HomeMy WebLinkAboutOrdinance No. 04-2007ORDINANCE NO. 04 -2007
AN ORDINANCE OF THE CITY OF CAPE CANAVERAL,
FLORIDA, AMENDING CHAPTER 110, ZONING, OF THE
CODE OF ORDINANCES; CLARIFYING THE INTENT OF
THE R-1, 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 REGULATIONS 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.
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, the maintenance of the character of residential neighborhoods is a proper
purpose of zoning. See Village of Euclid v. Ambler Co., 272 U.S. 365 (1926); Miller v. Board of
Public Works, 234 P. 381 (Cal. 1925); and
WHEREAS, limitations on resort dwellings, resort condominiums, and other transient
commercial uses serve a substantial governmental interest in preserving the character and integrity
of residential neighborhoods. See Cope v. City of Cannon Beach, 855 P.2d 1083 (Or. 1393); Ewing
v. City of Carmel -By -The -Sea, 286 Cal. Rptr. 382 (Cal. Ct. App. 1991); and
WHEREAS, the City seeks to maintain residential zoning districts that are free from
congestion and overpopulation and that promote the permanent residency of families; and
WHEREAS, the City's zoning district regulations are intended to permit only those uses that
are expressly provided for under the list of principal uses and special exception uses for each zoning
category; and
WHEREAS, all other uses not expressly provided for as a principle use or special exception
are intended to be prohibited; and
City of Cape Canaveral
Ordinance No.04 -2007
Page 1 of 10
WHEREAS, resort dwellings and resort condominiums are not currently expressly listed as
a principle or special exception use within any zoning district; and
WHEREAS, the City Council acknowledges and recognizes that resort dwellings and resort
condominiums are separate business classifications that are licensed by the State of Florida under
chapter 509, Florida Statutes; and
WHEREAS, the City Council hereby finds that it is necessary to list resort dwellings and
resort condominiums within a specific zoning district in order to preserve the residential character
of portions of Cape Canaveral and to protect Cape Canaveral from becoming an overwhelming
transient type community; and
WHEREAS, the City Council is aware of, and relies upon, case law precedent which holds
that a property owner does not have a vested right in zoning ordinances and that the mere purchase
of land does not create a right to rely on existing zoning. See, e.g., City of Miami Beach v. 8701
Collins Ave, 77 So. 2d 428 (1954); Epifano v. Town of Indian .River Shores, 3 79 So. 2d 966 (Fla. 4"
DCA 1979); and
WHEREAS, the City Council also acknowledges that transient residential uses fall under
a different occupancy classification under the Florida Building Code than other residential uses and
that more stringent building and fire code requirements exists for transient residential uses for life
safety reasons; and
WHEREAS, the City Council also finds that in accordance with section 110 -121, Cape
Canaveral Code, a change in occupancy classification of a building requires that the building official
conduct an inspection of the building to determine whether it complies with applicable building code
requirements before issuing a new certificate of occupancy for the building based on the changed
occupancy classification; and
WHEREAS, while the City Council desires to afford some limited protections to property
owners that lawfully seek to use existing residential units as either a resort dwelling or resort
condominium, the City Council seeks to balance these limited protections with the City Council's
desire to protect the residential character of Cape Canaveral consistent With the City's
Comprehensive Plan and to protect the safety of transient occupants; and
WHEREAS, the City Council hereby finds that protecting the residential character of the
City of Cape Canaveral and promoting permanent residency are of paramount public importance;
and
WHEREAS, the City Council hereby also finds that the protection of transient occupants
that lease a resort dwelling and resort condominium, by requiring property owners to demonstrate
City of Cape Canaveral
Ordinance No.04 -2047
Page 2 of 10
compliance with all applicable building and fire codes, is of paramount public importance; and
WHEREAS, the City Council deems it to be in the best interests of the citizens of the City
of Cape Canaveral to provide for resort dwellings and condominiums as an additional permitted use
in the C -1 Low Density Commercial zoning districts, provided a special exception has been granted
that would allow the construction of a residential dwelling; 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 I. 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
Canaveral, Florida, is hereby amended as follows ( underlined type indicates additions and
�- 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 I. IN GENERAL
See. 110 -1. Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings
ascribed to them in this section, except where the context clearly indicates a different meaning:
Resort dwelling shall mean any individually or collectively owned one - family, two - family,
three - family, or four - family dwelling house or dwelling unit which is rented more than three (3)
times in a calendar year for periods of less than thirty (30) days or one 1) calendar month, whichever
is less or which is advertised or held out to the public as a place regularly rented for periods of less
than thirty-(30) days or one (1) calendar month, whichever is less.
