CITY COUNCIL
REGULAR MEETING
CITY HALL ANNEX
TUESDAY
7:00 PM
MINUTES
CALL TO ORDER: In the absence of the Chair, Mayor Pro Tem Hoog 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
Acting Public Works Director Walter
Bandish
CONSENT AGENDA:
1. City Council Regular
Meeting Minutes of April 3, 2007.
2. City Council Regular
Meeting Minutes of May 1, 2007.
3. City Council Regular
Meeting Minutes of May 15, 2007.
4. Proclamation for
National Management Week. Rev.
Mayor Randels stated that the Conflict of Interest
Form completed by Mayor Pro Tem Hoog would be included with the May 15th
meeting minutes.
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 of the items for
discussion.
Ms. Roberts asked if the City
planned to do anything to honor its City management staff. Mayor Randels replied that none of City
management staff were members of the Florida Space Coast Council National
Management Association. Ms. Roberts
stated that the purpose of the week was to generically honor those in
management similar to her question at a previous meeting related to honoring
City staff during Public Works Week. She
asked if as a Council they could be thanked publicly as a part of this
forum. Mr. Boucher stated that he would
share her sentiments with staff during the morning meeting.
A motion was made by Mr. Nicholas and seconded by Mr. Petsos to Approve
Consent Agenda Items No. 1 through 3. 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:
Proposal for Sanitary Sewer Force Main Construction Support in the
Amount of $21,614.
Walter Bandish, Assistant
Public Works Director, explained that this was project management related to a
critical line and an on-site engineer was needed to oversee the project. Mayor Randels explained that the firm would
also produce the as-built drawings and submit a Certification of Construction.
Ms. Roberts questioned Task 5 related to negotiation of change orders. Mr. Bandish replied that this would assist in
adherence to the budget. Mayor Randels
called Mr. Davies to the podium.
Mr. Steve Davies, General
Contractor and Project Engineer, of Brown and Caldwell, explained that the
concept of the change order was to reduce the price. Mr. Davies explained how some things might
not be required; however, they would proceed with anticipated caution. Mr. Davies stated that in crossing State Road
A1A they might want to directional drill versus jack and boor. Mr. Davies informed that Expertech developed
several ways to make the job more effective. Mr. Petsos questioned the number
of monthly meetings related to separate tasks. Mr. Davies stated that $11,800
was calculated for meetings. However, he
said that a fewer number of meetings would decrease costs.
Mr. Davies stated that his goal
was to find enough funding to pay the engineer.
Mayor Randels pointed out that there was funding for one Change
Order. Mr. Davies responded that one
Change Order meeting was planned with Expertech. Mayor Pro Tem Hoog replied that the price was
fair and if he could save the engineering fees that would be beneficial. Mr. Davies explained how they developed a
bare bones concept. Mayor Pro Tem Hoog
expressed the possibility of an obstruction.
Mayor Randels questioned Ms. June Smith as the monitoring manager. Mr. Davies informed that Ms. Smith’s had
returned to work part-time. Mr. Davies
informed that he is a Project Manager and logically he served in the interim
and Ms. Debra [Ingersoll] Cole would sign and seal the documents for the
State. Mr. Davies responded to Ms.
Roberts that he resides in Orlando; however, he would be on-site during the
project. Mr. Davies also informed that
the project would begin within 45-days from the signed contracts and receipt of
the shop drawings related to purchasing materials.
A motion was made by Mayor Pro Tem Hoog and seconded by Mr. Petsos to
Approve the Proposal for Sanitary Sewer Force Main
Construction Support in the Amount of $21,614.
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: Request for State and Federal
Transportation Project Funding. Rev.
Mayor Randels reviewed the
previous year’s projects: 1) Reconfigure alignment of intersection of State
Road A1A, International Drive and N. Atlantic Avenue (Old State Road 401); 2)
Construct a pedestrian overpass at State Road A1A and Columbia Drive;
3) Install a traffic signal with pedestrian features at State Road A1A and
Columbia Drive; 4) Install an overhead boom/ mast arm signals at (4) locations
at State Road A1A; 5) Street lighting plan and implementation at State Road
A1A; 6) Synchronize traffic lights on State Road A1A; and 7) Design and
construct an urban roadway profile for State Road A1A.
