BOARD OF ADJUSTMENT MEETING
MINUTES NO. 03-04
PRESENT: John Allen, Chairman
Brian Dullaghan, Vice Chairman
David Berkman, Member
Ray Disher, Member
George Gergora, Member
Bud Evans, 1st Alternate
Laura Lewandowski, 2nd Alternate
Paul Gougelman, Town Attorney
Cathy Spafford, Building Official
Barbara Brownlie, Secretary
1. CALL TO ORDER AT 5:30 PM
2. APPROVAL OF PRIOR MEETING MINUTES
Mr. Dullaghan moved to approve Minutes 03-03. Mr. Disher seconded. Motion carried unanimously.
Mr. Allen requested that the case for all three issues before the Board be presented at one time in their entirety.
3. APPEAL
Per Sections 17-35 and 17-51 of the Indialantic Code of Ordinances, an appeal filed by Attorney Philip representing Magnolia Key Development, LLC and The Cochran Group, regarding Lots 1-4; 9-23; 35-37 and 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 & Planning Board denying site plan approval based on Code Section 17-127(16) – Breezeways.
4. CODE INTERPRETATION
Per Section 17-50(5) of the Indialantic Code of Ordinances, an interpretation of Code Section 17-127(16) – Breezeways – requested by Attorney Philip representing Magnolia Key Development, LLC and The Cochran Group, as to how it effects property between Hwy A1A and the ocean that is not in single ownership and those parcels of land that do not lay perpendicular to HwyA1A and the ocean.
5. VARIANCE REQUEST
Per Section 17-141 of the Indialantic Code of Ordinances, a variance request files by Attorney Philip representing Magnolia Key Development, LLC and The Cochran Group, regarding Lots 1-4; 9-23; 35-37 and 41-56; Block 39, Indialantic by the Sea, bordering on Wavecrest Ave., 8th Ave. and A1A. A variance is being requested to Code Section 17-127(16) – Breezeways.
Philip Nohrr, 1800 W Hibiscus Blvd., Melbourne, attorney for Magnolia Key Development, LLC presented the case for relief from the breezeway requirement.
Attorney Nohrr entered into the record Applicant’s Exhibit #1 – a diagram of Block 39 depicting the lots and current buildings. He pointed out that the breezeway code was enacted in 1974 and emphasized that the wording of the code had not changed since that time. Attorney Nohrr maintained that the subject property was impacted adversely in maintaining a breezeway by the pre-existing structures.
Attorney Nohrr explained that the Zoning and Planning Board granted site plan approval October 9, 2001 and a six month extension on March 26, 2002. He reported that a second extension was denied on September 24, 2002, but that the breezeway was not then and had never been an issue.
Attorney Nohrr continued that a revised site plan with minor differences was denied by the Zoning and Planning Board on January 16, 2003 and that this was the first time the breezeway violation was raised.
Attorney Nohrr pointed out the inconsistency with approving and denying essentially the same site plan and the financial loss incurred due to the difference in interpreting the breezeway code.
At this point Attorney Nohrr introduced Rochelle Lawandales and entered her credentials as an expert witness into the record as Applicant’s Exhibit #2.
Ms. Lawandales presented an independent evaluation of the project, the breezeway code and how the code has been applied throughout the city in other projects. She concluded that Magnolia Key is consistent with the Comprehensive Plan and Land Development Regulations, meets the breezeway definition and is compatible with the surrounding area.
Ms. Lawandales written report was entered into the record as Applicant’s Exhibit #3.
Attorney Gougelman raised the following issues concerning Ms. Lawandales’ report:
No description was given as to the condominiums cited and they might not have been located within the Town limits, might have been built before the breezeway ordinance was enacted or might have been granted variances
Magnolia Key Parcel A and Parcel B were not identified
The Board of Adjustment had not been requested to rule upon the breezeway issue at prior meetings
If an incorrect decision was made by the Zoning/Planning Board, which can not interpret the code, there was no vested right to be claimed based on a mistake of law
Attorney Nohrr requested that the record of this proceeding include the documents from the Zoning/Planning Board - August 28, 2001 as Applicant’s Exhibit #4:
Part of Ordinance 03-05 approved by the Town Council on March 18, 2003 was read and the Ordinance was entered into the record as Applicant’s Exhibit #5.
The Board members disclosed the following:
John Allen had not discussed the issue with any person other than staff
David Berkman lives up the street from the property and has viewed it
Bud Evans had driven by the property and observed it from the road
Laura Lewandowski passes the property during normal activities
Brian Dullaghan is aware of the property but has not discussed it
Ray Disher has not discussed the issue but is very familiar with the property
Ron Treharne, architect and engineer, testified as to the breezeway conditions of Magnolia Key and other properties in the Tourist Zone. His report “Breezeways in Tourist Zoning in the Town of Indialantic” was entered into the record as Applicant’s Exhibit #6.
