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HomeMy WebLinkAboutOrdinance No. 04-2009 Additional Items { , . / ► its>-4,1 mow 7 December 2009 city Mgr. ' tH Pub.W orks Diry,_ Building Oft Finance Direr. # I FYI, 'G �>«" .`1 e `I I Mailed copies of this to P&Z Board members. Hand delivered copies to Bennett Boucher, Todd Morley, Barry Brown and Susan Chapman. Sent a copy by e-mail to Kate Latorre. 4. Earl McMillin 3 I 1 i 1 1 I i i ■ I i I 1 1 1 1 t I 1 I 1 1 . 1 1 it t. CA, i City of Cape Canaveral, Planning & Zoning Board Relevant Item Before The Board Ordinance No. 04-2009, amending Chapter 98, "Subdivisions" is the item before the Board to which this document is addressed in general. In particular it is addressed to a wholly new addition to Chapter 98 i.e. Section 98-63 Lot Splits. Origin Of This Document This document was prepared by, and presented to the Board by, Earl McMillin, who is, and has been for the past 15 years, a resident of 397 Holman Road, Cape Canaveral, 32920,telephone (321) 783-8834. Sunshine Law I Both Earl McMillin and his wife,Nancy, are uncertain about whether all members of the Planning and Zoning Board are familiar with Florida's Sunshine Law. We are compelled to mention this because we are aware of an e-mail from one Board member to all other Board members dated November 30th that said in effect, "I cannot attend the meeting, but here are my thoughts." That certainly seems a harmless step to take, but it seems to be a violation. The Sunshine Law bars any Board member from communicating with any fellow Board I member about any matter that may come before the Board outside of a properly noticed 3 public meeting. A suggested way to avoid violation of the Sunshine Law---and legal counsel to the Board can advise you---is to send any "I cannot attend, but here are my thoughts" communication to the Board Secretary and ask the Secretary to deliver copies to the other ' Board members during the public meeting. The law also forbids third parties from acting as communication conduits between you 1 and any other member of the Board. Be assured that neither Earl nor Nancy would ever i violate the law. Apology I This document may speak to what is perceived as a problem that in actual fact is not a problem. That is probably because the writer is not as familiar with the Florida Statutes, Comprehensive Plan, City Code and planning, construction and engineering as some others may be and because of the brief time that the writer has been able to devote to this matter. -1- i i 1 . I ' I ' I � I Focus The focus of this document is the Comprehensive Plan. That is because the Plan is intended to set goals and policies. Ordinances and procedures are intended to achieve the goals and policies set by the Plan. Does the proposed Section 98-63 do this? Section 98-63, Lot Splits The proposed Section 98-63 removes many protections that currently exist in the Cape Canaveral ordinances. The opening language of the "lot split" ordinance says, "The City Council may, by resolution at a public hearing, grant waivers from the platting requirements of this Article ...." That sounds as though only the platting requirements are to be eliminated, but that is not the case. Concurrency: According to the Division of Community Planning, "A key component of [Florida's Growth Management] Act is its concurrency provision that requires facilities and services to be available concurrent with the impacts of development." The concurrency requirement is designed to involve other government agencies in land development, e.g. St. John's River Water Management District and the Department of Environmental Protection. Concurrency addresses 6 "critical" issues: (1) water, (2) sewer, (3) solid waste, (4) drainage, (5)roadways and(6)recreation. The current Comprehensive Plan in CM-11.1 declares that the developer is to finance and install all the items necessary to be consistent with concurrency management. Chapter 86 of the City Code establishes a "Concurrency Management System". The Building Department has a 14-page Application for Concurrency Evaluation. Apparently, if Section 98-63 is adopted, the concurrency safeguard will not apply to lot splits. Drainage: The current Comprehensive Plan D-1 states that drainage into the Banana River is to be minimized. D-1.4 and C-2.1 both say that ordinances for the management of stormwater are to be enforced. D-1.7 sets a standard that the first 1" of rainfall is to be retained on the particular property and following a one hour storm in which 3" of rain } falls the excess