Mayor Leon Skip Beeler and Members of the City Commission. Anthony Caravella, AICP, Director of Development Services

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1 CITY COMMISSION BRIEFING and Planning Board Report For Meeting Scheduled for February 18, 2010 Vested Rights Special Permit Holiday Shores Apartments, aka Belle Plage Property Resolution 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 for HOLIDAY SHORES APARTMENTS, AKA BELLE PLAGE Property, 4620 Ocean Beach Boulevard PUBLIC HEARING and FINAL ACTION DATE: February 8, 2010 A. Summary In September 2006, the Applicant, Belle Plage LLC, received a site plan development order (DO # ), authorizing redevelopment of the subject property ( Property ) at 4620 Ocean Beach Boulevard from a 20-unit apartment (16.9 dwelling units per acre) to an 11-unit multifamily complex (10 dwelling units per acre). When the apartment existed, the units were 2-bedroom units. A vicinity map and aerial of the property at the time the apartment building existed on the property are presented as Attachment A. The Property exists in the RM-2 Multifamily-Professional zoning district on 1.18 acres of land. Applicant then razed the apartment complex, in preparation for construction, and so there are no structures on site at this time. The Applicant abandoned plans to construct the 11-unit complex, authorized with site plan , and following approval of a vested rights special permit, received a 2 nd site plan development order (DO # ), authorizing redevelopment of the site as a 20-unit apartment complex of 15,700 square feet, and with uncovered parking. The vested right special permit was granted by the City Commission on January 3, 2008, by adoption of Resolution No , which allowed the Applicant to reconstruct a 20-unit apartment complex. A copy of this 2008 special permit is presented as Attachment B. C:\Documents and Settings\jb2248\Desktop\CC Printing\Next Meeting\CCxfer Belle Plage Vested Rights ( ).docx

2 Briefing& Planning Board Report to: Mayor Leon Skip Beeler and Members of the City Commission Re: Belle Plage (Holiday Shores) Modification to previously approved Vested Rights to reconstruct 20 dwelling units Date: February 8, 2010 for Commission meeting February 18, 2010 Page 2 As a condition of the development order for the site plan, and based on the vested rights permit, the following terms were added: In accordance with Vested Rights Special Permit permission (Case # , Resolution , 1/3/2008), Applicant must provide complete building plans prior to December 31, 2008, and construction must commence on or before December 31, 2009, or the vested rights will be vacated. For your reference, a copy of this Resolution is attached as Exhibit B. Further, once Applicant commences construction, he must diligently pursue same without cessation of more than thirty (30) days of activity, or this development order will expire. If necessary, the Applicant may request one extension of this approval. Extension requests must be in writing and submitted on or before the expiration date noted above. Please be governed accordingly. B. Property Information The Property exists as a vacant tract of land, previously having a multifamily land use of twenty (20) residential dwelling units located in two, two-story buildings (10 units in each building). The Property land area (110 feet x 465 feet) is approximately 1.18 acres. A portion of the Property lies seaward of the 1986 Coastal Construction Line, and so Florida DEP permit is required. A vicinity map and aerial photograph of the tract are presented as Attachment A. C. Vested Rights History and Request for Extension The Applicant, Belle Plage, LLC, requests a modification to previously approved Vested Rights Special Permit acknowledging the right to reconstruct 20 units on 1.18 acres of land at a density of, say, 17 dwelling units per acre. Under City Code, Comprehensive Plan, and City Charter, the maximum allowable density in an RM-2 zoning is 10 dwelling units per acre. The petitioner sought and received approval on January 3, 2008, by City Commission adoption of Resolution No , of a vested rights special permit to allow for reconstruction of twenty (20) residential dwelling units. The conditions of the vested rights permit approved by adoption of Resolution No , required Site development plan application for reconstruction must be submitted on or before December 31, Applicant received site plan development order approval [Case# ] for a 20 unit dwelling unit complex on August 26, 2008.

3 Briefing& Planning Board Report to: Mayor Leon Skip Beeler and Members of the City Commission Re: Belle Plage (Holiday Shores) Modification to previously approved Vested Rights to reconstruct 20 dwelling units Date: February 8, 2010 for Commission meeting February 18, 2010 Page 3 At this time the Applicant requests an extension to that previously approved vested rights approval. A copy of this extension request is presented as Exhibit A to Draft Resolution No The proposed Resolution , if granted, will supersede the previous approval. The Applicant s justification for this extension can be summarized as follows: The applicant has expended approximately $3,000,000 on acquisition of the property, site plan development and engineering, and overall site maintenance including demolition of the old apartment building. The project is experiencing delays due to economic factors, and it has been untenable and unwise to proceed with construction of the units in the past two years because of these economic factors. The applicant believes there will be a market for additional apartments/condominiums in the next two to three years. The state legislature, in the last (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 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 two to three years. D. Draft Resolution The attached Resolution, if approved, 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 D. The major change to the vested rights special permit, as presented, is that it grants a three year extension.

