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Cocoa Beach: Height AND Density AND Commission Meetings AND The Public. (Don’t Worry About The “And,” It Is Meaningless.)

Cocoa-Beach-AND-ROH“And.”

It is such a simple word that carries so much meaning.

Apparently the 3 letter word has the same connotation to some members of the Cocoa Beach Commission as other 4 letter words that are not used in polite conversation but are used to describe people opposed to the way members of the City Commission are dealing with height and density concerns.

To understand the issues, I think you have to go back in time and look at the documents. I am going to try and give a primer on this issue and if I am wrong, please use the comments to correct me.

In 2000, the City Commission passed a Comprehensive Plan (Comp Plan) as required by Florida Statutes. That plan can be found on the Cocoa Beach website.

That plan was amended and parts re-written until at least 2010.

In 2002, a City wide referendum on height and density restrictions as well as codifying those restrictions were voted upon and passed by citizens of Cocoa Beach.

CITY OF COCOA BEACH CITY CHARTER REVISION

REFERENDUM TITLE: “DENSITY LIMITS”

“Shall City Charter Section 6.01 – Density Limits, be changed: – for permanent occupancy dwellings decreased from fifteen (15) to ten (10) units per acre; and – for transient accommodations decreased from forty (40) to twenty-eight (28) units per acre; and, – by removing provisions for granting higher densities? ”

YES, FOR AMENDMENT – 4213; NO, AGAINST THE AMENDMENT – 2095
YES -66.79%;
NO – 33.21%

REFERENDUM 2 – CHARTER AMENDMENT

CITY OF COCOA BEACH CITY CHARTER REVISION
REFERENDUM TITLE: “HEIGHT LIMITS”

“Shall City Charter Section 6.04 – Building Height Limits, be amended to: – Reduce maximum height of structures, including attachments, from eighty-five (85) feet above mean sea level to forty-five (45) feet above crown of abutting road; and, – allow rebuilding structures to existing height if damaged or destroyed by disaster?”

YES, FOR AMENDMENT – 4268; NO, AGAINST THE AMENDMENT – 1881
YES – 69.41%;
NO – 30.59%

REFERENDUM 3 – CHARTER AMENDMENT
CITY OF COCOA BEACH CITY CHARTER REVISION
REFERENDUM TITLE: “COMPREHENSIVE PLAN ADOPTION REQUIREMENTS”

“Shall City Charter Article VI . be amended by adding Section 6.07 – Comprehensive Plan Adoption Requirements, to: – Require an affirmative vote by four (4) City Commissioners for any adoption or amendment to the City’s Comprehensive Plan, except for issues increasing permissible building and structure height or development density and/or intensity which would require an affirmative vote by five (5) City Commissioners?”

YES, FOR AMENDMENT – 3858; NO, AGAINST THE AMENDMENT – 2113
YES – 64.61%;
NO – 35.39%

It is clear that the citizens of Cocoa Beach wanted hard (inflexible) restrictions on height and density. The referendum was challenged in court with the court declaring the vote, the outcome and the referendum to be legal and binding.

The changes mandated by the referendum were added to the City Charter (not the Comp Plan.)

Therefore in 2010, when addressing height and density issues, The Comp Plan sections dealing with height and density, sections I.4.11 and I.4.12, can be found on pages I-13 to I-15 of the Comp Plan:

The “preamble” to those sections reads:

Policy I.4.11: To protect existing residential areas from encroachment by land uses which are incompatible due to building height, the City shall regulate maximum allowable building height and allow exemptions for existing buildings. [added by Ord.1328, Section 5, 6/6/02]

Policy I.4.12: To protect existing residential areas from encroachment by land uses which are incompatible due to development density, and ensure safe hurricane evacuation times, the City shall regulate maximum allowable residential and transient lodging density, and allow exemptions for existing residential and transient lodging developments. [added by Ord. 1328, Section 5, 6/6/02]

What is not within the preambles is any reference to a “5-0” vote being required for a variance to the height and density restriction.

In 2012, a rewrite / update to the Comp Plan took place. That plan can be found on the City’s website as well.

The new plan reorganized and renumbered policies and sections but for the most part, left the sections and wording on height and density the same.

Policy I.14.12 became II.2.1 (page I-15) and I.4.12 became Policy II.2.2 (page I-17).

Here are the “new” preambles to the Policies:

I.2.1: To protect existing residential areas from encroachment by land uses which are incompatible due to building height, the City shall regulate maximum allowable building height and allow exemptions for existing buildings.

