HomeMy WebLinkAbout07112013PZ MinutesCITY OF SEBASTIAN
PLANNING AND ZONING COMMISSION 0
MINUTES OF REGULAR MEETING
JULY 11, 2013 �.0 U
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Chairman Dodd called the meeting to order at 7:00 P.M. '
The pledge of allegiance was said by all. 0- G
ROLL CALL: PRESENT: Mr. Dodd Mr. Qizilbash C O
Ca
Ms. Kautenburg (a) Mr. Durr (�
Mr. Carter Mr. Reyes 9 0 -p -p 0
C ® N 3
EXCUSED: Mr. Paul and Mr. Roth "= O O
ABSENT: Mr. Dyer 0 CL a tM
CD N �' a 0n
ALSO PRESENT: Jan King, Senior Planner
Robert Ginsburg, City Attorney
Dorri Bosworth, Planner /Secretary
ANNOUNCEMENTS:
Chmn. Dodd stated Mr. Paul and Mr. Roth were excused from the meeting, and Ms.
Kautenburg(a) would be voting in stead. He also verified that six present members met the
minimum quorum of four.
APPROVAL OF MINUTES:
MOTION by Durr /Carter to accept the minutes of the June 20, 2013 meeting as submitted. Motion
was approved unanimously by voice vote.
OLD BUSINESS: None
NEW BUSINESS:
A. QUASI - JUDICIAL PUBLIC HEARING — CR512 OVERLAY DISTRICT WAIVER — NEW
YORK BARBER SHOP — 867 SEBASTIAN BOULEVARD — WAIVER REQUEST FROM
ALLOWABLE BUILDING GRAPHICS AND COLOR STANDARDS — LDC SECTIONS
54- 4- 21.B.4(a) & (b)
Chairman Dodd asked the Commissioners if they had any ex -parte communication to disclose.
There was none.
The applicants and staff were sworn in by City Attorney Robert Ginsburg.
Ms. Nora Bonilla, 867 Roseland Road, applicant and part owner of the New York Barber Shop,
stated she would like to finish the painting of the building, which was started as a way to catch
passerby's attention, since business was slow right now.
Ms. Bosworth stated the painting project was brought to the attention of the Community
Development Department, and based on some of the specific architectural overlay district
requirements in place, staff asked the owners to stop painting until they could get a decision by
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PLANNING AND ZONING COMMISSION
MINUTES OF REGULAR MEETING OF JULY 11, 2013
the Commission to continue, or not. The two sections of the LDC that are being requested to be
waived are the prohibited building graphics section [to allow diagonal stripes] and standard colors
[to allow red, white, and blue]. She further explained that the LDC specified allowable base, trim
and secondary trim colors for structures along CR512. Staff was not making any
recommendations at this time, the decision was the Commission's, and a decision to grant the
waiver would allow the painting project to be finished, and a denial would mean what was started
would have to be painted over.
Mr. Carter wanted to know how much of the building has been painted. Ms. Bosworth referred to
the picture exhibits in the agenda packets, which indicated the right portion of the front façade
facing CR 512 had been painted red, white, and blue, and the left side had been taped to prepare
for the striping. Mr. Carter asked if a barber pole had been considered for advertising. Ms. King
pointed out that one already exists on the building next to the front door, but was hard to see now
that it blended in with the red, white, and blue striping. Mr. Carter suggested a larger one could
be used instead of the painting.
Mr. Durr asked if the project was brought to staffs attention by a disgruntled neighbor. Staff
stated no, but a code enforcement officer was sent to the property to ask them to stop painting.
Ms. Bosworth was not sure if a formal case was started with an issuance of a violation notice, or if
a courtesy verbal stop work order was given, and the owners then came in to see staff. Mr. Durr
noted there was no one in the audience [i.e. disgruntled neighbor], and Ms. Bosworth verified 20±
notices were sent to surrounding property owners, a legal ad was placed in the newspaper, and
she had not received any calls or questions from neighbors who received letters.
