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HomeMy WebLinkAboutMinutes 06-01-2004 Special CITY COUNCIL SPECIAL MEETING CITY HALL ANNEX 111 Polk Avenue, Cape Canaveral, Florida TUESDAY June 1, 2004 5.-00 PM MINUTES CALL TO ORDER: ROLL CALL: Council Members Present: Mayor Pro Tem Bob Hoog Council Member Steve Miller Mayor Rocky Randels Council Member Richard Treverton Council Members Absent: Council Member Jim Morgan C I; Others Present: City Manager Bennett Boucher City Attorney Anthony Garganese City Clerk Susan Stills Attomey for the Applicant 'timothy Pickles Attorney for the City Staff William Reichman PUBLIC HEARING: 1. Motion to Approve: Vested Rights Application Submitted by Smith Construction and Development, Inc., Property Owner for Madison Cay Townhomes Project. Mayor Randels introduced the Public Hearing on a Vested Rights application submitted by Smith Development Corporation, Inc. He then turned the meeting over to the City Attomey for procedure. Attorney Garganese stated that this is a Quasi Judicial Hearing to determine a vested rights application pursuant to City Code Chapter 115. For the record, Mayor Pro Tem Bob Hoog informed that he had a conflict of interest in that he was the registered electrical contractor on the project. For the record, Mayor Pro Tem Hoog adjourned to the audience for the duration of the meeting and would not participate in the decision. Attomey Garganese stated that there were three Council 1 I i City of Cape Canaveral, Florida City Council Special Meeting — Vested Rights I June 1, 2004 Page 2 of t4 ; Ce members of record to decide on the application and two out of three Council members would be required to take action. Attomey Garganese stated that Mayor Randels served on the Planning and Zoning Board in 1984 and he asked if there were any conflict with opposing counsel on knowing this fact. Counselors stated that they found no conflict. Attomey Garganese stated that the Council was required to disclose any Ex Parte 1 Communication whether verbal or written. Mr. Miller stated none; Mr. Treverton stated I none; Mayor Randels affirmed to previous communication with Mr. Smith when he visited the development site and with Ms. Cannon in general conversation but none about the elements of this application. Attomey Garganese asked if there were any I objection to the Ex Parte communication. Counselors stated none. 1 1 Attomey Garganese stated that each attorney would present opening statements and a summation prior to City Council's decision. Each attorney would cross- examine witnesses and Council would have an opportunity to ask questions. Attomey Garganese outlined the issues of this hearing in his report and summarized the undisputed facts. 1 He asked the counselors if there were any objections to the undisputed facts listed in his report. Counselors stated none. r For purposes of rendering a decision, he advised the Council to consider the list a of undisputed facts in his report as facts presented into evidence to weigh in the course of making their decision. Attorney Garganese stated in conclusion that 1. once the Council makes a decision pursuant to Chapter 115 of the City Code, the City Attorney is required to prepare a written final order regarding the Council's 3 decision. That final order will be presented to the City Council within 14 days of this hearing for final approval at which point the Council's decision is final. Interested parties have the right to appeal the Council's decision with the Circuit Court. 1 QPENING STATEMENTS: For the record, Attorney for the Applicant, Timothy Pickles stated his address as 3490 N. U.S. 1. Also an inquiry for the record, Attomey Pickles asked the City Attomey if the official site plan were available with all attachments. Attorney Garganese affirmed that each Council member was provided full copies of all the exhibits as part of the packet. I Attomey Bill Reichman affirmed that all documents are part of the packet. 1 Attomey Pickles opened by indicating why the application was before the Council. He stated that the Planning and Zoning Board had the previous responsibility of deciding vested rights; however, in 2003 the Council passed an ordinance divesting that power from the Board to the City Council. The City Council is now the governing body that would determine the applicant's vested right in the site plan that was approved in March of 2003. As a brief recount of the facts, the Council would hear through testimony what was passed as the vested site plan in the 1980's. Attomey Pickles stated his intent to ,__. concentrate on what occurred in 2003. In 2003, his client, Smith Development, was : l ime under contract to purchase a property of which they thought had an approved site plan. At the request of the City, his client attempted to gain a variance on the property's t 1 , 1 i i City of Cape Canaveral, Florida 1 City Council Special Meeting - Vested Rights 1 .hale 1, 2004 Page 3of14 setback requirement. In March of 2003, the City Attorney advised the applicant to proceed with a vested rights hearing before the Planning and Zoning Board. The prevalent issue is setbacks. What were the setbacks in 1984 and what were the setbacks in 2003? He asked the Council to concentrate on the February 12, 2003 and the March 12, 2003 Planning and Zoning Meetings, there was but one site plan which was considered and approved which is Exhibit 4 to the attachments. This site plan was originally approved in 1982 with revisions. The drawing clearly shows what was vested 1 and approved in 2003 to include garages within 10 -feet of the property line. In good faith his client relied on the Planning and Zoning Board's approval and closed on the property at a cost of $646,000 and continued with subsequent development consistent with that site plan with garages within 10 -feet of the property line. i - / 1 This hearing came about due to staff's notation of a setback requirement of 25 feet. Despite issuing a foundation permit, staff subsequently issued a stop work order. If the City Council does not approve of the rights vested consistent with the site plan of March 2003, his client will lose property in an amount approximated at $600,000 to 900,000. Attorney Pickles stated his belief that the Planning and Zoning Board approved the site plan vested in 2003 based on an error of fact about the 1984 site