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 Leo Nicholas
Council Member Buzz Petsos
Mayor Rocky
Randels
Council Member Shannon
Roberts
Others Present:
City Manager
City Clerk Susan
Stills
Building Official Todd Morley
Stormwater Administrator Jeff
Ratliff
PRESENTATIONS:
Marguerita Engel of the St. John’s River
Water Management District to Present a Grant Check to the City in the Amount of
$115,000.
Mayor Randels called on Ms. Marguerita Engel to present a check from the St. John’s River Water Management District to the City in the amount of $115,000 for the south portion of the Central Blvd. Ditch project. She presented the check to Mr. Jeff Ratliff, Stormwater Administrator and announced April as the 9th Annual Water Conservation Month. Ms. Engel referred to an article in Florida Today and noted how water saving bathroom devices was the latest trend. She also quoted Francis King-Cross in a Newsweek article that requested policies prepare for a hotter, drier climate.
Ms.
Engel stressed the importance economically and environmentally of water
conservation and efficient use of water inside and outside of the home. She presented a bucket and a spigot as visual
aids for water use noting that carrying water in a bucket was labor intensive;
however, and the spigot led to excessive water use. Ms. Engel pointed out how people could
conserve water through plumbing maintenance and proper watering techniques such
as shorter shower times and watering lawns only two day per week. She asked all in attendance to view the
Mr.
Ratliff explained that the funding would be used for the south portion of the
Central Blvd. Ditch project. He
explained further how these funds would help to change the water quality
flowing into the
Mayor
Randels commended Mr. Ratliff on his success in seeking grant funds. Mayor Randels also thanked Ms. Engel for her
efforts through the
Presentation to Council Member Shannon
Roberts
Institute of Elected Municipal Officials - Certificate of Completion
Mayor
Randels recognized that Council Member Shannon Roberts went to
CONSENT AGENDA:
1. City Council Regular Meeting Minutes of
2. Resolution
No. 2007-06; Appointing an Alternate Member of the Business and Cultural
Development Board, Lt. Hugh Evans.
3. Outdoor
Entertainment Permit for the American Legion Picnic; Joe Locicero, Applicant.
4. Proclamation
Recognizing the Month of April as National Fair Housing Month.
Mayor Randels asked if any member of Council,
staff or interested parties 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 Mayor Pro Tem Hoog and
seconded by Mr. Petsos to Approve Consent Agenda Items No. 1 through 4. The vote on the motion carried
5-0 with voting as follows: Mayor Pro
Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms.
Roberts, For.
CONSIDERATIONS:
5. Motion
to Approve: Request for Reduction of Lien – Per City Code Section 2-260(e) for
Pravin & Jyostna Patel,
Mayor Randels explained that the violation in
discussion occurred due to window signs that blocked the visibility in the
store front and impeded safety and law enforcement intervention during sales
transactions. Mayor Randels stated that
the Board Order was imposed on
Mayor Randels stated that the Code Enforcement
Board reviewed the six criteria: 1) the gravity of the violation, 2) the time
that it took the violator to come into compliance, 3) the accrued amount of the
Code Enforcement Fine or Lien, 4) any previous or subsequent Code violation, 5)
any financial hardship, or 6) mitigating circumstances. Mayor Randels stated the Council’s three
options as: 1) to approve the request, 2) to approve with conditions, or 3) to
deny the request.
Mayor Randels stated that the case began in the
year 2001 and also he stated that Mr. Patel signed for the Notice of
Violation. Mayor Randels said that a
considerable amount was owed by way of fine. Mayor Randels clarified that the
tenant informed the property owner of the violation and the Mayor then
re-stated the Council’s three options. Mr. Nicholas asked for clarification
that the amount of the lien was $75,070 and he asked the Chair if the
Petitioner was seeking a full reduction.
Mayor Randels informed that the Code Enforcement Board recommended a
reduction of the Lien to $21,000 plus legal fees and the amount of foreclosure;
however, their Petitioner’s legal counsel offered to pay $5,000.
Mayor Pro Tem Hoog requested to know the total of
the City’s Attorney fees and costs. Attorney Garganese stated $4,300 in fees and costs. Mayor Pro Tem Hoog asked if that included the
Board’s time. Attorney Garganese replied
that it did not. Todd Morley, Building
Official, informed of how the Board arrived at the $21,000 amount; however, the
Board recalculated the amount to include to the Attorney’s fees and costs for a
total of $25,300. Mr. Nicholas stated that
it had been the City’s position over the years not to use the Code Enforcement
Board as a fund raising source but to correct violations. Mr. Nicholas stated that what was galling
about the violation was that it continued over a five-year period. Mayor Randels recounted the number of times
that the Petitioner was sought to correct the violation. Mayor Randels stated that the violation was a
safety issue, not an aesthetic issue.
Mr. Nicholas stated how this Code was not indiscriminately adopted, but established
to protect both the public and law enforcement personnel.
Attorney Garganese stated that the Council should hear from the
Applicant. Attorney Andrew W. Menyhart
stated that he was the representative for the property owner, Mr. Pravin Patel. He explained that Mr. Patel, the tenant, was
not the owner of the property. Mayor
Randels interjected that Mr. Patel, the tenant, signed the Notice of Violation
as a part owner of the business.
Attorney Menyhart stated that the City’s current Code Enforcement
Officer planned to provide certified copies of the previously delivered notices
to ascertain if the property owner was notified. Attorney Menyhart explained
that the tenant told the property owner many times that the violation was
resolved.
