DEPARTMENT OF DEVELOPMENT SERVICES BOARD OF ADJUSTMENT BRIEFING September 20, 2017 Agenda Item B.1

Transcription

1 REQUEST: A request for a special exception to permit a tattoo studio to be located within the CG General Commercial zoning district - Rehearing of a request from May 17, CASE NO: DATE OF BRIEFING: September 12, 2017 Applicant: Location: Zoning: Land Use: Downtown Subdistrict: Background: DEPARTMENT OF DEVELOPMENT SERVICES BOARD OF ADJUSTMENT BRIEFING September 20, 2017 Agenda Item B.1 David Cox, Agent 37 South Atlantic Avenue CG General Commercial General Commercial Downtown Core This request is a rehearing of a special exception request brought before the Board on May 17, 2017, which if approved at this hearing, would allow a tattoo studio to be located at 37 South Atlantic Avenue. This rehearing is the result of receiving new information related to the siting of tattoo studios within municipalities. According to the City s Land Development Code (LDC) Section 2-11.E.13, a tattoo studio is a permitted use within the CG zoning district upon approval of a special exception. Among the criteria for consideration of approval is that, in the absence of compelling justification otherwise, the distance is to be at least 2,000 feet from an existing tattoo studio. In this instance, the proposed location is 1,730 feet from an existing studio. At the hearing in May the request was denied based on this distance provision of the code. After the hearing an appeal of the Board s decision was filed by the applicant in accordance with the requirements of city codes and Florida law. Evidence presented within the appeal related to case law, most specifically Buehrle v. City of Key West, where the court found that tattooing is a form of artistic expression protected by the First Amendment and any municipal ordinance to restrict location must be narrowly tailored to serve a significant governmental interest. The City of Key West case holds that in order to defend such a restriction on First Amendment activity, the City must show that there was pre-enactment evidence that the restriction was necessary when the restriction was put in the city code. In fact, upon examination, there had not been the required pre-enactment evidence presented when the City mandated the 2,000 foot distance requirement. Based on the evidence presented within the appeal, the City Attorney responded with the opinion that the City s ordinance, as it relates to the imposition of a 2,000 foot distance requirement, is constitutionally infirm and unenforceable, and recommended approval of the special exception for the siting of a tattoo studio at 37 South Atlantic Avenue. This response was forwarded to the assigned Special Magistrate with a request to waive further proceedings and make a recommendation based the written evidence. The matter is now

2 being returned to the Board of Adjustment with the recommendation that, since the 2,000 foot distance requirement is not enforceable under current applicable case law, the special exception be granted. Included within this briefing are the original special exception request application and letter of intent. The applicable sections of the City s LDC are also included. Each of the appeal documents referenced above is provided as an addendum. Attachments: Attachment A Special Exception Request Application Attachment B Letter of Intent Attachment C Applicable LDC Sections Addendum Appeal documents Applicant Request for Relief Response of City of Cocoa Beach Applicable case law: Buehrle v. City of Key West Public Comment Written public comments, if any, received as of the date of this briefing are provided with the packet documents. Special Exception Sample Motions Sample motions are provided for form only and are not intended to influence the Board. Conditions are subject to change, per the wishes of the Board. Motion to Approve Special Exception: In Case No , I move to adopt the findings in the staff report and the testimony provided and approve the special exception to allow a tattoo studio to be located at 37 South Atlantic Avenue, within the CG General Commercial zoning district, with the following conditions: 1. Business operations must be in compliance with all local and state regulations. 2. Any building construction or improvements must be in compliance with building department regulations for permitting and licensing. 3. This special exception is location specific and does not transfer, should business operations need to relocate. Motion to Deny Special Exception: In Case No , I move to deny the special exception request due to the fact that the applicant has not satisfactorily demonstrated that all required standards to grant a special exception have been met.

