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HomeMy WebLinkAboutMinutes 04-10-2007 SpecialCITY COUNCIL SPECIAL MEETING CITY HALL ANNEX 111 Polk Avenue, Cape Canaveral, Florida TUESDAY April 10, 2007 5:30 P.M. MINUTES CALL TO ORDER The Chair called the meeting to order at 5:30 P.M. ROLL CALL: Council Members Present Mayor Pro Tern Bob Hoog Council Member Buzz Petsos Mayor Rocky Randels Council Member Shannon Roberts Council Members Absent Council Member Leo Nicholas Others Present City Manager Bennett Boucher City Attorney Anthony Garganese City Clerk Susan Stills RESOLUTION: 1. Motion to Approve: Resolution 2007 -13; In Support of the Letter to the Florida Department of Environmental Protection, dated March 27, 2007 prepared by Ms. Ruth Anders. Attorney Garganese prefaced his remarks by stating that this is a policy Resolution that would address a certain audience such as the Governor, the Secretary of the Department of Environmental Protection [DEP] , the Local Central District Director of the Environmental Protection Agency in Orlando and the Brevard County local delegation. The purpose was to draw attention to what the Council believes was a policy problem. Before the DEP issued permits, then the DEP should be required to come before the local zoning jurisdiction and ask if this would be permitted. If DEP does not do this, then they ignore the policy directives of local elected officials that set land use and zoning policies for their respective jurisdictions. Attorney Garganese related how the City of Orange City was addressing a similar problem with a solid waste facility which DEP was required to permit. Orange City was also working with their local legislative delegation to make a policy change. City of Cape Canaveral, Florida City Council Special Meeting April 10, 2007 Page 2 Attorney Garganese concluded that the Resolution made two policy statements: 1) DEP should be required to check to local zoning officials prior to issuing any new construction permits for facilities that they permit for environmental purposes, and 2) that the City Council opposes the issuance of a construction permit by DEP for the expansion of Coastal Fuels because DEP did not ask the City if Coastal Fuels were properly zoned for that expansion prior to issuing that construction permit. Attorney Garganese stated that he went through trying to outline some of the case's facts. He attempted to convert 150,360 barrel storage tanks in gallons and based on industry standards it equated to 6,315,120 gallons of petroleum per tank which was a considerable amount of fuel. If this expansion were to occur it would increase the capacity of Coastal Fuels terminals by 72.36 percent. Current capacity is 415,560 barrels for gasoline storage and they proposed to add another 300,000 plus barrel capacity for gasoline which was an increase of 72.36 for that type of storage tank. This proposal has substantial impact on the Cape Canaveral community including but not limited to the environment, life safety and fire prevention. The proposed location of the expansion is less than 800 -feet from away from a large residential condominium within the City. The City has police powers granted to it from the Municipal Home Rule Powers Act as well as the Local Government Comprehensive Planning and Land Development Regulations Act for the purposes of making land use decisions within the City that have been recognized by the United States Supreme Court. The City has a Comprehensive Plan Policy which says that all development must be compatible with adjacent land uses. DEP did not consider these types of land uses when they issued the construction permit because they did not provide the City notice that they were considering this construction permit. Another point for emphasis is that DEP's position as represented by its ombudsman through E -mail was to ignore the elected officials and make administrative decisions. Attorney Garganese also made the point that the Building Official has made a determination that this expansion was not allowed in the City based on his interpretation of the zoning code which was adopted by the Council. Attorney Garganese read from the third WHEREAS clause on Page 3, "in the spirit of intergovernmental cooperation, efficiency, and common sense, DEP should be required to consult with local zoning officials and jurisdictions to determine zoning compliance before issuing a final permit before the construction of any facility." When they do not it would eventually cause conflicts