HomeMy WebLinkAboutAgreement_General_04/12/2012 �������� ��
ATTORNEYS AT LAW
1111 Hypoluxo Road, Suite 207
�,���i�ea J���.�-/f6.�
JOHN CORBETT TELEPHONE (561) 586-7116
TREI.A J. WHITE TELECOPIER (561) 586-9611
BRADLEY W. BIGGSs^
KEITH W. DAVIS• * Board Certified in City, Cowity aod Local Govemment Law
R. MAX LOHMAN ^ State Certified Gounty and Circuit Court Mediator
ABIGAIL FORRESTER JORANDBY ••AICP, LEED AP
JENNIFER GARDNER ASHTON
ERIN L. DEADY, P.A., Of Counsel**
MEMORANDUM
TO: Village Manager Couzzo
FROM: Keith W. Davis, Esq.
DATE: March 30, 2012
RE: Proposal for Comprehensive Code of Ordinances Update
In response to your request to provide the Village of Tequesta with a prioritized proposal to
complete a comprehensive update of its Code of Ordinances by I�ecember 31, 2013, I offer the
following:
General:
Since being retained as general counsel for the Village of Tequesta in 2007, we have updated a
number of code provisions. Most notably, updates to the duties and functions of the Planning &
Zoning Advisory Board and the Local Planning Agency in 2008 brought those parts of the code
into conformance with state law; and more recently, updates to the building code sections and
comprehensive revisions to the landscaping code have been completed. There is still a lot to
accomplish in order to bring the Village's code "up to date." I will first discuss what I believe to
be the most critical areas, with potential legal implications, that require attention. These area.s
are the highest priority for code revision. Next, I will identify a number of "clean-up" areas
where there may be either internal inconsistencies in e�cisting code, or multiple code provisions
addressing the same topic that should be consolidated, or other issues whose correction will
result in a"cleaner" code. Finally, I will suggest a number of options to address issues that have
come up from time to time, which although they do not necessarily present legal or
organizational issues, they do offer an opportunity to streamline processes or modernize older,
difficult to apply codes.
High Priority Topics:
1. Adult Entertainment Code
Currently, through a definition of "adult entertainment" in Chapter 78, Zoning, the Village
completely prohibits adult entertainment anywhere within its jurisdiction. This is an unlawful
position and I recommend addressing adult enterta.inment in a manner that has been upheld by
1�Page
the courts. Municipalities can regulate adult entertainment activity by zoning it into commercial
or industrial zones (for example, the C-3 zone in Tequesta), and regulating the secondary effects
of the business (noise, traffic, etc.) as opposed to the content of the activity. Additionally, the
imposition of special exception criteria is an acceptable regulation. Until such regulations are in
place, the Village runs the risk of suffering a successful legal challenge to its current position on
this topic, and the potential for the siting of an adult entertainment establishment in a part of the
Village that is even less desirable than the C-3 district.
2. Sober House Code
In recent years there has been a proliferation of "sober houses" in south Florida. Many are
located in single family residential zones. Unfortunately, these facilities tend to function more
like "community residential homes" than single family dwellings (having up to 14 residents,
excessive vehicles, and a more transient type of turnover). Although federal housing laws do not
allow the outright prohibition of these facilities, we can impose certain siting requirements that
prohibit sober houses from being located within certain proximity of one another, similar to the
siting requirements for "community residential homes" provided in Chapter 419, F.S. During the
2012 legislative session, SB 1026, which addressed this specific issue on a statewide basis, died
in committee. The enactment of a local siting regulation will protect the Village's residential
zones.
3. Boat Docks, Lifts, Etc.
The effectiveness of the Village's boat dock code within the man-made canals of the Village is a
current "hot topic." The community development department is struggling with applications
from property owners who desire to install certain dock features, and apply a code which, I
believe, was written with the nver-front properties in mind. The process of drafting code to
address this problem has begun; however, significant additional work is r�uired before we have
a product that is ready for serious consideration by the Village Council. In order to have usable
code that does not create an abundance of existing non-conformities for the properties on the
Village's canals, I recommend that completion of these code revisions also be a top priority.