Mr. Boucher informed that only
Item No.1 made the list. Mayor Randels
noted that today’s tragic accident was an indication that action was needed.
Mr. Boucher reported that the Florida Department of Transportation had not
implemented any of the items on the project-funding list to date since
1999. Ms. Roberts questioned the
Columbia Avenue overpass as well as pedestrian traffic signals that appeared to
be conflicting. Mayor Randels clarified
that those projects were listed for either one but not both. She also questioned the street lighting plan
and implementation. Mr. Boucher replied
that this was part of the 1999 plan. Ms. Roberts mentioned to include these
projects in the City’s strategic planning session.
Mr. Boucher stated that all of
the justification and community input was done as well as the associated
funding costs and the awaited decision was from the Florida Department of
Transportation. Ms. Roberts mentioned
that the project was eight years old and discussion reflective of the newer
members in the community might be warranted. Mr. Boucher informed that Mr.
Mayors now serves on the Brevard Metropolitan Planning Organization and he
could argue the points in favor of priority.
Mr. Petsos stated that Item Number 7, to design and construct curbing
for State Road A1A, had a major impact to the City. Mayor Randels clarified Mr. Nicholas’ request
to re-prioritize Item Number 7 up to Second place and reorder Items Numbers 3
through 6 accordingly. Ms. Roberts suggested revisiting this
discussion during the year as an Action Item in anticipation of the coming
year.
A motion was made by Mr. Nicholas and seconded by Ms. Roberts to
Re-Prioritize the
Request for State and Federal
Transportation Project Funding Moving Item No. 7 to the Second Place and
Reordering Items 3 through 6. 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.
A motion was made by Mr. Nicholas and seconded by Ms. Roberts to Submit
the Request for State and Federal Transportation Project Funding. 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.
ORDINANCES:
First Public Hearing:
7.
Motion to Approve: Ordinance No. 04-2007,
Amending Chapter 110, Clarifying the Intent of the R-1, R-2, and R-3
Residential Zoning Districts, Defining the Terms “Resort Dwelling” and “Resort
Condominium,” for Second Reading.
Mayor Randels
summarized that the proposed Ordinance would prohibit Resort Dwellings and
Resort Condominiums within the R-1, R-2, and R-3 Residential Zoning Districts
and Provide a Permitted Use in the Commercial Zoning District. The proposed
Ordinance establishes non-conforming use status for expiration.
Mayor Randels
explained that discussion elevated from a parking, garbage issue to a life/
safety issue. Mayor Randels commended
the Planning and Zoning Board for their efforts. Mayor Randels asked the audience to refrain
from extraneous comment in order to allow the Council ample discussion time on
the issue. Mayor Randels review the six
items attached to the City Manager’s report as: 1) Proposed Ordinance #04-2007;
Planning & Zoning Board recommendation letter; Building Official’s 05/29/07
memo for changing occupancy classification; City Manager’s analysis of
01/05/07; Building Official’s 03/21/07 memo on occupancy classification; and
the City Planner’s consistency review memo of 05/16/07. The Ordinance was properly noticed as a First
Public Hearing.
Attorney
Garganese stated that it might be beneficial to address the resulting flow
chart from the Planning and Zoning Board meeting that he used to draft the
Ordinance. He explained that there were
stringent Building and Fire Code requirements that would apply to Resort
Dwellings and Resort Condominiums. He referenced the flowchart that showed how
in, “not allowing resort dwellings, then no enforcement was required. However, if the Council decided to change the
Code, then the concept would allow “Resort Dwellings” and “Resort Condominiums”
as an authorized use, they would need to be defined in the City Code, and they
would be allowed as an existing use in some zoning district. According to the flowchart, the Planning and
Zoning Board recommended to allow these uses in the C-1 zoning district
provided a residential special exception was granted. As a result, these were subject to Building
and Fire Code Inspections, State licensure of the units before they were
allowed to operate as well as an appropriate Certificate of Occupancy.
