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HomeMy WebLinkAboutMinutes 03-13-2006City of Cape Canaveral Board of Adjustment Meeting Minutes March 13, 2006 A Meeting of the City of Cape Canaveral Board of Adjustment was held on March 13, 2006 at the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. Earl McMillin, Chairperson, called the meeting to order at 7:30 P.M. Susan Chapman, Board Secretary called the roll. MEMBERS PRESENT Earl McMillin Constance McKone Paula Collins Catherine Barnes Chairperson Vice Chairperson MEMBERS ABSENT Robert Laws OTHERS PRESENT Susan Chapman Todd Peetz Kate Latorre Bea McNeely Lamar Russell Bennett Boucher Board Secretary City Planner Assistant City Attorney Ex- Officio Member P & Z Vice Chairperson City Manager All persons giving testimony were sworn in by Kate Latorre, Assistant City Attorney. NEW BUSINESS Motion to Approve the Meeting Minutes of February 13, 2006. Motion by Constance McKone, seconded by Earl McMillin, to approve the meeting minutes of February 13, 2006. Vote on the motion carried unanimously. Chairperson McMillin complimented the Board Secretary on the excellent work on the minutes. 2. Special Exception Request No. 05 -15 to Allow Residential Use in the C -1 Zoning District (Harbor Heights West Subdivision) - Lot 3, Section 14, Township 24 South, Range 37 East - John Johanson, for Triple J Investments, LLC, Petitioners. Earl McMillin, Chairperson, gave an overview of the previous meeting regarding this request. He explained that this Special Exception Request was postponed by the Board at the last meeting to grant Triple J Investments time to negotiate with the City, if they chose to, about the possibility of the City buying the property. He advised that he performed research since that meeting which revealed that on October 21, 1991, the Board of Adjustment granted Special Exception Request No. 89 -9 to construct three single family homes on three individual lots. On January 7, 1992, City Council adopted Resolution 92 -01, approving the Final Replat for Harbor Heights West for three individual single family homes. He noted that none of the current Board members were on the Board back then. When Special Exception Request 02 -07 came before the Planning & Zoning Board to build three individual homes on the property, the request never came to the Board of Adjustment, because the Building Official believed that the old Special Exception was still valid and in effect. Board of Adjustment Meeting Minutes March 13, 2006 Page 2 Chairperson McMillin read a letter, dated July 8, 2002, from the then Building Official, advising the applicant of Special Exception Request 02 -07 that they still had a Special Exception in effect. Kate Latorre, Assistant City Attorney, advised that her office had reviewed the letter from the former Building Official, and they disagree with his opinion. They agree with the Ordinance that was passed in former Section 110 -48 (current Section 110 -32), Expirations, caused that Special Exception to expire. She stated that it is the City Attorney's opinion that Special Exception 89 -9 is in fact, expired. City Manager, Bennett Boucher, advised that discussion was held at the last City Council meeting with Triple J Investments. They offered .41 acres for $340,000 and would not budge from the price, which was under the appraised value at build -out of the lot. Councilman Nicholas had made a motion to accept the offer but the motion died for lack of a second. John Johanson, Applicant, advised that Chairperson McMillin's research went deeper than his and he was happy to answer any questions. Chairperson McMillin asked for any experts giving testimony to give the Board their credentials. He cited case law of 1983 where a court felt that a lay person with first hand knowledge of the vicinity of the property in question qualified that person as an expert witness. Kate Latorre, Assistant City Attorney, advised that if testimony is based on factual information and not solely based on opinions, then you are considered an expert in your neighborhood. She further advised that testimony needs to be supported by facts and competent substantial evidence. Lamar Russell, neighboring resident at 376 Harbor Drive, and Planning & Zoning Board member, gave a short history of the property and advised that when the City established the zoning for that area, they created a corridor along N. Atlantic Avenue to be commercial, and that commercial corridor reached back into the land being discussed. He provided the following opinions: That special exception for residential use in commercial should stop because it debases the existing zoning; the City Council should do something about it and stop it. He asked the Board to decline the request, because he did not believe the City needs more multi - family in that particular area, his neighborhood needs to finish out with single family. He further commented that if you leave the property commercial than let the applicant develop a commercial entity