Clean-up Areas
1. Sec. 2-151. The code enforcement special magistrate is appointed for a two year term,
but also serves at the pleasure of the Village Council. I do not believe that we ha.ve ever
re-appointed Mr. Wagner after his initial two year term. I believe the two year term
provision is unnecessary and should be elimina.ted.
2. Sec. 2-273. Our code addresses a vacancy in candidacy for Village Council tha.t occurs
between the close of qua.lifying and the election; however, it is silent (similar to the City
of West Palm Beach Code) on the topic of a vacancy being created between the election
and the swearing in of the candidate elect. Although this is an unlikely eventuality, it is
presently being dealt with by West Palm Beach. This would be a good opportunity for
the Village to provide a solution as well.
3. Chapter 6(Alcoholic beverages). We address certain facets of the sale of alcoholic
beverages in Chapter 6, and other facets in the zoning ardinance (Chapter 78j. I
recommend that we consolidate these provisions, or at least provide references between
these sections in order to provide internal consisteney with policies and terminology.
Further, the types of entities that can apply for a permit for consumption in public places
is limited to the Village, or a legitimate civic or other club. Is there a need to expand this
to allow for private parties (e.g. a wedding party) or other non-profit events?
4. Chapter 10 (Animals). We have no code to address feral cats.
2�Page
5. Chapter 22 (Community Appearance). Two of the community appeara.nce code sections
address parking lots and landscaping in general. It would be useful to cross-reference the
landscaping and parking lot requirements in Chapter 78 and assure internal consistency
between these parts of the code.
6. I recommend a re-naming of Cha.pter 26 from "Emergency Services" to "Emergency
Notifica.tions, Alarms: ' The only item this chapter addresses is false alax�ms, and this re-
n�min_g would clearly distinguish this chapter from Chapter 18 "Civil Emergencies".
7. Chapter 30 (Environment) is an interesting cha.pter.
a. It contains many parts that could be relocated and cansolidated with other
chapters in the code. Most notably, there are provisions dealing with vegeta.tion,
composting and landscaping that ought to be captured by the landscaping code;
and provisions dealing with construction sites that ought to be captured by the
building code chapter.
b. The remaining parts of this chapter address litter, toxic substances, junk and
noise, all of wluch are nuisance issues. As such, following the relocation and
eonsolidation of landscaping/vegetation provisions and building/construction
provisions, this chapter would be more appropriately re-named "Nuisances".
c. Sec. 30-335 purports to give the Village the right to enter private property and
remove itexns therefrom. I believe that this exposes the Village to liability and
recommend revision of this process.
d. Generally, the parts of this ehapter addressing junked and lost or abandoned
property may need revision to comport with state law on the topic. This would be
completed during the overall revisions to this chapter.
e. Finally, our current noise code requires the measurement of the noise by decibels.
I recommend a revision of this code to application of the "loud and raucous"
standard approved by the Supreme Court. This method of citing noise violations
includes specific definitions for noise that is "loud and raucous" and does not
require traini�ng or use in a decibel measuring device.
8. Chapter 50 (Natural Resources). Articles II and N, dealing with environmentally
sensitive land and mangrove protection should be cross-referenced into the new
landscaping code in Chapter 78. Likewise, Article VII dealing with trees and the
designation of historic trees should either be cross-referenced ar combined with the new
tree trimming regulations in Cha.pter 7$. This will provide for internal consistency within
the code.
9. Chapter 62 (Planning and Development) will be compared to the Village Comprehensive
Plan to assure that all concurrency requirements are consistent between the two
documents. Any necessary updates to this chapter will be made in conformance with the
comprehensive plan. Section 66-126 provides for an annual report to be prepazed by the
Village for purposes of monitoring infi�asttucture capacity. I am not aware of this ever
actually being done. If it is not the Village's current practice to prepare this annual
report, I suggest modifying this section and codifying an entirely new method of
monitoring infrastructure concurrency that does not require the preparation of such a
repc�rt.
10. Chapter 66 (subdivisions} should be cross-referenced with the site development
requirements in Chapter 78. Further, Sec. 66-302 provides for a public parks "fair share
fee" which may be duplicative of the parks and recreation impact fee pmvided for in
3�Page _ _.
Chapter 38 (Impact fees). I suggest these fees be consolidaxed and to the extent they are
duplicadve, eliminate the fee set out in Chapter 66.
