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HomeMy WebLinkAbout2002 02 11 Regular C Development Agreement COMMISSION AGENDA ITEM C Consent Information Public Hearin2 Re2ular X February 11. 2002 Meeting MGR. P- /De~ REQUEST: Community Development Department requesting Commission consider and approve a development agreement for a 6.2-acre tract at the northeast comer of the intersection of U.S. 17 - 92 and Nursery Road. PURPOSE: The purpose of this Agenda Item is to request that the Commission approve a development agreement addressing issues and concerns pertinent to rezoning the 6.2-acre tract at the northeast comer of the intersection ofU.S, 17 - 92 and Nursery Road. APPLICABLE LAW: Section 166.021, Florida Statutes. (1) As provided in s. 2(b), Art. vm of the State Constitution, municipalities shall have the government, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law. (2) "Municipal purpose" means any activity or power which may be exercised by the state or its political subdivisions. 1 February 11, 2002 Regular Item C Page 2 FINDINGS: The development agreement is authorized pursuant to the Municipal Home Rule Powers Act, as provided in s 2(b), Article VIII of the Florida Constitution and Chapter 166, Section 166.021, Florida Statutes. The development agreement is consistent with the City's Comprehensive Plan and Code of Ordinances. The development agreement provides for reasonable use ofthe subject property, while addressing issues and concerns pertinent to the present and future use of the site. CONSIDERATIONS: Staff has attended meetings with both the applicant and area residents. This development agreement provides adequate assurance that rezoning the subject 6.2-acre tract to C-2 will not create or worsen the negative impact upon the nearby residences - and, in fact, will1essen the negative impact. RECOMMENDATION: Staff recommends that the City Commission approve the attached development agreement, which excludes adult entertainment and includes future development phasing, traffic, parking, and buffering. ATTACHMENTS: Development Agreement, as provided by the applicant and revised by Community Development Department staff. COMMISSION ACTION: 2 BINDING DEVELOPMENT AGREEMENT THIS BINDING DEVELOPMENT AGREEMENT (herein referred to as the "Development Agreement"), made and executed this _ day of , 2002, by and between the CITY OF WINTER SPRINGS, a Florida municipal corporation (herein referred to as the "City"), whose address is 1126 East State Road 434, Winter Springs, Florida 32708, and Wayne P. Reece, an individual (herein referred to as "Reece"), whose address is 561 Virginia Drive, Winter Park, Florida 32789. WITNESSETH WHEREAS, Reece owns certain real property in the City of Winter Springs, Florida, described in Exhibit "A," attached hereto and incorporated herein by reference (herein referred to as the "Subject Property"); and WHEREAS, the subject property was annexed into the City of Winter Springs from unincorporated Seminole County and Reece has petitioned to amend both the Future Land Use (FLU) designation and zoning classification to the appropriate City designation and classification; and WHEREAS, Reece desires to proclaim his plans for future use ofthe subject property and proclaim that the subject property will not be used for adult entertainment purposes; and WHEREAS, Reece acknowledges that certain building safety, parking, and traffic problems exist on the subject property and proposes measures to minimize their negative impacts; and WHEREAS, Reece proposes to enter into this development agreement with the City to establish a definitive process to minimize the negative impacts of the existing and future uses of the subject property while allowing future development ofthe subject property, subject to requirements of the City's Comprehensive Plan, the Code of Ordinances, and conditions set forth in this development agreement; and WHEREAS, the City finds this development agreement consistent with the Comprehensive Plan and City Code of Ordinances and that approval of this development agreement is a legislative act of the City Commission of Winter Springs; and WHEREAS, the City Commission further finds that this agreement promotes the public health, safety, and welfare and is consistent with, and is an exercise of, the City's powers under the Municipal Home Rule Powers Act, as provided in s. 2(b), Article VIII of the Florida Constitution and Section 166.021, Florida Statutes, and the City's police powers. NOW THEREFORE, in consideration of the mutual covenants and mutual benefits herein contained, the parties agree as follows: I.Recitals. The forgoing recitals are hereby incorporated herein by this reference. 2. Authority. This development agreement is entered into pursuant to the Florida Municipal Home Rule Powers Act and the City Code of Ordinances. 