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HomeMy WebLinkAbout10172013PZ MinutesCITY OF SEBASTIAN A PLANNING AND ZONING COMMISSION 06 MINUTES OF REGULAR MEETING OCTOBER 17, 2013 C .Q D ., Chairman Dodd called the meeting to order at 7:00 P.M. .� The pledge of allegiance was said by all. I E I° E E g ROLL CALL: PRESENT: Mr. Roth Mr, Dodd Mr. Qizilbash Ms. Kautenburg (a) Q L•� c Mr. Durr Mr. Carter �' Mr. Paul Mr. McManus (a) 7 0 '� p EXCUSED: Mr. Reyes p C CL CjL ALSO PRESENT: Joe Griffin, Community Development Director N Q N Robert Ginsburg, City Attorney Jan King, Senior Planner Dorri Bosworth, Planner /Secretary ANNOUNCEMENTS: Chmn. Dodd welcomed Mr. John McManus, newly appointed alternate member, to the Commission, and stated Mr. Reyes was excused from the meeting. Ms. Kautenburg would be voting in his place. APPROVAL OF MINUTES: MOTION by Paul /Carter to accept the minutes of the September 5, 2013 meeting as written. Motion was approved unanimously by voice vote. OLD BUSINESS: None NEW BUSINESS: A. PUBLIC HEARING — PRELIMINARY PLAT — RECOMMENDATION TO CITY COUNCIL REGARDING ROHM COMMERCIAL REPLAT — A 4 LOT SUBDIVISION LOCATED BETWEEN EAST AND WEST BOUND LANES OF SEBASTIAN BOULEVARD (CR 512), EAST OF WIMBROW DRIVE Chairman Dodd asked the Commissioners if they had any ex -parte communication to disclose. There was none. Mr. Joe Schulke, PE, Vero Beach, and resident of Sebastian, represented the applicant. He reviewed the history of the property and the previous development of the Sherwin Williams paint store, which was allowed through a one -time lot split. He stated there was interest from a retailer to purchase some of the remaining property. The LDC now required a preliminary plat to further subdivide the property, with Sherwin Williams having to become a part of the plat. He further explained this was really a "paper" plat as there were no [subdivision] improvements proposed because everything was built — water, sewer, access, etc. He noted the applicant, Mr. Todd Brognano, was present and available for questions. PLANNING AND ZONING COMMISSION MINUTES OF REGULAR MEETING OF OCTOBER 17, 2013 Jan King verified that there were no further improvements needed. She stated that the preliminary plat meets the zoning district requirements for minimum lot sizes and that staff recommends approval. Mr. Dodd asked who was going to manage the stormwater tract/lake on the property. Ms. King stated maintenance was spelled out in the Final Plat dedications of the original one -lot subdivision, along with the entrance road responsibility, and would continue with this plat. She explained it was not going to be the City, but the Association [POA]. Mr. Qizilbash asked why the process couldn't go straight to Final Plat. Ms. King stated there was no mechanism in the LDC to skip the Preliminary Plat phase. Mr. Qizilbash had further questions on the access easement. Mr. Schulke explained that because all the lots had street frontages along CR 512, a street right -of -way was not required in the subdivision. Since the easement was not a road, it did not have to meet street design requirements. Mr. Roth asked if there would be any access limitations from CR 512. Mr. Schulke stated they had met with Indian River County regarding access during development of the Sherwin Williams development and discussed any access issues. Chmn. Dodd opened Public Input. No one spoke in favor, or in opposition, of the application. MOTION by Roth /Carter to recommend to City Council to approve the preliminary plat for the Rohm Commercial project. ROLL CALL: Mr. Durr yes Mr. Qizilbash yes Mr. Paul yes Ms. Kautenburg yes Mr. Roth yes Mr. Carter yes Mr. Dodd yes The vote was 7-0. Motion passed. B. QUASWUDICIAL PUBLIC HEARING — RECOMMENDATION TO CITY COUNCIL REGARDING A SPECIAL EXCEPTION TO LDC SECTION 54- 2- 5.3.3(c) TO ALLOW QUALIFIED AFFORDABLE HOUSING IN CG (COMMERCIAL GENERAL) ZONING DISTRICT — 7.4 ACRES LOCATED AT 9707 US #1 AND NORTH OF THE PUBLIX SHOPPING CENTER AT US #1 AND BARBER STREET The applicants, representatives, and staff were sworn in by City Attorney Robert Ginsburg. Chairman Dodd asked the Commissioners if they had any ex -parte communication to disclose. There was none. Chmn. Dodd explained that the exception requested is from the 8 units per acre that the RM -8 permitted uses [in CG zoning] allow to the 12 units per acres that qualified housing in the CL zoning district allows. He verified they were to make a recommendation to City Council regarding the density request only, and that this was not a site plan review, which would be later. Mr. Joe Schulke, of Schulke, Bittle, & Stoddard, Inc., Vero