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HomeMy WebLinkAbout05-15-2001HCCH Convalescent Center, a/k/a Respite CenterBROWN, WARD, SALZMAN & WEISS, P.A. ATTORNEYS AT LAW Usher L. Brown ' John H. Ward' Gary S. Salzman' Jetirey S. Weiss Suzanne D'Agresta Anthony A. Garganese° Scott D. Danahy Alfred Truesdell Arthur R. "Randy" Brown, Jr. Brett A. Marlowe Jeffrey P. Buak Kristine R. Kutz Joseph G. Colombo Joanne Reed ' Board Certified Civil Trial Lawyer ° Board Certified Business Litigation Lawyer ° Board Certified City, County & Local Govenunent Law May 15, 2001 Mr. Ronald McLemore, City Manager City of Winter Springs 1126 East S. R. 434 Winter Springs, FL 32708 Re: HCCH Convalescent Center, a/k/a Respite Center Dear Ron: Two Landmark Center 225 East Robinson Street, Suite 660 Post Office Box 2873 Orlando, FL 32802-2873 (407) 425-9566 (407) 425-9596 FAX Website: www.orlandolaw.net ar<lancsc a orlandolaw.net Cocoa, FL (866) 425-9566 This letter is provided pursuant to the City Commission's request that I provide legal guidance regarding HCCH's application for a development order to operate a Convalescent Center. Specifically, the City Commission has sought guidance as to whether HCCH's application is in compliance with the City's Comprehensive Plan and Zoning Code. This letter is provided at this time for the benefit of the City's Development Review Committee (DRC). By letter dated May 4, 2001, I recommended that the DRC consider HCCH's pending application in accordance with the procedure set forth in §§ 9-342 through 9-349, Winter Springs Code. In order to assist me in this matter, I retained Michael D. Wadley, AICP, for purposes of providing professional planning services. Mr. Wadley is a duly qualified expert in his field. Mr. Wadley's services were necessary due to the current lack of staffing in the City's planning department. Florida law requires that all development orders issued, and all actions taken in regard to development orders, by the City in regard to land covered by the City's Comprehensive Plan shall be Mr. Ronald McLemore, City Manager City of Winter Springs May 15, 2001 Page 2 consistent with that Plan. The Comprehensive Plan is the legislative policy of the City Commission. Therefore, the most fundamental issue to be decided by the City is whether the proposed Convalescent Center land use is consistent with the City Commission's legislative policy set forth in City's adopted Comprehensive Plan. It is my view that the issue of land use consistency at the proposed location is a threshold issue which should be determined first. This determination requires the examination and interpretation of the City's Comprehensive Plan. If the City determines the proposed Convalescent Center land use is not consistent with the Comprehensive Plan, there would obviously be no need to review any other issues related to HCCH's application because the use would not be permitted. On the other hand, if the proposed Convalescent Center land use is consistent with the Comprehensive Plan, the application should then proceed for further review. In that regard, compliance of a development order with the Comprehensive Plan must be determined by reference to the Plan itself and not by reference to ordinances which purport to implement the Plan. A development order is consistent with the Comprehensive Plan if the land uses, densities and intensities, and other aspects of the proposed development are compatible with and further the objectives, policies, land uses, and densities and intensities in the Comprehensive Plan and if the development order meets all other criteria enumerated by the local government. The City is empowered and required by law to reject a development application if it finds that a proposed development is inconsistent with the Plan. HCCH is proposing to operate a Convalescent Center.' HCCH proposes to initiate this use on property with a Comprehensive Plan Future Land Use Map (FLUM) designation of "Industrial." The FLUM is a component of the future land use element of the Comprehensive Plan. It is a pictorial depiction of the future land use element and is ordinarily supplemented by written goals, policies and objectives. With respect to this case, an "Industrial" designation denotes the proposed future general distribution, location, and extent of uses of land for industry within the City of Winter Springs. Although Volume 2 of the Comprehensive Plan does not enumerate specific goals, policies, and objectives for the "Industrial" future