CITY MANAGER MEMORANDUM

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1 CITY MANAGER MEMORANDUM To: Honorable Mayor Kelley and City Commissioners Through: Joyce A. Shanahan, City Manager From: Ric Goss, AICP, Planning Director Date: March 3, 2011 Subject: Former Wendy s Restaurant/Gas Station (1561 North US1) and Portion of Rosemary Street and Atlantic Road, Annexation Introduction: This is a request for the annexation of the property at 1561 North US1, the former Wendy s restaurant and gas station, containing acres, the Rosemary Street right-of-way, acres, and a portion of the Atlantic Road rightof-way of acres. Discussion: Chapter 171 of the Florida Statutes contains specific requirements that govern the process of incorporating lands located in an unincorporated area of the County into a municipality. It is staff s determination that the proposed annexation complies with all Florida Statutes, and is within the City s utility service area with existing utility connections. The 1561 North US1 property is located on the east side of North US1 and abuts the on-ramp for Interstate 95. The predominant City land use in this area is Highway Tourist Commercial. The Highway Tourist Commercial extends both north and south of the I-95 interchange, approximately 4,500 linear feet along US1. The Volusia County land use in this area is Commercial which allows a variety of uses. The City has existing water and sewer service in the North US1 corridor. The Rosemary rightof-way (ROW) provides access to the 1561 North US1 site, the Cheaters property at 1545 North US1, and the Econo Inn and Comfort Suites at 1567 and 1571 North US1, respectively. The portion of Atlantic Avenue in the annexation area has nonroadway improvements, such as a retention pond. There is potential for this portion of Atlantic Avenue to be vacated in the future. The 1561 North US1 property is contiguous to Ormond Beach along the southern portion of the site for approximately 210 linear feet of the site and the western portion of the site for approximately 325 linear feet. The 1561 North US1 property is compact and already has City utility services. There is no part of the property that is located within the boundary of another incorporated municipality. Additionally, the property is within the City s utility service area. The area proposed for annexation meets the criteria in Section of Florida Statutes. There is an existing 4 force main and an 8 water main along North US 1 to provide service to this property. In 2000, the property connected to City water services with a 2 water line. The annexation would not impact the provision of existing utility [CM Memo North US1, Rosemary Street, and portion of Atlantic Road, Annexation.doc]

2 Honorable Mayor Kelley and City Commissioners March 3, 2011 Page 2 of 2 services. There is adequate capacity in the provision of water and sewer to serve this development with existing infrastructure. Land Use and Zoning: Adjacent land uses and zoning are as follows: Land Use and Zoning Designations of Adjacent Property Future Land Use Current Land Uses Designation Zoning North I-95 NA NA South East West Across Rosemary Street, Cheaters Econo Inn and Comfort Suites Fruit Stand & Sunoco/ Waffle House / Vacant Gas Station Volusia County Commercial Volusia County Commercial Volusia County Commercial Volusia County B-6 (Highway Interchange Commercial) Volusia County B-6 (Highway Interchange Commercial) Volusia County B-6 (Highway Interchange Commercial) Recommendation: It is recommended that the City Commission approve the annexation of 1561 North US1, the former Wendy s restaurant and gas station, containing acres, a portion of the Rosemary Street right-of-way, acres, and a portion of the Atlantic Road right-of-way of acres, based on the following: 1. The subject property is within the City s utility service area and has existing City of Ormond Beach utilities. 2. The subject property is contiguous to the city limits along the southern and western property boundaries. 3. There is adequate city infrastructure to serve the project. 4. The annexation is consistent with the required Florida Statutes. Reviewed by: /s/ 03/03/2011 Theodore S. MacLeod, P.E. Date Assistant City Manager Approved by: /s/ 03/03/2011 Joyce A. Shanahan, City Manager Date Prepared by: Steven Spraker, AICP, Senior Planner [CM Memo North US1, Rosemary Street, and portion of Atlantic Road, Annexation.doc]