between construction permits issued by DEP and local zoning decisions. It would allow FDEP permit holders to make unjustifiable claims that they may have a right to proceed in violation of City zoning regulations. The fourth WHEREAS clause outlines that the Florida Division of Alcohol and Tobacco has a policy that is completely contrary to the Florida Department of Environmental Protection. Attorney Garganese referred to Page 7 of that application which required the signature of the local zoning official before approving the permit. He stated that in his opinion, that defied common sense and he made that point in the Resolution. City of Cape Canaveral, Florida City Council Special Meeting April 10, 2007 Page 3 Attorney Garganese stated that the Resolution proceeds to urge the Legislature to amend Chapter 403 of the Florida Statutes to require DEP to consult with local jurisdictions and also urges DEP to amend its own rules, if they can, to require local zoning approval before issuing any permit for the construction of facilities. Attorney Garganese concluded that those were the recitals and they were restated in Sections 2 and 3 of Page 4 of the Resolution. Section Two was a request to DEP and the Legislature to change the law. Section Three was a statement of the Council's opposition of DEP's issuance of the construction permit for the expansion of Coastal Terminals facility without consulting the City officials for purposes of determining whether the expansion complied with local zoning regulations. Attorney Garganese reviewed who would receive a copy of the Resolution under Section Four. He concluded that the City of Orange City was also interested in the Resolution. Mayor Randels explained how the City Attorney reviewed Ms. Ruth Anders' letter dated March 27 for the development of the draft Resolution. Ms. Roberts raised the question of adding the word "security" in Page 2, Line 3. Attorney Garganese replied that terrorism was not raised; however, life, safety, and fire prevention were inclusive. Ms. Roberts referred to the fourth WHEREAS and addressed the "less than 800 - feet" parameter and stated that she favored Ms. Anders' suggestion of 375 -feet. Attorney Garganese replied that he could not substantiate 375 -feet; however, he had knowledge that related to less than 800 -feet. Ms. Roberts noted Page 4, Section 4 and she pointed out that there may be some peripheral State agencies that may need to be advised as well. Mayor Randels acknowledged at this time that Mr. Boucher's father passed away in Louisiana and he was unable to attend the meeting. Mayor Pro Tern Hoog informed that the Resolution was presented to 14 of the 15 municipalities; and all fourteen of the Mayors and delegates present from the Space Coast League of Cities were in support of the Resolution and planned to take it to the Legislator's in Tallahassee. Mr. Petsos expressed his favor with the Resolution; however, he did not choose to enter a point and counterpoint situation with Coastal Fuels. Attorney Garganese affirmed that it would not. Mr. Petos expressed his favor with the Resolution's focus on ignoring of Local Home Rule and the contrary to the procedures of the Alcohol and Tobacco Department. Mayor Pro Tern Hoog informed that Senator Haridopolous was made aware of the issue during their visit to Tallahassee. Mr. Dick Biel, of Solana Lakes, stated that he wanted the audience to understand that this Resolution requested the DEP to change their policies and procedures; however, it did not resolve their particular problem of delaying or them renewing their building permit. Mr. Biel stated that there were certain facts such as their initial legal advertisement that did not fully disclose their identity as everyone knows them in doing business as Coastal Fuels, not Transmontaigne. He said that this omission did not offer a chance for rebuttal. Mr. Biel stated that the company was seeking a two -year extension. He concluded that the Florida Department of Environmental Protection should deny their extension and direct them to resubmit their appeal under their full proper legal name. City of Cape Canaveral, Florida City Council Special Meeting April 10, 2007 Page 4 Mr. Petsos questioned Attorney Garganese on the legality of Mr. Biel's request. Attorney Garganese replied that the extension issue was narrow and the original construction permit was issued in July of 2006. Once the notice was published, any person or entity that chose to challenge had 21 days after the notice was placed