TOWN OF INDIALANTIC
BOARD OF ADJUSTMENT MEETING
AGENDA NO. 04-01
PRESENT: John Allen, Chairman
Brian Dullaghan, Vice Chairman
David Berkman, Member
Ray Disher, Member
George Gergora, Member
Laura Lewandowski, 2nd Alternate
Karl Bohne, Acting Town Attorney
Christopher Chinault, Town Manager
Barbara Brownlie, Secretary
ABSENT: Bud Evans, 1st Alternate
1. CALL TO ORDER AT 5:30 PM
2. APPROVAL OF PRIOR MEETING MINUTES
A. Minutes No. 03-10– September 22, 2003
Mr. Dullaghan moved to approve Minutes No. 03-10. Mr. Berkman seconded.
Mr. Disher recused himself from discussion or voting on the minutes or any items related to them as he is the owner of the property to the south and these actions might have an adverse effect on his property
Mr. Gergora requested that the minutes include discussion of the gallery as a continuation of the garage wall that led to the house because this was a key factor in the decision.
The Board agreed to amend the minutes and the following was inserted:
In response to a question from Mr. Gergora, Mr. Dunning stated that there would be one common supporting continuous block wall connecting the garage and gallery to the house.
Motion to approve the minutes as amended carried unanimously.
3. VARIANCE REQUEST
A variance request filed by Dominick Villano regarding Lots 25 & 26, Blk 41, 1010 Wavecrest Av. A variance is being requested to Code Section 17-127(16) requiring that a minimum thirty percent (30%) breezeway defined by rectangular dimensions with a clear and open line of sight from Highway A1A to the ocean be maintained on all property in the tourist zone regardless of the ownership or configuration of platted lots.
Attorney Mike Minot, 319 Riveredge Blvd., Cocoa represented Mr. Villano.
Attorney Minot pointed out the plan footprint has been changed from three to two units allowing the project to meet the 30% breezeway requirement on the subject property and clarified that the variance is being sought on the off premise property only.
Attorney Minot pointed out that the property between the subject property and A1A has been developed with a two story apartment building erected before the breezeway ordinance was enacted and that the property lines for the two lots do not align on the northern end.
Mr. Gergora requested that the applicant identify the basis for the variance.
Attorney Minot read from the form he had submitted that the existing apartment complex prevents compliance with the breezeway ordinance.
Mr. Gergora rephrased his question asking Attorney Minot to explain the hardship caused by the ordinance.
Attorney Minot stated that without the variance the subject property could not be built upon because the apartment building which had been grandfathered in is non-conforming.
In response to a question, Attorney Minot stated that there is currently a “dilapidated” residence on the property and it is his client’s intent to eliminate that structure and build based on the plans before the Board. He pointed out that the existing structure is also non-conforming with the breezeway ordinance.
Mr. Villano clarified that he owns the existing apartment building that will be transferred to his children at some point in the future.
John B MacNeill, 1320 S Riverside Dr and Vice Chairman of the Zoning & Planning Board, reported that that board had reviewed and approved the site plan and considered it an ideal case for granting a variance. He advised that nothing placed on that property could comply with the letter of the law, but by meeting the requirement on his property Mr. Villano is complying with the spirit of the law.
Mr. Gergora commented that he still did not see the hardship reason created by the topography of the land causing Mr. Villano a problem. Mr. Gergora felt the owner knew what the code was and purchased the property anyway creating his own hardship.
Mr. MacNeill pointed out that if the apartment building is ever destroyed or removed any new construction would also have to meet the breezeway requirement.
Town Manager Christopher Chinault verified that Mr. Villano can rebuild the residence presently on the property continuing the existing violation of the breezeway ordinance.
Mr. Chinault stated that if the Board grants the variance it is furthering the cause of creating breezeways because that property will then have a breezeway and go from being out of compliance to being in compliance. He added that if the apartments are ever redeveloped, that property would also have to be brought into compliance creating a true breezeway in that location.
Attorney Bohne clarified that the purpose of granting a variance is not to “break the law”, but to “vary” the code for some particular reason.
Mr. Allen pointed out that the Council was very specific in the wording of the ordinance.
Attorney Bohne stated that if the non-conforming structure were destroyed, the applicant would be prohibited from building on the property depriving him of its use. In his opinion, granting a variance is applicable and can be considered for that reason.
Mr. Gergora pointed out that property owners who had purchased lots adjacent to their own, being aware of the codes, were not granted variances for that reason.
Ms. Lewandowski said that this is a unique situation and felt the applicant had submitted a reasonable plan and the Board had an obligation to look to the future.
Mr. Berkman agreed with Ms. Lewandowski and maintained the applicant cannot control what exists on the other property.
Ms. Lewandowski stated that she was present at the Council meetings where the ordinance was discussed, and the Council assured the public that variances would be considered where the hardship is an existing building.
Mr. Berkman moved to approve the variance request. There was no second.
Mr. Gergora moved to deny the variance request. Mr. Dullaghan seconded.
The Board discussed what could be done with the property and the effect on the breezeway requirement.
Results of a roll call vote were:
Mr. Berkman “no”
Mr. Gergora “yes”
Mr. Disher “yes”
Mr. Dullaghan “yes”
Mr. Allen “yes”
Motion to deny the variance carried.
4. ADJOURNMENT
Mr. Gergora moved that the Board call a special meeting to discuss modifications made to the plans affecting the justification for deciding Mr. Dunning’s appeal. Mr. Dullaghan seconded.
Mr. Berkman stated that any change of plans should be reviewed by the Building Official or Town Manager and not the Board of Adjustment.
Mr. Chinault clarified that the owner has been requested to submit modified plans and if those modifications undermine the basis of the Board’s decision, Mr. Gergora is requesting to review those changes.
Attorney Bohne clarified that the Board has the right to rehear based on new, additional or erroneous evidence. He also reminded the Board of the Sunshine Law prohibiting any discussions outside of a meeting.
Motion carried with Mr. Gergora and Mr. Dullaghan voting “yes.” Mr. Berkman voted “no.” Mr. Allen and Mr. Disher recused themselves.
The meeting was adjourned at 6:20 PM.
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John Allen, Chairman
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Barbara Brownlie, Secretary