Attorney Menyhart expressed that the property owner contention came about
due to an accrued fine in 2004, not the property foreclosure suit that came to
his attention in 2007. Attorney Menyhart
stated in summary that the Petitioner was seeking a fine of no more than
$10,000. Attorney Menyhart said that it
appeared that the property owner, Mr. Patel, was present at one of the Code
Enforcement meetings. Attorney Menyhart
related that the property owner sought to resolve the situation immediately and
there was no blatant disregard on his part to rectify the violation. He stated that without the proper
documentation the matter becomes no more than a verbal accusation between two
parties.
Mayor Randels reviewed that the last notice of service was
Mayor Randels sought a response from the City Attorney. Attorney Garganese explained that the Code
Enforcement Board authorized the foreclosure action and the foreclosure action
was then filed. The Applicant has come
to the Council with an Application seeking a reduction in the current Lien on a
longstanding violation. If the Council
agreed with the reduction and the Lien was Satisfied, then the current
foreclosure action was eliminated.
Attorney Garganese explained further that the City could recover the
full amount of the Lien if it was believed that the City acted with due diligence.process. However, if the City proceeded and it was
found that the City did not act with complete due diligence process,
then there was a level of risk exposure to the City in collecting nothing, or
part of the Lien, along with Attorney’s Fees from the Applicant as well as its
own legal counsel expenses.
Attorney Garganese explained that the property owner believed that the
tenant would resolve the violation; however, the tenant did not and the
violation and subsequent lien continued.
Mayor Randels read from the Code Enforcement Board Minutes of
Mayor Pro Tem Hoog informed that he was present during the Code
Enforcement Board meetings. He stated
that this began prior to 2001, perhaps in November or December of the year
2000. Mayor Pro Tem Hoog stated that he
personally felt strongly about the safety issue that was related from Law
Enforcement. Mayor Pro Tem Hoog stated
that the City sought compliance, not the money; however, the cost for the staff
time involved was valuable. He stated
that he would concur with the Council for some form of action but also stated
that the City was not seeking money but compliance. Mr. Petsos stated that he too followed the
violation and the violation related to the safety of the employees as well as
that of Law Enforcement. He said that he
was not in favor of the full $75,000 but he was in favor of the Board’s
recommendation for the $25,300.
Ms. Roberts reminded that this was the second case that the Council heard
since she became a member. She expressed
her concern for the lack of compliance on behalf of the community when
something posed a threat to customers, employees, and law enforcement
personnel. Ms. Roberts stated that she stated that she understood the Mayor and
the Council’s compromise approach to allow a business owner to stay in
business; however, we also needed to relate the City’s message that this was
serious.
Attorney Menyhart referred to Mr. Nicholas’ statement in the motion that
staff reviewed the time expended on this case and now the legal fees were
established; however, his client was willing to pay $15,000. Attorney Garganese asked Attorney Menyhart if
he had placed on the table some assurances that the City would be authorized to
remove the paper from the window in order to provide adequate protection in the
interest of the tenants, the customers and law enforcement. Attorney Menyhart replied that his clients
could give further assurances and also to stipulate what fine would be entered
should the violation occur again and therefore a judgment would already be
entered.
Ms. Roberts asked for clarification if what the City Attorney had advised
by way of stipulation could be inserted into the main motion. Attorney Garganese stated his point that in
order to expedite compliance in the event that the violation re-occurs that the
City has a written understanding. Mr.
Boucher reminded that such an action was done with the Miliken case. Mayor Randels clarified the main motion and
an amended motion of an amount of $25,300.
Ms. Roberts stated that she did not agree and said that the City was
substantially decreasing the original Lien and she found that generous on the
City’s behalf considering the length of time for resolution.
A motion was made by
Mr. Nicholas and seconded by Mayor Pro Tem Hoog to amend the Main Motion to
Take the Recommendation of the Code Enforcement Board and to Reduce the Amount
of the Lien to $25,300, which includes Attorney’s Fees and Costs. The vote on the motion carried
5-0 with voting as follows: Mayor Pro
Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms.
Roberts, For.
Mayor Randels clarified that any Stipulations would be added to the main
motion. Attorney Garganese explained
that the City could draft language to assure that action could be taken to
remedy any future violation. He
concurred with the City Manager that such an action was done in the Miliken
case. Attorney Garganese asked the Council
to keep in mind that if the Applicant agreed to the $25,300; under the Code,
once the Council made a decision regarding the Reduction, then the Applicant
had 30 days in which to accept it. If
not, then the City would proceed to the foreclosure proceeding. Attorney Garganese concluded that the Council
could make the further assurances through an amendment to the main motion.
Attorney Garganese replied to Mr. Nicholas that any future violations
would give the City consent to allow visibility. Council members disagreed with the City
removing the paper from the window in any future violation. Attorney Garganese replied to Mayor Randels
that the City could not re-impose an old fine.
Attorney Garganese suggested the monetary amount of $100 per day, which
the Code Enforcement Board imposed, on the amended Order. Discussion concluded that this was the
existing fine.
Mayor Randels explained that the Council was attempting to find a viable
way to resolve any future violations.
Ms. Roberts asked if in the event that the violation occurred again,
could the Council seek foreclosure action.
Attorney Garganese replied that if there were another Lien that was
imposed and unpaid, then the City could institute a foreclosure action. Ms. Roberts asked if there were a threshold
dollar amount, so if it began again the City could seek foreclosure. Attorney Garganese replied that the remedy
was three months from the date of the recorded Lien if the City followed the
procedure in Chapter 162, Code Enforcement Board Procedure. Ms. Roberts stated that if it happened again,
the Council’s patience might not be as tolerant, and immediate action would be
taken. Attorney Garganese advised that
if the Applicant violated again, then the City would prosecute a new Code
Enforcement case as a repeat violator with a higher fine of up to $500 per
day. Attorney Garganese concluded to
allow the Code Enforcement Board to handle it.