in the paper. Attorney Garganese informed that in May Coastal Fuels would come before the Board of Adjustment to challenge the Building Official's interpretation on the zoning decision. In Attorney Garganese's view, this was the larger issue in which that City was best postured to address the issue. Mayor Randels clarified the City Attorney's view that the City's position was stronger in defending its zoning regulations. Attorney Garganese informed that there was documentation on record with DEP that Coastal Fuels had changed its name to Transmontaigne subsequent to a merger. When the Legal Ad was posted the name Transmontaigne was used. He stated that there was enough in the Notice to draw attention to the location aside from the name. Ms. Roberts questioned if Transmontaigne decided to appeal were there any advantage for the City to take a stronger position in the Resolution. Attorney Garganese replied that the Resolution was a non - factor before the Board of Adjustment. Ms. Roberts clarified that the City's stronger position was the zoning issue and the Council would not expend the City's resources with the DEP. Mr. Biel made the argument that the Resolution would not effectively stop them from obtaining a permit. Attorney Garganese stated that his general understanding of the law for the benefit of the Council and the audience, was that DEP issued two permits for the types of tanks. Assuming that the tank was constructed, they would then need an operations permit which addressed how the tank operated and whether it met all of the emissions requirements. Coastal Fuels had not yet applied for such a permit. The only issue that DEP has handled was whether or not they could construct a tank and there were certain requirements under administrative code regarding the construction of these tanks. An engineer certified their engineer, without any challenge and DEP stated that the tank met their requirements and permitted it for construction. The discussion at hand was why the tank was permitted without verification that it had been permitted under the local zoning regulations. Attorney Garganese concluded that this was a waste of resources issuing these types of permits that would not be implemented. Mr. Werner Grewe of Solana Lakes asked the City Attorney if the advertisement was directed to the public at large or if it were directed to the City. Attorney Garganese replied the public at large. Mr. Grewe questioned why they would address the public at large if they would not hear from the public. Attorney Garganese replied that Notice of Intent was part of their procedures. Mr. Grewe also stated, as Mr. Biel had pointed out, that the correct company name was not used. Mr. Grewe concluded that perhaps the citizens group could add that lack of the correct name to Ms. Anders' letter in an attempt to delay the permit extension. City of Cape Canaveral, Florida City Council Special Meeting April 10, 2007 Page 5 Mayor Randels read the Resolution by title. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, REQUESTING THAT THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION RECOGNIZE LOCAL ZONING LAWS AS PART OF ITS PERMIT PROCESSING REQUIREMENTS; OPPOSING THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION'S ISSUANCE OF A CONSTRUCTION PERMIT TO COASTAL TERMINALS, LLC. FOR THE CONSTRUCTION OF TWO 150,360 BARREL PETROLEUM STORAGE TANKS WITHOUT CONSIDERING COMPLIANCE WITH LOCAL ZONING REGULATIONS; PROVIDING FOR THE DISTRIBUTION OF THIS RESOLUTION TO STATE AND LOCAL OFFICIALS; REPEAL OF PRIOR INCONSISENT RESOLUTIONS, EVERABILITY, AND AN EFFECTIVE DATE. A motion was made by Mayor Pro Tern Hoog and seconded by Ms. Roberts to Approve Resolution 2007 -13. The vote on the motion carried 4-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, Absent; Mr. Petsos, For, Mayor Randels, For, and Ms. Roberts. Mr. Petsos questioned if staff would draft a letter in support of Ms. Anders' letter. Ms. Roberts pointed out that Ms. Anders also asked the City to substantiate the facts of her letter. Attorney Garganese responded that he did not have an opportunity to verify if that was done with the Building Official. Attorney Garganese advised that there were several statements in Ms. Anders' letter that he was not sure that the City would want to establish a position on in light of the pending Board of Adjustment hearing. Attorney Garganese informed that there were some statements in Ms. Anders letter that the Building Official might not have a problem