TOWN OF I N D I A L A N T I C
BOARD OF ADJUSTMENT MEETING
MINUTES NO. 01-05
PRESENT: Robin Petersen, Chairman
Brian Dullaghan, Vice Chairman
John Allen, Member
Gus Carey, Member
Ray Disher, Member
Brian Low, 2nd Alternate
Karl Bohne, Town Attorney
Ed Washburn, Town Planner
Stan Krulikowski, Building Official
Barbara Brownlie, Secretary
ABSENT: George Gergora, 1st Alternate (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. 01-04. Mr. Dullaghan seconded. Motion carried unanimously.
3. VARIANCE REQUEST
A. A variance request filed by Djon Pepaj regarding Lots 1-3 and 22-24, Block 21, 249 Fifth Ave. Variances are being requested to the following ordinances: Code Section 17-86(1)(a) Setbacks from state highways; Code Section 17-126(8)(a) Setbacks from street right of way lines; and Code Section 17-132(2) Outdoor Cafés – no seating within 20 feet of a highway. The effect of the variances is to enable the property owner to have an outdoor café for the proposed City Tropics Bistro 3’ back from the sidewalk
Mr. Pepaj gave background on his concept explaining that the variances were necessary in order to accommodate the outdoor café.
Town Manager Chris Chinault noted a correction to the variance requested to Code Section 17-86(1)(a) reducing the distance from 9 to 7 feet and he explained that granting the variances would effectively provide for an outdoor café 3 feet back from the sidewalk.
Mr. Chinault added that the site plan would have to meet all requirements and be approved by the Zoning and Planning Board.
The Board discussed the seating and parking and Mr. Pepaj assured that the requirements would be met.
Mr. Allen commented that the project would be an asset to the Town but questioned the Board’s authority to grant a variance where the hardship was caused by the owner himself.
Attorney Bohne clarified that a hardship caused by the applicant would not meet the burden.
Town Planner Ed Washburn pointed out that Mr. Pepaj is working with an existing building and is confined by that structure and the code, thus creating some degree of hardship.
Attorney Karl Bohne pointed out that Code Section 17-141 (2)(c) permits a variance to be granted based on the unique character of the property which could be construed as the existing structure.
Mr. Washburn clarified that outdoor cafés are permitted in this zoning district under certain circumstances and that the cafe could not be relocated on the site without impacting parking.
The following members of the public spoke in support of Mr. Pepaj’s project:
Mary Sawyer, Flowers for You, 205 Fifth Ave.
Jason Steele, The Steele Company, 333 Fifth Ave.
Don Musillo, American Dream Realty, 241 Fifth Ave.
Richard Hoepper, Sue Ann’s Bakery and Digital Graphics, 300 & 306 Fifth Ave.
Barry Kronman, 1212 So. Riverside Dr.
Larry Maxwell, Space Coast Architects, 333 Fifth Ave.
Bob Barkas, Oceanside Frame It, 237 Fifth Ave.
Gerry Gonsalves, 431 Third Ave.
Rick Bertel, 140 Third Ave.
The Board agreed that City Tropics would be an asset to Fifth Avenue and discussed the difficulties of granting variances within the restrictions of the Code.
Mr. Pepaj requested that the variances be granted based on Code Section 17-141(2)(c).
Mr. Allen moved to grant the 7 foot setback variance to Code Section 17-86(1)(a). Mr. Disher seconded. Motion carried with Mr. Petersen, Mr. Allen, Mr. Carey and Mr. Disher voting “yes.” Mr. Dullaghan voted “no.”
Mr. Carey moved to grant the 12 foot setback variance to Code Section 17-126(8)(a). Mr. Allen seconded. Motion carried with Mr. Petersen, Mr. Allen, Mr. Carey and Mr. Disher voting “yes.” Mr. Dullaghan voted “no.”
Mr. Allen moved to grant the 15 foot setback variance to Code Section 17-132(2). Mr. Disher seconded. Motion carried with Mr. Petersen, Mr. Allen, Mr. Carey and Mr. Disher voting “yes.” Mr. Dullaghan voted “no.”
