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HomeMy WebLinkAboutPacket 09-05-2007 WorkshopCALL TO ORDER: ROLL CALL: DISCUSSION: ty of Cape Canaveral _ WORKSHOP MEETING 'HALL ANNEX :, Cape Canaveral, Florida 'EDNESDAY EMBER 5, 2007 liately following the special City Council Meeting at 5:30 P.M. AGENDA 1. Development Review Process. ADJOURNMENT: Pursuant to Section 286.0105, Florida Statutes, the City hereby advises the public that: If a person decides to appeal any decision made by the City Council with respect to any matter considered at this meeting, that person will need a record of the proceedings, and for such purpose that person may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. Persons with disabilities needing assistance to participate in any of these proceedings should contact the City Clerk's office (868-1221) 48 hours in advance of the meeting. 105 Polk Avenue • Post Office Box 326 • Cape Canaveral, FL 32920-0326 Telephone: (321) 868-1220 • SUNCOM: 982-1220 • FAX: (321) 868-1248 www.myflorida.com/cape • e-mail: ccapecanaveral@cfl.rr.com Meeting Type: Workshop Meeting Date: 09-05-07 AGENDA Heading Discussion item j No. Flow Charts; City Attorney's Memo; Building Official's Survey of Cities AGENDA REPORT CITY COUNCIL OF THE CITY OF CAPE CANAVERAL SUBJECT: DISCUSSION: DEVELOPMENT REVIEW PROCESS DEPT/DIVISION: ADMINISTRATION/CITY MANAGER Requested Action: City Council discussion on the merits of streamlining the development review process. Summary Explanation & Background: A continuation of City Council's discussion of the current development review process and to explore streamlining this process. Exhibits Attached: Flow Charts; City Attorney's Memo; Building Official's Survey of Cities City�an ffice� Department ADMINISTRATION/CITY MGR ca lm\myckcumen admin\council\meeting\2007\09-05-07\reviewprocess 1.'1-1.7 BROWN, GARGANESE, WEISS & UAGRESTA, P.A. Atto itgs at Lap., Debra S. Babb-Nutcher° Joseph E. Blitch Usher L. Brown' Suzanne D'Agresta° Anthony A. Garganese° J.W. Taylor Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer 'Board Certified City, County & Local Government Law Board Certified Appellate Practice Offices in Orlando, Kissimmee, Cocoa, Ft. Lauderdale & Tampa July 2, 2007 Bennett Boucher City Manager City of Cape Canaveral 105 Polk Avenue Cape Canaveral, Florida Re: City's Development Review Process Dear Bennett: Vivian Cocotas Scott J. Dornstein Mitchell B. Haller Katherine W. Latorre Amy J. Pitsch Erin J. O'Leary' Catherine D. Reischmann William E. Reischmann, Jr. Of Counsel This letter addresses the City Council's request for a list of potential options related to handling land use applications currently being handled by the Board of Adjustment and the Community Appearance Board. A. Recent City Council Action. Several City boards play a role in the City's development review process including the City Council, Planning & Zoning Board, Board of Adjustment, and Community Appearance Board. From a decision making standpoint, the current development review process is generally summarized in the Flowchart entitled "Current Development Review Process" which is attached to this letter ("Flowchart I "). For the past several years, the City Council has been comprehensively reviewing the City's development review process, and the roles that these boards play in issuing development orders. During that time, it became readily apparent that the City Council had delegated to appointed boards final decision making authority over a significant number of development orders. This delegation ofauthority removed the City Council from participating in numerous aspects of the development review process. Further, the Council's oversight is limited to simply adopting legislative code changes and appointing members of the various boards. While reviewing the appropriateness of such delegations of authority, the City Council decided to take back some of that authority and assume the role of final decision 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net • Email: firm@oriandolaw.net Development Review Process July 2, 2007 Page 2 maker.' In particular, the City Council has assumed the authority to approve all site plans under section 110-223(h) in 2003'-, vested rights determinations under chapter 115 in 20033, and plats pursuant to section 98-46 in 2006. In addition, in 2003, the City Council provided a right to appeal decisions of the Community Appearance Board to the City Council in accordance with section 22-46.5 Therefore, since 2003, the City Council has certainly taken a more active role approving development orders. Notwithstanding the aforementioned changes, it is apparent from reviewing Flowchart 1 that the City still allows the Community Appearance Board and the Board of Adjustment to make final decisions regarding other important development orders. B. Statutory History of the Board of Adjustment. The board of adjustment is somewhat an interesting statutory relic of the past. Prior to Florida adopting municipal home rule under the 1968 Florida Constitution and the Florida Municipal Home Rule Powers Act in 1973, municipalities were required to rely on grants of authority from the Florida Legislature in order to act. One such grant occurred in 1939 when the Florida Legislature adopted chapter 176, entitled "Municipal Zoning." Although chapter 176 has long since been repealed, it is still noteworthy for its historical significance related to the board of adjustment. While chapter 176 granted municipalities the authority to establish zoning regulations in general, section 176.08 provided that the governing body of a municipality "may provide for the appointment of a board of adjustment." The board of adjustment was expressly granted statutory powers to hear administrative appeals where it was alleged that an administrative official made an error in