A
motion was made by Mayor Randels and seconded by Mayor Pro Tem Hoog for a
Request for Reduction of Lien for Pravin & Jyostna Patel at 8050 N.
Atlantic Avenue, in the Amount $25,300 as a Settlement for Satisfaction and
Release of the Code Enforcement Lien as Recommended by the Code Enforcement
Board to include Attorney’s Fees and Costs. The vote on the motion carried
5-0 with voting as follows: Mayor Pro
Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms.
Roberts, For.
6.
Motion to Approve: Change Order Number (1) for the Public Works
Maintenance Building in the Amount of $27,929.
Ed Gardulski, Public Works Director, informed
that he requested a second opinion from Miller, Legg and Associates and they
concurred with a waffle slab foundation.
Mr. Petsos stated that his initial question was not answered on why
Brown and Caldwell, Inc. did not take soil samples prior to submitting the bid
documents. Mr. Gardulski responded that
the soil sampling was part of the bid documents that the Design Builders was
responsible for taking soil samples. Ms.
Roberts asked if they would take responsibility for the change order. Mr. Gardulski explained that the bid recipient
had the option to take the soil samples to confirm if the original slab was
sufficient. Mayor Randels stated that
this would indicate that the City was agreeing to pay for the soil samples
according to the bid documents. Mr.
Gardulski responded to Mr. Nicholas that Brown and Caldwell prepared the bid
documents.
Mayor Pro Tem Hoog expressed his disfavor with a
Change Order prior to beginning construction and he also questioned the
difference in cost especially when there were other buildings on the land. He re-stated his disfavor with the change
order and said that the City should not have to pay, nor should the
contractor. Mayor Pro Tem Hoog stated
that the change order expense was the responsibility of the engineers. Mr. Gardulski informed that the building was
a design build and soil sampling was part of the bid documents for the
contractor. Mr. Gardulski explained how
the result of the soil sample required the change to the foundation. Mayor Randels then questioned the clarity of
the bid document language and he queried if the engineer who developed the bid
document performed to the City’s expectations.
Mayor Randels concluded that any contractor building six-feet from the
water would want soil samples.
Mr. Boucher recommended that if the Council chose
to take action against Brown and Caldwell, Inc., the City Attorney’s office
could proceed; however, the project needed to continue and a waffle slab was
needed according to two engineers. Mr.
Boucher explained that in his understanding Brown and Caldwell specified a
floating slab; however, before construction could occur, the bid recipient had
to take soil samples to verify soil conditions.
Butler Construction did the soil samples, verified them, and said then
that they could not begin construction as specified by Brown and Caldwell. Mr. Petsos stated that Brown and Caldwell
made a recommendation on a slab without a soil sample. Mr. Gardulski responded that if the soil
samples were performed before the bid documents were published, the design
builder might not want to rely on those samples, but would want to perform
their own testing.
Ms. Roberts referred to the letter from John
Butler and said that there was additional overhead that the City would not have
had if Brown and Caldwell had done the soil samples. Ms. Roberts expressed concern about the
amount, the process, and the end result and she said that she did not think the
City should accept the amount until the City gained clarity from Brown and Caldwell
on how this transpired. She stated that
she would prefer to see a cost sharing with Brown and Caldwell.
Mr. Boucher stated that the City would hold the
project up for Butler Construction over Brown and Caldwell’s error in the bid
documents. Mr. Boucher stated further
that the dry season was at hand and the materials were ready. He said that the City could call Brown and
Caldwell to task and maybe have them cost share some of the charges. Mr. Boucher replied to Ms. Roberts that the
other bidders were significantly higher.
Mayor Randels clarified that even if another bidder was the award
recipient, the soil samples were still required. Mr. Petsos stated that Ms.
Roberts’ comments were to the point and if there were any recoverable costs
from Brown and Caldwell, then they should be directed to pay those costs. Council
members agreed that Brown and Caldwell should address this situation.
Mr. Bob Baugher, General Manager of the Radisson
Resort stated that a waffle slab was in fact a floating slab only of thicker
proportion. He stated and Mayor Pro Tem
Hoog agreed that the waffle slab was a labor-intensive installation. Mayor Pro
Tem Hoog stated that there were 66 yards of extra concrete in the slab over the
original slab. Mr. Gardulski replied
that he could not find another engineer that could approve the change order. Council members agreed to accept the First
Change Order for the Public Works Maintenance Building and for Brown and
Caldwell to answer to its necessity. Ms.
Roberts expressed her concern that it appeared that a waffle slab was the same
as a floating slab; however, City was charged.
She expressed to see a cost sharing with Brown and Caldwell and she
expressed that the City was underrepresented in the proposal. Ms. Roberts stated that the City should
recoup some of its costs.
A
motion was made by Mayor Pro Tem Hoog and seconded by Mr. Petsos to Approve
Change Order Number One for the Public Works Maintenance Building in the Amount
of $27,929. The vote on the motion carried 5-0 with
voting as follows: Mayor Pro Tem Hoog,
For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms. Roberts,
For.
