Cocoa Beach: From The Comments (Which We Always Read.)

A reader by the name of “Francis” left this comment on our post entitled “Cocoa Beach / Palm Bay / Satellite Beach: Petitions! Online And In Person” from May 17, 2018.

To AAfterit

An individual resident or business owner that is trying to retrofit or build a new structure in the City of Cocoa Beach is faced with various city building site issues. Some residents felt that Commissioner Williams had a good idea with his ‘proposal request’ but his attempt to discuss and add his ballot proposal was not successful at the commissioners’ previous meeting. On 5/17 the Cocoa Beach City Commissioners decided to postpone their response to another request from a local citizen’s group to also add that proposed amendment to the November ballot.

Current Florida Statues’ with regard to municipal charter amendment changes that occur after the baseline year 2011 could put our current city charter requirements in legal jeopardy.

Note: Florida Statute 163.3167, paragraph 8, indicates that any initiative or referendum pertaining to a development order might be prohibited if we try to change anything in our City Charter related to development orders; updates might be considered a conflict with the Florida Statute if legally challenged.

What would a judge decide…, throw out everything in our city charter or revert back to the existing charter terminology??? No one knows.

It is reasonable to assume that adding an ‘informational/ mandated type’ of proposal request to the ballot like the Williams’ proposal would not cause a solution that will evaporate our present day city charter section. The proposed Sec. 6.08. – Building Height Limit Accommodation request to be added to the ballot would not only enforce federal and state rules and regulations like FEMA but encourage and accommodate present and future construction on our barrier island.

Echoing raised on hoecakes’ Lagoon concerns:
“CALL TO ACTION: Sign this petition to Help us SAVE the Indian River Lagoon in Florida. Please sign the petition to PREVENT another sewage DISASTER in the Indian River Lagoon to save the Lagoon and Protect Brevard’s billion $ tourism industry. We must STOP ALL MEDIUM and HIGH DENSITY DEVELOPMENT BREVARD BEACHSIDE because the sewage infrastructure can’t support it.”

The Cocoa Beach Charter Review Committee’s recommendation to the city commissioners (to be discussed at an upcoming workshop) could establish a change in two other city charter’s height sections (Sec. 6.04. – Building Height Limit and Sec. 6.07. – Comprehensive Plan Adoption Requirements ) which now limits structures at 45 ft to 70 (plus another 8’) which could also open the door to a new Variance Procedure which could allow structures well over 100 ft. State statutes’ evidently do not allow a city to now set a height ceiling so once the present one is disposed of the sky might become the limit!

I would welcome inputs from amateur legal minds with regards to legal terminology to update the city charter’s height accommodation to avoid having all our height recommendations thrown out of the city’s charter if challenged?

First, as always, we want to thank Francis for their comment.

In short, Francis is asking whether Florida Statute 163.3167(8) is would apply if the City of Cocoa Beach changed the comp plan by referendum or a voter initiative.

Florida Statute 163.3167(8) reads:

(a) An initiative or referendum process in regard to any development order is prohibited.
(b) An initiative or referendum process in regard to any local comprehensive plan amendment or map amendment is prohibited unless it is expressly authorized by specific language in a local government charter that was lawful and in effect on June 1, 2011. A general local government charter provision for an initiative or referendum process is not sufficient.
(c) It is the intent of the Legislature that initiative and referendum be prohibited in regard to any development order. It is the intent of the Legislature that initiative and referendum be prohibited in regard to any local comprehensive plan amendment or map amendment, except as specifically and narrowly allowed by paragraph (b). Therefore, the prohibition on initiative and referendum stated in paragraphs (a) and (b) is remedial in nature and applies retroactively to any initiative or referendum process commenced after June 1, 2011, and any such initiative or referendum process commenced or completed thereafter is deemed null and void and of no legal force and effect.

A long time ago, we had a very smart pastor who said “text without context is a pretext.” It is therefore important to understand the context and the terms being used in this section and how it applies to the processes that are ongoing in Cocoa Beach.

First, Land Development Regulations (LDR’s) are the law – as enforceable as any law on the books. Comp plans and LDR’s should mirror each other and never have a conflict.

Secondly, a “development order” is for a singular property or project. This means that line (a) is saying “you cannot have an end run around the LDR’s and Comp Plan by an initiative or amendment.

Sections (b) and (c) are similar. The prohibition is on amending comp plans and by extension LDR’s.

That is NOT what is happening in Cocoa Beach.

On May 3, 2018, the Charter Review Committee made a presentation to the Commission with their recommendations. First out of the box was a recommendation for an amendment to the City Charter to increase height limits. Said recommendation would be voted upon by the residents of Cocoa Beach.

Please take the time to read the proposal and the ballot language as it is amending the City Charter, and not the Comp Plan, not the Land Development Regulations and not any development order.

Long story short, Florida Statute 163.3167(8) does not apply here. There is no initiative to change or amend anything other than the Charter, which is perfectly legal.

One Response to “Cocoa Beach: From The Comments (Which We Always Read.)”

  1. Sandy says:

    There’s a public workshop Tuesday night, May 29 at 6pm at City Hall about this and other proposed amendments regarding Cocoa Beach for the November ballot. People who are opposed to raising building heights need to represent by giving their input at this meeting. You can count on the developers and hoteliers and their minions giving theirs. We need to make their 4 Commissioners HEAR US for once.
    I spoke with some people at the library who were getting petitions signed for Skip Williams and they said people overwhelmingly DO NOT want higher buildings. They also said people don’t like the way those who disagree with them bully speakers at the meetings and that the commission already has their minds made up.
    It sounds like there are way more of us who are opposed than there are of them. We need to stand united. If not us, then who? If not now, when?