enforcing chapter 176 and any ordinance adopted pursuant thereto, special exceptions, and variances. Any person aggrieved by a decision of the board of adjustment was required to file a petition of writ of certiorari in the circuit court under section 176.16. When the Municipal Home Rule Powers Act was adopted in 1973, the Florida Legislature repealed chapter 176 in its entirety because municipalities no longer had to rely on express legislative grants of power in order to act.b Each municipality now had the freedom to create their own zoning system as long as it did not conflict with state law. In doing so, many municipalities, like Cape Canaveral, incorporated into their zoning codes the statutory provisions related to the board of adjustment. Indeed, with respect to Cape Canaveral's zoning code related to the board of adjustment, a significant portion of the repealed chapter 176 (adopted by the Legislature in 1939) can be seen ' Through the years, the City Council has maintained final decision making authority over rezonings and comprehensive plan amendments because Florida law requires that these development orders be approved by ordinance of the governing body. '- See Cape Canaveral Ordinances 35-2003; 3-2005. 3 See Cape Canaveral Ordinance 27-2003. 'See Cape Canaveral Ordinance 07-2006. 5 See Cape Canaveral Ordinance 39-2003. b In other words, municipalities were free to act unless otherwise prohibited by law. Development Review Process July 2, 2007 Page 3 especially related to the role of the board of adjustment on variances, special exceptions, and administrative appeals. C. Future Role of the Board of Adjustment (Options). Pursuant to the Municipal Home Rule Powers Act, a municipality is no longer required to have a board of adjustment to handle special exceptions, variances, and administrative appeals. However, a municipality is free to establish a board of adjustment in accordance with local needs. Consistent with the freedoms under the Municipal Home Rule Powers Act, the City Council has been examining the current role of the Board of Adjustment as a final decision making body and questioning whether that role should change. Generally, the City Council has requested that options be provided for its consideration. The options are as follows and may be varied as the Council determines is appropriate: 1. Do nothing and continue to allow the Board of Adjustment to make final decisions related to variances, special exceptions, and administrative appeals. 2. Limit the Board of Adjustment's final decision making authority by assuming some of the final decision making authority. For example, the City Council could take over final decision making authority for one or more of development order approvals, but not all of them. 3. Eliminate the Board of Adjustment and the City Council can assume the role of the Board of Adjustment related to variances, special exceptions, and administrative appeals. 4. Convert the Board of Adjustment to an advisory board that makes recommendations to the City Council related to variances, special exceptions, and administrative appeals. The City Council will then take over final decision making authority on these matters. 5. While this option has a considerable amount of due process considerations, the City could grant City Staff certain authority to handle some of these matter administratively, subject to appeal to the City Council. D. Future Role of the Community Appearance Board (Options). Since the Community Appearance Board is the only other City board with some final decision making authority in the development review process, the City Council may want to consider the following options, which may be varied as the Council determines is appropriate: 1. Do nothing and continue to allow the Community Appearance Board to make final decisions related to aesthetics, subject only to appeal to the City Council by interested parties. 2. Eliminate the Community Appearance Board and the City Council can assume the role of the Community Appearance Board related to aesthetics. Development Review Process July 2, 2007 Page 4 3 Convert the Community Appearance Board to an advisory board that makes recommendations to the City Council related to aesthetics. The City Council will then take over final decision making authority on these matters. 4. While this option has a considerable amount of due process considerations, the City could grant City Staffcertain authority to handle aesthetic review matters administratively, subject to appeal to the City Council. E. Considerations Related to the Current Development Review Process. The future role of the Board of Adjustment and Community Appearance Board, if any, is a policy decision for the City Council. In making this decision, the City Council may wish to consider these points: 1. Having multiple boards handle development applications allows the City to draw on a wider breath of experiences which are associated with the professional and personal backgrounds of the board members. 2. Boards become very familiar with City Code sections that they are assigned to apply to various development permit applications. This familiarity may result in a better and more consistent application of the City Codes. 3. The City has a fragmented development review process which requires a developer to appear before and seek approval of various City Boards. This presents an opportunity to streamline and simplify the process. 4. A fragmented development review process results in final decisions being made by several City boards in a piecemeal and myopic fashion without a complete understanding of the entire project being proposed. 5. A fragmented development review process with different final decision makers makes it extremely difficult to negotiate development agreements that comprehensively address development issues regarding a particular project. 