Attorney
Garganese related that the Building Official testified that there were different
Certificates of Occupancy requirements for Resort Dwellings and Resort
Condominiums. Attorney Garganese
concluded that the existing Resort Dwellings would be grandfathered under
certain circumstances. Individuals would
have to register their intent to have a Resort Dwelling or Resort Condominium
with the City Manager. Within 30 days of
registering their intent, they would need to submit a life/ safety plan with
the Building Official which would basically explain what they intend to do to
bring the unit into compliance with building and fire codes. Within 90 days thereafter they would need to
file the actual plans and specifications to do the work required to bring them
into compliance with building and fire codes.
All of this would need to done within one year with extensions of time
granted with good cause shown to the building official and fire chief. Finally, these resort dwellings and resort
condominiums would not be allowed in
any other zoning district.
Attorney
Garganese reviewed the Ordinance and referred to Pages 3 and 4 for the
statutory definitions of Resort Dwellings and Resort Condominiums. Attorney Garganese referred to Subparagraph
(15) of the proposed Ordinance which read, “Resort dwellings or resort
condominiums duly licensed by the State, provided a special exception for a
residential dwelling has been granted for the subject property. “ Attorney Garganese then referred to
Subparagraph (1) Section 110-485(a), Non-conforming Use Status that requires
that the owner file a Notice of Intent with the City Manager. Mr. Petsos asked if the language related to
existing dwelling units. Attorney Garganese replied any dwelling units.
Attorney
Garganese proceeded to Subparagraph (2) and clarified that if the owner failed
to obtain the licensure and Certificate of Occupancy, then they were barred to
obtaining that type of use. Attorney Garganese reviewed Subparagraph (4) that
outlines the owner’s responsibility to comply subject to the Building Official
and the Fire Chief. Attorney Garganese
referred to Page 8 and outlined how one could lose non-conforming status. Lastly, Subparagraph (d) emphasized that
resort dwellings and resort condominiums must meet the City’s zoning and
Certificate of Occupancy requirements and the City could seek injunctive relief
for non-compliance. On a final note,
Section 110-486 reads that, “It shall be unlawful for any person to rent a
dwelling unit for less than seven (7) consecutive days.
Mayor Randels
reviewed the content of the Planning and Zoning recommendation letter stating
that the Board did not desire to see resort dwellings in the R-1, R-2, and R-3
but in the C-1 zoning district. Mayor
Randels also noted that anyone who has been or desired this use has a 30-day
window from the approval of this Ordinance.
Mayor Randels reviewed the studies performed by the City Planner seeking
to find if resort dwellings and resort condominiums were consistent. Todd Peetz
submitted a report determining that the businesses were not favorable in the
R-1, R-2, R-3 zoning districts along the ocean or the river. Ms. Roberts thanked the City Attorney, and
Dave Sargeant, Fire Chief, and Todd Morley, Building Office for their input
during the discussion.
Mayor Randels
read Ordinance No. 04-2007 by title.
AN ORDINANCE OF THE CITY OF CAPE CANAVERAL,
FLORIDA, AMENDING CHAPTER 110, ZONING, OF THE CODE OF ORDINANCES; CLARIFYING THE INTENT OF THE R-1, R-2 AND
R-3 RESIDENTIAL ZONING DISTRICTS; DEFINING THE TERM “RESORT DWELLING”; DEFINING
THE TERM “RESORT CONDOMINIUM”; PROVIDING FOR THE LOCATION AND REGULATION OF
RESORT DWELLINGS AND CONDOMINIUMS UNDER CONDITIONS STATED HEREIN; AMENDING THE
SUPPLEMENTAL ZONING DISTRICT REGULATIONS TO RESTATE THAT ANY RENTAL OF A
DWELLING UNIT SHALL BE FOR A MINIMUM OF SEVEN (7) DAYS; PROVIDING FOR THE
REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; INCORPORATION INTO THE
CODE; SEVERABILITY; AND AN EFFECTIVE DATE.