Beach, and resident of Sebastian, represented the applicant, and handed the Commissioners a Project Summary of the proposed development (attached), and a letter from the applicant's attorney (attached) regarding the tax exemptions mentioned in staffs report. He reviewed the summary on the overhead projector, which detailed the General Description, Development Team, the Proposal, Consistency with the Comprehensive Plan, Economic Benefits, and Location information. He explained that they had submitted a conceptual site plan to show the relevancy of his Summary details with an actual proposed development. He also stated that without the additional density, economically the PLANNING AND ZONING COMMISSION MINUTES OF REGULAR MEETING OF OCTOBER 17, 2013 project could not be built. He noted that the applicant, Dr. Hal Brown, and the architect, Mr. Anthony Donadio, were present to answer questions. Ms. Jan King commended Mr. Schulke's detailed summary, and then reviewed two fundamental differences from this application and the last special exception application for qualified housing that the Commission recently reviewed in May and recommended denial to City Council. She stated the Avery Way application included a good conceptual site plan showing enough information for the Commission and Council to determine if the project meets the required criteria to grant a special exception, whereas the previous application for Mr. Skillman offered minimum information to make that decision. She explained and re- examined Commission's previous concern with the "clustering" of the City's affordable housing projects in near vicinity of each other, and offered that the proposed location of Avery Way was a good distance from the other existing projects. She noted the required Findings of Fact were listed in the staff report along with additional staff comments. Chmn. Dodd stated that an item in the staff report that drew his attention was that affordable housing that was operated by a not- for - profit entity did not have to pay ad valorem taxes. He explained that the letter from the applicant's attorney specifically and adequately addressed that concern for him in that the financial structure of the project would not allow a change in the corporation for at least 15 years. Ms. Kautenburg verified that the housing was affordable and for persons 55 and older. She noted the information about the amount of proposed units was inconsistent — 88, 89, and 91 units. Mr. Schulke stated original calculations first used acreage from the tax maps, since from the survey. 88 units was the correct amount. Mr. Paul questioned the information provided in the Summary regarding housing for "disabled of any age" instead of only 55 and older. Mr. Schulke verified with the applicant that it was for disabled 55 and older, and stated it would be corrected for the City Council. Mr. Roth had questions regarding the tax incentives. Chmn. Dodd stated the financial issues were outside the scope of the Commission's review. Mr. Ginsburg opined that it was OK to discuss, but shouldn't be used for the basis of a decision. Density and location were the issues. Mr. Dodd summarized the letter from the applicant's attorney, and read verbatim the portion that referred to the ad valorem taxes. Mr. Paul was concerned with the possibility of the loss of tax revenues to the City if the project qualified for a tax exemption, and felt that was relevant to the discussion of the proposal. He questioned how long Pelican Isle Apartments operated before they were tax exempt. Staff stated it was less than 15 years, but the exemption was an application and process that went through the Tax Collector's office, not the City. In response to Mr. Paul's question, she did not know how much total monies the Apartment's exemption was for. The applicant, Dr. Hal Brown, Vero Beach, stated he and his partner had no intentions of becoming a not- for - profit organization, and had not even looked into the legalities of it. Because of the tax credits they were receiving, they could not for 15 years. His projects were of high - quality fashion, such as the Sebastian Medical Suites, and were 100% leased. He reiterated that he has no reason to become nonprofit. He further explained that this project was intended to help out the 3000 veterans in Sebastian and seniors on waiting lists, was a 14 million dollar project, and would generate numerous job opportunities, and additional taxes. Dr. Brown clarified for Mr. Qizilbash that the housing was 100% age 55 and over - senior living with assistance. Mr. Paul noted the bedroom sizes were listed differently