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Item #12 Appeal in Connection w/ Staff's Enforcement of LDC for Small Scale Site Plan_ C e Ater of Good Lip AGENDA ITEM COVER SHEET Meeting Date: February 5, 2013 Item # pl Reviewed By: Contact Name: Mike Rumer Department Director: ✓� Contact Number: Ext. 1018 City Manager: Subject: Appeal in connection with City of Ocoee staff's Enforcement of the Land Development Code (LDC) for a Small Scale Site Plan (Dollar General) Commission District #2 - Rosemary Wilsen Background Summary: On November 27, 2012, City staff approved a small scale site plan for a proposed 12,480 sq. ft. Dollar General store located on Tract B of the Silver Bend subdivision, consisting of 2.17 acres. The zoning designation for the property is C -2 (Community Commercial). Pursuant to Section 4 -3 of the Land Development Code, the site plan was processed as a small scale site plan since the proposed building was a non - residential building of less than 25,000 sq. ft. 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, Concept Development, LLC, did not request any waivers in connection with the approval of the plan. City staff, including the City's Consulting Transportation Planning Firm, Renaissance Planning Group, reviewed the site plan and associated Traffic Impact Analysis performed by MPH Transportation Planning, Inc., on behalf of the applicant and determined the site plan conforms to the City of Ocoee Land Development Code requirements and puts in place the framework for a successful access management plan for the area which includes future commercial projects for properties located on the north side of Silver Star Road and on the east side of Silver Bend Blvd. Following approval of the site plan, neighboring residents appealed the decision to approve the site plan. While the Board of Adjustment generally considers variance requests, the Land Development Code provides that the Board of Adjustment also hears appeals of City staff land development decisions. Pursuant to Section 3 -3.D. of the Land Development Code "[a]ppeals to the Board of Adjustment may be made by any person aggrieved... by any decision of the Building and Zoning Official in connection with the enforcement of [the Land Development Code]...." Issue: Should the Honorable Mayor and City Commission uphold an appeal in connection with City of Ocoee staff's Enforcement of the Land Development Code (LDC) for a Small Scale Site Plan. X11 Do not overturn City staff's decision of approving the site plan finding that City staff did not err in approving the site plan as the proposed plan is not inconsistent with the Land Development Code. Discussion: On December 14, 2012, a formal appeal request was made. The appeal is referenced as follows: "To appeal Staff's decision to allow Concept Companies, LLC (developer for Dollar General) to 1. Install a driveway /access through Silver Bend Blvd., instead of implementing a right- in/right- out on Silver Star Rd. and a connector road to the West Oaks Library site as ingress and egress, thus compromising the safety of children, and a gateway of an established residential neighborhood. 2. Install a masonry wall half way through Lot 4, instead of through Lot 7 of Silver Bend. 3. Not provide a sidewalk from Silver Bend Blvd. to connect with the West Oaks Library site for the safety of the children. " Section 3 -3.E. of the Land Development Code sets forth the duties and responsibilities of the Board of Adjustment. Included is: "To hear and recommend administrative appeals when it is alleged there is error in any order, requirement, decision or determination made by an official of the City in the enforcement of this Code." The Section further provides that "[a]II recommendations of appeals and variance requests are brought to the Ocoee City Commission for final decisions." Recommendations