Mr. Nicholas
questioned the “no” side of the flow chart and said that a no would still allow
for 7-day rentals. He concluded that
whether or not the Code was changed, the City would still allow for a minimum
of 7-day rentals. Attorney Garganese
affirmed. Mr. Nicholas stated that the
7-days rentals concerned him. Attorney
Garganese stated that it was a carry forward.
Mr. Nicholas stated discussion appeared to ultimately return to the same
position; a permitted minimum 7-day rental of only three times per year. Attorney Garganese affirmed and stated that
doing so would not incur the licensing or Certificate of Occupancy requirement. Ms. Roberts questioned the terminology
related to resort dwellings and asked if that was an all-encompassing dwelling
unit. Ms. Roberts questioned if each
unit owner would need to be licensed?
Mr. Boucher confirmed that one manager could handle all of the
licensing.
Mr. Boucher
replied that one resort condominium dwelling was under State enforcement
proceedings. Mayor Pro Tem Hoog
questioned how one agent could represent more than one condominium. Mr. Boucher affirmed that that was
permissible if that individual were properly licensed by the State. Ms. Roberts expressed concern that the
license given to the larger community could result with a possible loss of a
licensing provision. Mr. Boucher
explained how the requirement would apply to a unit owner versus the entire
condominium. Ms. Roberts referred to
Page 8, under Subparagraph (3) and asked if the provision was referring to
normal citizen complaints. Mr. Boucher
stated the provision was addressing life/ safety type issues. Ms. Roberts expressed a concern from the
previous Planning and Zoning Board discussion and asked if one year were long
enough to obtain the licensing and the required provision in light of extension
with good cause. Mr. Boucher stated that
he would defer to the Fire Chief and the Building Official.
Fire Chief
Dave Sargeant replied that the first issue was the number of people that
registered with the City Manager and from that point inspections would
follow. Chief Sargeant stated that if
plans were submitted within 90 days and a permit was issued, then the
application would have to meet the requirements. Ms. Roberts stated that one of the residents
of the community brought up the question of transient dwellings and how the
ordinance would address transient apartments, rooming houses, and bed and
breakfasts. Attorney Garganese replied
that the Council would address the transient use called hotel and motel that
was in the Code. He stated that the
Ordinance did not specify other transient uses that were licensed by the
State. However, the Council had a
blanket protection with the use of its minimum of 7-day rental provision. At this time, discussion on other transient
dwellings could occur at another date.
Ms. Roberts stated that some of the residents would express the concern
that the Council was addressing the issue in a piece-meal and not a whole
fashion.
Todd Morley,
Building Official, reminded the Council that the Florida Building Code
addresses those instances which Ms. Roberts listed under the R-1 occupancy classification
use and would still require that the life/ safety issue be met; however,
whether it was a permitted zoning use was another issue. Attorney Garganese pointed out that he did
not believe that the Code allowed transient apartment complexes. Mr. Boucher informed that under the State
Statute for transient apartments, 25 percent could be rented for short-term as
long as 75 percent of the complex was long-term rentals.
Ms. Roberts
said that the State Statute did not address percentages of transient
dwellings. Ms. Roberts recommended the
inclusion of transient apartments, rooming houses, and bed and breakfasts. Attorney Garganese reminded that the
Ordinance was advertised related to Resort Dwellings and Resort
Condominiums. Attorney Garganese stated
that in his opinion, adding another category of use would require the Council
to begin a new discussion. He stated
that this would, however, delay the process.
Mr. Nicholas agreed with the City Attorney and stated that this would
require yet another advertisement and therefore would waste the time and money
on this particular issue. Ms. Roberts
recommended strongly that the Council move to add this to the other
definitions. Mr. Petsos agreed with Ms.
Roberts on the need to proceed and give clear direction to the Building and
Fire Departments.
Mr. Petsos
expressed that the Ordinance was adding a window of time to allow for
additional properties for resort dwellings in residential zoning when these
were not in the right zoning. He
expressed this as an error upon an error.
