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HomeMy WebLinkAboutBOA 01-10-201310211112t1101=03 AJI lo-IIA-1111213 I'll OX-13 CALL TO ORDER Chairman WIlse n called the meeting to order at 6:03 p.m. in the Commission Chambers at City Hall. Member Colburn led the Invocation and the Pledge of Allegiance to the Flag; the Clerk called roll and declared a quorum. PRESENT: Chairman Wilsen, Vice -Chair Cadle, Members Carrington (arrived at 6:08 p.m), Colburn, and Wrobel. Also present were City Planner Rumer, City Attorney Cookson, and Deputy City Clerk Sibbitt. ABSENT: Member Warren was absent excused APPROVAL OF MINUTES — APRIL 19,2012 Vice -Chair Cadle, seconded by Member Colburn, moved to approve the minutes of,4pril 19, 2012. Motion carried 4-0. NEW BUSINESS SILVER BEND SUBDIVISION APPEAL — PUBLIC HEARING Chairman Wilsen requested that it be stated as to whom is present for the appeal. City Attorney Cookson advised that representing the developer is Mr. Theriaque and representing the appellant (Silver Bend HOA) is Ms. Consalo. The City attorney further advised that the Land Development Code outlines the duties of the Board of Adjustment in regards to hearing appeals of staff decisions. The case before them tonight is regarding a small scale site plan that fell within the category of only being reviewed at a staff level which is primarily handled by City Planner Rumer. The board should review the decision made by staff and determine whether they followed the City Code in approving the proposed project. If it is found that City staff followed the code, then the board's recommendation to the City Commission would be to not overturn the decision of City staff. However, if they determine that City staff erred in approving this project based on the code, then the board's recommendation to the City Commission would be to overturn staff s approval of this project. City Attorney Cookson briefly explained the order in which they should hear the testimony of the appeal, and further advised that the board will only be making a recommendation to the City Commission. The City Commission will be making a decision regarding this appeal on Tuesday, February 5, 2013. ZD regarding (Member Carrington arrived) Chairman Wilsen inquired if the board members may ask questions to each speaker. City Attorney Cookson said 'yes, they may ask questions that are pertinent to the issue during the time a speaker is before them. Vice -Chair Cadle clarified that they are deciding whether staff made a proper decision based on the City Code. City Attorney Board of Adjustment Meetin;�, January 10, 2013 Cookson answered in the affirmative. Staff s duty and regard of the small scale site plan is to review the plans to see if it is consistent with the City Code and based on that review either approve or deny the plans. In this particular case staff approved the plans and the appellant is challenging staffs approval of those plans. Prior to commencing, it was asked that each board member respond with any ex parte communications they may have had with either party (any contact with residents, the appellant, or the developer). Chairman WIlse n disclosed that he knows a number of residents who live in Silver Bend. He further advised, as he would do with any applicant, he did go to the site. He does not feel that will sway his opinion one way or the other. Vice -Chair Cadle disclosed that he met with City Planner Rurner to go over the plans. He additionally met with Joe McElroy and a female (whose name he did not recall) to discuss what their point of views were. Member Colburn disclosed that he did go by the site; however, he refused to speak with anyone and referred them to speak with the City Manager. Member Wnoel disclosed that he lives across the street and also knows some of the residents who live in the Silver Bend neighborhood, but that will not sway his decision. Member Carrington disclosed that he also knows several residents within that neighborhood and has seen the parcel of land in question; however, he has not had any discussion with anyone and there is nothing to cloud his judgment. Chairman Wilsen announced that there is a court reporter in the room so everyone's comments will be recorded. Going in the order as outlined by the City attorney, City Planner Rumer, spoke first and presented the board with exhibits and an overview of the small scale site plan approval process that he conducted granting approval of a proposed 12,480 square feet Dollar General store, located on Tract B of the Silver Bend subdivision. Because the site plan was classified as a small scale site plan, the plan was approved by City staff alone and did not require Planning and Zoning Commission review or City Commission approval. Further, the applicant did not request any waivers in connection with the approval of the plan. N Fr - I "M I IT January 10, 2013 QUESTIONS BY BOARD MEMBERS Chairman Wilsen inquired as to what the previous zoning had been for that tract of land and what prompted the rezoning. Mr. Rumer advised that prior to the C-2 zoning, the land was zoned PS (Professional Office) and he is not personally aware as to what prompted the rezoning. Mr. Rumer advised that the rezoning of the property to C-2 happened before the property was platted and homes were built; the City has records of the minutes from the meeting designating the rezoning but it does not state a reason why there was a change in the zoning. A copy of the ordinance approving the rezoning