1 Legal Requirements and Procedure as to Variances for Height or Density Beyond Charter Imposed Limits; Charter Provisions as to Disaster and Non-Casualty Build-Back; Identifying Conflicts, Inconsistencies and Legally Challengeable Sections of the Regulations Including Possible Adjustments to the Land Development Code and/or Comprehensive Plan. CITY OF COCOA BEACH Marsha Segal-George March 3 rd, 2014
2 Introduction Answers to the legal questions posed by the Planning Board involve interpretations of the City Charter, City Land Development Code and the City Comprehensive Plan. The regulations as to height and density were legislated in most cases based upon the various referenda that went to a vote of the residents. These referendum questions form the underpinnings of the legislation that will be discussed so let s start with the various referendum questions and see what was voted for. (Based on Summary Document from Clerk s Office)
3 History January 20, 1998 Charter restriction on height to 85 feet above mean sea level-- passed by 85%. November 7, 2000 Charter 6.01 density limits be amended to change density provisions for permanent occupancy dwellings from 15 units to 10 units/acre and for transient from 40 units to 28 units per acre but buildings inexistence as of November 20, 2000, damaged by disaster may be repaired or rebuilt to their original density passed by 72.3% --***not adopted court ruling to withdraw the ballot. July 10, 2001 Charter 6.01 density limits again challenged in court not adopted. April 19, 2001 tried again on density limits challenged didn t go to a vote.
4 History November 6, 2001 Charter 6.01 density limits, 15 to 10 for permanent occupancy dwellings and for transient lodgings; Charter 6.04 reducing building height from 85 feet above mean sea level to 45 feet above the grade of the building same exception for building in existence before July 19, 2001 and allows for procedures for variance this one went to court also on a challenge because it didn t go to the Planning Board first but it appears that the court upheld amendments 76% and 77%. June 6, 2002 Ordinance 1328 amends the Comprehensive Plan of the City of Cocoa Beach by amending the Future land use Element and adds new Policies and Limiting Maximum Allowable Building Heights and allowable Densities (and Intensities) City Wide. November 5, 2002 it appears that the Charter 6.01 on Density and Charter 6.04 on Height was placed on ballot again (only difference on density or height questions was that 6.04 on Height did not include the language and allows for procedures for variance ) with an additional Question - Charter 6.07 Comprehensive Plan Adoption Requirements Require an affirmative vote by 4 City Commissioners for any adoption or amendment to the City s Comprehensive Plan, except for issues increasing permissible building and structure height or development density which would require an affirmative vote by 5 City Commissioners -- Density 76%; Height 77% and Comprehensive Plan Adoption 64.61%.
5 Ballot Language November 5, 2002 "HEIGHT LIMITS" Shall City Charter Section Building Height Limits, be amended to: Reduce maximum height of structures, including attachments, from eighty-five (85) feet above mean sea level to forty-five (45) feet above crown of abutting road; and, allow rebuilding structures to existing height if damaged or destroyed by disaster? "DENSITY LIMITS" Shall City Charter Section Density Limits, be changed: for permanent occupancy dwellings decreased from fifteen (15) to ten (10) units per acre; and for transient accommodations decreased from forty (40) to twenty-eight (28) units per acre; and, by removing provisions for granting higher densities? "COMPREHENSIVE PLAN ADOPTION REQUIREMENTS" Shall City Charter Article VI be amended by adding Section Comprehensive Plan Adoption Requirements, to: Require an affirmative vote by four (4) City Commissioners for any adoption or amendment to the City's Comprehensive Plan, except for issues increasing permissible building and structure height or development density and/or intensity which would require an affirmative vote by five (5) City Commissioners?
6 Relevant City Documents The Cocoa Beach City Charter Land Development Code City of Cocoa Beach Comprehensive Plan Now let s look at the documents that will control our discussion.
7 The City Charter The City Charter is the Constitution for the City. Power is vested in the Preamble and Article 1, Section Provisions concerning, height, density and comprehensive plan amendments are found in Article VI, Planning, Zoning and Development. Relevant Sections of Article VI include: Residential Density Limits Building Height Limit Comprehensive Plan Adoption Non Casualty Loss Rebuild
8 Preamble to the City Charter The Preamble states; We, the people of Cocoa Beach, Florida do ordain and establish the Municipal Charter of 1959 and do further ordain that the City of Cocoa Beach and its government shall use this Charter to further the interest of all citizens of Cocoa Beach in the establishment of a low density residential and family oriented resort community with paramount consideration given to the health, safety, welfare, comfort and quality of life for all its citizens.