7. Motion to Approve: Perlas Del Mar Easement Vacation.
Mayor Randels explained how Cevesco Properties
gave the City easements throughout the City for vacant land. He noted that the City was attempting to
vacate the easements on which some buildings exist. Mayor Randels informed that the Planning and
Zoning Board recommended the Easement Vacation on March 14th. Mr. Nicholas stated that construction
occurred on the City’s easement. Mayor
Randels referred to a letter dated February 2005 from Allen Engineering that
the City would vacate the easement. Mayor Randels stated that they should have
been vacated before the City approved the building plan and made note for Staff
to add easements to the site development checklist. Mayor Randels directed the Staff to Record
the Easements.
A
motion was made by Mayor Pro Tem Hoog and seconded by Ms. Roberts to Approve
the Perlas Del Mar Easement Vacation. The vote on the motion carried
5-0 with voting as follows: Mayor Pro
Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms.
Roberts, For.
RESOLUTIONS:
8. Motion
to Adopt: Resolution No. 2007-08; Approving the Preliminary Replat of Beach
Breeze Townhomes.
Mayor Randels explained that these townhomes were located at 8323 Ridgewood Avenue across from Cherie Down Park and Ms. Stacie Shoemaker desired to re-plat the lot into two lots. Ms. Shoemaker explained that her desire was merely to re-plat the lot and the indication of townhome construction was a misnomer. She stated that the Planning and Zoning Board approved the request on January 24th. Mayor Randels informed that the lot, zoned in R-2, had a maximum potential of nine units. Ms. Shoemaker concluded that with a re-plat the maximum potential would be a total of four, with her single family residence on one side and three units on the other, which was under the construction limit.
A motion was made by Mr. Petsos and seconded by Mayor Pro Tem Hoog to Adopt Resolution No. 2007-08. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms. Roberts, For.
9. Motion to Adopt: Resolution No. 2007-09; Supporting Florida House Bill 57 and Florida Senate Bill 444, the Clean Ocean Act.
Mayor Randels explained that under this Act all vessels that routinely carry or were certified to carry more than 100 passengers for periods of more than two hours to register with the State of Florida Department of Environmental Protection and require Ports to establish and collect fees. Mr. Petsos provided history on the Bill saying that both the House and Senate Environmental Committees would hear it on the following day. Mr. Petsos informed that he had the privilege of authoring the Bill and informed that Cocoa Beach had already adopted it. Mr. Petsos encouraged the Bill’s support by Council and the audience and also encouraged them to call their State Legislators. Mayor Randels explained that Mr. Petsos was influential in initiating the Bill. In conclusion Mayor Randels summarized, the vessels would pay for the pump out facility services and waste would not get dumped within the three-mile limit. Mr. Petsos affirmed that this Bill would affect the State. Mayor Randels thanked Mr. Petsos on the Bill’s benefit to Florida’s coast.
A motion
was made by Mr. Petsos and seconded by Ms. Roberts to Adopt Resolution No.
2007-09, Supporting Florida House Bill 57 and Florida Senate Bill 444; the
Clean Ocean Act. The
vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For;
Mr. Petsos, For; Mayor Randels, For and Ms. Roberts, For.
10. Motion
to Adopt: Resolution No. 2007-10; Endorsing the Acquisition and Protection of
the Carver Cove Property as a Riverfront Park and Community Center.
Mayor Randels explained that the Resolution endorsed the Acquisition and Protection of the Carver Cove Property and directed staff to work with the Trust for Public Land [TPL] and the Florida Communities Trust [FCT]. Mayor Randels explained that TPL would purchase the land in their Trust Fund and the City would apply for the grant for the 4.2-acre property west of State Road A1A and south of Wachovia Bank. Mayor Randels informed that the owner contacted the City regarding the purchase. The land would be used for a community center and recreation facilities.
Mayor Randels explained that if the City could fund 50 percent of the cost, then there was an opportunity to secure more points toward securing the grant. Mr. Boucher explained how the TPL outlined in their letter that only 24 out of 110 grant applications were funded and only 3 of those 24 did not provide a match. Mr. Boucher stated that funding without a match was all but obsolete. Mayor Randels informed he had worked on securing the property since 2004. Mr. Boucher replied to Mr. Osborne that his questions regarding historical and archeological aspects, tree identification and environmental concerns would be answered during the application process.
Mayor Randels concluded that the TPL was available to assist the City with the grant process and encouraged the City to match the funding in order to gain points. The application was due on May 9th with feedback in early September. Mayor Randels explained that the TPL would take the lead in preparing the application and would look to the City for help with exhibits and identification. The TPL desired to know that if they purchase the property, would the City be willing to negotiate 25, or up to 50 percent match in order to gain the extra points. Mayor Randels informed that the likelihood of funding was early August when the Florida Communities Trust staff provides the Preliminary Report.
Mr. Boucher clarified that Mr. Bob Guido, of the TPL, was in favor of the City seeking the grant funding; however, if the property was removed from the market, the City would need to seek grant funding in the subsequent year if the grant were not obtained during this funding year. Mr. Petsos questioned the City Manager on his planned source to secure the match funding. Mr. Boucher replied that the City would either use Reserves or secure a Note. Ms. Roberts stated that she imagined that this was part of the City’s main design for acquiring green space. She expressed her appreciation for Mr. Petsos’s question on the sources of funding. Ms. Roberts brought out the point of the City acquiring property on a larger scale this coming year. Mr. Nicholas commented that when the City sought property in the past purchases were limited. Mayor Randels informed that the property was 172 feet north/south along the road and 800-feet east/west.
Mayor Pro Tem Hoog questioned this project in light of the facilities planning for City Hall and the Sheriff’s facility acquisition. Ms. Roberts stated that the point to keep in mind was that historically the City has been conservative paying incrementally and has benefited to some extent. However, this was an opportunity to secure property before any further development. Mayor Pro Tem Hoog expressed his concern and sought the Council’s certainty on the purchase in light of other property acquisitions.