And I.2.2: To protect existing residential areas from encroachment by land uses which are incompatible due to development density, and ensure safe hurricane evacuation times, the City shall regulate maximum allowable residential and transient lodging density, and allow exemptions for existing residential and transient lodging developments.

Notice that once again there is no mention of a 5-0 vote to change height and density restrictions as that vote is within the City Charter as per the 2002 referendum.

Then what’s the fuss about height and density now?

When the City Commission voted to send the Comp Plan to the Florida Department of Economic Office (DEO) there was language in the preamble to sections I.2.1 and I.2.2 referencing the 5-0 vote required by the City Charter. The DEO did not like the reference to another document in that section and so the solution was to remove the language.

People freaked out saying the City was deleting the 5-0 vote requirement to change height and density.

Even though a 5-0 vote was never stated or codified within the preambles to the sections, people thought that the Commission and Planning Board were trying to remove it. Much effort has been spent on returning this wording that never existed in the first place.

What is happening is an attack (for lack of a better word) on the word “and.”

I kid you not.

Sections I.2.1 and I.2.2 of the Comp Plan deal with variances to height (I.2.1) and density (I.2.2.) The 2012 Comp Plan contains the following dealing on getting a variance for the height of a building (similar language is present for a density variance):

Policy II.2.1 To protect existing residential areas from encroachment by land uses which are incompatible due to building height, the ecial 2. 2. Special consideration may be given to allow new structures at a height greater than 45 feet , but in no event greater than 70 feet, when:

An applicant/property owner petitions for public hearings before the Planning Board, the Board of Adjustment and City Commission. The applicant must demonstrate land use compatibility and consistency with zoning standards, objectives and public infrastructure;

Petitions may be considered only when the application includes density restrictions, restricted location of the primary land uses, increased setbacks, and substantially increased buffers;

Approval by the Board of Adjustment, Planning Board and a favorable supermajority vote of four Commission members is required to allow structures at a height greater than 45 feet ; and,

The applicant must petition for comprehensive plan text amendment to specifically identify the location [property] in the City where these structures will be constructed. Such amendment must specify the height authorized by the special approval.

To summarize, in order to get a variance the applicant must:

1) Approval by the Board of Adjustment. If the applicant does not get a majority vote at the Board of Adjustment, the variance fails.

2) If the Board of Adjustment passes the variance, the Planning Board must also pass the variance. If the applicant fails to get an approval by majority vote from the Planning Board, the variance fails.

3) If the applicant passes the Board of Adjustment and the Planning Board, the variance must be approved by a supermajority vote (4-1) of the City Commission. If the applicant fails to get an approval by a super majority vote from the City Commission, the variance fails.

4) After approvals by the Board of Adjustment, the Planning Board and the City Commission, the applicant must petition the City Commission for an amendment to the City Comprehensive Plan listing the specific property and variance. The City Commission must pass the amendment by a unanimous 5-0 vote. If the applicant does not receive a unanimous 5-0 vote in favor of the amendment from the City Commission, the variance fails.

That is the plain reading of the text of the Comp Plan. That text appears to be consistent and understood by the Commissioners and people of Cocoa Beach since the language was adopted after the ballot referendum in 2002. It is text that survived outside legal challenges. There was no doubt to anyone to the meaning of the text and the requirements for the variance.

No one except Attorney Marsha Segal-George.

In June of 2014, Segal-George sent a memo to the Development Services Director Zach Montgomery. In it Segal-George tries to make the case that there is no 5-0 vote required when it comes to a variance request. (Don’t forget that the clear wording of the section on variances says “and” as in “an additional requirement” for a required text amendment in the Comp Plan.)

If there is logic in Segal-George’s thinking, I can’t find it.

First she says:

2. Do petitions for a Charter variance as to height in Section 6.04 and as to density/intensity in Section 6.01 go before the PB and the BOA before the City Commission?

Yes, this is not required by the City Charter, but it is an additional, more stringent requirement placed in the Comprehensive Plan.

Segal-George never makes the case that the “more stringent requirement” does not apply to a variance request. Who would try to say that the variance procedure on height / density need not come before the Planning Board, the Board of Adjustment and the City Commission? To not apply the requirement is to allow anyone to build anything at any height.

The only conclusion is that Segal-George believes the “more stringent requirement” for a variance as being the standard for obtaining the variance.

Prior to the above, Segal-George writes:

Similarly, Policy II.2.2 (Density- previously I.4.12) provides for a procedure that requires a hearing at the BOA and the PB prior to the hearing at the City Commission – it also references, upon successful approval of the petition for variance by all 3 entities, the need for the applicant to “petition for a comprehensive plan text amendment to specifically identify the location of the property in the City where the construction will occur”. This provision is not required by Charter Section 6.07, but it is an additional, more stringent requirement placed in the Comprehensive Plan.