water is to be gone within three hours. When a new home was under construction adjacent to the McMillin home several years ago there was a question of water run-off. The City advised that if drainage adversely impacted their home,the McMillins could sue---not the City---their new neighbors. -2- 1 • What was done was to avoid the problem by (a) having Allen Engineering do a topographical survey and advise on measures to be taken, (b) communicating with the new neighbors, and (c) cooperating with the new neighbors in carrying out the work to prevent a drainage issue. Catch 22: The Comprehensive Plan and the City Code create a Catch 22 for property west of Holman Road. Developed property is to have proper drainage, but drainage into the Banana River is to be minimized. How can these conflicting goals be achieved? All the land slopes down from Holman Road toward the River. Where is the water to go? Discretion: The proposed lot split ordinance places great reliance on the expertise and discretion of the Planning Official. Apparently, the Building Official, Public Works and the Fire Department may be consulted, but then again, they may not. Is this sound policy? City Code Section 110-223 requires review of site plans---not plats---but site plans, by (1) the City Engineer, (3) the Fire Marshal, and--for construction adjacent to the Banana River---(4)the Department of Environmental Protection. While being chary of leveling unwarranted criticism, it may be that a preview of coming attractions has already occurred. It is believed with some certainty that homeowners informed the City of their desire to place two more homes on the property on which they reside. Apparently, after a simple walk around the property by the Planning Official, the homeowners were informed that as soon as the lot split ordinance was enacted they would be allowed to place one additional home on their property. If this is true, it should serve as a wake-up call. The proposed lot split ordinance seems to place too much authority and discretion in the hands of one City employee. P&Z Review: In addition to the elimination of the safeguards of concurrency and review by all concerned City departments, review by the Planning and Zoning Board is also eliminated. The Board represents a total of about 67 years of experience in land management in the City. At least one member has served for almost 30 years. Is it possible for a city employee, however dedicated or well-intentioned, to match the collective memory of the Board? End Runs: Nothing in Section 98-63 prevents a landowner from using lot splits in a step-by-step process. If adopted as written, it will allow a landowner to slice off pieces of property one by one and make an end run around the rules for creating subdivisions. -3- 1 • Lot split ordinances are not a recent invention. The City of Cocoa Beach has such an ordinance and evidently it has been part of that city's law for a considerable time. The Cocoa Beach ordinance, unlike the proposed Cape Canaveral ordinance, has the following protections: 1. Compliance with all standards for subdivisions. 2. Review by police and fire departments. 3. Review by the entire development services department. 4. Only lot splits which do not require sidewalk, bikeway, bridge, drainage facilities, screening walls or other required improvements are allowed. 5. End runs are forbidden. Need? According to the Minutes of a Board meeting of February 11, 2009, City staff suggested that the new ordinance was desirable because, in the past, property owners subdivided without review and approval by the City. This resulted in lots that do not have the size and configuration to properly accommodate future development and created access management issues. Since the City ordinances have long required that making two lots out of one is a subdivision and the established procedures are mandatory, how was property subdivided in the past without the City procedures being followed? The answer appears to lie not in the laws, but in the absence of communication. Information Age: No procedure exists whereby Brevard County notifies the City when a deed relating to property in the City is filed. Thus, in the past property owners have simply prepared a deed conveying a portion of their property and filed it with the County without the knowledge of the City. We live in the Information Age. This is the 21'1 Century. Would it not make better sense to establish a procedure whereby the County automatically notifies the City when a deed is filed? It would seem that computers