and see how successful it is. He did not believe that commercial would be successful or a worthy venture and that is why he recommends that they let it play out. He advised that the property is commercial and the Board is considering residential by Special Exception. Chairperson McMillin advised that at the previous meeting, Mr. Russell did not believe that the request was compatible with the Comprehensive Plan and they had discussed the definition of compatibility. Mr. Russell agreed. Mr. Russell advised that he did not research the Comprehensive Plan to bring the Board a particular policy, but knows that a policy exists. He advised that the policy is to encourage, to every extent possible, single family dwellings in the City. Chairperson McMillin read Comprehensive Plan Objectives LU -3 and LU -3.2. Mr. Russell verified that those were the Objectives that he was referring to. Board of Adjustment Meeting Minutes March 13, 2006 Page 3 Joe Ross, neighboring resident at 227 Coral Drive, testified that special exceptions are not guaranteed. They are governed by procedure. He read City Code Section 110 -39 (c) regarding criteria for decisions. He did not believe that the request is compatible and harmonious with adjacent land uses because there are single family residences on both sides of the property, and therefore, the request did not meet the requirement of the code. He read a portion of the Planning & Zoning Board meeting minutes of May 22, 2002 regarding Special Exception Request No. 02 -07. He advised that Mr. Nicholas had voiced his opinion that R -2 zoning is not compatible with the Harbor Heights single family subdivision. A lot of discussion had followed regarding limiting the number of units as a condition of the recommended approval. The Planning & Zoning Board had recommended approval of the Special Exception Request No. 02 -07 with the condition that the use of the property be limited to one single family residence per lot. The vote had carried unanimously. Judith Lau, neighboring resident at 211 Coral Drive, and licensed attorney to practice in the State of California, spoke on behalf of Richard and Fay Morrish, the people that live in the single family home on Lot 2, that were not able to attend the meeting. They sent a letter detailing their search for a single family lot in Cape Canaveral. Ms. Lau read the letter from Mr. and Mrs. Morrish into the record (entered as Exhibit A). She summarized that they found a single family lot, in a single family neighborhood, and built a single family home. The Board reviewed a City zoning map with an overlay showing existing uses. Ms. Lau spoke of compatibility, referring to Comprehensive Plan, Objective LU- 3.2. She advised that Harbor Heights is a development of low density, one story, single family homes. She claimed that two story homes, close to the beach, were not permitted in that neighborhood until very recently. She explained that if this request is allowed, it would allow a multiple story, three -unit townhouse building in between two single family, one story homes which is not compatible with what is around it. She stated that if the Special Exception is granted, the City is allowing the character of an existing neighborhood to be changed irreverently. She further stated that this neighborhood has been intact since the early 1960s; there has been little construction in the past 10 years; there are only two other lots in the Harbor Heights Subdivision that are still available; most of the houses in Harbor Heights do not have garages, they have carports. This developer is proposing a garage on the first floor and the living area on the 2nd floor. To impose a completely different standard in an area that has been in existence for over 40 years is inconsistent with the policy of the City which is addressed in the Future Land Use Plan Objectives to encourage single family and to require that new development be compatible with adjacent land use. The only structures that are adjacent to this lot are two single family residences; this project changes the look and traffic pattern of the neighborhood, and changes something that does not need to be changed. Discussion followed regarding the letter for Richard and Fay Morrish. Ms. Lau advised that all the sales documentation and advertisements for Lots 1, 2 & 3, Harbor Heights West Subdivision, advertised the properties as single family lots. Discussion followed regarding zoning and existing land use. Kate Latorre, Assistant City Attorney, advised that a special exception runs with the land. She explained that if Portside Villas, a residential condominium project, in the C -1 zone, was destroyed, they would need to continue the residential use within 18 months or the use would be considered abandoned and the special exception would expire. Discussion continued. Board of Adjustment Meeting Minutes March 13, 2006 Page 4 Rick Filkens, neighboring resident at 360 Harbor Drive, and attorney by profession in Florida, testified that he is concerned