plan. This error of fact began at the staff level but was never uncovered. It was the continuous discussion on this error of fact regarding the setback deviation that led his client to believe that the Planning and Zoning Board was cognizant in their approval. His client relied justifiably 1 C on the Board's approval to purchase the property and continue with development. In conclusion, Attorney Pickles requested that the Council decide in due diligence and allow his client to proceed with the development placing the buildings in the subdivision in the exact location as in the site plan approved by the Planning and Zoning Board on March 12, 2003. i Attorney for the City, Bill Reichman, stated his address as 200 W. First Street, Sanford, Florida. He submitted to the Council that the issue at hand had complications in that the i City Attorney's report brought out the question of interpretation. Interpretation would be based on documents produced to ascertain what development rights Smith Development Construction had at the time of site plan vesting, specifically the building i and garage setback requirements. Attorney Reichman stated that documents from the 1 1980's would be reviewed. Exhibit 4 to the packet shows a site plan in which garages were added in June of 1984. In Exhibit 3 of the City Attorney's report, the Planning and Zoning Board meeting which considered a site plan was in March of 1984. The site plan 1 vested in 2003 relied on the initial approved site plan of March 1984 that did not include garages. Ms. Collette Cannon submitted a site plan in 1984 that did not depict garages that encroach into the setback. The City will seek to establish that the March 1984 site plan of record does not show garages that encroach into the City setback, only six buildings with six garages. The developer is presenting to the City that what he received I ant. ,. in March of 2003 is an amended site plan that gave him permission to build covered er garages, that allowed him to build into the setback and allowed him bedrooms above the garages. i x 1 y 4 1 City of Cape Canaveral, Florida City Council Special Meeting — Vested Rights June 1, 2004 Page 4 of 14 4 g Attomey Reichman stated in conclusion referencing the City's Land Development Code that the 1984 Planning and Zoning Board did not legally have the power then or in 2003 to authorize a variance. Smith Development Construction did not use the appropriate Board; that is, the Board of Adjustment to seek its variance. He stated that no self- imposed hardship exists. The applicant through this proceeding would gain a de facto variance though a vested rights procedure. The I City is requesting that the Council deny the application. 1 Mr Treverton called for a Point of Order on numbering for the Exhibits_ Attorney Garganese explained that the Exhibit numbering corresponded with the Exhibits in his report. Attomey Garganese stated for the record that the Council had in possession three plans that are Exhibits: Exhibit 2, Shores of Artesia Plat, Exhibit 4, the site plan in question and Exhibit 6, the Shores of Artesia Engineering Site Plan submitted to the Building Official. i WITNESSES FOR THE APPLICANT: Mr. John Allen was called on for testimony and sworn In I I. For the record John Allen stated the name of his firm as Alien Engineering, located at : C 106 Dixie Lane, Cocoa Beach. Mr. Allen stated his occupation as consulting engineering. He has been familiar with the project since the 1980's. He stated that II Smith Development Construction hired him. Mr. Allen affirmed that the document dated November 2002 was an Application for a Variance. He stated that Mr. Smith requested a variance for 10 -feet on the side and rear of the property since the property did not meet the current setback requirements. They also requested two spaces per unit for 1 parking. Mr. Allen stated that the application did not proceed through to the Board of Adjustment. Mr. Allen stated that he received a letter from the City Attorney dated February 6, 2003 requesting that he and the applicant proceed with a vested rights application. Mr. Allen stated that on February 12, 2003 the site plan was denied. Mr. Allen pointed to Exhibit 4 and stated that it was the site plan presented to the Planning 1 and Zoning Board on February 12, 2003. For the record, Attorney Garganese stated that the site plan was Exhibit 4 of his report. I Mr. Allen stated he was not present at the Planning and Zoning meeting in March 2003 due to a conflict. He stated that he was engaged to process the site plan that was approved by Smith Development. (Attorney Reichman objected to the following statement in that it calls for speculation.) Mr. Allen stated that when something is vested, his interpretation is that he is free to build and that he could not vary from the approved plan. Mr. Allen stated his belief that the garages could be constructed within 1 the 10-foot setback. Attorney Pickles expressed his intent to establish an equitable relief of estoppel in that the engineer of record stated his understanding of what was allowed at the time that the Planning and Zoning Board approved the site plan. Attorney Garganese advised the Council that they had the right to weigh the expertise of any i 1 j 1 i i City of Cape Canaveral, Florida City Council Special Meeting — Vested Rights I June 1, 2004 Page 5 of 14 response. Mr. Allen stated that he was not aware of any hazards that the driveways in question would present and used Costa del Sol, Ocean Oaks and Canaveral Sands as t examples. I Cross - Examination by Attorney Reichman: i I Mr. Allen stated that he was not at the March Planning and Zoning Board meeting and 4 he sent a representative. Mr. Allen stated that Collette Cannon retained him in the 1980's on this project. He stated that the prepared date was on the right hand side. The date of project assignment was November 29, 1982. Mr. Alien stated that the notes on the site plan reflect changes. He stated garages were added on June 11, 1984. He stated that he thought the site plan was approved as of March 1984. Mr. Allen stated that his firm added garages after the Planning and Zoning Board approved the site plan in 1984. Mr. Allen stated that the setbacks are based on the tracks at 25 feet. He said that the side and rear setbacks were highlighted on the site plan. Mr. Allen stated that until