on the conceptual site plan and the Project Summary. Chmn. Dodd opened Public Input. Mr. Warren Neill had questions regarding affordable housing and allowing disabled persons under 55 to live in the apartments, and location of the ingress and egress. PLANNING AND ZONING COMMISSION MINUTES OF REGULAR MEETING OF OCTOBER 17, 2013 Mr. Ben Hocker, Sebastian, stated he felt that with the amenities being proposed with the project, it was open to becoming a future nursing home, or an assisted living facility, and could be sold to another party in one year. Dr. Brown responded that the apartments will not be open to residents under age 55 with disabilities, the project could not be sold for 15 years because of the tax credit financing, and the project would not become assisted living. Ms. King informed the Commission that a change of use to assisted living would require a Conditional Use hearing before them for approval. Chmn. Dodd commented that the City's Comprehensive Plan included policies to provide increases in affordable housing within the city. Mr. Durr stated that he had a friend living in Shady Rest Mobile Home Park who currently needed to find new housing in the very near future, and he was having a hard time finding affordable housing. He felt the project was good for the city. MOTION by Kautenburg /burr to move to recommend the special exception permit to the City Council. ROLL CALL: Mr. Dodd yes Mr. Roth yes Mr. Durr yes Mr. Paul no Mr. Carter yes Ms. Kautenburg yes Mr. Qizilbash yes The vote was 6 -1. Motion passed. C. DISCUSSION — OVERLAY DISTRICT PERFORMANCE STANDARDS AS THEY RELATE TO THE GENERAL LAND DEVELOPMENT CODE STANDARDS Chmn. Dodd stated he had requested this item to be added to the agenda as Mr. Durr had brought up the subject and he felt the Commission should discuss it. Mr. Durr's concerns more specifically had to do with the waiver process in relation to the general LDC requirements. Chmn. Dodd reviewed the Sunshine law, history of the Overlay Districts, how he would like the discussion to proceed, and possible next steps. Mr. Ginsburg directed the Commissioners not to mention or involve the projects that would be coming before them for waivers in the near future as a part of this discussion, as it would be an exparte communication (i.e. without the other party present). Chmn. Dodd explained what a waiver was, and it was clarified that a waiver was relief from a specific Overlay District requirement, and that a variance would be needed for relief from requirements in the general code. Mr. Dodd stated waivers and variances were usually granted if a requirement was "onerous" for the developer of a specific project and were valuable tools for staff to negotiate with the developers, and for the Commission in their review of site plans. He felt that they should not be eliminated, but that the discussion should be - are the Overlay District requirements too restrictive? Mr. Durr stated his issues were that in the past allowances had been given to applicants /developers that hadn't been approved through waivers by the Commission. He was not sure of staffs abilities to waive requirements. His understanding was that the Overlay Districts superseded the general code, and that staff should be requiring the applicant to apply for a waiver, instead of giving allowances from the general code. He felt strongly on adherence to the Overlay District regulations, and was not in favor of changing them. Because staff may have 4 PLANNING AND ZONING COMMISSION MINUTES OF REGULAR MEETING OF OCTOBER 17, 2013 already made allowances, he could not determine if the strict adherence of the Overlay requirements were a hardship to the project. Mr. Roth stated he supported the Overlay District requirements, and if they weren't right they should be changed. Ms. Kautenburg explained that most of the properties in the Overlay Districts were platted many decades ago and did not adhere nicely with modern development, and felt that many parcels could not be used if every tenet of the Overlay was followed, hence the waivers. She did not feel that staff took liberties in granting waivers, but usually reported or noted what would need waivers. She did not want the city to become too rigid, too big -city, and hoped staff could be pro- active. Mr. Paul concurred with Mr. Durr, but felt if the rules didn't fit, they should be changed, and waivers should be site specific. Ms. Bosworth clarified that for staff the Overlay District requirements did not necessarily supersede the general code but created an additional layer of regulations. Both the general code and Overlay code had to be