11. Chapter 74 (Utilities) provides certain landscaping/vegeta.tion requirements which should
either be consolidated with, or at least cross-referenced into the landscaping maintenance
requirements of Chapter 78.
12. Chapter 78 (Zoning):
a. Sec. 78-31 discusses the requirement of a special "3/5" vote of the council
required to adopt certain zoning changes; however, this is nothing more than a
simple majority. Therefore, this language should be clarified.
b. Sec. 78-299 and Secs. 78-441 et. seq. a11 address communications antenna and
should be consolidated.
c. 78-228 addresses clotheslines but should be updated to generally address energy
efficiency devices in conformance with Chapter 163 F.S.
d. Sections 78-291 and 78-292 prohibit timeshares and manufactured housing.
These regulations will be reviewed to determine if they are in violation of any
state of federal law and if so, will be corrected in conformance with said laws.
e. While the Village regulates garage sales and other outdoor sales (Sec. 78-551 et.
seq.), we do not have a special event permit process. Draft code addressing this
has previously been provided and was rejected; however, I recommend a fresh
look at this issue and considera.tion of the adoption of a special event permit code.
f. Secs. 78-641 et. seq. address the parking of commercial vehicles on private
property. These regulations should be reviewed and updated for enforcement
pu.rposes, and ultimately consolida.ted with Chapter 46 (Motor Vehicles and
Traffic).
g. We will continue working on the floodplain management ordinance which will
ultimately contain fairly significant revisions, similar to the building code
ordinance that has already gone to the Village Council, and bring that forward
when it is ready.
Other Code Issues
1. T'here have been recent discussions regarding a streamlined process for very minor site
plan modifica.tions. Draft code for this can be provided if this is desired (For example,
minor site plan approval could be handled by PZAB without the necessity of a Village
Council hearing as well).
2. Updates to the outdoor seating code for resta.urants have been discussed. Initial work on
these revisions has been started by the community development department. We will
continue to work to bring this forward.
3. The sign code has been discussed from time to time over the years. If revisions are
desired, we can work with community development to address this issue and bring
proposed revisions forward.
4. Similarly, the parking code has been discussed from time to time and revisions have been
discussed but never approved. If further considera.tion of this code is desired, we can
work with community development to bring proposed revisions forward.
5. There are other minor zoning code issues the community development department desires
to update, most notably dealing with placement of generators, open space requirements,
and the US-1 landscape plan. We will work with community development on these and
other minor issues as needed or desired.
4�Page
6. Throughout the Village Code, minor scrivener's errors have been noted. We will correct
these either by ordinance, where necessary, or in cooperation with Municode as
appropriate.
7. Fina.11y, we will update the code appendices regarding franchises to assure that all
current, active franchise agreements are contained therein.
The above revisions can be brought forward in intervals over the course of the project. I would
begin with the rnost critical issues discussed above (boat docks, sober houses and adult
entertainment); and then progress through the "clean-up" provisions, also capturing any codes
that required "cross-reference." Finally, I would proceed to work with community development
on the remaining items, to the extent that they are desired.
As you know, the cade of ordi�ances is a"living" document and will always be subject to
revision and update as the Village continues to grow and change, and as state and federal laws
that impact our code are revised. .As such, this proposal does not include code amendments that
are motivated by annexations, the desire of the Village Council to add or z�emove zoning uses
from time to #ime, the future need to update regulations based on changes to sta.te or federal law,
or revisions to the Village's Comprehensive Plan. Nor does it include changes to fee schedules
or the business tax schedule directed by the Village Council, or any other newly discussed
substanti�ve changes to the Village Code desireti by the Village Council from time to time after
this project has commenced.
It is contemplated that all the revisions included in this proposal would be completed b� the end
of the 2013 calendar year. Therefore, this proposal would impact, and could be divided between
both the Village's current legal budget as well as the 2012-2013 budget. The total cost to
accomplish a11 items contained in this Proposal is $25,000.00. As this will be an ongoing
project, we propose work to commence in May, 2012, and be completed no later than December
31, 2013 (20 months), witti monthly payment of $1,250.00 for each of those 20 months.
I look forward to working with you and Village staff in order to complete this pmject and
provide the Village of Tequesta with an upda.ted, current, code of ordinances.
_ _ _
S�Page