3 ORDINANCE NO AN ORDINANCE ANNEXING CERTAIN REAL PROPERTY INTO THE CITY OF ORMOND BEACH, SAID PROPERTY BEING GENERALLY LOCATED ALONG THE EAST SIDE OF NORTH U.S. HIGHWAY 1 ADJACENT TO THE NORTHBOUND ENTRANCE TO INTERSTATE 95 AND BEING COMMONLY LOCATED AT 1561 NORTH U.S. HIGHWAY 1, INCLUDING A PORTION OF ROSEMARY STREET; REDEFINING THE TERRITORIAL BOUNDARIES OF THE CITY OF ORMOND BEACH TO INCLUDE THE PROPERTY; REDESIGNATING THE BOUNDARIES OF ZONE 1 OF THE CITY OF ORMOND BEACH TO INCLUDE THE PROPERTY; PROVIDING FOR TRANSMISSION; PROVIDING FOR SEVERABILITY; AND SETTING FORTH AN EFFECTIVE DATE. WHEREAS, Wendy's International, Inc., an Ohio corporation and subsidiary of Wendy's/Arby's Group, Inc., a Georgia corporation authorized to do business in the State of Florida, is the fee simple owner of certain real property in unincorporated Volusia County, Florida, depicted and described in Exhibit "A" attached hereto, excluding Rosemary Street ( the Property ); and WHEREAS, the Property is generally located along the east side of North U.S. Highway 1 adjacent to the northbound entrance to Interstate 95 and being commonly located at 1561 North U.S. Highway 1, and abuts a portion of Rosemary Street; and WHEREAS, the annexation of the Property is a voluntary annexation under the authority of Section , Florida Statutes; and S:\CITY COMMISSION ITEMS\ORDINANCE\2011\ \11-009RC N US1 WENDYS INTERNATIONAL VOLUNTARY ANNEXATION P11-033G.DOC/3/15/2011 4:49:33 PM -1-

4 WHEREAS, annexation as a condition of municipal utility connection is authorized by Section (3), Florida Statutes, and the home rule constitutional and proprietary powers of the City; and WHEREAS, Goal 5, Policy of the Future Land Use Element of the City s Comprehensive Land Use Plan provides that the provision of utility service to property in the unincorporated County shall be conditioned upon the annexation of the property when it becomes contiguous to the City s boundaries; and WHEREAS, consent to annexation by a connecting property owner is required for connections to City utilities by Chapter 3, Article V, Section 3-61(B)(2)(b) and (c) of the City s Land Development Code (formerly Ordinance of the City of Ormond Beach, which was initially adopted and made effective on August 20, 1991); and WHEREAS, the connection of a property to City utilities constitutes the consent of the property owner to the annexation of the property when it becomes contiguous to the City s boundaries; and WHEREAS, the City Commission of the City of Ormond Beach desires to exercise its statutory power to annex the Property; now therefore, BE IT ENACTED BY THE PEOPLE OF THE CITY OF ORMOND BEACH, FLORIDA, THAT: S:\CITY COMMISSION ITEMS\ORDINANCE\2011\ \11-009RC N US1 WENDYS INTERNATIONAL VOLUNTARY ANNEXATION P11-033G.DOC/3/15/2011 4:49:33 PM -2-

5 following findings: SECTION ONE. The City Commission of the City of Ormond Beach makes the (a) Wendy s International, Inc., is the fee simple owner of the Property as evidenced by that Special Warranty Deed recorded at Book 6398, Pages , Public Records of Volusia County, Florida, a copy being attached hereto as Exhibit B. (b) The City and County entered into an agreement in 1991 providing to the City the exclusive right to provide potable water and sewer services to properties in the unincorporated area of the County along the N. U.S.1 corridor, a copy of the agreement being attached hereto as Exhibit C ; (c) Goal 5, Policy of the Future land Use Element of the City s Comprehensive Land Use Plan provides that the provision of utility service to property in the unincorporated area of the County shall be conditioned upon the annexation of the property when it becomes contiguous to the City s boundaries; and (d) The City s utility connection regulations, section 3-61(B)(2)(b) and (c) of the City s Land Development Code (formerly Ordinance of the City of Ormond Beach, initially adopted and made effective August 20, 1991), require that as a condition to connecting to City utilities, a property in the unincorporated area of the County must be annexed when it becomes contiguous to the City s boundaries; (e) (f) Connection of a property to City utilities constitutes implied consent by the property owner to the annexation of the property; The County of Volusia approved a Final Site Plan Development Order on December 14, 1990 for the development of Wendy s-sugar Creek project on the Property, a copy being attached hereto as Exhibit D ; and entered into a Utility Service Agreement with Wendcreek Venture on April 16, 1991 regarding the provision of interim and permanent utility services, a copy being attached hereto as Exhibit E. The Final Site Plan Development Order and Utility Service Agreement required the abandonment of interim on-site utility service and connection to central potable water and sewer S:\CITY COMMISSION ITEMS\ORDINANCE\2011\ \11-009RC N US1 WENDYS INTERNATIONAL VOLUNTARY ANNEXATION P11-033G.DOC/3/15/2011 4:49:33 PM -3-