recently, a 25 -foot setback was not consistently applied. He said that in 1984 the setback was not interpreted as 25 -feet. Mr. Allen re- stated that setbacks were not consistently applied. He stated that variances were not required for those setbacks and the prior Building Officials made interpretations for the setback requirement. Mr. Allen stated that he did not request a variance in 1984 and variances are acquired through the Board of Adjustment. He stated that at the 2003 Planning and Zoning Board meeting he was unaware of what the Board was shown. Mr. Allen stated that at the February 12, 2003 Planning and Zoning Board meeting, neither staff nor the Board questioned when the garages were added. Questions from the Council: I Mr. Treverton noted that no dimensions were reflected on the 1984 site plan. Mr. Allen stated Ms. Cannon submitted a hand drawn depiction and the Board reviewed it Mayor Randels asked if the garages were added after the plan was presented at the March 28, 1984, Planning and Zoning Board meeting in June of 1984. Mr. Allen stated that plans subsequently submitted did show the garages. 1 J Ms. Joyce Gumphers was called on for testimony and sworn in i 4 For the record, Ms. Joyce Gumphers stated her place of employment as Allen Engineering, 106 Dixie Lane, Cocoa Beach, Florida. She was the project coordinator for the Shores of Artesia. She affirmed that she was present at the February 12, 2003 i Planning and Zoning Board meeting. [Attorney Reichman objected to the following statement in that it is hearsay evidence] Ms. Gumphers stated that setbacks were discussed at that time She stated that setbacks were discussed at the February 12 i meeting. She stated that Exhibit 4 was the site plan presented at the March 12, 2003 meeting. Ms. Gumphers pointed to the driveways on the site plan, Exhibit 4, and stated 1 that a 10 -foot setback is evident. Ms. Gumphers stated that no other site plan was ii C presented except Exhibit 4. Ms. Gumphers pointed out that the notes reflect the track boundaries for the building setbacks. She stated that setbacks relate to the entire track i i i 1 i 1 City of Cape Canaveral, Florida City Council Special Meeting — Vested Rights June 1, 2004 Page 6 of 14 1 i lie in opposition to individual Tots. Ms. Gumphers affirmed that she assisted with documents for submittal to the 2003 Planning and Zoning meeting. Ms. Gumphers stated that she was under the impression that everything was vested due to the j Planning Board's approval to include the location of the buildings on the site plan. 1 Cross - Examination by Attorney Reichman: 4 Attomey Reichman submitted City's Exhibit 1, the Planning and Zoning Board transcripts. Attorney Reichman read from the transcript of the meeting that made general reference only in the Board's discussion on setbacks. Ms. Gumphers stated that the Planning and Zoning Board did not see the plans that depicted the garages to which Attorney Reichman pointed. (Attomey Pickles objected to the following statement in that it called for speculation.] Ms. Gumphers stated that she added the garages at the request of Ms. Collette Cannon. Ms. Gumphers stated that she could not recollect if Ms. Cannon told her that the garages were approved in 1984. She said that no bedrooms were depicted on that site plan. Ms. Gumphers asserted that a mark noted on the site plan depicted a 10 -foot setback. Ms. Gumphers stated that she prepared the site plan using the R -2 requirement. Ms. Gumphers stated using the 1984 City code that the setback requirement was 25 -feet. Ms. Gumphers stated that the Planning Board should be familiar with the City code. She stated that any construction outside of the City 1 requirements required a variance from the Board of Adjustment. Ms. Gumphers replied a request for a variance was applied for, but a recommendation was given to proceed lle with a vested rights hearing. She stated that the bedroom construction did not infringe on any required setbacks. 1 , Questions from the Council: j Ms. Gumphers replied to Mr. Treverton that no garages were depicted on the 1982 plan. Ms. Gumphers stated that she submitted six copies of her Revised Site Plan No 8 with garages added to Mr. Artis Gunn, Building Official. For the record, Ms. Gumphers 1 affirmed that the Planning and Zoning Board approved the site plan, Exhibit 4, for vesting on March 12, 2003. Mayor Randels reviewed the interpretation of vesting as the Planning Board approved it Attorney Pickles stated that the March 12, 2003 site plan was approved and for the purposes of this meeting, his client was unaware of what was vested prior to that time. Attorney Reichman stated that an application for vested rights should be approved according to Section 115 -5 based on a valid act by the City. He stated that the basis of the action was what the 1984 site plan substantiates and that is i what was approved in 2003. Ms. Gumphers responded to Attorney Garganese that the site plan, Exhibit 4, did not depict the lot lines. Ms. Gumphers responded to Attorney Reichman that no lot lines were evident. Ms. Gumphers stated that she followed the lot line from the record plat to delineate the lot lines on the site plan. She stated that she superimposed the record plat onto the site plan. Ms. Gumphers replied to Attorney Pickles that the setbacks denoted 1 are 10 -feet. Mr. Allen explained that the right -of -ways for the streets are 20 -feet wide. C Ms. Gumphers stated that through her expertise she could tell that the driveways are i , 1 I 1 City of Cape Canaveral, Florida City Council Special Meeting — Vested Rights June 1, 2004 Page 7of14 c e denoted at 10 -feet. Ms. Gumphers stated that the garages were not noted on the March 1984 site plan. Attorney Garganese stated to the Council that what was presented for vesting in 2003 did not have the garages depicted at the March 1984 Planning and Zoning Board site plan approval meeting. In some fashion, Exhibit 4 was presented to the Planning and Zoning Board. Mr. Miller asked the City Attorney if a vested site plan of the final building document would proceed for construction or does the Board of Adjustment review it for a variance. Attorney Garganese replied that the Planning and Zoning Board vested the site plan in March of 2003 and development followed. The issue in question is what was vested. Mr. Treverton called for a