TOWN OF I N D I A L A N T I C
BOARD OF ADJUSTMENT MEETING
MINUTES NO. 02-03
|
PRESENT: |
Brian Dullaghan, Vice Chairman John Allen, Member Ray Disher, Member George Gergora, 1st Alternate Brian Low, 2nd Alternate Karl Bohne, Acting Town Attorney Stan Krulikowski, Building Official Barbara Brownlie, Secretary |
|
ABSENT: |
Gus Carey, Member |
1. CALL TO ORDER AT 5:30 PM
2. APPROVAL OF PRIOR MEETING MINUTES
Mr. Disher moved to approve Minutes No. 02-02. Mr. Dullaghan seconded. Motion carried unanimously.
The order of the agenda was revised by the Board.
3. VARIANCE REQUESTS
C. A variance request filed by Andy and Ben Turse regarding Lot 10 and the north 25’ of Lot 11, Block 67, 1302 S. Riverside Dr. A variance is being requested to Code Section 17-91(1)(A) – no accessory building or accessory structure shall be erected in any front or required side yard. The effect of the variance is to enable the property owner to build a tree fort in the front yard.
Ben Turse, 1302 S. Riverside Dr., stated that he and his brother wanted to build a tree fort in their front yard. Mr. Turse advised that they needed to use the front area because there were no trees in the backyard.
Town Manager Christopher Chinault provided background information on the situation and the code violation notification that resulted in the removal of the tree fort. Mr. Chinault explained that, according to Code, the fort is considered an accessory structure, would require a building permit, would have to meet construction standards and is not permitted in the front yard.
Scott Smith, 321 7th Ave., supported the children and suggested a conditional variance for a specified time period.
The following youngsters were involved with the fort and spoke in support:
Nathan Beam, 300 Ninth Ter.
Kyle Hogan, 509 Sunset Blvd.
Curtis Slechta, 577 Spindle Palm Dr.
Clay Dunn Roberts 288 S. Ramona
Linda Zell, 222 First Ave., urged the Board not to set a precedent for an accessory building and suggested the children put their efforts into constructing a fort within the Code.
Duane Seig, owner of the adjacent property at 1304 S. Riverside Dr., felt that granting the variance would be inappropriate and that the fort could be built elsewhere on the property. Mr. Seig also stipulated that his letter previously addressed to the Board was no longer applicable as it referred to the structure that had been removed.
Yvonne Bywater, 909 S. Ramona, supported the children and the variance request.
Karen Maltese, 1110 S. Magnolia Dr., supported granting the variance.
Patrick Mauch, owner of the Ocean View Diner, proposed a provisional variance to be re-evaluated at a set time.
Robert Randazzo, 612 Wavecrest Ave., agreed with permitting a tree fort.
Linda Laibl Paige, 1419 S. Riverside Dr., observed that there is no hardship that should allow a breach in the integrity of the Code.
Sara Turse verified that the tree fort has been reconstructed in the back yard.
Mike McCabe, 900 S. Miramar, received clarification on an accessory structure and pointed out that the homes along Riverside are set back a distance from the road.
Andrea Deratany, 1216 S. Riverside Dr., presented recent photographs for the record and protested the variance based on the fact that there is no hardship.
The Board discussed the application and the importance of enforcing the Codes in the absence of a hardship.
Mr. Gergora moved to deny the request based on the requirements of Code Sec. 17-91 (1). Mr. Dullaghan seconded. Motion carried unanimously.
The applicant and aggrieved parties were advised of the right to appeal.
D. A variance request filed by John and Sara Turse regarding Lot 10 and the north 25’ of Lot 11, Block 67, 1302 S. Riverside Dr. A variance is being requested to Code Section 17-88(2)(a) – Fences; walls – no fence, wall or partial fence or partial wall shall be constructed on front lot lines, nor in the front setback region. The effect of the variance is to permit a fence in the front setback region.
John Turse, 1302 S. Riverside Dr., maintained that a hardship exists based on ongoing problems with the neighbors.
Daniel Zell, 222 First Ave., added his support for the kids of Indialantic.
Sara Turse stated that there is confusion over the property line and a fence would solve the conflict with the neighbor.
Town Manager Chinault clarified that the intent of the Code is to prohibit fences in front yards.
Andrea Deratany opposed granting the variance and offered to work with her neighbor in replacing the natural vegetative buffer between the properties.
Mr. Gergora moved to deny the variance request citing Code Sec.17-88(2). Mr. Dullaghan seconded. Motion carried unanimously.
The applicant and aggrieved parties were advised of the right to appeal.
A. A variance request filed by Douglas Marks representing the Cochran Group regarding lots 1-4 and 51-56, Block 39, Wavecrest Ave. A variance is being requested to Code Section 6-30(c)(1) – no major structure may be constructed seaward of the Brevard County Coastal Construction Control Line without a variance being granted.
Attorney Doug Marks provided a history on the project noting that the Zoning and Planning Board had granted site plan approval on October 9, 2001 subject to obtaining the variances sought tonight.