land use, page LU 3 of the Land Use Data and Analysis section of the Comprehensive Plan characterizes Industrial land uses within the City as "light industrial, manufacturing, automotive services and warehousing/storage yards." Furthermore, Section 9J-5.003 (58) of the Florida Administrative Code, which is applicable in this case, defines "Industrial Uses" as "the activities within land areas predominantly connected with manufacturing, assembly, processing, or storage of products." In addition, no provision of the Comprehensive Plan can be found, or has been cited by HCCH, which would lead me to opine that the legislative policy ' A detailed description of the proposed use is contained in a letter to me from Ms. Miranda Fitzgerald, Esquire, dated April 13, 2001. A copy of that letter is attached hereto as Exhibit "A." ti Mr. Ronald McLemore, City Manager City of Winter Springs May 15, 2001 Page 3 of the City Commission is to include a convalescent center under the definition of an "Industrial" land use. Moreover, after reviewing the description of the proposed land use and the City's Comprehensive Plan, Mr. Wadley is of the professional opinion that a convalescent center is not consistent with the adopted Comprehensive Plan of the City of Winter Springs or sound planning practice and principles. A copy of Mr. Wadley's opinion is attached hereto as Exhibit "B." In sum, the City Commission establishes the City's legislative land use policy through the City's Comprehensive Plan. Based on the aforesaid and the information provided to me, it is my opinion at this time that a strong and reasonable argument can be made that the proposed convalescent center is not consistent with the "Industrial" FLUM designation of the City's Comprehensive Plan It is HCCH's burden to sufficiently demonstrate the proposed use is consistent with the City's Comprehensive Plan. If they can not, Florida Law requires that the proposed application be denied. ce ly, Anthony A. Garganese City Attorney cc: Mayor and City Commission AAG:kj AAMcLemore.kj LOWNDES DROSDICK DOSTER KANTOR & REED, P.A. Attomeys at Law Facsimile and Via Hand Delivery Anthony A. Garganese, Esq. Brown, Ward, Salzman & Weiss 111 N. Orange Avenue, Suite 875 Orlando, FL 32801 215 NORTH EOLA DRIVE 450 SOUTH ORANGE AVENUE, SUITE 800 ORLANDO, FLORIDA 32801 ORLANDO, FLORIDA 32801 POST OFFICL BOX 2809, ORLA'vDo, FLORIDA 32802-2809 TEL.: 407-843-3600 / FAX: 407-843-4144 www.lowndes-law.com MIRANDA F. FITZGERALD North Eoia Drive OMce Direct Dial: (407) 418-6340 E-mad: miranda.fitzgerald6, lowndeslaw.com April 13, 2001 Re: Health Care Center for the Homeless Convalescent Center Dear Mr. Garganese: As you know, I am representing the Health Care Center for the Homeless in regard to the land use and zoning issues applicable to the plans that were submitted to the City on December 26, 2000 to construct a convalescent care facility on the property described in the attachment to this letter that has been purchased for this purpose. This letter is intended to provide additional information to supplement and clarify the plans previously submitted. It will also provide a detailed description of the proposed use, as well as a review of various Comprehensive Plan and City Code provisions which support the City staffs prior determination that the convalescent care facility is a permitted use in the City's C-2 zoning district. Clarification of Matters Identified on Plans. First, as a matter of clarification and semantics, this letter will formally express the Applicant's intent to modify the title block on each sheet of the plans previously delivered to the C' •ao t the term "Respite Center" will be revised to read "Convalescent Center." We have preparedr�cicn labels that can be used, under supervision of the City staff, to replace the term "Respite Cent&'."ou each plan sheet with the clearer, more descriptive term "Convalescent Center." I will coordinate this re -labeling process with you or with a member of the City staff at your direction. This change in terminology does not change thel ubstantive details of the plans or the use that has been proposed for the facility. Also as a matter of clarification, the occupancy figures shown on the plans far exceed the maximum number of occupants that will be at the Convalescent Center at any one time. Sheet A002 of the plans submitted to the City includes a table showing 431 persons as the maximum projected Anthony Garganese, Esq. April 13, 2001 Page 2 occupancy for the Convalescent