communicating with computers could do this. Human intervention would only be needed if and when the data indicated to the City there was a need. -4- E pp 1 I Wide Open Spaces? I Cape Canaveral is almost fully developed. Is there a large inventory of available land 1 that makes a lot split procedure a priority? The one area where it could be used appears to be is Southwest Corner of the City. Southwest Corner--A Unique Area The Southwest Corner of the City, particularly the area adjacent to the 20 foot wide, unpaved, right-of-way known as"Holman Road", is unique. Southwest Corner—Flood Plain On August 17, 2008, a wedding took place in the backyard of 397 Holman Road. A few days later Tropical Storm Faye arrived. After Faye departed the newlyweds were able to canoe through the backyard to have photos taken on the spot where they had exchanged their vows. IMuch of the Southwest Corner is within the Flood Plain. 1 The City Code has an entire article, Article 90, which speaks to the issue of floods and the flood plain. Code Section 90-93(4) says, for example, "Development requiring a building permit shall not cause a net loss in the flood storage area of the flood plain." Southwest Corner---"Holman Road" Holman Road pre-dates the creation of the City by 7 years. It was created on August 2, 1956 when William and Gladys Chandler executed a deed in favor of Brevard County for a strip of land 20 feet wide from east to west and 564.5 feet long from north to south. The deed included the following proviso: i "The above conveyance is made to the Grantee for right of way purposes, and the County by the acceptance of this deed does not obligate itself in any manner to construct, re- construct or maintain a road on, over and across said land " 1 Over the years this strip of land has been misrepresented on numerous documents. The current Official Zoning Map, for example, erroneously depicts it as extending farther south than it actually does. -5- 1 1 t f i I • Over the years Brevard County has maintained it, sought to pave it, refused to maintain it and sought to get rid of it. At a meeting of the County Commission on April 21, 1977, the County Attorney and Public Works Coordinator were directed to transfer all "roads located in municipalities and presently maintained by the County to the appropriate cities". Holman Road fell through the cracks; no transfer ever took place. Over the years the City has maintained it, sought to pave it and refused to maintain it Not so long ago the City directed a contractor resurfacing streets to deposit the paving material removed from various City streets in preparation for resurfacing onto Holman Road. After complaints by residents the material was removed. An effort made quit a few years ago to obtain the 20' by 565.5' strip and place it in trust for the benefit of all property owners adjacent to it failed. Who has the power to control Holman Road and the responsibility for it? The answer is unclear. At one time some agency of government placed a 25 mph speed limit sign on the road. The sign is no longer there. Presently the City is maintaining Holman Road. Southwest Corner—Subdivision As stated above, the City of Cocoa Beach has a lot split ordinance. The lot split ordinances of Cocoa Beach and other jurisdictions seem to aim at permitting lot splits to take place in existing subdivisions. That is to say in areas that have already been platted. They are not aimed at areas outside subdivisions. After exploring the Brevard County Property Appraiser's website, visiting Titusville and the City Building Department, the only "plat" of the Holman Road area that was found is dated November 27, 1959, a half century ago and before the City became a city. The area around Holman Road is not a subdivision. The area is like Topsy in Uncle Tom's Cabin; it"just growed". Southwest Corner—Cul-de-Sac Some provisions of the City Code that illustrate that the area has been allowed to simply evolve with little planning relates to cul-de-sacs. Code Section 98-1, defines "cul-de-sac" as "a street having one open end and being permanently terminated by a vehicular turnaround." } -6- :;3 Since an unpaved, 20 foot wide strip of dirt hardly merits the title "street" perhaps Section 98-110(d) dealing with alleys is more apt. Section 98-110(d) declares, "Dead- end alleys shall be avoided where possible, but if unavoidable shall be provided with adequate turnaround facilities at the dead end ...." Holman Road terminates at a manhole marked by two posts. Vehicles such as garbage trucks have to either back down