Mr. Petsos also expressed an amortization of the four or less
units. Mr. Petsos stated that once the
Fire and Building Inspectors write up their findings, are the existing units
allowed to operate while they come into compliance. Chief Sargeant stated that permission to
operate depended on the life/ safety plan presented to the Fire Chief and the
Building Official. He stated that when
the residence becomes a transient rental, then there must be a life/ safety
requirement.
Chief Sargeant related why Cape Winds was in
compliance at this time; however, would not be if they did not present an
acceptable life/ safety plan. Mr. Morley
added that if they did not have the requisite Certificate of Occupancy, they
were operating illegally and would not be allowed. Attorney Garganese stated that he agreed with
the Building Official on having a Certificate of Occupancy and to have the
State licensure to operate. Attorney
Garganese stated that the City should not condone that at all. Attorney
Garganese replied to Ms. Roberts that the Building Official has cease and
desist powers under the Florida Building Code that would not permit any
additional short-term leasing and the City had the ability to seek an
injunction for non-compliance.
Ms. Roberts
questioned if this would require significant resource burden on the Fire
Department. Chief Sargeant affirmed that
it would be significant based on the number of units. He also informed of an imminent new fee
schedule. Ms. Roberts asked a second
question, if it were clear to the community that homestead status would be
lost. Attorney Garganese affirmed that
the community would be informed. Ms.
Roberts also asked Mr. John Grandlich that the time-share owner owned for the
week or was the rental an exchange. Ms.
Roberts asked for clarification of the time-share ownership. Mr. John Grandlich, of the Ron John Cape
Caribe Resort, explained how since there were 52 weeks in a year a unit could
have 52 individual owners.
Mr. Grandlich
explained that the owners had the option to occupy the unit, or exchange the
unit, or rent the unit and a management agent would rent the unit through the
Association. He stated that typically 20
to 30 percent of the owners might rent their units; however, typically the
amenities were conducive of ownership.
Attorney Garganese asked what percentage of the units was rented out
more than three times in a given year.
Mr. Grandlich replied that there were 52 owners and if they did not use
their unit, they would attempt to rent the unit. The effort was to find some use for that
unit.
Attorney
Garganese asked how many people were licensed by the State. Mr. Grandlich responded that the Association
applied for the license and then the managing agent would have a Broker’s
license or be licensed by the State. Mr.
Grandlich responded that the Resort Condominium fell under Section 721 of the
Time Share Act. Mr. Nicholas asked if
there were more than three violations, does the entire organization lose its
licensure. Mr. Grandlich questioned if
the City had now included a previously approved Site Plan in its revised
Ordinance. He asked if that was the Council’s intent. He stated that there were three additional
buildings to be constructed in the City’s R-3 zoning. Mr. Grandlich stated that the resort however
was up to code.
Attorney
Garganese explained how the Site Plan was a vested Site Plan. The intent was
established. Mayor Randels also
clarified that the Site Plan was vested.
Mr. Nicholas re-stated that if they were under blanket licensure and
there were more than three violations what would occur. Mr. Lamar Russell stated that the unwritten
idea in the Ordinance reads that a person has 30 days to register, 30 more days
to submit a plan and 360 days to come into compliance and after that, the time
expired.
Attorney
Garganese explained that the intent was to address existing units; however,
Cape Caribe was an anomaly with a very limited issue of a vested plan. Mr. Grandlich explained that the Association
was licensed under Florida Statutes Section 721 of the Time Share Code that
describes the plans and accommodations for that unit. If you are the owner for that one-week, you
ask the Association to handle the rental.
Mr. Boucher explained that if there were violations related to one unit,
then that one unit might fall out of the rental cycle under the City’s
regulations. Mr. Grandlich stated that
he believed the Association was licensed.
Mr. Grandlich explained that Mr. Boucher was looking at one unit, but 52
owners. He stated that he would need to
review State Statute 509. Chief Sargeant
stated that whether they were willfully negligent makes the difference. Mr. Grandlich replied that the City was
giving Notice and the managing agent was responsible for the unit. Mr. Nicholas requested more research on this
subject. Attorney Garganese clarified
that the violation of more than three times in three years was the threshold.