Center. These occupancy figures are based on Southern Standard Building Code calculations and are provided solely for the purpose of determining the fire safety components of the building design. The day-to-day average occupancy anticipated for the Convalescent Center will be approximately 65 to 70 persons; the maximum occupancy will never exceed 115 persons. The plans also include a room that has been labeled ' Dick's Clothing Storage." This room will be used only as a storage area for hospital gowns and clean clothes for the patients and staff of the Convalescent Center. As a final matter of clarification, a revised set of plans will be submitted following the City Commission hearing that has been scheduled for April 23, 2001. The revised plans will address and respond to all of the comments the City's staff and engineering consultant have provided to the Applicant based on their technical review of the plans that were submitted. Description of Proposed Use. • The Convalescent Center will be a $2 million medical facility designed to provide 24-hour convalescent care for poor and homeless adults over the age of 18 who are recovering from surgical or other significant treatment that was performed at a hospital or emergency center and who need a clean and quiet place to convalesce and recuperate. 0 The Convalescent Center will consist of a campus setting with three separate buildings connected by covered walkways. The three -building campus will contain a maximum of 50 beds for convalescing patients, a dining room, kitchen facilities, chapel, library, community room, medical treatment rooms, administrative offices, two laundries, and bathroom facilities. • All patients will be formally admitted to the Convalescent Center through an established intake protocol and evaluation process. Patients will only be accepted from hospitals, emergency rooms or community health clinics after the referring physician and admitting staff determine the appropriate medical diagnosis and recuperative care program. Patients will be free of infectious diseases such as TB. 0 Patients who are admitted to the Convalescent Center will be required to sign a contract agreeing not to leave the premises during their course of treatment. 0 The Convalescent Center will not be open to walk-in traffic for any type of medical treatment or patient visitation purposes. • The staff of the Convalescent Center will include licensed healthcare professionals. Full time staff members will include one registered nurse, one resident manager and one administrative assistant. One or more physicians will be on call 24 hours a day, seven days a week to provide patient care. Volunteer staffing for the facility will include three food service workers, one secretary, one driver for Anthony Garganese, Esq. April 13, 2001 Page 3 facility transportation, and two housekeepers. While recovering at the Convalescent Center, each patient will receive individual care and attention, medical evaluations and case management. All patients will be physically able to perform regular activities of daily living (bathing, toileting, feeding, keeping a schedule) and will have been determined by the referring physician to be well suited for temporary residence in the Convalescent Center as one of up to 50 patients. • . Following a patient's period of convalescence, or if a patient voluntarily elects to discontinue treatment at the Convalescent Center, the patient will be transported by a Convalescent Center staff member back to his or her referring facility for final discharge. NOTE: The Convalescent Center is not a mental health or substance abuse treatment center. Prior to admittance to the Convalescent Center, patients will be thoroughly screened for risk of mental health problems and/or substance abuse. No patient that needs mental health_ or substance abuse treatment will be admitted to the Convalescent Center. If at any time following admission it is discovered that a patient needs any treatment that is beyond the scope of the convalescent services provided by the Center, he or she will be transported by a Convalescent Center staff member to another community agency, such as Lakeside Alternatives, for appropriate treatment. The Convalescent Center is Consistent with the City's Comprehensive Plan • Table LU-T 14 in the City's Comprehensive Plan entitled "Future Land Use Utilization" indicates that the acreage needed for public facilities/utilities in the City during the 20-year planning period would increase by 4.5%, based