The Honorable Mayor and City Commission, in connection with the appeal made concerning the City staff approved small scale site plan for Dollar General located on Tract B of the Silver Bend subdivision, shall make the determination of: a. Overturn City staff's 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. Or b. Do not overturn City staff's decision of approving the site plan finding that City staff did not err in approving the site plan as the proposed plan is not inconsistent with the Land Development Code. Attachments: Location Map Aerial Site Plan Plat Rezoning Ordinance 90 -62 Appeal Letter(s) Appellant Material & Documentation Minutes of the Board of Adjustment Meeting Financial Impact: None Type of Item: (please mark with an "x') I X Public Hearing For Clerk's Dept Use Ordinance First Reading Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda X Commission Approval Discussion & Direction Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney N/A Reviewed by Finance Dept. N/A N/A Reviewed by () Silver Bend Subdivision Appeal to a Small Scale Site Plan for Dollar General LAKE JOHIO' LL �j I li � Oj - NI I - -- IAlcl bey I \ * Sgt _k j -� 7 - t OU O I I� (p CU/ r - -I r jII , ' t r r rh .� pll �[ - � r � rs.. 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Sa I LO a O N _Y SD w JO x 1 0] , �N_ �a _ 5 S i g a w 00 N w E V W Q 0 CD 0 a�q �avaoeW � 3 n Q d Q 0 O r r ry z Q ::D �n 0 n N Z W" N YY < = z�mZ; O W O M < O Q 2a- ~ O W o o °d IJ . ¢° , -w J_ ry 0 (� ODO00 ane w J w O �¢�} Q Z U w Q O O J �N_ �a _ 5 S i g �66'e.a w E a a�q �avaoeW � 3 n M I& O / @m $� e a U _ N 8 f �am 0. 9 0 SXhl t3H�lYlY � e L —_ � s *_ a r _ = L —8 F L _ a� 1 - -6' P L_- M-- Viz% m e� �� LL ORDINANCE NO. 90- 62 CASE NO. 1- 11R - 90: G &F AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA REZONING CERTAIN LANDS LOCATED IN THE CITY OF OCOEE BY CHANGING THE ZONING CLASSIFICATION FROM P -S , PROFESSIONAL OFFICES AND SERVICES DISTRICT TO C -2, COMMUNITY COMMERCIAL DISTRICT ON CERTAIN REAL PROPERTY LOCATED ON THE SOUTH SIDE OF SILVER STAR ROAD AND • 1200 FEET EAST OF CLARK ROAD , AS PETITIONED BY THE PROPERTY OWNERS; PROVIDING FOR AND AUTHORIZING THE REVISION OF THE OFFICIAL CITY ZONING MAP; REPEALING INCONSISTENT ORDINANCES; PROVIDING FOR SEVERABILITY; PROVIDING AN EFFECTIVE DATE. WHEREAS, the owner or owners ( "the Petitioner ") of certain real property located within the corporate limits of the City of Ocoee, Florida, as hereinafter described, have petitioned the City Commission of the City of Ocoee, Florida ( "the Ocoee City Commission ") to rezone and change the zoning classification for said real property from P -S , Professional Offices and Services District to C -2 , Community Commercial District and WHEREAS, pursuant to Section 3.2 of Chapter II of Appendix " A " of the Code of ordinances of the City of Ocoee, Florida ( "the Ocoee City Code ") , the Planning Director has reviewed said petition and determined that the rezoning requested by the Petitioner is consistent with the 1979 City of Ocoee Comprehensive Plan as set forth in Ordinance No. 719, adopted April 15, 1980 ( "the Ocoee Comprehensive Plan "); and WHEREAS, said rezoning petition was scheduled for study and recommendation by the Planning and Zoning Commission of the City of Ocoee, Florida ( "the Planning and Zoning Commission ") ; and WHEREAS, the Planning and Zoning Commission has reviewed said rezoning petition for consistency with the Ocoee Comprehensive Plan and determined that the rezoning requested by the Petitioner is consistent with the Ocoee Comprehensive Plan and is in the best interest of the City and has recommended to the Ocoee City Commission that the zoning classification of said real property be �o changed to C -2 , Community Commercial District as requested by the Petitioner, and that the Ocoee City Commission �5 