Ms. Roberts
raised the category of exchange practice. Mr. Nicholas replied that the practice
could vary based on 52 weeks and the change of ownership. Mayor Pro Tem Hoog
asked about Resort Condominiums in the C-1 zones. Attorney Garganese reminded that residential
Special Exceptions were no longer allowed in the C-1 zoning district based on
an Ordinance that the Council previously passed. He clarified that if the residential zoning
special exception had been granted or a new Special Exception for residential
for C-1 was only allowed on North Atlantic Avenue. Ms. Roberts replied that she hoped not to see
a proliferation of them on North Atlantic Avenue either. Ms. Roberts requested to address the
transient apartments, rooming houses, and bed and breakfasts. Mr. Boucher summarized that this would be a
separate Ordinance. Mr. Boucher also
pointed out that the owner was required to obtain a Certificate of
Non-Conformity status under this Code section.
Mr. Boucher solicited Council’s input related to the Building Official
and City Attorney’s opinion stated that to operate without compliance was in
violation of the Code.
Ms. Roberts
stated that there were still three opportunities within the provision of the
Ordinance allowing for short-term rental.
She expressed that the City would want them to cease and desist on the
short-term rentals except for the three times per year. Mr. Petsos stated that
anything more than the time was a life/ safety issue. Ms. Roberts pointed out that a person was not
put out of business they would still be able to operate. Attorney Garganese clarified that once
someone triggered the threshold as a resort dwelling or resort condominium then
they would come under the life/ safety code.
Attorney Garganese clarified further that they could rent their unit for
30-day periods for up to three times per year.
Mr. Morley
stated that that was a Florida Building Code Occupancy Classification for R-2,
R-3 of more than 30 days. Mayor Randels
questioned if occupancy could occur sporadically. Mr. Morley clarified that as soon as they
operate under the more hazardous use then they fall under the requirements of
the more hazardous use. Mr. Harry Pearson, Planning and Zoning Board Member,
explained how two things trigger the operation as a short term rental: 1) less
than a thirty (30) day rental, and 2) if the unit was advertised as such. Ms. Roberts asked if advertising was a
distinction. Attorney Garganese
clarified that if the unit was advertised as a place of rental for a period of
less than 30 days that would affirm the distinction. Mr. Morley clarified for the record that when
it comes to grandfathering the extension for good cause shown, it only applies
to the 365-day mark.
Ms. Leah
Selig questioned if someone had a single-family residence that met the criteria
to be grandfathered in and they comply with all of the standards and
regulations, is that grandfathering as long as it continues to meet transfer of
ownership. Mr. Nicholas pointed out that
this was relative to Mr. Petsos’s question related to amortization. Mr. Petsos stated that he was awaiting a
motion to make an amendment to the motion.
Attorney Garganese clarified for Ms. Roberts that he recommended
removing the provision of transferability from the Ordinance. He expressed that there was sufficient legal
authority to declare that type of provision unlawful and he therefore
recommended removing the provision.
Ms. Roberts
pointed out that a new property owner was required to be duly licensed. Attorney Garganese replied to Ms. Roberts
that one-way to address it was that the new owner would need to be duly
licensed. As a buyer, one would need to
be duly licensed at the time of property transfer. Ms. Roberts expressed that she did not desire
to see the owner convey the property with a non-transferable right. Mr. Boucher stated that the Certificate of Non-Conforming
Status would spell out how an application could be lost. Ms. Roberts mentioned that if a condominium
had an association management change then to make sure that the license
continues. Attorney Garganese concluded that if the property owner sells then
the new buyer must be licensed by the State.
Mr. Petsos
referred to the City Attorney’s recommendation to remove the provision related
to transferability. He questioned if
amortization would be a defensible clause.
Attorney Garganese affirmed. Mr. Petsos clarified that he was seeking a
20-year amortization schedule after which the non-conforming use status would
no longer be a permitted use.
Mayor Pro Tem
Hoog questioned why “resort condominiums” were being removed from the amended
motion. Mr. Petsos replied that four or
less did not for the most part have property management. Ms. Roberts expressed her concern with some
of the approved establishments. Mr.