6. By delegating final decision making authority to the Community Appearance Board and the Board of Adjustment, the City Council has removed itself from various aspects of the development review process. The result is that the City Council is sometimes not in a position to address constituent concerns and must rely on other City boards to make final decisions that could have an effect on the entire community. 7. If the Board of Adjustment's final decision making authority is eliminated or modified, the City Council's workload will likely increase. At times, Council agendas will have to be expanded to handle special exceptions, variances, and administrative appeals, or additional Council meetings may be needed to handle a significant increase in the workload. However, with proper planning, these additional items could be incorporated into other approvals already going to the Council for approval (e.g., site plans, and plats). Development Review Process July 2, 2007 Page 5 8. Special exceptions, variances, and administrative appeals are handled a variety of ways in cities and counties throughout Florida. Contrary to Cape Canaveral's current development review process, many city councils render the final decision on variances, special exceptions, and administrative appeals in other communities. 9. If the Council assumed the duties of the Board of Adjustment and Community Appearance Board, it may result in less development review meetings in the City. A reduction in meetings could result in cost savings to the City because less staff, consultant, and attorney time will be required to prepare separate board agendas, attend meetings, and prepare separate board minutes. 10. In the last decade or so, the Florida Legislature and United States Congress have approved land use legislation that has increased the liability exposure of municipalities. See e.g., Chapter 70, Florida Statutes ("Bert J. Harris, Jr., Private Property Rights Protection Act"). This liability exposure attaches to final development orders approved or denied by the City. The City Council may want to consider whether this risk should continue to be bourne by the Board of Adjustment or the Community Appearance Board, or whether the risk should entirely be bourne by City Council, as the elected officials of the community. In sum, there is an opportunity to streamline the City's development review process by requiring developers to submit concurrent applications for various development review approvals and by requiring these concurrent applications to,be considered by the same board. For example, a more streamlined development review process s presented in the attached Flowchart, entitled "Streamlined Development Review Process." ("Flowchart 2"). I recommend that the City Council provide direction regarding the aforementioned options in light of the considerations mentioned herein, and in light of such other considerations that the Council may deem relevant. I look forward to discussing this matter at the July 3, 2007 council meeting. Ve rul Yours, Anthony .fgganese City Attorney Attachments (Flowcharts) cc: City Manager Todd Peetz, City Planner V � Q 4 -p 0 Development Review Survey Todd Morley, Building Official August 14, 2007 Five municipalities responded to a questionnaire regarding their development review process: Indialantic, Melbourne Village, Melbourne, Palm Shores and Rockledge. The respondents completed a survey which explains, in general terms, the application/approval/appeal process for site plans, re -zoning, platting/re-platting, special exceptions, variances, comprehensive plan amendments, aesthetic review and vested rights determinations in their municipality. Town of Indialantic For site plans, Staff review - Planning and Zoning Board for approval --)- if denied, applicant's recourse is to appeal to Circuit Court. For re -zoning, Staff review Planning and Zoning Board for recommendation to City Council/Commission City Council/Commission for approval --* if denied, applicant's recourse is to appeal to Circuit Court. For platting/re-platting Staff review —> Planning and Zoning Board for recommendation to City Council/Commission --> City Council/Commission for approval --* if denied, applicant's recourse is to appeal to Circuit Court. For special exceptions (conditional use permits) The Town does not give these. For variances Staff review —* Board of Adjustment for approval ---> if denied, applicant's recourse is to appeal to Circuit Court For administrative appeals Staff review --> Board of Adjustment for approval —> if denied, applicant's recourse is to appeal to Circuit Court For a comprehensive plan amendment Staff review —> Planning and Zoning Board/LPA for recommendation to City Council/Commission —+ City Council/Commission for approval --* if denied, applicant's recourse is to appeal to Circuit Court. For aesthetic review N/A For vested rights determination N/A Melbourne Villaee For site plans Staff review --+ Planning and Zoning Board for recommendation to City Council/Commission —> City Council/Commission for approval —* if denied, applicant's recourse is to appeal to Circuit Court. For re -zoning Staff review --* Planning and Zoning Board for recommendation to City Council/Commission City Council/Commission for approval —> if denied, applicant's recourse is to appeal to Circuit Court. For platting/re-platting Staff review —> Planning and Zoning Board for recommendation to City Council/Commission —> City Council/Commission for approval —+ if denied, applicant's recourse is to appeal to Circuit Court. For special exceptions (conditional use permits) No process — would go to Commission for process determination For variances Board of Adjustment for approval —* if denied, applicant's recourse is to appeal to Circuit Court For administrative appeals City Council/Commission for