6�D find that the zoning requested by the Petitioner is consistent with Tg the Ocoee Comprehensive Plan; and 0.69 $ WHEREAS, the Ocoee City Commission has held a de novo bli h public hearing with official notice thereof with respect to proposed rezoning of said real property; and • WHEREAS, the Ocoee City Commission has determined that the zoning requested by the Petitioner is consistent with the Ocoee Comprehensive Plan; and WHEREAS, this Ordinance has been considered by the Ocoee City Commission in accordance with the procedures set forth in Section 166.041(3)(a), Florida Statutes. Page 2 NOW THEREFORE, BE IT ENACTED BY THE CITY COMMISSION OF THE CITY OF OCOEE, FLORIDA, AS FOLLOWS: Section 1. The City Commission of the City of Ocoee, Florida has the authority to adopt this Ordinance pursuant to Article VIII of the Constitution of the State of Florida, and Chapters 163 and 166, Florida Statutes. Section 2. That the zoning classification, as defined in Appendix A of the Code of Ordinances of the City of Ocoee, • Florida, of the following described parcel of land located within the corporate limits of the City of Ocoee, Florida, is hereby changed from " P -S , Professional Offices and Services District " to " C -2 , Community Commercial District ": SEE EXHIBIT "A" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. Section 3. That the City Commission of the City of Ocoee, Florida, hereby finds the new zoning of the lands described in this Ordinance to be consistent with the Ocoee Comprehensive Plan. Section 4. The City Clerk is hereby authorized and directed to revise the Official Zoning Map of the City of Ocoee in order to incorporate the zoning amendments enacted by this Ordinance and the Mayor and City Clerk are hereby authorized to execute said revised Official Zoning Map in accordance with the provisions of Section 1.1 of Chapter III of Appendix A of the Code of Ordinances of the City of Ocoee. Section 5. All ordinances or parts of ordinances in conflict herewith are hereby repealed and rescinded. Section 6. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion hereto. Section 7. Effective Date. This Ordinance shall become effective immediately upon passage and adoption. PASSED AND ADOPTED this � I IL day of /V D 0& 1 0)& , 1990. APPROVED: ATTEST: 10 �� ��]" � J RAFT" CLERK (SEAL) CITY OF OCOEE, FLORIDA 7 4LE I ER DABBS, JR., MA Page 3 • FOR USE AND RELIANCE ONLY BY THE CITY OF OCOEE, APPROVED AS TO FO 14 7 LEGALITY THIS I' DAY OF , 1990 FOLEY & LARDNER, VAN DEN BERG, GAY,F "RREP WIL ON & 4RKTII By: -- -- City Attorney ADVERTISED November 8 , 1990 READ FIRST TIME October 31 , 1990 READ SECOND TIME AND ADOPTED / - V N6-t ,Lf , 1990 APPROVED BY THE OCOEE CITY COMMISSION AT A MEETING HELD ON N p V ey'A( bZ d f , 199C UNDER AGENDA ITEM NO. V R • CITY OF OCOEE PROPOSED REZONING CASE NO. 1- 11 R- -9Q:G/F VA ............ ............. CASE NO. I-1111-90:G/F EXISTING ZONING pS PROPOSED ZONING C -2 EXHIBIT A t'age. 1c9t-01 DFHSCl,l, rlo�\: EXHIBIT A A portion of Section 16, Township 22 South, Range 28 East, Orange County, Florida, described as: follows: Commence at the East 1/4 corner of Section 16, Township 22 South, Range 28 East and run S 00 ° 10'45" E along the East line of the Southeast 1/4 of said Section 16 for a distance of 31.92 feet to the POINT OF BEGINNING, said point being on the Southerly Right -of- Way line of Silver Star Road (State Road No. 438); thence continue S 00 1 10'45" E along said East line for a distance of 378.12 feet; thence run S 89 ° 30'42" W for a distance of 1325.65 feet; thence run N 00 ° 04'08" W along the West line of the Northeast 1/4 of the • Southeast 1/4 of said Section 16 for a distance of 370.01 feet; thence run N S9 ° 30'42" E along the Southerly Right -of -Way line of said Silver Star Road for a distance of 1225.55 feet to the point of curvature of a curve