BOARD OF ADJUSTMENT AGENDA ITEM
Memo Date: April 10, 2024
Agenda Date: April 17, 2024
Prepared By: Stephen Noto, AICP - Planning Consultant
Through: Stockton Whitten - City Manager
Requested Action:
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Consideration of an Appeal of a Zoning Verification Letter related to 430 Cox Rd., in accordance with Appendix A., Article XVII, Section 1 -Postpone to next meeting
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BACKGROUND:
The applicant, Ms. Kimberly Rezanka, filed a Notice of Appeal of a Zoning Verification Letter (ZVL), provided by staff, dated November 22, 2023, for the Subject Property, 430 Cox Rd.
Appendix A, Article XVII, Section 1, provides that the Board of Adjustment has the authority to hear and decide appeals of administrative decisions. The Code describes the Board of Adjustment’s role and the Administrative Appeal processes as follows:
“To hear and decide appeals where it is alleged there is error in any final administrative decision by an administrative official regarding the enforcement or interpretation of this ordinance and the sign ordinance, unless otherwise expressly provided for by the City Code.”
Appeals of administrative decisions may be made by any applicant or party aggrieved by a decision of an administrative official in the interpretation any portion of the City’s zoning regulations. In this case, the property owner is the appellant and party aggrieved by the decision regarding the allowed uses on property, though the zoning verification letter was issued to Cowan Systems, a prospective purchaser of the property.
The Board shall be required to review all administrative appeals and prepare written findings constituting its final decision on the administrative appeal based on the following criteria:
(1) Whether the applicant was properly afforded procedural due process;
(2) Whether the decision under review is supported by competent, substantial evidence; and
(3) Whether the decision under review complied with applicable law, including a proper interpretation of any provision under this chapter.
In accordance with Appendix A, Article XVII, Section 5, the Board may affirm or reverse the administrative decision, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as should be made, and to that end shall have all of the powers of the administrative official from whom the appeal was taken.
The M-1 District allows the following as a proposed use:
(6) Freight-handling facilities, transportation terminals.
The applicant, as outlined in the attached appeal letter, has requested that the Board of Adjustment declare that their proposed use constitutes a “transportation terminal”, which is a permitted use in the M-1, Light Industrial and Warehouse, zoning district via the C-W, Wholesale Commercial District. The City staff does not agree that a “transportation terminal” includes a trucking facility such as the one proposed by Cowan Systems, but rather constitutes a storage use of commercial vehicles, which is allowed only in the M-2 zoning district.
As further detailed in this staff report, the applicant requested a ZVL from staff to make that determination but found staff’s response unsatisfactory. As a result, they exercised their right through Appendix A, Article XVII, Section 1, and are appealing staff’s interpretation of code.
Project Details
Future Land Use Designation: Current: IND, Industrial
Zoning District: Current: M-1, Light Industrial and Warehouse District
Existing Land Use: Vacant Industrial Land
Council District: District 3 - Councilman Barringer
Legal Ad Date: March 19, 2024; mailers to property owners within 500 feet
Overview of Surrounding Area:
|
|
Future Land Use Designations |
Zoning Districts |
Land Uses |
|
North |
IND, Industrial |
M-1, Light Industrial and Warehouse District |
Used Auto Sales; Office Building; Vacant Industrial Land; Open Storage/Building Supplies/Junk Yards |
|
South |
IND, Industrial |
No Zoning Assigned |
Light Manufacturing |
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East |
Brevard County: CC, Community Commercial |
Brevard County: BU-1, General Retail Commercial; BU-2, Retail, Warehousing, and Wholesale Commercial. |
Single Family Residence; Vacant Residential Land; Warehousing |
|
West |
COMM, Commercial |
C-G, General Commercial |
Municipally Owned Land; Right-of-Way |
Property Details
The +/- 9.8-acre Subject Property, 430 Cox Rd., has a City of Cocoa Zoning district classification of M-1, Light Industrial and Warehouse. The Future Land Use designation is IND, Industrial. The Subject Property has a property use code of Vacant Industrial Land per the Brevard County Property Appraiser. As witnessed during a recent site visit, the Subject Property currently has a variety of trucks, trailers, vans, and the like, scattered throughout the property. There is no active Business Tax Receipt.
Zoning Verification Letter Request and Prior Correspondence with Cowan Systems
On November 22, 2023, the City received a request for a ZVL from Mr. Dan Colhoun, Vice President, Cowan Systems, LLC. Mr. Calhoun requested that staff verify that the proposed use outlined in the request was allowed under the existing zoning district classification and Future Land Use designation. The proposed use was described as follows:
“To be used as a regional trucking facility and parking for trucks and trailers for the transportation of household goods and general commodities throughout the state of Florida.”
