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HomeMy WebLinkAbout1992 07 08 City Commission Workshop Minutes . . . ,. ." WORKSHOP MEETING CITY COMMISSION CITY OF WINTER SPRINGS JULY 8, 1992 The Workshop Meeting of the City Commission of the City of Winter Springs, Florida, was called to order by Mayor Philip A. Kulbes at 7:00 p.m. Roll Call: Mayor Philip A. Kulbes, present Deputy Mayor John Langellotti, present City Manager Richard Rozansky, present Commissioners: John V. Torcaso, absent Don Jonas, present Terri Donnelly, absent Cindy Kaehler, present Review of Vesting Ordinance: Greg Kern, City Planner, explained that in line with our Comprehensive Planning process we need to implement the Land Development Regulations and the various ordinances to really enact the policies and objectives of the Comprehensive Plan, and associated with the Land Development Regulations is the Vesting Ordinance. Mr. Kern said in working with Attorney Bricklemyer this ordinance is pretty straight- forward and does not get any more complicated than it needs to be. Mr. Kern said he handed out this evening a Vested Rights Special Use Permit Application Outline. The key component of the Vested Rights Ordinance is the application. The process is outlined in the ordinance but we do not have an application with the ordinance. This is critical because this is how the landowner will apply for his vested rights. Mr. Kern then discussed the outline. Commissioner Kaehler asked about presumption vs. common law, on Page 4. Common law vested rights on Page 5 was discussed. Commissioner Kaehler asked what an omission of the government agency is on Page 5, Sec. C, l(d). Mr. Kern gave as an example if a developer came in and was given incomplete information regarding the zoning, and then went on and spent money on engineering, then when he came in for a preliminary review, it was then discovered the zoning information given him was incorrect. Commissioner Kaehler asked if this information was verbal or in writing. Mr. Kern explained an omission was committed by the government, and this would be an omission under the common law vested rights provision that would have caused harm to the developer. He relied on this information, spent money, and this could be handled by an appeal which is covered in the draft ordinance. Commissioner Kaehler suggested asking the Attorney if that is something that needs to be in writing. She said she would prefer that in our ordinance that it says written omission in Sec. C, l(d). Commissioner Langellotti asked in the appeals process, say a decision is made and it is being appealed, what rights do the public have in speaking out against it. Mr. Kern explained on Page 3, Item B, 3, the City Commission shall conduct a public hearing on the appeal. Prior to the appeal process, the Hearing Officer is the City Manager, and the City Attorney and Staff review the application. The City Commission does not get involved .until the appeal process. . . ~ . Workshop Meeting, City Commission, July 8, 1992 Page 2 Commissioner Kaehler stated if the appeal is being made on the omission of a particular staff member, it could possib1~ be one of the people that is hearing the appeal. She said should it not be taken out of that arena and given to an independent body such as the Planning & Zoning Board. Commissioner Kaehler suggested i~ go to the Planning & Zoning Board first for their review and then it was appealed ~o the Commission should the P&Z Board decide that it is not right. Commissioner Kaehler said if a developer comes in here and says to the Manager one of your staff members did this, and the Manager says no they did not, it is going to get kicked back to the Commission anyway, so if you are going to have to go through that process, you either cut out a step or you make it a completely independent body that is going to review the request. Commissioner Kaehler said there is an option to have it go before a different body, and that is a consideration that we can make. Don McIntosh, said he wanted to share some of his experiences with the Commission that his firm has had in vesting projects. In most communities he said it is maximum confusion. He said one of the issues they have found that the more cumbersome and layered they made the process of hearing these decisions, the more difficult, cumbersome, expensive and inefficient it is for the municipality to deal with. He said those that have the Planning & Zoning Board review have a much lengthier time; they are in most cases appointed, not elected, so they are recommending bodies, not final decision makers and it really has not done anything but confuse the process. . He said you should avoid hearing all the cases yourselves or having an appointed body like the LPA deal with things like the initial determinations. Mr. McIntosh said in all the applications he has made he has not had one application that was an omission oriented application where he is arguing either written or verbally misrepresentation or misleading informtion on the part of the Staff. That does not mean that it will not happen, but he said if he was the City Manager and that came up, and he could not deal with it objectively, he would know it was going to be appealed and he would recommend that it go to the Commission anyway. Mr. McIntosh recommended the system be streamlined because it is going to be a fairly major undertaking. He said he knows the intention of the City is not to deprive people of their property rights, it is to protect the City from impacts associated with future development, but this ordinance and the implementation of it can be very disastrous. He said that while the City is wise to limit its exposure and try and set systems up such that there is a limited potential for verbal representations, they can either be misinterpreted or misused and the public is reliant upon both verbal and written representations of all staff members. You can be harmed by a verbal representation as you can a written representation, and the Attorney will probably advise you an omission is an omission and whether its written or verbal it is just as damaging. He said as a consultant he gets as