HomeMy WebLinkAboutPacket 06-19-2007 Regular RevisedCALL TO ORDER:
PLEDGE OF ALLEGIANCE:
ROLL CALL:
CONSENT AGENDA:
Ly of Cape Canaveral
IL REGULAR MEETING
HALL ANNEX
Cape Canaveral, Florida
TUESDAY
June 19, 2007
7:00 PM
REVISED AGENDA
City Council Regular Meeting Minutes of June 5, 2007.
CONSIDERATIONS:
2. Motion to Approve: Change Order to the North Central Ditch Stormwater
Improvement Project.
3. Motion to Approve: Comprehensive Plan — Evaluation and Appraisal Report
— Letter of Understanding.
4. Motion to Approve: Designation of a Voting Delegate for the Florida League
of Cities Annual Conference.
5. Motion to Approve: Local Option Gas Tax — Amendment to the Interlocal
Agreement with Brevard County.
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
-""City of Cape Canaveral, Florida
City Council Regular Meeting
June 19, 2007
Page 2
ORDINANCES: Second Public Hearing:
6. Motion to Adopt: Ordinance No. 04-2007; Amending Chapter 110, Clarifying
the Intent of the R-1, R-2, and R-3 Residential Zoning Districts, Defining the
Terms "Resort Dwelling" and "Resort Condominium."
DISCUSSION:
7. Florida Cities of Excellence Awards — Nominations.
8. Administrative Appeals Related to the Zoning Code of Ordinances. Rev.
REPORTS:
1. City Manager
2. Staff
3. City Council
AUDIENCE TO BE HEARD:
Comments to be heard on items that do not appear on the agenda of this meeting.
Citizens will limit their comments to five (5) minutes. The City Council will not
take any action under the "Audience To Be Heard" section of the agenda. The
Council may schedule such items as regular agenda items and act upon them in
the future.
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 Cleric's office (868-1221) 48 hours in advance of the meeting.
Meeting Type: Regular
Meeting Date: 06-19-07
AGENDA
Heading
Discussion
Item
upon appeals related to zoning code issues and requested a review and discussion about the existing appeals
No.
This is a continuation of the discussion from the 05-01-07 City Council Meeting.
AGENDA REPORT
CITY COUNCIL OF THE CITY OF CAPE CANAVERAL
SUBJECT: DISCUSSION: ADMINISTRATIVE APPEALS RELATED TO THE ZONING CODE
OF ORDINANCES
DEPT/DIVISION: LEGISLATIVE
Requested Action:
City Council review the Administrative Appeals Section of the Zoning Code of Ordinances.
Summary Explanation & Background:
Council Member Roberts expressed concern at the 03-06-07 City Council Meeting that council did not act
upon appeals related to zoning code issues and requested a review and discussion about the existing appeals
process.
This is a continuation of the discussion from the 05-01-07 City Council Meeting.
Please advise.
Exhibits Attached:
City Council 05-01-07 Minutes; City Codes 110-2, 110-27, 110-31, 110-40, 110-87
City Manager's
Department LEGISLATIVE
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CITY COUNCIL REGULAR MEETING Page 1 of 2
9. Administrative Appeals Related to the Zoning Code of Ordinances.
Mayor Randels explained that the item was related to Administrative Appeals from City Code
Section 110-334. Ms. Roberts stated that the concern came to her from the northeast section
of the City. She expressed their concern that the City Council was not part of the process
related to the Appeal of the Building Official's decision on the Coastal Fuels issue. Ms.
Roberts referred to Section 110-187 and asked the Council to address the issue from an
historical perspective to provide explanation to the community and if there might be some
consideration of a different process to involve Council either before or after the issue would
reach the Board of Adjustment.
Attorney Garganese explained that prior to the Municipal Home Rule Powers Act of 1974 all
municipal authority was expressly stated in the Florida Statutes, which address this Board,
called the Board of Adjustment, and provided certain authority for the Board. After the
Municipal Home Rule Powers Act was adopted, the municipalities were provided Home Rule.
