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HomeMy WebLinkAboutOrdinance No. 07-2007ORDINANCE NO. 07-2007 AN ORDINANNCE OF THE CITY OF CAPE CANAVERAL, FLORIDA, AMENDING CHAPTER 110, ZONING, OF THE CODE OF ORDINANCES CREATING AN APPELLATE REVIEW PROCEDURE FROM FINAL DECISIONS OF THE BOARD OF ADJUSTMENT OR COMMUNITY APPEARANCE BOARD TO THE CITY COUNCIL; MAKING CONFORMING AMENDMENTS TO CHAPTER 110, ZONING, CHAPTER 22, COMMUNITY DEVELOPMENT AND CHAPTER 98, SUBDIVISIONS; CLARIFYING THAT APPLICANTS ARE RESPONSIBLE TO PAY THE COST OF NOTICES; 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 Cape Canaveral Board of Adjustment currently has certain final decision making authority under Chapter 110, zoning, of the Cape Canaveral City Code regarding variances, special exceptions and administrative appeals; and WHEREAS, the City Code currently authorizes the Board of Adjustment to make various other final decisions, including, but not limited to flood plain administration, nonconformities, concurrency, zoning district boundaries, wireless telecommunication towers, stormwater management and signs; and WHEREAS, currently, parties seeking to appeal a final decision of the Board of Adjustment under the City Code generally must do so through the judicial process in a court of law; and WHEREAS, prior to seeking relief through the court system, the City Council desires to create an appellate procedure where, at the request of aggrieved parties, the City Council would act in an appellate capacity to review any final decision of the Board of Adjustment; and WHEREAS, the City Council desires to amend the appeal procedure set forth in Chapter 22 regarding appeals from final decisions of the Community Appearance Board to be consistent with the appellate procedure set forth herein for appeals from the Board of Adjustment; and WHEREAS, the City Council desires to make additional conforming amendments throughout the City Code consistent with the appellate procedure set forth herein; and City of Cape Canaveral Ordinance No. 07 -2007 Page 1 of 9 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. Chapter 110 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 -2. Board of adjustment. (b) The board of adjustment shall have the powers and duties to consider applications for special exceptions, variances, and administrative appeals under this chapter. ARTICLE II. PROCEDURE; LAND USE DECISIONS DIVISION 1. GENERALLY Sec. 110.27. Authority. (a) Unless otherwise provided in this chapter, the city council shall render all final decisions regarding rezonings and the board of adjustment shall render all final decisions regarding variances, special exceptions and administrative appeals. Final decisions of the board of City of Cape Canaveral Ordinance No. 07 -2007 Page 2 of 9 adjustment and city council shall be subject to appellate review as set forth in this division. Sec. 110-28. Due process; special notice requirements. (b) In addition to any notice requirements provided by state law, all public hearings under this article shall be publicly noticed for at least ten calendar days prior to the date of the hearing. Said notice shall include the address of the subject property, matter to be considered and the time, date and place of the hearing. The notice shall be posted in the following manner: (3) Notifying, by certified mail, all owners of real property (including homeowner's and condominium associations) adjacent to and within 500 feet of the subject property. Applicants shall be solely responsible for the costs incurred for notification under this subparagraph. Sec. 110 -33. Appellate review. (ate 2p_ eals L Om hoard of adjustment or community aMear ance board. ( 1) &y party by any final decision of the board of adjustment or the community appearance board made under any chapter of this Code shall have the riiaht to appeal the final decision to the cily council. (2) Au such appeal shall be filed with the city manager within ten (10) calendar days of the date of the final decision. The city manager shall schedule the city council's consideration of the appeal for the next available regular city council meeting and shall provide the party seeking appellate review with written notice of the date time and location of said meetin . 3 The city council's consideration of the final decision beinp, a ealed shall be de novo. The city council shall hear and consider the evidence and _testimou of anY interested pga and shall either affirm or reverse wholly or in part, the decision of the board of adjustment or communily gppearance board. with respect to administrative appeals under section 110 -40, the city council's de novo review shall be of the record transmitted to the board of adjustment. by the building official. A concurring majority vote of the city council shall be required for any decision made City of Cape Canaveral Ordinance No. 07 -2007 Page 3 of 9 b the city council under this section. (4) Failure of any aggrieved party to appeal to the City Council pursuant to this section shall be deemed a waiver of that party�ght_to judicial review. Lb)-&neals from city council. Any pgAy gggdev by any final decision of the city council made under this section shall have the right to file an appropriate action in a court of competent jurisdiction. DIVISION 5, ADMINISTRATIVE APPEALS Sec. 110 -40. Administrative appeals. (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 ma' orit vote o f the bo and o f adj ustment shall b e nec essary for any deci sion made pursuant to this section ARTICLE III. ADMINISTRATION AND ENFORCEMENT DIVISION 1, GENERALLY Sec. 110 -87. Interpretation of chapter. It is the intent of this chapter that all questions regarding the interpretation and application of the provisions of