on the population projections included in other portions of the Plan. • The 1990 population of Winter Springs reflected in the Comprehensive Plan was 22,683. The Plan projected the City's population for the years 1997 and 2010 as 28,865 and 37,537, respectively. The recently released 2000 census data indicates that the City is growing 17 — 20% faster than prior projections. Based on the current census data, the year 2000 population of Winter Springs was 31,666. • The Capital Improvements Data and Analysis section of the Comprehensive Plan (page CI-2) contains the following statement: Public health facility needs within the City are adequately served by existing public health facilities. Based on current and future planning conducted by the County and Regional Health Agencies, no additional public health facilities will be needed in order to adequately satisfy the projected demand and maintain adopted level of service standards, as proposed in other elements of the Comprehensive Plan. Anthony Garganese, Esq. April 13, 2001 Page 4 NOTE: The Capital Improvements Element of the City's Comprehensive Plan forecasts City expenditures for public health facilities and other forms of public infrastructure. Although the Comprehensive Plan did not identify a need for additional City -funded public health facilities, the Convalescent Center will be funded with private donations. Privately funded health facilities are not addressed in the Capital Improvements Element. • The final paragraph in the Introduction to Volume 2 of the Comprehensive Plan states: Winter Springs functions as part of a larger community and so must coordinate its operations and development with the rules, regulations and aspirations of many other entities — other local governments, regional organizations, jurisdictional agencies of the State, Federal offices, and autonomous Boards. Day in and day out, as the City functions, it is affected by the activities of these other authorities. The decisions made and permits granted by Winter Springs also have an impact on the surrounding communities and on the resources of other authorities operating in the same sphere of influence. The City needs to be aware and responsive to the concerns and goals of other jurisdictions and simultaneously pursue the interests of its own citizens. Striking a balance between these interests requires effective communication among all affected parties. This statement clearly expresses the City's acknowledgement that it is part of a larger, inter -related community and that the City's land use decisions must responsive to regional concerns as well as City interests. • The Housing Data and Analysis section of the City's Comprehensive Plan includes the following provision: While the City currently has no group homes or adult congregate living facilities, provisions should be made for this development in the appropriate land use classifications and zoning districts. The City should survey the needs for such living arrangements and support all efforts in their development. • Housing Policy E)2) provides: The City shall regulate the operation of group homes in accordance with the provisions of Chapter 419, Florida Statutes. The City shall permit group homes containing six (6) or fewer persons to be located in any residential land use category or zone, and group homes of seven (7) or Anthony Garganese, Esq. April 13, 2001 Page 5 more persons to locate in the multi -family, mixed use or commercial land use categories or zones. NOTE: Although the Convalescent Center does not meet the statutory definition of "group home," these housing provisions express the City's intent to allow alternative living arrangements for people with special needs. • The Convalescent Center is consistent with all of the conservation policies included in the City's Comprehensive Plan. The Applicant has already obtained all necessary permits from the St. Johns River Water Management District allowing construction of the facility. The Convalescent Center is a Permitted Use in the C-2 Zonine District. • The C-2 zoning district is City's most intensive zoning classification that allows all of the specifically listed commercial and industrial uses delineated in the City Code. • The immediately adjacent property in the same zoning district contains The Grove Juvenile Detention Center and Drug Rehabilitation Center which provides long-term residential care for juveniles convicted of a criminal offense and individuals with drug dependencies whose permanent