CITY COUNCIL
REGULAR MEETING
CITY HALL ANNEX
TUESDAY
7:00 PM
MINUTES
CALL TO ORDER: The Chair called the meeting
to order at 7:00 P.M.
ROLL CALL:
Council
Members Present:
Mayor
Pro Tem Bob
Hoog
Council
Member Jim
Morgan
Council Member Leo
Nicholas
Council
Member Buzz
Petsos
Council
Members Absent:
Mayor Rocky
Randels
Others
Present:
City
Manager Bennett
Boucher
City
Attorney Anthony
Garganese
City
Clerk Susan
Stills
Building
Official Todd
Morley
Public Works Director Ed Gardulski
CONSENT AGENDA:
1. City
Council Regular Meeting Minutes of
2. Resolution No. 2006-06; Appointing an
Alternate Member to the Planning and Zoning Board (John Johanson).
3. Cooperative Purchase of a Caterpillar
416D Back-Hoe Loader in the Amount of $52,418.
4. Outdoor Entertainment Permit for the
Mayor Pro Tem Hoog asked if any Council member, staff
or interested party desired to remove any of the Consent Agenda items for
discussion.
No request was made to remove any item for
discussion.
A motion was made by Mr. Morgan and seconded by Mr.
Petsos to Approve Consent Agenda Items No. 1 through 4. The vote on the motion carried 4-0 with
voting as follows: Mayor Pro Tem Hoog,
For; Mr. Morgan, For; Mr. Nicholas, For and Mr. Petsos, For.
CONSIDERATIONS:
5. Motion
to Approve: Interlocal Agreement with
the City of
Council discussion clarified that this item was one
of their expressed goals. Mayor Pro Tem
Hoog stated that the City of
A motion was made by Mr. Petsos and seconded
by Mr. Morgan to Approve the Interlocal Agreement with the City of Cocoa Beach
to Share a Brevard County Metropolitan Planning Organization Seat. The vote on the motion carried 4-0 with
voting as follows: Mayor Pro Tem Hoog,
For; Mr. Morgan, For; Mr. Nicholas, For and Mr. Petsos, For.
6. Motion
to Approve: Amendments to the Collective
Bargaining Agreement with the International
Mayor Pro Tem Hoog clarified that Union members
agreed to the 3 percent Cost of Living Allowance effective
A motion was made by Mr. Morgan and seconded
by Mr. Petsos to Approve the Amendments to the Collective Bargaining Agreement
with the International Union of Operating Engineers Local 673. The vote on the motion carried 4-0 with
voting as follows: Mayor Pro Tem Hoog,
For; Mr. Morgan, For; Mr. Nicholas, For and Mr. Petsos, For.
7. Motion
to Approve: Request to Remove Two (2)
Specimen Trees, Sea Shell Cay Townhomes,
Mr.
Morgan disclosed that he was unable to vote on the item and due to the lack of
a quorum for voting purposes he requested to remove the item from the Agenda.
Mr. Boucher pointed out that this item related to Item No. 9. Mayor Pro Tem Hoog clarified that the Motion
to Postpone would include both Item Nos. 7 and 9 to the next City Council
Agenda.
Mr.
Morgan stated that Federal Constitutional Law sets the standard for Municipal
Law and he referenced Vested Rights in Black’s Law and a Supreme Court decision
on the changing of a zoning ordinance referenced in Mr. Russell’s book, Lessons
Learned in Planning and Zoning. Mr.
Morgan referred to research from a Supreme Court decision that says, “one who
plans to use his property in accordance with its existing zoning regulations is
entitled to assume that such regulations will not be altered to his detriment
unless the change bears a substantial relation to health, morale, welfare, or
safety of the public” and none of those exists.
Mr.
