TOWN OF I N D I A L A N T I C
BOARD OF ADJUSTMENT MEETING
MINUTES NO. 01-04
PRESENT: Robin Petersen, Chairman
Gus Carey, Member
Brian Dullaghan, Vice Chairman
Ray Disher, Member
George Gergora, 1st Alternate
Brian Low, 2nd Alternate
Paul Gougelman, Town Attorney
Stan Krulikowski, Building Official
Barbara Brownlie, Secretary
ABSENT: John Allen, Member (excused)
This meeting was tape recorded. Records are indexed and filed for ready reference where such have been summarized in typed minutes.
1. CALL TO ORDER AT 5:30 PM
2. APPROVAL OF PRIOR MEETING MINUTES
Mr. Disher moved to approve Minutes No. 01-03.
Mr. Petersen requested that Mr. Gergora’s statement that he would not have voted for the variance if he had been aware that Dr. Boozer owned three contiguous lots be included in the record.
Mr. Dullaghan seconded the motion as amended. Motion carried unanimously.
3. VARIANCE REQUEST
A. A request filed by the Town of Indialantic, regarding Lot 1, 2, 27, and 28, Block 3, Plat Book 3, Page 3, Public Records of Brevard County, Florida located at the SW corner of Riverside Dr. and Fifth Ave., Indialantic. The request has been filed to cancel variances issued April 28, 1998 to Code Section 17-126(8) - Setbacks and 17-126(11) - Offstreet Parking.
Mr. Chinault gave background on the request. He explained that the variances were approved based on the improvements that might have been necessary for the right hand turn lane at Fifth Ave. and Riverside Dr. He added that circumstances have changed, different arrangements have been made and the variances were no longer needed. He advised that both parties have requested that they be vacated.
Mr. Chinault explained that a protest e-mail received from Charles D. Miller was relevant to several other projects being considered for this intersection.
Mr. Chinault advised that the changed circumstances included a cooperation agreement approved by the Council between Suntree Investment Properties and the Town and the completion of the transfer of the property to FDOT for construction of the right hand turn lane.
Attorney Gougelman clarified that the board does have the authority to rescind variances provided the property owner is in agreement.
Mr. Disher moved that the Board cancel and rescind the two variances issued April 28, 1998 to Suntree Investment Properties with regard to Code Sections 17-126(8) and 17-126(11). Mr. Dullaghan seconded. Motion carried unanimously.
4. CODE INTERPRETATION
A. An interpretation of Code Sections 17-158 –Nonconforming uses and 17-159 – Nonconforming structures requested by A. Van Catterton, Jr., representing the owners of Lots 11-15, Block 78, Indialantic-by-the-Sea.
Mr. Gougelman advised the Board that the applicants’ only recourse in the event of an adverse action would be through the courts and not an appeal to the Town Council.
A. Van Catterton, Jr., attorney representing the property owner Mr. Ray Halbert, requested an interpretation of the Code to find that fences may be considered a nonconforming use under Article IX, Chapter 17 and to find that the fence existing on the property when it was acquired by his client is a nonconforming use and that following its removal for construction purposes, his client is now entitled to replace it in the same location.
Mr. Catterton displayed surveys of the old residence which was demolished and the new construction.
Mr Catterton requested that the following exhibits be entered into the record:
Exhibit A – survey depicting prior structure
Exhibit B – survey depicting new structure
Exhibit C – Indialantic Code Section 17-88. Fences; walls
Exhibit D – Indialantic Code Section 28-65 (1962)
Exhibit E – Indialantic Ordinance No. 81-298, amending Zoning Code regarding fences
Exhibit F – Indialantic Code Article IX. Nonconforming Uses.
Exhibit G – Indialantic Code Sec. 17-4. Definitions.
Exhibit H –Deed to Halbert
Exhibit I – Deed to Penniman
Mr. Catterton stated that his client acquired the property in June 1999. He explained that, at that time, the property was fenced along the perimeter with chain link fencing at varying distances and was in compliance with the 1962 code, but became nonconforming when the code was amended in 1981 to provide setback allowances and other provisions.
Mr. Catterton acknowledged that his clients were willing to forego placing any fencing in the front yard area. He claimed that the existing fence was only temporarily removed for construction vehicle access. He advised that during construction, the contractor came to the Town to discuss the issue of replacing the fence and the request had been declined.
Mr. Catterton called Mr. Silas Ray Halbert, 493 Yonge St., Melbourne, to verify certain facts.
Mr. Halbert verified that he owned the property. He stated his reasons for removing the fence were to provide construction access, to be able to clear the property, the disrepair of the fence and the problems with tree overgrowth. He clarified that it was always his intent to replace the fence.
Mr. Gergora stated that he was familiar with the property and took exception to several facts presented by Mr. Halbert including the need to remove the fence for construction.
In response to a question from Mr. Gergora, Mr. Halbert stated that he did not know if the Town was aware of his intention to replace the fence.