The Comp Plan places a well known, clear, more stringent requirement for approval of a height / density variance and that requirement includes the approval of a text amendment to the Comp Plan by a 5-0 vote of the City Commission.

Segal-George then makes this statement:

3. Does a requirement for Commission 5-vote approval for such a variance request exist anywhere?

No .

Segal-George wants people to ignore the word “and” in the Comp Plan and while admitting that the text amendment is part of the variance process later says there is no language anywhere that says a 5-0 vote is required.

Segal-George is saying that of the two “more stringent requirements” in the same section of the variance requirement, only one of those requirements is valid and applicable.

Why would someone say such a thing? Why would an attorney working for the City of Cocoa Beach make such a convoluted, inconsistent and illogical statement?

The answer may be that working for the City of Cocoa Beach is not the same as working for the people of the City of Cocoa Beach. Attorneys who do work for the City serve at the pleasure of the City Commission and not the people.

If you have a majority of the City Commissioners including the Mayor looking for ways around the clear letter and spirit of the wording in the Comp Plan, any decent lawyer will find a way to try to get around the wording. There is no loss or risk for them to do so. Oddly enough, if there is a legal challenge to Segal-George’s interpretation, the City Commission or the City Manager will authorize tax funds to defend the legal challenge. This puts residents in the odd position of not only using their own money to sue the City, but the City using residents’ money to defend the lawsuit. Not only that, but Sager-George’s firm will get fees for defending the lawsuit from city residents.

You might think that I am crazy in my understanding of the clear wording of the variance requirements.

If that is the case, I am not alone and included in the “crazy” group are (or were) Commissioners Malick, Tumulty and Mayor Netterstrom.

June 20, 2013, the City of Cocoa Beach sought a variance for the height of the new fire station.

That variance was part of proposd Ordinance 1564. Then Development Services Director Anthony Caravella presented the Ordinance to the Commission which included Netterstrom, Tumulty, Malik, Williams and Dillon. The Ordinance included removing the section below from the Comp Plan:

The applicant must petition for comprehensive plan text amendment to specifically identify the location [property] in the City where these structures will be constructed. Such amendment must specify the height authorized by the special approval.

Caravella had previously told the Commission that the 5-0 vote was required for any variance dealing with height or density. On February 7, 2013 when discussing the proposed height variance for the Inn at Cocoa Beach, the minutes of the meeting state:

Mr. Caravella pointed out that this was a public hearing for the Ordinance and that the adoption required a unanimous vote of the Commission, since it deals with height.

The only way around that requirement was for Caravella to propose what he proposed in Ordinance 1564 – the removal of the text amendment / 5-0 vote requirement. That removal is exactly what Caravella proposed.

The minutes of the meeting say:

Mr. Caravella explained that the requirement for a text amendment was noted in the Comprehensive Plan. He explained that in the Comprehensive Plan, when the changes to the Charter were adopted in early 2000s, the procedures to increase the height were challenged. At the time, the Commission decided to implement the regulations regarding height and density through the Comprehensive Plan. The procedures for maximum height and maximum density are found in the Comprehensive Plan. Because the citizens voted to allow for variances, the City Commission also adopted the process that any variance should also go through a Comprehensive Plan text amendment. Because of other provisions in the Charter, any Comprehensive Plan text amendment that deals with height and density, requires a 5:0 vote of the Commission. He noted that the requirement of the process before the Commission was part of the Comprehensive Plan requirement. The Comprehensive Plan change wsa made to valide the changes made to the Charter before the Charter changes were validated by the Courts. Commissioner Dillon explained that the confusion rests that she thought that in the Charter it states that there was a requirement for a 5:0 vote of the Commision to approve a height above 45 feet. Mr. Caravella explained that this requirement only applied to Comprehensive Plan text amendments. He noted that the Ordinance before the Commission would change the requirement under certain conditions, it would change the requirement of a 5:0 vote to a 4:0 vote for requests from 45 to 70 feet in height and for earlie mentioned density changes. This Ordinance would relax the provisions of the Comprehensive Plan, and relay strictly on the Charter. (spelling errors in the original)

Caravella is again saying that the only way to get around the 5-0 vote for the text amendment as part of the variance process is to eliminate that part of the Comp Plan.