concave Northerly having a radius of 612.96 feet and a central angle of 09 ° 20'08 "; thence run Easterly along the arc of said curve and said Southerly Right - - Way line for a distance of 99.87 feet to the POINT OF BEGINNING. Containing 11.263 acres more or less and being subject to any rights - of -way, restrictions and easements of record. CASE NO. 1 11 R- -90.6/ F 12/14/2012 To: Mike Rumer On 12/4/2012 we were granted the right to appeal by the Mayor of Ocoee and the City Commissioners. As instructed we are putting a formal request in writing to the Director of Planning by 12/14/2012. No other rules for this appeal have been provided to us. Please provide us with a written copy of the rules and the date our appeal will be heard. Sincerely, Joe McElroy Chairman 1826 Cassingham Circle Doc - peaches @hotmail. corn Wend ie a' n Y � 1833 Cassingham Circle Harleygirlws @gmail. com The Silver Bend Residents Committee Seaver, Sherry From: Rumer, Michael Sent: Thursday, December 20, 2012 8:54 AM To: Seaver, Sherry Subject: FW: Silver Bend Resident Committee Description of Appeal Michael Rumer City Planner City of Ocoee 150 N. Lakeshore Drive Ocoee, FL 34761 Phone: (407) 905 -3100 ext. 1018 mrumer(aD-ci.ocoee.fl.us From: Wendy Siegman [mailto:harleygirlws @ gmail.com] Sent: Wednesday, December 19, 2012 6:21 AM To: Rumer, Michael Cc: Wilsen, Rosemary Subject: Silver Bend Resident Committee Description of Appeal 12/19/2012 To: Mike Rumer Mike Rumer, Planner City of Ocoee 150 N. Lakeshore Drive Ocoee, FL 34761 RE: Appeal to Board of Adjustment Parcel ID: 16- 22 -28- 8049 -00 -002 Address: 1851 E. Silver Star Road Mr. Rumer, On 12/4/2012 we were granted the right to appeal by the Mayor of Ocoee and the City Commissioners. As instructed we are putting a formal request in writing to the Director of Planning by 12/14/2012. No other rules for this appeal have been provided to us. Please provide us with a written copy of the rules and the date our appeal will be heard. As requested by you on 12/17/2012 , here are the additional descriptions you wanted us to mention in our request. This letter is to appeal Staff's decision on the above referenced property to allow Concept Companies, LLC (developer for Dollar General) to: 1. Install a driveway /access through Silver Bend Blvd., instead of implementing a rightin /right -out on Silver Star Rd. and a connector road to the West Oaks Library site as ingress and egress, thus compromising the safety of children, and gateway of an established residential neighborhood. 2. Install a masonry wall half way through Lot 4, instead of through Lot 7 of Silver Bend. 3. Not provide a sidewalk from Silver Bend Blvd. to connect with the West Oaks Library site for the safety of the children Sincerely, Joe McElroy Wendy Siegman Joe McElroy Chairman 1826 Cassingham Circle Doc - peaches &hotmail.com Wendy Siegman 1833 Cassingham Circle Harle irlws a gmail.com The Silver Bend Residents Committee Harleygirl VIA FAX TO 407- 905 -3168 & EMAIL TO MR MER I- OEE.P1-0 December 18, 2012 Mike Rumer, Planner City of Ocoee 150 N. Lakeshore Drive Ocoee, FL 34761 RE: Appeal to Board of Adjustment Parcel ID: 16-22-2g.8049-00-002 Mr. Rumer, Address: 1661 E. Silver Star Road This letter is to appeal Staffs decision on the above referenced property to allow Concept Companies, LLC (developer for Dollar General) to: 1. Install a driveway /access through Silver Bend Blvd., instead of implementing a right - Wright -out on Silver Star Rd. and a connector road to the West Oaks Library site as ingress and egress, thus compromising the safety of children, and gateway of an established residential neighborhood. 