applied to the project. Staffs dilemma was that there were a few contradicting sections in the LDC where the general code created an allowance for a requirement but a stricter requirement for the same item was stated in the Overlay, which would now require a formal waiver from the Commission. She suggested the codes be amended or modified to eliminate the conflicting sections. Mr. Griffin thanked Mr. Durr for bringing the topic to discussion. He stated that staff, multiple times a day, have to interpret the code, and never with malice of intent, are decisions made. Staff respects the place the Commission has in the process. Mr. Ginsburg opined that the committee that formed the Overlay District regulations must have realized that the nonconforming parcels within the areas would need some relief from the codes and created the waivers, which was unique. He informed the Commission that a zoning code without the opportunity to apply for variances and /or relief is illegal and unconstitutional. He stated that the waivers were an easier process, which may have been the intention, and that it referred to State code, using similar language i.e. "inordinate burden ". The Commission was held to State and Constitutional standards when they were the "judges" [hence quasi-judicial] in waiver hearings, and rationality & common sense were the key words in making their decisions. He stated the Overlay District regulations should be applied in order to accomplice what the City Council wanted them to do in the areas they regulate. Mr. Dodd surmised that because of the pressure put on staff to expedite plans and permits, communication between staff and the Commission, with regards to waivers, and the completeness of the information given, may have been lacking. Mr. Durr summarized his opinion in that he felt the requirements of the Overlay District could not be given allowances by citing the general code, and that Overlay regulations were not an "and" but a "plus ", and that the Overlay Districts should be held to a higher standard. Mr. Dodd asked the Commissioner if there any "action items" requested. There were none stated. He asked staff to bring forward any discrepancies they felt needed resolved. CHAIRMAN MATTERS: Chmn. Dodd reminded the Commissioners that if there were any other topics or matters they would like to discuss, to bring it up under Member Matters and it would be scheduled for a future agenda. 5 PLANNING AND ZONING COMMISSION MINUTES OF REGULAR MEETING OF OCTOBER 17, 2013 MEMBERS MATTERS: Mr. Carter made a suggestion to illuminate the marquee /monument sign in front of City Hall. Mr. McManus also suggested a sign on Main Street advertising the wonderful clay tennis courts located behind City Hall. Mr. Roth brought up adding the "rope and post" design to the code. Chmn. Dodd reviewed that the FSL Grant Committee also wrestled with design issues, how hard it was to pin -point what the "fishing village" aesthetic was, and wished City Council could give the Commission something in writing to guide them. Mr. McManus stated he would like to see a sidewalk along the east side of Roseland Road, and that the County should widen the bridge, to make it safer for pedestrians and cyclists. He noted that the crosswalk should also be relocated to the eastern part of the [Roseland Road & CR 512] intersection for public safety. DIRECTOR MATTERS: Mr. Griffin informed the Commission that the City was awarded the FIND grant for Fisherman's Landing, the full amount of $157,380. ATTORNEY MATTERS: None Chairman Dodd adjourned the meeting at 8:56 p.m. (db) Avery Way Apartments- Project Summary General Description: *Location: - Barber Street and US 1, - behind the Publix - Situated on 7.4 acres - zoned CG. *Senior living with services: accommodate independent living tenants of 55 years of age or disabled of any age. - programed for 88 units - 6 two bedroom units - 82 one bedroom units. *Unit sizes: -750 square feet one bedroom, and 850 for the two bedroom units. - design will accommodate associated couples, brothers or sisters. *Community spaces: Library, Dining and community area, Gaming area, Computer Room Private meeting / exam rooms (for general checkup available for eye, hearing and general health), Exercise space, Administration office *Optionally provided services: Transportation, Social Services, Personal assistance, Medication Reminders, Meals, Housekeeping, Laundry, Other (as req'd) The design of the facility and its location address the needs of the proposed tenants. The location provides nearby: Banking, Public transit, Grocery, Pharmacy Development Team: The applicant owner is Avery Way Apartments, LLC, with its sole Managing member — Plaza of the Cottages, LLC (with members being Or. Hal Brown (Trust)and Dr. Wayne Sinclair) Owner: Avery Way Apartments, LLC Wayne Sinclair and Revocable Trust of Hal R. Brown 1265 36th Street Vero Beach, FL 32960 772 - 567 -3564 Developer: H AND W ASSOCIATES, LLC Wayne Sinclair and Hal Brown 126536 th Street Vero Beach, FL 32960 406 - 544 -7257 TIM BIRK 2239 Lower Valley Road Kalispell, MT 59901 Architect: Anthony Donadio Donadio & Associates, Inc. 609 17" St. Vero Beach, FL 32960 772 - 794 -2929 Contractor: James Adams dba Passageway Construction. 