Fort Walton Beach Council agenda — 04-14-09 regular — reading text

development order, including site plan approvals, certificates of concurrency, conditional uses, planned unit development plans and preliminary and final development plats, that will otherwise expire during the calendar years of 2009 and 2010, regardless of whether an extension of the development order has been previously granted. Atty d rft  SECTION 3. TEMPORARY PRE- EMPTION OF CODE PROVISIONS To the extent of conflict caused by the passage of this ordinance, this ordinance shall temporarily pre -empt the provisions of section 13. 202. D ( a /k /a 13.20. 1) Development Order and Building Permit Guidelines, and section 13. 312. H ( a /k /a 13. 30. 12. H), Expiration of Approval, as those provisions apply to the expiration of pending development orders. Otherwise, all other provisions of the Land Development Code shall apply. SECTION 4. ORDINANCE NOT TO BE CODIFIED This ordinance shall not be included or incorporated into the Land Development Code because of its temporary nature. SECTION 5. EFFECTIVE DATE; SUNSET PROVISION This Ordinance shall take effect immediately upon approval by the City Council and signature of the Mayor. Unless readopted by the City Council, this ordinance shall be repealed as of April 1, 2012. 2009. Adopted Mike Anderson, Mayor Attest: Approved for form and legal sufficiency. Helen Spencer, City Clerk Toni L. Craig, City Attorney New language is underlined. Deleted language is e#F+sken. Atty d rFt  EXHIBIT A Status of Site Plans: March 2009 Project Address Status Joe & Eddies Mixed -Use An amendment to the site plan was approved Bldg. 206 Florida Place SE on 9/ 25/ 07. An extension was approved on 05- 09 -SP 8/ 26/ 08 through 9/ 25/ 09. AltaVista Condominium A second extension of the development order 06 -01 - SP was granted 3/ 25/ 08. Request for a third 12 220 Miracle Strip Pkwy SW month extension approved by CRA on 03/ 04/ 09. Alconese Terrace Condos Phase I approved ( will need to go back to 06 -03 -SP CRA and City Council for Phase II). A second extension of the development order was 107/ 109 Brooks St. SE granted 3/ 25/ 08. Staff has received a request for a third 12 month extension that will be presented to City Council on 03/24/ 09. CRA recommended approval on 03/04/ 09. First Baptist Church Parking 26 First Street SE Site plan approval granted on 4/ 24/ 07. City at First and Harbeson Council approved an extension on 4/ 22/ 08. 06 -19 -SP Landmark Center 07 -02 -SP 206 Perry Avenue Site plan approval granted on 8/ 14/ 07. City Council approved a development agreement on 12/ 11/ 07. An extension to the development order was approved by City Council on 8/ 12/ 08. Sunrise on the Sound 14 Miracle Strip Pkwy Conditional Use approved 3/ 6/08. City 08 -02 -SP Council approved the site plan on 4/ 22/ 08. Application for extension of time for the conditional use permit has been received. No request to extend the development order for the site plan has been received to date, but has been requested by staff. Harbour Place Apartments 7, 8, 9 Bobolink Application submitted 6/ 11/ 08; CRA and Marty Lackey " Fresh" recommended approval of the site plan Start Center application and development order on 9/ 3/ 08. 08 -03 -SP Council approved the recommendation on 9/ 23/ 08. Active Building Permit/ Under Construction for Harbour Place a is only.  IF t IN ti ATTORNEY AT LAW CE City, County, Local Government Law NNNN Marital & Family Law 7 April 2009 To: Mayor, Council CC: City Manager Re: Ordinance 1785, Extension of Pending Development Orders On March 9, 2009, the Development Services Division requested my opinion regarding Ordinance 1785. Staff had drafted the original ordinance to make retroactive amendments to the Land Development Code to extend pending development orders. On March 11, 2009, 1 revised the draft ordinance and forwarded it back to staff for action. Staff had anticipated that the ordinance would be reviewed by Council on first reading on April 14, 2009, and for second reading on April 28, 2009. Ordinance 1785 has been narrowly drawn to address seven development orders that are currently pending in the City. It temporarily preempts section 13. 202. d a / k /a 13. 20. 1), Development Order and Building Permit Guidelines, and section 13. 312. h ( a / k /a 13. 30. 12. h), Expiration of Approval, of the Land Development Code to extend the validity of the seven pending development orders to March 30, 2012. By the current Land Development Code provisions, if any new application is filed and approved for development in the CRA, that development order would be valid for two years. For other areas of the City, pursuant to 13. 20. 1. D., the development order itself can specify the time of expiration which could be two or three years. order or building permit, ") the DO can state more than one year. Therefore, there is not an issue for future development applications. Finally, because this ordinance does not amend the Land Development Code or a site plan approved by the CRA, it is my opinion that a recommendation by the MPB or CRA is not necessary pursuant to the Code. However, Council has PO Box 2917 discretion whether to seek a recommendation by either board. 105 Lewis St Ste 102 Fort Walton Beach FL 32549 PHONE: ( 850) 243 -6969 Recommended motion: Move to approve Ordinance 1785 on first reading. FAX: ( 850) 244 -8929 E - MAIL: tonicraig @cox. net WEB SITE: www.tonicraig. info From: Toni Craig [ mailto: tonicraig @cox. net] Sent: Tuesday, March 31, 2009 8: 10 AM To: Samantha Abell; ' Janet wilson' Cc: Helen Spencer; Robert Mearns Subject: Ordinance 1785, Attorney Opinion Samantha Please provide for each MPB member the following opinion and attachments as further backup for Ordinance 1785. Thank you. Board Members The following hypothetical has been raised and I offer my legal opinion in response. Hypothetical: The City approves an extension of a development order for a structure that is non -conforming at the time of the extension. The structure is built and then it is destroyed by fire, hurricane or other causes. The structure cannot be rebuilt as it was because it is a non -conforming use. Can the City be held liable for not allowing the structure to be rebuilt to its past non -conforming configuration? Answer: No. It is black letter law that a municipality cannot be held responsible for such functions as approving a site plan. The Florida Supreme Court has long held: In summary, we first emphasize that section 768. 28, Florida Statutes ( 1975), which waived sovereign immunity, created no new causes of action, but merely eliminated the immunity which prevented recovery for existing common law torts committed by the government. We hold that there has never been a common law duty to individual citizens for the enforcement of police power functions. Further, we find that no statutory duty for the benefit of individual citizens was created by the city' s adoption of the building code, and, therefore, there is no tort liability on the part of the city to the condominium owners for the allegedly negligent exercise of the police power function of enforcing compliance with the building code. To hold a governmental entity liable for carrying out this type of enforcement activity would make the taxpayers of the enforcing governmental entity insurers of all building construction within the jurisdiction of the entity. We conclude that such a result was never intended by either the legislature or the city in enacting the building code provisions. Our decision, as explained below, is consistent with the decisions of the majority of states and the recent decision of the United States Supreme Court in United States v. S.A. Empresa de Viacao Aerea Rio Grandense ( Varig Airlines), 467 U. S. 797, 104 S. Ct. 2755, 81 L. Ed. 2d 660 ( 1984)." Trianon Deciding which laws are proper and should be enacted is a legislative function of the City. How and in what manner those laws are enforced is, in most instances, a judgmental decision of the executive branch. The judicial branch should not trespass into the decisional process of either." Carter Thank you. Toni L. Craig Attorney at Law Fla Bar No 115444 Board Certified,