or back out of Holman Road. One of the FP&L power poles on Holman Road is heavily damaged. It is believed a garbage truck attempting to negotiate the road did this. FP&L representatives visit the pole from time to time and once sprayed it with fluorescent paint. Perhaps they do this in the hope that the pole will be miraculously healed. The point is a 20' wide "road" is not something designed to support a subdivision. When a fire broke out on the property next to the McMillin, Earl McMillin had to run up to U.S. Highway A 1 A to direct the fire department to Holman Road. Once on the road, the Fire Department could not access the fire. On another occasion, when an ambulance was called to assist someone living next to the McMillins, the EMT personnel had to cut through the McMillins fence to access the adjacent property and render aid. Southwest Corner—Sewers Because a number of homes west of Holman Road are lower than the sewer line,they are equipped with lift stations. On a number of occasions raw sewage has erupted from the manhole at the south end of Holman Road. Section SS-1 of the Plan says that access to a state-approved,properly functioning sewer is to be assured. Southwest Corner—Environment Past Recognition---1990: The 1990 Comprehensive Plan stated: "Wetlands within the City are limited in number and size. * * * * On shore, across from Hall Island, exist several more acres of wetlands bounded by trees which is basically a wildlife habitat. These wetlands are good wildlife habitats. They should be preserved as such and no development should be allowed there." Comp. Plan, P.9-10, [Emphasis supplied.] i This was recognition of the uniqueness of the Southwest Corner. Current Comprehensive Plan: Wetlands are mentioned several times in the current Comprehensive Plan, for instance: LU-4.1: "The City shall continue to enforce regulations which protect environmentally sensitive land(e.g. wetlands, beaches and dunes)." -7- 1 1 . CM-1: "The City shall protect, conserve or enhance the two remaining coastal wetlands ... [and] wildlife habitat ...." CM-1.1: "The City shall develop guidelines to protect, conserve and, where possible, seek restoration of... wetlands ...[and] wildlife habitat ...." CM-2.1: "The City shall work toward limiting the specific and cumulative impacts of development ... upon wetlands ... {and} wildlife habitat ...." C-4.6: "The City shall enact an ordinance which provides for adequate upland buffering of the only shoreside wetlands in Cape Canaveral." Southwest Corner—Wetlands? The location of the wetlands about which the current Comprehensive Plan speaks is unknown. So far as is known, the wetlands in the Southwest Corner of the City have all been filled in This is an example of how the area has been mismanaged and allowed to change over time without planning and oversight by responsible government agencies. But, the past does not have to be prologue. Even though the wetlands have been destroyed the area remains unique and that uniqueness can be preserved with proper land management. � I Southwest Corner—Wildlife Habitat The Southwest Corner remains an environmentally sensitive area because (1) it has the lowest housing density in the City, (2) it still has a high concentration of trees, and, (3) because it is on the Banana River. All the homes in the Southwest Corner are single-family, stand alone dwellings. Quite a few that adjoin Holman Road are on lots of an acre or more. This is one of the few 1 places in Cape Canaveral that lots of such size exist. These lots support a range of tree types including a variety of palms, bay, live oak, mulberry, avocado, banana, citrus, mango, mangrove, gumbo-limbo, Simpson stoppers, mimosa, poinciana, and chiffilera. Sea grapes also grow in the area. The area is, or has been from time to time, home to ospreys, gulls, pelicans (both brown and the migratory white variety that do not go to sea, but stay on the river), ducks, grebes, anhinga, cormorants, great and little blue herons, red-tailed hawks, great horned owls, woodpeckers. -8- 4 i Raccoons, opossums and moles are also on the list of residents. As for snakes, there are black snakes, red rat snakes and ring neck snakes plus the occasional pygmy rattler and coral snake. Other residents have included alligators, toads, frogs, turtles, land crabs and gopher tortoises. _ 1 The resident who has lived in the area the longest---for many decades---claims the alligator snapping turtle on her property has been around for at least 50 years! The area has hosted visits from bald eagles, wood