According to the minutes, Mayor Netterstrom says that the Ordinance goes much farther than he expected. He later says that to remove the requirement the 5-0 vote on the text amendment in the variance process must go back to the people in order to “not split the city.”

Commissioner Malik said the ordinance (changing the requirement for a variance) caught everyone off guard.

Commissioner Tumulty: “this ordiannce (sic) is not to change the height and desnity (sic) of the city. it is about changing the vote on a variance. that is what the ordiannce (sic) is about.”

Commissioner Williams: “….explained that what was being proposed was the removal from the process the request for building heights between forty five feet and seventy feet, it removes the requirement for the 5:0 vote of the Commission through a Comprehensive Plan text amendment.”

Commissioner Williams, Tumulty, Malik and Mayor Netterstrom all agreed in 2013 that the section(s) in question required as part of the variance process a 5-0 vote for the text amendment.

The Commission voted to accept Ordinance 1564 on first reading under the provision that the section on the 5-0 vote for the text amendment not be removed as it would change the variance process.

On August 1, 2013, Ordinance 1564 was brought back before the Commission with the 5-0 vote for a text amendment in the Ordinance as part of the requirement for obtaining a variance dealing with height and or density.

The Ordinance passed unanimously.

Between June 20 and August 1, something else happened. According to Florida Today:

A proposal to make it easier to build past the city’s 45-foot height restriction has cost the 14-year head of the building department his job.

City manager Robert Majka fired development services director Anthony Caravella the day after his presentation created a controversy at a city commission meeting over efforts to streamline the process to acquire building variances.

Commissioners balked at eliminating the required 5-0 vote for height and density variances that was passed by voters in 2002. …

A long time employee was terminated in part, for even suggesting to remove the text amendment requirement and accompanying 5-0 vote. That’s how deeply the understanding of the variance process was and how engrained and important it was to the people of Cocoa Beach.

Of the four Commission members who read, studied, considered and voted upon Ordinance 1564 and relied on the understanding that the text amendment and the accompanying 5-0 vote was part of the variance process, three have changed their tune and now say the 5-0 vote for the text amendment not only is not part of the variance process, it never was part of the variance process.

What changed?

If these Commissioners want to say it is the letter from Segal-George, why didn’t they ask for the opinion before voting in 2013? Why did they rely on their understanding of the plain and clear text of the Comp Plan (as well as statements from citizens and previous members of the Commission?)

One illogical and contradictory opinion from a lawyer voids 15 years of understanding and peace on this issue within the City?

No wonder residents are upset.

In the post below entitled Cocoa Beach: Move Along Folks, There’s Nothing To See Here, Commissioner Malik makes an appearance in the comment section defending his lack of disclosure of a real estate license as well as complaining about the height / density requirements within Cocoa Beach. He also complains about the length of time it takes to get a variance.

I believe his points have merit. It does take too long to get a variance. The process should be streamlined and is being streamlined. The streamlining of the process has nothing to do with the requirements for a variance. It is the requirements that is at issue. I wonder why Commissioner Malik would try to equate the process with requirements for the variance. A diversion perhaps? A bad “shifting of the goalposts?” Whatever his reasons, he failed miserably on that point.

If Commissioner Malik wants to raise the height of permissible buildings in the city, let him make a proposal to do so. Let him stand up before the people of Cocoa Beach and make his proposal. The people are generally reasonable and understanding and would accept good arguments. Make your case, Commissioner.

At the last Commission meeting Commissioner Tumulty launched into what was basically a childish and condescending rant against people who wanted to make sure the text amendment and 5-0 stayed a part of the variance process. One of the things he said was he had come to understand that it takes people hearing something six times to understand it.

We’ll oblige the Commissioner:

The people want the plain, clear and long held understanding that the text amendment is part of the variance process to be continued.

The people want the plain, clear and long held understanding that the text amendment is part of the variance process to be continued.

The people want the plain, clear and long held understanding that the text amendment is part of the variance process to be continued.

The people want the plain, clear and long held understanding that the text amendment is part of the variance process to be continued.

The people want the plain, clear and long held understanding that the text amendment is part of the variance process to be continued.

The people want the plain, clear and long held understanding that the text amendment is part of the variance process to be continued.

Tumulty said that the Commission was not trying to change the height and density requirements within the city. I am not sure of that, but I am sure that this Commission is trying to change the variance process. Given the current make-up of the Commission, it is hard not to see that effort as trying to change the height / density throughout the City.

Then there is Mayor Netterstrom, whose desire for a “boutique hotel” must be seen in his mind as a “legacy” for his time on the Commission and as Mayor.