6 facilities on a permanent basis when central utility facilities became available; (g) The County informed Wendcreek Venture by certified letter dated January 5, 1999, a copy being attached hereto as Exhibit F, that the City s central utility services were available, that use of the on-site utility facilities had to be abandoned, and that connection to the City s available central utility facilities must be completed within ninety days. (h) The Property was connected to City utilities in the year 2000, however it was not eligible to be annexed because it was not contiguous to the City s boundaries. Wendcreek Ventures had actual or imputed knowledge of City Ordinance and the utility connection regulations therein, and upon connection to and acceptance of City utility service, accepted the conditions upon which utility service was provided, including the duty to submit to voluntary annexation when the Property became contiguous to the City s boundaries. The connection of the Property to City utilities constituted implied consent by the property owner to the annexation of the Property when it became contiguous; (i) (j) As a result of the annexations of those real properties described and depicted in Ordinance (1545 Ormond Beach, LLC, a foreign limited liability company property), and in Ordinance (EMAC US 1, LLC, a Florida limited liability company property) the Property has now become contiguous to the City; The annexation of the Property complies with the requirements of the City for utility extension and connection pursuant to section (3), Florida Statutes; Goal 5, Policy of the Future land Use Element of the City s Comprehensive Land Use Plan; and Chapter 3, Article V, Section 3-61(B)(2)(b) and (c) of the City s Land Development Code (formerly Ordinance of the City of Ormond Beach, initially adopted and made effective August 20, 1991); (k) The Property is reasonably compact and does not create any enclaves of unincorporated territory in Volusia County. S:\CITY COMMISSION ITEMS\ORDINANCE\2011\ \11-009RC N US1 WENDYS INTERNATIONAL VOLUNTARY ANNEXATION P11-033G.DOC/3/15/2011 4:49:33 PM -4-

7 SECTION TWO. The Property depicted and described in Exhibit "A" is hereby annexed into the City of Ormond Beach, Florida, and the municipal boundary lines of the City are hereby changed to include the Property. SECTION THREE. Upon the effective date of the annexation of the Property, and except as may be otherwise provided by law, the Property shall be subject to all laws, ordinances and regulations of the City of Ormond Beach; shall be entitled to the same privileges and benefits as other lands in the City; and shall be subject to the taxes and debts of the City, including municipal ad valorem taxes as provided by Section (1), Florida Statutes. SECTION FOUR. The boundary of City Commission Zone 1 is hereby redefined to include the Property. SECTION FIVE. The City Clerk is hereby authorized and directed to provide a certified copy of this Ordinance to the County Manager of Volusia County, the Clerk of Circuit Court in and for Volusia County, and the Department of State for the State of Florida, within seven (7) days of the adoption of this Ordinance as required by Section (3), Florida Statutes. SECTION SIX. In the event any section or provision of this Ordinance is declared by a court of competent jurisdiction to be unconstitutional or invalid, such declaration shall not be deemed to affect the validity of this Ordinance as a whole or any other section or provision hereof. S:\CITY COMMISSION ITEMS\ORDINANCE\2011\ \11-009RC N US1 WENDYS INTERNATIONAL VOLUNTARY ANNEXATION P11-033G.DOC/3/15/2011 4:49:33 PM -5-

8 SECTION SEVEN. This Ordinance shall be effective immediately upon its adoption. PASSED UPON at the first reading of the City Commission, this 8th day of March, st day of March, PASSED UPON at the second and final reading of the City Commission, this ATTEST: ED KELLEY Mayor VERONICA PATTERSON City Clerk S:\CITY COMMISSION ITEMS\ORDINANCE\2011\ \11-009RC N US1 WENDYS INTERNATIONAL VOLUNTARY ANNEXATION P11-033G.DOC/3/15/2011 4:49:33 PM -6-