4. CODE INTERPRETATION
A. An interpretation of Code Section 17-121(1) to determine if the City of Melbourne’s water tower constitutes an essential municipal use and if so to determine if cellular antennas are a customarily incidental accessory use to the water tower.
Attorney Philip Nohrr, representing Cingular Wireless Services, explained that his client was requesting to place an antenna on the water tower located in the Town of Indialantic and owned by the City of Melbourne.
Mr. Nohrr maintained that the water tower does constitute an essential municipal use as it is an essential municipal service, which covers utilities including a telecommunications system. He also pointed out that the Town does place a utility tax on cellular phone communications.
Attorney Nohrr explained that the tower is approximately 135 feet high and that the antenna would be located 126 feet from the ground and not exceed the height of the tower. He pointed out that an existing antenna had been permitted in 1997. He added that his client was willing to erect a houselike structure that would blend into the neighborhood for the necessary accessory equipment. He added that this structure would also be available to other providers.
Mr. Nohrr submitted Cellular Site “Indialantic” Water Tower dated 6/5/01 into the record.
Dory O”Hara, Cingular Wireless, addressed concerns from the Board concerning radiation and electrical fields.
Andy Ortiz, Cingular Wireless project manager, verified that the equipment would generate only 100 watts, well below any dangerous levels.
Mr. Chinault advised that a site plan would need to be submitted and approved by the Zoning and Planning Board. He further explained that the request for the interpretation was to determine how such a public service could be located in a residential district.
Miss O’Hara cited the benefits to the Town as generated through utility taxes and franchise fees in addition to improved cell phone service.
Mr. Washburn pointed out that it is now common practice to co-locate facilities and placing antennas on water towers is probably now viewed as a customary accessory use to a water tower.
Roger Simpson, representing AT&T, stated that his client also attempts to place their antennas on existing structures so as to limit the number of towers in any community.
Mr. Allen moved to interpret Code Section 17-121(1) as allowing that the City of Melbourne’s water tower constitutes an essential municipal use. Mr. Dullaghan seconded. Motion carried unanimously.
Mr. Allen moved that cellular antennas with related storage buildings are customarily incidental accessory uses to water towers. Mr. Dullaghan seconded. Motion carried unanimously.
B. An interpretation of Code Sections 17-125(13)(c)(4) regarding expansion of floor area as a triggering factor to require a buffer wall in the RP zone.
Gerald A. Gonsalves, 431 Third Ave., requested that the Board address the code which requires a wall fence to be installed by the owner of professionally zoned property. Mr. Gonsalves maintained that this particular code section was written in a manner to avoid compliance rather than enforce it and he proceeded to give examples of past selective enforcement.
Mr. Gonsalves complained about the lack of enforcement to require a wall at the professional property located at 442 Fourth Ave., directly behind his own property and gave background on the situation.
Mr. Chinault observed that the code had changed concerning this issue and that that may be the reason for the perceived inequities. He also maintained that the code is now clear concerning block walls and explained that the owner of this particular site is not expanding, but renovating an existing second story and that the wall is not required.
Attorney Bohne clarified that improving an existing second floor does not necessarily constitute expansion and requirements placed on a previous owner do not necessarily apply to the present occupant.
Louis Postma, 112 Fourth Ave., gave history on his own situation with the fence and wall requirement and the apparent lack of a standard application.
Mr. Carey urged the Board to make sure the same requirements apply to everyone.
Mr. Dullaghan moved that Code Section 17-125(13)(c)(4) is clear as printed and that a 10% expansion is the trigger to necessitate a wall. Mr. Disher seconded.
Attorney Bohne clarified that the motion leaves the expansion interpretation to the Building Official.
Motion carried unanimously.
5. ADJOURNMENT
The meeting adjourned at 7:40.
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Robin Petersen, Chairman
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Barbara Brownlie, Secretary