point of order and requested that the Chair address the City Council Regular Meeting scheduled to begin at 7:00 P.M. Attorney Garganese advised i i that the hearing could continue into the Regular Meeting. Mayor Randels clarified that the Regular Meeting would open following the conclusion of the Vested Rights Hearing. Mr. Roger Smith was called on for testimony and sworn in Mr. Roger Smith stated his address as 5300 South Orange Avenue, Orlando, Florida. He stated that he purchased the property in question in 2002 for $647,000. He stated that he met with City staff in 2002 regarding this site plan. He stated that he met with Mr. Morris Reid, Building Official. Mr. Smith stated that to his knowledge Mr. Allen applied for a variance application. He stated for the record that he did not proceed to i C close on the property until all regulatory permits were acquired and he closed after the final Planning and Zoning Board Meeting in March of 2003. Mr. Smith stated that he I thought the site plan, Exhibit 4, was what he purchased and closed on. Mr. Smith stated j that if he were not allowed to build, he would incur significant damages. [Attorney Pickles submitted Applicant's Exhibit 3, Damage Calculations for Loss of 1 Garage and 1 Apartment per unit for Lots 28-40 and Reconfiguration of Lots 22 -27 and Loss of Square Footage at a cost of $607, 000 and Exhibit 4, Damages Calculation for Loss of 1 Apartment and 1 Garage Per Unit at a cost of $952,000.1 Mr. Smith stated that all but four units were sold of which he intended to keep. Mr. Smith stated that his intent was not to move out of the intended construction footprint. [Mr. Reichman stated that Mr. Moms Reid, former Building Official was not available for testimony.) Mr. Smith stated that he was present at both the February 12 and March 12, 2003 Planning and Zoning Board meetings. Mr. Smith read from the March 12 minutes, "Mr. Smith advised that he intended to purchase and develop the property and develop 19 town homes per the recorded plat and based on the approved site plan." He pointed to the architectural renderings that the Board reviewed that included bedrooms above the garage. He stated that the City's intent is to have him remove a significant portion of his construction. Mr. Smith stated that he tried to reconfigure the lots however the result would create a product of lesser value. Mr. Smith stated that he thought what 1 the Planning and Zoning Board approved was final. He said he signed a Foundation Permit waiver but thought nothing of it. Mr. Smith stated that he thought his setbacks were approved when the site plan was vested. 1 1 i I City of Cape Canaveral, Florida City Council Special Meeting — Vested Rights June 1, 2004 i Page 8 of 14 ' Co At 6:55 P.M., Mayor Randels called for a recess until 7:00 P.M. The Vested Rights Hearing reconvened at 7:30 P.M. 1 A point of order was made on numbering for the Exhibits presented. For the record, the artist's rendering was submitted as Applicant's Exhibit No. 5. Mr. Smith stated that he was totally blind sided in that he thought the property he purchased was vested. Mr. 1 Smith stated that he was told not to move the pad. He stated that he did all that he was i told by the City and the Board. He has waited 90 days for notification from the City. He stated that when he finally got a hearing two weeks ago, but the City forgot to advertise, which brought him up to this hearing date. Mr. Smith stated that the legality of what happened 20 years ago has no bearing on him. ' Cross - Examination by Attorney Reichman: 4 Mr. Smith stated that he did attend the meeting in March of 2003. Mr. Smith stated that those meetings were held by the former owner in order to ascertain if the plans and the property were vested and ready for development. Mr. Smith stated that he thought the meeting was to determine if the site plan was vested. Mr. Smith replied that he hired an engineer to interpret what he was purchasing to represent on his behalf with the City. He hired Mr. John Allen some time in 2002. Mr. Smith stated that he is not contending any action in 1984. (Attorney Pickles objected to the following statement in that it called 1 for speculation] He stated that he was purchasing a piece of property that was approved ' C by the Planning and Zoning Board in 2003. Mr. Smith stated that he closed on the I property after all approvals at the Federal, State, local and water management districts and whomever else had any jurisdiction on the property. Mr. Smith stated that he has built numerous projects in 20 years of development. Mr. Smith stated that he obtained a foundation permit and he understood the risk in signing such a document. Mr. Smith stated that he does not sign a waiver in Orange County. Mr. Smith affirmed that he had an artist's rendering prepared and the rendering was shown to the Planning and Zoning Board and the Community Appearance Board. Mr. Smith that stated that he had lunch with Mr. Todd Peetz and Mr. Morris Reid at Rusty's. He stated the Mr. Reid was hard -lined on the project, but he did not specifically remember any comments from Mr. Peetz. Mr. Smith stated that the footprint of the site plan had nothing to do with the bedrooms over the garage. Mr. Smith stated that he had pre -sell units with deposits and reservations and any client can retract a deposit at any time. Mr. Smith stated that a property closing is dependent on a Certificate of 1 Occupancy from the City. Mr. Smith affirmed his conversation with Mr. Reid regarding a 1 site plan prior to March 2003, and he was unaware if Mr. Reid was referring to the 1984 1 site plan. Mr. Smith stated that he took his action based on approval from the Planning and Zoning Board's decision. 1 Mr. Steve McCaslin was called for testimony and sworn in 1 i For the record, Mr. Steve McCaslin stated his address as 798 Florencia Circle, c Titusville, FL. He stated that he is director of sales and has worked with Mr. Smith in C i 1 I i City of Cape Canaveral, Florida City Council Special Meeting — Vested Rights June 1, 2004 Page 9 of 14 ; C land acquisition assisting with sales and design on this project. Mr. McCaslin stated that he worked from the onset with Mr. Morris Reid and after Mr. Reid left the City, then with 1 Mr. Bennett Boucher and, subsequently, Mr. Todd Morley. Mr. McCaslin said the Mr. Reid was of the mindset that the project would not meet today's standards and a variance was needed. Mr. McCaslin stated that a variance application was sought however the City Attorney recommended a vested right hearing. [Attorney Reichman objected based on the fact that Mr. Reid was not present. Attorney Pickles replied that it is a party admission in its capacity from Mr. Reid as a former employee of the City] He stated that his understanding of a vested right was that construction had to be ' performed according to the site plan without variation or the site plan is voided. 