PonceInletFL - 09/10/2008 Special Town Council Minutes

5. Public Hearing for the Second Reading / Adoption of Ordinance 2008-01, amending the Town’s Comprehensive Plan. Ms. Cassady read this ordinance by title, confirming that she had approved for legality and form: AN ORDINANCE OF THE TOWN OF PONCE INLET, VOLUSIA COUNTY, FLORIDA; PROVIDING FOR LARGE-SCALE AMENDMENT TO THE COMPREHENSIVE PLAN OF THE TOWN OF PONCE INLET; AMENDING FUTURE LAND USE ELEMENT, HOUSING ELEMENT, RECREATION AND OPEN SPACE ELEMENT, INTERGOVERNMENTAL COORDINATION ELEMENT, AND CAPITAL IMPROVEMENTS ELEMENT; AMENDING TRAFFIC CIRCULATION ELEMENT AND RENAMING: “TRANSPORTATION ELEMENT;” AMENDING UTILITIES ELEMENT AND RENAMING: “SANITARY SEWER, SOLID WASTE, STORMWATER MANAGEMENT, POTABLE WATER, AND NATURAL GROUNDWATER AQUIFER RECHARGE ELEMENT;” AMENDING COASTAL MANAGEMENT/CONSERVATION ELEMENT AND RENAMING: “COASTAL ELEMENT” AND “CONSERVATION ELEMENT;” DELETING CHAPTER X, “MONITORING AND EVALUATION PROCEDURES;” DELETING CHAPTER I, “INTRODUCTION AND OVERVIEW,” AND REPLACING WITH NEW CHAPTER I, “ADMINISTRATION AND INTERPRETATION;” REDESIGNATING PROPERTY KNOWN AS TOWN HALL, APPROXIMATELY 4.7 ACRES LOCATED AT THE NORTHERN TOWN LIMITS BETWEEN ATLANTIC AVENUE AND PENINSULA DRIVE, FROM LOW-DENSITY RESIDENTIAL TO PUBLIC/INSTITUTIONAL; REDESIGNATING PROPERTY KNOWN AS WILBUR BAY WETLANDS, APPROXIMATELY 26.4 ACRES LOCATED WEST OF PENINSULA DRIVE AT THE NORTH TOWN LIMITS SOUTH TO THE CANAL NORTH OF OLD CARRIAGE ROAD, FROM LOW DENSITY RESIDENTIAL TO CONSERVATION; REDESIGNATING APPROXIMATELY 16.3 ACRES OF THE PROPERTY KNOWN AS PONCE PRESERVE, LOCATED IN THE 4400 BLOCK BETWEEN PENINSULA DRIVE AND THE ATLANTIC OCEAN, FROM VARIOUS RESIDENTIAL DESIGNATIONS TO PARKS AND OPEN SPACE; REDESIGNATING PROPERTY KNOWN AS RACING’S NORTH TURN RESTAURANT, LOCATED AT 4511 SOUTH ATLANTIC AVENUE, FROM HIGH DENSITY MULTI-FAMILY RESIDENTIAL TO GENERAL COMMERCIAL; REDESIGNATING APPROXIMATELY 8 ACRES KNOWN AS TIMUCUAN OAKS BOTANICAL GARDENS, LOCATED IN THE 4500 BLOCK OF PENINSULA DRIVE, FROM VARIOUS RESIDENTIAL DESIGNATIONS AND CONSERVATION TO PARKS AND OPEN SPACE; REDESIGNATING APPROXIMATELY .9 ACRES KNOWN AS WINTERHAVEN PARK, LOCATED IN THE 4500 BLOCK OF ATLANTIC AVENUE, FROM HIGH-DENSITY MULTI-FAMILY TO PARKS AND OPEN SPACE; ELIMINATING THE HARBOUR VILLAGE PUD DESIGNATION AND REDESIGNATING THE AREA WITHIN THAT PUD, WITH THE EXCEPTION OF THE AREA COMMONLY KNOWN AS FISHERMAN’S HARBOUR VILLAGE, LOCATED EAST OF ATLANTIC AVENUE BETWEEN 4525 AND 4679 ATLANTIC, BETWEEN ATLANTIC AVENUE AND PENINSULA DRIVE IN THE 4600 BLOCK, AND WEST OF PENINSULA DRIVE FROM THE HARBOUR VILLAGE GOLF & YACHT CLUB SOUTH TO THE 4700 BLOCK OF PENINSULA DRIVE AND INCLUDING THE COLLEY SUBDIVISION, CONSISTING OF APPROXIMATELY 200 ACRES, TO LOW-DENSITY SINGLE FAMILY RESIDENTIAL, MEDIUM-HIGH DENSITY AND HIGH DENSITY MULTI-FAMILY RESIDENTIAL, GENERAL COMMERCIAL, PUBLIC/INSTITUTIONAL, PARKS AND OPEN SPACE, AND CONSERVATION IN ACCORDANCE WITH THE LAND USES THAT EXIST WITHIN THE PUD BOUNDARIES; REDESIGNATING THE APPROXIMATELY 5.57 ACRE COMMERCIAL AREA IN THE HARBOUR VILLAGE PUD KNOWN AS FISHERMAN’S HARBOUR VILLAGE, FROM PUD, APPROXIMATELY 2.82 ACRES ON THE EASTERN PORTION TO GENERAL COMMERCIAL, AND APPROXIMATELY 2.75 ACRES ON THE WESTERN PORTION TO MEDIUM-HIGH DENSITY MULTI-FAMILY RESIDENTIAL; PROVIDING FOR CONFLICTING ORDINANCES, PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE. Ms. Konchan advised that the Department of Community Affairs (DCA) was philosophically aligned with this amendment but had not yet completed their review. She suggested that they hear the presentation tonight and continue this meeting in two weeks. Ms. Konchan gave a presentation on the proposed Comprehensive Plan amendment via the attached memo (Attachment A) and PowerPoint (Attachment B). Councilmember Goudie expressed concern with the “shall” verbiage as it related to standards for the Planned Waterfront District (PWD) because he felt that it locked the Town in. Ms. Cassady stated that if they used the term “may” that would not set a standard and would probably not meet DCA requirements. Mr. Comfort had sent Mayor Epps an email preceding this meeting