City of Cape Canaveral
Ordinance No.04 -2007
Page 3 of 10
Resort condominiums shall mean anv unit or group of units in a condominium, coo ative,
or timeshare plan which is rented more than three 3 times in a calendar ear for periods of less than
thirty (3 0)_ days_ or one (1) calendar month, whichever is less.,_ or which is advertised or held out to
the public as a lace reizularlv rented for periods of less than thin (3 0) days or one 1 calendar
month, whichever is less.
ARTICLE VII. DISTRICTS
DIVISION 2. R -1 LOW DENSITY RESIDENTIAL DISTRICT
Sec. 110-271. Intent.
The requirements for the R -1 love density residential district are intended to apply to an area
of single - family unattached residential development. Lot sizes and other restrictions are intended
to promote and protect a high quality of residential development free from congestion and
ove o ulation to romote the permanent residency of single families and to enhance and maintain
the residential character and inteLntv of the area
Sec. 110-272. Principal uses and structures.
The principal uses and structures in the R -1 low density residential district are as follows:
Single - family dwellings. In no case shall there be more than one principal structure per lot
or parcel.
DIVISION 3, R -2 MEDIUM DENSITY RESIDENTIAL DISTRICT
Sec. 110 -291. Intent.
The requirements for the R -2 medium density residential district are intended to apply to an
area of medium density residential development with a variety of housing types. Lot sizes and other
restrictions are intended to promote and protect medium density residential development maintaining
an adequate amount of open space for such development. Further, the provisions herein are intended
to romote areas free from conizestion and oveLpovulation, to romote the permanent resident of
families and to enhance and maintain the residential character and inte)z of the area.
City of Cape Canaveral
Ordinance No.04 -2007
Page 4 of 10
Sec. 110-292. Principal uses and structures.
In the R -2 medium density residential district, the principal uses and structures shall be:
(1) Single - family dwellings;
(2) Two - family dwellings;
(3) Multifamily dwellings; or
(4) Public schools.
Notwithstanding the foregoing, there shall be no more than 15 dwelling units per net residential acre,
DIVISION 4. R -3 MEDIUM DENSITY RESIDENTIAL DISTRICT
Sec. 110-311. Intent.
The requirements for the R -3 medium density residential district are intended to apply to an
area of medium density residential development with a variety of housing types. Lot sizes and other
restrictions are intended to promote and protect medium density residential development maintaining
an adequate amount of open space for such development. Further-the provisions herein are ,intended
to pr omote areas free from congestion and ovep2opulation, to promote the permanent resident of
families and to enhance and maintain the residential character and integrity of the area.
Sec. 110-312. Principal uses and structures.
In the R -3 medium density residential district, the principal uses and structures shall be:
(1} Single - family dwellings;
(2) Two - family dwellings;
(3) Multifamily dwellings; or
(4) Public schools.
City of Cape Canaveral
Ordinance No.04 -2007
Page 5 of 10
Notwithstanding the foregoing, there shall be no more than 15 dwelling units per net residential acre;
DIVISION 5. C -1 LOW DENSITY COMMERCIAL DISTRICT
Sec. 110 -332. Principal uses and structures.
In the C -1 low density commercial district, the following uses and structures are permitted:
15 Resort dwellinjas or resort condominiums dul licensed bv the state rovided a
s ecial excep for a residential dwelling has been ranted for the subject ro ert .
Resort condominiums satisf in the certificate of occu anc and zonin requirements for
a hotel, motel under the City Code shall be _re ulated a principle use under section 110 -
3 32(4) Hotel,. motels.
ARTICLE Imo. SUPPLEMENTARY DISTRICT REGULATIONS
DIVISION 1. GENERALLY
Sec. 110 -485. Resort Dwellings- Resort Condoaminiums• Nonconforming Use Status;
Expiration..
� Resort dwellings and resort condominiums that are not located within a C -1 zoning
district shall be deemed a nonconforming use subject to the provisions of Chapter 110,
Article V Nonconformities of this Code provided said resort dwelling or condominium is
declared existing in accordance the terms and conditions set forth in this section.