Mayor Randels expressed that he envisioned an opportunity for a Community Center or Recreation Complex at the location and perhaps the Sheriff’s Department could move into the existing Recreation building. He informed that the Florida Inland Navigation would install a canoe launch and the County Commission was receptive to discussing a Community Center in that location. Mr. Nicholas agreed that the potential exists and he suggested combining acquisition funds into one package. Mr. Nicholas commended the City for its conservative financial approach and said that the City was in good financial standing in the community to acquire a bond issue or a loan. Mayor Pro Tem Hoog concluded with a final caution on paying for the proposed projects in light of the plateau in the construction market.
A motion was made by Mr. Nicholas and seconded by Ms. Roberts to Adopt Resolution No. 2007-09, Endorsing the Acquisition and Protection of the Carver Cove Property as a Riverfront Park and Community Center. The vote on the motion carried 5-0 with voting as follows: Mayor Pro Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms. Roberts, For.
11. Motion
to Adopt: Resolution No. 2007-11; Approving the Preliminary Replat of Caribbean
Vistas Townhomes.
Mayor Randels noted the location as 8002
Poinsetta and Madison Avenue. He
explained the proposal to re-plat the property into four lots. Mayor Pro Tem Hoog asked why the verbiage was
different on the dedication of easement between this and the previous
re-platting for Beach Breeze. Attorney Garganese
replied that there was no specific language with regard to re-plat
documents. A third party prepared these
documents.
Mr. Daniel Coons replied to Mr. Osborne that the house was built in 1957. Ms. Roberts made note for the Council to consider a photograph prior to destroying the original building in order to document the City’s history. She said that her request did not need to become part of the motion. Mr. Ray Osborne replied to Mayor Randels that he could take the photo. Ms. Roberts said that this discussion point was an opportunity to focus on the City’s history. Mayor Randels added the thought of taking a photo before building demolition. Mr. Morley informed that he would be glad to place any photo in the City’s file as part of the construction record.
A motion
was made by Mr. Petsos and seconded by Mayor Pro Tem Hoog to Adopt Resolution
No. 2007-11, Approving the Preliminary Replat of Caribbean Vistas
Townhomes. The vote on the motion carried
5-0 with voting as follows: Mayor Pro
Tem Hoog, For; Mr. Nicholas, For; Mr. Petsos, For; Mayor Randels, For and Ms.
Roberts, For.
DISCUSSION:
12. Purchase of a Fiberglass Manatee for Our Sister City of Vila Do Bispo, Portugal.
Mayor Randels explained that this item was to purchase a Fiberglass Manatee for Cape Canaveral’s Sister City of Vila Do Bispo at a cost of $2,130 and he questioned if anyone has asked Vila Do Bispo if they desired to receive the manatee. Mr. Nicholas replied that the Sister City representatives from Vila Do Bispo received Cape Canaveral’s Mayor and his guests well and they also named a park in Vila Do Bispo after Cape Canaveral. Mr. Nicholas noted that the idea of a manatee was initiated because of the days of early exploration and the Portuguese mariners. In light of this, the Beautification Board came up with that suggestion; however, the Board felt that the City did not think the manatee was a preferable gift and a City seal was suggested gift. Mr. Nicholas summarized that the Beautification Board would like some resolution on a gift.
Ms. Judy Hale, Beautification Board Chairperson agreed with Mr. Nicholas. Mayor Randels affirmed that a street was dedicated in the City’s honor in a photographed ceremony and he informed that the City has a photo CD of the visit. Mr. Nicholas requested to view the photos. Mayor Randels suggested an olive tree for landscaping purposes. Mr. Boucher noted that asking them would remove the element of surprise for the recipient. Mr. Boucher then informed that the City had $700 in donations that would reduce the cost.
Mayor Pro Tem Hoog inquired about the cost to send the manatee. Mr. Nicholas related that at one point Ms. Cathy Hardy, former Beautification Board Secretary, had obtained the shipping cost. Mayor Pro Tem Hoog reminded that the City should obtain the actual cost. Ms. Roberts stated that the Beautification Board had discussed a bronze seal, a manatee and also something space related such as a small shuttle, or rocket replica. She stated that perhaps the Council could discuss two or three options, including the shipping and make a decision based on total costs. Mayor Randels replied to Mr. Harry Pearson that Vila do Bispo was in the Algarve southern coast of Portugal. Mr. Nicholas inquired about the Portuguese gentlemen a businessman in Merritt Island. Mr. Boucher informed that his name is Carlos Caldas. Ms. Roberts stated that there was also a woman at the Space Center who was also active in working with the Portuguese delegation.
Ms. Roberts asked if the Council planned to review the suggestions and come up with three options; however the only suggestion she has heard was the manatee. Mr. Boucher recommended showing the photo CD at the next Beautification Board meeting in order for the Board to get some ideas. Ms. Hale related on staff’s difficulty in acquiring a space shuttle for the City Hall lawn and she did not see a shuttle as a viable gift. Mr. Ray Osborne inquired about the history of the Sister City program with Vila do Bispo. Mr. Boucher concluded that the information could be found on the Sister Cities International web site. Discussion concluded that the photo CD would be shown at the next Beautification Board meeting.