and asked that she consider the question for all “Should the previously unseen changes now recommended by Ms. Konchan be included in the amended Comprehensive Plan?” Mayor Epps announced this question and opened up for public comment. Gary Comfort, 85 Ocean Way Drive, noted that it took 1-1/2 hours to go through the proposed revisions and spoke about the density per acre calculations in the PWD. He commented that if you follow the recommendation on the property used as an example, you will wind up with 12.5 du/a, which in excess of what is permitted in our MF-1 regulations and you will have, in essence, converted it to an MF-2 property. He does not really think that the uses will be mixed, but will be segregated. Regarding existing development rights, he asked if we mean existing on the date the plan is adopted, or – liberally interpreting will include unit for owner/manager – pointed out that 40 units per acre – He said that Ms. Konchan is limited to what she can comment on, but he is not, and said you cannot get 40 units per acre on that property when taking into effect all setbacks. He stated his concern about the number of trips per day and how many might come through the 100 block of Ocean Way Drive. He believes that the clarifying language suggested is necessary to clarify Council’s intent. He also said that the lot area percentage is not, in his opinion, being interpreted correctly. Mayor Epps reminded the audience that they can still send in written comments. Constance Hunter, 4329 Atlantic Avenue, asked what the big hurry is in pushing this through tonight, feels that we don’t have to do anything until January 1^st. She said the present residents should be considered. Barbara Davis, 4871 Sailfish Drive, said in regard to assessing the density, the PWD is a whole new zoning designation and you will not be bound by the density that is there today. She feels that taking the current permitted density is not the correct approach. She believes that assessing the area unusable for residential as residential is fuzzy math, and that to say that it’s an entitlement is not correct. She spoke about the Working Waterfronts being the point of beginning for these changes and that the 10% for Working Waterfront is going backwards. She recommends 60% Working Waterfront, 20% retail, 20% residential and asked where the data is to support the recommendation. She then asked about the statement “over the water” on page 5 of the staff memorandum. Allan Watts, Cobb & Cole – representing the Pacetta Group, said he appreciates the five minute restriction, but that Chapter 163 requires an opportunity for broad public input, said that he had a lot for them to consider and asked that a vote not be taken until all of his comments are considered. He referred to planning statute, Section 163.3177.6.A saying that it states that coastal counties, Future Land Use Elements must include without limitation regulatory incentives and criteria that encourage the preservation of recreational and working waterfronts as defined in Chapter 342. He said that Ms. Davis was just reading not just from page 5, but from the definition of working waterfronts contained in the Florida statutes, and went on the list the things for which incentives and criteria must be included. He said that while she may not want that, but the Florida Legislature wrote that. Chapter 163.3194, Section 1b states that the Comp Plan always controls over land use regulations and it does require criteria to guide your discretion. Your discretion is not unbridled. Unbridled discretion is the very definition of deprivation of due process by a decision making body. Regarding the question about density on Old Florida Club, he said it comes from conversations he and Ms. Konchan have had with DCA staff and it has to do with the fact that the statute that discourages any further building in coastal high hazard areas also says you cannot take away any existing density under the existing Comprehensive Plan. That is where the debate has been and Ms. Konchan has come up with a way of allowing the density that is allowed within the property but putting it in a place that is pure common sense: that