HomeMy WebLinkAboutOrdinance No. 02-1985 failed ORDINANCE NO. 2-85
AN ORDINANCE OF THE CITY OF CAPE CANAVERAL, ,
FLORIDA, AMENDING ZONING CODE SECTION 637 . 35 ,
ALLOWING HOTELS/MOTELS IN A R-3 ZONE BY SPECIAL Ar/
EXCEPTION; PROVIDING CRITERIA FOR THAT SPECIAL v
EXCEPTION; REQUIRING A MINIMUM ACREAGE OF TEN
(10) ACRES; REQUIRING BUILDING BE CONSISTENT
WITH C-1 BUILDING REQUIREMENTS; REPEALING ALL
PORTIONS OF THE CODE IN CONFLICT HEREWITH; �,0 <16
PROVIDING AN EFFECTIVE DATE.
DF\
BE IT ORDAINED by the City Council of the City of Cape
Canaveral, Florida, as follows:
SECTION 1. Section 637 .35, Special Exceptions Permissible
by the Board of Adjustment, is hereby amended by the addition
of 637 .35 (F) as follows :
Sec. 637 . 35 (F) - Hotels/Motels provided that there
are a minimum of 150 units built on a minimum building
site of ten (10) acres. All building plans , engineering
requirements and zoning requirements shall be in
conformance with construction standards as required by the
Standard Building Code for a commercial use building;
in compliance with fire district regulations for a
commercial zone; and in compliance with the more
stringent of the R-3 area and dimension zoning regulations
as stated in Sec. 637 .39 or the C-1 area and dimension
zoning regulations as stated in Sec. 637 .55 .
SECTION 2. All portions of the code in conflict herewith
are hereby repealed.
SECTION 3 . This Ordinance shall take effect immediately
upon its adoption.
ADOPTED by the City Council of the City of Cape Canaveral,
Florida, this day of , 1985 .
Mayor
ATTEST:
City Clerk
Approved as to Form:
City Attorney
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' CAPE CRAVEN.
Z a February 14 , 1985
Nw
MEMORANDUM
TO: City Council
FROM: City Attorney
RE: Special Exception for Hotel/Motel and its effect
on the Comprehensive Plan
The question that I have been presented with is "Can the
City administratively add classifications for Special Exceptions
to the Zoning Ordinance without first amending the Comprehensive
Plan" .
The Comprehensive Plan is a result of the Florida Legislature' s
adoption of the "Local Government Comprehensive Planning Act of
1975" . The legislature' s intent was to ensure that all units of
local government assess the direction their growth was headed,
establish goals for future growth and then plan for that growth
accordingly. The City of Cape Canaveral, over a four year period,
formulated and adopted a Comprehensive Plan. The City then amended
its Zoning Ordinance to comply with the Comprehensive Plan.
The question presented is not a question that can be answered
by a simple yes or no answer. The act is some what ambiguous as
are all zoning regulations and unfortunately there is no case law
that is determinitive. All zoning is a balancing test between the
rights of property owners and the rights of governmental bodies
Police Power. Both the United States Supreme Court and the Florida
Supreme Court have decreed that any ordinance which restricts the
use of private property must be necessary for the Public Welfare.
This necessity arises when there is a " . .. substantial need for the
restrictions in the interest of the public health, safety welfare
or morals" . The Florida Supreme Court has held that "necessity"
does not arise from mere public benefit, desire and demand but must
be something greater than that. The Courts have routinely struck
City Council
February 14, 1985
Page 2
down zoning ordinances as unconstitutional when they are not found
to bear a substantial relation to the public welfare.
Comprehensive zoning and comprehensive planning are held to
the same standards while Comprehensive Planning insures to the
benefit of the entire community for years to come, the Courts have
held the balancing test must still be observed, that is, the public
benefit must out weigh any hardship inflicted upon individual land-
owners .