storks and wood ibis. Earl and Nancy McMillin have attempted to use their property to keep the area critter friendly. Two years ago they removed a reinforced concrete driveway of about 120 feet : in length and planted the space with fruit trees, banana plants and plants that attract butterflies and bees. The current Comprehensive Plan states in CM-2.1, "The City shall work toward limiting the specific and cumulative impacts of development ... upon ...wildlife habitat and living 1 marine resources." As for "living marine resources", the current Comprehensive Plan at C-2.8 says, "The City shall maintain an ordinance which prohibits the removal of littoral vegetation from the Banana River." This is to protect creatures living in the river. 1 The current Comprehensive Plan says in CM-1.6, "In cooperation with state and federal agencies and private developers, the City shall monitor development in those areas with ! overriding environmental limitations to development." History The current Comprehensive Plan also gives a nod to history. CM-10: "The City shall provide for protection, preservation, or sensitive reuse of Ii historic resources ...." J CM-10.2: "The City shall maintain a list of historic resource sites to be used to cross- check against proposed development." H-6: "The City shall take steps to identify and preserve all historically-significant housing. 39 Holman Road is home to what was once a one-room school, the first school in Brevard County. One Holman Road property has a 19t Century grave on it. 1 1 -9- 1 5 1 1 i x Southwest Corner—Vision of the Future 1 The future looks grim for the Southwest Corner if the lot split proposed in Section 98-63 is applied to it. . 1 At present there are 11 residences in the Holman Road area. There are 9 that use the dirt right of way to gain access to U.S. Highway AlA. Two vacant lots already exist. If they are built on,the total using Holman Road will rise from 9 to 11. 4 The lot split ordinance opens the door for end runs that could create 15 more lots---all of which will have to use the unpaved right-of-way. This jump could occur without any concurrency review, platting, advice from the Planning and Zoning Board or any involvement by all relevant City departments. 1 Proposal i It is believed that the Board should recommend to City Council that Section 98-63 in its I current form needs to be changed to assure that the following protections are afforded 3 throughout the City: 4 1. Concurrency Review. i 2. Review by all relevant City departments. 3. Review by the Planning&Zoning Board. 4. Platting required for any property not within an existing platted subdivision. I Additionally, whether or not the above protections become part of any lot split ordinance, I it is respectfully submitted that the Board should recommend to City Council that the property in the Southwest Corner of the City be exempt from the operation of any lot split ordinance so that proper, careful monitoring of this unique area can take place. The exemption proposal is not unprecedented. 1 For many years Special Exceptions could be granted for the construction of residences on property zoned for commercial use anywhere within the City. Not long ago the City 1 Council, in recognition of the substantial changes in commercial area in the northwest 1 corner of the City along U.S. Highway AlA, changed the law. Special Exceptions for residential use of commercial property are no longer allowed in that unique area. { i -1a i i I • • • Invitation First time visitors to the Holman Road area are always amazed that such a place exists. Residents who have lived and worked in this locale for decades are surprised to learn about it. Such a unique area needs to be carefully managed, not just for the people and the critters, which live there now,but for generations yet to come. Earl and Nancy McMillin with to extend an invitation to any interested person, whether City staffer, Board member or resident, to call them at (321) 783-8834 and arrange to visit their property and be shown the Southwest Corner area firsthand. Thank You Thank you, not only for taking the time to review the foregoing, but also for your service to the City as a volunteer on the Planning and Zoning Board. 5 December 2009 1 } { -11- 1 i 1 3 yg 1OU —/0 D i'TRN JT UN December 5, 2009/ mayor ity CCi,uncil I •" City Mgr.--- 4 GtyAtty. 