3 ATTACHMENT A Special Exception Request Application

4 ATTACHMENT B Letter of Intent, Pg 1

5 ATTACHMENT B Letter of Intent, Pg 2

6 ATTACHMENT B Letter of Intent, Pg 3

7 ATTACHMENT B Letter of Intent, Pg 4

8 ATTACHMENT B Letter of Intent, Pg 5

9 ATTACHMENT C Applicable LDC Sections CHAPTER II. ZONING DISTRICTS Section General provisions applicable to all commercial zoning districts E. Special Exceptions. After public notice and hearing and subject to appropriate conditions and safeguards, the board of adjustment may permit the following as special exceptions: 13. Tattoo studios and body-piercing salons. When considering an application for tattoo studios and body-piercing salons, the board must consider the special exception criteria listed below, in addition to that criteria listed in section 4-48C. a. Whether the request will cause damage, hazard, nuisance or other detriment to persons or property. b. No new or relocated tattoo studio or body-piercing salon should be placed within two thousand (2,000) feet of any lawfully existing tattoo studio or body-piercing salon establishment. This distance shall be measured from any public entrance or exit of the new or relocated establishment in a straight line of the existing establishment. The board may consider establishments be located closer than the two thousand-foot standard, if by the preponderance of evidence such new or relocated establishment promotes the welfare of the community and serves to promote the preamble to the City Charter. c. Any other issue that is reasonably related to the nature of the request. d. If the owner of a currently existing tattoo studio or body-piercing salon, as of August 20, 2009, loses his lease or use of his building or building location through no fault of his own and is unable to find a comparable replacement site two thousand (2,000) feet from another tattoo studio or body-piercing salon, then, in such circumstances if properly established, the board shall allow such an owner to relocate to another site that may be within two thousand (2,000) feet of an existing tattoo studio or bodypiercing salon. This provision is not applicable to owners subsequent to August 20, 2009 to include those who may acquire a corporately owned tattoo studio or bodypiercing salon. CHAPTER IV. APPLICATION AND REVIEW PROCESSES Section Conditions governing application and procedures. The board of adjustment shall hear and decide on only such special exceptions as they are specifically authorized to vote on by the terms of these LDC regulations; to ask such questions as are needed to determine whether special exceptions should be granted; and to grant special exceptions with such conditions and safeguards as are appropriate to protect the health and safety of the residents and uphold the provisions of the LDC regulations, or to deny special exceptions when not in harmony with the purpose and intent of these LDC regulations.

10 Special exception: This is a non-permitted "use" of a property which is only granted after approval by the board of adjustment when it has been determined to be compatible with the permitted use(s) on a property in a specific zoning district and it is found to not be detrimental to the surrounding properties, businesses, traffic-flows or area, to the extent that such special exception is consistent with the Comprehensive Plan and City Charter. Section Application for a special exception. A. A special exception must only be considered by the board of adjustment when a sufficient application has been submitted indicating the section of the LDC regulations under which the special exception is sought, and the grounds on which it is requested. B. After receipt of a sufficient application, the request must be scheduled for public hearing before the board of adjustment as expeditiously as possible, and no sooner than forty-five (45) days from the date of submission. C. The applicant shall provide sufficient information to staff to clearly show the board of adjustment that the four (4) requirements for authorizing a special exception listed below have been met: 1. The board of adjustment is empowered, under the section of the LDC regulations described in the application to grant the special exception. 2. The request is in harmony with the purpose and intent of the LDC regulations. 3. The request is consistent with the Comprehensive Plan. 4. The granting of the special exception will not adversely affect the public interest. D. In granting the special exception, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with these LDC regulations. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall be deemed a violation of and punishable under the LDC regulations. E. The board of adjustment shall prescribe a time limit which in no event shall be greater than twenty-four (24) months, within which the action for which the special exception is required, shall be started and diligently pursued to completion without cessation of thirty (30) days or more. Failure to begin such action within the time limit shall void the special exception. F. Appeals to decisions made or actions taken by the board of adjustment shall be as defined below in section 4-52 of this chapter, or as further defined by chapter I, article IX as appropriate.