with the over development in Cape Canaveral; the City has too many people already and did not need any more than it absolutely has to have. This request is an example of how the City by granting a special exception, chips away at the foundation of the Comprehensive Plan; it seems that the Comprehensive Plan is a worthless document if it can be changed by the City without following the established procedures laid out by the State for amending the Comprehensive Plan. He voiced his opinion that by changing the zoning classification of this property from commercial to residential, it constitutes a change in the Comprehensive Plan. He stated that he had reviewed the Growth Management Act and could not find the legal authority, by a special exception, to change the zoning of this property. He explained that when a property owner wants to come in to change the land to make a greater profit, than he would otherwise, it goes against the Comprehensive Plan. Constance McKone commented that the Board does not change zoning, and the property is still commercial with a granted residential use. Discussion followed. Ron Abeles, neighboring resident at 393 Harbor Drive, testified that he supports his neighbors. He advised that one property owner wants to change a neighborhood that all the property owners in that neighborhood are against. He explained that he met all the requirements for a special exception for a use on his commercial property, then residential was built adjacent to his commercial entity, and the new residents did not like it. He stated that whoever is there first should take precedence. Joe Ross, neighboring resident at 227 Coral Drive, testified that the intent of the City code section pertaining to the C -1 low density commercial district is to restrict it's application to an area adjacent to major arterial streets; Sea Shell and Coral Drives are certainly not major arterial streets. He agreed with Mr. Russell that commercial does not meet the requirements of the City code for this location. He read the code section that stated lot sizes and other restrictions are intended to reduce conflict with adjacent residential uses. He noted that this project does have an impact on adjacent properties and the neighbors. This project is not harmonious or compatible with the neighborhood. Discussion followed. Arlene Balestrieri, neighboring resident at 204 Coral Drive, testified that the City's Comprehensive Plan Future Land Use Element read that the overall goal for the City for future land use is to ensure the proper relationship among residential, industrial, commercial, recreational, and other activities in order to maximize the efficient use of the land, accessibility to the circulation system, and general compatibility among land uses. She noted that for months, the Board has been hearing about the meaning of compatible. She read the definition of compatibility. She advised that 80% of the residents signed the petition, which represents 100% of the people asked. She commented that the Planning a Zoning Board voted unanimously to deny the request. She voiced her opinion that from the beginning, townhouses are not harmonious or in agreement with the current residential single family neighborhood; the previous property owners plans were always to build residential, even though the property is zoned commercial. They are proposing a two story multi - family structure in a predominantly one story, single family, residential neighborhood. Board of Adjustment Meeting Minutes March 13, 2006 Page 5 Ms. Balestrieri continued her testimony stating that the owner also plans to sell the units for $400 K, which is not compatible with the average selling price of around $200 K in the neighborhood. The land is only valued at $119 K. The neighbors in this neighborhood help each other; they all chose to live in a single family neighborhood; they are asking the Board to keep the neighborhood as it is in the best interest of the residents and in keeping with the City's Comprehensive Plan. She noted that there are currently over 45 listed townhouse units in the City that are not selling, which is not near the hundreds of units that are currently under construction. The audience applauded. John Johanson, Applicant, stated his final remarks. He testified that they do not want to negatively impact the neighborhood. They went with the minimum number of units that they could to still make the development profitable; that anything other than a vacant lot is a negative impact. They did their due diligence by looking at the City's criteria and standards and the project is well within the City's requirements; they asked the Building department what the status of the property was and were told that they needed a special exception. He stated that a C -1 use would be compatible, because there is an office building across the street that is not located directly on A1A or a highway. He stated that this request would not negatively impact the neighborhood. Motion by Earl McMillin, seconded by Paula Collins, that the Board accept the unanimous recommendation from the Planning & Zoning Board that Special Exception Request No. 05 -15 be denied. Discussion followed. Chairperson McMillin outlined the following reasons why he was against the request: 1. If this property was zoned R -1 (single family), they could not build multi- family. 