A legacy of what? Changing the interpretation of the law behind people’s back? Going against the will of the people?

Someone should ask Netterstrom, Malik and Tumulty why their understanding of the variance process has changed from 2013 to now. Someone should ask them why they were upset at even the thought of removing the text amendment / 5-0 vote from the variance process in 2013 (and again in 2014) and now believe it was never a requirement to begin with.

If their response is “the letter from Segal-George,” that response should be met with laughter and scorn due to the lack of logic on Segal-George’s part.

Were Netterstrom, Tumulty and Malik right when they voted in 2013 and 2014? Or are they right now in their minds?

Why is the last section of the variance process – the one preceded by the word “and” – no longer a part of the variance process in their collective minds?

Why are they working to have that part of the process nullified?

As Commissioner Tumulty reminded us all, he is a school teacher.

Maybe he can teach us all why “and” doesn’t mean “and.”

Better yet, maybe be can learn that “and” does mean “and.”



16 Responses to “Cocoa Beach: Height AND Density AND Commission Meetings AND The Public. (Don’t Worry About The “And,” It Is Meaningless.)”

  1. Bossless says:

    The 2002 referendum language requiring a 5-0 vote for an increase in height/density also covers exemptions or variances. (Note that the language says “issues increasing heigh/density”.) There is a conflict in the City Charter.

    • AAfterwit says:

      Bossless,

      Thanks for the comment.

      We passed your thought around to some staff members who don’t see or understand what you mean by a “conflict in the City Charter.”

      The process for a variance matches up to that of the City Charter including a 5-0 vote somewhere in the process. There is a conflict when that vote is removed as some people are trying to do, but there is no conflict that we can see in the Charter itself.

      Can you be more specific?

      A. Afterwit.

      • Bossless says:

        Yes. There is in the charter a requirement for a 4-1 vote for a variance regarding height/density, but also a 5-0 vote requirement to amend the Comp Plan, the actual controlling document, to validate the variance exemption. So, that sets up a situation where you could have an approved increase in height/density based on a 4-1 vote by the commission and then not be able to get a 5-0 commission vote to amend the Comp Plan. This conflict has not been made apparent because the only three variances approved got a 5-0 vote.

        • AAfterwit says:

          Bossless,

          Thanks for your reply.

          What you are seeing and saying is part of the above post written by “TonyandJeannie.”

          It is not a “conflict” in the charter, but rather a continuation of the variance process as the Charter demands a 5-0 when height and density is changed in the Comp Plan.

          No one would say that there is a conflict if the Planning Board and Board of Adjustment approved the variance and then it was killed by the City Commission. The Commission’s vote is part of the process. The same thing is true for the Comp Plan Text Amendment. That amendment is part of the process to secure the variance.

          We’ve had a lot of discussion on the variance process here and it appears from what the people who are researching the issue found is that after the 2002 referendum which added the language to the City Charter, the City Commission at the time and since that time decided to make sure the actual wording of the variance procedure had the 5-0 vote for the text amendment in the variance section in order to fulfill the City Charter requirement.

          As TonyandJeannie wrote, in order to get a variance, the process is:

          Board of Adjustment (majority vote) -> Planning Board (majority vote) -> City Commission (super majority / 4-1 vote) -> Text Amendment (5-0 vote by City Commission.)

          There seems to be a concerted effort by some to separate the 5-0 vote on the text amendment from the process.

          If there is going to be a “fight,” it is to keep that text amendment as part of the process.

          Stay tuned.

          A. Afterwit.

          • Bossless says:

            The reason I say it is a conflict is because if the Commission votes 4-1 indicating approval and then cannot get a 5-0 vote to amend the Comp Plan there is then a disapproval. How much time lapses before it goes from approval to disapproval by the Commission? I see that as a conflict in the Charter because the Commission is theoretically allowed to both approve a variance to height/density and then disapprove it via the Comp Plan amendment process.

            The Planning Board, Board of Adjustment, and Commission are separate bodies. But, the Commission has conflicting vote requirements for two different votes. If you make the Comp Plan a text modification or just a location identifier as the lawyers suggest, is it still a controlling event?

            To eliminate the conflicting vote requirement by the Commission, you would either have to make the vote requirement the same (5-0) and eliminate two votes by the commission or, as I suspect the intent to be, make the Comp Plan amendment a documentation event only and not a controlling event.

            • AAfterwit says:

              Bossless,

              I think we have a language problem. “Conflict” in this case would mean two votes for the same thing having different requirements. If the Charter stated in one section that height / density votes required a 3-2 vote, and then in another section required a 4-1 vote for the same thing, that is a conflict.