is, outside the coastal high hazard area. The statute itself says that the density cannot be deprived by adherence to the coastal high hazard exclusion. He then addressed the 5,000 square foot building area, saying that buildings of that size do not necessarily have to be ugly. He then asked that data and analysis for the 10,000 square foot cap on building size be provided prior to completion of discussion. He then distributed an article from Marina Dock Age Magazine regarding how to determine if dry stack storage makes economic sense. Don Romanik, 4545 South Atlantic Avenue, agrees with almost all comments. He asked for the definition of floor area ratio, and suggested they not move forward and if they do, that no square footage limitations be included without an adequate definition. He feels that since residential developments seem to have an acceptable definition in the LUDC, it follows that a definition of commercial development FARs be there as well. Kimberly Comfort, 85 Ocean Way Drive, said that originally the concepts for this mixed use started out with the idea that we’ll put businesses, but because businesses don’t always work out, as we are seeing with Fisherman’s Village, we will allow residences to go over them. She said that in reality, we have a definition that does allow for owners and managers to live over businesses. She continued to say that until recently the entire town was in the coastal high hazard area, so there was no additional density that should be allowed. She said that when we say we’ll have eighty units on that two-acre parcel, it is that two-acre parcel and it cannot be accomplished. She said she believes she recently heard that the state is considering that when building on the beach, you cannot count out to the mean high water line, you can only count the area that the DEP will allow you to build in, and questioned why are we saying that because you have this whole area of land and some is not within the coastal high hazard area, that we should allow you to take all that density that you might have been able to get, but really can’t get on that land, and now spread it out over all these six acres. She believes that is wrong, we should not allow it, and has been against this since the beginning. She continued by saying that right now, if you take the six acres that Pacetta owns, acknowledging it is B-2, taking into account the setbacks, you could fit about twenty-seven buildings/offices, which under our current definition could also include twenty-seven residences above them in that six acres and now you are saying let’s take that eighty that really don’t fit on that too and spread out on that six acres. She believes you also have to look at the original concept plan from Pacetta showing a boat stack building over 50,000 square feet. She said that is a huge building - we’re talking a Wal-Mart and we just don’t want to stare at that kind of a building. She said this will continue to be hashed out, but they have gotten the blessing that the entire town is not in the coastal high hazard area and they have ability other than those two acres to build a building. Mark Watts, Cobb & Cole, got up to speak, at which time Mayor Epps asked the attorney for clarification as to whether both attorneys for the same group are allowed to speak. As a result, it was decided that a decision as to whether or not to adopt tonight was appropriate at this time. Councilmember Sturno suggested that they follow Ms. Konchan’s advice and continue the hearing until such time as the DCA had time to review and comment entirely. Councilmember Goudie moved to continue this public hearing until September 24^th at 6:00, seconded by Vice-Mayor McCormick. Vice-Mayor McCormick asked for information on sizes of existing industry examples of boat storage buildings. Mayor Epps corrected Ms. Davis’ comment about entitlements. Vice-Mayor McCormick agreed that if we are looking at supporting riverfront commercial, that the 10% number is probably a little low. This motion PASSED 5-0 with the following vote: Councilmember Sturno – yes, Councilmember Hinson – yes, Vice-Mayor McCormick – yes, Councilmember Goudie - yes, and Mayor Epps – yes.

