Public Hearing Resolution No Mayor Leon Skip Beeler and Members of the City Commission

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1 CITY COMMISSION BRIEFING & Planning Board Report For Meeting Scheduled for January 19, 2012 Vested Rights Special Permit Ocean Dunes Condominium Association Public Hearing Resolution No TO: FROM: THRU: RE: Mayor Leon Skip Beeler and Members of the City Commission Anthony Caravella, AICP, Director of Development Services Chuck Billias, City Manager Modification to previously approved Vested Rights Special Permit City Case No Ocean Dunes Property located at 33, 35, 37, 39, and 41 North Atlantic Avenue PUBLIC HEARING and FINAL ACTION on RESOLUTION DATE: January 9, 2012 A. Background Information The subject property ( Property ) lies in the CG General Commercial zoning district and within the Downtown Overlay District. A vicinity map is presented as Attachment B. Residential condominium structures (originally five buildings) sustained substantial damage during the hurricanes of Because of this, the Applicant subsequently demolished the buildings. B. Vested Rights History and Request for Extension The Applicant and petitioner, Ocean Dunes Condominium Association, requests a modification to previously approved Vested Rights Special Permit acknowledging the right to reconstruct. The petitioner sought and received approval on November 3, 2005, by City Commission adoption of Resolution No , of a vested rights special permit to allow for demolition and reconstruction of 20 residential dwelling units. The petitioner sought and received approval on January 4, 2007, by City Commission adoption of Resolution No , an extension of time to the vested rights special permit approved by Resolution The petitioner sought and received approval on January 18, 2008, by City Commission adoption of Resolution No , an extension of time to the vested rights special permit approved by Resolution K:\userdata\SHARED\Building Department\CASES\2012\2012October (2011)\ Vested Rights Mod Ocean Dunes North Atlantic Ave\CCxfer Vested Rights Ext ( ).doc

2 Memorandum to: Mayor Leon Skip Beeler and Members of the City Commission Re: Resolution No , Modification to Ocean Dunes Vested Rights Special Permit Date: January 9, 2012 for Commission Meeting January 19, 2012 Page 2 The petitioner sought and received site plan development order approval under Site Plan Case No to reconstruct 18 dwelling units on the described property, after City Commission review on March 3, A copy of the development order for this site plan is presented as Attachment C, and a partial reproduction of the site plan is presented as Attachment B. The conditions of the vested rights permit approved by adoption of Resolution No , required Construction must commence and substantial construction must continue on or before March 3, Construction did not commence, and the petitioner sought and received approval on October 7, 2010, by City Commission adoption of Resolution No , an extension of time to the vested rights special permit approved by Resolution , and an extension of time to Site Plan Case No The extension was to March 3, 2012, and construction has yet to commence. At this time, in a letter dated October 25, 2011, the Applicant requests an extension to that previously approved vested rights and site development plan approval. A copy of this extension request is presented as Exhibit A to Draft Resolution No (Attachment A). The proposed Resolution , if granted, will supersede the previous approval. The Applicant s justification for this extension can be summarized as follows: The project is experiencing delays due to difficulties related to financing the reconstruction of the condominium. The Applicant is requesting a modification to the conditions of the vested rights special permit to provide for the expiration date in the vested rights permits to be extended. Given the action of the state legislature in 2011, which extended the Site Plan Case No development order approval by an additional 2 years from March 3, 2012 to March 3, 2014, it is not unreasonable to extend the vested rights special permit in a like and similar manner. In addition, the Applicant s letter can be considered a request for extension to that previously approved site development plan approval pursuant to 2011 Florida House Bill 7207, which provides for such extensions, regarding a development order issued by a local government which has an expiration date from September 1, 2008, through January 1, 2012, is extended and renewed for a period of 2 years after its previously scheduled date of expiration. 1 1 The state legislature, in the 2009 legislative session, adopted Senate Bill 360 which has become law, that mandated any permit (including any local government issued development order or building permit) that was set to expire between September 1, 2008 and January 1, 2012, is extended and renewed for a period of two years following its date of expiration. The state legislature, in the 2010 legislative session, adopted Senate Bill 1752 which has become law (Chapter Laws of Florida), that mandated : Except as provided in subsection (4), a development order issued by a local government, a building permit, and any permit issued by the Department of Environmental Protection or by a water management district pursuant to part IV of chapter 373, Florida Statutes, which has an expiration date from September 1, 2008, through January 1, 2012, is extended and renewed for a period of 2 years after its previously scheduled date of expiration.

