BOARD OF ADJUSTMENT Regular Meeting Thursday, February 23, :00 p.m. MINUTES

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1 BOARD OF ADJUSTMENT Regular Meeting Thursday, February 23, :00 p.m. MINUTES Call to order Robert Schaefer called the meeting to order at 6:05 PM. Members present were Chairman Robert Schaefer, Members Gowdy, Ross and Rowe. Members Wildman and Tenant were not present. Member Gowdy indicated that she had received a call from the neighbor's attorney. She said she told him she was not the person to speak to and directed the call to the town. Member Ross stated she lives within 500 feet of the residence applying for variance as indicated that she thought there was a conflict of interest. ******** Public Hearing Variance Application Town of Melbourne Beach, Land Development Code, Section 4A-94(b) (5) a. Coastal Construction Standards and Specifications and Section 5A-2, Coastal Setback Line Established, in order to allow construction of a single-family residence seaward of the Coastal Construction Control Line as set by the State of Florida, Department of Natural Resources and the Melbourne Beach Coastal Setback Line This application was submitted by Fleis and Bennett Engineering, Inc on behalf of Tina and Sean Murphy, for property located at 1211 Atlantic Street. Chairman Schaefer entered an amendment to the application provided by the Murphy's. The addendum provided different answers to three of the questions on the application. The Chairman read the questions and answers on the application as provided by the Murphy's. There was a question as to why the Murphy's were applying for a variance as they had already been granted a variance. The Murphy's responded that the variance was set to plans and their plans had changed. The Chairman responded that others have come to the board received a variance and then changed plans. Mr. Murphy asked why it has to be set to plans. The Chair responded that because the plans have changed the variance is no longer applicable. Mr. Murphy stated having to get a new variance when plans change creates a hardship for the owner. Member Ross asked what the addition being referred to was. Mr. Murphy responded they were putting a second story and the structure was to be evened out to make it square. He showed the members of the board what he was referring to. Chairman Schaefer opened discussion to the public. Joe Colombo West Eau Gallie Blvd. - Identified himself as the attorney representing Dr. Magway. He wanted to place his objection to the variance on the record. Mr. Colombo stated that it appears from the plans that the existing footprint of the building is being expanded. He

2 Regular Meeting February 23, 2006 felt the Murphy's are proposing to expand on a non-conforming structure, and it does not comply with town codes. He felt there was no hardship. He indicated that this variance would affect his client. He felt that granting this variance would be challenged at some time. His client is objecting to the addition of this property. He said that the Murphy's wanted a variance from the CCCL to put an addition and to add a pool, he felt it is not a hardship. He said this was a way to re-model and get around the codes. Mr. Colombo stated that there are density issues, and non-conforming use issues. He stated that with the amount of acreage the Murphy's are allowed 1.7 units they currently have three. Member Rowe asked if his client has a personal issue with the Murphy's or if he is defending the code. Mr. Colombo responded there are three issues his client has: (1) the addition will shade his property, (2) the addition will curtail the trade winds and (3) his bedroom will face the addition. He said that if the variance were granted his client would pursue this in court against the Murphy's. Member Gowdy commented that there is a letter from Mr. Washburn stating this is a nonconforming use. Mrs. Murphy responded that they are allowed to remodel their home. They want to be sure that they are compliant with the code. She continued that they would be the only ones to occupy the residence; they will not be renting any of the property. She stated that on August 25, 2005 because they were not sure what Planning and Zoning was going to say, the Town Attorney at the time suggested postponing the variance request, take the plans to Planning and Zoning and them come back to the Board of Adjustment. That is what they were doing. Member Ross asked what the use of the accessory structures currently were. Mrs. Murphy responded they are currently rented and it will be a playroom when the construction is complete. Chairman Schaefer asked the attorney if they would be restricted from renting after the construction is complete. The Town Attorney responded they would not be able to rent. Attorney Colombo addressed the board saying that the lot is non-conforming, and whether the structures are rented or not is not the problem. The public comment section of the meeting was closed at this time. Motion made by Member Roe to grant the variance for the Murphy residence. Second by Member Ross for discussion. Member Rowe said that it seems they are squaring off something that is already close to the property. He said he was having a hard time understanding what the dissention was about. He said there is no encroachment, and he will support the variance. Chairman Schaefer stated he had reservations regarding the other buildings, but since they cannot rent them, we will be covered. The Town Attorney said that once they stop it from being a rental they could not go back.