Mr. Qizilbash asked if only the front of the building was going to be painted up to window height
as shown on the pictures. Ms. Bonilla stated yes, only the front. Mr. Qizilbash asked if the colors
and design was to show that it was a barber shop. Ms. Bonilla stated yes, and Mr. Qizilbash
questioned why it had to be the whole wall, and suggested maybe it could be painted just around
the entrance door. He felt the whole wall to be too much.
Mr. Dodd verifed the applicants owned the building, and were not tenants. Mr. Reyes noted the
picture showed a decent-sized "New York Barber Shop" monument sign and asked if the
applicants would consider painting some red, white, and blue striping on the sign instead. He also
asked staff if there were any previous waiver requests for building graphics. Ms. Bosworth stated
not for graphics but one from the color standards, which was denied. Ms. King also stated,
similarly, there were a couple of waiver requests to allow for striped awnings, which were not
approved, and the awnings were painted solid.
Mr. Reyes asked the applicant if the barber shop was the only business being operated from the
building as he has seen numerous vehicles for sale at the site, and was not sure if the red, white
and blue painting was being used like all the flags at the used auto business on US #1. Ms.
Bonilla stated the barber shop was the only business, and that a few customers had parked some
sale vehicles on their site temporarily.
Mr. Reyes also asked how many other barber shops were located within the corridor. Staff cited
two "barber shops", but noted there are other hair salons which may be unisex. Mr. Reyes noted
this shop had the largest sign. Ms. King stated the sign was properly permitted and met size
regulations.
There was no one from the public who spoke in favor of the request.
There was no one from the public who spoke in opposition of the request.
The applicant had no further statements or presentation.
Staff reviewed the criteria the Commission must use in determining its decision, as noted in the
staff report. She stated the Commission could approve the request, deny the request, or approve
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PLANNING AND ZONING COMMISSION
MINUTES OF REGULAR MEETING OF JULY 11, 2013
with conditions, and repeated a previous suggestion of allowing the design just around the front
door.
Mr. Dodd also had two suggestions in that the size of the striping be changed, or that the waiver
be applicable only to the current barber shop business and that the applicants commit to
repainting the building if the shop closes.
Mr. Durr asked if the request was approved, would it set precedent for other businesses in the
corridor. Mr. Ginsburg stated future cases should be reviewed on its own merits, but that this
case would most likely be discussed, as others were tonight, and probably influence a decision.
Mr. Dodd felt if approved, other businesses might start requesting waivers more regularly.
Ms. Kautenburg stated she drives CR 512 every day and never noticed the barber shop until they
started painting the building, and then knew, because of the colors, that was the barber shop.
She felt painting was the best, least expensive way a business can draw attraction to itself. She
opined fashionable colors can change over time, and when you approve a particular pallete, it
should be reviewed every so often, as buildings colors can get boring, and disappear. The
painting would affect the business, and the owners were hard working, tax-paying persons. Even
if you can't read, the building would say "barber shop". She also felt that the process of a waiver
should always be available to every citizen, and should not be discouraged.
MOTION by Kautenburg/Carter that the waiver be granted.
ROLL CALL: Mr. Durr no Mr. Qizilbash no
Ms. Kautenburg yes Mr. Reyes no
Mr. Carter yes Mr. Dodd no
The vote was 2-4. Motion denied.
MOTION by Reyes/Qizilbash to deny the waiver [request] for New York Barber Shop at 867
Sebastian Boulevard from allowable building graphics and color standards.
ROLL CALL: Mr. Reyes yes Mr. Dodd yes
Mr. Durr yes Mr. Carter yes
Ms. Kauntenburg no Mr. Qizilbash yes
The vote was 5-1. Motion passed.
CHAIRMAN MATTERS:
Chmn. Dodd complimented the current construction project for Sebastian Charter Jr. High
School, located on Wave Street, stating the new building was impressive.