In order to be declared existing under this section the owner of the resort dwelling
or resort condominium shall timel obtain a certificate of nonconforming - status from the city
City of Cape Canaveral
Ordinance No.04 -2007
Page 6 of 10
manager as follows:
UI The owner shall file a written notice of intent with the citv manag within thin
L30) days of June 19, 2007 which declares and re isters the owner's intent to duly_
license_ an existindwelling unit or condominium unit as a resort_ dwellinR or resort
condominium in accordance with applicable provisions of chapter 509, Florida
Statutes. The city M na er shall promulgate a„ form - to be used by owners for
purp of declaring _ -their intent under this subsection. . — A one hundred dollar
6 100.00) filing fee er existing unit and one hundred dollar 100.00 filing for a
preliminary nonconformin&_certificate is also hereby established and required to be
paid by the owner at the time of filing -the notice of intent. If the owner fails to timely
file a notice of intent within the thirty day time period fora particular dwellin or
condominium unit, the owner shall be barred from claiming nonconforming status
under this section for said unit.
(2) Except as provided in subsection (b)(5), within one (1) of filing the notice
of intent required by subsection (b)(1 , the owner shall have obtained the requisite
license from the Florida Dgpartment of Business and Professional Regulation and
certificate of occgpancy occupancy from the building official for the sub' ect dwellin or
condominium unit. -Proof of the requisite_licensure and certificate of occu shall
be submitted to the city mana er within the one year time - period, and u on recei t
and verification of the same, the citv manager shall issue. and record in the official
p ublic records of Brevard County Florida a certificate of nonconforming status to
the owner for the subject dwelling or condominium unit. If the owner fails to provide
proof of the license and certificate of occqpancy within the one year time period
required by this subsection, the owner shall be barred from claiming nonconforming
status under this section even though a notice of intent was filed under subsection
( b)(1 ) .
(3) Proof of the requisite certificate of occupancy shall require the owner to
satisfactorily demonstrate to the building official compliance with all applicable
building codes and to also satisfactorily demonstrate to the fire chief comp liance with
al�plicable fire codes. In furtherance of this - requirement _the owner shall be
required to file with the building official and fire chief a life safetyplan for the
subject dwellinp, or condominium unit within thirty 30 days followin the filin of
the notice of intent re uired under subsection (b)(1) unless filing of the life safet
p lan is otherwise required by state law. Said plan shall contain the information
deemed necessary by the building. official and fire chief in order to determine
compliance with the applicable building _and fire codes. Ui)on acceptance _of the life
safety plan by the buildin& official and fire chief, the owner shall have ninety (
da s in which to file detailed fans and s ecifications coverin all rep airs and
City of Cape Canaveral
Ordinance No.04 -2007
Page 7 of 10
im rovements re uired to demonstrate com Nance with all a licable buildin and
fire codes, unless filing of the plans and specifications is otherwise reeluired by state
law.
(4) The one year time period may be extended b th e building official or fire chief
for food cause shown, provided that the owner has demonstrated a ggod faith effort
to comply with the provisions of this section and the owner has not unlawfullsed
the subject unit in violation of this section after June 19, 2007.
LQ A preliminM certificate of nonconforming status for a resort dwelling or resort
condominium shall be issued for a dwellin unit that has not et been constructed
provided a site plan application for the construction of the dwellin uni has been
approved by, or filed with, the City by June 19, 2007, and pursuant to subsection
(b)(1). the owner has timely_ filed a notice of - intent with the city manaizer which
declares and registers the _owner's intent to dui license the proposed dwelling unit
or condominium unit as a resort dwelling or resort condominium in accordance with
applicable provisions of chapter 509 Florida Statutes when the unit is constructed.
However, won issuance of a prefiminM certificate of nonconfon status the
owner shall be required to comply with the following additional „conditions in order
to receive a final certificate of nonconformin status:
(i) If a site plan was filed, but not yet approved, before June 19, 2007, the owner
shall have one (1) Year from June 19 2007 to obtain site plan approval to construct
the dwellin units or condominium unit s
(Lfij the time the dwelling or condominium unit receives an initial certificate of
occupancy from the buildiniz official, the unit shall meet the buildin d fire code
standards a licable to resort dwellings or resort condominiums• and
{iii} Within sixty (60)LAa ys, of reeeivin a certificate of occupancy for a resort
dwelling or resort condominium unit the owner shall be required to obtain the
requisite license from the Florida Department of Business and Professional
Regulation for said unit and shall obtain a final certificate of nonconform status.