1 3. Representations of Reece and the City. Reece and the City hereby represent and warrant that Reece and the City have the power and authority to execute, deliver, and perform the terms and provisions of this development agreement and have taken all necessary action to authorize the execution, delivery, and performance of this development agreement. 4. Phase I development shall be as depicted on sheet 1 of 1 a conceptual site plan prepared, signed, and sealed by Richard Labinsky, P.E., on September 12, 2001, reflecting items "a" and "b" of the following: a. delineating a stabilized grass parking area for 34 vehicles, east of the eastern-most existing automotive garage building and north-east of the intersection of the Nursery Road and Ridge Road rights-of-way (ROWs), b. creating a "no parking" zone, approximately 20 feet wide by 270 feet long, between 10 re-striped parking spaces directly in front of the eastern-most automotive garage building and the Nursery Road ROW (this "no parking" zone is to be adequately posted and enforced to ensure it is kept free of vehicles, debris, and other obstructions), c. the existing building and fire code violations in the existing non-residential buildings shall be rectified within a time-period satisfactory to both the City Fire Department and the Community Development, Building Division, d. there shall be no expansion of the existing commercial/industrial nature of the site until phase II of the project approves all pertinent approvals by the City. 5. Phase II of the development shall commence no earlier than April 1, 2005, and shall require site plan approval, a concurrency test, and a traffic study. The traffic study shall be prepared at the applicant's expense following a methodology meeting between the City's traffic consultant and one employed or retained by the applicant. The applicant shall reimburse the City for the cost of City's traffic consultant to review and comment on this traffic study. The traffic study shall address, as a minimum, traffic generation, safe and efficient traffic movements, pertinent pedestrian safety issues, ROW adequacy, curb-cut location, and the potential for off- site as well as on-site traffic improvements. The traffic study shall address the actual proposed phase II site plan, which Sh1ll1 subsequently be amended to accommodate pertinent conclusions from that study. The results of the traffic study and the City's consultant's review and comments shall be coordinated with both Seminole County (Nursery Road is a county road) and the Florida Department of Transportation. Within 90 days after any certificate of occupancy (CO) is issued for the Phase II . development, all automotive shops (including, but not limited to, alignment, electrical, mechanical, paint, body, and/or frame straightening) shall be relocated from buildings facing Nursery Road. The existing residential use on the subject property shall cease at the time any building permit for the phase II development is issued. Phase II shall bring all ofthe subject property (both the existing and phase II development) into conformance with the most current state handicap accessibility regulations. 2 Phase II will be adequately buffered from the adjacent residentially zoned properties with a masonry wall and vegetation, the extent of which shall be determined at the Development Review Committee (DRC) meeting for the final site plan approval, subject to modification by the City Commission. Site lighting will be coordinated with the landscape plan during the final site plan approval process, to ensure no off-site illumination. At no time and under no circumstances shall adult entertainment of any kind be considered an allowable, permissible, or conditional use on the subject property, as of the execution of this development agreement. 6. Successors and Assigns. This development agreement shall automatically be binding upon and shall inure to the benefit of the successors and assigns of each of the parties. 7. Applicable Law. This development agreement shall be governed by and construed in accordance with the laws of the State of Florida. 8. Amendments. This development agreement shall not be modified or amended except by written agreement executed by all parties hereto and approved by the City Commission of the City of Winter Springs. 9. Entire Agreement. This development agreement supercedes any other agreement, written or oral, and contains the entire agreement between the parties as to subject matter hereof. 10. Severability. If any provision of this development agreement shall be held to be invalid or unenforceable to any extent by a court of competent jurisdiction, the same shall not affect in ay respect the validity or enforceability of the remainder of this development agreement. 11. Effective Date. This development agreement shall become effective upon approval by the City of Winter Springs and execution of this development agreement by all parties. 