MEMBERS MATTERS:
Mr. Durr mentioned that at the Barber Street/CR 512 intersection, if facing north, the yellow light
on the left light was out, for staff to pass on to the appropriate department.
Mr. Carter asked for an update on the Clams R Us project. Ms. Bosworth stated that Phase I,
which was the landclearing, stormwater installation, and retaining wall construction, was
completed. Phase II would be the implementation of the aquaculture facility including new docks,
up-dwellers, and raceways. The owner was a bit behind the construction schedule noted on the
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PLANNING AND ZONING COMMISSION
MINUTES OF REGULAR MEETING OF JULY 11, 2013
site plan, and staff did not know when the owner proposed to start Phase II. There was a two
year window to start the Phase III residential structure.
DIRECTOR MATTERS:
Staff stated the July 18th meeting would be cancelled, and that Mr. Minner will be presenting the
proposed 5-year Capital Improvement Program and budget at the August 1st meeting for the
Commission's review and recommendation.
ATTORNEY MATTERS:
Mr. Ginsburg noted he had given each Commissioner a copy of a respected law professor's
summary of the recent Supreme Court ruling on the case Koontz vs. St. John's River Water
Management District (attached). He stated the Supreme Court doesn't review a lot of land use
cases, and its ruling on this one was interesting, and may end up being very important to future
land use. He requested the Commissioners read the summary, and he would like to have a future
discussion with them regarding the results.
Chairman Dodd adjourned the meeting at 7:34 p.m. (db)
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Bloch on Koontz from Professor John Nolon
U.S. Supreme Court Hands Down Koontz Case
Editor's Note: Special Thanks to Pace Law Professor John R. Nolon for posting his summary here:
Koontz v. St. Johns River Water Management District
U.S. Supreme Court 570 U.S._ (2013)
June 25, 2013
Brief and Analysis
John R. Nolon — Professor of Law
Pace University School of Law
Introduction: Prior to this case, courts did not subject the denial of land use permits or the imposition of monetary conditions upon them
to heightened scrutiny under its previous decisions in Nollan and Dolan. Those cases involved the imposition of a "title exactions:" a
requirement that an easement or title to some of the property be dedicated to the public. To require such a title transfer, if done outside the
land use permitting system, would be a taking of property requiring just compensation. Because of this, permit conditions that
accomplished the same result were subjected in these cases to heightened scrutiny. Other actions, such as permit denials or monetary
exactions, under U.S. Supreme Court jurisprudence, were deferred to by the courts, presumed valid, and the burden of proving that they
constituted takings was borne by the applicant. Nollan established that title exactions must bear an essential nexus to the harm prevented;
Dolan required that the condition imposed be roughly proportional to the adverse impact of the project on the community. This case,
Koontz, extends the principles and standards of Nollan and Dolan to permit denials and monetary exactions greatly expanding the reach of
Federal constitutional concerns deeply into the state and local land use system. Justice Alito wrote the majority opinion for 5 members of
the court; Justice Kagan wrote for the 4 member minority.
Brief. Mr. Koontz owned 14.9 acres of highly constrained land at the intersection of two major thoroughfares in Florida. He proposed
building on 3.7 of the less constrained acres. To build, he needed a permit from the St. John's River Water Management District in
compliance with two separate state statutes designed to protect water resources, including wetlands. Koontz offered to impose a
conservation easement on I 1 acres and to conduct other engineering work as mitigation measures. The District thought these were
insufficient to protect the affected water resources in accordance with the relevant statutes. Using words such as "proposed" and
"suggested," the majority opinion of the Court describes the two concessions the District asked of the petitioner. One involved developing
only one acre and building costly stormwater management facilities on site, and enlarging the land subject to the conservation easement to
over 13 acres; the other would allow the 3.7 acre development, but require petitioner to consider methods of doing off site mitigation
enhancing about 50 acres elsewhere in the watershed. The District suggested some such work including paying contractors to replace
culverts and fill ditches indicating that it "would favorably consider" alternatives to its "suggested" offsite mitigation projects, if the
petitioner proposed something "equivalent." (Where a conservation easement is required, it exacts a property interest from the petitioner
and is a title exaction; while asking an owner to pay for off -site mitigation work subjects her to a monetary exaction.)