approval —> if denied, applicant's recourse is to appeal to Circuit Court. For a comprehensive plan amendment Staff review --+ Planning and Zoning Board/LPA for recommendation to City Council/Commission —> City Council/Commission for approval —> if denied, applicant's recourse is to appeal to Circuit Court. For aesthetic Review N/A For vested rights determination City Attorney review and recommendation to City Council/Commission. —> City Council/Commission for approval. —+ if denied, applicant's recourse is to appeal to Circuit Court. Melbourne For site plans Staff review --+ Planning and Zoning Board for recommendation to City Council/Commission —> City Council/Commission for approval —> if denied, applicant's recourse is to appeal to Circuit Court. However, Staff review only for commercial projects < 3 acres, Industrial projects < 5 acres and residential projects less than 20 units. For re -zoning Staff review —), Planning and Zoning Board for recommendation to City Council/Commission City Council/Commission for approval --* if denied, applicant's recourse is to appeal to Circuit Court. For platting/re-platting Staff review --* Planning and Zoning Board for recommendation to City Council/Commission —* City Council/Commission for approval --* if denied, applicant's recourse is to appeal to Circuit Court. For special exceptions (conditional use permits) Staff review --> Planning and Zoning Board for recommendation to City Council/Commission --> City Council/Commission for approval —* if denied, applicant's recourse is to appeal to Circuit Court. For variances Staff review —> Board of Adjustment for approval --> if denied, applicant's recourse is to appeal to Circuit Court For administrative appeals (applies to variances only) Staff review —> Board of Adjustment for approval —� if denied, applicant's recourse is to appeal to Circuit Court For a comprehensive plan amendment Staff review --+ Planning and Zoning Board/LPA for recommendation to City Council/Commission —> City Council/Commission for approval —> if denied, applicant's recourse is to appeal to Circuit Court. For aesthetic review Staff review --* Architectural Review Committee/Community Appearance Board. --+ if denied, applicant's recourse is to appeal to Building Board of Adjustment—+ if denied, applicant's recourse is to appeal to Circuit Court. For vested rights determination Staff review —> City Attorney review and recommendation to City Council/Commission. --> City Council/Commission for approval. --+ if denied, applicant's recourse is to appeal to Circuit Court. Palm Shores For new site plans Staff review --+ Planning and Zoning Board for recommendation to City Council/Commission --+ City Council/Commission for approval —> if denied, applicant's recourse is to appeal to Circuit Court. For re -zoning Staff review --+ Planning and Zoning Board for recommendation to City Council/Commission —� City Council/Commission for approval --+ if denied, applicant's recourse is to appeal to Circuit Court. For platting/re-platting Staff review —> Planning and Zoning Board for recommendation to City Council/Commission --+ City Council/Commission for approval --> if denied, applicant's recourse is to appeal to Circuit Court. For special exceptions (conditional use permits) Staff review —* Planning and Zoning Board for recommendation to City Council/Commission —> City Council/Commission for approval --* if denied, applicant's recourse is to appeal to Circuit Court. For variances Staff review —> Board of Adjustment for recommendation —> City Council/Commission for approval ---> if denied, applicant's recourse is to appeal to Circuit Court For administrative appeals Staff review —> Board of Adjustment for recommendation --> City Council/Commission for approval —> if denied, applicant's recourse is to appeal to Circuit Court For a comprehensive plan amendment Staff review --* Planning and Zoning Board/LPA for recommendation to City Council/Commission —> City Council/Commission for approval --+ if denied, applicant's recourse is to appeal to Circuit Court. For aesthetic review N/A For vested rights determination N/A Rockledee For new site plans Staff review --+ Planning and Zoning Board for recommendation to City Council/Commission --). City Council/Commission for approval —> if denied, applicant's recourse is to appeal to Circuit Court. For re -zoning Staff review —> Planning and Zoning Board for recommendation to City Council/Commission —> City Council/Commission for approval — if denied, applicant's recourse is to appeal to Circuit Court. For platting/re-platting Staff review —* Planning and Zoning Board for recommendation to City Council/Commission —> City Council/Commission for approval --* if denied, applicant's recourse is to appeal to Circuit Court. For special exceptions (conditional use permits) Staff review ---> Planning and Zoning Board for recommendation --+ Board of Adjustment for approval --+ if denied, applicant's recourse is to appeal to Circuit Court. For variances Staff review --* Board of Adjustment for approval —> if denied, applicant's recourse is to appeal to Circuit Court. For administrative appeals Staff review ---+ Board of Adjustment for approval --* if denied, applicant's recourse is to appeal to Circuit Court. For a comprehensive plan amendment Staff review and Brevard County JPA review for comments. Recommendation to Citizen Advisory Committee —> Review by Citizen Advisory Committee Recommendation to LPA —> Review by LPA Recommendation to City Council Review by City Council for approval, if denied appeal to Circuit Court. For aesthetic review Staff review Redevelopment Agency review. For vested rights determination Staff review —* City Attorney review and recommendation to City Council/Commission. —* City Council/Commission for approval. --+ if denied, applicant's recourse is to appeal to Circuit Court.