9 EXHIBIT "A" PAGE 1 OF 4 LEGAL DESCRIPTION PARCEL ID: ADDRESS: 1561 N US HWY 1 ORMOND BEACH, FL OWNER: WENDY'S INTERNATIONAL, INC. BLOCK 17, EXCEPT THAT PART TAKEN BY U.S. NO. 1 AND INTERSTATE HIGHWAY NO. 95, NATIONAL GARDENS AS RECORDED IN MAP BOOK 10, PAGES , INCLUSIVE, OF THE PUBLIC RECORDS OF VOLUSIA COUNTY, FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID BLOCK 17; THENCE SOUTH 40 DEGREES 15 MINUTES 10 SECONDS WEST ALONG THE NORTHERLY RIGHT-OF-WAY OF ROSEMARY STREET HAVING A 60 FOOT RIGHT-OF-WAY, BEING ALSO THE SOUTHERLY LINE OF SAID BLOCK 17, FEET TO A POINT IN THE EASTERLY RIGHT-OF-WAY OF U.S. NO. 1 BEING A 160 FOOT RIGHT-OF-WAY THENCE NORTH 49 DEGREES 55 MINUTES 20 SECONDS WEST ALONG THE EASTERLY RIGHT-OF-WAY OF SAID U.S. NO. 1, 96.9 FEET TO A POINT IN AFORESAID RIGHT-OF-WAY; THENCE NORTH 40 DEGREES 04 MINUTES 40 SECONDS EAST ALONG THE NEW RIGHT-OF-WAY OF I-95, 23.0 FEET TO A POINT THEREIN: THENCE NORTH 49 DEGREES 55 MINUTES 20 SECONDS WEST ALONG SAID I-95 RIGHT-OF-WAY, FEET TO A POINT THEREIN; THENCE NORTH 12 DEGREES 04 MINUTES 28 SECONDS WEST ALONG SAID RIGHT-OF-WAY, FEET; THENCE NORTH 40 DEGREES 52 MINUTES 45 SECONDS EAST ALONG SAID RIGHT-OF-WAY FEET TO A POINT THEREIN BEING ALSO IN THE WESTERLY RIGHT-OF-WAY OF ATLANTIC ROAD BEING A 60 FOOT RIGHT OF WAY, BEING ALSO IN THE EASTERLY LINE OF BLOCK 17 AFORESAID; THENCE SOUTH 49 DEGREES 29 MINUTES 00 SECONDS EAST ALONG SAID RIGHT-OF-WAY AND SAID EASTERLY LINE OF BLOCK 17, FEET TO THE POINT OF BEGINNING. TOGETHER WITH THE SOUTHWESTERLY FEET OF VACATED ATLANTIC ROAD, A FOOT RIGHT-OF-WAY, ABUTTING THE NORTHEASTERLY LINE THEREOF. CONTAINING 95,348 SQ. FT. OR 2.19 ACRES MARE OR LESS

10 DEPICTION OF WENDY'S SITE EXHIBIT "A" PAGE 2 OF 4

11 EXHIBIT "A" PAGE 3 OF 4 PORTION OF ROSEMARY STREET LEGAL DESCRIPTION AS A POINT OF REFERENCE AND THE POINT OF BEGINNING. COMMENCE AT THE INTERSECTION OF THE SOUTHERLY RIGHT-OF-WAY LINE OF ROSEMARY STREET (A 60 RIGHT-OF-WAY) AND THE EASTERLY RIGHT-OF-WAY LINE OF U.S. HIGHWAY NO. 1 (A 160 RIGHT-OF-WAY): THENCE N40 DEGREES 04 MINUTES 35 SECONDS EAST ALONG THE SOUTHERLY RIGHT-OF-WAY LINE OF ROSEMARY STREET A DISTANCE OF FEET TO A POINT OF INTERSECTION IN THE WESTERLY RIGHT-OF-WAY LINE OF ATLANTIC ROAD (A 60 FOOT RIGHT-OF-WAY); THENCE N49 DEGREES 55 MINUTES 20 SECONDS WEST ALONG SAID RIGHT-OF- WAY OF ATLANTIC ROAD A DISTANCE OF FEET TO A POINT OF INTERSECTION WITH THE NORTHERLY RIGHT-OF-WAY LINE OF ROSEMARY STREET; THENCE S40 DEGREES 04 MINUTES 35 SECONDS WEST ALONG SAID RIGHT-OF-WAY A DISTANCE OF FEET TO A POINT OF INTERSECTION WITH THE EASTERLY RIGHT-OF-WAY LINE OF U.S. HIGHWAY NO. 1; THENCE S49 DEGREES 55 MINUTES 20 SECONDS EAST FEET TO THE POINT OF BEGINNING. CONTAINING 14,170 SQ. FT OR 0.33 ACRES MORE OR LESS

12 PORTION OF ROSEMARY STREET DEPICTION EXHIBIT "A" PAGE 4 OF 4

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