Koontz stopped negotiating at this point saying that his proposal was "as good as it can get." The District denied the permit and Koontz
brought an action under a Florida statute that allows owners to recover monetary damages if a state agency's action is "an unreasonable
exercise of the state's police power constituting a taking without just compensation." Although he won in the trial and intermediate appeal
court levels, the Florida Supreme Court supported the District's actions and found that the higher scrutiny standards of the Nollan and
Dolan cases were inapplicable because the District did not approve the project on the condition that petitioner accede to demands, but
rather denied his application because he refused to make concessions. The Florida Supreme Court distinguished a demand for an interest in
real property as found in Nollan and Dolan from a demand for money. As a result, that court held that neither the denial nor the monetary
demand were subject to higher scrutiny. The majority of U.S. Supreme Court disagrees on both counts.
The Court holds that under the unconstitutional conditions doctrine, which prevents governments from coercing people to give up their
constitutional rights, courts cannot distinguish between approving a permit on a condition and denying a permit because the applicant
refused to agree to a concession. The Federal Constitution can be violated in permit denial cases, the Court notes, not because property
interest were taken, but because extortionate demands burden the right not to have property taken without just compensation. "The
impermissible denial of a government benefit is a constitutionally cognizable injury."
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The Court also holds that where "there is a direct link between the government's demand and a specific parcel of property" the
requirements of Nollan and Dolan apply. "Such so- called `in lieu of fees are utterly commonplace,..., and they are functionally equivalent
to other types of land use exactions."
While noting that land use agencies in the permitting process have vast discretion that can be abused, the Court also recognizes the
legitimacy of land use requirements that require "landowners internalize the negative externalities of their conduct." It notes that this
practice is a "hallmark of responsible land use policy, and we have long sustained such regulations against constitutional attack."
Subjecting exactions of property interests and cash in lieu of to higher scrutiny under the essential nexus and rough proportionality tests of
Nollan and Dolan, in the Court's view, both allows internalization of externalities and prevents the abuse of discretion.
The Court does not discuss what remedies might be available for a "Nollan/Dolan unconstitutional conditions violation either here or in
other cases." It did not decide whether the conditions complained of by Koontz would violate the nexus and proportionality standards of
Nollan/Dolan. It did not find that the conditions subjected were demands. In fact, the majority refused to characterize precisely how the
conditions to the permit were communicated. "We decline to reach the respondent's argument that its demands for property were too
indefinite to give rise to liability under Nollan and Dolan." The boundaries of what constitutes a monetary exaction were not made clear by
the majority. These matters were remanded to the Florida courts for resolution, to the extent that they are relevant to Mr. Koontz's claims,
which must now decide whether the suggestions made by the District were sufficiently distinct to constitute demands; whether those
demands meet the nexus and proportionality requirements of Nollan and Dolan, and whether Mr. Koontz suffered any damages for which
there is a state remedy.
Analysis:
Higher Scrutiny Now Applies to Permit Denials and Monetary Exactions: It is not clear whether Koontz is a regulatory taking or due
process case. It is sufficient for the moment to recognize that the principles and standards of Nolan and Dolan, concededly takings cases,
were applied to the facts of Koontz under the unconstitutional conditions doctrine, which applies to many settings having nothing to do
with takings. Saying that citizens do not hold their constitutional rights subject to unconstitutional conditions fundamentally sounds in due
process. Permit denials and monetary exactions bear no constitutional relationship to title exactions, which can "take" fundamental
property rights including the right to exclude others. In one sense, this distinction doesn't matter because under Koontz permit denials and
monetary exactions are now subject to higher scrutiny. al 1l From this flow several other consequences and concerns.