3 Regular Meeting February 23, 2006 Member Gowdy asked about the percent of lot coverage. There was further discussion regarding landscaping, setback, and neighbors. She stated that all applicable codes must be satisfied. She questioned approval from the DEP. Member Gowdy read a condition that was previously imposed. Addendum to coastal construction variance applicant July 27. The proposed coastal construction application has been submitted to the Town of Melbourne Beach in order to amend the coastal construction variance granted by the Board of Adjustment on June 30 the following identifies the proposed amendment. (1) The existing duplex structure is proposed to be demolished due to the denial of the variance request to reconstruct the non-conforming structure. The said variance request was denied by the board on June 30, (2) The two story garage building is propose at the location of the existing duplex, the two car garage building will be interconnected for a game room and storage room. Member Gowdy said that she remembered discussing this. The Murphy's responded saying those were their previous plans. The plans have changed. Discussion continued regarding previous actions of the board. The Chair indicated that those were the original plans. The reason they are back in front of the board is that they have changed their plans. They will not use the property as a rental. They were never going to take the buildings down. Member Ross brought up the fact that pilings would have to be installed. She also discussed the properties on either side regarding breezeways. Member Gowdy stated that we should not allow enlargements of non-conformities. The motion carried with Member Gowdy voting no. Motion by Member Gowdy to adjourn. Second by Member Rowe. The motion carried unanimously. ATTEST: Robert Schaefer, Chairman Lenore Milan, Town Clerk

4 Board of Adjustment Regular Meeting May 25, 2006 The Board of Adjustment of the Town of Melbourne Beach, Florida met in regular session on Thursday, May 25, 2006 in the Community Center, 509 Ocean Avenue, beginning at 6:03 p.m. Present were Chairman Robert Schaefer, Vice-Chairman Mike Rowe, and Member David Wildman. Members Gail Gowdy and Xochitl Ross were absent, as was Alternate Member Charles Tennant. Also in attendance Planning Official Dennis Ragsdale, and Town Clerk Patricia Burke. Chairman Schaefer called the meeting to order. Chairman Schaefer moved to change the starting time for future meetings of the Board of Adjustment from 6 p.m. to 6:30 p.m. Member Wildman seconded the motion and it carried unanimously. This would give members, as well as applicants, a bit more time to make it to the meetings. The first matter of business was approval of minutes of regular meetings September 22, 2005, October 27, 2005, November 17, 2005, and February 23, Vice-Chairman Rowe asked that the spelling of his name be corrected on the various sets of minutes. Otherwise, there were no corrections, additions, or deletions. Chairman Schaefer received separate motions for approval on each set of minutes. Member Wildman moved to approve the September 22, 2005 regular meeting minutes as submitted. Vice-Chairman Rowe seconded the motion and it carried unanimously. Member Wildman moved to approve the October 27, 2005 regular meeting minutes as submitted. Vice-Chairman Rowe seconded the motion and it carried. Member Wildman moved to approve the November 17, 2005 regular meeting minutes as submitted. Vice-Chairman Rowe seconded the motion and it carried. Chairman Schaefer moved to approve the February 23, 2006 regular meeting minutes as submitted. Vice-Chairman Rose seconded the motion and it carried on an all yes vote. *** Two variances were before the Board for its consideration this evening. Both were submitted by Pamela and James Munch for their residence located at 801 Riverside Drive. Variance Application Nos. 1 and Town of Melbourne Beach Land Development Code, Section 7A-33(f)(4), -3-RS Single-Family Residential District; Lot and principal structures, sizes, and setbacks; Maximum lot coverage, principal structure 30 percent in order to allow greater lot coverage AND Section 7A-33(f)(7)c. - 3-RS Single-Family Residential District; Lot and principal structures, sizes, and setbacks; Minimum yard requirements - side corner lot setback - 25 feet from lot line in order to allow reconstruction of the principal structure less than 25 feet from Avenue B. The property was legally described as Lot 15, Block 2, Whiting Plat of Melbourne Beach, as recorded in Plat Book 1, Page 57 of the Public Records of Brevard County, Florida. While waiting for the applicants to arrive, Planning Official Ragsdale stated, that it was his professional opinion, that a variance was not necessary in this case as the Munch s planned to build back within the same footprint. Board members agreed. 1