Mr. Gougelman clarified that the breezeway ordinance had been adopted in January 1974.
Mr. Treharne explained how the building had been shrunk after an objection had been raised to balconies extending into the breezeway and setbacks and that no special variances were now required.
Mr. Treharne testified that the effect of the outparcels on the site was to limit the amount of land they could use.
Attorney Nohrr requested that the transcript from the January 16, 2003 Zoning/Planning Board meeting be entered into the record as Applicant’s Exhibit #7.
Minutes from Zoning/Planning Board - October 9, 2001 and the Zoning/Planning Board - March 26, 2002 were entered into the record as Applicant’s Exhibit #8.
Mr. Gregory Wood, in property management and finance for the Cochran Group, testified that $242,108.28 had been expended since project approval on October 9, 2001 and that 90% to 100% would be lost if the project were not permitted to proceed.
In closing, Attorney Nohrr requested relief in some form for the dilemma facing his client based on the change of position of the Zoning/Planning Board. He pointed out that his client is being singled out because the breezeway requirement has not been applied to existing projects and that they face practical difficulties because the outparcels block development of their property.
Attorney Nohrr also pointed out how other properties would be precluded from making substantial improvements or rebuilding if the breezeway interpretation as applied to Magnolia Key were allowed to stand.
The Board inquired as to the time frame of the property purchase noting that most was purchased after 1993.
Attorney Gougelman stated that Attorney Nohrr appeared to be injecting a vested rights claim based on the fact that the Zoning/Planning Board had approved the site plan and now shifted its position and based on Mr. Wood’s testimony that some $242,000 had been spent in reliance on the site plan submitted in 2001. Since there was evidence presented as to that fact, Attorney Gougelman requested that these questions be kept open. Attorney Nohrr agreed and advised he would provide the evidence if requested.
The following members of the public addressed the issue:
John B. MacNeill, 1320 S Riverside Dr
Cliff Cook, 401 N Riverside Dr
Shelia Trott, 211 8th Ave
Teresa Dyer, 135 8th Ave who presented a history of the property into the record
Roger Dutton, 50 11th Ave
Maureen Woods, 332 8th Ave, whose purchase of a property at 1010 Wavecrest Ave will be adversely affected by a decision against Magnolia Key
Robert Randazzo, Oceanfront Cottages
Debra Mocny, 409 S Miramar who read a statement from Ralph Carvajal, 115 9th
Karen Turja, 303 Melbourne Ave
Ron Walker, Oceancrest Condos
Peter and Laura Heaton, 404 S Miramar, Unit 1 provided a written statement to the Board
Attorney Nohrr again pointed out the unintended consequences of the breezeway interpretation if it must encompass property not owned by the applicant.
Attorney Gougelman clarified that Attorney Nohrr is seeking an overturn of the Zoning/Plan Board decision denying site plan approval.
In the event that is not granted, Attorney Nohrr requested a variance or a code interpretation allowing the use of lots 49, 50, 51 and 52 of Block 39 to meet the 30% breezeway calculation.
Mr. Gergora observed that no statement was presented to justify how the land has caused a hardship, that the building plan could be manipulated to meet the Code as clarified in Ordinance 03-05 and that economic hardship is not grounds for a variance.
Mr. Berkman agreed that the plan is changeable and no hardship exists.
Mr. Dullaghan stated that the breezeway interpretation is clear and the site plan does not meet the requirement.
Ms. Lewandowski concurred that there is no hardship and saw no precedent on which to base granting a variance.
Mr. Disher said that each case is based on its own merits and that the applicant was not being denied the right to build, but the building size needed to be reduced to meet the breezeway requirement.
The Board also pointed out that the effect on any pre-existing structures in the pursuit of a variance would be determined by their individual circumstances.
Mr. Berkman moved to uphold the decision of the Zoning/Planning Board to deny site plan approval for Magnolia Key. Mr. Dullaghan seconded. Motion carried unanimously.
Mr. Berkman moved to deny the variance request to Code Section 17-127(16) – Breezeways. Mr. Disher seconded. Motion carried unanimously.
The Board discussed the interpretation of the breezeway clause and concurred that, if taken literally, a building is not permitted in the breezeway.
Attorney Nohrr clarified that his question is whether or not the breezeway requirement can be imposed outside of an applicant’s own property lines.
Chairman Allen directed without objection that Attorney Gougelman draft a final order including their code interpretation, denial of the appeal and denial of the variance.
The Board agreed to meet Thursday, April 10, 2003 at 5:30 PM to consider the final order.
6. ADJOURNMENT
The meeting adjourned at 8:45 PM.
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John Allen, Chairman
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Barbara Brownlie, Secretary