had been provided to the board members in their packet. Chairman Wilsen inquired if the access drive would be on private property or if it was deeded to the City. City Planner Rumer answered that it was on private property and there is an ingress/egress easement across it allowing access. Chairman Wilsen further inquired if that determination was made with the existing traffic and if they contemplated the road going into Silver Bend Blvd. City Planner Rumer answered 'yes', and said they did consider the road into Silver Bend Blvd. as well as, Phase I and 11, and the C-2 commercial zoning. Member Wrobel inquired if there was a certain timeframe when safety studies are done. City Planner Rumer advised that he is not a transportation planner but knows that they look at issues such as peak hour trips, left and right hand turns, stacking, and so forth. They do not consider pedestrian crossing type of a conflicts since that would be engineering. Member Colburn inquired if the road by the library would be extended to the Silver Bend Blvd. and if staff took into consideration the increase in traffic that would ultimately occur. City Planner Rumer said staff did take that into consideration. That boulevard provides the best access for when all the parcels are developed in the future, including the development of the parcel to the north. Member Colburn said in the presentation it was mentioned that there would not be a crossing on Silver Star Road but there would be one if it adjoined the entrance to the development. City Planner Rumer advised that with the widening of Silver Star Road and the access points, the only future improvement that would be required under the transportation scenario for development would be a signalized intersection at Silver Bend. DISCUSSION The Public Hearing, was opened. David Butkovich, Silver Bend HOA President, explained they are before the board because they feel like they desperately need the board to see their view point, and help save their community and provide safety for their children. They are very concerned with 3 Board of Adjustment Meetin4­ January 10, 2013 the entrance of the development onto their boulevard. He introduced Karen Consalo, attorney for the Silver Bend HOA. Ms. Karen Consalo showed a PowerPoint presentation explaining her clients' request to remove one of the two access points to the Dollar General (see attached Exhibit "A"). After Ms. Consalo's presentation, lengthy discussion ensued regarding the concern of the wall and sidewalk that would be installed on the development only buffering residential lots 1-4 in the Silver Bend subdivision. The following people spoke in opposition to the proposed access entrance on Silver Bend Blvd.: Joe McElroy, 1826 Cassingham Circle, Silver Bend Martha Lopez -Anderson, 243 8 Alclobe Circle, Silver B,J N lWavid Butkovich, HOA President, Silver Bend Shaharazade Kayume, 1838 Cassingham Circle, Silver Berl A petition to stop the creation of an unsafe entrance/exit onto Silver Bend Blvd. was submitted for the record to which David Theriaque, attorney on behalf of the applicant, objected to the entry of the petition for it did not constitute competent substantial evidence; however, the board decided it should be accepted as part of the record and the City Commission can make that determination. It was questioned if the City was a Tree City since there have been other cases where people could not get variances if they had to cut down trees. City Planner Rumer said Ocoee is a Tree City; however, the oak tree in question is located on a public right-of-way and there are provisions in the LDC for replacement of specimen trees. Member Carrington inquired if line -of -sight was ever a factor for Silver Bend Blvd. City Planner Rumer answered "yes," adding that it meets line -of -sight and is considered an extra wide boulevard. City Planner Rumer gave a brief explanation of the development agreement that was adopted in 1987 and 1988. Vice -Chair Cadle inquired if there was any vehicle to complete the wall, sidewalk, and access road all the way to the library. City Planner Rumer answered "yes", if the applicant receives permission and construction easements from the property owner to construct, then staff would be more than happy to review it as a site plan and building plan. City Attorney Cookson advised that the only other option would be for the City to 0 Board of Adjustment Meeting January 10, 2013 condemn that property for the construction of the road and the sidewalk through an easement. A new exhibit was entered into the record by the applicant's attorney, Mr. David Theriaque. Mr. Brian Crawford, applicant, was given the opportunity to explain the offer of resolution he was proposing, as well as, brief the board on why they chose that location for the Dollar General. Several meetings were held with the residents of Silver Bend in which they voiced a concern of wanting the wall and sidewalk to extend west and not have to be cut off in between the residents. Mr. Crawford advised that his proposal provides a masonry wall and sidewalk all the way to the west so that the children of Silver Bend do not have to walk along Silver Star Road. The access point onto Silver Bend Blvd. is still being requested to remain. Vice -Chair Cadle inquired from the applicant; if they were denied the access to Silver Bend, would that make the project not viable. Mr. Crawford answered affirmatively. Further discussion ensued on the new exhibit introduced (which