9 Article I, Section Powers The City of Cocoa Beach shall have all governmental corporate and proprietary powers to enable it to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes as provided by law. This Charter hereby establishes the separation between legislative and executive functions of the City of Cocoa Beach government. The establishment and adoption of policy shall be the responsibility of the City Commission. The execution of that policy shall be the responsibility of the City Manager. The provisions of this Charter are not intended and shall not be construed to conflict with the Constitution of the State of Florida or with special law approved by vote of the electorate.
10 Section Residential Density Limits. Section Residential density limits. No part of the City of Cocoa Beach shall be zoned into a residential density greater than ten (10) dwelling units per acre for permanent occupancy dwellings, or twenty-eight (28) units per acre for transient accommodations (motels, hotels). There shall be no fractional weighting of dwelling units. The city commission may grant a variance to individual parcels upon petition and proof that the variance will not be contrary to the public interest when, owing to special conditions, a literal enforcement of this section would result in unnecessary hardship. To grant such a variance, the city commission must make findings of fact that the petitioner has met the legal standards for variance set forth in the City of Cocoa Beach Code of Ordinances, and the variance must be approved by a concurring vote of (4) members of the City Commission after due notice and public hearing. A request for a variance will be considered after a written petition is submitted to the city commission indicating the grounds on which the variance is sought. After the petitioner has submitted a sufficient petition, the request must be scheduled for public hearing before the city commission as expeditiously as possible, but not earlier than thirty (30) days from the da of submission of a sufficient petition. Notice and hearing requirements for such variance shall be in accordance with the provisions of such variance shall be in accordance with the provisions for variance as set forth in the City of Cocoa Beach Code of Ordinances. Transient accommodations shall not be converted to permanent occupancy al densities exceeding the limits of this section. Except as provided for in Section 6.09 of this Charter as set forth below, structures if razed shall be replaced only by structures which, if residential, conform to density limits of this section. (emphasis added casualty loss provision no time limit) No owners of dwelling units destroyed or substantially damaged by explosion, fire, flood, wind, erosion, or other disaster shall be denied the right either to rebuild to raze and rebuild the same number of dwelling units in the same location.
11 Section Building Height Limit Section Building Height Limit. No structure, no part of any structure, and no attachment to any structure shall be erected to a height greater than forty-five (45) feet above crown of abutting road. Structures, if razed, shall be replaced only by structures which conform to the height limits of this section. No owners of structures destroyed or substantially damaged by explosion, fire, flood, wind, erosion, or other disaster shall be denied the right either to rebuild or to raze and rebuild to the same height in the same location (emphasis added casualty loss provision no time limit). The city commission may grant a variance to individual parcels upon petition and proof that the variance will not be contrary to the public interest when, owing to special conditions, a literal enforcement of this section would result in unnecessary hardship. To grant such a variance, the city commission must make findings of fact that the petitioner has met the legal standards for variance as set forth in the City of Cocoa Beach Code of Ordinances, and the variance must be approved by a concurring vote of four (4) members of the city commission after due notice and public hearing. A request for variance will be considered after a written petition is submitted to the city commission indicating the grounds on which the variance is sought. After the petitioner has submitted a sufficient petition, the request must be scheduled for public hearing before the city commission as expeditiously as possible, not earlier than thirty (30) days from the day of submission of a sufficient petition. Notice and hearing requirements for such variance shall be in accordance with the provisions for variance set forth in the City of Cocoa Beach Code of Ordinances.
12 Section Comprehensive Plan Adoption Requirements Section Comprehensive Plan Adoption Requirements. Any adoption or amendment to the City of Cocoa Beach Comprehensive Plan, with the exception of issues increasing permissible building and structure height or allowable development density and/or intensity, shall require an affirmative vote by four (4) city commissioners. Any City Comprehensive Plan adoption or amendment that addresses increasing permissible building and structure height or allowable development density and/or intensity shall require an affirmative vote by five (5) City Commissioners.