Mr. Marks explained that the lots not cited in this request had been approved for a Coastal Construction Control Line (CCCL) variance in March 1993. He provided a letter from Bussen-Mayer Engineering Group indicating the structure will not jeopardize the dune system, will not accelerate erosion or harm the sea turtles and will not endanger adjacent properties. Mr. Marks also pointed out that existing structures have caused no damage.
Mr. Chinault verified that a number of CCCL variances had been granted in this area and that the Town noted no reason for denial.
Mr. Gergora questioned the burden of proof required to permit a CCCL variance.
Mr. Marks maintained that the letter from the engineer should be sufficient proof.
The Board discussed the use of the differing setbacks on Wavecrest Ave. for the two separate buildings (one 20’ for the side and the other 25’ for the front) and questioned why they were not consistent and how this affected the breezeway requirement
Engineer Scott Nickle clarified that the building orientation is the choice of the developer and that is what determines how the setbacks are applied.
Attorney Marks pointed out that the Zoning and Planning Board had discussed these issues in depth and approved the site plan.
Attorney Bohne clarified that the Code allows reasonable conditions to be applied to variance approval.
Attorney Marks maintained the position that it would be beyond the jurisdiction of this Board to vary the conditions of an approved site plan.
Attorney Bohne clarified that the power granted to one board cannot be usurped by another board.
Peter Heaton, 404 S. Miramar Ave. Unit 1, read a statement protesting the variance and questioned the approval procedure.
Attorney Bohne clarified for Patrick Mauch that a CCCL variance differs from a Code variance in that it is not necessary to show a hardship.
The Town Manager clarified for Jack Baghdassarian, 700 Wavecrest Ave., that an office is a permitted use in the “T“ zoning district.
Carol Andren, 906 S. Ramona Ave., expressed concern with the approval procedure and questioned the rationale of an approved variance staying with the land and not being contingent on a certain site plan.
Atorney Bohne clarified that a variance is attached to a property.
Robert Randazzo claimed that his property is being surrounded by the proposed project and will be caused harm by such a massive structure that uses his property as a breezeway.
Bruce Armstrong, an Indialantic resident, observed that the property was bought with restrictions that the purchasers are now trying to remove and suggested an independent engineer be engaged to determine the project’s impact.
Wendy and David Adamosky, 106 10th Ave. and owners of property on A1A, protested granting the variance and urged the Board to consider the impact on the people in the immediate vicinity.
Scott Smith spoke against granting the variance.
Louis Postma, 112 4th Ave., disagreed that denying the variance is depriving the owner of the right to build.
Peter Heaton urged denial based on non-compliance with the conditions outlined in Code Sec. 6-30.
Rose Marie Coplan, 100 8th Ave., maintained there is a conflict of interest with a mayor challenging the codes of the Town.
Mr. Baghdassarian pointed out the potential problems with the increased traffic.
Chairman Petersen pointed out that Code Sec. 6-30(c)(2) e allows the Board to grant a variance with conditions that they deem necessary to maintain the purpose and intent of the Code.
Attorney Marks advised the Board that the required construction permit from DEP would require an extensive submittal process.
Mr. Gergora moved to reject the application for variance based on Code Sec. 6-30(2)(a).
Attorney Bohne clarified that the burden of proof is based on the preponderance of evidence.
There was no second to Mr. Gergora’s motion.
Mr. Disher moved that the variance be approved contingent upon the side yard set back on Parcel A be 25’ on Wavecrest Ave consistent with Parcel B to agree with the intent of the CCCL. Mr. Dullaghan seconded.
Motion carried with Mr. Petersen, Mr. Dullaghan, Mr. Allen and Mr. Disher voting “yes.” Mr. Gergora voted “no.”
Mr. Petersen advised the applicant and any aggrieved party of the right to appeal.
B. A variance request filed by Douglas Marks representing the Cochran Group regarding Lots 1-4, 9-23, 35-37, & 41-56, Block 39, Wavecrest Ave. A variance is being requested to Code Section 17-127(5) – Front yards shall not be less than twenty-five (25) feet in depth. The effect of the variance is to allow a balcony extending into the front set back area. A variance also is being requested to Section 17-127(6) - Side yards on interior lots shall not be less than ten (10) feet in depth on each side. Side yards on corner lots shall not be less than twenty (20) feet on the street side. The effect of the variance is to allow balconies extending into the side yard set back. A variance is also being requested to Sections 17-127(16) – Breezeways are defined as a clear, open, vertical area free of any construction. The effect of the variance is to allow balconies to extend into the breezeway area.
Attorney Marks stated that a building is going to be built and the issue is what kind of building will be constructed. He presented two illustrations depicting the building with and without balconies.
Attorney Marks observed that the building with balconies is far more aesthetically pleasing and will create no functional impairment of the breezeway. He advised that DEP allows open air balconies into the breezeways.
