ORDINANCE NO. 2008-06
AN ORDINANCE OF THE TOWN OF PONCE INLET, VOLUSIA
COUNTY, FLORIDA, SUBMITTING TO THE ELECTORS OF PONCE
INLET A PROPOSED AMENDMENT TO SECTION 7.02 OF THE
CHARTER OF THE TOWN OF PONCE INLET REGARDING BUILDING
HEIGHT LIMITATIONS; PROVIDING BALLOT TITLE, BALLOT
SUMMARY AND QUESTION, AND TEXT FOR THE PROPOSED
AMENDMENT; PROVIDING DIRECTIONS TO THE TOWN CLERK;
PROVIDING FOR THE DATE OF EFFECTIVENESS OF CHARTER
AMENDMENT IF APPROVED BY A MAJORITY OF ELECTORS;
PROVIDING FOR SEVERABILITY, CONFLICTS, AND EFFECTIVE
DATE FOR THIS ORDINANCE.
WHEREAS, in public meetings, the Ponce Inlet Town Council discussed and debated the
desirability of proposing a change to the Charter of the Town of Ponce Inlet to the citizens of the
Town; and
WHEREAS, Section 166.031, Florida Statutes, provides that the governing body of a
municipality may, by ordinance, submit to the electors of said municipality proposed
amendments to its charter, which amendments may be to any part or to all of its charter except
that part describing the boundaries of such municipality; and
WHEREAS, Section 166.031(2), Florida Statutes, provides that upon adoption of an
amendment to a charter by a majority of voting electors, the local governing body shall have the
amendment incorporated into the charter and shall file the revised Charter with the Department
of State; and
WHEREAS, on August 24, 1983, The Town Council passed Ordinance 83-012 placing a
proposed amendment to the Charter before the electors of the Town at a referendum held on
November 8, 1983; said Ordinance limited all buildings in the Town to 35 feet in height; and
WHEREAS, the referendum limiting building heights to 35 feet passed and became
effective on November 29, 1983; and
WHEREAS, under the Ponce Inlet Comprehensive Plan, a nonconforming structure may
not be re-established if damaged to the extent that the cost to repair or reconstruct such structure
would exceed 65 percent of the structure’s assessed value; and
WHEREAS, Section 5.4.1 of the Land Use and Development Code (LUDC) provides that
nonconforming structures damaged in excess of 65% of the then assessed value must comply
with the Town’s land development regulations if reconstructed; and
WHEREAS, Section 163.3177(6)(a) and Rule 9J-5.006, Florida Administrative Code
require that a local government address in its comprehensive plan nonconformities which are
inconsistent with the character of the community and the proposed future land uses; and
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WHEREAS, provisions in comprehensive plans and land development regulations for
nonconformities are desirable in that they contemplate nonconformities will be phased out; and
WHEREAS, in the Town of Ponce Inlet, the Charter, not the Comprehensive Plan and
Land Use and Development Code, initially dictated and required the building height limitation
and, therefore, the voters may determine how height of buildings is to be measured and under
what circumstances buildings taller than 35 feet should be excepted from phase-out; and
WHEREAS, in recent local planning agency hearings, discussions took place, and the
public was heard, regarding the consequences of a terrorist act, accidental fire, or natural and
disastrous force upon present buildings with heights over 35 feet, which would trigger Objective
1.3 of the Comprehensive Plan; and
WHEREAS, should an accidental fire, terrorist act, or natural and disastrous force occur
resulting in substantial damage and destruction to buildings taller than 35 feet, implementation of
the Comprehensive Plan and LUDC may result in loss of homes and property of Town citizens
and significant legal challenges to the Town’s enforcement of the Comprehensive Plan and
LUDC regarding nonconformities; and
WHEREAS, the Town Council has been apprised of the fact that coastal communities in
the State of Florida are allowing nonconforming structures to build back to their pre-disaster
status and height under certain circumstances; and
WHEREAS, the vision of the Town, embodied in the Comprehensive Plan, states: “The
community will continue to be particularly distinguished by its natural beauty and its access to
nature. It has ensured that its built environment is of high quality and appropriate scale while
protecting historic features”; and
WHEREAS, the Town desires to preserve its natural beauty by avoiding visual clutter; and
WHEREAS, the Town Council concludes that it is in the best interests of the citizens of
the Town of Ponce Inlet for the electors of the Town of Ponce Inlet to consider revising the
Charter of the Town of Ponce Inlet at a referendum election.
NOW, THEREFORE, BE IT ENACTED BY THE TOWN OF PONCE INLET,
FLORIDA, THAT:
SECTION 1. The recitals set forth above are hereby adopted as legislative findings of
the Town Council of the Town of Ponce Inlet.
SECTION 2. Proposed Amendment to Charter. The Town Council of the Town of
Ponce Inlet, pursuant to Section 166.031, Florida Statutes, hereby proposes an amendment to the
Charter of the Town of Ponce Inlet, which ballot title and ballot question are set forth in Section
3 below, and which proposed amendment is set forth in Section 4 below. In Section 4 herein, the
text of Section 7.02 of the Charter and proposed amendment reflect the proposed changes by
showing additions with underlining.