Mr. Disher also observed that it was not necessary to remove the entire fence for construction.
The Building Official could not verify that the replacement fence appeared on the original site plan.
Mr. Gougelman advised that he had had conversations with Town staff and the contractor concerning the temporary construction fence. He added that a replacement fence might have been mentioned in conversation but no details were provided.
Mr. Halbert clarified the location and the purpose of the temporary fence and said that he had relied on the contractor to obtain the permit for the replacement fence.
Mr. Catterton also questioned Ms. Laurie Halbert, 343 Orlando Bv., who has been residing in the subject property since June 2001. She also maintained that the removal of the original fence was only temporary and that they planned to replace it with a four foot black ornamental iron fence.
Ms. Halbert further noted that the safety of her child and privacy are an issue.
Mr. Catterton maintained that he felt the word “fence” was inadvertently omitted from the definition of structure and that the existing fence was a nonconforming use, based on its purpose for privacy and protection.
Mr. Catterton said that the temporary removal of the original fence did not constitute the abandonment of the nonconforming use. He added his clients were willing to reduce the nonconformity by eliminating the front yard region and to replace the bare metal with wrought iron. He concluded that the fence should be allowed for both practical and safety concerns and that it should be permitted to be relocated where it was.
Mr. Catterton pointed out what he considered an incongruity in the setback requirement which states that fences should be set back a minimum of 25’ from any lot line abutting a street or from the front lot line of the building whichever is greater.
Mr. Disher pointed out that the owners had created the issue by their placement of the house on the lots.
Mr. Catterton maintained that the orientation of the house was up to the owners’ discretion and that the owner had relied on the contractor to resolve the fence issue.
Mr. Gergora agreed but added that the owners’ discretion must stay within the restrictions of the code and that the ultimate responsibility lies with the owner. He added that the yard could still be fenced, but according to the Code.
Mr. Gougelman reported that the Zoning and Building Board had ruled on a similar corner lot fence situation in October 1998 and determined that a 10’ side setback and 25’ rear setback were allowed.
In response to a question from Mr. Dullaghan, Mr. Catterton said the existing fence was nonconforming in use because it was less than 10’ from the side, it was chain link metal and it extended into the front yard.
Mr. Petersen pointed out that according to Code Section 17-159(3) if a structure is moved for any reason, for any distance whatever, it shall thereafter conform to the regulations of the district to which it is moved. He maintained that the clients moved the fence and it is now subject to the current regulations.
Mr. Catterton maintained that the fence was not moved, but only temporarily removed.
Mr. Chinault stated that the staff’s interpretation of the code was that if the permit requested a fence with a 10’ side setback and a 25’ rear setback and that it was not galvanized chain link it would probably be granted. He advised that this could be augmented with a shrubbery or a berm buffer extending into the right-of-way with Town Council approval.
Mr. Norvin Evans, 330 Cocoa Ave (the adjacent property), said that he was not objecting to the fence. He stated that the existing chain link fence had not been a problem and did not appear to be in poor condition where it had adjoined his property.
Ms. Nancy Evans, 330 Cocoa Ave., felt that the 25’ setback was fair for her and should be fair for everyone.
Joan Sherman, 320 Cocoa Ave., clarified that the chain link fence had been there since approximately 1962 and was removed December 1999.
Mr. Catterton further explained that the temporary construction fence was in no way a substitute for the fence his clients had intended to replace and thus the removal of the original fence was not an issue.
Mr. Petersen pointed out that the interest of the Code is to provide for a community open with air and light and to cut down on barriers.
Mr. Catterton restated that this was a 4’ ornamental iron fence that would act as a breezeway and not interfere with the line of sight. He observed that there are many homes on the north-south streetways throughout the town with nonconforming issues, which have gone unquestioned.
Mr. Gergora challenged the latter conclusion of Mr. Catterton.
Mr. Gergora noted that this is a significant violation of the code and said there was no way for the Board to determine the original intent of the applicants.
Mr. Gergora moved that the Board of Adjustment interpretation of the Code requires a side yard setback of 10’ from the property line on Ramona and a 25’ setback from the property line on Cocoa Ave.
Mr. Dullaghan pointed out that the issue was to interpret the code to determine if a fence is either a nonconforming use or a structure and not to determine what the borderlines can be.
Attorney Gougelman clarified that the Board has the discretion to answer the question as they choose.
Mr. Gergora withdrew his motion.
Mr. Dullaghan moved to interpret Article IX, Section 17 as specifying that fences are not a nonconforming use or structure. Mr. Carey seconded.
Mr. Gergora received clarification from the Town Attorney that the motion would have the effect of requiring a fence with a 10’ side setback and 25’ rear setback.
Motion carried unanimously.
5. ADJOURNMENT
The meeting was adjourned at 7:00 PM.
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Robin Petersen, Chairman
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Barbara Brownlie, Secretary