proposed the extension of the sidewalk and wall), and a request was made by the applicant that if the board accepts the proposal of the extension, if they could make that a condition of approval in their motion. A question was posed to the City Attorney that if they approve the conditions of the proposed extension of the wall and sidewalk, what would happen if tomorrow the property owner of the other parcel then rescinds their approval. City Attorney Cookson advised he is not aware of the status of that property, and is not sure as to what approvals or consent the applicant has. The applicant has an approved site plan without the proposed extensions, and the board can choose to let this go forward and let the commission condition the inclusion of the sidewalk and wall. If it were to get approved by the commission, and the applicant made the commitment to put in the sidewalk and wall, then staff would document it to make sure it happened. David Theriaque briefly addressed the board to clarify several points made by the appellant's attorney that he stated were misquotes. He reminded the board that their decision tonight is to be based on the same standards of that of a variance, which is on criteria of the comprehensive plan in the Land Development Code. The neighbors have the burden of specifically identifying the Comprehensive Policy and Land Development Code that staff failed to apply and missed. Mr. Theriaque concluded his presentation by requesting that the board recommend approval of the proposed development with the two conditions that were offered this evening. Chairman Wilsen inquired if the alley road was also approved to be extended down the adjacent property to the library. Mr. Theriaque advised the only agreement that they N January 10, 2013 have reached with the adjacent property is for the wall and sidewalk to be built and paid for by the applicant. From a cost and ownership basis, they do not have the ability to build a road on someone else's property. Karen Consalo, attorney for the appellant, was given the opportunity for a rebuttal. She advised her client is challenging the approval of the proposed Dollar General on the basis Z71 of non-compliance of the City's Comprehensive Plan. She further advised that the applicant did address two of the key points with his revisions that he presented, but the major point is the access road and that is not being changed. Zn Mr. Theriaque explained the Comprehensive Plan policies quoted by the counsel, and is up to the HOA's attorney to point to the LDC for regulations that they may have violated. He advised that there was only competent substantial evidence provided by the City's planner, and that this plan meets all requirements and asked the board to Please Put their emotions aside and look at what they heard as violations of the City's regulations. The following people spoke in opposition to the proposed access entrance on Silver Bend Blvd.: Emmanuela Medacier, 122 Clowson Court, Silver Bend Edith Geisner, 177 Bexley Blvd., Silver Bend Elizabeth Bichard, Silver Bend Lincoln Forges (spelling unknown no speaker form provided), Silver Bend The Public Hearing, was closed Vice -Chair Cadle inquired as to what extent city staff considers in regards to public safety, destroying trees, tranquility, and necessity of access roads when reviewing -plans. ZD I City Planner Rumer said they look at the comprehensive plan to see if it provides any clear policy or objective in which generally it will not be precise; it is then facilitated through the Land Development Code. Vice -Chair Ladle inquired if that was done in this case. City Planner Rumer answered yes. Member Colburn, seconded by Member Wrobel moved to recommend that the City Commission overturn City staEs decision of approving the site plan. 'finding that City staff erred in approving the site plan as the proposed plan is not consistent with the Land Development Code. Chairman Nilsen inquired if it was Policy 7.1 that he was referring to. Member Colburn said he was not referring to any particular policy. January 10, 2013 Chairman Wilsen briefly advised he did not feel the approved site plan is compatible with the established residential neighborhood which is a part and a stated factor for land development as set forth in the Land Development Code. Vice -Chair Cadle advised that he feels to the extent that City staff reviewed the plans and all the motions they went through in reviewing the plans, even though he may not agree with the access, he does not see where staff erred in reviewing the plans. Member Carrington advised he certainly has reservations regarding the plans, but from the letter of the law and the mandate they have as a body to hear the appeal; he is having real issues finding where an error was made. Z:> City Planner Rumer asked for clarification of the motion from Member Colburn in regards to the access road. After clarification was given on the access road verses the Z:� cross connection road the motion was restated. and approved as follows: Member Colburn, seconded by Member Wrobel, moved to recommend to the City Commission that then overturn Citv staffs decision of approving the site plan, Win that the Citv staff erred in improving the site plan as the proposed site plan is not consistent with the Land Development Code. Motion carried 3-2 with Vice -Chair Cadle and Member Carrington opposing ADJOURNMENT The meeting adjourned at 8:45 p.m. Melanie Sibbitt, Deputy City Clerk Fred Wilsen, Chairman W