Morgan said that the process started after he spoke with City Staff with regard
to purchasing the property for its stated purpose. He believed some form of an estoppel
exists under Federal Constitutional law that would protect his rights. Mayor
Pro Tem Hoog clarified that the purchase was made in March 2005 and the tree
ordinance was passed in January 2005. Mr. Morgan replied that dialogue with the
Building Department began prior to the ordinance. Mr.
Petsos requested to have the City Attorney review Mr. Morgan’s information and
he also requested a timeline on when the construction meetings took place.
Todd
Morley, Building Official, recalled that the language in the moratorium
provided for a litmus test of a preliminary meeting that should take place
before the moratorium became effective. Mr.
Morgan stated that he spoke subsequent to discussion and he stated that certain
property rights would be affected by the moratorium. Mr. Morgan replied with the need for public
notice prior to taking action with a moratorium. He stated that he would prefer to install
healthy trees. The root structure of the
existing trees mirrors the canopy and construction could not occur without
injuring the tree. Mr. Morley informed that the 80-foot drip line would hinder construction
on that portion of the lot. He asked if
Council’s decision on this property would affect any subsequent property
owner. Mayor Pro Tem Hoog affirmed. Attorney Garganese replied to Mr. Nicholas
that Mr. Morgan could file an appeal in the Circuit Court if he were adverse to
Council’s decision. Mr. Nicholas
reminded that the City had sought park land in that section of the City.
Mr.
Boucher passed an appraisal figure to Mayor Pro Tem Hoog, Mr. Petsos and Mr.
Nicholas. Mr. Morgan informed that a
year’s worth of engineering and planning has occurred on the property. Mr.
Morgan stated that he in no way desired to injure the residents in the
community. He expressed that with a
Special Exception in C-1 zoning he was allowed to build a multi-family dwelling
and a residence was not feasible for the amount of money paid for the land. Mr. Petsos requested expert assistance to
research and provide documentation on the specimen trees. Mr. Boucher replied
that Mr. Morgan’s Special Exception was valid until August 2006 and he could
extend for an additional year. Mr.
Morgan replied to Attorney Garganese that he would be glad to mitigate the
specimen trees with healthier trees. Mr. Morgan stated that the ordinance
changed during the purchase process. Mayor Pro Tem Hoog said that there were building
options within the zoning under Special Exception. Mr. Morgan replied that his right to build
under the Special Exception was limited due to the moratorium.
Mr.
Boucher clarified that under the previous vegetation tree protection ordinance,
any portion of the tree within the footprint was exempt from mitigation and
under the new code a specimen tree larger than 24-inches called for mitigation
of two to one. Attorney Garganese
explained that this called for a finding of the Council that a hardship exists.
Mr. Boucher stated that the size of tree, the drip line and whether or not
construction was feasible should be the focus of discussion with the applicant.
Mr. Petsos expressed that a tree surgeon
could identify if a hardship exists.
Attorney Garganese explained that an arborist could establish for the
Council whether or not an extraordinary circumstance or hardship exists. He concluded
that the Code provides a due process mechanism when someone makes their case before
the Council and Council would set the terms for the conditions under which the
tree could be removed.
Mr.
Boucher asked if the Council desired to make an offer to purchase the
property. Council agreed to wait until
staff had an opportunity to obtain formal documentation on the existing trees.
There was
no public comment.
A motion
was made by Mr. Nicholas and seconded by Mr. Petsos to Postpone the Request to
Remove Two (2) Specimen Trees, Sea Shell Cay Townhomes,
ORDINANCES: Second Public Hearing
8. Motion
to Adopt: Ordinance No. 10-2005;
Adopting a Large Scale Comprehensive Plan Text Amendment, Amending the Coastal
Management Element, at second reading.
Mayor Pro Tem Hoog read Ordinance No. 10-2005 by title.
