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HomeMy WebLinkAboutMinutes 08-25-1997Crrl OF CAPE CANAVERAL BOARD OF ADJUSTMENT MEETING MINUTES AUGUST 25,1997 A Meeting of the City of Cape eCanaveral Board of Adjustment was held on A st 25 1997, at , the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. Chairperso meeting to order at 7:30 p.m. The Acting Secretary called the roll. uu�e called the YK —j'w� Second Alternate Vice Chairperson First Alternate Chairperson RM Assistant City Attorney City Manager Parks & Recreation Director Ex-Officio Member Acting Secretary Building Official Council Member Mayor Mayor Pro Tern Motion by Mr. McMillin, seconded by Mr. Laws to approve the meeting minutes of June 23, 1997 as amended. Motion carried unanimously. G. J. Moran, Building Official was swam in by Assistant City Attorney Bettin. NEW BUSINESS: Request for Stay Pending Appeal on the Board's Decision to Grant Special Exception Request No 97-01, to Allow a Neighborhood Park on Lot 1, Long Point Road - Donald D. Arabian and Michelle M. Lehr, Petitioners; Dwight W. Severs, Esg., Representative. Mr. Bettie summa zed this item as follows: There was an appeal pending in Circuit Court at the present time filed r. Arabian and Ms. Lehr to determine if the special exception for Long Point Park had been properly granted by the Board of Adjustment. The issue at this evening's hearing Board of Adjustment - August 25, 1997 Page Two was whether or not the Board of Adjustment should enter a Stay that would freeze the status quo until after the appeal. Mr. Laws asked Mr. Bettin to clarify why the board was hearing this issue Mr. Bettin explained that the power and right to first hear a request for a stay belonged to the body that made the decision under attack; i.e., the Board of Adjustment. Mr. McMillin asked if the Circuit Court could order the Board of Adjustment to stay. Mr. Bettin advised that the Circuit Court could; however the City of Cape Canaveral had resisted an effort to have the Circuit Court enter it without this board being given that opportunity. Mr. Bettin explained that his intention at this evening's hearing was to deal with procedure from the standpoint of ensuring that Mir. Sever's clients received a fair hearing by the board. He said he did not intend to make argument for the city tonight In response to Mr. Laws' question, Mr. Bettin stated he was defending the decision in Circuit Court; however, he had not been involved in the board's special exception decision Mr. Severs stated that the issue before the board this evening was his client's request to stay. He entered into the record a copy of Rules of Appellate Procedure No. 9.310, Stay Pending Review. He further entered into the record a copy of his letter to the City of Cape Canaveral dated June 17, 1997. Mr. Severs stated that a response had never been received from the city other than a response in the Appellate Court when a motion for stay was filed. Mr. Severs stated at the hearing on August 4. 1997 it was represented to the court that this board was familiar with motions to stay, had handled them in the past and was assured that his clients would receive a fair hearing. Mr. Severs stated on August 6, 1997 his clients submitted a motion to the board. He stated that prior to this motion, there had been nothing done with the subject property except removal of a tree and installation of a fence along one side. On August 12, 1997, Mr. Severs received notice of this hearing and noted there had been construction activity on said property since the stay was requested by his clients. Mr. Severs entered into the record a copy of Section 110-29 which addressed stays. Mr. Severs stated there were concerns regarding the board's original decision; such as, there was very little discussion regarding the city's future land use map and whether or not the subject property was reflected on the map as a park.. He entered into the record an excerpt from the city's future land use plan which stated in the recreation section, "...there is no immediate need for additional public recreation and open space land." Mr. Severs stated that the future land use map which he had obtained from the City Clerk reflected the subject property as possible park land acquisition. Mr. Severs entered into the record a copy of the board's decision of March 24, 1997 which contained the concerns of the Long Point Road residents; such as noise, safety concerns, possible depreciation of their property values, and traffic concerns and others. Mr. Severs asked Mr. Moran if there have been any building permits issued for the subject property. Mr. Moran stated a fence permit had been issued. Mr. Severs entered into the record copies of the fence permit. Board of Adjustment August 25, 1997 Page Three Mr. Severs asked Mr. Moran if any permits had been issued for the structures. Mr. Moran replied that a building permit was not required for this type of installation because the structures were pre- manufactured, pre-engineered, per- tested pieces of playground equipment which could probably be easily removed. Mr. Moran further stated that any structure which, according to the city's definition, was "that which is built or constructed" did require a permit. Mr. Severs entered into the record a copy of an excerpt from the July 1, 1997 City Council Regular Meeting Minutes which he said may relate to some issues that the city may raise that he might want to question.. Mr. Severs respectfully asked that the board grant a stay and suggested that the length of the stay be six months with the right to revisit if the issue was not resolved within that period of time. He did not believe that any bond should be required as there would be no detriment caused to the city if the subject property could not be used as a park. Mr. McMillin asked if Mr. Severs had any Florida case whereby a Board of Adjustment had granted a stay. He responded that he did not know if a Board of Adjustment had ever been asked to do that; however, under the law the board had this power and authority to grant or not to grant a stay. Mr. Severs advised that the guideline the board should follow on the stay was the Appellate Rule as referenced in Section 110-35. Mr. Severs