13. Resort Dwelling Units.
Mr. Boucher explained that at the last workshop meeting Council desired to review two options. Mr. Boucher asked the City Planner to prepare a map of the number of non-homestead versus homestead parcels in order for the Council to gain a visual perspective. Mr. Peetz informed that Property Appraiser’s Office provided the information. Ms. Roberts asked how Mr. Peetz had determined which units in a multi-family building were predominately homestead properties. Mr. Peetz replied that if the Property Appraiser used a larger condominium, then they were not coded as homestead property. Mr. Peetz replied to Ms. Roberts that the City Manager gave the directive to focus on the single-family, duplexes, tri-plexes and quad units.
Ms. Roberts expressed her concern over Mr. Peetz’s depiction in that it did not appear to be a realistic portrayal of the number of homestead owners in the City. Mr. Peetz affirmed that the parcels are consistent with units when speaking of a single-family unit, but for a duplex, triplex or quad he would think of them as single family in the R-1 zoning. He informed that since the single-family houses were sharing parcels, the Property Appraiser actually coded those as multi-family. Mr. Peetz reiterated that the information came from the Property Appraiser’s Office and he re-stated that the City Manager’s directive was to focus on single-family, duplexes, tri-plexes and quad units. Ms. Roberts said that she raised the question because Resort Condominiums were added during the workshop and she expressed concern that what the map depicted shed a different light on the discussion. Mr. Boucher clarified that the map was not being used to highlight that point.
Mr. Peetz explained to the audience that the hash-marked pattern
properties were homesteaded. Mr. Peetz
explained further that yellow indicated single-family; orange, which were few,
indicated duplexes; blue indicated triplexes, dark blue indicated quads-plexes
and red indicated five units or more.
Mr. Peetz responded to a question from the audience that the indication
marked existing uses as of July 2005 from the Property Appraiser’s Office. Mr. Peetz replied to an audience question
that purple indicated commercial, non-residential, and industrial land and
green indicated parks.
Mr. Peetz informed that the ratio was three to one for homestead
single-family property over single family, non-homestead property. He also informed that for duplexes the
percentage was 60 percent homestead to 40 percent non-homestead. Mr. Peetz stated that there were only four
homestead triplexes and 16, non-homestead triplexes. He also stated that there were five homestead
quads and 32 non-homestead quads. Mr.
Peetz concluded that there were many multi-family and multi-family residential
that were listed as homestead and non-homestead. However, as Ms. Roberts mentioned, there were
probably many units being omitted because there was no indication of homestead
property in the Solana Lakes and Solana Shores area.
Mr. Peetz pointed out purple [lavender] was predominately the C-1
corridor. He informed that C-1
residential properties such as Ocean Gardens and Oak Lane were C-1 zoned with
homestead property. Mr. Peetz stated
that there was no C-1 zoning along the ocean or the Banana River. Mr. Peetz
indicated the C-2 zoning pointing out Solana-on-the-River and the IAP
building. Mr. Boucher explained that the
purpose of the map was to indicate the quad-plexes to single-family in order to
gain a perspective of where the parcels were located and to note the area of
impact due to regulations. Mr. Peetz
replied to an audience question that the Property Appraiser’s Office data for
multi-family that was not predominately homesteaded was not indicated. If the City wanted to make condo lots part of
this study, he would need to look at each parcel and check for homestead
identification of each unit. Mayor
Randels clarified that the City’s research was based on a focus on four-units
or less since the City had no authority to regulate five units or more.
Ms. Roberts stated that the resort condominium language in one of the
draft ordinances was confusing. Attorney
Garganese replied that the language was inserted for illustrative purposes and
could be removed. He stated that the
previous Workshop brought out that resort dwellings were not being treated the
same as resort condominiums and if the Council wanted to treat them the same,
one of the draft ordinances was an example of how that language would
appear. Attorney Garganese explained
that there was a definition of Resort Condominiums, a subcategory of Public
Lodging Establishments in Chapter 509 that has a similar regulation which
states, “if you rent a condominium unit more than three times in a calendar
year for less than 30 days you are considered a Resort Condominium and you must
meet all the provision licensing requirements under Chapter 509.” Attorney Garganese re-stated that if the
Council chose to treat resort condominiums and resort dwellings the same this
was how the ordinance would appear.
Mr. Petsos stated his preference to return to discussion of four units or
less. Ms. Roberts said when the Council
begins to look at the whole of the City in relation to rental property then the
discussion becomes confusing. Attorney
Garganese responded that the Council could discuss resort dwellings separately
from resort condominiums. Ms. Roberts
expressed that some of the community would like for the Council to address the
whole City; however, she recommended addressing the whole City at the Visioning
Session. Attorney Garganese responded
with his opinion that the State did not pre-empt the City’s zoning authority to
decide where these types of uses would be located. The State, however, did pre-empt the City’s
rights on Public Lodging Establishments with respect to licensing requirements.
Attorney Garganese summarized that the ordinance related to zoning and the City
had the right to make that decision.
Todd Morley, Building Official, explained that under the Building Code;
an R-1 use meant a transient residential use, R-2 use was a
permanent residential for more than 30 days and multi-family, R-3 use was
permanent residential more than 30 days and one or two family, and R-4 use
was residential care, assisted living facilities; however, the last use was
outside of the scope of discussion. Mr.
Morley explained further under the Building Code that if a change of use was
required then a permit was required from the Building Official, with
inspections and a final Certificate of Occupancy for the new use.
Mr. Morley explained how any new applicant, or any one desiring to change
since the Code was adopted as of 2005, was required to proceed through the
Florida Building Code. Certain specifics
were required at this point such as: corridors, ratings of corridors,
self-closing doors, fire alarms, and fire sprinkler requirements. The permit application would proceed to the
Fire Department for review with the NFPA fire code and the property would
require sprinklers and fire alarm systems.
Mr. Morley and Mr. Boucher clarified that the language use of the
structure, identified a transient use that was a change of occupancy
classification.
