HomeMy WebLinkAbout10-12-2007 Lon Miller, 1314 Deer RunRDCRIVED
BROWN, GARGANESE, WEISS & D'AGRESTA, Mro 5 2007
Debra S. Babb-Nutcher°
Joseph E. Blitch
Usher L. Brown'
Suzanne D'Agresta°
Anthony A. Garganese°
J.W. Taylor
Jeffrey S. Weiss
'Board Certified Civil Trial Lawyer
°Board Certified City, County & Local Government Law
'Board Certified Appellate Practice
Attorneys at Law
Offices in Orlando, Kissimmee, Cocoa,
Ft. Lauderdale & Tampa
October 12, 2007
Michael Jones, Esquire
Michael D. Jones and Associates, P.A.
P.O. Box 196130
Winter Springs, Florida 32719-6130
Re: Lon Miller, 1314 Deer Run
Dear Mr. Jones:
Tara L. Barrett
Vivian P. Cocotas
Scott J. Domstein
Mitchell B. Haller
Katherine W. Latorre
Terri E. Oster
Amy J. Pitsch
Erin J. O'Leary'
Catherine D. Relschmann°
William E. Reischmann, Jr.
O/ Counsel
Your letter to Joan Brown dated October 10, 2007 was forwarded to me for a
response. In response to your inquiry, the current issue involving Lon Miller does not
involve a code board violation. The issue pertains to a fence permit that was issued in
error by a member of city staff. Fence permit applications are subject to aesthetic review
pursuant to Ordinance No. 2007-21. A copy of Ordinance No. 2007-21 is attached to this
letter.
Under that ordinance the City Manager is required to complete an aesthetic review
of the fence permit application. In this case, a staff member issued a permit before the
City Manager could conduct an aesthetic review of the application. Upon learning of the
mistake, the City Manager then conducted the aesthetic review and it was his opinion that
the fence permit application did not comply with Ordinance No. 2007-21. The City
Manager issued a letter to Mr. Miller explaining such on August 29, 2007. Thereafter,
pursuant to Ordinance No. 2007-21, Mr. Miller filed an appeal of the City Manager's
decision. The appeal will be heard by the City Commission.
225 East Robinson Street, Suite 660 - P,O. Box 2873 -Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 - Kissimmee (321) 402-0144 - Cocoa (866) 425-9566 - Ft. Lauderdale (954) 670-1979
Website: www.orlandolaw.net - Email: firm®oriandolaw.net
October 12, 2007
Page 2
I presume from reading your correspondence to the City, you will be representing
Mr. Miller in that appeal before the City Commission. If you have any questions regarding
this matter, please do not hesitate to call me.
Sinc I ,
Anthony A. Garganese
City Attorney
AAG/jf
CC: Ronald McLemore, City Manager
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ORDINANCE NO. OW21
AN ORDINANCE OF THE CITY COMMISSION OR TILE
CITY OF WINTER SPRINGS, FLORIDA, ADOPTING
AUNIMUM COMMUNITYAPPEARANCE AND AESTHETIC
REVIEW STANDARDS FORINDIVIDUAL SINGLE FANULY
RESIDENCES; ADOPTING A NEW SECTION 9.607 OF THE
CITY CODE; ADOPTING} CONFORMING AND RELATED
AMIitNDMENTS TO THE CITY CODE; PROVIDING FOR
THE REPEAL OF PRIOR INCONSISTENT ORDINANCES
AND RUSOLUI`IONS; INCORPORATION INTO THE CODE;
SEVERABILITY AND AN EFFECTIVE DATE.