AN ORDINANCE OF THE CITY
OF CAPE CANAVERAL, BREVARD COUNTY, FLORIDA, RELATING TO COMPREHENSIVE PLANNING; SETTING FORTH AND ADOPTING A LARGE
SCALE COMPREHENSIVE PLAN TEXT AMENDMENT, WHICH SHALL AMEND THE COMPREHENSIVE
PLAN RELEVANT TO THE COASTAL MANAGEMENT ELEMENT TO REQUIRE FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION APPROVAL FOR NEW DEVELOPMENT EAST OF THE COASTAL
CONSTRUCTION CONTROL LINE; PROVIDING FOR
TRANSMITTAL OF THE PLAN TO THE DEPARTMENT OF COMMUNITY AFFAIRS; PROVIDING FOR
REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; SEVERABILITY; AND AN
EFFECTIVE DATE.
Mr. Todd Peetz, City Planner, explained that the amendments
allowed for construction east of the Coastal Construction Control Line after storm
damage with a permit from the Florida Department of Environmental Protection
(DEP). He explained that pools, sheds, and garages constructed on the eastern
side of the house would provide more protection to the property. Mr. Peetz informed that the Florida Department
of Community Affairs (DCA) requested that the City change the phrase from “in
compliance with existing City regulations” to “compliant with City regulations.” Mr. Petsos questioned the possibility of
damage to older homes and the inability to rebuild as a multi-family structure
and he saw this as a taking of land. Mr.
Petsos clarified that he was referring to CM 4.3 Sections A, B and C. Mr. Peetz
replied that if 2, 5, or ten units per acre were damaged the pre-existing
density would apply. Mr. Petsos
questioned the density level in re-building. Mr. Peetz clarified that the
language states “shall not exceed pre-development.”
Mr. Peetz explained that the Florida DCA was concerned
with maintaining the density. He replied to Council’s concern on construction
by stating that the focus was on the property east of the Coastal Construction
Control Line. Mr. Morgan clarified that
any damaged property could only rebuild to the standards of pre-existing codes
and he saw this as a taking of land. Mr. Peetz noted that there were few vacant
land properties in the City. Mr. Petsos recommended notifying the residents who
would be impacted by the ordinance. Mr.
Peetz stated that there was no requirement that the City had to adopt the
ordinance. Mr. Petsos expressed the
amendment as a taking of rights from impacted residents without their knowledge. The Building Official stated his opinion that
the amendment appeared more restrictive.
Attorney Garganese questioned the intent of
Paragraph D. Mr. Peetz explained that
the DCA’s intent to place the less prominent structures to the west of the
Coastal Construction Control Line was to protect the main structure. Attorney Garganese clarified that
construction could occur on the western side of the lot. Mr. Boucher questioned Paragraphs A through D
and asked if these could return during the Evaluation and Appraisal
Report. Mr. Peetz replied that some
policy was needed to precede major storm events. Mr. Boucher asked if any other community
would follow these construction requirements.
Mr. Peetz informed that during the Evaluation and Appraisal Report any
application that would add density to the land would meet with DCA’s scrutiny. Mr. Boucher brought out that rebuilding could
occur to damaged property with a Florida DEP permit. Council affirmed. Mr. Lamar Russell,
Mr. Peetz replied that the amendment could be
modified and submitted. Discussion
followed on removing Paragraphs B and C.
Mr. Peetz stated that Council could submit two of the four
amendments. Attorney Garganese stated
that time incurred on the item’s debate reflected the need to postpone action. He concluded to address the item during the
formal Evaluation and Appraisal Report process.
There was no public comment.
Ordinance
Failed for Lack of a Motion.
SITE
PLANS:
9. Motion to Approve: Sea Shell Cay Townhomes, James Morgan,
Applicant. Four (4) Residential Units
Located on
A motion was made by Mr. Nicholas and
seconded by Mr. Petsos to Postpone the Sea Shell Cay Townhomes, James Morgan,
Applicant for four (4) Residential Units Located on Sea Shell Lane, Harbor
Heights. The vote on the motion carried 3-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Morgan, Abstain;
Mr. Nicholas, For and Mr. Petsos, For.