Mr. Morley read from the Florida Building Code: The permanent nature of the R-3 use
permanent residence lent itself to safety, whereas with the R-1 transient use
the property requires a more stringent level of safety. Mr. Morley reminded that an occupancy
classification change in use from R-3 to R-1 required a permit, which
subsequently required review and prompted the need for fire sprinklers, alarms,
egress, and inspections from both the Fire and Building Departments, final inspections,
and a Certificate of Occupancy to use that use lawfully. Mayor Randels replied that historically the
manner in which an area was zoned was dictated its use. Mayor Randels questioned if permission for
use was required if he rented out the property.
Mr. Morley stated that if a State License was issued then the approval
should be requisite from the State before issuing the business license.
Mayor Randels pointed out for clarification that the occupational license
was not in fact authorization for the new use.
Mr. Morley affirmed that a business tax receipt was not authorization
for use. Mr. Morley stated that the
City’s ordinance also reads, “if you change the use of a structure, then you
must get permit inspections and a new Certificate of Occupancy for the new
use.” Mr. Morley replied that if there were structures that appeared to be used
as R-1; however, Certificates for Occupancy were issued for R-3, then a Code
Enforcement violation existed. Mr. Harry
Pearson, Planning and Zoning Board Member, asked what time period related to
transient to which Mr. Morley replied less than 30 days. Mayor Randels asked if the same application
would apply to a resort condominium as to a resort dwelling. Mr. Morley affirmed that it would. Mayor Randels concluded that it appeared that
the City was treating all applicants the same. Mr. Morley stated that at this
point the City would need to develop parking standards, for example, one space
per room such as applies to the hotel-motel industry. Mr. Nicholas asked if Mr. Morley meant one
space per rental unit. Mr. Morley
answered that for hotel-motel service the Code provision related to one space
per guest room. He stated that there was
no provision for residential transient dwelling units and this would require
further discussion.
Ms. Roberts clarified that the key was less than 30 days. Mr. Morley informed that the Florida Building
Code used a less than 30-day limit to define transient. Mayor Randels clarified that rental for less
than 30 days for three times per year was defined under the Florida Building
Code as a transient use. Mr. Morley
clarified that of all four residential categories R-1 was the only transient
classification; if you choose to become an
R-1 use, a change was required through a permit, with subsequent inspections,
and a Certificate of Occupancy for an R-1 use.
Mr. Morley replied to Mayor Randels that existing properties would need
a transient R-1 use Certificate of Occupancy.
Mr. Morley replied to Mr. Pearson that he could not address what the
State requires; however, the Florida Building Code refers to the Florida Fire
Prevention Code that requires sprinklers and alarms.
Mr. Bjornar Hermansen informed that the permit he received from the State
was practically the same with the exception of parking and trash removal that
were local issues. Mr. Morley stated
that American with Disabilities Act [ADA] requirements were also a
criteria. Mr. Dunn asked if the ADA
would require elevators in two-story buildings. Mr. Morley affirmed. Mr. Baugher asked if the change of use was
concurrent with the Certificate of Occupancy.
Mr. Morley affirmed and he stated that if there was evidence of a change
of use in violation of the issued CO, then there were grounds for Code
Enforcement proceeding. A question was
raised on seeking the Certificate of Occupancy information if the residence was
built prior to the City’s incorporation.
Mr. Morley replied that he did not have records predating the City’s
incorporation. Mr. Boucher replied that
such information could be found with the County. A question was raised on the number of times
for rental. Mr. Morley replied that the
time factor in the Florida Building Code established less than 30 days as the
identification of transient use.
Mr. Boucher reported that he met with the Fire Chief and his Assistant,
and the Building Official to discuss regulations for use. Discussion proceeded to the newer
three-story, town homes of 4,600 square feet to include an elevator. Mr. Boucher informed that the occupancy load
was 150-square feet per person that would allow for 30 people in the unit. Mr. Boucher stated that the key was the
maximum occupancy load. Ms. Roberts
stated that such places as the Ron Jon’s Cape Caribe Resort time-share have met
those requirements versus a change of use for residences that would have a
difficult time meeting the requirement.
Attorney Garganese stated that the Council was working with the issue of
whether or not to treat R-1, R-2, and R-3 the same as those structures used predominately
for short term leasing. He stated
further that from the Building and Fire Code standpoint these were considered a
different classification and subject to different building and fire code
regulations. Attorney Garganese
explained that when you look at the North American Industry Classification
System that identifies all particular types of commercial uses and provides an
industry classification, one of the uses was Lessors of residential buildings
and dwellings. It was considered a
sub-industry for real estate and rental and leasing, additional evidence that
these transient rental type establishments were a different
classification. Attorney Garganese
concluded that the Council would need to make that decision.
Mayor Randels asked the Council if they desired to continue the meeting
past the 10:00 P.M. hour to perhaps 10:30 P.M.
Council agreed by consensus to continue the meeting to 10:30 P.M.
Mr. Bob Baugher stated that for a change of use, there must be an
identification of zoning. Mr. Morley
prefaced the Building Code related to Residential Group R in that, “Residential
Group R includes among other the use of a building or structure thereof for
sleeping purposes when not classified as an Institutional Group I,” and the
Building Code proceeds to list the four.
He stated that Mr. Baugher’s hotel was a Group R and the houses and
transient residential were also Group R.
Mr. Morley clarified that the Building Code classifies hotels as
residential; however the City’s zoning code classifies hotels a permanent use
in the commercial district.