substantiating; however, there were other provisions or issues that the City would address but not at this time. Mr. Petsos suggested that the City Attorney and the Building Official pull out and substantiate those statements in Ms. Anders letter that were facts. Mayor Randels stated that the letter was sent for use as a Notice of Intent to Petition under Section 125.9 would make the City a party to those statements. Mr. Petsos stated his expectation for the City Attorney and the Building Official to remove the facts and send a letter of substantiation based on those facts. Ms. Roberts suggested that the City Manager send a cover letter to Ms. Anders to confirm the data. Mayor Randels replied that Mr. Boucher would not return in time to draft the letter. Mayor Pro Tern Hoog said that the City Attorney recommended not divulging certain facts prior to the Board of Adjustment hearing. Attorney Garganese stated that to the extent that the Building Official could confirm without adversely affecting the City; however, he advised that there were some things in the letter that he did not think it appropriate for the City to confirm. Ms. Roberts explained how staff could go through her letter and substantiate the statements and then send an administrative letter to Ms. Anders from the City to substantiate the facts in a spirit of support. Ms. Roberts stated that this would also provide substantiation and clarification for the community. City of Cape Canaveral, Florida City Council Special Meeting April 10, 2007 Page 6 Mayor Randels concluded that the City Attorney and the Building Official would substantiate the factual information and forward a letter to Solana Shores, Solana Lakes and Ruth Anders. A motion was made by Mr. Petsos and seconded by Mayor Pro Tom Hoog to Review Ms. Anders' Letter Dated March 27, 2007 and to Substantiate Them as True. The vote on the motion carried 4-0 with voting as follows: Mayor Pro Tern Hoog, For; Mr. Nicholas, Absent; Mr. Petsos, For, Mayor Randels, For, and Ms. Roberts. DISCUSSION: 2. Municipal Feedback Questions from Mayor Mike Blake, City of Cocoa. Mayor Pro Tern Hoog explained that Mayor Blake requested input on this feedback survey by April 6 th related to: limited municipal spending, Consumer Price Index caps, eliminating local taxes, raising sales tax, and a one time transfer on Save Our Homes. Mr. Petsos replied that he spoke to the City Treasurer and she calculated that the City would lose 37.19 percent in revenue if taxes were rolled back to the 2004 rate. Mayor Pro Tern Moog reminded that Cape Canaveral was one City with a unique Ad Valorem taxing structure. He informed how he related that Cape Canaveral's Council was in favor of removing the School Tax and imposing a one and two -cent Sales Tax; however, City of Melbourne and City of Titusville were not in favor. He explained how this would affect their tourist industry. Mayor Pro Tern Hoog informed that on the Save Our Homes issue the consensus was to strike the one -time transfer and retain indefinitely. Mayor Pro Tern Hoog informed that he needed the Council's consensus. Council members agreed to meet on Thursday, April 12 at 5:30 P.M. for discussion. Mayor Randels pointed out that the current revenue was slightly over $2.4 million and if it were cut back the amount was just enough to pay the Sheriff's Department with nothing for the Fire Department or Streets. Mayor Pro Tern Hoog replied that the Council did not have to support it and he agreed that the City Treasurer was needed during the discussion. Mayor Pro Tern Hoog informed that one of the reforms was taxing on the highest and best use of a property. Mayor Pro Tern Hoog stated that the double homestead exemption was also discussed which would allow for no taxes and would adversely affect some counties. Mayor Randels clarified for the record to have the City Treasurer perform research related to the result of a response to each of the survey questions. Mayor Randels recommended that each Council Member to give thought to their responses. Mr. Petsos welcomed comments and suggestions from the City Treasurer. Mayor Pro Tern Hoog requested that the City Clerk distribute the "How Shall We Grow" information from the Florida League of Cities and to agenda discussion on it for the next City Council meeting. City of Cape Canaveral, Florida City Council Special Meeting April 10, 2007 Page 7 ADJOURNHW� re being no further business, the Chair adjourned the meeting at 6:40 P.M. il Susan ,Still , CMC, CITY CLERK C.� Q Rocky Randels, MAYOR