3 Memorandum to: Mayor Leon Skip Beeler and Members of the City Commission Re: Resolution No , Modification to Ocean Dunes Vested Rights Special Permit Date: January 9, 2012 for Commission Meeting January 19, 2012 Page 3 C. Draft Resolution The attached Resolution, as drafted, authorizes the units and use on the property and also requires certain conditions and allowances for redevelopment of the land. The proposed Resolution , granting the extension/modification, identifies changes to the previously approved vested rights Resolution Changes to the special permit standards of development and conditions are reflected in underline and strikethrough form in the proposed Resolution which is presented as Attachment C. D. Summary, Staff Analysis and Recommendation The Commission is advised that residential uses are inconsistent, and thus non-conforming, land uses in the CG zoning district. However, provisions of the City Comprehensive Plan and City Charter authorize consideration for reconstruction of structures damaged by natural disaster. The applicable provisions of the Comprehensive Plan, for purposes of this review, are: Policy I.4.2: Existing land uses that are inconsistent with the comprehensive plan may be reviewed by the City at the request of the property owner to determine the degree of inconsistencies. Such review may result in: (a) A determination that the impact of the inconsistencies on surrounding consistent uses is minimal and not detrimental to the public health, safety and welfare. As a result, status of development as to its consistency with the comp plan may be waived; (b) A determination that the impact of the inconsistencies may be substantially mitigated, in which the development may attain consistent status by implementing the required mitigation measures; and (c) A determination that the inconsistencies have substantial impacts, which may not be mitigated. As such, the development shall remain an inconsistent use and such use shall terminate according to law. Therefore, to apply provisions of this Comprehensive Plan Policy, the proposed Resolution has a finding ( Whereas clause) which makes the determinations as required by the policy. Staff recommends approval of the Resolution modifying a previously approved vested rights special permit for reconstruction of the Ocean Dunes Condominium subject to the findings, terms and conditions found in the Resolution. Additional Code and/or Charter provisions which may guide the Commission in this action are included as Attachment E to this briefing.

4 Memorandum to: Mayor Leon Skip Beeler and Members of the City Commission Re: Resolution No , Modification to Ocean Dunes Vested Rights Special Permit Date: January 9, 2012 for Commission Meeting January 19, 2012 Page 4 E. Planning Board Review/Recommendation The Planning Board considered the petition and recommended approval of this Resolution and modification to the Vested Rights Special Permit following a public hearing at their meeting held on December 5, The Board voted unanimously (5-0) to recommend approval of Resolution , subject to the following conditions: 1. The Applicant pay all costs of advertising and public notice, in the amount of $ (ads) plus $47.50 (mailings) for a total of $241.22, prior to signature by the Mayor. 2. In accordance with 2011 Florida Legislative House Bill 7202, the development order expiration date for Site Plan Case No is extended for 2 years from March 3, 2012 to March 3, Key Facts/Issues Requiring Discussion Resolution authorizes a vested rights special permit for reconstruction of the Ocean Dunes Condominium subject to the findings, terms and conditions found in the Resolution. This request is effectively an extension, since the Applicant received the same approval with Resolution The Planning Board unanimously recommends approval of Resolution The City must make a finding that the subject land use, having been damaged as a result of a natural disaster more than 50% of its replacement value, has a right to rebuild twenty (20) residential units in accordance with City Charter Section The City must find, in accordance with City Comprehensive Plan Policy I.4.2, that the existing land use, regardless of being residential in a Commercial land use and zoning designation and thus inconsistent with the Comprehensive Plan, is not detrimental to the public health, safety and welfare and thus certain Comprehensive Plan provisions regarding reconstruction of this land use may be waived providing certain mitigation measures are provided for in the reconstruction approvals. In accordance with 2011 Florida Legislative House Bill 7207, the development order expiration date for Site Plan Case No is extended for 2 years from March 3, 2012 to March 3, Included in the terms and conditions of vested rights special permit Resolution , is that construction must be compliant with and subject to conditions of, including the development of 18 units, Site Plan Case No Included in the terms and conditions of vested rights special permit Resolution , is that construction under Site Plan Case No , will vest 18 dwelling units to be considered to in existence for purposes of application City Charter Section 6.01 and City Comprehensive Plan Policy I.4.2.