much in writing as he can. Mr. Genova, Addidas Road, questioned Section II, Paragraph 7, Upon receipt of an application, etc. He said it would be his judgement that a public hearing should take place prior to the original decision of the City Manager. He said the Planning & Zoning Board must get involved, not on the original application but appeal. . . . . .0 Workshop Meeting, City Commission, July 8, 1992 Page 3 Mr. Genova said to the Attorneys the Florida Statutes 1991, Chapter 380 Land and Water Management Act provides procedures, and he sees nowhere in this Ordinance that is taken into account concerning impact and threshold. He said he was speaking as a resident and not for the Tuscawilla Homeowners Association. he does not know where vested rights come from and is unable to reconcile means. For the next workshop he said he hopes he has some answers to the he has asked. He said what it questions Mr. McIntosh said he found the determination to go pretty quickly and pretty linearly based on whether or not you can demonstrate you relied on your past approvals and had engineering plans submitted or approved, you presented invoices showing that you spent money, you proved that you would be harmed if you are not and basically contend that you will be harmed if you are not granted vested rights and again it depends on the underlying motive. If the underlying motive is to take back the ability of individuals who have zoning to use their property as was approved originally, then you have the decision being made by staff one way. If the atmosphere as in Seminole County, then decisions are made in a different way, and so there is some potential subjectivity based on the tone that you all set for the staff to deal with these kinds of decisions. Commissioner Kaehler said she sees vesting if the City administratively designate certain areas what the applicant is really looking for is a rezoning back to what their original zoning was. Mr. McIntosh said the attorneys are going to have to answer that because of adding the administrative rezoning to the issue. Mayor Kulbes said we have a Site approval Board which consists of the City Manager and City Staff; they have approved many site approvals without any problems from citizens and without interference from the City Commission. That is the way Paragraph 7 can work. Commissioner Kaehler said she has always stated that she didn't think that site approvals should be done by the Staff; she feels the Commission should be involved. Mayor Kulbes said that paragraph 7 could be changed with the City Manager and Staff making a recommendation to the Commission and they will make the final decision. Mr. McIntosh said for the Commission to be careful not to burden themselves, Government or the taxpayer with an unneeded additional layer of bureacracy. do not underestimate the load that you will feel here. He said not only his every engineering firm in the area will market actively every property owner outs in the City to produce services to make these applications for property the City, He said firm but by mail- owners. Mr. McIntosh said he would like to see the ordinance grant the greatest possible time for vesting. He said the more frequent a person has to come back and ask for extensions is a scary thing and in order to properly finance, in order to market any piece of property, the shorter the timeframe the more difficult and frankly, some- times impossible it is to sell it. Based on the economy, developers with a 5 year vesting program would have the last part, whatever is not built be it half or quarter, subject to a reinterpretation and maybe even a removal of their vested rights and then in spite of all the different approvals given, an ability or an inability to proceed, and so timeframes need to be dealt with on a site specific basis in contrast with a person who has a single family . . . Workshop Meeting, City Commission, July 8, 1992 Page 4 probably does not need 5 years but they certainly enjoy the 5 years until it got equitable. A commercial piece of property at Wagner's Curve, depending upon SR 434's construction can find 5 years a little scary when they are depending upon DOT as an example to go forward with the construction of the roadway. So the specific application of timeframes is a little difficult to make specific. Five years is probably felt as being pretty lenient, but in some cases it may not be adequate. There is a provision in the ordinance to extend. Commissioner Kaehler suggested it could be part of the application form that the applicant ask for x number of years given the market and what they perceive to be the timeframe and the justification for it. Mr. McIntosh spoke about Item A General which talks about the applicant being an approval candidate for vested rights provided they are the owner of the property before a certain date or the contract or option purchaser. What happens if someone had sold the piece of property; they are not, therefore, the owner prior to that date and therefore not the contract or option holder but are the new owner to the property. He said he did not think the intention is to exclude someone from that; unless that is the intention which is to force any new owner to come forward and make application for the transfer which is what this does. The City Planner said he thinks that is the intent; that if you are an owner of the property after the Plan adoption date, you are subject to the provisions of the Comprehensive Plan and concurrency management. Mr. McIntosh asked the vested rights would not run with the land, it would run with the ownership? Greg Kern answered it runs with the land, however the ownership has to be prior to the adoption date so if it was sold after the adoption date, if the transaction occurred after the adoption date, that is a caveat in there, despite the fact that it ran with the land, because of the timeframe, the person no longer has vested rights. Mr. McIntosh said there isn't a single intelligent buyer of property that will not first deal with the issue of vested rights prior to closing. What we are talking about is making certain that this is written in a fashion such that the