If the owner, constructs the units and fails to meet the aforementioned conditions, the
owner shall be barred from claiming nonconforminiz status under this section even
though a preliminary certificate of nonconforming status was issued.
Lcl Any resort dwelling or resort condominium deemed nonconforminiz pursuant to this
section shall lose its nonconforming status if any one 1) of the following occurs:
City of Cape Canaveral
Ordinance No.04 --2007
Page 8 of 10
The resort dwelling or resort condominium use is abandoned pursuant to
section 110 -197 of this Code;
The Division of Hotels and Restaurants of the Florida Department of
Business and Professional Regulation revokes the resort dwelling:,s or resort
condominium's license for whatever reason or if said license should otherwise
expire or lapse at any time for a period of time in excess of thirty (30) days.
M The resort dwellinR or resort condominium unit has been repeatedly found to
be in v of applicable build ,fire and zoning_code requirements on more
than three (3) separate occasions within the previous three year period, commencing
on the date that the most recent violation was cited. For p u uses of this subsection
the term violation- shall include those violations declared by the state or the city or a
combination of violations declared by the state and city.
L d j It shall be unlawful for an owner to operate a resort dwelling or resort condominium
in a zoniniz district other than C--1 Low Density Commercial District unless the owner has
obtained a certificate of nonconforming status under this section. In furtherance of the public
health, safety, and welfare of the public that occupy resort dwellinj2 and resort
�- condominiums the city manner is hereby authorized to take whatever lawful steps are
e
necssary with the assistance of the building - offica d
official an fir r
e chief, to equire that the
-- _. .._t -- - .._ � ._ - .. -� ..
operation of a resort dwellin or resort condominium within the city is in compliance with
the city's zoninja and certificate of occUancy requirements. Said steps ma include but are
not limited to, seeking injunctive relief in a court of competent jurisdiction.
Sec, 110 -486. Rental Restrictions on Dwelling Units.
It shall be unlawful for any person to rent a dwelling unit for less than seven (7) consecutive
da s in any zoning district excludin hotels motels under section 110-332(4) and resort
condominiums in the C -1 zoning district.
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
City of Cape Canaveral
Ordinance No.04 -2007
Page 9 of 10
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 19`"day of June,
2007.
Qoc
ROCKY RANDELS, Mayor
ATTEST: For Against
Bob Hoog X_
�-- Leo Nicholas Motion
Buzz Petsos Second
• Rocky Randels X_
SUSAN STILLS, City Clerk C. Shannon Roberts X
ls`Legal Ad Published: May 29, 2007
First Reading: June 5, 2007
2"d Legal Ad published: June 12,2007
Second Reading: June 19,2007
Approv- r .s to legal form and sufficiency for
the C'�• . 5- .anaveral only:
ANTHONY A. GARGANESE, City Attorney
City of Cape Canaveral
Ordinance No.04-2007
Page 10 of 10
BROWN, GARGANESE, WEISS & D"AGRESTA, P.A.
Altos at Law
Debra S. Babb- Nutcher''
Joseph E. Blitch
Usher L. Brown'
Suzanne D'Agresta"
Anthony A. Garganese`
J.W. Taylor
Jeffrey S. Weiss
Offices in Orlando, Kissimmee, Cocoa,
Ft. Lauderdale & Tampa
Vivian Cocotas
Scott J. Dornstein
Mitchell B. Haller
Katherine W, Latorre
Amy J. Pitsch
'Board Certified Civil Trial Lawyer
"Board Certified City, County & Local Government Law
Board Certified Appellate Practice
June 20, 2007
Susan Stills, City Clerk
City of Cape Canaveral
105 Polk Avenue
Cape Canaveral, FL 32920
Re: ordinance 04 -2007
Bear Susan:
Erin J. O'Leary'
Catherine D. Reischman
William E. Reischmann, Jr.
Of Counsel
Enclosed please find the signed Ordinances as referenced above. Please have the Mayor sign
and send an executed copy to me for our files.
Very truly yours,
r
Kristie .'Matta,
Assistant to Anthony A. Garganese
Ckdm
Enclosure
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Orlando (407) 425 -9566 Fax (407) 425 -9596 a Kissimmee (321) 402 -0144 @ Cocoa (866) 425 -9556 - Ft. Lauderdale (954) 670 -1979
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