“If we plan on future development at the property that may include a maintenance facility, drive break room and ancillary offices, we acknowledge that a development plan will be needed and that a pre-application meeting will be helpful to go over the plan requirements before submission.”
The ZVL request is attached as a reference.
In response to the request, the City provided the ZVL, dated December 15, 2023, to Mr. Calhoun. The ZVL, which is attached as reference, provided the following information:
“The uses allowed in the M-1, Light Industrial and Warehouse are provided as an attachment to this letter. The M-1 zoning district also permits the allowed uses in C-W, Wholesale Commercial District. Those uses are also provided as an attachment to this letter. The proposed use of the property that you outlined in your request letter isn’t specifically provided for in either the M-1 or C-W zoning districts, and therefore is a prohibited use. Further, the M-2, Manufacturing and Industrial District, already permits the following use:
“Storage facilities (excluding salvage yards), including automobiles, mobile homes, commercial vehicles and heavy equipment, building materials, general, refrigerated, and recreational vehicles pursuant to Appendix A, Article XIII, Sec. 5 of the Code of the City of Cocoa.”
The proposed use falls within this description of “storage facilities” permitted only in the M-2 District and is accordingly prohibited in the Subject Property’s M-1 zoning district.”
“Earlier this calendar year, Cowan Systems, LLC previously asked the City to provide zoning verification information for a similarly situated property located at 500 Cox Rd. That property has the same zoning (M-1) and future land use designation (IND) as the Subject Property, 430 Cox Rd. The proposed use at that time was described as a “transportation terminal for a portion of its fleet, trucks and trailers”… “used for dispatching commercial drivers, tractors and trailers, performing business and administrative functions necessary to execute supply chain management, and the other uses incidental to the operation of a transportation terminal.” At that time, the City similarly provided an opinion to you (Cowan Systems, LLC) stating that the description of the proposed use did not qualify as a “transportation terminal” and, in fact, was considered a “storage facility” permitted only within the M-2 District. The communication occurring at that time revolved around whether the use qualified as a “Transportation Terminal”, as that is a permitted use in the C-W zoning district. The Land Development Code does not have a specific definition of “Transportation Terminal”, as a result, the City provided a definition based on the following:
Oxford Languages (New Oxford American Dictionary):
Transportation = “the action of transporting someone or something or the process of being transported.”
Terminal = “the end of a railroad or other transportation route, or a station at such point.”
Merriam-Webster (online):
Transportation = “an act, process, or instance of transporting or being transported.”
Terminal (noun) = “either end of a carrier line having facilities for the handling of freight and passengers; a freight or passenger station that is central to a considerable area or services as a junction at any point with other lines; a town or city at the end of a carrier line; terminus.”
Black’s Law Dictionary (11th ed. 2019)
Transportation n. (16c) 1. The movement of goods or persons from one place to another by a carrier.
As was discussed previously, “transportation terminals,” as commonly understood and defined, involve the transportation of people or goods at a station or other facility capable of handling freight and passengers.
In this case, the proposed use consists of a parking lot facility where trucks may be parked when not in use in between routes. While goods may be kept in the truck trailers for temporary storage purposes, no facilities or buildings are proposed that would support or facilitate the handling of freight or passengers. Additionally, the City previously raised concerns regarding impacts of the proposed use to Cox Rd. Cox Rd. has a 1-1/2” to 2” asphalt layer. Due to the age of the roadway and the generally poor soils in the area, the City is concerned that the roadway section is not suitable for the proposed use involving heavy truck traffic. The City has already designated the M-2 District for heavy vehicle and commercial vehicle storage facilities. Many properties in the M-2 District are near the I-95 and SR 528 corridor and would be suitable for the proposed use.”
“Finally, please note that the National Wetlands Mapper indicates there are existing wetlands onsite and the FIRM indicates portions of the site are within a flood zone. It is advised that the applicant perform due diligence with the various state districts regarding this information and research the applicable City Comprehensive Plan policies regarding impacts to wetlands and flood zones.”
As was noted in the ZVL provided by the City, in 2023, Cowan Systems, LLC, made a similar request for information regarding allowed uses in the M-1 District for property located at 500 Cox Rd. As noted above, 500 Cox Rd., has the same M-1 zoning and FLU designation as the Subject Property. The City’s staff similarly responded at that time that the proposed use for the storage of its fleet of trucks and trailers that would be dispatched to serve the supply chain trucking needs for other consumer product companies was not permitted and not considered a “transportation terminal.” The last communication from the City during that process was on March 31, 2023, to Cowan’s legal counsel, as well as two representatives from Cowan Systems. That e-mail provided the sources staff used in determining the meaning of “transportation terminal”, which included using definitions from Oxford Languages (New Oxford American Dictionary), Merriam-Webster, and Black’s Law Dictionary (11th ed. 2019). These definitions were also provided in the November 22, 2023 ZVL. Following the March 31, 2023, email, Cowan Systems and their legal counsel withdrew their formal request for a zoning verification letter. The City did not receive another request for a zoning verification letter from Cowan Systems until November 2023, upon which this appeal is based.