Attorney Garganese stated that any industry classification would make a
hotel a commercial use in terms of a zoning perspective. Attorney Garganese explained that the
industry classification that he mentioned to the Council described
establishments primarily engaged acting as Lessors of buildings used as
residents or dwelling, such as single-family homes. Attorney Garganese explained further that if
you were leasing a single-family home as a transient rental, that home would be
included as a commercial use for statistical purposes. Ms. Roberts added public
safety purposes as the reason.
Mr. Oliver of Country Inns and Suites informed that when he approached
the City to build a hotel the requirements were: in commercial zoning,
development of 150 units, and on at least 5 acres. Mr. Oliver stated in light of meeting the
requirements to build a hotel at great expense, he viewed it unfair to the
hotel industry to treat residences differently if they were operating in the
commercial environment. Mayor Randels
informed that the City was not aware that a change of use occurred.
Mr. Hermansen informed that under the codes in the City of Cocoa Beach,
the building code coincides between zoning and use. He stated that many of the people who
operated as transient rental property could find themselves out of compliance
with Federal and State regulations for life/safety issues. Mr. Hermansen
believed that City management had the right to enforce those rules as these
rental property licensees might think that the City has given them
authorization to conduct business. Ms.
Joyce Barry of 504 Tyler Avenue reported on a nearby townhome rental. She questioned use of a property if the deed
was identified as a residence. Mr.
Morley stated that one had the right to obtain a change of use and a deed was a
private restriction that was not recognized by the Florida Building Code. Attorney Garganese stated that in terms of
the City being informed that the property has become a transient rental would
lead to evidence, and then the situation would become a Code Enforcement
matter.
Mr. John Grandlich of Cape Caribe Resorts requested clarity on the
Council’s direction and if the Council was still seeking to regulate resort
dwellings of four units or less. Mr.
Petsos replied that he was still seeking to not allow resort dwellings in areas
of four-units or less. Mr. Grandlich
referred to the two documents Option One and Option Two drafted March 15,
2007. The Council replied that one of
the documents was relative. Mr.
Grandlich referred to the Option One Ordinance and noted the definition for
resort condominiums on Pages 6 and 9, assuming that time-shares were included;
it stated that density shall not exceed 15 dwelling units per acre, and
currently the zoning for hotels was 30 units per acres. Mr. Grandlich asked if
the Council planned to change zoning.
Attorney Garganese clarified that the Council was not seeking to discuss
resort condominiums at this time. The
Council would review Option One without reference to resort condominiums. Ms. Roberts added that at the previous
workshop the Council discussed permitted use in the C-1 zone only.
Mr. Boucher explained that there were two issues: 1) where would the
Council want those types of uses, and 2) the existing residential units
licensed by the State required a use classification change. Ms. Roberts stated that to permit the use
would change the residential zoning.
Mayor Randels said that the Council was recently informed that the
existing units were not properly classified for their use. Mr. Petsos clarified that Council’s
discussion was to consider transient residential dwellings in C-1 zoning, to
allow grandfathering of the existing units, and to set a timeframe for any one
who chose to comply with the standard.
Mr. Boucher stated that for any grandfathered property even though they
have a State license, they would need to demonstrate compliance with the local
permitting authority that they met the criteria for a change of use prior to
grandfathering them in. Ms. Roberts
expressed the danger of grandfathering these properties in with the potential
of unidentified safety related issues.
Mr. Hermansen stated that the City was permitting something that was
against Federal and State regulations.
He suggested separating the commercial use and if any owner decided to
seek a commercial operation then they should apply for a change use to the
extent that they meet the same code as the commercial area. Attorney Garganese reminded that the State of
Florida licensed seven of these resorts dwellings in the City without any
intergovernmental cooperation or coordination with the City.
Attorney Garganese questioned what would be done with these
non-conforming dwellings that have not complied with fire safety regulations,
would they be grandfathered in or eliminated.
He pointed out that they could be given a period of time to come into
compliance even though they were in the residential area. They could get
licensed by the State but also apply to the City for a change of use and then
submit to the fire and building code inspections within a certain period of
time, or they would be eliminated.
Ms. Alana Whitehead reported that her property was State inspected;
however, the State-licensing agent informed her that she was supposed to get a
fire inspection; however since the City would refuse to do it, the State did
not require one from the City. Mr.
Boucher concluded that communication between the State and the City has been
the problem. Mr. Morley recommended
to hear from Fire Chief Dave Sargeant.
Attorney Garganese recommended re-drafting Option No. 1 based on what
was heard at tonight’s meeting leaving the window of time blank and allowing
the use in C-1 zoning.
Ms. Roberts expressed her concern with the interim of time until for
these dwellings meet the standard. Mr.
Boucher replied that the Fire Chief would address each dwelling on a
case-by-case basis and he would discontinue use until it was found in
compliance. Attorney Garganese clarified
that his statement was not made to say that the City would not take enforcement
and inspection action now; however, there were issues that would be
administratively handled The Fire Chief
would speak to the opportunity for conformance.
Mr. Boucher stated that the properties could be inspected within the
next three weeks if the property owners were amenable. Mayor Randels concluded that there were seven
identified dwellings that staff would address.
14. Administrative Appeals related to the
Zoning Code of Ordinances.
This item will
be placed on the next City Council Regular Meeting Agenda.
REPORTS:
Due to the late hour, there were no reports.
AUDIENCE
TO BE HEARD:
There were no comments from the audience.
ADJOURNMENT:
There being no further business, the Chair adjourned the meeting at 10:30 P.M.
________________________________
Rocky Randels, MAYOR
________________________________
Susan Stills, CMC, CITY CLERK