Grandlich stated that what the Council was discussing would significantly
impact time-shares. Mayor Pro Tem Hoog
stated that this would not apply the Ordinance fairly. Ms. Roberts stated that over the time of the
Ordinance, the resort dwellings would transition out. Mr. Petsos stated that he was looking out for
the benefit of the citizens. He
expressed that there were too many areas in the City where residents tolerate
constant noise already.
Ms. Roberts
suggested bringing up Mr. Petsos’s point on amortization at the same time as
the other previously mentioned points aside from the main motions. Attorney Garganese clarified that he did not
believe that the Council would be legally prohibited from imposing an
amortization provision at a later time as long as the Council met the
requirements for amortization provisions.
Ms. Roberts stated that if the Council could make progress at this
meeting, then the amortization period could be added later.
Mr. Nicholas
stated that if the City imposed the amortization schedule, that would allow
more time for more applicants for resort dwellings to come in. Mayor Pro Tem Hoog stated that personally he
was ready to support the Ordinance as written; however, the changes would need
to apply fairly to all. Mayor Pro Tem Hoog
stated that he did not desire to take away a right and he would not support the
ordinance due to the amendment.
Mayor Randels
expressed that he shared the concerns with someone who purchased a
single-family residence and one who purchased a condominium. Ms. Roberts stated that the nuisance
ordinance could provide for more stringent regulation and be tied back to this
ordinance as a short-term rental issue.
Mr. Petsos clarified that they would still have the home with the right
to rent for 30 days or more. Ms. Roberts
expressed that the chronic nuisance Ordinance would allow for more regulation
and would point out the potential loss of license. Mr. Petsos offered to withdraw his
amendment. Mr. Attorney Garganese
stated that under Robert’s Rules of Order, the Council would need unanimous
consent on the amendment to the main motion.
An amendment to the main motion was made by
Mr. Petsos and seconded by Mr. Nicholas for a proposed 20-year amortization
schedule in the Ordinance related to the non-conforming use status for resort
dwellings which would cease to exist after that time. The vote on the motion failed 3-2 with
voting as follows: Mayor Pro Tem Hoog,
Against; Mr. Nicholas, Against; Mr. Petsos, For; Mayor Randels, For and Ms.
Roberts, Against.
Mr. Nicholas
expressed that the minimum 7-day rentals should not be allowed in the R-1
zones. He recommended an amendment to
change the 7 days requirement to 30 days in Section 110-486. Mr. Randels clarified that this would apply
to all including the C-1 zoning district and he concluded that such an action
would eliminate the hotels. Mr. Nicholas
expressed that his main concern was in the R-1 zoning district. Mayor Randels pointed out that a provision on
the 7-day rental would require re-advertisement. Attorney Garganese affirmed and stated that a
change to the 7-day rental provision would require re-advertisement and this
could be included in the discussion on the transient apartments, rooming
houses, and bed and breakfasts.
A motion was made by Mr. Nicholas to
prohibit 7-day rentals in the R-1 zone.
The motion failed for lack of a second.
Mr. Van
Townsend questioned if the Ordinance would apply to any new time-shares in the
City and the Port 30-days after the Council’s decision. Mayor Randels clarified that the City did not
control the Port and he clarified that the Cape Caribe Resort has a vested site
plan. Mr. Townsend stated that no new
time-shares would be available to move into the area. Attorney Garganese stated that the Ordinance
would prohibit new time-shares in the R-1, R-2, and R-3 zoning districts;
however, new time-shares would be allowed in the C-1 zoning district. Mr. Townsend pointed that no more resort
dwellings would operate within six to seven years and would therefore be
eliminated. Mayor Randels concluded that
that was in effect the intent of the Ordinance to eliminate resort dwellings in
the residential zoning districts.
Discussion
concluded that time shares would be allowed in C-1 zoning after the ordinance
was adopted. Mayor Randels then informed that a referendum was passed to
prohibit businesses on the ocean or the river.
Mr. Townsend stated that he did not see any distinction between a
time-share and a resort dwelling. Mayor
Randels replied that there was a distinction.