4 Briefing& Planning Board Report to: Mayor Leon Skip Beeler and Members of the City Commission Re: Belle Plage (Holiday Shores) Modification to previously approved Vested Rights to reconstruct 20 dwelling units Date: February 8, 2010 for Commission meeting February 18, 2010 Page 4 E. Summary and Staff Recommendation As considered during review of the original vested rights application, the City may continue to apply provisions of City Charter Section Therefore, the Applicant may be considered able to construct a 20 unit structure on the property, providing the reconstruction is as may be provided in the city comprehensive plan. To allow for reconstruction of the non-conforming use (16.9 dwelling units per acre vs. 10 dwelling units per acre), the City may choose to apply Comprehensive Plan Policy I.4.2, during this process and find that (1) the impact of the inconsistencies on surrounding consistent uses is minimal and not detrimental to the public health, safety and welfare; (2) the status of development as to its consistency with the comprehensive plan may be waived; and (3) 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. Along with Comprehensive Plan Policy I.42, Comprehensive Plan Policy I.4.5 also applies to this property. Plan Policy I. and reads: Existing inconsistent land uses damaged in excess of 50% of their replacement value by natural or man made causes shall not be allowed to rebuild in a manner inconsistent to the plan. Therefore, under the City Charter and Comprehensive Plan, the City has a great deal of latitude in both allowing construction of the units, as well as setting standards for redevelopment of the property, i.e., setting conditions and constraints on the redevelopment. In addition, the Board and Commission may consider applicability of Florida Senate Bill 360 that mandated any permit (including any local government issued development order or building permit) is to be extended for two years. This request is for a modification to a vested right special permit, which is not a development order, and therefore the legislative mandate may not apply. However, the expiration date of the development order was tied to the Vested Rights Special Permit, and under this linkage the legislative mandate may apply. 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. Staff has no concerns regarding approval of the Resolution modifying a previously approved vested rights special permit for reconstruction of the Property at 4620 Ocean Beach Boulevard, provided the Resolution is subject to the findings, terms and conditions found in the Resolution. In addition, staff also recommends the City require reimbursement from the Applicant for advertising costs, since a Vested Rights petition requires advertised public hearings before the Planning Board and City Commission. These costs are:

5 Briefing& Planning Board Report to: Mayor Leon Skip Beeler and Members of the City Commission Re: Belle Plage (Holiday Shores) Modification to previously approved Vested Rights to reconstruct 20 dwelling units Date: February 8, 2010 for Commission meeting February 18, 2010 Page 5 Legal Advertisement...$ Mailing of Notices 1 st 10@ $ Additional Mail $ Total...$ Paid on Account to Date Balance Due...$ F. Planning Board Review/Recommendation The Planning Board reviewed this request and held a public hearing on this resolution on February 1, The Planning Board recommends approval (5-0) of Resolution granting a special rights permit for reconstruction of the Property at 4620 Ocean Beach Boulevard subject to the terms and conditions found in the Resolution and with the condition the Applicant pay all costs of advertising and public notice prior to signature by the Mayor. The conditions of the Resolution (underline and strikethrough reflect changes/modifications from the original vested rights approval) are: a) Applicant to submit complete building plans on or before December 31, 2008 December 31, 2011, in accordance with the requirements of Land Development Code and Florida Building Code. Construction must commence on or before December 31, 2009 December 31, 2012, or this Special Permit will expire. b) All provisions, included site development requirements, of the City Land Development Code shall be met. This special permit does not grant any variance, special exception, or other approval that may be required to comply with applicable provisions of the City Land Development Code. Any required variance will void this Special Permit. c) Building construction will need to meet the requirements of the Florida Building Code or other City building codes in effect at the time of building permit application. d) This Special Permit does not constitute an undeniable right to obtain a building permit or site plan approval. All other local, state and federal regulations remain in full force and effect. Although not specifically addressed by the Planning Board, approval of the modification to the vested rights permit would also modify the date of expiration of Site Plan With the vested rights modification, the site plan would also be granted an extension of three years, which is one year more than that which was mandated by State Legislative action. The Land Development Code (Section 5-08B) does allow a one year extension to an approved site plan. Therefore, with this approval and allowing the site plan to expire on December 31, 2012, the Applicant will have exhausted all extensions. It is recommended the approval of the Resolution acknowledge the new site plan expiration dates as well as noting no additional extensions can be requested by adding a condition to approval of the Resolution.