5 Memorandum to: Mayor Leon Skip Beeler and Members of the City Commission Re: Resolution No , Modification to Ocean Dunes Vested Rights Special Permit Date: January 9, 2012 for Commission Meeting January 19, 2012 Page 5 2. Costs The costs associated with this request include staff and Planning Board review time, the cost of public hearing advertising, and staff time associated with preparing reports for the Planning Board and City Commission. 3. Savings Not applicable. 4. Source of Funds Not applicable. 5. Communications The Planning Board considered this petition in public hearing on December 5, One advertised public hearing is required before the City Commission. The public hearing was advertised in the newspaper, and notices to affected and surrounding property owners were provided by regular mail. 6. Environmental Impact Florida Department of Environmental Protection (DEP) permit will be required. Since the land has now been vacant for more than 18 months, and pursuant to Comprehensive Plan Objective IV.5, the Applicant will be required to provide an Environmental Impact Statement (EIS), addressing any endangered fauna and flora, with any request for development permit. 7. Department Representative Anthony Caravella, AICP, Director of Development Services 8. Recommendations The Planning Board recommends approval of Resolution Staff supports the Planning Board recommendation.

6 Memorandum to: Mayor Leon Skip Beeler and Members of the City Commission Re: Resolution No , Modification to Ocean Dunes Vested Rights Special Permit Date: January 9, 2012 for Commission Meeting January 19, 2012 Page 6 9. Recommended Motion: I move to adopt Resolution No , subject to conditions identified in the briefing memorandum and Planning Board Report dated January 9, Conditions are: 1. The Applicant pay all costs of advertising and public notice, in the amount of $ (ads) plus $47.50 (mailings) for a total of $241.22, prior to signature by the Mayor. 2. In accordance with 2011 Florida Legislative House Bill 7202, the development order expiration date for Site Plan Case No is extended for 2 years from March 3, 2012 to March 3, Legal Description Lots 3-7 inclusive, Block A, COCOA BEACH, Plat Book 3, Page 54; and, LESS the west 110 feet of Lots 4-6; and, LESS the north 35 feet of the west 110 feet of Lot 7; and, LESS the south 35 feet of the west 110 feet of Lot 3; Public Records of Brevard County, Florida; Area: 38,300 square feet or 0.88 acres +; Parcel ID: DD-0000A xx Attachments A. Resolution with Exhibit A, Applicant s Request for Vested Rights Special Permit Modification, dated October 25, 2011 B. Vicinity Map C. Development Order for Site Plan D. Partial Reproduction of Approved Site Plan E. Excerpts from applicable City Code and City Charter Copies Victor M. Watson, Esq. Watson, Soileau, DeLeo, Burgett, Pickles & Baughan 3490 North US Highway 1 Cocoa, Florida Ocean Dunes of Cocoa Beach Condominium Association, Inc. c/o Thomas M. Reid 1470 South Banana River Drive Merritt Island, FL James Strickland Allen Engineering, Inc. P. O. Box Cocoa Beach, FL

7 THE FOLLOWING FIVE (5) PAGES ARE: ATTACHMENT A Resolution Modification to Vested Rights Special Permit for Ocean Dunes Condominium Reconstruction Case No City Commission Briefing 1/19/2012 meeting: Modification to previously approved Vested Rights Special Permit Case No for Ocean Dunes Condominium - Resolution No

