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HomeMy WebLinkAbout1993 08 04 Planning and Zoning Board Regular Minutes Planning & Zoning Board Minutes Wednesday, August 04,1993 Board Members: David McLeod, Chairman, Present John Ferring, Vice-Chairman, Present David McLeod, Present Thomas Brown, Present Grace Ann Glavin, Present City Official(s): Greg Kern, City Planner The meeting was called to order at 7:30 P.M. Approval of the Minutes of Julv 21.1993 Ferring noted on the minutes, bottom paragraph next to last sentence, where it addresses dry bottom ponds, "were placed in the City Code with the knowledge that in some" I think it should be "instances" as opposed to "incidents". McLeod asked the recording secretary to see that the change is made. Ferring made a motion to approve the minutes of July 21, 1993, seconded by Hopkins. Vote: Hopkins-aye; Glavin-abstain; McLeod-aye; Brown- aye; and Ferring-aye. Motion carried. Ferring announced his resignation as Vice-Chairman. Ferring stated he will subsequently be resigning from the Board in a short time. McLeod said I am sure that you have reasons, and I accept your resignation. McLeod opened for a motion to add the election of a new Vice-Chairman to the agenda. So moved said Ferring. Hopkins seconded. Vote: all-aye. At this time McLeod stated that we will hold the nomination of Vice-Chairman after the presentation of the Concurrency Management System Ordinance. Review and Recommendation of the Concurrency Mana2ement System Ordinance Kern stated that the Board had already received the Concurrency Management System Ordinance draft dated July 13, 1993. Kern gave a brief background on the reasons for having a Concurrency Management System Ordinance. Florida Statutes Chapter 163 state the need for providing public services to support development that are concurrent with the impacts of that development. Rule 9J5 of the Florida Administrative Code further spells out the requirement that prior to issuing a development order a concurrency management system must ensure that adopted levels of service are maintained for the concurrency public facilities, these facilities are potable water, sanitary sewer, roads, recreational facilities, solid waste, and drainage. Also in the Comprehensive Plan we specified levels of service for each one of the facilities. Kern continued, on page 1 of the ordinance Division 1, Section 1: Purpose and Intent. McLeod asked if it would be proper to reference back to the source of the wording, at the end of the paragraph by adding parenthesis and where it was taken from, (i. e., Chapter 163, FS) so that anyone reading this would automatically know where it came from. Kern answered that we could reference both the Florida Statutes and the Florida Administration Code. ,... Planning & Zoning Board Minutes Wednesday, August 4,1993 Page 2 - Ferring asked does Chapter 163 or 9J5 address either police, fire, or schools under concurrency. Kern answered that schools, fire, or police are not concurrency facilities or sefVIces. Hopkins asked Kern where this basic core comes from, is it something original that has been altered to fit our City or was it completely compromised by ourselves and staff? Kern answered that what you have in front of you is really the result of 11 months of work by myself and staff and Attorney Bricklemyer. I did substantial research into other municipalities and local governments and found out what type of Concurrency Management System and Ordinance they have in place and tried to build what would be a good sound ordinance for the City of Winter Springs. Glavin pointed out what she considered to be a significant structural defect: Section 4A says "A Certificate of Concurrency shall be issued by the City Manager or his designee". Glavin continued, then page 11 Division 5 Section 1 0 A says "Appeal of denial of a Certificate of Concurrency shall be in writing to the City Manager." That does not seem to be correct, I do not think the same person can issue something and then be the recipient of the appeal of his own denial. Kern answered that we can revise the language. Glavin asked, but who deliberates on the appeal? McLeod read the next statement of that Section 10 A, "The decision of the City Manager shall be final." on page 11. Kern and Glavin simultaneously stated that the appeal should go to the City Commission. Glavin said, going on to the last page, "If capacity was temporarily reserved prior to an appeal, it will remain temporarily reserved ... If the Applicant wins the appeal, the city must permanently.." I would say the appeal needs to go to the City Commission. Glavin continued, but I would have a preference that somewhere in the application process there might be the ability of public input on these things prior to the City Manager making his determination. Kern stated that the reason public input is not requested here, is that the determination of capacity is definitely a black and white issue. It is either our level of service on the road allows 400 single-family dwelling units or it does not, there is no ambiguity about it. There is nothing for the public to input on any of these issues, they can not say that is right or that is wrong because I personally know you have more capacity then you are saying you have. Kern gave an example: Somebody comes in and says he has 400 dwelling