2. Install a masonry wall half way through Lot 4, instead of through Lot 7 of Silver Bend. 3. Not provide a sidewalk from Silver Bend Blvd. to connect with the West Oaks Library site for the safety of the children. Sincerely, Martha Lopez - Anderson Board Member & Government Liaison SILVER BEND HOMEOWNERS ASSOCIATION, INC. 2438 Alclobe Circle Ocoee, FL 34761 407 -399 -1039 cell cc: Rosemary Wilsen, Commissioner District 2 David Butkovich, President, Silver Bend Homeowners Association, Inc. DEC I J Address: 1661 E. Silver Star Road This letter is to appeal Staffs decision on the above referenced property to allow Concept Companies, LLC (developer for Dollar General) to: 1. Install a driveway /access through Silver Bend Blvd., instead of implementing a right - Wright -out on Silver Star Rd. and a connector road to the West Oaks Library site as ingress and egress, thus compromising the safety of children, and gateway of an established residential neighborhood. 2. Install a masonry wall half way through Lot 4, instead of through Lot 7 of Silver Bend. 3. Not provide a sidewalk from Silver Bend Blvd. to connect with the West Oaks Library site for the safety of the children. Sincerely, Martha Lopez - Anderson Board Member & Government Liaison SILVER BEND HOMEOWNERS ASSOCIATION, INC. 2438 Alclobe Circle Ocoee, FL 34761 407 -399 -1039 cell cc: Rosemary Wilsen, Commissioner District 2 David Butkovich, President, Silver Bend Homeowners Association, Inc. VIA EMAIL TO MRUMER(a�CI.00OEE.FL.US & HAND DELIVERED January 3, 2013 Mike Rumer, City Planner City of Ocoee 150 N. Lakeshore Drive Ocoee, FL 34761 RE: Documentation for Board of Adjustment Hearing Silver Bend Subdivision Appeal of Proposed Dollar General Dear Mr. Rumer, Enclosed please find the following: 1. Letter from Karen Consalo, Esq. dated January 2, 2013 2. Photo — Silver Bend Blvd. view from Silver Star Rd. 3. Photo — Silver Bend Blvd. view from Cassingham Cr. 4. Photo — Silver Bend East Wall Sign view of subject property directly behind 5. Photo — Approx. 20 yr. old tree. I'm Alive Please Don't Cut Me Down 6. Photo — Save Our Tree 7. Photo — I Walk to School! 8. Proposal from Brian Crawford with Concept Companies, LLC to Silver Bend on November 29, 2012 (4 pages) Sincerely, Martha Lopez- Anderson Joe McElroy SILVER BEND HOMEOWNERS ASSOCIATION, INC. 2438 Alclobe Circle Ocoee, FL 34761 cc: Sherry Seaver sseaver(a Sharon Zink szinkC@_ci.ocoee.fI.us nn THE CONSALO LAW FIRM MARL A. CONSALO KAREA Z. CONSALO January 2, 2013 Mike Rumer City Planner 150 North Lakeshore Drive Ocoee, Florida 34761 Re: Silver Bend HOA and Ocoee Commercial Retail Store Dear Mr. Rumer: This afternoon I had the pleasure to be retained by representatives of the Silver Bend HOA in regard to their appeal of Ocoee staff's approval of a small scale site plan entitled, "Ocoee Commercial Retail Store" for a project to be located at the corner of Silver Bend Boulevard and Silver Star Road. My clients have advised me that while the initial public hearing on this matter is not scheduled to be heard until January 10, 2013, City staff has directed them to produce all evidence which they plan to utilize at that hearing by tomorrow, January 3, 2013. Obviously, I lack sufficient time to review this matter and adequately prepare every piece of evidence which might be necessary to adequately present my clients' position by tomorrow. As such, I have directed my clients to provide to the City the documents which they currently have within their possession. However, as a matter of due process and fairness, I must reserve their right to present any evidence necessary to their case at the upcoming public hearings, regardless of whether such evidence is supplied to City staff tomorrow. Thank you for your understanding. Please do not hesitate to call me if you have any questions or concerns. Sincerely, I � aa�� Karen Consalo, Esquire 836 North Highland AVC11uC, Orlando, Florida 32803 Main: (W) 8.43 -2003 / Fat: (407) 648 -2027 karcn�?consalola��'.com / %%— %'.consalolaW-com 4t& , i •j�. •� ni i I� • 1 1 � I n .o. I r / r �^ s •.I F • ;.: N t , .. ,` •. C i 2'l •iGc...... ... r r .r +f /, f �• ~, a ��. ` � M • 'Y ' Y . r; .?