8 RESOLUTION NO A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF COCOA BEACH, FLORIDA, MODIFYING A PREVIOUSLY APPROVED VESTED RIGHTS SPECIAL PERMIT PURSUANT TO LAND DEVELOPMENT CODE CHAPTER VII, ARTICLE III, FOR THE PROJECT KNOWN AS OCEAN DUNES CONDOMINIUM ASSOCIATION ON PROPERTY LOCATED AT 33, 35, 37, 39, AND 41 NORTH ATLANTIC AVENUE, ACKNOWLEDGING THE RIGHT TO RECONSTRUCT 20 DWELLING UNITS IN A CG COMMERCIAL GENERAL ZONING DISTRICT, SPECIFYING THE STANDARD FOR DEVELOPMENT ON THE SUBJECT PROPERTY AND SETTING MODIFIED CONDITIONS; PROVIDING FOR INCORPORATION OF FINDINGS AND RECITALS; REPEALING ANY PRIOR ORDERS OR PERMITS THAT ARE IN CONFLICT WITH THIS RESOLUTION; AUTHORIZING THIS RESOLUTION AS A FINAL ORDER AND DIRECTING THE TRANSMITTAL TO THE DEVELOPMENT SERVICES DIRECTOR AND APPLICANT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Cocoa Beach Code Appendix B Land Development Code Chapter VII, Article III, provides for consideration of a determination of vested rights; and, WHEREAS, Petitioner, Ocean Dunes Condominium Association, is owner of that certain tract of land legally described herein and has made application for Vested Rights Special Permit determination with said application assigned Case No ; and, WHEREAS, the Petitioner owns property at 33, 35, 37, 39, 41 North Atlantic Avenue, said property having an area of approximately 38,300 square feet, and having a City Comprehensive Plan Future Land Use designation of General Commercial, and an Official Zoning Map designation of CG, General Commercial. WHEREAS, the Petitioner had sought and received approval on November 3, 2005, by City Commission adoption of Resolution No , of a vested rights special permit to allow for demolition and reconstruction of 20 residential dwelling units; and, WHEREAS, the Petitioner had sought and received approval on September 18, 2008, by City Commission adoption of Resolution No , and on January 4, 2007, by City Commission adoption of Resolution No , an extension of time to the vested rights special permit approved by Resolution No ; and, 41 K:\userdata\SHARED\Building Department\CASES\2012\2012October (2011)\ Vested Rights Mod Ocean Dunes North Atlantic Ave\ Ocean Dunes Vested Rights Mod.doc Page 1 of 5

9 WHEREAS, the Petitioner received site plan development order approval under Site Plan Case No to reconstruct 18 dwelling units on the described property, after City Commission review on March 3, 2008; and, ]WHEREAS, the Petitioner had sought and received approval on October 7, 2010, by City Commission adoption of Resolution No , an extension of time to the vested rights special permit approved by Resolution No s , , and , and an extension of the expiration date of Site Plan No ; and, WHEREAS, on October 27, 2011, the Applicant wrote a letter, attached hereto as Exhibit A, requesting an extension, to March 2014, to the current site plan approval, and extension for property development rights, because work on project financing remains unfinished, and reconstruction has not begun; and, WHEREAS, the Planning Board considered this request in an advertised public hearing on December 5, 2011, and recommends approval of this petition; and, WHEREAS, the City of Cocoa Beach City Commission considered this request in an advertised public hearing on January , and upon presentation of evidence finds that a vested right exists and desires to grant the Petitioner s request for a modification to the Vested Rights Special Permit and extension of site development plan approval; and, WHEREAS, the City has found that the subject land use, having been damaged as a result of a natural disaster more than 50% of its replacement value, has a right to rebuild twenty (20) residential units in accordance with City Charter Section 6.01; and, WHEREAS, in accordance with City Comprehensive Plan Policy I.4.2, the City has found that the existing land use, regardless of being residential in a Commercial land use and zoning designation and thus inconsistent with the Comprehensive Plan, is not detrimental to the public health, safety and welfare and thus certain Comprehensive Plan provisions regarding reconstruction of this land use may be waived providing certain mitigation measures are provided for in the reconstruction approvals. 74 Resolution No Page 2 of 5