13 Section Non-Casualty Loss Rebuild. Section Non-casualty Loss Rebuild. Residential and non-residential structures may be razed and rebuilt to their existing height and density as previously provided to same extent as if they were lost to a casualty event, and as may be provided in the city comprehensive plan.
14 Amending the City Charter THE CHARTER MAY ONLY BE CHANGED OR AMENDED BY A VOTE OF THE RESIDENTS.
15 Land Development Code This code provides the technical rules and regulations concerning planning and development. Article I. Section is relevant to our discussion.
16 Section Purpose and Intent Section Purpose and Intent. The purpose of these regulations is to promote the public health, safety, morals, convenience, comfort, appearance, amenities, prosperity and general welfare of the City of Cocoa Beach. These regulations and restrictions will aid in making adequate provisions for increased safety in traffic, transportation, vehicular parking, parks, parkways, recreation, schools, public buildings, housing, light, air, water supply, sewage sanitation, drainage, barrier island protection, hurricane preparedness and other public requirements. They will help lessen congestion, disorder and dangers that occur in unplanned and unregulated development, prevent overcrowding of land and undue concentration of population; provide for a more equitable and just landpattern and basis for tax assessment; increase the safety and security of home-life by creating a more favorable environment in which to rear children; and provide more reasonable and serviceable means and methods of protecting and safeguarding the economic structure upon which the good of all depends.
17 Amending the Land Development Code THE LAND DEVELOPMENT CODE MAY BE AMENDED BY ORDINANCE, REVIEWED BY THE PLANNING BOARD AND THEN APPROVED OR DENIED BY THE CITY COMMISSION, MAJORITY VOTE.
18 City of Cocoa Beach Comprehensive Plan Every City must prepare a comprehensive plan pursuant to Chapter 163, Florida Statutes. The Comprehensive Plan sets out a series of Goals, Objectives and Policies as to discrete subject matter categories required by Chapter 163. The City of Cocoa Beach s Comprehensive Plan is entitled; City of Cocoa Beach Comprehensive Plan 2010.
19 Comp. Plan: Future Land Use Goals Goal #I for Future Land Use reads; To develop and maintain lands in a manner that promotes a balanced, low-density residential community, with paramount consideration given to the health, comfort, well-being, and quality of life for all citizens. The Planning Board s job is to review proposed land development regulations, codes or amendments and to opine as to consistency of same with the adopted comprehensive plan. The Comprehensive Plan is currently being reviewed and revised by the Planning Board with recommendations to the City Commission. Chapter , Florida Statutes, as amended.
20 Amending Comprehensive Plan 2010 THE COMPREHENSIVE PLAN MAY BE AMENDED, AFTER REVIEW AND RECOMMENDATION BY THE PLANNING BOARD, BY THE CITY COMMISSION. A SUPER MAJORITY VOTE IS SUFFICIENT UNLESS AN AMENDMENT CONCERNS AN INCREASE IN HEIGHT AND/OR DENSITY BEYOND THE CHARTER IMPOSED LIMITS AND THEN A UNANIMOUS VOTE IS REQUIRED.
21 Questions We have examined the various referendum votes and defined the three documents (Charter, Land Development Code and Comprehensive Plan) which govern the remainder of this presentation and provide the answers to the various legal questions posed by the Planning Board. In an attempt to shorten this presentation, I am going to discuss the last four questions posed that further defined the first 7 questions and answers in the Draft memorandum dated January 24, 2014, concerning height, density and the current procedure for a variance beyond the charter imposed limits on height and density.
22 Question 1 Question: If a variance for height or density is approved by four commissioners per the Charter, is it operative at that time or must it also go through the process of memorialization via text amendment per the Comprehensive Plan before the applicants with the approved variance can commence construction under the variance? Answer: Under the current procedure, the variance for height and/or density beyond the Charter imposed maximums is not effective until the Comprehensive Plan Text Amendment is approved.
23 Question 2 Question: As long as current procedures are unchanged and the required path for an application for height or density variance is first to the Board of Adjustment and then the Planning Board and then the City Commission, how does this square with the Charter provision in Sect stating that Decisions of the board of adjustment shall not be subject to review or alteration by the city commission? Answer: Charter Section 4.04 details the establishment of the Board of Adjustment and gives the Board of Adjustment, Charter responsibility to grant special exceptions and variances from zoning ordinances. The variances from height and/or density beyond the Charter imposed maximums currently only deal with Charter provisions and Comprehensive Plan provisions so there is no conflict with Charter Section Further, the use of the BOA in the variance process for height and/or density beyond the Charter imposed maximums is a process contrived and created solely within the Comprehensive Plan Policies and and do not conflict with Charter Section In the Summary, a series of revisions to the Land Development Code are recommended dealing with the variances procedures (Sections ) to provide greater clarity as between the duties and responsibilities of the BOA and the City Commission.