units, I need 50,000 gallons per day water & sewer, Kip has database, he can look it up and say we have 200,000 gallons per capita per day, we can give you 50,000 gallons, he will reserve that upon payment of the fees. What we are doing here is applying the same type of analysis to roads, solid waste, recreational, etc. Ferring asked if there is no appeal process here, just citing the particular example you just used, let's say they grant this developer 50,000 gallons capacity and subsequently when the developer is ready to go into his final stages, we say sorry, we can not give you 50,000 gallons capacity anymore, we can only give you 25,000 gallons capacity. So is there an appeal process for that individual developer to go before the City Commissioner? Kern answered that ifwe grant him a Concurrency Certificate, he has the 50,000 gallons, we Planning & Zoning Board Minutes Wednesday, August 4,1993 Page 3 have to provide him the 50,000. Kern stated that the City has to track its facilities very closely. Glavin made a suggestion that maybe it would helpful on our work copy to identify where the various sections of the ordinance came from and then maybe if something comes from State which we are implementing which we have no ability to change or worry about, we won't worry about the fine print, but something that is initially or originally generated from the City of Winter Springs or the attorney's office, we might look at a little closer. Brown stated that when we were going through the Land Development Regulations Kern developed a chart to reference where provisions came from. Kern answered that we could definitely do this. McLeod stated that maybe it is something you could talk to the City Manager about, to see if the City Manager feels it is in the best interest of the City also. Glavin said I think what we have been talking about is accountability. I think ultimately when things are passed, be it Comp Plan Map, be it a LDR, be it a Vested Rights Ordinance, or this Concurrency Management Ordinance, I think the accountability is with the City Commission. I think that we as Board members serving on the P&Z feel that our duty is to take a little more time than the City Commission has available to look at this and to fine tune it so that as to the recommendations that we make to the City Commission, be they accepted or rejected, at least we have tried to be as technical in our review and complete as possible. I think what we were talking about or what I was asking about knowing where some of this comes from, really comes down to checking on staff or checking on our expert advisement and I am not talking about legal, I am talking about Engineering or whomever, what ever kind of outside consultant or in-house consultant comes to the City. Ferring, McLeod, and Kern further discussed accountability. Kern discussed Section 2. Definitions. Glavin questioned the definition of a Concurrency Deferral Affidavit. as she could not find within the provisions of the mechanism of this ordinance where a Concurrency Deferral Affidavit is used, required, not required, or optional. Kern discussed Section 3. The Application process for A Certificate of Concurrency. Kern explained the differences between final and preliminary development orders by listing examples of each. Glavin asked regarding Section 3. in B, the fourth line down, you used final development order, I think you are not meaning to put it as sum kind of generic final development order, I think you mean that as your defined term of Final Development Order, as in A, so it needs to be capitalized. My other question is that in your definitions, you are defining Development Order. I don't think you are creating a new specific legal category for development order as opposed to final development order or preliminary development order, so probably that definition should be deleted. Hopkins stated that it seems to him that A and C probably should be revised in order, because C is referring to the preliminary development order which would naturally be .1"'" Planning & Zoning Board Minutes Wednesday, August 4,1993 Page 4 sought before the final development order. Kern answered that what we are doing in C is saying an applicant may come in ,it is an option to come in, at preliminary development order and request the determination to be made, but he has to do it by final. So we present what has to be done in A and B, then we go to C, and we say well this is an option for you. Glavin added why don't you say that then, say the applicant may at his option, then it is clear. Glavin continued, I would move C up top and say "The applicant at its option may request a concurrency determination and a Certificate of Concurrency" and remove "as a part of the review" because that does not make any sense "at the preliminary development order stage". The 1 and 2 is what is going to be happening here at the preliminary development order stage, I think structurally, that you could either have a general section, on what 1 and 2 is. Discussion ensued regarding the language regarding timing of reservation of capacity in Section 3 C. Hopkins asked if it would be better to have the applicant require a concurrency determination at the time of preliminary development review. Kern answered that the reason it is drafted that way, it is consistent with the Florida Administrative