10 NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of Cocoa Beach, Florida as follows: SECTION 1: The above recitals are true and correct and by this reference are hereby incorporated herein and made an integral part hereof as though fully set forth herein. SECTION 2: A special permit and exception to the otherwise applicable provisions of the City comprehensive plan and land development regulations are hereby granted to allow for demolition of existing buildings and structures and reconstruction of a total of twenty (20) residential dwelling units on property located at 33, 35, 37, 39, 41 North Atlantic Avenue, and legally described as: Lots 3-7 inclusive, Block A, COCOA BEACH, Plat Book 3, Page 54; and, LESS the west 110 feet of Lots 4-6; and, LESS the north 35 feet of the west 110 feet of Lot 7; and, LESS the south 35 feet of the west 110 feet of Lot 3; Public Records of Brevard County, Florida; Area: 38,300 square feet or 0.88 acres +; Parcel ID: DD-0000A xx The aforementioned special permit is subject to the following standards of development and conditions: a. Construction must commence and substantial construction must continue on or before March 3, 2012 March 3, b. Site redevelopment to meet all requirements of the Land Development Code or receive variances as appropriate. c. Applicant to secure and/or fence the site to deter trespass and dune encroachment. d. Construction must be compliant with and subject to conditions of, including the development of 18 units, Site Plan Case No e. Following construction under Site Plan Case No , 18 dwelling units shall be considered to be in existence for purposes of application City Charter Section 6.01 and City Comprehensive Plan Policy I If the standards specified above are not complied with, then the special permit and exception shall be void. Resolution No Page 3 of 5

11 SECTION 3: Any and all previous Resolutions, permits, or orders in conflict with this Resolution are hereby repealed to the extent of that conflict. SECTION 4: The City Manager or designee is authorized and directed to send a copy of this Resolution and Final Order to the Director of Development Services, to the Applicant, and to the owners of subject properties. SECTION 5: This Resolution shall become effective upon adoption Upon Motion by Commissioner and seconded by Commissioner, Resolution was duly adopted at a Regular Meeting of the City Commission of the City of Cocoa Beach, Florida, held on the day of ATTEST: Loredana Kalaghchy, CMC City Clerk Ayes: Nays: Absent or Abstaining: Leon Skip Beeler, Mayor-Commissioner Resolution No Page 4 of 5

12 EXHIBIT A Letter of Application for Vested Rights Special Permit Modification Resolution No Page 5 of 5

13 ATLANTIC OCEAN SUBJECT PROPERTY North Parcel ID # DD-0000A xx Property Address is 33, 35, 37, 39, 41 North Atlantic Avenue Note: Map not to scale ATTACHMENT B (1 of 1) Vicinity/Location Map City Commission Briefing 1/19/2012 meeting: Modification to previously approved Vested Rights Special Permit Case No for Ocean Dunes Condominium - Resolution No

14 ATTACHMENT C (1 of 6) Development Order for Site Plan City Commission Briefing 1/19/2012 meeting: Modification to previously approved Vested Rights Special Permit Case No for Ocean Dunes Condominium - Resolution No

15 ATTACHMENT C (2 of 6) Development Order for Site Plan City Commission Briefing 1/19/2012 meeting: Modification to previously approved Vested Rights Special Permit Case No for Ocean Dunes Condominium - Resolution No

16 ATTACHMENT C (3 of 6) Development Order for Site Plan City Commission Briefing 1/19/2012 meeting: Modification to previously approved Vested Rights Special Permit Case No for Ocean Dunes Condominium - Resolution No

17 ATTACHMENT C (4 of 6) Development Order for Site Plan City Commission Briefing 1/19/2012 meeting: Modification to previously approved Vested Rights Special Permit Case No for Ocean Dunes Condominium - Resolution No

18 ATTACHMENT C (5 of 6) Development Order for Site Plan City Commission Briefing 1/19/2012 meeting: Modification to previously approved Vested Rights Special Permit Case No for Ocean Dunes Condominium - Resolution No

19 ATTACHMENT C (6 of 6) Development Order for Site Plan City Commission Briefing 1/19/2012 meeting: Modification to previously approved Vested Rights Special Permit Case No for Ocean Dunes Condominium - Resolution No