residences are in Orange, Seminole, Polk and Osceola Counties. The Grove has a total of 57 beds--35 for drug abusers and 22 for juvenile offenders. • The elementary school site selected by the School Board is physically closer to The Grove than to the site on which the Convalescent Center is proposed. The School Board has taken neutral position neither in support of nor in opposition to the Convalescent Center. • Other parcels in the immediate vicinity of the site proposed for the Convalescent Center currently contain junkyards, a metal recycling plant, a used tire recycling plant, steel welding and fabrication facilities and construction contractor storage yards. • Uses permitted in the C-2 district include any use permitted in the C-1 Neighborhood Commercial District and such intensive additional uses as bottling and distribution plants, bus terminals, contractors equipment storage yards, convenience markets and stores, open air flea markets, full service gas stations (requiring that mechanical repair service be provided), kennels, laboratories for testing materials and chemical analysis, pest control (exterminating), sheet metal shops, warehouses, wholesale meat and produce distributors, and other intensive land uses. • Uses permitted in the C-1 district include alcoholic beverage package sales, alcoholic beverage sales for on -premises consumption, churches, coin dealers, mini -mart, convenience store, snack shop and self-service gasoline sales, gun shops, hospitals and nursing homes, hypnotists, launderettes and laundromats, medical clinics and laboratories, pawn shops, private clubs and lodges, regulated professions, offices, and professions licensed and regulated by the Department of Professional Anthony Garganese, Esq. April 13, 2001 Page 6 Regulation pursuant to F.S. Chapter 455 and F.S. Section 20.30, as now existing or hereafter amended, retirement homes, restaurants, schools (public, private and parochial), service vocational schools requiring no mechanical equipment, as well as other similar uses. • The following definitions included in the City's zoning code support the position that the Convalescent Center is a permitted use in the C-1 zoning district and thus is also permitted in the C-2 zoning district: ♦ The term `4iursing (convalescent) home" is defined as "[a] home of aged, chronically ill or incurable persons in which three (3) or more persons not of the immediate family are received, kept or provided with food and/or similar institutions devoted orimarily to the diagnosis and treatment of the sick and injured. [Emphasis added.] A nursing home is a use expressly permitted in the C-1 zoning district, and the City's definition of "nursing home" clearly includes a convalescent facility. ♦ A component of the Convalescent Center will be medical treatment rooms that are similar to a private clinic. The term "clinic" is defined in the City Code as an establishment where patients, who are not lodged overnight, are admitted for examination and treatment by one (1) person or a group of persons practicing any form of healing or health building services to individuals, whether such persons be medical doctors, chiropractors, osteopaths, chiropodists, naturopaths, optometrists, dentists or any such profession, the practice of which is lawful in the state. NOTE: The "clinic" portion of the Convalescent Center is in a separate building from the buildings in which the patient beds will be located and will only be used for the treatment of Convalescent Center patients. • A hospital is a permitted use in the C-1 zoning district. A hospital incorporates all of the components of the Convalescent Center, as well as many more intensive components and ancillary facilities. • The City's Impact Fee Ordinance lists land use types for which impact fees are charged, including congregate care lodging, motels, hospitals, nursing homes, clinics, medical/dental office buildings, etc. These uses, therefore, are obviously permitted for development in the City. The C-1 and C-2 zoning districts are appropriate zoning districts for these uses. 0 The City's off-street parking requirements specify parking criteria for the following uses allowed under the City Code: hotels, motels, hospitals; sanitariums or convalescent homes; medical or dental clinics; welfare institutions (asylums, orphanages, etc.). By establishing specific parking criteria for each of these uses, the City obviously intended them to be allowed in at least one of the City's Comprehensive Plan land use