4_ Pub.Vaor1 Dir Beatrice McNeely 4__ Chairperson B,,iid,ng Ott. _._. A 4 Finance Dig. Planning and Zoning Board -.Z-. h; City of Cape Canaveral " 10 -■42 v I 435 Jefferson Avenue /Z/7/n 9 Cape Canaveral, Florida 32920 1 RE: Proposed City Ordinance 04-2009 Sec. 98-63 Lot Splits 1 Dear Ms. McNeely and Board Members: 1 I have taken the time to review the proposed Ordinance 04-2009 Sec, 98-63 Lot Splits in some I degree of depth. I have concerns regarding certain terms and conditions of the Ordinance as I written in its present draft Ordinance. It is an accepted principle that all development within a municipality shall be consistent with the Comprehensive Land Use Plan for the City of Cape Canaveral, Florida statutes, codes and ordinances and compatible with elements as adopted and which are compatible with and further the objectives and policies of the comprehensive plan and which meet all other criteria enumerated by the local government. One primary danger in enacting unclear and ambiguous language into law is to create the potential for misinterpretation and inappropriate application of development, and the potential for misuse or exploitation by perspective developers. I have the concern that this potential lies 4 in the present drafting of Ordinance 04-2009 and particularly Sec. 98-63 Lot Splits. j For purposes of comparison, I have reviewed the most readily available Lot Split Ordinance that 1 I could find on the internet which was that of Cocoa Beach. Please find enclosed a spreadsheet comparison of the differences in language between the City of Cape Canaveral's proposed Lot Split Ordinance and the City of Cocoa Beach's Sec. 5-39, which has been in existence for sometime. I There are significant differences in the ordinances relating to compliance with the Comprehensive Land Use Plans and the platting requirements of Chapter 177, Florida Statutes. 1 As I understand the Meeting Minutes of prior Planning and Zoning meetings, this proposed topic of lot splits arose in January 2008 when representatives for Burger King desired to develop an out-parcel from the Residence Inn, a previously platted and developed commercial property which fronted Astronaut Boulevard, without complying with the replatting process set ? forth in Chapter 177, Florida Statutes and City Code. That exception was approved with the recommendation that a lot-split Resolution be enacted. The earliest version of proposed 4 Ordinance 04-2009 was drafted in January 2008 in response to that initiated act. It has been suggested that, with the adoption of this Lot Split Ordinance by the City, the public purpose to be served by the ordinance was to expedite the platting process for previously platted parcels. It has been further suggested that the Lot Split Ordinance is to be interpreted to create new subdivisions by lot split within existing established neighborhoods. There are many t 1 1 I i i Chairperson Beatrice McNeely Page 2 i l ' parcels, including those within our neighborhood, which were surveyed and platted before the City of Cape Canaveral became a municipality. I respectfully submit that this usage would represent a dramatic shift and departure from the initial intended application to the Burger King site. The City would now be departing from the approval of plats to a waiver of the entire 1 platting process. The City, in essence, would become a co-developer in the creation of new subdivisions that have never undergone municipal plat review and approval. I respectfully ; suggest that this likely violates the requirements of Florida law, including Chapter 177, but most assuredly will destroy the harmonious environment, historical nature and compatibility of the surrounding existing communities, and accordingly, it would be inconsistent with the City's Comprehensive Plan. Of the Municipal Lot Split Ordinances which I could find on the internet, they all appear to apply to platted subdivisions that have undergone government review and satisfied all of the elements of plat review. I believe the same holds true for the Cocoa Beach Lot Split Ordinance. The primary reason for this is that by limiting lot splits to previously platted property, the city would I insure compliance with the requirements of Florida Chapter 177 and the Comprehensive Plan, and other federal, state and local laws. To allow lot splits in the absence of a platting review by 1 the city opens the door to the granting of broad and sweeping special exceptions in non- " compliance. Of equal concern, it also promotes allowance without proper notice to affected property owners and denies them their right to be heard. The current draft of the proposed Ordinance 04-2009, Sec. 98-63 lacks specificity as to its process, procedures and application. I believe that is quite apparent from a reading of the attached comparison. Please note Lot Split Purpose, Compliance, Streets and Roads, Payment for Improvements, Review Process, Limitations and Restrictions. 