12. Recordation. Upon approval by the City of Winter Springs City Commission and execution of this development agreement by all parties, this development agreement and any amendments hereto shall be recorded in the public records of Seminole County, Florida, and shall run with the land. 13. Relationship of the Parties. The relationship of the parties to this development agreement is contractual and arm's length. Reece is an individual and is not an agent of the City for any purpose. Nothing herein shall be deemed to create a partnership, or joint venture, or principal-agent relationship among the parties, and no party is authorized to, nor shall any party act toward third persons or the public in any manner which would indicate any such relationship with any other party. 14. Sovereign Immunity. Nothing contained in this development agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or any other limitation on the City's potential liability under state or federal law. 15. City's Police Power. Reece and the City acknowledge and agree that the City hereby reserves all police powers granted to the City by law. In no way shall this development agreement be construed as the City bargaining or surrendering its police powers. 3 16. Interpretation. The parties to this development agreement acknowledge and agree that all parties have participated equally in the drafting ofthis development agreement and no party shall be favored or disfavored regarding the interpretation ofthis development agreement in the event of a dispute between the parties. 17. Permits. Failure of this development agreement to address any particular City, county, regional, state, or federal permit, condition, term or restriction shall not relieve Reece or the City of the necessity of complying with the law governing said permitting requirements, conditions, terms or restriction. Applicable permits include, but are not limited to, City concurrency approval, preliminary and final site plan approval, site construction, demolition, building, and sign permits; Seminole County concurrency approval and a ROW permit; a St. Johns River Water Management District permit will be necessary for storm-water management purposes; a Florida Department of Transportation ROW permit may be necessary for any modification to existing access to U.S. 17 - 92; and Florida Department of Environmental Protection permits will be necessary for the installation of potable water and sanitary sewer lines. 18. Third Party Rights. This development agreement is not a third party beneficiary contract and shall not in any way whatsoever create rights on behalf of any third party. 19. Specific Performance. Strict compliance shall be required with each and every provision of this development agreement. The parties agree that failure to perform the obligations established in this development agreement shall result in irreparable damage, and that specific performance ofthese obligations may be obtained by suit in equity. 20. Attorney's Fees. In connection with any arbitration or litigation arising out of this development agreement, the parties shall bear their own attorney's fees and costs through all appeals. 21. Future Rezonings/Development Permits. Nothing in this development agreement shall limit the City's authority to grant or deny any future rezoning or development permit applications or requests, or the right of Reece to apply for or oppose any future rezoning or development permit application subsequent to the effective date ofthis development agreement. In addition, nothing herein shall be construed as granting or creating a vested property right or interest in Reece or the subject property. 4 22. Notices. All notices and correspondence shall be sent or delivered by registered or certified mail to the parties hereto, return receipt requested, with copies forwarded to their respective attorneys, at the addresses set forth below or at such other addresses as the parties hereto shall designate to each other in writing: (i) ifto the City: Mr. Ronald W. McLemore, City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, Florida 32708 Telephone: 407-327-5957 Facsimile: 407-327-4753 with copies to: Anthony A. Garganese, Esq., City Attorney Brown, Ward, Salzman & Weiss, P.A. Post Office Box 2873 Orlando, Florida 32802-2873 Telephone: 407-426-9566 Facsimile: 407-425-9596 (ii) if to Reece: Any notice or demand so given, delivered or made by United States Mail shall be deemed so given, delivered or made three (3) days after the same is deposited in the United States mail registered or certified, return receipt requested, addressed as above, provided with postage thereon pre-paid. Any such notice, demand, or document not given, delivered, or made by registered or certified mail as aforesaid shall be deemed to be given, delivered, or made upon receipt ofthe same by the party to whom the same is to be given, delivered, or made. \ 5 ';' \ IN WITNESS WHEREOF, the parties have executed this development agreement as of the date of first written above. CITY OF WINTER SPRINGS, a Florida Municipal Corporation, ATTEST: By: By: PAUL P. PARTYKA Mayor ANDREA LORENZO-LUACES City Clerk WITNESSES: Wayne P. Reece By: Print Name Title Date: STATE OF FLORIDA COUNTY OF The foregoing instrument was acknowledged before me this _ day of ,2002, by Wayne P. Reece, [ ] who is personally known to me, or [ ] who has produced as identification. NOTARY PUBLIC, State of Florida My commission expires: 6 I I COMMISSION AGENDA ITEM D Consent Information Public Hearine: Ree:ular X February 11. 