Pro Tem Hoog, Against; Mr. Nicholas, against; Mr. Petsos, For, Mayor Randels, For and Ms. Roberts, Against. Mr. Nicholas expressed that the minimum 7-day rentals should not be allowed in the R -1 zones. He recommended an amendment to change the 7 days requirement to 30 days in Section 110-486. Mr. Randels clarified that this would apply to all including the C -'I zoning district and he concluded that such an action would eliminate the hotels. Mr. Nicholas expressed that his main concern was in the R -1 zoning district. Mayor Randels pointed out that a provision on the 7-day rental would require re- -advertisement. Attorney Garganese affirmed and stated that a change to the 7-day rental provision would require re-- advertisement and this could be included in the discussion on the transient apartments, rooming houses, and bed and breakfasts. A motion was made by Mr. NicWas to prohibit ' , day rentals in the R -'l zone. The motion failed for lack of a second. Mr. Van Townsend questioned if the ordinance would apply to any new time- shares in the City and the Port 30 -days after the Council's derision. Mayor Randels clarified that the City did not control the Port and he clarified that the Cape Caribe Resort has a vested site plan. Mr. Townsend stated that no new time- shares would be available to move into the area. Attorney Garganese stated that the ordinance would prohibit new time- shares in the R..1 , R -2, and R -3 zoning districts: however, new timeshares would be allowed in the C -1 zoning district. Mr. Townsend pointed that no more resort dwellings would operate within six to seven years and would therefore be eliminated. Mayor Randels concluded that that was in effect the intent of the ordinance to eliminate resort dwellings in the residential zoning districts. Discussion concluded that time shares would be allowed in C-1 zoning after the ordinance was adopted. Mayor Randels then informed that a referendum was passed to prohibit businesses on the ocean or the river. Mr. Townsend stated that he did not see any distinction between a time- -share and a resort dwelling. Mayor Randels replied that there was a distinction. Mayor Randels stated that a time -share was a type of ownership. Mr. Townsend stated that it was a type of ownership in which 52 people owned a unit and then rented the unit out for 7 -"days or less every year. Mr. Townsend commented in conclusion City of Cape Canaveral, Florida City Council Regular Meeting June 5, 2007 Page 12 of 13 that in his experience, the vacationer did not cause any trouble but the long-term renter, and he said that the nuisance ordinance should apply to all rentals. Mayor Randels informed that the City was working on a chronic nuisance ordinance. Mr. Townsend stated that with the State license for resort dwellings, if one does not comply the license was revoked for one year; however he questioned if in the City this was irrevocable. Mayor Randels concurred that there were three attempts to correct violations and upon the forth violation the license was taken away. A notion was made by Mayor Randels and seconded by Mr, Nicholas to Approve Ordinance No. 0&2007, Amending Chapter 110, Clarifying the intent of the R -1, 11-2, and R-3 Residential Zoning Districts, Defining the Term "Resort Dwelling" and "Resort Condominium " at First Public Hearing. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For Mr. Nicholas, For; Mr, Petsos, For; Mayor Randels, For and Ails. Roberts, For. REPORTS: I. City Manager • Mr. Boucher informed of the closing on the Kabboor d and Marder property on Friday, .dune e. Mr. Boucher reported that there would be a Resolution to the Florida League of Cities to make the City eligible to recoup some of the funding related to the purchase. • Mr. Boucher informed that he received a letter frorn an attorney representing one of the residents in the Holman Road area and he asked if the Council chose to ask the homeowners to come to the next meeting. Mr. Petsos suggested a spokesman. Mr. Boucher concluded that staff would notify the residents prior to the .July meeting. • Mr. Boucher thanked the Fire Chief, the Building official and the Planning and Zoning Board for their assistance with the Resort Dwelling/ Resort Condominium ordinance. 2. Staff Building official 0 No report. City Clerk • Ms. Stills reminded the Council to complete their Financial Disclosure Forms due on July i s City Attorney • Attorney oarganese referred to his legal opinion regarding the upcoming hearing before the Board of Adjustment related to public's right to speak at the Coastal City of Cape Canaveral. Florida City Council Regular Meeting June 5. 2007 Page 13 of 13 Fuels Hearing. His view was that they have a limited statutory right because of the relevancy of what could be presented by the public. He informed that as he anticipated because of that Opinion there would be a Declaratory Relief/ Injunctive Relief Action filed against the City in the next few days related to not accepting public input at the Board of Adjustment meeting on June 10. Attorney Garganese stated that once the suit was filed and staff reviewed it, they would need to determine if it was in the Cites best interest to proceed with that Hearing on June 14th. Staff did not choose to make that call until they have an opportunity to review the suit. He stated that the City was put on Notice by letter before he wrote his Opinion in that the public did not have the right to participate because of due process concerns and they would seek Declaratory Relief if it was the City's position that they had a right to speak. Attorney Garganese stated that in his Op ini on the public had a limited right to speak. His opinion hinged on whether a Court would determine that the Administrative Appeal was a quasi - judicial action. Because if the Court determined that it was not quasi-judicial, then that Statute would not apply. If the Statute applied, he stated that there were more issues than whether or not the public has a right to speak because there were provisions in the Statute that he believed were unconstitutional because they violate due process. He noted that in footnote one of his Legal opinion. Attorney Garganese concluded that he had serious resignations about an applicant not having the right to cross - examine people who want to testify against them in a quasi-judicial hearing. In his opinion, that was not right. The Statute does not allow cross - examine of members of the public that come to speak in a quasi -- judicial hearing. Attorney Garganese concluded that the Legislature thought that they could Statutorily take that right away. Attorney Garganese informed that both Attorney Torpy and the Building Official's Attorney, Karl Bohne, were aware of these issues. AUDIENCE TO BE HEARD: There were no comments from the audience. 3. city council There were no reports from the Council at this ti ADJOURNMENT: There being no furt�r business, the Chair adjourned the meeting at 10:12 P.M. AA n Rocky Randels, MAYOR Susan St' s C , CITY CLERK