MINUTES NO. 03-01

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[ Board of Adjustment - Meeting Minutes ]
MINUTES NO. 03-01

PRESENT: Robin Petersen, Chairman

Brian Dullaghan, Vice Chairman

John Allen, Member

Ray Disher, Member

George Gergora, Member

Mike McCabe, 1st Alternate

Paul Gougelman, Town Attorney

Cathy Spafford, Building Official

Barbara Brownlie, Secretary

1. CALL TO ORDER AT 5:30 PM

Mr. Petersen called the meeting to order at 5:30 PM.

2. APPROVAL OF PRIOR MEETING MINUTES

A. Minutes No. 02-08 – September 12, 2002

Mr. Allen moved to approve Minutes No. 02-08. Mr. Dullaghan seconded. Motion carried unanimously.

3. VARIANCE APPLICATIONS

A. Per Section 17-141 of the Indialantic Code of Ordinances, a variance request filed by Gaetano D’Anna regarding the west 125 feet of Lot 13, Blk. 99 and the south 5 feet of Lot 13, excepting the west 125 feet thereof, 1403 S. Miramar Ave. A variance is being requested to Code Section 17-88(1) – Fences; walls – It is the intent of this section to permit the fencing or enclosing of side yards and rear yards only, which rear yard, as defined in Section 17-4(54) of this code is an open occupied space on the same lot with the principal building and extending across the width of the lot, except on corner lots, between the rear lot line and the rear walls or support of the building. The effect of the variance is to allow a fence along the south 5 feet of Lot 13. (Tabled from September 12, 2002).

Mr. D’Anna, 3234 Windsong, Melbourne, acknowledged that Mrs.Bell, owner of the abutting property, had continued her present fence with a chain link addition putting a barrier between the two properties. However, he felt an additional solid fence was still necessary to alleviate the on-going problems with access to the easement.

Attorney Gougelman cited the section of Attorney’s Novak’s memorandum stating that whether the fence is reasonable or necessary is a fact question to be decided by a court. He advised the Board that their jurisdiction was to determine if a hardship existed whereby a variance could be granted. He explained that actually erecting a fence could come to a legal action between the applicant and the objector.

Stewart B. Capps, attorney representing Mrs. Bell, requested that the Board deny the variance based on the following:

Florida law stipulates the easement is for walking only

Mr. D’Anna does not own the property and cannot pull a permit

No hardship exists

The fence will impair the rights of the owner of the adjacent property

Attorney Capps agreed that the remedy is to go through the courts to prove a violation of the prior court order granting the easement.

Mr. Gergora noted that harassment is not a criteria for approving a variance.

Priscilla Bell, 1401 S. Miramar Ave., gave testimony concerning the problems with the use of the easement on her property and her concerns with the proposed fencing.

Mr. D’Anna and his son both cited instances of harassment. Mr. D’Anna entered into the record police reports detailing several incidents.

Attorney Gougelman advised that whether the fence can be put on the property appears to be a question for the courts to resolve.

Mr. Gergora moved to reject the variance request. There was no second.

Mr. Dullaghan moved to grant the variance request. Mr. Disher seconded.

After further discussion, Mr. Disher withdrew his second to the motion.

Mr. Gergora moved to reject the variance request. Mr. Allen seconded. Motion carried with Mr. Petersen, Mr. Allen, Mr. Disher and Mr. Gergora voting “yes.” Mr. Dullaghan voted “no.”

Mr. Petersen advised the applicant of his right to appeal.

B. THE FOLLOWING ITEM HAS BEEN WITHDRAWN BY THE APPLICANT.

Per Section 17-35 and 17-51 of the Indialantic Code of Ordinances, an appeal filed by Attorney Douglas Marks, representing the Cochran Group, regarding Lots 1-4; 9-23; 35-37; 41-56; Block 39, Indialantic by the Sea, bordering on Wavecrest Ave., 8th Ave. and A1A. An appeal is being filed to the final decision of the Zoning and Planning Board denying application for extension of site plan approval according to Code Section 17-129(5).

4. CODE INTERPRETATIONS

A. An interpretation of Code Section 17-159 – Nonconforming Structures requested by Edward J. Krodel, 350 Shannon Ave.

Mr. Krodel explained that he had purchased the property at 350 N. Shannon after discussing his intent to add space with the former building official. He advised that the home sits on a 50’X 100’ lot with a 5.85’ west side setback. His plan is to go up and would not encroach further into the setback.

Building Official Cathy Spafford requested clarification that, although the footprint is staying the same, whether increasing the square footage increases the non-conformity.

Mr. Disher believed that the square footage is not the problem and does not increase the non-conformity.

In answer to questions from the Board, Mr. Krodel said that he could maintain a 10’ set back on the addition, but that structurally and aesthetically it would be better to follow the same footprint.

Attorney Gougelman noted that there are two contrasting views to the situation – more of a structure means more of a non-conformity or that building up does not increase the non-conformity which in this case is the side set-back.

John B MacNeill, 1320 S. Riverside Dr., commented that there is a fine distinction and that there is a perception that increasing volume increases the non-conformity. He also questioned the aesthetic effect on neighboring properties.

Mr. Krodel pointed out that the neighboring house is 80 feet from his property.

Mr. Gougelman pointed out that if the Board rules adversely as to the interpretation, the applicant could come back and apply for a variance.

Mr. Dullaghan moved to interpret Code Section 17-159 as meaning that the footprint of the structure should be the criteria to determine the non-conformity. Mr. Disher seconded.

Mr. Gergora warned against setting a precedent and noted that an interpretation sets the law.

Mr. Allen agreed it was a large precedent as the Town is entering a period of much re-building.

Motion passed with Mr. Petersen, Mr. Dullaghan and Mr. Disher voting “yes.” Mr. Allen and Mr. Gergora voted “no.”

Attorney Gougelman advised that the Board had handed down a binding interpretation which would be good so long as it was not reversed or the code was amended by the Town Council.

It was clarified for Mr. Gergora that the issue could be presented to the Town Council for future action.

B. An Interpretation of Code Section 17-126 – “C” and “C-1” Commercial Districts – (3)(p) – dance hall as a prohibited use requested by the Building Official

Ms. Spafford explained that she had been contacted about opening a ballroom dancing instruction studio in the commercial district. She noted that the intent was to give dance lessons with periodic get-togethers to display what had been learned.

Ms. Spafford pointed out that the code prohibits “dance hall” and requested an interpretation of the definition.

The Board accepted the definition of a dance hall as a building with facilities for dancing.

Mr. Allen moved to interpret the Code as meaning that a dance instruction studio is defined as a dance hall and a prohibited use in the commercial district. Mr. Dullaghan seconded. Motion carried unanimously.

5. ADJOURNMENT

The meeting was adjourned at 6:45 PM.

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Robin Petersen, Chairman

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Barbara Brownlie, Secretary