1 Mr. McCaslin stated that the site plan on the easel, Exhibit 4, was the site plan of which he and Mr. Reid spoke. Mr. McCaslin stated that it was a difficult site plan for the footprint. Mr. Reid told him that he could build vertically; however, he could not build outside of the site plan footprint and he related this information to Mr. Smith. Mr. McCaslin stated that he was in contact with City staff on a weekly basis from November 2002 to March 2003. He was unaware of any problems with the project until the project was flagged. Cross - Examination by Attorney Reichman: I Mr. McCaslin stated that he was aware of only one site plan that was approved. Mr. McCaslin stated that he did not note any changes to the site plan. Mr. McCaslin said that he was at the Planning and Zoning Meeting, and he understood that he was given I the right to construct, as it existed. Mr. McCaslin stated that what was given was the site plan, Exhibit 4. Mr. McCaslin stated that no one has ever seen the site plan without the garages. Mr. McCaslin stated that he was not aware of what was approved in 1984. Mr. McCaslin stated that he knew there was a problem and the problem was the reason a variance was sought. He stated that the setback issue was no secret. Mr. McCaslin affirmed that he was at the meeting in 2003. He stated that a set of plans was submitted with the noted setbacks. Mr. McCaslin stated that a site plan with garages depicted was submitted for vesting and whatever the Planning and Zoning Board approved in 1984 I was irrelevant. j Mr. McCaslin replied to Attorney Garganese that the only site plan he had ever seen was Exhibit 4. Mr. McCaslin said that Mr. Reid explained to him that he could apply for a variance to build the existing plan within the setbacks. Mr. McCaslin responded that Mr. Reid never brought up any previous code, but he did say that the site plan presented did not meet the existing City code. Mr. McCaslin stated that Mr. Reid told him that a variance request was a recommended procedure to continue the project. Mr. McCaslin said that Mr. Morley's interpretation of the setback applied to the individual lot and not to the entire tract of land. Mr. McCaslin stated that the entire staff seemed to prefer the vested rights procedure. i C WITNESSES FOR THE CITY: 1 i 1 City of Cape Canaveral, Florida City Council Special Meeting — Vested Rights June 1, 2004 Page 10 of 14 ,r Mr. Lamar was called on for testimony and sworn in I For the record, Lamar Russell stated his address as 376 Harbor Drive, Cape Canaveral, ! Florida. Mr. Russell stated that he has lived in Cape Canaveral since 1973 and he has been on the Planning and Zoning Board since 1981 and serves as the Board Vice Chairperson. Mr. Russell stated that he signed the minutes of the 1984 meeting. Mr. Russell affirmed that Mrs. Cannon had asked for covered garages, street widening and j additional parking spaces. Mr. Russell read from the minutes and stated that the Board I affirmed the motion unanimously. Mr. Russell stated that by reason of operation the 4 Board reviewed lot sizes, zoning, building concepts and setbacks. However, this drawing has no setbacks that may have been missed as a topic of discussion. He stated that the Board operates under the assumption that the City code establishes the 1 i setbacks that the Building Official enforces. Mr. Russell stated that since there was no defined formula to calculate a setback, the Board depends on overt dimensions. Mr. Russell stated that the engineering notes read 25 -feet from the property line to the first face of the building, in this case, the garage. Mr. Russell stated that the engineering note to add garages is dated June 11, 1984. Mr. Russell stated that he could not recall if the site plan approved in March of 1984 had garages. Mr. Russell stated the Planning and Zoning Board did not have the power to grant a variance; variances are granted through the Board of Adjustment. Mr. Russell stated that he was not present at the February 12, 2003 meeting, but he 1 was present at the March 12 meeting. Mr. Russell recounted that on February 12 the minutes would reflect that questions arose regarding setbacks and parking and allusions were made to major changes to setback regulations. However, no changes had been made to the setbacks since 1974. Mr. Russell said that on February 12 the site plan was denied; however, on March 12 the issue returned to the Board. The City Attorney gave an overview of the background information, and he advised the Board that the Shores of Artesia 1984 site plan should be vested, and he advised that the Board had approved the final plat in 1984. He noted that the City did not have a specific 1 code for vesting of site plans. The hearing continued and the Board asked why they j were required to vest the site plan, and the Board was told that they were given the I authority by City Council. Discussion followed regarding equitable estoppel. At the time of the vote, the Board decided that the City Attorney did not have an adequate defense for the previous denial of the site plan. Mr. Russell stated that the Board approved the site plan presented, Exhibit 4. Mr. Russell stated that it was not the Board's intent to allow garages in setbacks. I 1 Cross - Examination by Attorney Pickles: Mr. Russell replied to Attorney Pickles that he was not present at the February 12 meeting. Mr. Russell stated that parking regulations and turning radiuses for the fire trucks might have been the changed zoning codes to which Mr. Nicholas referred on page 4 of the meeting minutes; however, the front setback regulations never changed. Mr. Russell stated that Mr. Peetz' statement regarding setbacks changes from 10- to 25 -feet was an error. He stated that Mr. Peetz' statement formulated a question to him i 1 1 1 I 1 City of Cape