Most municipalities simply carried forward the statutory schemes into their municipal
codebooks. The Board of Adjustment would commonly serve as a separate Board that hears
Appeals of the interpretation of the zoning code. In summary, it was somewhat of a statutory
relic and certainly within the Council's power to change that scheme.
Ms. Roberts expressed how the elected officials at this point were not at liberty to hear citizen
concerns. Attorney Garganese explained that the Building Official makes the interpretation
and renders a decision and the Board of Adjustment hears the Appeal. Attorney Garganese
concluded that only the Council has the legislative authority to change its laws. Ms. Roberts
expressed the concern of those in the northeast section of the City to the Council and she
asked to hear other Council members' views.
Mr. Nicholas replied that the Board of Adjustment followed the various guidelines as set forth
by the Council. He stated that the Council might want to review the Appeals subsequent to the
Board, rather than to have the City Council sit as the Board of Adjustment. He also pointed out
the subsequent increased workload. Mr. Nicholas stated that he could understand the citizen
concern; however, for some other aspects he expressed this as more detail that the Council
might not need to become involved in and the Council relied on the expertise of the Building
Official. Mayor Pro Tem Hoog expressed that the Board was astute in the zoning laws and he
did not choose to interfere in their judgments unless Ms. Roberts would like to see a Council
member bring a decision back where there was not agreement. He did not believe that they
would make any decisions that were detrimental to the City. Mayor Randels affirmed that the
City Council or the Planning and Zoning Board could request an Appeal to the Board of
Adjustment. However, Mr. Nicholas expressed he was speaking of an Appeal from the
decision of the Board of Adjustment, otherwise a next step after the Board of Adjustment prior
to proceeding to Circuit Court.
Ms. Roberts explained that any group that makes an Appeal of the Building Official's decision,
then citizens should have the right to express their view to the Council as their elected
officials. Although they were not taking away anything from the voluntary Boards, they felt that
issues of importance should come before the elected officials. Mayor Pro Tem Hoog cautioned
on the additional workload. Ms. Roberts asked the City Manager on the number of times the
Board had met. Mr. Boucher replied that there were few Special Exceptions and Variances to
date. Mr. Petsos clarified Ms. Roberts expressed concern that citizens' preferred to have the
Council's input as their elected officials. Mayor Pro Tem Hoog explained that he attended
most of the Board meetings and he informed that many people might not leave the meeting
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CITY COUNCIL REGULAR MEETING
satisfied with decisions.
Page 2 of 2
Ms. Roberts stated that she desired to have the Council as some part of the process. Mr.
Nicholas concluded to place this item on an Agenda and to have the City Attorney draft
some language to address the Appeals process. Discussion occurred on setting the fees.
The Building Official stated that the zoning fees required adjustments. Mr. Boucher stated that
City staff would review the fees associated with this process.
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ARTICLE I. IN GENERAL
Sec. 110-2. Board of adjustment.
Page 1 of 1
(a) A board of adjustment is established and shall consist of five members.
(b) The board of adjustment shall have the powers and duties to consider the approval of
applications for special exceptions, variances, and administrative appeals under this chapter.
(c) The board of adjustment shall not incur any debts or enter into any contracts or obligations
which would be enforceable against the city, unless prior approval has been obtained from the
city council.
(Ord. No. 11-2005, § 2, 6-21-05)
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DIVISION 1. GENERALLY
Sec. 110-27. Authority.
Page 1 of 1
(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.
(b) The respective board rendering final decisions may impose reasonable conditions and
safeguards on any approved rezoning, variance, special exception or administrative appeal to
the extent deemed necessary and relevant to ensure compliance with applicable criteria and
other applicable provisions of the city code and comprehensive plan. Such conditions and
safeguards, when made part of the terms under which the rezoning, variance, special exception,
or administrative appeal is granted, have the same force andeffect as any other provision of this
Code, and violation of same shall be deemed to be a violation of this Code and punishable by
this Code.