Mayor Randels stated that a time-share was a type of ownership. Mr. Townsend stated that it was a type of
ownership in which 52 people owned a unit and then rented the unit out for
7-days or less every year. Mr. Townsend
commented in conclusion that in his experience, the vacationer did not cause
any trouble but the long-term renter, and he said that the nuisance ordinance
should apply to all rentals. Mayor
Randels informed that the City was working on a chronic nuisance
ordinance. Mr. Townsend stated that with
the State license for resort dwellings, if one does not comply, the license was
revoked for one year; however he questioned if in the City this was
irrevocable. Mayor Randels concurred
that there were three attempts to correct violations and upon the forth
violation the license was taken away.
A motion was made by Mayor Randels and
seconded by Mr. Nicholas to Approve Ordinance No. 04-2007, Amending Chapter
110, Clarifying the Intent of the R-1, R-2, and R-3 Residential Zoning
Districts, Defining the Terms “Resort Dwelling” and “Resort Condominium “ at
First Public Hearing. 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.
REPORTS:
1. City Manager
·
Mr.
Boucher informed of the closing on the
Kabboord and Marder property on Friday, June 8th.
·
Mr.
Boucher reported that there would be a Resolution to the Florida League of
Cities to make the City eligible to recoup some of the funding related to the
purchase.
·
Mr.
Boucher informed that he received a
letter from an attorney representing one of the residents in the Holman
Road area and he asked if the Council chose to ask the homeowners to come to
the next meeting. Mr. Petsos suggested a
spokesman. Mr. Boucher concluded that
staff would notify the residents prior to the July meeting.
·
Mr.
Boucher thanked the Fire Chief, the
Building Official and the Planning and Zoning Board for their assistance
with the Resort Dwelling/ Resort Condominium ordinance.
2. Staff
Building Official
·
No
report.
City Clerk
·
Ms.
Stills reminded the Council to complete their Financial Disclosure Forms due on July 1st.
City Attorney
·
Attorney
Garganese referred to his legal opinion regarding the upcoming hearing before
the Board of Adjustment related to public’s right to speak at the Coastal Fuels Hearing. His view was that they have a limited
statutory right because of the relevancy of what could be presented by the
public. He informed that as he
anticipated because of that Opinion there would be a Declaratory Relief/
Injunctive Relief Action filed against the City in the next few days related to
not accepting public input at the Board of Adjustment meeting on June 14th.
Attorney Garganese stated that once the suit was filed and staff reviewed it,
they would need to determine if it was in the City’s best interest to proceed
with that Hearing on June 14th. Staff
did not choose to make that call until they have an opportunity to review the
suit. He stated that the City was put on
Notice by letter before he wrote his Opinion in that the public did not have
the right to participate because of due process concerns and they would seek
Declaratory Relief if it was the City’s position that they had a right to
speak. Attorney Garganese stated that in
his Opinion the public had a limited right to speak. His Opinion hinged on whether a Court would
determine that the Administrative Appeal was a quasi-judicial action. Because if the Court determined that it was
not quasi-judicial, then that Statute would not apply. If the Statute applied, he stated that there
were more issues than whether or not the public has a right to speak because
there were provisions in the Statute that he believed were unconstitutional
because they violate due process. He
noted that in footnote one of his Legal Opinion. Attorney Garganese concluded that he had
serious resignations about an applicant not having the right to cross-examine
people who want to testify against them in a quasi-judicial hearing. In his opinion, that was not right. The Statute does not allow cross-examine of
members of the public that come to speak in a quasi-judicial hearing. Attorney Garganese concluded that the
Legislature thought that they could Statutorily take that right away. Attorney Garganese informed that both
Attorney Torpy and the Building Official’s Attorney, Karl Bohne, were aware of
these issues.
AUDIENCE TO BE
HEARD:
There were no comments from the audience.
3. City Council
There were no reports
from the Council at this time.
ADJOURNMENT:
There being no further
business, the Chair adjourned the meeting at 10:12 P.M.
__________________________
Rocky
Randels, MAYOR
________________________________
Susan Stills, CMC, CITY CLERK