1 We urge the Planning and Zoning Board to carefully consider the adoption of specific language M into the proposed Ordinance 04-2009, Sec. 98-63 Lot Splits to insure that interpretation and application by the Planning and Development Department will require compliance with the Comprehensive Plan, Code, Ordinances and Florida Chapter 177, the City Code of Ordinances, and is in the best interest and rights of the citizens of Cape Canaveral, and that it does not unconstitutionally deprive nearby owners of their property rights. 1 Sincerely, ackto ii4e-43; Charles L. 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O O_•i -4-J 0 g 0 ••-■ 0 4-, ci) 4-, 04,__. 0 MI ra, u ;-, cn 0 g o -5 0.•-.1 £"+, :-4 CU g ..-+4 O r' , ms Iifl °, a0i p A 8 s>°. 10 .c4.> rn V' a� s.. � oa�) $ ado 0 La• � .> •o .> a� > o. i '4 T.) U h r a 0.,Z t.E-+ - H .0 � . el .0 0 0. rn 3 i 3 9 is 4 i 1 C F I h1 9 3 i J z ° Q Q I re W W Z D ° ! < Z 0 .4 ZQ O t < Z F- a 0 O OJ. a0 a o u- a = J � o a 0J W 0 W m ZO 0 it i 0 0. � O O wce 0 as A o . 2 O U U H2, 0 -V, c)0) 3 gg IL 1 'ZS �.. N 5 .� ' �Cn 1 x 1 4 i 1 To The City of Cape Canaveral: 1 I have just read through the complaint filed by the little Maritime lawyer up the street. I would hope that 3 the city will not waste my tax money by pursuing this matter too seriously. I would lice to address a few of the"facts"that are in the complaint. 1 1 Fact#5. The property,405 Holman Road is not owned by William Young. 1 x Fact#9. The Planning Official,Barry Brown was approached for guidance as to the re-plat process. Subdividing the property to sell or build on half of it was never discussed. The property 1 Is 534'deep and 100'is the most that would be divided from the original. i 1 Fact#10 No application has been made at this time to sub-divide upon the advice of the City Planner. 1 We were told to wait until City Council had a chance to revise the system so that the process ." would be easier and more economical for something as simple as what we were planning. 1 Fact#11. Sandy Young,with permission from the adjoining neighbor, removed the vines and dead 1 underbrush that was choking out the existing trees along the east boundary of the property. 4 The PVC laying on the ground is not preparation to pour a concrete slab. The last I heard, you need wood forms and should dig footers to pour a slab. If Mr.McMillin has a way to pour 1 i a slab using PVC laying on top of the ground, I wish he would share the information. l 1 i Fact#13. Since we made the inquiry about the re-plat, we have been visited by two building officials, the city planner and the fire chief We have had more people from the city visit us than friends. 1 The city has definitely not "stood mute" about complaints filed with them. Mr.McMillin has filed complaints with the city about us since 1994. Now Mr.Hartly feels that he has the i right to follow suit and trespass on private property to complain and photograph what he deems as s infractions. As the property owner, I would like to know what my rights are. 1 A 1 Sandy Young 405 Holman Road — -° Cape Canaveral,Fl. IIEOL. '' Iir\v/ E 1 Bsy405 @aol.com DISTRIBUTION Mayor_— —_ City Council City Mgr T_ G r NOV i 8 City Attyb.W:�. ! —) j Purks D.r ! Bu Virg O - t -/y-Uy-/c c 1 JF_nan;e U_ 1 tP p!7 4 1 i 1 i 4 To The City of Cape Canaveral: I have just read through the complaint filed by the little Maritime lawyer up the street. I would hope that the city will not waste my tax money by pursuing this matter too seriously. I would like to address a few of the"facts"that are in the complaint. Fact#5. The property,405 Holman Road is not owned by William Young. Fact#9. The Planning Official,Barry Brown was approached for guidance as to the re-plat process. Subdividing the property to sell or build on half of it was never discussed. The property 3 Is 534'deep and 100'is the most that would be divided from the original. Fact#10 No application has been made at this time to sub-divide upon the advice of the City Planner. We were told to wait until City Council had a chance to revise the system so that the process would be easier and more economical for something as simple as what we were planning. 