• is � �' � Y F e •f .a • ' ' r r/ . 1 I jow \, 69 I AL L b ir 1p 16 9 is Vol -got p ' InI Ste ir A 16 d N O F, 1p p SAW t+! � IV r ! ON, •� / i y •. r ,w s . •' • low M . t +i qMr F " ' y l• + it " • • , ` '�s *�' � � � dam„ - �',y��• � •� - � ` ' " �,�` I ' rrF • * `�� .. ' fi t .. + f + f�r� /M �•• r- = 'i � .., f � ,� b� - .� ` • 1. ,. � ' . fk Zia `r + a AU mown �f A04 4 , )y � ` Qj 81 `x ?, C r•. x(15 �.,. "M "JIMA.6 , �. 1 .1 a — 1 "..'; '. '� ., .. ., . .. -,". 11 " Ogg ��z S Cau 6 MINUTES OF THE BOARD OF ADJUSTMENT MEETING HELD JANUARY 10, 2013 CALL TO ORDER Chairman Wilsen 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 ofApril 19 2012. Motion carried 4 -0. OLD BUSINESS — None 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. (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 Meeting 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 staff's 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 Wilsen 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 Rumer 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 Wrobel 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. 2 Board of Adjustment Meeting 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 1 and H, 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 c Board of Adjustment Meeting 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, 2438 Alclobe Circle, Silver Bend David Butkovich, HOA President, Silver Bend Shaharazade Kayume, 1838 Cassingham Circle, Silver Bend 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 2 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 5 Board of Adjustment Meeting 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 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. Mr. Theriaque explained the Comprehensive Plan policies quoted by the counsel, and how those policies direct the City to do something through its Land Development Code; it 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. 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 Cadle 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 ON staff's 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 Wilsen inquired if it was Policy 7.1 that he was referring to. Member Colburn said he was not referring to any particular policy. 6 Board of Adjustment Meeting January 10, 2013 Chairman Wilsen briefly advised he did not feel the approved site plan is compatible with the established residential neighborood 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. 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 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 they overturn City staffs decision of pproving the site plan, fln&g that the City staff erred in approving 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. OTHER BUSINESS - None COMMENTS - None ADJOURNMENT The meeting adjourned at 8:45 p.m. Melanie Sibbitt, Deputy City Clerk Fred Wilsen, Chairman 7 L q b El X 14 r• � • "�y' Y N v� N �4� :i r rs a ' 't a ct � O a O ct O O O a� +-� Aev i , � V 1 4� MCI ct O . -AL • O � O 4-J O v� � 3 ?0� AA EEEE "''JJfJ i, ct Do ct • 4� C) ,-, �, ►.� :m O O a� -' N 4 4-J La � --J O „ . .. ►� 'z,� bap � +� Ct � ct C) 4 4� 4-j a 4 "' 4- COO Ct ct ct ct Q.) O • a� a� r ® rz L C) a rr� L7 CC F" F f y�.xcy F 1 r roi i P-4 CZ Pmrm¢ C 0 0 v c W C3 F A �g k t S c C L C) a rr� L7 CC F" F f y�.xcy F 1 r roi i P-4 CZ Pmrm¢ C 0 0 v c W C3 F A CD 4 F- j t � S e 4 G'�`' A `\ E cz y ti C� U N ct V) V) 4) U 4� V) • • C/) r� � v � Q ct (a) 4-j r ci v 1 O c� c� H � U 4- c� 4� 00 N OIIN rS--i a� O tal U a� U U U ct 4� 4� P O O 4� a� O 0 r c� CCS O CCj CCS O � O 4--' c� 4� C �z +-J 4-- ct 4 ' O U � ct r---( c� 4� a� O CC$ b.A O 4� O O bA rd c� c� c 4� O O a� U U CC$ . 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