He maintained that it would be an unnecessary hardship to require the builder to build something less attractive and less marketable and that no functional purpose is served by eliminating the balconies that would not adversely affect anyone.
Attorney Marks clarified that deed restrictions or condominium documents would prohibit enclosing the balconies in any way.
Attorney Bohne clarified that condo docs can be amended by the homeowners.
Chairman Petersen questioned why the building footprint could not be changed to encompass the balconies without a variance and observed that the balconies are a design choice and not a necessity.
Attorney Marks explained that the lot is very irregularly shaped and that the footprint is necessary to support the underground parking.
Scott Nickle, project engineer, pointed out that the balcony partitions would not interfere with the breezeway which runs along the north and south sides of the building.
The Town Manager clarified that if the revised breezeway ordinance moving the line from A1A to Wavecrest had been approved a variance would not be required.
The following members of the public were heard:
Cliff Cook, 401 N Riverside Pl., spoke against granting the variance
Louis Postma, 112 Fourth Ave., spoke against granting the variance
John B. MacNeill, 1302 S Riverside Dr., pointed out a discrepancy with the building illustrations
Mike McCabe, 900 S Miramar, pointed out the conditions imposed by the Zoning & Planning Board
Ralph Carvajal, 115 Ninth Ave., questioned the calculation of the breezeway area
Robert Randazzo spoke against granting the variance as he would be surrounded by the building
Attorney Marks clarified for the Board that the application of the breezeway ordinance had been fully addressed by the Zoning & Planning Board and that this landowner is leaving 30% of his property bare to meet the requirement.
Scott Nickle went over the method used to calculate the breezeway dimensions.
John B. MacNeill, Vice Chairman of the Zoning & Planning Board, reported that the breezeway discussion of that Board was not a unanimous decision
Attorney Bohne clarified that the recourse to possible errors made by the Zoning & Planning Board was through the courts.
Attorney Marks advised that the approval from the Zoning & Planning Board was for a final site plan and not a conceptual plan.
Peter Heaton observed that it is a violation of the required procedure to approve a site plan with no floor plan and that the property was purchased subsequent to the breezeway regulations
Rosemarie Coplan, 100 8th Ave., stated that she had never been notified concerning site plan approval
Robert Randazzo commented on the financial burden to fight in the courts
Susan Webster, 50 11th Ave., questioned the hardship involved
Mr. Bornkessel, 201 7th Ave., suggested that the Cochran Group revamp the plans to build within the confines of the Code keeping the structure aesthetically pleasing
Matt LaBrutte, 310 Melbourne Ave., represented the Indialantic Homeowners Association and expressed concern with consistency in applying the rules
Bill Sidra, 50 11th Ave., questioned the design of the balconies
Steve Fricke, 116 Deland Ave., urged the Board to adhere to the Code
Mr. Allen moved to deny the variance request to Code Sec. 17-127(5) based on Code Sec. 17-141. Mr. Gergora seconded. Motion carried unanimously.
Mr. Allen moved to deny the variance request to Code Sec. 17-127(6) based on Code Sec. 17-141. Mr. Gergora seconded. Motion carried unanimously.
Mr. Allen moved to deny the variance request to Code Sec. 17-127(16) based on Code Sec. 17-141. Mr. Gergora seconded. Motion carried unanimously.
Mr. Peteresen advised the applicant and any aggrieved party of the right to appeal.
4. APPEAL
An appeal to the decision of the Building Official filed by Larry Friedrich concerning Code Section 17-126(1) “C” and “C-1” Commercial Districts – Permitted Uses. The Building Official has determined that a tattoo parlor is not a permitted use in this district.
Larry Friedrich, 1560 Glenhaven Dr., Merritt Island, expressed his intention of operating a tattooing salon at 141 5th St.
Mr. Friedrich maintained that, although the Building Official had determined that this was not a permitted use, a county license had been issued for a tattoo shop at 139 5th Ave., for the past six years.
The Board explained that the county license is not evidence that a city license has been issued and advised the applicant to do more research.
Linda Zell, 222 First Ave., questioned why it was incumbent on the applicant to provide the proof.
Mr. Gergora moved to table this item until the applicant and the Town Manager could do further research on the issue and any licenses issued in the Town. Mr. Dullaghan seconded. Motion carried unanimously.
5. ELECTION OF CHAIRMAN AND VICE CHAIRMAN
Mr. Disher nominated Mr. Petersen as Chairman and Mr. Dullaghan as Vice Chairman.
Mr. Gergora nominated Mr. Disher as Chairman.
Mr. Disher withdrew his name.
Mr. Petersen and Mr. Dullaghan were re-elected with Mr. Petersen, Mr. Dullaghan, Mr. Disher and Mr. Allen voting “yes.” Mr. Gergora voted “no.”,
6. ADJOURNMENT
The meeting was adjourned at 10:00 PM.
____________________________
Robin Petersen, Chairman
______________________________
Barbara Brownlie, Secretary