The question still remains, must the Plan be modified before
the Special Exception being discussed can be enacted. When the
City of Cape Canaveral adopted the Land Use Element of the plan,
the City recognized that this was to be a guide and so stated when
describing the different land use classifications . The act itself
is ambiguous as to its effect. A strict interpretation of the
statute would require all structures that are to be built to go
first to the Local Planning Agency for a determination as to whether
or not the proposed structure is in conformance with the plan.
Other interpretations require any change in the Land Use, such as
changing a zoning classification, require review and amendment of
the plan prior to the zoning change. The range of interpretations
ranges from these points to some areas that effectively ignore the
plan entirely. In Brevard County, Cocoa Beach appears to be the
only area that takes a strict interpretation of the act.
The position of Cape Canaveral has been that the City will
attempt to comply with the plan but will consider the plan as a
guide line and not cast in stone. The City does modify the plan so
that the Planning and Zoning Ordinance stay in conformity. At the
present time, we are awaiting a ruling from the Appellate Court
which will determine if the City' s position is the correct one.
There is no case law which can be used for precedential value.
The pending case involves Long Point Road and the decision by the
City to rezone it from R-3 to R-1, at the request of the residents.
The Comprehensive Plan Land Use Map delineated this area as a
multiple family area. In attempting to overturn the zoning (R-1
back to R-3) , a property owner argued that the City was first re-
quired to amend the plan before the rezoning could be amended.
The trial court ruled in favor of the property owner and as stated
previously, we are awaiting the Appellate Court' s ruling. Obviously,
the Court' s ruling may well answer the question.
In preparing the brief on the Long Point Road question, there
was a case cited involving Brevard County and its decision not to
allow a Travel Trailer Park in a particular zone. In that case,
the property owner argued that since his proposed use was in
conformance with the County ' s plan, the County has to allow the
Travel Trailer Park.
City Council
February 14 , 1985
Page 3
The Appellate Court upheld Brevard County' s position on
different grounds . In dicta concerning the Comprehensive Plan
the Court stated that the plan was merely a guideline and was not
cast in stone, inferring the County did not have to strictly adhere
to the plan in rezoning. Again was merely dicta, the matter was
decided on other grounds , and consequently has no precedential
value.
The City's past position appears to be buttressed by Sec.
163 .205 (A) of the statutes which states all zoning regulations
" . . .shall protect., promote, and improve public health, safety,
comfort, order, appearance, convenience, morals and general welfare
and shall be made with reasonable consideration, among other things ,
to the character of the districts and their special suitability
for particular uses and with a view to conserving property values
and encourage the most appropriate use of the land throughout the
area" .
Consequently, in light of the unavailability of precedential
material and the recognition that the proposed Special Exception
was immediately prior to the adoption of the new Zoning Ordinance
an allowed use, it is my opinion (emphasis added) that the proposed
Special Exception can be accomplished without first amending the
Comprehensive Plan.
An additional question has arisen regarding the minimum acreage
and number of units and if these can withstand Court scrutiny.
Again quoting from Chapter 163 in the definitions section.
"Special Exception, " as used in connection with the
provisions of this act dealing with zoning means a
use that would not be appropriate generally or with-
out restriction throughout the particular zoning district
or classification, but which, if controlled, as to
number, area, location, or relation to the neighborhood,
would not adversely affect the public health, safety,
comfort, good order, appearance, convenience, morals,
and the general welfare. Such uses may be permitted
in such zoning district or classification as special
exceptions only if specific provisions and standards
for such special exceptions are made in the zoning
ordinance.
This states that you can make minimums as to area and size.
However, it would obviously be a much more tenable position if
there were appropriate studies that backup the numbers and the
City does not have those studies or any way to acquire those
studies . These numbers were arrived at as all our minimum and
maximums are, and that is by determining the goal and their
reasoning a compromise number from the range of reasonable
alternatives these numbers may or may not withstand challenge.
do
eph Scott