(c) All formal decisions shall be based on competent substantial evidence and the applicable
criteria set forth in this article.
(d) The city council may adopt, by resolution, quasi-judicial rules and procedures to implement
this chapter.
(e) All final decisions rendered under this chapter must be consistent with the city's
comprehensive plan.
(f) All final permits issued under this chapter may be temporarily suspended or absolutely
revoked by majority vote of the board that rendered the final decision if the board later
determines at a public hearing that either:
(1) The applicant has obtained the final permit upon false statements, fraud, deceit,
misleading or perjurious statements, or suppression of material facts;
(2) The applicant has committed substantial violations of the terms and conditions of
any final permit; or
(3) The applicant has used any final permit to knowingly allow illegal activities to be
conducted on the property which is subject to said permit.
(Ord. No. 11-2005, § 2, 6-21-05)
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DIVISION 1. GENERALLY Page 1 of 1
Sec. 110-31. Reconsideration of rezonings, variances, special exceptions or
administrative appeals.
When a petition for rezoning, variance, special exception or administrative appeal has been
acted on by the city council or board of adjustment and was disapproved or failed to pass, such petition
in the same or substantially similar form shall not be reconsidered by the city council or board of
adjustment for a period of two years. This section shall not apply to the property owner if the original
request was an administrative application initiated by any official, department, board or agency of the
city acting in any official capacity. This section shall not apply to any initial petition or petition for
reconsideration filed by the city council.
(Ord. No. 11-2005, § 2, 6-21-05)
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DIVISION 5. ADMINISTRATIVE APPEALS
Sec. 110-40. Administrative appeals.
Page 1 of 1
(a) Any final administrative decision regarding the enforcement or interpretation of this chapter,
where it is alleged there is an error by an administrative official, can be appealed as set forth in
this section. Any of the following may seek review of an administrative decision pursuant to this
section:
(1) City council;
(2) Planning and zoning board;
(3) Any person aggrieved or affected by any decision of the building official in the
interpretation of any portion of this chapter.
(b) Appeals shall be taken within 30 days after such administrative decision is made by filing a
written notice of appeal with the building official and the board of adjustment stating the name of
the decision maker, date of the decision, applicable code provisions and the specific grounds for
appeal. Upon receipt of the notice of appeal, the building official shall schedule the appeal
before the board of adjustment and transmit all documents, plans, papers or other materials
constituting the record upon whichthe action appealed from was taken.
(c) The board of adjustment shall be required to review all administrative appeals and prepare
written findings constituting its final decision on the administrative appeal based on the criteria
set forth in this section.
(d) Review of administrative decisions shall be based on the following criteria:
(1) Whether the applicant was properly afforded procedural due process;
(2) Whether the decision under review is supported by competent, substantial
evidence; and
(3) Whether the decision under review complied with applicable law, including a proper
interpretation of any provision under this chapter.
(e) An administrative appeal filed pursuant to this section stays all proceedings in furtherance
of the action appealed from, unless the building official from whom the appeal is taken certifies
in writing to the board of adjustment after the notice of appeal is filed that, because of facts
stated in the certificate, a stay would, in the building official's opinion, cause imminent peril to life
and property. In such case where the building official makes such certification, proceedings
shall not be stayed otherthan by an injunction, which may be granted by the board of adjustment
or issued by a court of competent jurisdiction.
(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 vote of
four members of the board of adjustment shall be necessary to reverse any order, requirement,
decision or determination of the building official.
Secs. 110-41--110-85. Reserved.
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DIVISION 1. GENERALLY
Sec. 110-87. Interpretation of chapter.
Page 1 of 1
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 courts as provided by law. It is
further the intent of this chapter that the duties of the city council in connection withthis chapter shall not
include hearing and deciding questions of interpretation and enforcement that may arise. 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; and
(2) Establishing a schedule of fees and charges.
(Code 1981, § 645.35; Ord. No. 3-94, § 1, 2-1-94; Ord. No. 02-2006, § 2, 3-21-06)
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