6 Briefing& Planning Board Report to: Mayor Leon Skip Beeler and Members of the City Commission Re: Belle Plage (Holiday Shores) Modification to previously approved Vested Rights to reconstruct 20 dwelling units Date: February 8, 2010 for Commission meeting February 18, 2010 Page 6 The condition of the Resolution approval would have language such as: The companion site development plan No , is also granted extensions consistent with the terms of Resolution No , and no additional extensions to the site development plan approval are authorized. 1. Key Facts/Issues for Discussion Key facts are identified in this briefing paper. The Planning Board recommends (5-0) approval of this vested rights special permit. Condition the Applicant pay all costs of advertising and public notice prior to signature by the Mayor. Remaining balance is $ Condition the vested right modification/extension also extends site plan , and that there will no additional site plan extensions granted. 2. Costs Costs associated with this request include public notice advertising costs, staff review time, and Development Services staff time associated with preparing Planning Board and Commission packets. 3. Savings Not applicable. 4. Source of Funds Not applicable. 5. Communications One public hearing before the Planning Board occurred. One advertised public hearing is required before the City Commission. All public hearings were advertised in the newspaper, and notices to affected and surrounding property owners were provided by regular mail. 6. Environmental Impact A multifamily residential land use existed on site for 40 years, prior to its removal in As a result, allowing for replacement of the same use should have no environmental impact. 7. Department Representatives Anthony Caravella, AICP, Director of Development Services

7 Briefing& Planning Board Report to: Mayor Leon Skip Beeler and Members of the City Commission Re: Belle Plage (Holiday Shores) Modification to previously approved Vested Rights to reconstruct 20 dwelling units Date: February 8, 2010 for Commission meeting February 18, 2010 Page 7 8. Recommendations The Planning Board recommends approval of Resolution , with the condition the applicant pay all costs of advertising. Staff supports the Planning Board recommendation, with an additional condition to the Resolution approval noting Site Plan is also extended and no additional extensions to that site plan approval is authorized. 9. Recommended Motion I move to adopt Resolution , subject to the following conditions: 1) Applicant to pay all costs of advertising and public notice prior to signature by the Mayor. 2) The companion site development plan No , is also granted extensions consistent with the terms of Resolution No , and no additional extensions to the site development plan approval are authorized. Attachments A. Vicinity/Zoning Map and Aerial Photograph B. Resolution C. Applicable City Charter Provisions D. Draft Resolution c: Richard Riehl, Schillinger & Coleman, PA, P.O. Box , Melbourne, FL Belle Plage, LLC; 750 North Atlantic Avenue, Suite 1209; Cocoa Beach, FL

8 ATLANTIC OCEAN SUBJECT PROPERTY Parcel ID No: CI Property located at 4620 Ocean Beach Boulevard Note: Map not to scale North ATTACHMENT A (1 of 2) Vicinity Zoning Map City Commission Briefing for 2/18/2010 meeting: Draft Resolution No authorizing an extension of Vested Rights Special Permit for Belle Plage Property Case No

9 Limits of Construction/Sea Grape Clusters NOTE: Not to Scale ATTACHMENT A (2 of 2) Aerial Photograph City Commission Briefing for 2/18/2010 meeting: Draft Resolution No authorizing an extension of Vested Rights Special Permit for Belle Plage Property Case No

10 ATTACHMENT B (1 of 3) Resolution No City Commission Briefing for 2/18/2010 meeting: Draft Resolution No authorizing an extension of Vested Rights Special Permit for Belle Plage Property Case No

11 ATTACHMENT B (2 of 3) Resolution No City Commission Briefing for 2/18/2010 meeting: Draft Resolution No authorizing an extension of Vested Rights Special Permit for Belle Plage Property Case No

12 ATTACHMENT B (3 of 3) Resolution No City Commission Briefing for 2/18/2010 meeting: Draft Resolution No authorizing an extension of Vested Rights Special Permit for Belle Plage Property Case No

13 Sec 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. (Ord. No. 1173, 2, , ref. of ; Ord. No. 1253, 6.01, , ref. of ; Ord. No. 1342, 1, , ref. of ) Sec Non casualty loss rebuild. Residential and non-residential structures may be razed and rebuilt to their existing height and density as previously provided to same extent as if they were lost to a casualty event, and as may be provided in the city comprehensive plan. (Ord. No. 1366, 1, , ref. of ) ATTACHMENT C (1 of 1) Applicable City Charter Provisions City Commission Briefing for 2/18/2010 meeting: Draft Resolution No authorizing an extension of Vested Rights Special Permit for Belle Plage Property Case No