W I&REAS,-the City is granted the authority, under § 2(b), Art. VIll of the State
Constitution, to exercise any power fbr municipal purposes, except when expressly prohibited by
law; and
WHEREAS, the maintenance of the character of residential neighborhoods is a proper
Purpose of zoning, See Village of Euclid x Ambler Co.. 2,72 U.S. 345 (1926); Miller v, Board of
Public Works, 234 P. 381 (Cal. 1925); and
WHEREAS, through tho yaws, numerous dredrestrieted residential communities have been
permitted and developed within the City of Winter Springs; and
WIMREAS, it is apparent from reading the various deed restdotions recorded in thspublio
records of Seminole County, Florida that the deed restrictions were intended, In part, to protest the
character of the residential communities by prohibiting uses and struetutus that are incompatible with
residential areas; and
WHEREAS, over the years, the My has telied on these private deed restrictions to provide
homeowners with regulatory protection that proservee the chametermui harmony of residential areas;
and
WHEREAS, because of this reliance, the City has not historically had reason to impose
numerous other legislative. land use restrictions on existing residential communities within the City,
especially in older existing subdivisions that are designated Planned Unit Development like
Tuacawilla and Oak Forest; and
WHEREAS, in particular and by way of exantplo of this relianoo, the City Commission has
previously exempted erxiotitng single family residerices from the Minimum Community and Aesthetic
Review Standards Bet forth in sections 9-600 et, seq., Winter Springs Code, because of the existence
City of Wither Springs
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of the private, deed restrictiona; and
WHEREAS. it, has comp to the attention ofthe City Commission that some of the older deed
restricted residential communities, Including Unit h of Tuscawilla, have inadvertently allowed their
doed restrictions to expire under the Florida Market Record Title Act; and
WHER&A5, theexpiration 0ftheprivaterestriotionshave left some residential communities
without any significant regulatory mechanism to protect and preserve the residential character of
Such communities, especially with respect to additions, modifications, and expansions of existing
single family residences; and
WHEREAS, as a result, the expired private restrictions have potentially exposed some
residential eonununitiea to buildings scud structures that are incompatible to existing single &tally
neighborhoods and afth incompatible buildings and stru.otures may have an adverse irnpaat on the
quality ofrestdential areas and upon property values; and
WHEREAS, having considered the possible wide range negative impacts of expired private
deed restrictions on the residential chuuter of some areas within the City of Winter Springs, the
City Commission adopted emergency Ordinance 2006.08 on May 22, 2006, establishing interim
regulations to be applied until the City Staff and C.fty Attorney could prepare a comprehensive
regulatory scheme requiring all additions, modifications, and expansione of structures within
residential areas be aesthetically compatfble and in harmony with the surrounding neighborhood and
with the residential character thereof; and
WHEREAS, the sunset provision set forth in Ordinance 2006.08 was extended by the City
Commission purstmtto the adoption ofOrdinance 2006-22 on November 13, 2006 and Ordinance
200-7- 19 on April 23, 2007; and
WHEREA66 over the oourse of the last year, City Staff has processed applications for
aesthetic review of single•fhmily residences pursuant to the interim procedure set forth in emergency
ordimmm 2006.08; and
WHEREAS, City Stab recommends permanently adopting said interim procedure as set
forth herein; and
WHRR.EAS, the aty Commission of the City of Winter Springs, Florida, hereby finds this
Ordinance to be in the beat interests of the public health, safly, and welfare of the citizene of Winter
Springs,
NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER
SPRINGS HEREBY ORDAINS, AS FOLLOWS,
City itf Winter Springs
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sect Recitelb. The foregoing recitals are hereby fully incorporated herein by
reference as leilllative findings of the City Commission of Winter Springs.
sect Code Amendment. The City of Winter Springs Code Chapter 9, Land
Development, is hereby amended as follows (undue typo indicates additions and shikoent type
indicates deletions, while, asterisks (*so) indicate a deletion ftom the Ordinance of text existing in
Chapter 9. it is intended that the text in Chapter 9 denoted by the asterisks and set fortis In this
Ordinance shall remain unchanged from the language existing prier to adoption of this ordinance);
CHAPTER 9. LAND DEVELOPMENT
ARTICLE XII. MINIMUM COMMUNITY APPEARANCE AND ABSTH=IC REVIEW
STANDARDS
Sec. 9.600•'Stxtement of flndinp and purpose.
APi*
N It is the Intent and purpose of this article to apply to all new commercial, industriai,
instftudonat, multi -family, and residential subdivision development projects and major
alterations thereto. It la not intended to apply to individual single-family residanees, ex
gW
as flied In section 9-607.
City bmintar Sprinjp
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1 1 in•� • } � • a1 .1 � }
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lion. Repeal of Prior Inconsistent Orainanca and Resolutions. All prior
ineonsisitent ordinaam and resolutions adopted by the City Commission, or parts o f prior ordinmms
and resolution$ in conflict herewith, ue hereby repealed to ft extent of the conflict.
Section 4• Incorporation Into Code. Me Ordinance shall be incorporated into the
Winter Springs City Code and any section or paragraph, number or letter, and any heading may be
changed or modified as nacassary to effectuate the foregoing, Grammatical, typogmphioal, and like
arrors may be corre+oW and additions, alteratiow, and omissions, not affecting the constnwtion or
meaning of this Ordinance and the City Code may be freely mods.
fiction S. Neverability, If any section, subeeotion. sentence, clause, phrase, word or
provision of this ordinance is for any reason held invalid or unconstitutional by any court of
competent jurisdiction, whether for sub*.ntivo, procedural, or any other reason, such portion shall
bo deemed a separate, distinct and indepeudent provision, and such holding shall not of act the
validity of the remaining portions of this ordinance.
9ecti� Effective Date, This Ordinance shall beoome offecdve immediately upon
adaption by the City Commission of the City of Winter Springs, Florida, and pursuant to the City
Garter.