this chapter shall be first presented to the building official and that such questions shall be presented to the board of adjustment only on appeal from the decision of the building official and that recourse from the decisions of the board of adjustment shall be to the c i ly council. Any a eal from a decision of the city council shall be to themurts as provided by law. It is further the intent of this chapter that the duties of the city council in connection with this chapter shall not include hearing and deciding questions of ' enforcement that may arise. City of Cape Canaveral Ordinance No. 07 -2407 Page 4 of 9 The procedure for deciding such questions shall be as stated in this section and this chapter. Under this chapter the city council shall have only the duties of: (1) Considering and adopting or rejecting proposed amendments or the repeal of this chapter, as provided by law; (2) Establishing a schedule of fees and charges; and- (3) Deciding appeals from final decisions of the board of adjustment or community appearance board pursuant to its authority under section _11_0 -33. Section 3. Conforming Amendments to Chapter 22, Community Development. Chapter 22, Community Development, 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 22. It is intended that the text in Chapter 22 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance): CHAPTER 22. COMMUNITY DEVELOPMENT ARTICLE III. COMMUNITY APPEARANCE REVIEW Sec. 22-46. Appeals and review. Any person(s) or the city aggrieved by a final decision rendered by the community appearance board may appeal the decision to the city council pursuant to the procedure set forth in section 110 -33 of this Code. � . 111 40 WrOMM Nor"01SIB 4 IL'@J I V I 1 4 4 11 It PAPW I I 1 "510 QQR 0 1 Mn 9 9 0 11 L owle 1 9 11 111! 1 VrB &1WO LU wwillw W. ' : ! ■ ■ : ! 11 1 '11or"MENVITA ! ■ ' ■ ■ ■ ■ ' ■ ■ "19 1 rk ■ City of Cape Canaveral Ordinance No. 07 -2007 Page 5 of 9 Section 4. Conforming Amendments to Chapter 86, Concurrency Management System. Chapter 86, Concurrency Management System, 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 86. It is intended that the text in Chapter 86 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance): CHAPTER 86. CGNCURRENCY MANAGEMENT SYSTEM ARTICLE I. IN GENERAL See. 86 -3. Appeals. (a) Except as otherwise provided in this Code, appeals from the decisions of the building official, concurrency manager, ar planning and zoning board along determinations under this chapter, including but not limited to a finding of concurrency deficiency, refusal to issue a concurrency compliance certification, project impact determination, refusal to issue a building permit, etc., shall be taken before the board of adjustment. Any such appeal must be filed in writing with the city clerk within 20 days of rendition of the decision in question, and the reasons for such appeal shall be set forth therein. The city clerk shall arrange for an appeal hearing before the board of adjustment, and the clerk shall notify the appellant in writing of the date, time and place of the hearing. (c) The board of adjustment shall base its decision on the requirements of the city's land development regulations. The board shall make its decision based upon its usual voting procedures. The decision shall be issued in writing stating the reasoning involved, and it shall City of Cape Canaveral Ordinance No. 07 -2007 Page 6 of 9 be rendered within 60 days of the close of the hearing. The decision of the board of adjustment ma a ppeal to the city council pursuant to section 110 -33 of this .code._ No s Section 5. Conforming Amendments to Chapter 90, Floods. Chapter 90, Floods, 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 90. It is intended that the text in Chapter 90 denoted by the asterisks and set forth in this ordinance shall remain unchanged from the language existing prior to adoption of this ordinance ): CHAPTER 90. FLOODS ARTICLE II. FLOOD DAMAGE PREVENTION DIVISION 2., ADMINISTRATION MW a Sec. 90 -50. Variance procedures. (c) Any person aggrieved by the decision of the zoning board of adjustment or any taxpayer may appeal such decision to the city council to section 110 -33 of this code circtiiL 4 cow. Section 5. Conforming Amendments to Chapter 98, Suhdivisions. Chapter 98, Subdivisions, 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 98. It is intended that the text in Chapter 98 denoted by the asterisks and set forth in this ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance): CHAPTER 98. SUBDIVISIONS ARTICLE I. IN GENERAL City of Gape Canaveral Ordinance No. 07 -2007 Page 7 of 9 Sec. 98 -5. Appeals and arbitrations. (a) Any person or persons, jointly or severally aggrieved by any decision of the board of adjustment; may appeal the decision to the city council pursuant to section 110 -33 of this cod , 3 0 1 n F5 after the date of the public hear .0131VII W as rcIIUL�l • Section 7. 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 8. 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 9. 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 10. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Council of the City of Cape Canaveral, Florida. [ADOPTION PAGE FOLLOWS] City of Cape Canaveral Ordinance No. 07 -2007 Page 8 of 9 ADOPTED by the City Council of the City of Cape Canaveral, Fl this 4t ay of December, 20'07.1` ca, ROCKY RAND LS, Mayor ATTEST: r :r SUSAN STILLS, Clerk Bob Hoog Leo Nicholas Buzz Petsos Rocky Randels C. Shannon Roberts For Against X x Second x Motion First Reading: 11/20/07 Legal Ad published: 11/24/07 Second Reading: 12/04/07 Appro a to legal form and sufficiency for the C* of anav eral only: ANTHONY A. GARGANESE, City Attorney City of Cape Canaveral Ordinance No. 07 -2007 Page 9 of 9