Code Rule, which says by final development order you need to do this. Glavin stated I would agree with Hopkins, I do not see why we can't be more restrictive or more compelling than the state statute. McLeod asked Kern to inquire with the City Attorney as to why. Kern answered, I don't see a problem with that as long as in the preliminary development order they specifY the intensities and densities of use, the projection population, the projected water flows, sewer flows, etc that they are going to need. ~ Ferring said, under Section 6 C, it says "each concurrency determination is made, available capacity will be temporarily reserved in the Concurrency management system until the final disposition of the development order on which the application was based." Ferring said, it seems to me that we are letting this guy tie up capacity for a long period of time. McLeod said, if you do it in the preliminary, I would think you do. Kern stated to Ferring that you have a good point in terms that in C, it is more that just the concurrency determination, the certificate should be issued, contingent upon approval of the final development order, and that should be added language into C. Glavin questioned the process and status of a concurrency determination. Kern discussed the definition of "Concurrency Determination: The process to determine if Concurrency Public Facilities are adequate to accommodate the impact of a new development project ... This process does not involve the reservation of capacity, does not ensure that capacity will be available upon application ... does not guarantee that a Certificate ...will be issued." Because the concurrency determination does not reserve capacity, on page 5 section 6 paragraph C "As each Concurrency Determination is made," should read "As each Certificate of Concurrency is issued," we will have to work on the wording, but that is the intent. Glavin asked if a concurrency determination is temporary, is it not the process which the City Manager goes through to issue a certificate of concurrency. Kern answered no, concurrency determination is just saying whether we do or do not have capacity. Hopkins said that is what I am saying should be done at preliminary. Glavin said there is Planning & Zoning Board Minutes Wednesday, August 4,1993 Page 5 no reason why you shouldn't be able to go back and re-Iabel concurrency determination, because the way I read concurrency determination, not in the definition, someone is going to say where is my certificate, I already received my concurrency determination. Kern said, the intent is the formal process of going into your Concurrency Management System, finding out what available capacity you have for roads, water & sewer, etc., and making that determination. Glavin said, as C says "As each Concurrency Determination is made," I think what you mean to say is "While the review process is pending there is a temporary reservation made." McLeod said, it is permanent until the final development order, once you reserve it, it's there. Kern continued, the only time we are reserving capacity is when we issue a certificate. Hopkins said, and that is what it should say. Glavin said, say it in plain English. Kern said yes. agreed. Hopkins said, but again if you go back to the application rules on page 3, again nowhere in there do you require the developer to seek a concurrency determination. Kern said, they are seeking the certificate. Hopkins added, in C "The Applicant may request a concurrency determination" but over in the Concurrency Review, the City is going to perform that function anyway. So it seems to me, that one should go hand and hand with the other. Kern agreed. Glavin stated you could call it a concurrency review process. Kern stated, that concurrency determination should be changed to concurrency review because you are referring to the process, and that will be so noted in the definition. Kern continued, in going through C, the applicant, at his option, may request a concurrency review and a certificate of concurrency as part of the review and approval of the preliminary development order.. Hopkins interrupted that we have already gone through this, the applicant may request, I think we need to change that to, the applicant will request.. McLeod stated, no he says the applicant may at his option request, he has got the same piece of paper in front of him. Glavin said, Hopkins wants to move it up substantially. Hopkins continued, I think it is only right, I think it makes sense both, to the developer and the City. Kern answered that only the possible problem I can see with that, it if someone comes in the conceptual plan and goes right to final. Hopkins continued, underneath the definition of Concurrency Determination, it is really saying that it is nothing more than a review to make sure that the project can be accommodated, I don't see a problem with that being up front, so everyone knows where they stand. Glavin said, then you are going to have to require some kind of animal called preliminary development order for every project, some people never get to preliminary development. Kern continued with Section 4, the Certificate of Concurrency. Glavin asked, why do you have" or his designee", why donlt you say "the City Manager". Kern said, we can say City Manager, at this point, obviously, it was stated