14 THE FOLLOWING FIVE (5) PAGES ARE: ATTACHMENT D DRAFT RESOLUTION NO Modifying a Vested Rights Special Permit for property located at 4620 Ocean Beach Boulevard

15 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 HOLIDAY SHORES APARTMENTS, AKA BELLE PLAGE ON PROPERTY LOCATED AT 4620 OCEAN BEACH BOULEVARD, ACKNOWLEDGING THE RIGHT TO RECONSTRUCT 20 DWELLING UNITS ON 1.18 ACRES OF PROPERTY, IN A RM-2 MULTIFAMILY-PROFESSIONAL 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, the Cocoa Beach City Charter Section 6.11, Non casualty loss rebuild, reads: Residential and non-residential structures may be razed and rebuilt to their existing height and density as previously provided to same extent as if they were lost to a casualty event, and as may be provided in the city comprehensive plan ; and, WHEREAS, Petitioner, Belle Plage, LLC, 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 4620 Ocean Beach Boulevard, said property having an area of approximately 1.18 acres, and having a City Comprehensive Plan Future Land Use designation of High Density Residential and Tourist, and an Official Zoning Map designation of RM-2, Multifamily-Professional District. WHEREAS, the Petitioner had sought and received approval on January 3, 2008, by City Commission adoption of Resolution No , of a vested rights special permit to allow for reconstruction of twenty (20) residential dwelling units at a residential density of, say, 17 dwelling units per acre; and, 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 August 17, 2006; and, C:\Documents and Settings\jb2248\Desktop\CC Printing\Next Meeting\CCxfer Belle Plage Vested Rights ( ).docx Page 1 of 5

16 WHEREAS, the Petitioner received 2 nd site plan development order approval under Site Plan Case No to reconstruct 18 dwelling units on the described property, after City Commission review on August 21, 2008; and, WHEREAS, in accordance with City Comprehensive Plan Policy I.4.2, the City has found that reconstruction impact at a residential density of 17 units per acre on surrounding uses is minimal and not detrimental to the public health, safety and welfare and as a result, status of development as to its consistency with the comp plan may be waived; and, WHEREAS, the City has found that the subject land use, having had twenty (20) dwelling units authorized under Certificate of Use No. 426, issued on September 8, 1964, has a right to rebuild twenty (20) residential units in accordance with City Charter Section 6.11; and, WHEREAS, the Planning Board considered this request in an advertised public hearing on February 1, 2010, and recommends approval of this petition; and, WHEREAS, the City of Cocoa Beach City Commission considered this request in an advertised public hearing on February 18, 2010, 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, 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 reconstruction of a total of twenty (20) residential dwelling units on property located at 4620 Ocean Beach Boulevard, and legally described as: The south 110 feet of the north 260 feet of Lot 4, Block 3 of the COCOA OCEAN BEACH SUBDIVISION, as shown by the plat of said subdivision recorded in PB 10, PAGE 16, Public Records of Brevard County, Florida; and also all of the land lying immediately adjacent to and on east of the line of the south 110 feet aforesaid extending to the ordinary high water mark of the Atlantic Ocean Beach between the north and south lines of the said south 110 feet projected to the ordinary high water mark of the Atlantic Ocean Beach, and all littoral or shore rights appertaining thereto. Area: 1.18 acres +; Parcel ID: CI Resolution No Page 2 of 5

17 The aforementioned special permit is subject to the following standards of development and conditions: a) Applicant to submit complete building plans on or before December 31, 2008 December 31, 2011, in accordance with the requirements of Land Development Code and Florida Building Code. Construction must commence on or before December 31, 2009 December 31, 2012, or this Special Permit will expire. b) All provisions, included site development requirements, of the City Land Development Code shall be met. This special permit does not grant any variance, special exception, or other approval that may be required to comply with applicable provisions of the City Land Development Code. Any required variance will void this Special Permit. c) Building construction will need to meet the requirements of the Florida Building Code or other City building codes in effect at the time of building permit application. d) This Special Permit does not constitute an undeniable right to obtain a building permit or site plan approval. All other local, state and federal regulations remain in full force and effect. If the standards specified above are not complied with, then the special permit and exception shall be void. 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 Ayes: Nays: Absent or Abstaining: Leon Skip Beeler, Mayor-Commissioner ATTEST: Loredana Kalaghchy, CMC City Clerk Resolution No Page 3 of 5

18 EXHIBIT A (1 of 2) Letter of Application for Vested Rights Special Permit Modification Resolution No Page 4 of 5

19 EXHIBIT A (2 of 2) Letter of Application for Vested Rights Special Permit Modification 135 Resolution No Page 5 of 5