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SECTION 3. The ballot title and question regarding the proposed amendment to the
Charter shall appear on the ballot as follows:
Height Limitations: Allowing Buildings Over 35 Feet To Build Back In Certain
Circumstances
Shall the Charter be amended to allow buildings taller than 35 feet, which are substantially
damaged from terrorist acts, accidental fires, or natural disasters, to be reconstructed to their
pre-disaster height, and to determine how height is to be measured?
_____ Yes for approval
_____ No for rejection
SECTION 4. The proposed Charter amendment to Section 7.02 of the Town Charter is
as follows:
Section 7.02 Height Limitation.
(a)
Buildings and structures within the Town of Ponce Inlet shall be limited to a maximum
height of thirty-five (35) feet. Height shall be measured from the ground in accordance with the
provisions of the Land Use and Development Code. Mechanical equipment, spires, steeples,
belfries, cupolas, and other architectural features shall be included in determining building
height. Florida Building Code items such as chimneys, guardrails, bulkheads, and penthouses
used solely to enclose stairways, tanks, elevator machinery or shafts or ventilation or air
conditioning apparatus shall not be included in determining building height; however, items
required by the Florida Building Code shall be limited to the minimum height necessary. Items
or structural elements required by other state laws or the Federal Telecommunications Act shall
not be included in determining building height.
(b)
If an existing building over thirty-five (35) feet is destroyed or substantially damaged by
terrorist act, accidental fire, or natural and disastrous force, such building may be built back
(reconstructed):
(1)
Within its pre-disaster footprint;
(2)
Within the three-dimensional envelope of the habitable area of the pre-disaster building;
(3)
Up to its pre-disaster gross square footage; and
(4)
Up to the same number of dwelling units and pre-disaster floor area ratio, but elevated
above the base flood elevations required by federal flood regulations, and Article VII (Flood
Hazard Reduction) of the LUDC; and
(5)
Conforming in all other respects to the Town’s Codes, the Florida Building Code, other
federal and state regulations, and state coastal construction control lines in effect at the time the
substantially damaged building is built back (reconstructed).
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(c)
Applications to build back buildings over thirty-five (35) feet that are destroyed or
substantially damaged by terrorist act, accidental fire, or natural and disastrous force must be
filed in accordance with the build-back provisions of the Land Use and Development Code.
Registration of nonconformities and regulations and limitations on reconstruction pursuant to
this Section shall be in accordance with the Land Use and Development Code.
(d)
For purposes of this section, "substantial damage" means any damage which would
otherwise trigger a loss of the nonconforming structure under the Comprehensive Plan and the
Land Use and Development Code. A building over thirty-five (35) feet in height which does not
incur substantial damage from a terrorist act, accidental fire, or natural and disastrous force shall
be built back in accordance with the provisions of the Comprehensive Plan and Land Use and
Development Code.
SECTION 5 .
Submission to Electors. The proposed amendment to the Charter of the
Town of Ponce Inlet shall be placed to a vote of the electors of the Town of Ponce Inlet at the
next regular election to be held on Tuesday, November 4, 2008. The Supervisor of Elections of
Volusia County is hereby requested to coordinate all matters of said referendum election with the
Town Clerk.
SECTION 6.
Duties of Town Clerk. The Town Clerk is hereby directed to ensure that
all advertising and notice requirements are complied with pursuant to the Town’s Charter and to
coordinate all activities necessary to conduct the referendum election called in Section 5 of this
Ordinance with the Supervisor of Elections for Volusia County. Should the amendment be
adopted by a majority of electors voting in the referendum, the Town Clerk shall file the revised
Charter with the Department of State.
SECTION 7.
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 8.
repealed.
Conflicting Ordinances. All ordinances in conflict herewith are hereby
SECTION 9. Effective Dates. This Ordinance shall take effect immediately upon its
final passage and adoption. The revised Charter provisions proposed for approval in this
Ordinance shall become effective, if approved and adopted by a majority of the voting electors in
the Town of Ponce Inlet, upon said approval. If the electors reject the amendment, the rejected
amendment shall not take effect.
It was moved by Councilmember Sturno and seconded by Councilmember Hinson that
said Ordinance be passed on first reading. A roll call vote of the Town Council on said motion
resulted as follows:
Mayor Epps, Seat #1
Yes
Councilmember Goudie, Seat #2
Yes
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Vice-Mayor McCormick, Seat #3
Yes
Councilmember Hinson, Seat #4
Yes
Councilmember Sturno, Seat #5
Yes
Passed upon first reading this 18th day of June, 2008.
It was moved by Councilmember Hinson and seconded by Councilmember Goudie that
said Ordinance be adopted on second reading. A roll call vote of the Town Council on said
motion resulted as follows:
Mayor Epps, Seat #1
Yes
Councilmember Goudie, Seat #2
Yes
Vice-Mayor McCormick, Seat #3
Yes
Councilmember Hinson, Seat #4
Yes
Councilmember Sturno, Seat #5
Yes
Passed and Adopted upon second reading this 16th day of July, 2008.
Town of Ponce Inlet, Florida
_________________________
Nancy E. Epps, Mayor
ATTEST:
Kassandra Esposito Blissett
Town Manager/Town Clerk
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