Land Use (Decisions are Subject to Doubt Bather than Deference: The case extends the reach of Federal constitutional law deeply into
the state and local land use system. There is a fundamental and far - reaching difference between deference and doubt as a judicial attitude
toward land use decisions. Before Koontz, all but title exactions were subject to a judicial presumption of validity and a burden imposed on
the applicant to prove that denials or monetary exactions were unreasonable, arbitrary, or capricious. Post- Koontz, denials of permits where
applicants fail to properly mitigate project impacts by following suggestions made by agency representatives and any monetary conditions
imposed on permits are now subject to higher scrutiny, a judicial standard that requires the government to prove that its actions bear a
"essential nexus" to the property's impacts and that the monetary conditions required are "roughly proportional" to the project's impact on
the community. One serious concern here is that Federal takings law is notoriously vague and flawed. All of the many conflicting,
perplexing, and complex doctrines of this body of law are now seated at the head of the table regarding the many land use decisions to
which Koontz might be applied. This will not benefit developers uniformly because it may sap the system of predictability, could lead to
more restrictive zoning standards, and might require them to pay the costs of the now - required municipal studies.
Land Use Decision Processes are Subject to Doubt: Post - Koontz the land use decision - making process, which has been characterized by
give - and -take negotiations among applicants, affected stakeholders, and land use boards, is also subjected to doubt. Under the majority's
decision and using its terminology, suggestions that the applicant modify the proposed project to mitigate environmental conditions or
enhance its sustainability are potentially unconstitutional conditions that will be subjected to higher scrutiny and that can result in
monetary damage awards against state and local agencies. This consequence of Koontz will impose a near -term chill on the land use
decision making process to the detriment of communities and developers. Lawyers for land use boards will be extraordinarily cautious
about authorizing discussions about project modifications that will be more beneficial to the community. The twin prospects here are that
more projects may be simply turned down or inferior projects approved.
Corollary Matters:
If Koontz imposes new costs to conduct studies to prove the proportionality of conditions, will these costs be imposed on
developers as additional permit fees?
• How much will Koontz affect the SEQRA process? Will developers have to pay more fees here as well to pay for municipal
studies needed to carry the burden of proof that lead agencies now have?
• Are legislated exactions, such as wetland banking, solid waste impact fees, or mandatory affordable housing requirements,
that apply through some formula, subject to Koontz, or is the case limited to individual permit conditions aimed at a specific
project's impact such as those involved in Nollan and Dolan? If legislated and formulaic exaction systems are subject to
Koontz, will the "individualized determination" requirement of Dolan, not mentioned by either the majority or dissent, be
implicated? If so, how greatly will this affect area- or community-wide impact fees and other exactions?
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• What constitutes a monetary exaction? Does anything that costs a developer money impose a monetary condition? Did the
majority truly intend such a consequence?
• Will Koontz lead to new forms of negotiations? Will pre- application processes become routine in order to divorce
suggestions made from the formal permitting process? Will the effect of this be to prolong the land use approval process to the
developer's detriment?
• Will local governments be tempted to make zoning standards more restrictive if they fear losing the ability to negotiate
community benefits in the decision - making process?
• Will non - regulatory community- or area -wide plans, floating zones, and more flexibility techniques be relied on that offer
developers choices that they may voluntary choose as an alternative to the now more - restrictive zoning?
• Was it wise for a 5 -4 decision of the U.S. Supreme Court to subject thousands of state and local land use agencies to all this
doubt and prospect of further litigation? What benefits to developers and the public does the Koontz case realize? The majority
fails to say.
II In another sense it does. Under Lingle, the Court carefully distinguished due process from takings law, setting aside decades of
confusion over how a regulation that fails to advance a substantial governmental interest can possibly be a taking. Substantive due process
claims, Lingle points out, are subject to rational basis testing with courts deferring to regulators.
5 usan 'Frevarthen
Member; Board Certified in City, County and Local Government Laiv
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