2. His research back to 1993 revealed that this is the first time the Planning and Zoning Board has ever unanimously recommended denial of a special exception along N. Atlantic Avenue for residential use on commercial property. 3. Harbor Heights has been a single family unique residential community for over 40 years. 4. In 1991 this property was subject to a special exception to construct single family homes on it. 5. Mr. Saurenmann submitted an exhibit at the last meeting advertising the property as a residential single family lot. 6. On both sides of this property there are single family residences. 7. He does not believe that competent substantial evidence is needed in these decisions. He voiced his opinion that if everyone in the City signed the petition it would not mean anything. 8. Over the past few days he has seen new expensive residential homes being constructed along a major thoroughfare in Merritt Island next to commercial buildings, and therefore, if the applicant can't build a single family on this lot he is not persuaded. Board of Adjustment Meeting Minutes March 13, 2006 Page 6 9. Triple J were knowledgeable buyers. 10. The Morrish letter had some importance in the decision because if you drive into the Harbor Heights Subdivision, you would think that they are all single family residences. 11. He has voted for residential use in the commercial zoning district along N. Atlantic Avenue for eleven years, but this property is not along N. Atlantic Avenue. John Johanson, Applicant, commented that they are forcing them into a commercial venture. He questioned the Board if commercial is more compatible. He advised that this will be the only commercial lot in this neighborhood. Vote on the motion carried unanimously. There being no further business the meeting was adjourned at 8:25 p.m. -:�xci Aid this day of 2006. Earl McMillin, Chairperson Susan L. C aph m -- an;"S-ecret ry �esc \ed ACr 't l A 2c" �- Earl McMillin Po. Box 1086 • Cape Canaveral, FL • 32920 - 1086.321- 783 -8834 • emcmillinjd@yahoo.com Master, Oceans, Unlimited Attorney -At -Law STCW -95 Certified Pennsylvania, Admitted 1969 Port Canaveral Pilot (Retired) Florida, Admitted 1974 r.iaycr 19 April 2006 ` 'y Gr , - 1 t CJ Ms. Susan Chapman J Secretary, Board of Adjustment , City of Cape Canaveral 105 Polk Avenue Cape Canaveral; Florida Hand Delivery Re: March 13, 2006 Meeting Minutes Dear Ms. Chapman: Today .I received the draft Minutes of the March 13th meeting. Inasmuch as I cannot attend the Board of Adjustment meeting scheduled for April 24, 2006, I am writing to you so that my views on the draft can be presented at the April 24th meeting. At Page 6, Numbered Paragraph 7, First Sentencem the draft reads: "He (Earl McMillin) does not believe that competent substantial evidence is needed in these decisions." This is not correct. At the meeting I referred to, inter alia, A.A. Profiles, Inc. v. City of Fort Lauderdale, 850 F.2d 1483 (11th Cir. 1988) and quoted the Court's view that a local government must base its decisions on facts and not participate in "government by applause meter." -I- Other cases relevant to this issue to which I believe I referred at the March 13th meeting, but know I looked at before that meeting are: Concetta v. City of Sarasota, 400 So.2d 1051 (2d DCA 1981) in which the Court said, "A popularity poll of the neighborhood" is an improper basis for denial of a special exception. City of Fort Lauderdale v. Multidyne Medical Taste Management, Inc., 567 So.2d 955 (4th DCA 1990) in which the Court held that it is not who produces the most experts that is key. It is whether there is "substantial competent evidence" to support denial of the application. The view I sought to express is that (a) petitions carry no weight in my decisiomaking process, and, (b) even if every citizen of the city had signed a petition opposing the grant of Special Exception Request No. 05 -15 it would not affect my decision because I understand from the case law that, competent substantial evidence is the be all and end all in quasi-judicial hearings. Any person who doubts that I have held this view since I began serving on the Board and long before Special Exception No. 05 -15 should read the letter I wrote to the City Council on behalf of the Board on July 21, 2003, and the letter I wrote to Councilman Hoog on September 13, 2005, in which I said "The Board is a quasi-judicial body. It is limited by the evidence presented to it." Please bring my views to the attention of the Board and to legal counsel for the Board. This is a crucial point in this matter and the record must be clear. Respectfully, Earl McMillin Chairperson -2-