person who has done what they'are supposed to do and have been determined to be vested, transfers their property, then does not have the new owner come in and see you and say you were not the owner before this date, you do not have a contract and an option, it is a new ballgame now, therefore, all the vested rights are out because the intention of all the ordinances is for vested rights to run with the property. It is critical that it run with the property because that is the intention behind the whole vesting process so he said he is sure that is what the attorney is going to say, but that is not what this says clearly, and he wanted to bring that to the attention of the Commission. Commissioner Langellotti asked about administrative rezoning and Mr. McIntosh answered the attorneys would have to answer those questions. At the bottom of Page 4, Sec. 2a, Sub-item b, talks about physical development, Mr. McIntosh said he does not think there is a better way to word this section, but it does leave quite a bit of discretion. On Page 5, Item C, Mr. McIntosh said it is unclear at the end of Item 1 as to whether or not the intention is that if the applicant can prove a through ~, some of these or one of these; he said he would like to have clarification so there is no misinterpretation. ." . Workshop Meeting, City Commission, July 8, 1992 Page 5 On Page 5, under d, which talks about inequitable, unjust or unfair, whether or not someone's lost development rights would be considered fundamentally unfair. He said he would deal with that later. On Page 5, Section IV, talks about the 5 years; Mr. McIntosh said he would like to recommend that there be some provision for a larger amount of time for larger developments. On Page 6, Item 4b, which talks about the City Manager will determine whether the proposed change is a substantial deviation and these are developments that might have a plan change, and the question is then, whether or not someone's vested rights are lost as a result of that plan change; in b it talks about an increase in density and Mr. McIntosh said it is logical to assume that an increase in density could likely be an increase in impact. An increase in impact is a concern. There might be instances when an individual with an increase in impact could demonstrate that they have mitigated for that impact and this does not allow for anything other than a determination of sub- stantial. What is not clear in Sec. b is that if an individual decreases the density in a development then they are in fact not substantially deviated. He said he would like clarification on that. . Commissioner Kaehler asked if we legally have the right to allow something to go anything over concurrency. The City Planner said we have the right to exempt the owner from provisions of the Comprehensive Plan under the policies and objections or concurrency management. Mr. McIntosh said the purpose behind that is to protect individuals who have relied on actions of government prior to the implementation of this Act, so that by the implementation of the Act they are not harmed and reduce rights that they have otherwise. Mr. McIntosh said one of the reasons he brought up Item 4, as an example: you have a development that has construction plans, construction plans have been approve: and the intentions was to do a commercial shopping center. The project is vested under both consistency and concurrency, and the property owner sells the property with the determina- tion that the property is vested. The new owner comes in and wants to change the width of the building or add two parking spaces, etc. The effect is there is wisdom behind making these vesting determinations site plan specific. It is important that you protect the public from people who are garnishers and stashers of capacity, but there are very innocent bystanders who can get wiped out or harmed significantly by wanting to make a change. If ordinances are written flexibly enough to allow that, and again the intent here is to allow the City Manager and Staff the ability to make a substantial determination. Mr. Genova spoke about Page 5 Common LawVested Rights, and the area known as detri- mental reliance, and he asked Attorney Bricklemyer study that and also Subsection d should be reviewed. . Glen Marvin, Winter Springs Boulevard, said on the first page under Section I Intent, the first sentence which says "vested with respect to the City of Winter Springs Comprehensive Plan and the Land Development Regulations adopted to implement the Plan", he said he believes this implies that you can be vested with respect to the new LDRs which have not been developed and he does not know exactly what they are going to say. He said if you go to Item 6 and Item 7, he said it seems clearly the intent of this Ordinance described on the very first page is to allow applicants to request vesting . . . ~ Workshop Meeting, City Commission, July 8, 1992 Page 6 with respect to the new Land Development Regulations, which he has not seen and does not know what they are going to say, and that to go back to the last page he mentioned and then try to restrict it is too restrictive. He said his concern is specifically for the Tuscawilla PUD; if it is not given some release from some of the unknown new LDRs tht we are going to have that it would be much to constraining to achieve those things that are set forth in the Settlement Agreement. Mr. Marvin said it appears the City of Winter Springs is focusing on platting and engineering approval. He said he would think there should be some provision in this ordinance for existing neighborhoods where people want to make an addition to their house and find out the infrastructure is not there and they can not do it. If you want to allow someone to add a bedroom in an area where the road out front is over capacity, you will not be able to do it, and maybe that is what you do not want to do. John Ferring, Benitawood Court, spoke about the role of the Planning & Zoning Board. He said he feels the Planning & Zoning Board should have a definite role in anything that is taking place. Meeting was adjourned 8:40 p.m. Respectfully submitted, Mary T. Norton, City Clerk