10. Motion
to Approve: Villa
Five
(5) Residential Units Located on
The City
Planner explained that a Special Exception was granted for five residential
condominiums. All staff requirements
have been met for density and setbacks.
Mr. Petsos asked if a trash receptacle would be provided due to the
limited space for a solid waste vehicle. Mr. Peetz affirmed. Mr. Gene Parlotto stated that he was not
involved in the site plan review; however there was adequate storage for the
trash receptacle. Mr. Petsos inquired
about completion date. Mr. Parlotto replied
about six months following site plan approval.
Attorney Garganese replied that he and the Building Official discussed
what would happen if the applicant could not complete construction in time to
meet the Certificate of Occupancy date.
The
Building Official stated that the lack of abandonment should set a precedent
for obtaining a Certificate of Occupancy.
Mr. Lamar Russell stated that binding the permit to the Certificate of
Occupancy prohibited incomplete construction.
Mr. Russell expressed the need for a sunset on building permits.
Attorney Garganese stated the need for Code revisions and explained that
permitted uses are treated differently from Special Exceptions. Mr. Morley
explained how the previous City code allowed for incomplete construction.
Mr.
Roger Coombs of
A
motion was made by Mr. Petsos and seconded by Mr. Morgan to Approve Villa
Campania, R.K. Engineering, Applicant, for Five (5) Residential Units Located
on Holman Road. The
vote on the motion carried 4-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Morgan, For; Mr.
Nicholas, For and Mr. Petsos, For.
DISCUSSION:
11.
Mr.
Boucher replied that the City has an Interlocal Agreement with
REPORTS:
1.
City
Manager
·
Mr.
Boucher distributed the appraisal figure for the Stottler, Stagg and
Associates, Inc. building on
·
Mr.
Boucher reported that the Cocoa Beach Commission is seeking assistance to
purchase a beachside facility for their community center. Mr. Morgan inquired about a facility in a
mid-point location. Mr. Boucher stated
that the Cocoa Beach Commission is seeking property tax funding.
·
Mr.
Boucher announced that Code Review would continue on February 21st
at 5:00 P.M.
·
Mr.
Boucher reported that Mr. Jeff Ratliff was working on the paver stone
project on
·
Mr.
Boucher distributed a flyer on the City’s new Customer Service program.
2. Staff
Public Works Director
·
Mr.
Gardulski expressed to have
Building Official
·
Mr.
Morley informed that Coastal Fuels planned to submit an application for additional storage tanks.
City Clerk
·
No
report.
City Attorney
·
Attorney
Garganese informed that proposed House Bill 949 and Senate Bill 1608 on
Municipal Home Rule would ensure that Charter counties do not encroach on
municipal home rule. Requests for
Resolution would follow.
3. City
Council
.
·
Mr. Nicholas inquired about the storm drainage system and paving. He asked about the time frame for renovating
the City’s storm drainage system. Mr.
Gardulski replied that the increased cost of asphalt has postponed these
projects. Staff planned to identify the
laterals from residences in need of repair prior to paving. Mr. Ratliff and a National Emergency Grant
worker are identifying the anticipated work.
Mr. Nicholas requested a copy of the time line.
·
Mr. Petsos asked if a letter was forwarded to
Scott Ellis’s office on the County’s failure to return tax
funds to the City. Mr. Boucher
affirmed.
·
Mr. Petsos noted culvert preceding the sidewalk installation on the Radisson Resort
property. Public Works Director will continue to provide project status.
·
Mr. Petsos announced a Sea Oats Planting project on February 25th at
9 A.M. at
·
No report.
·
Mayor Pro Tem Hoog commended staff on the
City’s beautification efforts.
AUDIENCE TO BE HEARD:
There was no public comment.
ADJOURNMENT:
There being no further
business, the meeting adjourned at 9:20 P.M.
__________________________
BOB
HOOG, Mayor Pro Tem
________________________________