191082 nd Avenue, Suite 202 Vero Beach, FL 32966 772 - 778 -3143 Engineer: Joseph W. Schulke, P.E. Schulke, Bittle & Stoddard, LLC Vero Beach, FL 772 - 770 -9622 Attorneys: Nevin Zimmerman, Esq. Burke Blue Hutchison Walters & Smith, P.A. 221 McKenzie Ave. Panama City, FL 32401 (850) 215 -6604 Proposal: *Request for approval of a Special Exception to permit Qualified Affordable Housing at THIS SITE at a maximum density of 12 units per acre. Within the CG district, all RM -8 multi - family zoning district uses may be developed, including multi- family housing. The site must meet size, intensity, and dimensional criteria of the CG district, AND is limited to 8 units per acre. The code provides the opportunity for a density bonus (from 8 - up to 12 units per acre) if the project is: - a Qualified Affordable Housing Project [56- 2- 6.4(36a)] - the site is zoned CL. Therefore, since this site is zoned CG (not CL), this site can only receive a density bonus if it receives approval for a Special Exception. Consistent with the Comprehensive Plan: This project enables the City to meet its Comprehensive Plan Objective (Policy 1.2.1): to encourage private investors and developers to "actively participate in meeting the housing needs of very low, low and moderate income households through involvement in Federal, State and local housing programs." *88 unit senior age restricted facility that allows tenants to age in place *54 of the 88 units are restricted to serve low income tenants (61 %) *low income tenant is defined as making 60% or less of AMI *project is made possible by utilizing the Federal and State 4% tax credit program (credits are sold to an investor) *estimated rents for the restricted units are $699 monthly (1 bedroom) to $816 monthly (2 bedrooms) Economic Benefits: The local economy will benefit from the construction of this project *Total project costs estimated at $14,000,000 +/- *local construction jobs and businesses will benefit during construction *after construction it is estimated that there will be 39 direct jobs created and 200 indirect jobs enhanced from the operation of the project *the tenants will be shopping and spending money in the City *ad valorem taxes will be paid on the completed project to the School Board, the County and the City Right Location: *This site will not present or create an unduly adverse impact upon other properties. - No City wide Impacts: a stated staff concern was that many affordable housing developments are concentrated around Main Street. This site is far removed from this vicinity, and near and therefore, will not contribute to or expand this trend. - No Local Impacts: the property is surrounded by commercial retail and services, and is within walking distance of the elderly clients: Grocery, pharmacy, restaurants, banking, hair salon. The uses are compatable and complimentary. - Other residential uses: nearby uses are diverse, and include single family, unrestricted multi - family, and mobile home communities. This additional use continues the varied and diverse mix of residential uses in the city and within the vicinity. * Transportation — public transit stop within walking distance at adjacent Publix — providing Transit to most areas of the city and IRC. * Comprehensive plan — meets all Location criteria of policy 1.2.7 L i unanticipated housing problems and issues. Objective 1.2: Affordable Housing. The City shall encourage and assist the private sector in the provision of safe, clean, and affordable housing for special needs populations of the City, including the workforce and low and moderate - income households. Policy 1.2.1: The City shall encourage private_ investors, developers and landlords to acively participate in meeting the housing needs of very low, low and moderate income households through involvement in Federal, State and local housing programs. Policy 1.2.2: The City shall participate in regional initiatives directed toward educating local governments of new techniques especially programs applicable to the