as "or his designee" as many of the ordinances have a Planning Director, Director of Community Development. In this case if we say "or his designee", we can have it either or, if we feel it should be definitely 100% be in the hands of the City Manager, then we can cross out, "or his designee". Glavin said why don't you say "shall be issued by the Office of the City Manager" . McLeod asked, we are saying that the City Manager has to do something, but doesn't he determine who is charge of what. Kern answered yes. McLeod continued, that it is really his choice, he ".... Planning & Zoning Board Minutes Wednesday"August 4,1993 Page 6 might find that he could be doing this, but if he chooses not to, then he has somebody else there, it is still his job on the line when you have the wrong person doing the job. Glavin said, but it has to be paid staff. McLeod said, it seems to me that part of the City Manager's job and responsibility, who he or she wants handling certain issues within the City. Hopkins said, I agree with McLeod, it is his job on the line, as City Manager, it is his responsibility to delegate out the duties that are required. Glavin said, why don't you say or his designee within paid staff members or city staff, keep it within the City staff The Board agreed with" or his staff designee". ~ Kern continued under B, "A Certificate of Concurrency shall be valid for the same period of time as the development order with which it was issued. If the development order does not have an expiration date, the Certificate of Concurrency shall be valid for two (2) years." McLeod asked, is what we are saying is that if someone fails to put the date on the order then it would run for two (2) years. Kern said, on the development order. Glavin said I don't think we are saying anywhere that it has to have an underlining development order, so I think that B & C are unnecessary, or perhaps misleading, because then one would say well I can't get my certificate of concurrency now, because I am not ready for my final development order and maybe they might like it without getting a preliminary development order. Kern answered, we won't do that, we won't allow them to bank capacity, they need to have a final development order. Glavin said, under your application rules, the application must be concurrent, must be in conjunction with an application for a development order, either preliminary or final. Glavin asked in C "All new rules, regulations and requirements adopted by the City subsequent to the initial certificate issuance", page 4 C, is that a different certificate or the same certificate, there a difference between an initial certificate and a subsequent certificate. Kern said, I don't see why "initial" is in there, there is only one certificate we are referring to then we need to capitalize that. Hopkins asked, I assume that the City Manager would also be the one to grant an extension. Kern answered that the extension would be part of the development order. Kern said, D talks about "Public facility improvements associated with a phased development may likewise be phased." Kern continued, under E "A Certificate of Concurrency is not transferable to another parcel of real property. The certificate shall run with the land and is valid only for subsequent development orders for the same parcel, and to new owners of the original parcel for which it was issued." Ferring questioned "running with the land". McLeod answered, that it means that they could not go over to another parcel next door and then decide that they were not going to develop this one, today. Glavin questioned what is meant by "for subsequent development orders", that goes back to this conceptual thing are you going to tie this to some underlining development order. Kern said he would look into why it says "subsequent development orders". Planning & Zoning Board Minutes Wednesday, August 4,1993 Page 7 Kern continued, Section 5 Exemptions,Glavin pointed out, that you need to capitalized your defined terms in there, if they are defined terms. Kern agreed. Kern continued, under A "Projects Below the Minimum Threshold. .. shall be exempt from concurrency review. 1. A residential project which would result in the creation of one (1) additional single family dwelling or one (1) two-family dwelling." Glavin asked, what "one. additional" means. Glavin said, why don't you say "one (1) single family dwelling". Kern agreed. Kern continued, under 2. Change of use or expansion of non-residential projects of up to ten percent (10%) of the existing gross floor area, providing such expansion is estimate to generate less than ten (10) peak hour peak direction vehicle trips and create no more than one (1) equivalent residential unit of utility demand." Glavin asked, why are you talking about floor area versus what percentage of the parcel is used. Kern answered you are really talking about expanding a commercial operation, the rationale here is that by expanding it you may have an impact. You may not have an impact by expanding it only by 10 %, the rationale is that you are not going to have an impact, unless you are generating more than ten peak hour peak direction vehicle trips. Glavin asked, why don't we say "expansion of existing non-residential building" instead of "projects". Kern continued under 3 regarding accessory buildings and structures