Canaveral, Florida City Council Special Meeting — Vested Rights June 1, 2004 Page 11 of 14 i C that he did not verbalize during the meeting. Mr. Russell stated that he saw nothing with an official stamp on it at the March 12 meeting. Mr. Russell stated that he did not know of a site plan attached to the meeting minutes of 1984, and he could not recollect any notations on the plan from that meeting. Mr. Russell stated that there were no overt setback measurements on the site plan presented. (Attorney Pickles objected to the following statement in that it called for speculation.) Mr. Russell stated that the engineering notes reflect a setback of 25 -feet. Mr. Russell stated that no inquiry was made of staff regarding setbacks during the meeting. Mr. Russell stated that Ms. McNeeley prefaced for the Board at the March 12 meeting that the item was forwarded to them from the City Council for reconsideration. Council members had no questions for Mr. Russell. Mr. Todd Peetz was called on for testimony and sworn in i For the record, Mr. Todd Peetz stated his address as 10221 Riverstill Drive, Orlando. He stated that he is the City Planner employed with Miller, Legg and Associates, Inc. Mr. Peetz recounted his employment history with the City. Mr. Peetz stated that he discussed, but did not work on the Madison Cay Townhome project. Mr. Peetz stated that he and Mr. Reid had a lunch meeting with Mr. Smith and Ms. Cannon who were told that the site plan was no longer valid. Mr. Peetz stated that a red flag existed in that i! (re there were no setbacks, and his intention was to work with the property owner to build the project within code. Mr. Peetz recounted the variance requirements. He stated that staff provides existing conditions and allows the appropriate Boards to make decisions. Mr. Peetz stated that the setback in 1984 was 25 -feet and is still 25 -feet in the code today. Mr. Peetz stated that there are two ways to build in these setbacks: 1) through a I variance or 2) through a Planned Urban Development {PUD }. He stated that the Board of Adjustment grants variance. Mr. Peetz stated that he began to review variances only after Mr. Reid left employment. He stated that he might have suggested a vested rights application during an informal meeting, but he could not recall. Mr. Peetz stated that during the February 12 Planning and Zoning Board discussion, he said without the opportunity to verify that under today's code it might not meet the setbacks. (Attorney Pickles submitted, Applicant's Exhibit No. 5] Mr. Peetz stated that he was unaware if this memo was forwarded to the City Attorney of record Mark McQuagge. He restated that what he said at the February 12 meeting regarding setbacks was a supposition, not a fact. Mr. Peetz stated that he was not asked to provide a staff report at that time on the 1984 site plan as it related to setbacks. (Attorney Pickles submitted, Applicant's Exhibit No. 6] He stated that the memo was forwarded to him through staff. Mr. Peetz stated that the streets are 24 -feet wide and required a tuming radius. Mr. Peetz stated that the parking would hinder traffic due to the 10 -foot driveway and there are no sidewalks. Mr. Peetz stated that the Planning and Zoning Board establishes setback requirements for a PUD. Mr. Peetz stated that Ocean Woods is the only PUD and it is within the 25 -foot setback. ; C 1 Council members had no questions for Mr. Peetz. 1 i 3 i 4 °a 1 City of Cape Canaveral, Florida City Council Special Meeting — Vested Rights 1 June 1, 2004 Page 12of14 Mr. Todd Morley was called on for testimony and sworn in i For the record Mr. Todd Morley stated his address as 397 Range Road, Cocoa. He stated that he is the Building Official since February 2002, employed to interpret City building codes and ordinances; prior to that time he was a Building Inspector. He stated that he has been in the building industry since 1980. Mr. Morley stated that he began 1 attending Planning and Zoning meetings and City Council meetings at which time he first heard about the Vested Rights matter. He stated that it was during the review of the 1 construction plans that a problem was noted. Mr. Morley stated that the applicant was i provided a plan review correction sheet twice. 1 Attorney Garganese called for a Point of Order on numbering of the Exhibits. 1 Mr. Morley stated it is policy that all construction will have a plot plan showing the 1 structure as they apply to the site plan. He read from a note dated December 22 from a second review and recalled that Mr. Tom Swendiman did not give him the information on the distance from the property line to the front of the garages. The agreement was that Mr. Swendiman would provide the information, and Mr. Morley would find the ordinance that was in effect at the time the site plan was originally approved in 1984. Mr. Morley stated that up to that point, there was no indication that the buildings were built any closer than 25 -feet of the property line and there was nothing given on the site ,, ce plan to show otherwise. Mr. Morley stated that he never received exactly what he I requested, but he did receive another plan from Mr. Swendiman with highlighted - dashed lines that indicated the property lines as they overlay the site plan. It was at that point that a problem was recognized. (Exhibit 6 of the Packet.] Mr. Morley stated that this was the first time that he had knowledge that anything was being built closer to 25- foot setback of the property line. He received the Exhibit on January 21, 2004. He stated that he could identify that there were no setbacks because there were no property lines drawn or superimposed over this site plan. Mr. Morley stated that at the time, there had been no construction in 20 years. He stated 1 that foundation permits were requested prior to him receiving this information. An At- Risk Affidavit was signed informing the builder that construction is performed at -risk and subject to code requirements. Mr. Morley issued a Stop Work order to address the front setback problem. Mr. Morley identified a non - engineered drawing with six garages that I did not appear within the setbacks, but without dimensions he could not be certain. Mr. 1 Morley stated that Ms. Collette Cannon submitted an amended site plan to the Board in which covered garages were added, the street widened, 5 -feet and 