TOWN OF INDIALANTIC
Brevard County, Florida 32903
BOARD OF ADJUSTMENT MEETING
November 6, 2003 Town Hall 5:30 PM
MINUTES NO. 04-02
PRESENT: Brian Dullaghan, Vice Chairman
David Berkman, Member
Ray Disher, Member
Bud Evans, Member
Laura Lewandowski, Member
Paul Gougelman, Town Attorney
Christopher Chinault, Town Manager
Barbara Brownlie, Secretary
1. CALL TO ORDER AT 5:30 PM
2. APPROVAL OF PRIOR MEETING MINUTES
A. Minutes No. 04-01– October 16, 2003
Mr. Disher moved to approve Minutes No. 04-01. Ms. Lewandowski seconded. Motion carried unanimously.
3.
REQUEST FOR REHEARING
A
request by Dominick Villano for a rehearing on a variance application 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 representing Mr. Villano, explained that
the reason for the rehearing was to clarify the nature of the hardship.
Attorney
Minot presented a computerized rendering of the property depicting the existing
and proposed structures. He pointed out that the existing structure does
not comply but is grandfathered in. He added further that, as long as the
apartment on the abutting property exists, there is an impossibility of compliance,
rendering the subject property unusable until the apartment building comes
down.
Attorney
Minot stated that the hardship is the impossibility of performance with respect
to the off-site property.
Attorney
Minot maintained that granting the variance upholds the intent of the code as a
non-conforming building will be replaced with a conforming structure. He
believed the ordinance contemplated the future when structures would be brought
into compliance as they are renovated or rebuilt.
Mr.
Dullaghan asked if the hardship was not self created because Mr. Villano
purchased the property with knowledge of the breezeway ordinance.
Attorney
Gougelman clarified that there are two standards for granting a variance –
unnecessary hardship or practical difficulty which is a more relaxed
version. He also pointed out that the existing apartment building
predates the breezeway ordinance.
Attorney
Gougelman explained there were that there were inherent problems with the way
the code was written and that the Council had attempted to clarify the
ordinance not foreseeing exactly the problem the Board faces now with an
existing building preventing new construction.
In
Mr. Gougelman’s opinion this is a classic case for considering a variance and
that the applicant had done everything he could to comply. He added that
granting the variance would not undercut the breezeway ordinance because as
buildings come down new structures would have to comply with the breezeway
regulations.
The
Board discussed the effects of granting this variance on future applicants.
Attorney
Gougelman suggested that the variance could be approved with the stipulation
that when the apartment building is replaced the new structure would have to
comply with the 30% breezeway ordinance.
Mr.
Villano pointed out the apartment building is on a larger piece of property and
questioned how the 30% would apply.
Mr.
Evans commented that the present single family residence could be rebuilt with
the existing footprint if the foundation and a wall were left intact.
Attorney
Gougelman pointed out that the renovations in that case could not exceed 50% of
the assessed value of the home.
Ms.
Lewandowski said that although the code was written with the best intent it
does not work in this case because it creates a dependency on other
properties. She agreed that the code was a step working gradually toward
the future.
Mr.
Disher expressed concerns with the two properties being owned by the same
person.
Attorney
Gougelman advised that zoning is not based on who owns the property but how it
is being used.
Attorney
Minot requested a brief recess to discuss the proposed stipulation with his
client.
Following
the recess, Attorney Gougelman advised that an iron-clad stipulation could not
be constructed because the future and evolution of the code can not be
predicted.
Mr.
Villano clarified that he could not agree to a stipulation because he had no
way of determining what he might be agreeing to based on possible future
revisions to the breezeway code. Mr. Villano agreed with the intent of
the code but could not see how it could work in his situation.
Mr. Berkman moved to approve the variance to Code Section 17-127(16) as requested. Mr. Disher seconded. Motion carried unanimously.
4. REPORTS AND DISCUSSIONS
Discussion concerning modifications to building plans at 321 Melbourne Ave and the impact on the Board’s decision to reinstate building permit.
Mr. Disher recused himself from the discussion.
Mr. Dullaghan explained that a previous action was taken by the Board based on a plan which has since been changed and the discussion was to determine how this change affected the project.
Attorney Gougelman advised that the changes had been approved by the Building Official and found conforming with the code.
The Town Manager verified that Mr. Dunning had submitted revised plans shifting the wall and gallery eight feet to the east.
Darlene Dunning Munson, 312 Melbourne Ave., outlined the events she believed had led up to this action.
Mr. Disher rebutted Mrs. Munson’s comments.
The Board determined that their questions had been answered and saw no reason to pursue further action.
5. ADJOURNMENT
The meeting was adjourned at 6:50 PM.
____________________________
Brian Dullaghan, Vice Chairman
______________________________
Barbara Brownlie, Secretary