which do not create additional public facility demand. Kern discussed Division 3 Section 6 "B. The.. system shall be accessed on a first-come, first-served basis as a complete development application for a Certificate of Concurrency is received by the City." Glavin asked, what does that mean first-come, first-serve. Glavin suggested that it would be neater, rather than saying "the concurrency management system shall be accessed" you could say" the application for certificate of concurrency shall be on a first-come, first-serve basis, together with either a preliminary or final development order application." Kern continued, "If the application is determined to be not technically complete, the application will be returned to the Applicant with correspondence detailing the deficiencies and stating why the application cannot be further reviewed. "-McLeod asked, could you not come out and say after, "it cannot be further reviewed and no reserve will be put on". Glavin suggested "there shall be no temporary reservation until such time as the concurrency review is complete and the certificate of concurrency is issued. " Glavin continued, what I am saying is that the application for certificate of concurrency is suppose to be at the same time as the application for some sort of underlining development order, because you are going to tie it necessarily to some development order, so you are going back to where you are defining that, so that will say that here. Glavin questioned what is the Concurrency Management System. Kern said, there has to be system for you to tracking concurrency on your facilities and reserve the facilities. Glavin asked, that is your review process, right. Kern continued, again it is a table based or a computer based system that you are accessing, to track these facilities. Glavin continued back in 1 you say the Concurrency Management System is this whole process which is the review process, if you are calling it some technical computer thing, it should say that, the Concurrency Management System is not defined but it describes a review process, so why don't you call it a review process. Kern said, under C, we don't need to JiIIII"'" Planning & Zoning Board Minutes Wednesday, August 4,1993 Page 8 say "reserve in the Concurrency Management System" we need to say "will be temporarily reserved". Kern continued, "if the application is approved, the reservation becomes permanent. If the application is denied, the temporarily reserved capacity returns to the status of available capacity." -. Kern suggested at this point, since this has been pretty well chopped up, I think that we may get a little lost here. McLeod asked, are you suggesting we table this at present. Kern said, yes. McLeod said at this point, he would be like to take a look at the draft from the City Attorney of our discussion of last week regarding Paragraph 6 of the Vested Rights Order VR 93-03. McLeod reviewed with the Board that the applicant ofVR 93-03 is to be excluded out of permit ofVR 93-01. Hopkins said, I thought that it summed up the motion we made at the last meeting pretty specifically, so I went ahead and signed it, McLeod said, I think everybody should be comfortable this is what we ask for. McLeod noted for the next meeting we have a revision to Section 9-8, on the borrow pits. Glavin said, I make a motion to put it on the agenda for the next meeting. Hopkins seconded. Vote all-aye. Ferring made a specific request that Mr. Kruppenbacher be here because he has been intricately involved with the litigation on this lawsuit, I would like to hear his opining. Kern said, he will put the request in to Attorney Kruppenbacher to be available and that Attorney Bricklemyer should attend to help us with the language. McLeod said, we would like to, at this time, open the floor for nominee for Vice- Chairman. Ferring said, since I resigned I would like to make a motion to nominate, Anne Glavin. Seconded by Hopkins. McLeod ask for any other nominee. None were made. Vote: all-aye. Glavin asked, if we are going back to the Concurrency Management at the next meeting, it might be helpful to bring a copy of Resolution 509 dated August 26, 1985, as it is referenced in this ordinance. McLeod asked if there would be a possibility of having a page made up which referenced the topics discussed at each P & Z meeting to act as an index. Kern asked, how far back do you want to go? McLeod said, I would think back when we started the new Comp Plan, back to 1990 or 1989. The Board agreed. Kern discussed his findings on the Fisher Road parcel with the Board. Glavin asked about the Sunshine Law in relation to this Board talking to the City Commission. Hopkins answered, it is my understanding, under the Sunshine Law that if you are serving on a board with a member who you will voting on the same issue, then you are not allowed discussion, talking in private, concerning that matter, but if we are on one board voting on a issue that the City Commission will later be looking at, it is my understanding that, we have the right to talk to the City Commissioners about that. Planning & Zoning Board Minutes Wednesday, August 4,1993 Page 9 Glavin said, I just wanted to know if we can talk with the City Commissioners as to our opinion. The meeting was adjourned at 10: lOP .M. Respectfully submitted, J anine Porter 13 August 1993