region and /or the Counrf, for promoting affordable housing. Policy 1.2.3. The City shall offer incentives to developments with affordable housing units that meet all of the location criteria in Policy 1.2,7. These incentives shall include, but are not limited to, expedited permitting deferment and /or waiver of building permit fees, impact fees and inspection fees. Policy 1.2.4: In drafting updated land development regulations, the City shall ensure fiat regulatory techniques and review procedures do not create barriers to affordable housu7 ~ ay Policy 1.2.3: The City shall, through the land development regffitions, encourage the development /redevelopment of housing that will integrate divergent fan "'1963y n 9nnova ons, 9na .ADOPTED April 22, 2009 I11-49 CITY OF SEBASTIAN COMPREHENSIVE PLAN HOUSING ELEMENT choices of housing, including housing type and ownership status, across ; all __neighborhoods.-_ Policy 1.2.6: The City shall review the regulatory and permitting process to determine whether there is a need to streamline the process. w_ ' i ° "�, �►; ; Polity 1,2.7: _ The City shall continue to require that sites for affordable housing have _ access to the following facilities, services and /or activity centers: � - * Potable water and central wastewater systems; .� L6 e Employment centers, including shopping; � �entej which accommodate stores offering household goods and services needed on a frequent and recurring basis; * A major street (i.e., included in the City's major thoroughfare plan); * Public parks, recreation areas, and /or open space systems; and �% • Adequate surface water management and solid waste collection and disposal. Objective 1.3: Special Needs Households. The City of Sebastian shall ensure that nnnnrt77nitiea for ornnn honeq and fnctrr rare Ar+li6i -c ne 111,11 F_- .1__ IT MAKES SENSE: -RIGHT LOCATION - CONSISTENT WITH THE CITY'S COMPREHENSIVE PLAN -MANY ECONOMIC BENEFITS TO THE CITY AND THE COMMUNITY -AGE RESTRICTED AFFORDABLE HOUSING IS NEEDED IN THE CITY -THE DENSITY BONUS PROVIDED BY THIS SPECIAL EXCEPTION APPROVAL OFFERS THE OPPORTUNITY FOR THE APPLCANT TO DEVELOP AFFORDABLE HOUSING. Without the density bonus, providing affordable housing will not be possible. BURKE HUTCHISON WAITERS SMITH October 16, 2013 LES W. BURKE a Ron BLUE.JR. EDWARD A. HDTCNISON,JR. ELIZABETH J. WALTERS DOUGLAS L. SMITH + MICHAELS. BURKE M. TODD BURKE WILLIAM S- HENRY- WILLIAM C. HENRY - JDY MARLER MASTERS + ++ J. CNRISTUPHBR BARR MICHAEL J. HAUYERsEO'RK MICHAEL J. HENRY CLARK T ROUERs NEVIN J. ZIMMERMAN DUSTIN N. DAILEY Joseph Schulke •0FC0DNS6L 1 ALSOADMITTEDINAEABAMA Schulke, Blttle rY]r K Stoddard, LLC •• ALso ADMtTYED IN GBORDIA 1717 Indian River Blvd. Suite 201 ••ALSDADMIT,CUIT COURT R% + CLRTIFIfiD C10.CU1T COD 0.T AA SENATOR Vero Beach, Florida 3260 + ++ LL.MANTARAT70N Re: Special Exception Permit, Qualified Affordable Housing as a Conditional Use City of Sebastian Planning and Zoning Commission Dear Mr. Schulke: As you are aware, I am the attorney that represents Avery Way Apartments, LLC, the entity that has a contract to purchase the property that is the subject of the Conditional Use request from the present owners, Plaza of Cottages, LLC and Highpoint Commercial Center, LLC. You have requested that I respond to the comment in the Staff Memorandum dated October 9, 2013 on the above referenced request for a Conditional Use that states: "On the negative side, a state statute exists which provides for an affordable housing property tax exemption for property owned entirely by a nonprofit entity ... If this qualified affordable housing project is transferred to a nonprofit corporation, they may apply for the tax exemption and the property would no longer generate tax, revenue." Short Answer. The short answer is that at least for the first fifteen years of the life of the project the proposed ownership structure would prohibit qualification for an ad valorem tax exemption. After 15 years is would be possible to sell to a nonprofit but highly unlikely. The reason this project could work financially is because there will be a private for -profit owner who wants to enjoy the tax credits that are generated. A nonprofit receives no benefits from tax credits. To be exempt from paying ad valorem taxes one needs a 501 c3 tax exempt owner that is using the property for an exempt purpose. With the Avery Way affordable project there will be an exempt use of the property but the owner will not be an exempt nonprofit. The rule in Florida is {PANAMA CITY PANAMA CITY BEACH 0 SANDE5TIN 22L MCKIirmm AVENUE 16215 PANAMA CITY BEACH PARKWAY GRAND BOULEVARD OFFICE PLAZA PANAMA