24 Question 3 Question: City Charter Sec (last sentence) gives owners the right to rebuild dwelling units destroyed by wind or other disaster.to the same number of dwelling units in the same location. (emphasis mine.) As recently became an issue before the Planning Board, where does authority lie permitting owners to rebuild under these circumstances to a lesser number of dwelling units? Answer: It is a well-established principle that when a regulation states a maximum as to height, square footage, number of rooms, something less than the maximum is allowed unless there is some structural problem, dangerous situation or other situation that would pose a danger to the life, welfare of the residents, created by a less than maximum number being used.
25 Question 4 Question: How many Commissioner votes are required to pass ordinances making the recommended changes to the Comprehensive Plan and the Land Development Code removing the BOA and the Planning Board from the height and density variance approval flow (noting that neither would increase the permissible building and structure height or development density and therefore not require unanimity among five city commissioners)? Answer: I believe that the Memorandum addressed this issue. An Ordinance amending the Land Development Code requires a majority vote of the City Commission. An Ordinance amending the Cocoa Beach Comprehensive Plan, by amending the Future land Use, Policies and to eliminate the process for requesting a variance to increase Charter imposed height and density limitations in the Comprehensive Plan, leaving that responsibility solely to the City Commission, would be governed by Charter Section 6.07 which states; Any adoption or amendment to the City of Cocoa Beach Comprehensive Plan, with the exception of issues increasing permissible building and structure height or allowable development density and/or intensity, shall require an affirmative vote by four (4) city commissioners.
26 Follow-Up Q & A Response to additional questions raised
27 Question Regarding Answer #1 How many Commission votes does it take to approve the Comprehensive Plan Text Amendment referred to? Answer: Currently it would take 5 votes to approve a comprehensive plan text amendment concerning a City Commission approved Charter required variance as to an increase in height or density beyond the Charter imposed limitations. But in my original Memorandum there is an extensive discussion concerning Charter Section 6.07 which has very specific requirements for adoption of comprehensive plan amendments but does not require that a Charter variance as to height and/or density beyond the Charter imposed limits be memorialized in a comprehensive plan text amendment so if that requirement was removed from the comprehensive plan at policy and then after a variance was denied or approved by a supermajority of the City Commission that would be it.
28 Question How many Commission votes would it take to remove the text amendment requirement in questions from Comp Plan policies and ? Answer: It is my opinion that 4 votes of the City Commission are needed to amend the Comprehensive Plan with regard to eliminating the variance procedure that has been inserted into the Comprehensive Plan (Ordinance 1328). A simple majority works for amendments to the Land Development Code and the Charter may only be changed by referendum.
29 Final Question or Statement A request for a height or density variance can be approved by 4 votes of the City Commission, But a text amendment provision of the Comp Plan then requires 5 Commission votes to make the variance operative. The text amendment provision mandating the 5 votes (requirement for a text amendment in the Comp Plan that triggers the Charter provision on Comp Plan Amendments) could be done away with by a 4 vote Commission majority as well as the Comp Plan amendment that such variances start in the BOA and move to the Commission via the Planning Board. Final Answer Yes, that is all correct.
30 Qualifications Marsha Segal-George has over thirty three years of experience in government law having served in numerous local government positions. Her experience and ability to perform on all levels of local government gives Ms. Segal-George a unique perspective capable of providing expert advice on virtually all local government issues. She has served as County Attorney, Assistant City Attorney, and Deputy County Manager in Colorado; and in Florida as a County Manager, City Manager, and as an attorney for a local planning agency. Her particular areas of expertise include LEED, sustainability; land use planning, including comprehensive planning, form based land development codes, and Bert Harris claims; aviation, Federal Grants, contracts, revenue enhancements, community redevelopment districts, incorporation and annexation. Having been directly involved in County management as a City and a County Manager, Marsha has an insight born of hands on experience that cannot be taught but must be experienced.