Appeal Letter
The applicant’s appeal letter is critical of how staff determined the proposed use was not permitted.
The materials that the applicant provided in their appeal, on pages 3 and 4, from The Geography of Transport Systems, a textbook, actually supports staff’s decision. Specifically, the book states that, “A terminal is a facility where passengers and freight are assembled or dispersed during transportation”.
Neither the assembly nor disbursement of passengers or freight is proposed to occur on this property. No information was provided to the City to support that any freight or passengers would be assembled or dispersed from the Subject Property. All that was provided was that the trucks would be parked at the facility, for eventual transportation of goods that would be picked up from other locations, which are not stored on site. Plainly, the proposed use is a parking lot for trucks, with potential ancillary office space.
The appeal letter further quotes passages from The Geography of Transport Systems describing the two types of terminal facilities: passenger terminals and freight terminals. The author describes that passenger terminals would allow passengers to access buses, ferries, or trains, for example, and would require services on site such as ticketing, food, and security. None of these passenger-support facilities are proposed on this property. The author also describes the type of development and facilities that would be expected for freight terminals, which include berths, loading bays, freight yards, and storage facilities such as grain silos, storage tanks, refrigerated warehouses, or space to stockpile bulk commodities. No such facilities were proposed in the description of the use proposed by Cowan Systems, which merely intends to have parking facilities for trucks and trailers and an administrative office. Thus, the sources cited support the City’s interpretation of “transportation terminals.” The other references to an unknown California city’s code are similarly supportive of staff’s position.
Further, the appeal letter also suggests that, because the term “storage facilities” is not defined in the City Code, a dictionary definition of storage would apply to mean “to place or leave in a location.” The City staff believe that is exactly what is proposed by Cowan Systems, which is to leave or place their trucks on the property until they are needed to complete a route picking up goods and delivering them elsewhere.
The applicant’s appeal is also critical of the information related to Cox Road that was provided in the ZVL. As with all ZVL’s the City will provide ancillary information as part of the ZVL if it is aware of any surrounding issues that may impact a use of property. This is done in a proactive manner in an effort to assist customers in their decision making. This information was also provided to Cowan Systems in 2023.
The other ZVL referenced in the appeal, dated August 3, 2023, was not issued to Cowan Systems and was completed without the knowledge of the prior City determinations, previously noted in this report.
Since the letter was provided to the applicant of this appeal, the applicant and their client have not engaged the City in discussions about how to find solutions to the issue. Rather, the applicant requested an appeal of the staff determination.
Additional Supportive Research
Since receipt of the ZVL appeal, staff has conducted additional research to try and find alternative solutions that may lead to City land development code amendments for similar uses, and to provide as reference as part of this appeal. The information found is from local Florida communities, and the States of Virginia, and California.
City of Winter Garden (Orange County, Florida)
Truck parking facilities. A truck parking facility is a facility on a piece of property which is to be used for long term (i.e. over five hours) and overnight parking of trucks. Exceptions to this are situations where a truck is in the process of being repaired, or being loaded or unloaded. For the purpose of this definition, a truck includes tractor trailers (either cab or trailer), or any licensed vehicle (motorized or not) that is designed for transporting goods or materials and that has three or more axles.
Sec. 118-727. - Permitted uses.
Permitted uses in the I-1 light industrial and warehousing district are as follows:
(9) Truck parking facilities (but not transportation terminals or freight handling facilities).
Sec. 118-729. - Special exceptions.
In the I-1 light industrial and warehousing district, the uses permitted as special exceptions pursuant to section 118-97 <https://library.municode.com/fl/winter_garden/codes/code_of_ordinances?nodeId=PTIICOOR_CH118ZO_ARTIIAD_DIV3SPEX_S118-97USRE> are as follows:
(1) Freight handling and transportation terminals.
Cape Canaveral (Brevard County, Florida)
Outside storage shall mean the commercial storage of licensed recreational vehicles, trailers, and trailerable items, goods, wares, merchandise, commodities, or any other item outside of a completely enclosed building for a continuous period of longer than 24 hours.
City of Jacksonville (Duval County, Florida)
Sec. 656.322. - Light Industrial Category.