CITY FLORIDA 32401 PANAMA CITY BEACH, FLORIDA 32413 195 GRAND BOULEVARD, SUITE 101 TELEPHONE (850) 769.1414 TP.LEPHONE (85o) 136-4444 SANDESTIN. FLORIDA 32550 FACSIMILE (850) 784-0857 FACSIMILE (B50) 236 -1313 TELEPHONE (850) 267'9498 FACSIMILE(850)267 -9499 that the ownership entity must be owned 100% by a single 501 c3 exempt entity to qualify for an ad valorem tax exemption. See Florida Statutes s.196.192 and Florida Statutes s. 196.1978. Description of the Project. The project is intended to have 89 units with 54 (61 %) restricted to serve low income tenants. Low income tenants are tenants that make 60% or less of the AMI (average median income). The purchaser, Avery Way Apartments LLC, will be managed by Plaza of the Cottages, LLC, a for - profit LLC with Dr. Hal Brown and Dr. Wayne Sinclair as members. After tax credits are sold and the project is financed, then a new for -profit Tax Credit Partner will own 99% of Avery Way Apartments LLC for 15 years as the Tax Credit Partner. During this 15 year time frame, the Tax Credit Partner will each year utilize a portion of the total tax credits that were generated to offset income taxes it otherwise would have had to pay. Tax Credits. The only way it is financially feasible to construct this affordable project is for Avery Way Apartments, LLC to have tax exempt bonds issued so that it can obtain and then sell tax credits to raise approximately $2,400,000 in equity from the new Tax Credit Partner. The tax credit sale proceeds ($2,400,000) will be invested into the project. The incentive for the Tax Credit Partner to invest this cash into the Avery Way project (that will have reduced rental income from low income tenants on 61% of the units) is that each year for 15 years the Tax Credit Partner will receive tax credits. Tax credits cannot be utilized by a nonprofit entity since it pays no income taxes; therefore a nonprofit has no reason to buy and the Tax Credit Partner has no reason to sell its position to a nonprofit entity. After the tax credits are used up in 15 years, the Tax Credit Partner exits the Avery Way Apartments LLC and it will be owned entirely by Plaza of the Cottages LLC (who has remained its managing member). Although after 15 years it is theoretically feasible for the property to be sold to a nonprofit (since there are no tax credits left), the reality is that there are a variety of factors that mitigate against a nonprofit purchasing the project at this point. Affordable Housing Property Exemption. The state statute granting an exemption for affordable projects is pasted in below, and (as stated previously) since the sale of tax credits to a for -profit corporation is essential for the economic viability of the project, the project will not be "owned entirely by a nonprofit entity" as required by the statute. Effective: July 1, 2013 West's Florida Statutes Annotated Currentness Title XIV. Taxation and Finance (Chapters 192 -221) (Refs & Annos) Chapter 196. Exemption (Refs & Annos) (see next page) 196.1978. Affordable housing property exemption Property used to provide affordable housing to eligible persons as defined by s. 159.603 and natural persons or families meeting the extremely - low - income, very-low- income, low- income, or moderate- income limits specified in s. 420.0004, which is owned entirely by a nonprofit entity that is a corporation not for profit, qualified as charitable under s. 501(c)(3) of the Internal Revenue Code [FNII and in compliance with Rev. Proc. 96 -32, 1996 -1 C.B. 717, is considered property owned by an exempt entity and used for a charitable purpose, and those portions of the affordable housing property that provide housing to natural persons or families classified as extremely low income, very low income, low income, or moderate income under s. 420.0004 are exempt from ad valorem taxation to the extent authorized under s. 196.196. All property identified in this section must comply with the criteria provided under s. 196.195 for determining exempt status and applied by property appraisers on an annual basis. The Legislature intends that any property owned by a limited liability company which is disregarded as an entity for federal income tax purposes pursuant to Treasury Regulation 301.7701- 3(b)(1)(ii) be treated as owned by its sole member. I trust this information is useful to respond to the comment from the Community Development Department. My client believes that having a quality affordable housing project in the City of Sebastian should have numerous benefits for the citizens. Sincerely yours, BURKE BLUE HUTCHISON WALTERS & SMITH. P.A. 1 Nevin J. Zimmerman NJZ/cbb