3 • Fact#11. Sandy Young,with permission from the adjoining neighbor, removed the vines and dead underbrush that was choking out the existing trees along the east boundary of the property. The PVC laying on the ground is not preparation to pour a concrete slab. The last I heard, you need wood forms and should dig footers to pour a slab. If Mr.McMillin has a way to pour a slab using PVC laying on top of the ground, I wish he would share the information. Fact#13. Since we made the inquiry about the re-plat, we have been visited by two building officials, the city planner and the fire chief. We have had more people from the city visit us than friends. The city has definitely not "stood mute" about complaints filed with them. Mr.McMillin has filed complaints with the city about us since 1994. Now Mr.Hardy feels that he has the right to follow suit and trespass on private property to complain and photograph what he deems as infractions. As the property owner, I would like to know what my rights are Sandy Young 405 Holman Road kCape Canaveral,Fl. `' r E Bsy405 @aol.com DISTRIBUTION D Mayor_ City Council City Mgr. _ NOV 1 8 2009 citvAtty. F`i1 i7.1JNJr1 %tir. 3ui'iir.g (fit'_ t t / —I F—U/ — F__ Ftnane CJ_; 4 i 1 r t IN THE CIRCUIT COURT OF THE 18th JUDICIAL CIRCUIT 1 BREVARD COUNTY, FLORIDA { © 6 v . _\.,fi Earl McMillin, � $ NOV 1 7 2009 Plaintiff, v. CIVIL NO 'i -/ 7-01 —IaY Mayor City of Cape Canaveral, Florida cry C:cuncif` City Mgr. City A-tty_ - >' Defendant, Phu oh r-. _ 'Uiidmg OttG'"-- nan« Dir. COMPLAINT FOR WRIT OF MANDAMUS i Comes now the Plaintiff, pro se, pursuant to Rule 1.630, Florida Rules of Civil Procedure, and brings this Complaint as follows: 3 i JURISDICTION AND VENUE 1. The Court has jurisdiction over the parties and subject matter. Venue is proper in Brevard County. 1 PLAINTIFF 1 i 2. Plaintiff is of lawful age and a citizen of the United States. Plaintiff resides in the City of Cape Canaveral, Brevard County, Florida. 1 3. Plaintiff's residence address is 397 Holman Road, Cape Canaveral, 1 Florida, 32920. 1 -1- 1 $ x i kS fr 1 DEFENDANT 4. Defendant, City of Cape Canaveral, hereinafter, CITY, is a municipal corporation located entirely within Brevard County, Florida. Brevard County, is a political subdivision of the State of Florida. FACTS 5. On information and belief, a property located approximately 100 feet south of Plaintiff's property, the address of which is 405 Holman Road, is owned by William Young and Sandra Young, his spouse, through the device of a family trust. 7. William and Sandra Young have a single-family residence on the property at 405 Holman Road and reside in said residence. 8. The property at 405 Holman Road lies wholly within the CITY and is subject to the CITY laws and ordinances governing land clearing, subdividing and building. 9. On information and belief William Young approached the CITY through its Planning Official, Barry Brown, about subdividing the property at 405 Holman Road for the purpose of either selling half of -2- 1 the lot or erecting a second home on half of the lot at 405 Holman } Road. 10. On information and belief William Young has made no application in proper form as required by the laws and ordinances of the CITY seeking permission and authority to clear, subdivide tnd construct a second dwelling on the property at 405 Holman Road.. 11. Without having been granted any permission or authority to do so by the CITY, William Young has cleared a portion of the lot at 405 Holman Road, laid PVC pipes preparatory to pouring a concrete slab foundation and is preparing to pour said foundation. q2q 12. The activities of William Young have been made known to the CITY Planning Official and the Mayor by Plaintiff and others going to the 4 CITY and by sending letters and e-mails to the CITY. 13. The CITY has stood mute and taken no action to enforce its laws and ordinances to compel William Young to comply with those laws and ordinances. -3- 14. On the morning of November 17, 2009, Plaintiff hand carried copies of this Complaint to CITY officials and sent copies by e-mail to the Mayor and members of the CITY Council. RELIEF SOUGHT WHEREFORE, Plaintiff prays that this Honorable Court will: I. Issue a Writ of Mandamus compelling the CITY to enforce its ordinances with regard to the development of the property at 405 Holman Road, Cape Canaveral, Florida, or to show cause why it has refused to enforce its laws and ordinances. II. Grant Plaintiff an Order granting costs, including but not limited to attorney fees, and for any other relief to which Plaintiff may be justly entitled. DATED: 17 November 2009 r � EARL McMILLIN Florida Bar No. 0185860 P.O. Box 1086 Cape Canaveral, Florida 32920-1086 Tel: (321) 783-8834 emcmillinjd@yahoo.com -4-