designations and zoning district. The C-1 and C-2 zoning districts are appropriate zoning districts for these uses. Anthony Garganese, Esq. April 13, 2001 Page 7 Conclusion. I trust this additional information will be of assistance to you and the City staff The express provisions in the Comprehensive Plan and Zoning Code, confirm the staffs initial determination that the proposed Convalescent Center is, in fact, a permitted use on the property purchased for this purpose. I would be happy to discuss any aspect of this letter with you and to provide any additional information you may require. Sincerely, 9 MFF/nj s Miranda F. Fitzgera c: (All copies via facsimile only) Mr. Ron McLemore, City Manager Father John Bluett Mr. Paul McGlone Dr. Michael Pinell, M.D. Kevin Cannon, Esq. 450466-4 Qeoeived: 4/13/01 1:54PM; 14074234495 -> Brown, Ward,Salzman & Weiss P.A.; Page 2 APR-13-01 13:49 FROM:LDDK' ID:1407( 4495 PAGE 2/2 ATTACHMENT TO ANTHONY GARGANESE LETTER DATED APRIL 13, 2001 LEGAL DESCRIPTION OF WINTER SPRINGS PROPERTY ADDRESS: 350 Old Sanford Oviedo Road Winter Springs, Florida Seminole County LOT 3 AND THE WEST 50.0 FEET OF LOT 4, ENTZMINGER FARMS ADDITION NO. 2, ACCORDING TO THE PLAT THEREOF AS RECORDED IN PLAT BOOK 5, PAGE 9, OF THE PUBLIC RECORDS OF SEMINOLE COUNTY, FLORIDA. on/14/.ZM31 1tS:1/ 4t1ttiyb4J1Z M 5K1LL1Nb+Ati, JL; PAUL- UZ MARION I. WILLING & ASSOCIATES, INC. May 14, 2001 Mr. Anthony A- Garganese Brown, Ward, Salzman & Weiss, P.A. Two Landmark Center 225 East Robinson Street, Suite 660 Orlando, Florida 32802.2873 RE: Respite Center — City of Winter Springs Dear Mr. Garganese: As you requested, i have reviewed the proposal for the Health Care Center for the Homeless Convalescent Center contained in the letter to you dated April 13, 2001, from Ms. Miranda F. Fitzgerald, Attorney with Lowndes Drosdick Doster Kantor & Reed, P.A., to render my opinion as a professional land planner as to the consistency of the proposal with the Comprehensive Plan for the City of Winter Springs. After reviewing the City's Comprehensive Plan, my findings and conclusion am outlined below: I. The City of Winter Springs adopted its Comprehensive Plan in 1992 as required by the State of Florida consistent with the rules outlined in 9J-5 FAC. A future land use map (FLW is required to be included in the Future hand Use Element of the comprehensive plan. 9J-5.006(4)(a) FAC requires that certain land use categories are shown on the FLUM including residential, commercial and industrial among others. The City of Winter Springs FLUM includes the category of industrial land 9j consistent with 9J- 5.006(4)(a) FAC. 2. 91-5.003(58) FAC defines "industrial uses" as "the activities within land areas predominantly connected with manufacturing, assembly, processing, or storage of products". Nursing homes, convalescem centers, or respite care centers are not included in the definition of "industrial uses" contained in 9J-5.003(58) FAC. 3. The Land Use Data & Analysis section of the City of Winter Springs Comprehensive Plan states on page LU 3 "industrial uses within the City are characterized by light industrial, manufacturing, automotive services and warehousing". These uses are consistent with the definition of"industrial uses" contained in 9J- 5.003(58) FAC. ' 4. it is my professional opinion that the proposed Convalescent Center is not consistent with the definition of"industrial uses" as defined in 9J-5 and categorized in the Land Use Data & Analysis section of the City's Comprehensive Plan; therefore, the proposed Convalescent Center is not consistent with the 1992 adopted Comprehensive Plan for the City of Winter Springs. 5. Based on sound planning practice and principles, a nursing home or convalescent center would not be included in an industrial district as defined in 9J-5 and categorized in the Land Use Data & Analysis section of the City's Comprehensive Plan. 832 North T vntan Mutue.- Otiando, Florida 32903 Td: (407) 896-7030 Fur; (407) $96.4312 — ErMall: mwadacy@ctl.mcom 05/14/2001 16:17 4078964312 M SKILLING+ASSOC PAGE 03 Mr. Anthony A. Garganese May 14, 2001 Page 2 6. No provision of the City's Comprehensive Plan would support allowing a convalescent centcr or nursing home on property with an "industrial" future land use designation. 1 hope this information will be of assistance. If you have any questions, please contact me. Michael D. Wadley, AICP 532 North Tbonuon Avenue - Orlando, Plontda 32803 Tcl: (407) 896-7030 - F= (407) 896-4312 — I<Mail: M*Adky*ll.rr.com