              As it is, the 4-1 vote and the 5-0 votes are for different things and different parts of the variance process. I don’t think that you can say it is a “conflict” when the Commissioners are voting on different things.

              In fact, there are many ordinances with a number of parts that require a vote on sections of the ordinance. No one would claim that is a “conflict” and require the vote to be one singular vote from the Commission.

              The 2 votes by the Commission are part of the process for a variance but deal with distinct and separate issues.

              A. Afterwit.

              • Bossless says:

                We may have to agree to disagree on this one. I respect your way of looking at it, but both votes the Commission takes are for approving an increase in height/density. One vote is a 4/1 variance requirement and the other is a 5/0 requirement to Modify the Comp Plan. Maybe we could agree that the 4/1 vote is meaningless if the 5/0 vote is controlling, which I think it is. However, I understand there is a legal argument made by the city attorney that the 5/0 vote is just a text modification or location identifier for documentation purposes if it is a variance process. Some Commissioners will tell you it only takes a 4/1 vote for a variance increasing height/density because it is for a single parcel that does not change the overall height/density limit. Whether you see this as a literal conflict or not, there is a conflict in how people understand it or interpret it. This conflict arises out of the two different Commission votes. If there was only one vote by the Commission or if both votes were a 5/0 vote there would be no conflict or al least no confusion as you might prefer to call it.

                The commission is voting on the same thing both times–either height/density is increased or it isn’t. Does it really matter if it is a variance procedure? Why have two different vote requirements to decide the same issue? I think it is a conflict that causes a lot of confusion.

                • AAfterwit says:

                  Bossless,

                  Does it really matter if it is a variance procedure?

                  Yes. People think that the 2002 referendum requires a 5-0 vote for a change in height or density. It doesn’t The referendum requires that a 5-0 for a change to the Comp Plan for height and density. You had people saying they wanted a 5-0 vote to be a part of the variance process so at some point the Commission added that text amendment as a part of the variance procedure. People have gotten confused because of their understanding, not because of a conflict in the City Charter.

                  Why have two different vote requirements to decide the same issue?

                  Because it is not the same issue. One deals with the actual height or density and the other deals with a text amendment. Both are part of the variance process, but are not the same thing.

                  As I said, we see the confusion existing because of what people think, not because of a conflict.

                  thanks for the discussion.

                  A. Afterwit.

  2. Bossless says:

    People think that the 2002 referendum requires a 5-0 vote for a change in height or density. It doesn’t The referendum requires that a 5-0 for a change to the Comp Plan for height and density.

    Let’s see. The Comp Plan is the controlling document for land use per Florida Statue. You can’t amend it to increase height/density unless you have a 5-0 vote. And you cannot increase height/density unless the Comp Plan is amended. So, it supersedes a 4-1 variance vote to increase height/density.

    Because it is not the same issue. One deals with the actual height or density and the other deals with a text amendment. Both are part of the variance process, but are not the same thing.

    You can call one vote a variance approval and the other a text amendment approval, but they both have the effect of allowing or disallowing an increase in height/density. However, one requires a 4-1 vote the other a 5-0 vote. If this is not a conflict, then what is it? Well, you say it is confusion because of what people think. It doesn’t matter what people think, if this is the reality.

    Thanks for the continuing dialogue,

    Bossless

    • AAfterwit says:

      Bossless,

      The Comp Plan is the controlling document for land use per Florida Statue.

      I am going to disagree with that statement slightly. The FS 163 says the Comp Plan deals with planning and future development. It does not regulate current land use. The statute says that use of the land may be governed by ordinance, code and land development regulations. I know that sounds like a small distinction, but it is a distinction nonetheless.

      So, it supersedes a 4-1 variance vote to increase height/density.

      I understand what you are saying, but at the same time, I would not say that the Planning Board’s vote “supersedes” the Advisory Board. It is a step by step process.

      You can call one vote a variance approval and the other a text amendment approval, but they both have the effect of allowing or disallowing an increase in height/density.< ?i>

      As part of the variance process, yes.

      If this is not a conflict, then what is it?

      A conflict would be having the one section of the City Charter require a 3-2 vote for trash removal and another section requiring a 5-0 vote for trash removal. That is a conflict. As it is, the 4-1 vote is required for one part of the variance process and a 5-0 vote for another part of the process. Two different parts with stated levels of a votes.

      Well, you say it is confusion because of what people think. It doesn’t matter what people think, if this is the reality.

      Actually, it does matter what people think as they are reacting to their thoughts and what they have heard.