confirmed that his clients were asking for a use stay as opposed to a stay of any further construction and proposed that the city could either remove the equipment or take other measures, such as fencing the property, to prevent the park from being used by third parties for a six month period of time. Mr. Bettin asked if Mr. Severs would concede that either of these measures would cost the city money to accomplish. Mr. Severs responded that could be a part of the condition. Mr. Laws asked if the chairperson could request a show of hands from the audience of who was in favor of granting this stay. Mr. Bettin recommended against this action as it could create a basis for criticism of the board. Ms. Thurin asked for an explanation of the motion. Mr. Bettin advised that it would be a spoken motion to grant, to grant with conditions, or to deny. He advised members that he was only going to assist the chairperson run a hearing with all members understanding the issues. Mr. Bettin did advise that the board may want to consider a bond for $750, one-half the monthly rent, for the six month term. Mr. Bettin advised it would be prudent for the board to ascertain from the city whether there were going to be additional expenses for a use stay in the event the board decided to grant one Mr. Farmer asked what happened if the board denied the stay. Mr.= Bettin== advised that the board had the discretion to deny a stay and Mr. Severs could proceed to the Circuit Court where the city had the ability to defend the decision. Bennett C. Boucher, City Manager, was sworn in by the Assistant City Attorney. Mr. Boucher asked Mr. Severs to define "substantial harm" as was stated in the motion for stay pending appeal. Mr. Severs advised that under case law, he was not required to prove that his August 25, 1997 Page Four clients would suffer substantial harm; rather, it was what harm would the city suffer if the stay was granted. Mr. Severs explained that the proximity of the subject property to the single family neighborhood could result in i-acreased traffic, noise and safety concerns, all of which were substantial issues of harm. Mayor John Porter was sworn in by Assistant City Attorney. Mayor Porter said that the item being discussed at this evening's hearing cost the city something far beyond the dollar amount of removing a fence. It would really cost the city quality of life if the subject property could not be utilized as a play area for the children who needed it. Mayor Porter explained that a park had been discussed for the past 7-8 years and it was included in the recreation board plans. He explained that the comprehensive plan was a living document that went through plan amendments and was meant as a loose framework handed down by the state. Ms. 'Munn asked if there had been an amendment to the plan that would change the section pertaining to recreational need. Mayor Porter responded that, in spirit, it may or may not have been amended. Mr. Boucher summarized the overall recreational goal of the comprehensive plan for members. Ms. Thunn asked the city manager to work with Local Planning Agency to amend the plan and encompass some of the ideas and statements that had been presented by the mayor. Extensive discussion ensued on the various elements contained within the comprehensive plan which Mr. Boucher confirmed was a public document. Mr. Laws asked Mr. Moran if he had issued a permit for the fence before or after he was aware that this appeal was being made. Mr. Moran stated the permit was issued after the appeal had been made. Mr. Moran read for members an excerpt from the recreational element of the comprehensive plan which stated "...the city might consider acquiring several vacant tracts throughout the community particularly in the south, northwest and northeast sectors". Mr. Severs clarified that the burden was on the city to provide compliance with the code first and he believed the board was advised as to the wrong burden of proof as reflected on page 2 of the Board of Adjustment August 25, 1997 Page Five minutes of the special exception hearing. Mr. Severs said that in three specific places within the comprehensive plan it was stated that there is presently no need for additional park land in the city. ' Mr. Bettm' advised members that the issue was not whether the special exception should have been granted; but rather that members needed to determine if a stay should be granted under the circumstances. He advised that if the board made the determination that a stay should be granted; should there be any conditions attached to the stay. Mr. Bettie reminded members that it was a use stay and consideration should be given to the ability of the city to enforce a use stay. Discussion followed. Mr. Thurni asked Mr. Bettin to confirm that work was started on the park after the original lawsuit had been filed. Mr. Bettin advised that, to his 6owledge, that was correct and how the property owner chose to proceed was not the issue. Mr. McMillin moved and Mr. Laws seconded that the board enter a findings of fact and conclusions of law as follows: that the petitioner and the city agree that the board has the power to grant or not to grant this stay; that there would be damage to the residents in that if the park is allowed to continue in use, people would become so used to it as a park that it would be difficult #6t- to unaccustomedAhem to it. That any damage that the city may incur are a result of decisions made by competent authorities in city government. Therefore the board should enter an order granting a stay 90 days from today's date or until such time as the Circuit Court rules. If the Circuit Court does not rule within 90 days, then this board can be asked to reconsider granting a further stay and that no bond be required. Mr. McMillin amended the motion to add: the city is directed to take all reasonable steps to comply with the board's findings. Mr. Laws seconded the amendment. Mr. Farmer For Mr. Laws For Ms. McKone For Mr. McMillin For Ms. Tburm For Motion carried unanimously. There being no further business, the meeting adjourned at 9:45 p.m. Approved this V3�� day of C- 1997, 17 Ann Thurm, Chairperson Kim M. McIntire, Acting gecretary