2001 Meeting MGR. /" lDept. jl\-/ L REQUEST: The Community Development Department, Building Division, requests that the Commission reconsider a request of John Laudani, on behalf of the homeowners Howard and Libby Baity, for a variance in the elevation of the finished floor at 627 Sailfish Road. PURPOSE: The purpose of this agenda item is to present to the Commission a request for a variance to allow a finished floor elevation to be three (3.72) inches below the required elevation of eighteen (18) inches above the hundred year flood stage in order for the Building Division to issue a final Certificate of Occupancy. ' APPLICABLE LAW: Sec. 9-241. Storm water management. (c) The drainage system for each subdivision shall include a sufficient facility to remove storm water without flooding any lot in the proposed subdivision or in the surrounding territory. All finished floor elevations shall be a minimum of one and one- half(11/2) feet above the hundred-year flood stage. ~ July 23, 2001 REGULAR AGENDA ITEM F Page 2 CONSIDERA TIONS: The property is located at 627 Sailfish Road. The required finished floor elevation is 35.50 or 18 inches above the Base Flood Elevation (BFE). The constructed finished floor is 35.19 feet above the BFE or 3.72 inches too low. FINDINGS: 1) An inspection of the finished floor elevation revealed that the elevation was not in conformance with City standards. The builder was made aware of the situation early in the building process but took no action to correct the situation. 2) The Board of Adjustment recommended granting the variance request although the code requirements of Section 20-82(1O(c)) were not met. 3) The Code Board heard testimony on July 17,2001 and found the builder in non- compliance and imposed a $1.00 fine. 4) The City Commission on July 23, 2001 considered the Code Board recommendation and directed the City Attorney to take the matter back to the Code Board to establish a more equitable fine. 5) On August 21, 2001 the City Attorney presented the matter to the Code Board and the Code Board upheld their recommendation of non-compliance and the $1,00 fine. CHRONOLOGY: . March 19,2001 Variance application received. . April 5, 2001 The variance was considered by the Board of Adjustment. They recommended approval with a hold harmless agreement and a recorded disclosure statement for future buyers. Both documents have been executed and the disclosure statement recorded. . May 3,2001 The Board of Adjustment minutes were approved. . May 14,2001 The City Commission tabled the matter. . June 25, 2001 The City Commission removed the matter from the table and referred it to the Code Board for prosecution. July 23, 200 I REGULAR AGENDA ITEM F Page 3 . July 17,2001 The Code Board heard testimony, found the owners and builder in non- compliance, and imposed a $1.00 fine against the builder. . July 23,2001 The City Commission received the recommendations of the Code Board and directed the City Attorney to take the matter back to the Code Board to request a more equitable fine. . August 21, 2001 The City Attorney presented the matter to the Code Board. The Code Board reconfirmed its finding of non-compliance and the recommended fine of$1,OO against the builder, which has been paid. RECOMMENDATION: Staff recommends that the Commission grant a variance from the requirements of Section 9-241. ATTACHMENTS: A - Hold-harmless letter. B - Disclosure statement. C - Payment receipt COMMISSION ACTION: ATTACHMENT A Hold-harmless Letter July 5, 2001 City of Winter Springs 1126 E. State Road 434 Winter Springs, Florida 32708 " " ~'~I :.. RE: 627 Sailfish Road Winter Springs, Florida To whom it may concern: I, Libby A. Baity and Howard W. Baity Jr. hereby hold to City of Winter Springs harmless from any flood damage that might be caused by the elevation of our property being below the code of Winter Springs. Ri~~~ ATTACHMENT B Disclosure Statement 11111111111111111111111111111111111111111111I11111111/111111 July 6, 200 I CERTI fi ED COP~ Y-lfl.RY;:.NNE MORSE CLERK OF CIRCUiT COURT S~'~Je/~ . DE '. CLERK --. ,J U t 1 (jJ; 2nn1 627 Sailfish Road Uu Winter Springs, Florida 32708 MARYANNE MORSE, CLERK OF CIRCUIT COURT SEMINOLE COUNTY BK 04125 PG 0126 '\ CLERK'S # 2001721366 RECORDED 07/10/200101:00:42 PM' RECOROING FEES 6.00 RECORDED BY S Hergert Whom it may concem: Re: This is to inform all future home owners of the above referenced address that the property does not comply with the Winter Springs Building Code of elevation. '" Although the elevation of said property is a little more than three inches too low for Winter Springs Building Code, Flood Insurance is not required. The above referenced property does comply with FEMA ;i~:e;,:;:tO~fl~IM~~_ State of Florida COWity of Seminole BEFORE me, a Notary, personally appeared Libby A. Baity who is personally known to me e::... ~{bo produced as idootifioatien and who did acknowledge before me that she executed the foregoing statement. IN WITNESS WHEREOF, I have hereunto set my hand and official seal at Seminole County, Florida, this ~ of July, 2001. ~~ State of Florida County of Seminole N Publ.ic . .