      I agree that we are going to have to disagree on this. “Conflict” means something different to the two of us.

      Perhaps the bigger question is “what to do about this?”

      No one here is comfortable with the idea of the City Commission unilaterally saying “that 14 year old referendum that was passed, fought for in courts, and approved by Commissions prior to this doesn’t mean anything.” If the City Commissioners try and bypass the text amendment part of the variance process, it will pit residents against their own government. That is not something that anyone wants to see.

      Thanks for the conversation and the tone of the conversation.

      A. Afterwit.

      PS. There is a time limit in days on how long a conversation will go in Word Press (the blog software.) We can extend it if you wish, but I wanted to let you know about it in case you came here one day and the comments were closed. It is automatic in the software and not something we use to quiet people or stop them from commenting.

  3. Bossless says:

    The Comp Plan is the controlling document for land use per Florida Statue.

    I am going to disagree with that statement slightly. The FS 163 says the Comp Plan deals with planning and future development. It does not regulate current land use. The statute says that use of the land may be governed by ordinance, code and land development regulations. I know that sounds like a small distinction, but it is a distinction nonetheless.

    I don’t disagree with the distinction you make. However, I think you agree that it requires a Comp Plan amendment to deviate from the planning and future development requirements in the Comp Plan. In that sense it is controlling.

    So, it supersedes a 4-1 variance vote to increase height/density.

    I understand what you are saying, but at the same time, I would not say that the Planning Board’s vote “supersedes” the Advisory Board. It is a step by step process.

    I understand your view, but I only say the second vote of the Commission supersedes the first vote because it is final and has a different vote requirement (5-0 vs. 4-1) and may result in a different outcome. Isn’t semantics wonderful?

    You can call one vote a variance approval and the other a text amendment approval, but they both have the effect of allowing or disallowing an increase in height/density.

    As part of the variance process, yes.

    I see the 5-0 vote as a higher order vote and more encompassing than a variance procedure, even though it certainly must be included in obtaining a variance. Are we splitting hairs?

    If this is not a conflict, then what is it?

    A conflict would be having the one section of the City Charter require a 3-2 vote for trash removal and another section requiring a 5-0 vote for trash removal. That is a conflict. As it is, the 4-1 vote is required for one part of the variance process and a 5-0 vote for another part of the process. Two different parts with stated levels of a votes.

    Maybe we can agree on this and let it go at that. I see the 5-0 vote as apart and above the variance process, but certainly affecting the variance process. You see it as an integral part of the variance process. Regardless of that different view, we get to the same point.

    Actually, it does matter what people think as they are reacting to their thoughts and what they have heard.

    In that respect I agree. I just meant that whether people think it is part of the variance process or not, the process is what it is. (Communicating takes effort doesn’t it?)

    No one here is comfortable with the idea of the City Commission unilaterally saying “that 14 year old referendum that was passed, fought for in courts, and approved by Commissions prior to this doesn’t mean anything.” If the City Commissioners try and bypass the text amendment part of the variance process, it will pit residents against their own government. That is not something that anyone wants to see.

    Hallelujah! Something we can both agree on. Well, almost. instead of the phrase, “bypass the text amendment part of the variance process”, I would prefer “bypass the Comp Plan height/density exemption amendment in obtaining a variance. So far they haven’t, but is that only because they have had the five votes? What if they don’t, then what happens?

    Never irritated, sometimes enlightened, always learning,

    Bossless

    • AAfterwit says:

      Bossless,

      What if they don’t, then what happens?

      From what we can figure out, the “Gang of Four” is making a push to have the last part of the variance process (the text amendment) invalidated.

      1) That push has included Timulty saying “the 5-0 vote was never a part of the process” yet the three previous variances have all required the 5-0 vote for the variance to pass.

      2) Someone asked the City Attorney to write an opinion invalidating the 14 year history of the referendum and the variance process. (And remember, the City Attorney doesn’t work for the people. he works for the City Commission.))

      3) In a meeting several weeks ago, Netterstom is quoted as saying:

      Mayor Dave Netterstrom said the unanimous vote was not necessary for a variance.

      “A 5-0 vote for a variance is not a democratic process when one person can control a majority,” he said.

      He then followed that statement with:

      Netterstrom said that people have mentioned International Palms Hotel as one piece of property where they fear a high-rise building could go if it requests and is granted a variance.

      “You have all these fears out there and they are unfounded,” he said.