14 parking spaces added. The Board passed this plan unanimously. He stated that what he viewed in front of him appeared to be a conceptual plan to what the Board passed. Mr. Morley stated that revised engineering drawings are now required. Mr. Morley stated that it would be up to the Building Official to enforce the setbacks and otherwise up to the developer to seek a variance. Mr. Morley stated that January of 2002 was his first contact with the issue. Mr. Morley read the memos marked Applicant's Exhibit No 5 and City's Exhibit No 1. Mr. Morley said that he did not make comment on the City Planner's memo, and I i 'C I 1 I x 1 City of Cape Canaveral, Florida City Council Special Meeting — Vested Rights June 1, 2004 1 Page 13 of 14 I Co, he did not direct the applicant to apply for a variance. Mr. Morley replied that on March 12 2003, the Planning and Zoning Board vested the developer to build with the rights that were approved in the 1984 site plan. [Attorney Pickles presented a document dated January 16, 2004 and submitted it as Applicants Exhibit No. 6.1 i Council members had no questions for Mr. Morley. i 1 1 SUMMATION: 1 Attorney Pickles summarized that: 1) the applicant acted with reliance upon the act of the City by the Planning and Zoning Board's approval of the March 12, 2003 site plan, 1 2) the City Planner made a statement that became a mistake of fact regarding changes in the ordinance and the Board accepted and vested the site plan, Exhibit 4 and 3) the applicant's reliance was reasonable and in good faith, and it would be inequitable or unjust and fundamentally unfair to destroy the applicant's rights by an error or omission on the City's part. Mr. Smith proceeded to act based upon the Planning Board's I decision. He requested that the Council consider the site plan presented as Exhibit 4. 1 Attorney Reichman summarized that: 1) the applicant relied on a valid un- expired act of the City; however, the applicant refuted what was presented in 1984 and 2) he questioned, was the applicant's reliance reasonable and in good faith? Mr. Reichman stated no in that the Planning and Zoning Board made consideration on a document without the garages. The Board in 1984 would have made a mistake of law in approving a site plan that contained a variance and not a mistake of fact in that the setback requirements did not change from 1984 to 2003. Mr. Reichman stated that the applicant has not met his burden, that the 2003 Planning Board approval was not a valid act and that the applicant's expressed reliance was not in good faith. He requested that the Council deny the application. 1 1 Attorney Pickles expressed rebuttal to Mr. Reichman's summation and stated his client relied upon the Planning Board's decision in 2003. He expressed (2) Mistakes of Fact, j the state of the law in 1984, an ordinance was never passed and the site plan presented was the site plan approved to include the depiction of the garages. We are seeking to build consistent with the site plan presented in Exhibit A. 1 j 1 Mayor Randels summarized that there was no way to know what was approved in the 1984 site plan without seeing it and what was written in the 1984 minutes was 1 approved. He read from the 1984 Planning Board minutes that, "Mrs. Cannon submitted an amended site plan to the Board." Mayor Randels also referred to the March 12, 2003 meeting minutes. He recounted that "the City Attorney advised that the Shores of Artesia, Phase II, site plan approved by the Board in 1982 should be vested, he advised that the final plat in 1984 was recorded, he explained the definition of equitable estoppel, he advised that the utilities were installed for Phase II, he noted that the City I c . did not have a code for vesting. In conclusion the Board approved the vesting for Shores of Artesia, Phase, II." t t 1 i I City of Cape Canaveral, Florida City Council Special Meeting — Vested Rights June 1, 2004 Page 14of14 Nre FINDINGS OF FACT: The City Council should recognize that the site plan of March 12, 2003 is vested and what development rights were received when the site plan was vested. Mr. Treverton stated that the 1984 site plan did not have garages. He expressed that the applicant knew that this was an ongoing problem. When the Building Official made inquiries on the project encroaching into the setback a stop work order was issued. He expressed that he did not feel that the applicant met his burden of proof. Mr. Miller pointed out that the original drawing did not have garages; however, that is secondary to the mistakes on the City's part. The applicant is providing a valuable product to the City and stated that the project was started and should proceed in good faith. He expressed favor in approving the application. Mr. Treverton replied to the City Attorney that he was deliberating the issue. Mayor Randels stated that the Planning Board proceeded at the consent of the Council. Attorney Garganese stated that it is up to interpretation as to what was vested and vested rights are based on very fact intensive 4 data One fact remains: there was never a change in law from 1984 to 2003. That statement was assumed or taken out of context. Mayor Randels reviewed the Code requirements to approve a vested rights application. Council deliberated on the issue. Attorney Garganese asked Mr. Pickles what he thought was his client's idea of the required setback. Attomey Pickles stated a10 -foot setback. Attorney Garganese stated that he would draft a final order for submittal within 14 -days of this Hearing for the Council's review for approval of the Vested Rights Application. The order would come before the Council on June 15"'. C)4%\ S C■CkP.S .20 Rocky Randels, MAYOR Susan Sti s, TY CLERK A s :1 I 1 i n I \, F1.