City of Winter 5prinip
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fttion ? Sunset Review. Ona (1) YOU siler the effective date of this Ordfruce,
the City Manager is hereby Instructed to place this Ordinance on the City Commission agenda far
review at a regularly scheduled Commission meeting. The agenda item shall contain background
information regarding dz application of this Ordinenoo during the previous one year. At the
meeting, the City Commission will diseues tha affectiveness of this Ordinance and wbether or not
the Ordinance should remain the some or be modifiod or repealed.
ADOPTED by the City Commission of the City of Winter Springs; Florida, In a, regular
meeting asgtanbled on the 9th day of July, 2007.
M 14. Y
OHN F. R Mayor
. Ts
ANDMA LORENZO-LUACES
City Clerk
APPR AS TO LEGAL FORM AND SUFFICIENCY
FO TV OF WINTER SPRINGS ONLY.
ANTHONY A. GARGA1r B
City Attorney
First l wckg:
Seoond R.es4ing:
Mective Date of Ordinance:
June 25, 2007
Judy 9, 2007
July 9, 2007
pity of Wintar 5pxingo
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CITY OF WINTER SPRINGS
SPECIAL MEETING — OCTOBER 2, 2007
100207_Special_Meeting_Regul ar_601 _LM i I ler_Permit_Appeal
COMMISSION AGENDA
ITEM 601
October 2, 2007
Special eettng
Consent
Informational
Public Hearing
MgA I Dept.
Aut orization
X
REQUEST: The City Manager requesting the City Commission to hear an appeal from Mr. Lon
Miller of 1314 Deer Run regarding an improperly issued fence permit.
PURPOSE: The purpose of this agenda item is for the Commission to hear an appeal from Mr. Lon
Miller of 1314 Deer Run regarding an improperly issued fence permit, and render a decision based upon
the record of this matter.
CONSIDERATIONS:
On July 27, 2007 Mr. Miller was issued a fence permit which did not receive the required aesthetic
review. After completion of the aesthetic review it was determined that the chain link gate approved in
the permit did not satisfy the compatibility provisions of Section 9-607 of the City Code and Policy 1.2.13
of the Comprehensive Plan.
This agenda item was originally scheduled for September 10, 2007 and rescheduled to this date at the
request of Mr. Miller due to a medical issue.
FUNDING: The City Manager has agreed to reimburse Mr. Miller $400 in out-of-pocket costs.
RECOMMENDATIONS: It is recommended that the City Commission hear Mr. Miller's appeal and
render whatever decision it deems appropriate based upon the record of this matter.
ATTACHMENTS:
1. City Manager Letter of August 29, 2007
2. Lon Miller Letter of September 5, 2007
COMMISSION ACTION:
Ronald W. McLemore
City Manager
August 29, 2007
Mr. Lon Miller
1314 Deer Run
Winter Springs, FL 32708
Dear Mr. Miller:
CITY OF WINTER SPRINGS, FLORIDA
1126 EAST STATE ROAD 434
WINTER SPRINGS, FLORIDA 32708-2799
Telephone (407) 327.1800
I am song to inform you that fence permit Number 200701826 issued to you on July 27, 2007 to
construct a gate on Northern Way was issued by the City in error. As a result, I must provide you
notice that this permit is null and void and has been revoked effective this date. You have five (5)
days from receipt of this letter to appeal my decision to the City Commission. Therefore, if you
desire to appeal my decision, you must provide me with written notice of your desire to appeal.
Due to the error involved, the City is willing to reimburse you for your out-of-pocket costs for
installing the gate, provided these costs are reasonably documented. Your permit establishes the
value of the gate project at $400.
There are two issues involved with respect to my decision stated herein as follows:
First; Section 9-607 of the City Code provides that the City Manager or his designee will perform
an aesthetic review of all permits of this type prior to issuance of the permit. The purpose of the
review is to determine if the proposed project will be compatible with the physical characteristics
of your property and the surrounding the area. An aesthetic review of this fence permit was not
performed prior to issuance of the permit as required by the City Code. Once this matter was
brought to my attention, I performed the required aesthetic review under the criteria set forth in
section 9-607.
Based on my review of your proposed gate project, I have concluded that the chain link gate
section that was installed pursuant to the erroneously issued permit is not compatible and not in
harmony with existing buildings and structures on your property and with the surrounding
neighborhood. For example, the chain link gate is entirely inconsistent with the balance and
materials used for your existing wooden fence, and other suitable fences along road rights of
ways in your area. Also, the chain link gate, in comparison to the existing wooden fence and
other suitable fences in the area, is completely out of contrast and adversely affects the positive
aesthetic balance and unity of the surrounding neighborhood. I also concluded that the proportion
and scale of the chain link gate is out of character for your property and the area. Moreover, the
texture of wood materials is far more compatible with the materials used for the existing fence on
your property than the chain link gate. Further, the chain link gate section seriously compromises
the opaque buffer offered by the remainder of your existing fence.
i
Additionally, I also want to emphasize that the scale of the gate section appears to be excessive.