~;.~~ ~.~~~ssion ~~UX~D.lEV1N f.~~ Notary Public - State of Aorida ; W:: MyCo~Bifi'esDec 25.2Dt ~DF~?jf Co~n It CC979516 ~.n'" BEFORE me, a Notary, personally appeared Howard W. Baity Jf. who is personally known to me or who pnx:Iuuxl 83 idootifieatiOR and who did acknowledge before me that he executed the foregoing statement. IN WITNESS WHEREOF, I have hereunto set my hand and official seal at Seminole County, Florida, this ~ of July, 200 I. ~~ Notary Public My Commission Expires: This document was prepared by: (jj) Libby A. Baity ~ 627 Sailfish Road Winter Springs, Florida 32708 -- ..t~'_"-I&.1......GI' ~~"""" NORMAN D.lEV1N fJm'% Notary Public - Stale of Aorlda S' - E My Co~n &;ins Doc 25. 2004 ~P.f.I"'~ Comrrission fCC919516 ....'" .. ATTACHMENT C Payment Receipt CIn OF WItHER S~'RINGS DEP riISCELLANt.OUS CASH RECEIPTS Date / Ti~e : 07/24/01 13:22 Payftlent : $ i. B.j Re~eiot " : 30917 Check/'Cred i t C"\"I'd ~: Clerk : if r'eeL\tl.n Paid B.,. : LAUDAHI ," Date: 021102 This was handed out on 2/11/02 by Dennis Franklin under Regular "D". I FLOOD DAMAGE PREVENTION \ ~ 8-50 Sec. 8-34. Variance procedure. (a) Appeal board. (1) The city commission as established by the city shall hear and decide appeals and requests for variance from the require- ments of this chapter. (2) The city commission shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the floodplain ad- ministrator in the enforcement or admin- istration of this chapter. (3) Those aggrieved by the decision of the city commission or any taxpayer, may appeal such decision to the circuit court. (b) Conditions under which variances may be granted. (1) In passing upon such application, the city commission, shall consider all technical evaluations, all relevant factors, stan- dards specified in other sections of .this chapter, and, the danger that material may be swept onto other lands to the injury of others; the danger to life and property due to flooding or erosion dam- age; the susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; the importance of the services provided by the proposed facility to the community; the necessity to the facility of a waterfront location, where applicable; the compatibility of the pro- posed use with existing and anticipated development; the relationship of the pro- posed use to the comprehensive plan and floodplain management program of that area; the availability of alternative loca- tions not subject to flooding or erosion damage for the proposed user and the safety of access to the property in times of flood for ordinary and emergency vehi- cles. (2) Variances may be issued for the recon- struction, rehabilitation or restoration of structures listed on the national register of historic places or the state inventory of Supp :-Jo. 1 historic places without regard to the pro- cedures set forth in the remainder of this section. (3) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief. (4) Variances shall not be issued within any mapped regulatory floodway. (5) Variances shall only be issued upon a showing of good and sufficient cause; a determination that failure to grant the variance would result in exceptional hard- ship to the applicant; and a determination that the granting of a variance will not result in increased flood heights, addi- tional threats to public safety, or extraor- dinary public expense; create nuisances; cause fraud on or victimization of the public, as identified in (b)(1) above; or conflict with the local government compre- hensive plan or with other existing local laws or ordinances. (6) Any applicant to whom a variance is granted shall be given written notice that the structure will be permitted to be built with a specific, reduced lowest floor eleva- tion and that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. (7) The city commission may attach such conditions to the granting of any variance as it deems necessary to further the pur- poses of this chapter. (8) The floodplain administrator will main- tain a record of all variance actions, in- cluding justification for their issuance and report such variances issued to the Fed- eral Insurance Administration, Federal Emergency Management Agency. (Code 1974, ~ 19-13; Ord. No. 2001-04, * 1, 1-22- 01) Sees. 8-35-8-50. Reserved. 503