This category includes industrial uses which have fewer objectionable impacts such as noise, odor, toxic chemical and wastes. Types of primary uses include light assembly and manufacturing, packaging, processing including scrap processing, manufacturing of paints, enamels and allied products but not the manufacturing of the resins and other components from which such products are made, concrete batching plants, storage/warehousing including bulk storage of liquids, research and development activities, transportation terminals including freight terminals, radio/T.V. studios, transmission and relay towers, yard waste composting, recycling facilities, business/professional offices, medical clinics, veterinarians, vocational/trade schools and building trade contractors.
II. Industrial Light (IL) District.
(a) Permitted uses and structures.
(5) Service establishments catering to commerce and industry, including linen supply, laundry and dry cleaning plants, freight movers, communications services, business machine services, hiring and union halls, employment agencies, sign companies.
(10) Freight, bus, trucking, shipping or other transportation terminals, commercial parking lots and garages, truck stops, express offices and terminal facilities and telephone exchanges, repair or installation facilities and similar uses.
Harrisonburg, Virginia (Rockingham County, Virginia)
Passenger Terminal means a use category containing facilities for the takeoff and landing of airplanes and helicopters, and terminals for taxi, rail, or bus service.
Uses in this use category include: Airport; Heliport; Bus terminal; Transportation service facilities, including but not limited to those for: taxicab, limousine, or bus; and other uses meeting the definition of Passenger Terminal according to the Zoning Administrator.
Associated office and storage; Associated retail sales area related to the primary use; Concession; Fleet maintenance; Freight handling area; Fueling facility; and Minor utilities.
California Freight Mobility Plan <https://dot.ca.gov/-/media/dot-media/programs/transportation-planning/documents/cfmp-2023-toc/cfmpfinaljuly072023glossarya11y.pdf>
Terminal: Generally, a facility at which freight is received, handled, and shipped. Terminals are usually locations where vehicle combinations (rail cars, trucks, trailers, chassis, etc.) are regularly exchanged and temporarily stored. In rail transportation, a railroad facility used for handling freight and the receiving, classifying, assembling, and dispatching of trains. (Also see rail yard.) At seaports, a wharf area where an owner or tenant operates cargo-handling equipment to load and unload ships. (Also see container terminal.)
What this research helped staff confirm was that when a “terminal” is operating, it should include the actual physical movement of goods or passengers from the property where the “transportation” is beginning or terminating. This assisted in determining that the proposed use on the Subject Property was not a Transportation Terminal, as permitted in the C-W, Wholesale Commercial District, as no freight or passengers would physically be located on-site, loaded or unloaded on-site, or otherwise transported physically on or off the Subject Property.
This is also similar to what was found by the material presented by the applicant, detailed in The Geography of Transport Systems, that a “terminal is a facility where passengers and freight are assembled or dispersed during transportation.”
Appendix A., Article XVII, Section 1(C) Process
The above code section requires the following of the appeals process:
(C) Review of administrative decisions shall be based on the following criteria:
(1) Whether the applicant was properly afforded procedural due process;
(2) Whether the decision under review is supported by competent, substantial evidence; and
(3) Whether the decision under review complied with applicable law, including a proper interpretation of any provision under this chapter.
The following analysis was provide responses to those criteria:
(C)(1) Whether the applicant was properly afforded procedural due process.
Staff Finding: The applicant was provided the appeal procedure by the City and facilitated the appeal process, as detailed by the Code.
(C)(2) Whether the decision under review is supported by competent, substantial evidence.
Staff Finding: Staff has outlined the history of the request, including prior conversations held between the City and the requestor about similarly situated property in the City. The information provided by staff was reviewed by professional planning staff and the City Attorney’s office. The decisions were based on information in the City’s code, and research of outside sources, including other land development codes in the states of Florida and Virginia.
(C)(3) Whether the decision under review complied with applicable law, including a proper interpretation of any provision under this chapter.
Staff Finding: The administrative decision of the planning staff that the proposed use does not constitute a “transportation terminal” complied with applicable law and a reasonable interpretation of the term. All decisions are based on a proper interpretation of the zoning code, particularly the terms “transportation terminal” and “storage facilities, including . . . commercial vehicles and heavy equipment, building materials, general, refrigerated, and recreational vehicles,” for the reasons described at length above.
BUDGETARY IMPACT:
N/A
PREVIOUS ACTION:
N/A
RECOMMENDED MOTION:
Recommendation
Staff recommends that the Board of Adjustment affirm the planning staff’s interpretation of the term “transportation terminal,” as contained and described in the Zoning Verification Letter dated November 22, 2023, from the City of Cocoa to Cowan Systems, LLC, for property located at 430 Cox Rd., Cocoa, FL. -Postpone to next meeting