The excessive width of this gate section appears to be chosen to make it possible for vehicles to
have access to the back yard and the newly constructed garage, which you have previously
described to me to be a place for the storage of vintage vehicles. Policy 1.2.13 on page I1-46 of
the Transportation Element of the City's Comprehensive Plan clearly provides that no individual
residential driveways will be permitted on collector roads or arterial roads. It further provides
that individual driveways shall be located on local roads, which channel trips to the collector and
arterial systems.
The gate is located on Northern Way. Northern Way is a collector road. The Northern Way side
of your lot cannot be utilized for vehicle access or egress for your property because your property
already has existing access on a local road (Deer Run). Therefore, a gate of the magnitude
contained in your proposed gate project does not appear to be warranted, especially in light of the
City's Comprehensive Plan and other aesthetic issues discussed above.
Unless my decision to declare this building permit null and void and revoked is appealed by you,
and subsequently overturned by the City Commission in an appellate proceeding, you will be
required to remove the chain link gate and re -install the opaque wooden fence that existed prior to
the installation of the gate. The reinstallation of the opaque wooden fence shall be completed
within thirty (30) days of the receipt of this letter, or as otherwise directed by the City
Commission.
Lastly, I wish to advise you that nothing contained in this letter prevents you from applying for
another building permit for a gate section that meets the requirements of the City's Code
including aesthetic review criteria.
Sincerely,
/�O,o-w U. 1'w C
Ronald W. McLemore
City Manager
/JP
cc: Mayor and Commission
Community Development Director
Code Enforcement Manager
082907 Permit #200701826 Revocation
Page 2of2
I
R " c ME D
SEP 0 5 2007
CITY OF WNTfR sPRINGs
City Manager
September 5, 2007
Mr. Ronald McLemore
City Manager
Winter Springs, FL 32708
Dear Mr. McLemore
This letter is to inform you that I do wish to appeal your decision to
the City Commission in regard to fence permit number 200701826
which you indicated was issued in error.
Sincerely
Lon Miller
1314 Deer Run Drive
Winter Springs, FL 32708
cc:CK
W*dn"d". ft =T Amaia Onlirw Uwaw iajbr Pyc 1
CITY OF WINTER SPRINGS, FLORIDA
1126 EAST STATE ROAD 434
WINTER SPRINGS, FLORIDA 32708-2799
Telephone (407) 327-1800
Ronald W. McLemore
City Manager
September 28, 2007 COPY
Michael D. Jones & Associates, P.A.
P.O. Box 196130
Winter Springs, FL 32719-6130
RE: Lon Miller Appeal
Dear Mr. Jones,
In response to your letter of September 27, 2007, please be advised that your client's
appeal has been rescheduled to the October 22, 2007 Commission meeting. Also, please
be advised that the starting time of Commission meetings has been changed to 5:15 PM.
Please advise your client of the change of dates.
Sincerely,
Ronald W. McLemore
City Manager
cc: Lon Miller
F- A-X60 5 MA Vim. 7o.--j -7 1z-w /o'j 2 j zoD Fv- t
MICHAEL D. JONES & ASSOCIATES, P.A.
ATTORNEYS AND COUNSELORS AT LAW
P.O. Box 196130
Winter Springs, Florida 32719-6130
Telephone: 407/695-7666 September 27, 2007 Facsimile (407) 695.7157
Of Counsel:
Kenneth M. Leffler
Mr. Ronald McLemore
City Manager, City of Winter Springs
1126 East State Road 434
Winter Springs, FL 32708-2799
RE: Lon Miller, 1314 Deer Run
Dear Mr. McLemore:
The above -referenced citizen has asked that I speak on his behalf at a meeting
to be held before the City Commission. I am advised that you have asked Mr. Miller to
advance the hearing date from October 8th as set out in your letter of September 12,
2007, to October 2n , as set out in your September 20th, 2007 letter. I understand Mr.
Miller has approved your telephone request, however, I must respectfully ask for
another date.
I have not had time to adequately review this matter and have asked under
separate cover for a public records request in order for me to be fully aware of what the
City's position is on this matter.
I would ask that you continue this matter for at least two weeks in order for the
City to get the information together and for me to review the same. Please advise of
the continuance at your earliest convenience.
Sincerely,
MDJ/jmh 4chael D. J nes
Copy to: Lon Miller