6. First Reading of Ordinance 2008-11, amending the Town’s floodplain management regulations variance approval process. Ms. Cassady read this ordinance by title, indicating that she had approved for legality and form. AN ORDINANCE OF THE TOWN OF PONCE INLET, VOLUSIA COUNTY, FLORIDA, AMENDING ARTICLE X, CHAPTER 18, OF THE CODE OF ORDINANCES RELATING TO DESIGNATION OF VARIANCE AND APPEALS BOARD IN MATTERS REGARDING FLOODPLAIN MANAGEMENT; PROVIDING FOR CODIFICATION; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONFLICTS, AND PROVIDING AN EFFECTIVE DATE. Ms. Blissett explained that the Town participates in the Community Rating System (CRS), which is part of the National Flood Insurance Program offered to communities that go beyond the minimum standards for floodplain management. Since the Town participates in the CRS, property owners can qualify for discounts on flood insurance rates up to forty-five percent. The Town has adopted floodplain management regulations through Ordinance 2001-06. All permits shall be required in conformance with the floodplain management regulations of the Code of Ordinances prior to the commencement of any development activities. The Code also provides for variance procedures. Variances from the floodplain management regulations are considered in conjunction with development permits and orders, and such variances require consideration of technical evaluations and other relevant factors. Pursuant to the Code, the Board of Adjustment shall hear such variances. However, in other sections of the Code, the Town Council is referred to for hearing variances associated with development plans. And, due to the nature of such variances and the fact that these are associated with development, it is more efficient and economical for the Town Council to hear and decide such variances and decisions by the Town Council regarding the same will avoid undue delay in the application process. Mary Haas, 12 Kelly Bea Court, stated that she realizes there are conflicts within the Code but feels there are better ways to handle this matter as the wording of this ordinance is insulting to the Board of Adjustment (BOA). They are very adept at processing technical information and making decisions on these matters, having done so many times in the past. The BOA is a very intelligent board, fully qualified for this. Ms. Haas also asked the Council if they really wanted something else on their plate as it seems it is too heavy as it is now. Frank Vitale, 34 Coastal Oaks Circle, stated that he felt Ms. Haas made a statement that should be backed and hoped the Council would leave this as it is. Joe Perrone, alternate member to the BOA, expressed concern about precedent if Council made a decision which was different from the type the Board would have made on these matters. Ms. Cassady explained that there are so many variables in each request that precedent wouldn’t be so much of a factor. Ms. Blissett apologized for the wording regarding technical matters and suggested they remove that WHEREAS clause from this ordinance. Councilmember Goudie stated that they value the contributions of the BOA and that this is a single issue which regulations indicate should be reviewed by the Council. Councilmember Sturno expressed respect for the BOA and Ms. Haas and stated that they are not looking for more to do and he would only consider this if it is mandated and would not be opposed to other remedies for this issue. Vice-Mayor McCormick agreed with both and stated that they should at least change the wording to refer to only the factual points for changing this process. Mayor Epps confirmed with Mr. Marks that this is extremely rare to have this type of request and the granting of it should only be done in extreme cases. All agreed to instruct staff to change the wording of this ordinance and they would re-hear it on September 17^th at their regular meeting.