      If those fears are unfounded, then why did the “Gang of Four” not even second Commissioner Williams’ motion to add the language of the Charter into the Comp Plan? Why was there not even a second that would have allowed discussion on the issue? Are they that scared to even listen to or hear the people?

      Not only that, but Netterstom is unclear about the role of government. If the people pass a process that requires a 5-0 vote, then live with it or go to the people and make a case to change it. There is nothing “un-democratic” about doing what the City Charter requires, especially since that requirement has stood up to several challenges in court.

      Unable to get the results they want, it appears the Gang of Four is making an attack on what the people clearly voted for. Unable to make a case to the people without ending their political, professional and public careers, it appears that the Gang is looking to get around the Charter and the Comp Plan.

      That is the only conclusion we here at ROH can come up with as the actions of the Gang do not and have not matched their words and rhetoric.

      The bottom line is if the Gang can get rid of the text amendment as part of the variance process, it will open the floodgates for variances. There will be nothing to stop the tidal wave that will land on the beach and breech the dunes. The lack of critical thinking, favors and political contributions will drown the clearly stated will of the people and their votes.

      We here wonder why Netterstrom talks about “the democratic process” and yet is doing everything he can to bypass that process.

      A. Afterwit.

  4. Bossless says:

    Fascinating analysis. Thank you.

    The one thing I don’t understand is how they can legally get around the referendum language which says, “….issues increasing permissible building structure height or development density and/or intensity which would require an affirmative vote by five (5) City Commissioners”.

    Note the word “issues” in the referendum language.  That is a very broad term and would cover overall planned height/density increases and individual exemptions or variances to the height/density limits (For example, if an individual project has an issue with 45 ft. and gets an approval for a 5 ft. increase, then this project permissible height becomes 50 ft. That is a change that requires a 5-0 vote amendment to the Comp Plan for that specific project just as the three previous actual exemptions did.).  
    Just because a variance pertains to a single project or one lot does not exempt it from the 5-0 vote and the control of the Comp Plan (per Florida Statute).  If it did, then the variance would become a way to circumvent the residents will as expressed by referendum.

    Legally it takes five votes to amend the Comp Plan to increase height/density due to any reason, variance or otherwise.  For clarity and consistency this requires that Section 6.07 (5-0 vote) should be, as a minimum, referenced in the Comp Plan because it is a controlling event.

    The 5-0 vote is sacrosanct to the residents because they worked very hard to obtain it by referendum.  The 4-1 variance vote was added by a Commission vote only and is legally superseded by the 5-0 residents referendum vote for any height/density increase.  So far it has not been legally challenged because the only three variances approved by the Commission were by 5-0 votes to amend the Comp Plan. However, the variance vote as specified by the Charter should be 5-0, not 4-1, because it conflicts with the clear language of the 5-0 referendum and Section 6.07 of the Charter.  It seems they are trying to fix this conflict by removing the 5-0 vote reference from the Comp Plan.  It won’t work. The residents see through this devious approach and the City will open itself up for a lawsuit from residents if a height/density variance is ever granted and there is not a 5-0 vote to amend the Comp Plan.

    Also, the City Charter Section 6.07, entitled “Comprehensive Plan Adoption Requirements”, states: “Any city comprehensive plan adoption or amendment that addresses increasing permissible building and structure height or allowable development density and/or intensity shall require an affirmative vote by five (5) city commissioners.” How can that be legally circumvented by a variance process established by the Commission when 6.07 was established by voter referendum?

    My point is that whether the variance process requires the 5-0 vote or not, the Comp Plan still has to be amended to implement any increase in height/density and that takes a 5-0 vote as stated by the referendum and Charter Section 6.07.

    Bossless

  5. Cocoa Beach Resident says:

    Check out proposed section 5 of LDC that Planning Board is reviewing for aug 31 mtg. New sections 5-41 and 5-42 being proposed on H and D. Z Montgomery dropped section 5-67 from current Ldc that specifically states 5-0 vote reqd for H and D variances

  6. Cocoa Beach Resident says:

    malik just told me that he has had 2 legal opinions that now say there is no need to have a commission vote to approve a text amendment to the comp plan. Only one vote by the city commission is needed and only requires a “4” vote. Please do not publish my name. (For H and D variances)

    • Bossless says:

      I know that Commissioner Malik believes that. However, if you read the plain language of the 2002 referendum and Charter Section 6.07, it is clear that a 5-0 vote is needed to amend the Comp Plan to increase height/density for whatever reason. Even though the Commission added a 4-1 vote for a height/density increase by variance it is trumped by the 5-0 vote Comp Plan amendment requirement added by the voting residents.

      Bossless

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