BOARD OF ADJUSTMENT MEETING
MINUTES NO. 03-07
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
A. Minutes No. 03-06– April 10, 2003
Mr. Dullaghan moved to approve Minutes No. 03-06. Mr. Berkman seconded. Motion carried unanimously.
3. REHEARING REQUEST
A request by Coral Sands of Indialantic, LLC for a rehearing on a variance application regarding Lots 1, 2 and 3, Block 66, 601 N. Miramar Ave. to Code Section 17-92(2) – The elevation of the finished grade of all residential buildings shall not be less than eighteen (18) inches above the elevation of the crown of the street for the principal building and no less than ten (10) inches above the elevation of crown of the street for a garage, carport or parking area. The Board denied the variance on March 26, 2003.
Attorney Gougelman explained the circumstances supporting a rehearing and emphasized the need to focus on an argument that might have been overlooked or not fully examined at the original hearing.
Gary Frese, 930 S Harbor City Blvd, Melb, attorney representing Coral Sands, pointed out that the Code Sec. 17-141(2) allows “unusual and practical difficulties” as a less burdensome criteria for granting a variance and believed his client met this requirement. He entered into the record case law supporting this stand.
Attorney Frese pointing out that Coral Sands is seeking a construction variance particular to this project and with no impact on the surrounding area. He maintained that the practical difficulty lies in the fact that the project fronts on two streets and that there is a natural slope from the ocean to the street of about five feet.
Attorney Frese pointed out that Code Sec. 17-92 stipulates the measuring point as the “street, as designated by the town.” He explained that because Watson Ave. has been designated to determine the elevation, a variance is necessary; but if A1A had been designated as the measuring point, the project would have met the code without a variance.
The Board discussed the use of the term “residential” as it applies to the project.
Robert Lee, civil engineer for the project, pointed out that the purpose of the floor elevation is to prevent flooding which is not an issue as there are adequate drainage areas and emergency sump pumps.
In response to a question, Mr. Lee again clarified that if only State Road A1A were considered the project would meet the code.
Attorney Frese, in conclusion, requested that the board consider the slope of the land and being on a side road as practical difficulties and cited case law maintaining that practical difficulty is present when the damage caused to the owner if a variance is not granted is greater than the damage caused to the neighbors if it is granted.
Attorney Frese also pointed out that the Board can interpret the code and that no variance would be required if they designated A1A as a measuring stick for the garage.
The Board requested clarification on the practical difficulty and whether it could be obviated by a change in design.
Mr. Lee maintained that they could not build as desirable a building if the height needed to be compressed by 4 ½ feet.
As the Board discussed the designated street for measuring purposes, Mr. Lee clarified that they had chosen Watson as the main entrance for traffic safety concerns. He noted that the parking garage was also accessible from A1A.
John B. MacNeill, 1320 S Riverside Dr., clarified that such projects often designate streets as front, side or rear to meet setback requirements.
Attorney Gougelman summarized that the practical difficulty seems to be the slope of the land and that the impact concerns the way the building must meet the height limitation.
Mr. Berkman moved to approve the variance for the minimum measurment necessary to comply with Code Sec. 17-92. Mr. Allen seconded. Motion failed with Mr. Allen and Mr. Berkman voting “yes.” Mr. Disher, Mr. Dullaghan and Mr. Gergora voted “no.”
The Building Official clarified that if the Board chooses A1A as the designated road, which is permissible by the Code, the applicant would not require a variance.
The Board discussed the implications of designating A1A as the front of the building as it affects the setback requirements.
Mr. Berkman moved to interpret the Code so as to designate A1A as the point of reference as it pertains to Code Sec. 17-92(2) with no effect on the footprint of the building. Mr. Disher seconded.
Mr. Dullaghan questioned a factual basis for choosing A1A as the point of reference.
Mr. Gergora requested that the motion be modified to designate A1A as the front of the building and modify the plan accordingly.
Mr. Berkman did not accept the modification.
Mr. Gergora made an amended motion to designate A1A as the front of the building and modify the plan accordingly. Mr. Dullaghan seconded.
Mr. Lee illustrated how the parking garage is accessible from A1A.
Mr. Berkman modified his motion to interpret the Code so as to designate A1A as the main entrance to the parking garage and the point of reference for the garage floor elevation per Code Sec. 17-92(2) with no effect on the building design. Mr. Disher seconded. Motion carried with Mr. Allen, Mr. Berkman, Mr. Disher and Mr. Dullaghan voting “yes.” Mr. Gergora voted “no.”
4. CODE INTERPRETATION
An interpretation of Code Section 17-126(1) to determine if electrical scooter sales are a permitted use in the Commercial district.
The Building Official stated that electrical scooters did not appear to fit into any permitted or prohibited category of uses in the commercial districts and that the closest classification was motorcycles.
Tim Pipher stated his interest in selling the electrical scooters from a location on 5th Ave. and believed they should be classified as sporting goods. He explained that, according to the dictionary and the state of Florida, a motorcycle is a two-wheeled vehicle with an internal combustion engine of 50 cc or larger and capable of going 30 mph or faster.
Mr. Pipher pointed out that his vehicles only go 15 mph and it was clarified that they do not require a license or vehicle tag.
Mr. Disher moved to consider electrical scooters as a permitted use falling within the standards of Code Sec. 17-126(2). Mr. Berkman seconded. Motion carried with Mr. Berkman, Mr.Disher, Mr. Dullaghan and Mr. Gergora voting “yes.” Mr. Allen voted “no.”
5. ADJOURNMENT
The meeting was adjourned at 7:35 PM.
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John Allen, Chairman
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Barbara Brownlie, Secretary