()R I I ) f\ f TODAY , '' Published Daily i i STATE OF FLORIDA 1 COUNTY OF BREVARD Before the undersigned authority personally appeared MAUREEN FARR who on oath says that she is LEGAL ADVERTISING CLERK ' , <14-V , 10.54 W e * 1 "' Wares of the F LORIDA TODAY, a newspaper published in Brevard County, Florida; Canaveral "T 1 Polk that the attached copy of advertising being a LEGAL NOTICE a be Impeded In Its enreety In aw C tY°era's N- ike during business taus (kM 9 (AD #408360- $126.11) the matter of am. to 100pm.,MOraW-Fei- CITY OF CAPE CANAVERAL 1 E NAVER A DA, 1 ANT TO ary caw n the Court RIGHTS NI NOTICE OF HEARING TN sM1 DEVIL f I N C., WITN REGARD �TOp��A ! ZI 11:1 VS PO t= was published in the FLORIDA TODAY E At OINNERALLY ISM MOM in the issues of MAY 19, 2004 Pursuant to a `h0e Florae Statutes, the cMV � $ by advises MN public Met If a a affiant further says that the said FLORIDA TODAY c wed m 1 C matter considered at ttds is a newspaper in said Brevard County, Florida, and that the said newspaper has r etina reoora o +fw °A " i Ni d and for such SODOM Max per- heretofore been continuously published in said Brevard County, Florida, regularly as verbatim rreoordd o n that a coedit= Is made, which re- Includes the testknony stated above, and has been entered as periodicals matter at the post office in cord evidence the added d to be based. This no- g tice does not ehmt®ufe consent MELBOURNE in said Brevard County, Florida, for a period of one year next preceding by the City for the w Irdroduchon the first publication of the attached copy of advertisement; and affiant further says that or admbsion Into that:, *Manatees otherwise dbwed� N she has neither paid nor promised any person, firm or corporation any discount, rebate, ""1 am of Meese pradedlrgs commission or refund for the purpose of securing this advertisement for publication in said newspaper. 1 �,/ - , , I � -� 2 (Signature of Affiant) 1 Sworn to and subscribed before this this 19TH day of MAY, 2004 J A Off (i y Pi er' OFFICIAL NNOTTMR ` - 44.1- JODI l. H , 3 ! Q COMMISSION NUMBER (Signature of tary Public) 4 �� �cOF ' I�Ir F`�p 00052028 MY COMMISSION EXPIRES 1 AUG. 21,2005 JODI L. KILPATRICK (Name of Notary Typed, Printed or Stamped) Personally Known or Produced Identification Type Identification Produced t i i i 1 4 o r t FORM 88 MEMORANDUM OF VOTING CONFLICT FOR ... COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS 7 NAME—FIRST NAME NAME OF B IDDLE NAME BOAR, COUNCIL COMMISSION. AUTHORITY. OR COMMITTEE gc1? T +e• tov�ci L 1 MAILING ADDRESS / THE BOARD, COUNCIL. COMMISSION. AUTHORITY OR COMMITTEE ON f 6 J"�C 7 � SON T 1 • WHICH I SERVE IS A UNIT OF: rivdrrY ❑ COUNTY O OTHER LOCAL AGENCY CITYMP& IJA C Ft COU TY A RI NAME OF CA! SUBDIVISION: DATE ON WHICH VOTE OCCURRED � -4/1W6 e/4 F1 MY POSITION IS: ELECTIVE 0 APPOINTIVE WHO MUST FILE FORM 8B 1 f This fare is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council, I commission, authority, or committee. It applies equally to members of advisory and non - advisory bodies who are presented with a voting conflict of interest under Section 112.3143, Florida Statutes. I Your responsibilities under the law when faced with voting on a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before completing the reverse side and filing the form. I INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112 "3143, FLORIDA STATUTES i 1 A person holding elective or appointive county, munidpal, or other local public office MUST ABSTAIN from voting on a measure which 'nures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea- ure which inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the parent organization or subsidiary of a corporate principal by which he or she is retained); to the special private gain or loss of a relative; or to the special private gain or Toss of a business associate. Commissioners of community redevelopment agencies under Sec. 163356 or j 163357, F.S., and officers of independent special tax districts elected on a one -acre, one -vote basis are not prohibited from voting in that capacity. For purposes of this law, a 'relative" includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father -in -law, mother -in -law, son -in -law, and daughter -in -law. A "business associate' means any person or entity engaged in or carrying on a business enterprise with the officer as a partner, joint venturer, coowner of property, or corporate shareholder (where the shares of the corporation are not listed on any national or regional stock exchange). • w ■ • • • r w w : • • • w + ELECTED OFFICERS: In addition to abstaining from voting in the situations described above, you must disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you are abstaining from voting; and 1 WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the min- I i utas of the meeting, who should incorporate the form in the minutes. l i • • w 1 • • R • t • • f • w f • APPOINTED OFFICERS: I Although you must abstain from voting in the situations described above, you otherwise may participate in these matters. However, you I must disdose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and whether made by you or at your direction. I IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE 1 AKEN: • You must complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side) CE FORM 88 - EFF. 112000 PAGE 1 1 i j 1 I • 3 1 i APPOINTED OFFICERS (continued) , C • A copy of the form must be provided immediately to the other members of the agency. • The form must be read publicly at the next meeting after the form is filed. IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING: 4 • You must disclose orally the nature of your conflict in the measure before participating. f i i • You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes of the i. meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the other members of the agency, and the form must be read publicly at the next meeting after the form is filed. k 1 DISCLOSURE OF LOCAL OFFICER'S INTEREST I, ie r r V � 1 r v _ hereby disdose that on J L 1 — , 20 a# : (a) A measure came or will come before my agency which (check one) ./ .. inured to my special private gain or loss; — inured to the special gain or loss of my business associate, _ - -_— — - -_ - - , r —_ inured to the special gain or loss of my relative, _ —_ —_ _ -- ; — inured to the special gain or loss of , by i whom I am retained; or — inured to the special gain or loss of — , which is the parent organization or subsidiary of a prindpal which has retained me. i C (b) The measure before my agency and the nature of my conflicting interest in the measure is as follows: /1iz2?> 30 (i; WA //o /ve S i f ; r-21ca G ,372/) crr9.- 1 i 1 1 ,1 1 g 9 I z 1 / •, f P.- Do 4 - - Dat il! Signs re 'l 1 NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE i CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A t C CIVIL PENALTY NOT TO EXCEED $10,000. s 1 CE FORM 88 - EFF. 1/2000 PAGE 2 1 i i 1