20 Yellow/Solid = Prior Outline/Hatch = Proposed New ATTACHMENT D (1 of 1) Partial Reproduction of Approved Site Plan City Commission Briefing 1/5/2012 meeting: Modification to previously approved Vested Rights Special Permit Case No for Ocean Dunes Condominium - Resolution No

21 City Charter Section Residential density limits. No part of the City of Cocoa Beach shall be zoned to a residential density greater than ten (10) dwelling units per acre for permanent occupancy dwellings, or twenty-eight (28) units per acre for transient accommodations (motels, hotels). There shall be no fractional weighting of dwelling units. The city commission may grant a variance to individual parcels upon petition and proof that the variance will not be contrary to the public interest when, owing to special conditions, a literal enforcement of this section would result in unnecessary hardship. To grant such a variance, the city commission must make findings of fact that the petitioner has met the legal standards for variance set forth in Article VI, section 2-58(C)(1)(c)2--7 of the City of Cocoa Beach Code of Ordinances, and the variance must be approved by a concurring vote of four (4) members of the City Commission after due notice and public hearing. A request for variance will be considered after a written petition is submitted to the city commission indicating the grounds on which the variance is sought. After the petitioner has submitted a sufficient petition, the request must be scheduled for public hearing before the city commission as expeditiously as possible, and not earlier than thirty (30) days from the day of submission of a sufficient petition. Notice and hearing requirements for such variance shall be in accordance with the provisions for such variance shall be in accordance with the provisions for variance as set forth in Article VI, section 2-59 of the City of Cocoa Beach Code of Ordinances. Transient accommodations shall not be converted to permanent occupancy at densities exceeding the limits of this section. Structures if razed shall be replaced only by structures which, if residential, conform to density limits of this section. No owners of dwelling units destroyed or substantially damaged by explosion, fire, flood, wind, erosion, or other disaster shall be denied the right either to rebuild or to raze and rebuild to the same number of dwelling units in the same location [emphasis added]. Land Development Code Section Permitted uses of land between building restriction line and seawall line. Except as set forth herein the land between the seawall line and the building restriction line, or westerly to the actual constructed building or structure, may be used for the installation of boardwalks and pedestrian thoroughfares or promenades, revetments, fences, existing (as of September 20, 2001) public parking facilities and related infrastructure and dune protection structures. Any portion of said area not so used shall be stabilized by sod or planting other suitable vegetation. No structure or use except for temporary structures authorized by the city's franchise agreements, shall be erected or objects placed east of the seawall line except approved dune crossovers to the beach and temporary sun shelters and except as otherwise provided below: (See also Cocoa Beach Code section 5-48): (a) A portion of the seawall may be constructed east of the seawall line in order to tie into existing seawalls when, in the opinion of the city engineer, based upon sound engineering principles, the same is necessary in order to maintain the integrity of the beach area. ATTACHMENT E (1 of 2) City Charter & Code provisions applicable to this request City Commission Briefing 1/5/2012 meeting: Modification to previously approved Vested Rights Special Permit Case No for Ocean Dunes Condominium - Resolution No

22 (b) When a lawful nonconforming structure exists, east of the building restriction line, as of September 20, 2001, the board of adjustment is empowered to consider variances to allow expansion of or additions to such structure, provided however that no variance may be approved that authorizes additional encroachment eastward of the existing structure foundation. Any action by the board of adjustment approved prior to September 20, 2001 in conformance with this paragraph is hereby deemed and determined to be legal and valid. (c) When a lawful nonconforming structure exists, east of the building restriction line as of September 20, 2001, and in event of partial or complete destruction of the structure by storm or other act, the city commission shall, upon application by the property owner, approve reconstruction of the destroyed or damaged structure and such approval shall not be unreasonably withheld. All reconstruction shall be in strict compliance with all building codes in effect at the time of reconstruction. [emphasis added] ATTACHMENT E (2 of 2) City Charter & Code provisions applicable to this request City Commission Briefing 1/5/2012 meeting: Modification to previously approved Vested Rights Special Permit Case No for Ocean Dunes Condominium - Resolution No