5 Regular Meeting May 25, 2006 Believing that a variance was not needed, Member Wildman moved, on the recommendation of Planning Official Ragsdale, to refer this request back to staff to handle administratively. Vice- Chairman Rowe seconded the motion and it carried unanimously. The meeting adjourned at 6:10 p.m. ATTEST: Lenore R Milan, Town Clerk Robert Schaefer, Chairman 2

6 Board of Adjustment Regular Meeting June 22, 2006 The Board of Adjustment of the Town of Melbourne Beach, Florida met in regular session on Thursday, June 22, 2006 in the Community Center, 509 Ocean Avenue, beginning at 6:08 p.m. Present were Chairman Robert Schaefer, Vice-Chairman Mike Rowe, and Members Gail Gowdy and Xochitl Ross. Member David Wildman and Alternate Members Lou Failla (appointed by the Town Commission the previous evening) and Charles Tennant were absent. Also in attendance were Town Manager Jim Bursick, Planning Official Dennis Ragsdale, and Recording Secretary Linda Rust. Chairman Schaefer called the meeting to order. There was a single item on the agenda, that being a special exception to allow a restaurant, known as Burrito Beach, at 315 Ocean Avenue. Section 7A-152(c) of the Town of Melbourne Beach Land Development Code outlined the procedure for securing a special exception. Applicant Robb Boykin, with permission of owner Edward Trader, proposed to open a sandwich shop serving sandwiches, along with beer and wine, in an existing structure at 315 Ocean Avenue. The subject property was zoned 6-B, Downtown Business District. Eating and drinking establishments were allowed in this zoning district as special exceptions (Reference Section 7A-36(d) of the Land Development Code). The subject property was legally described at Lot 5, Block 3, Wilcox Plat of Melbourne Beach as recorded in Plat Book 1, Page 58 of the Public Records of Brevard County, Florida. Chairman Schaefer noted that the applicant was not present. At the request of the Board, Planning Official Ragsdale briefly reviewed the request. Because an eating and drinking establishment was listed as a special exception in the Downtown Business (6- B) zoning district, it needed approval from the Board of Adjustment. It was not a principal use which received automatic approval. One of the key criteria for the Board to consider in reviewing this request was whether or not the proposed use was reasonably compatible with surrounding uses in its function, its hours or operation, the type and amount of traffic to be generated, building size and setbacks, its relationship to land values and other factors that might be used to measure compatibility. Board members mentioned previous uses at this address and physical characteristics of the existing building and the site as they recalled it. Planning Official Ragsdale felt that review of the request at this time might be premature as the applicant had not provided a site plan or other data that showed parking and otherwise adequately addressed the various criteria for a special exception. 1

7 Regular Meeting June 22, 2006 Vice-Chairman Rowe moved to continue the special exception request to the next regular meeting on July 27, 2006 (i.e. the fourth Thursday of July) in order that the applicant could provide specific details on their request. Member Ross seconded the motion and it carried unanimously. Planning Official Ragsdale would contact Mr. Boykin. The meeting adjourned at 6:23 p.m. ATTEST: Lenore R. Milan, Town Clerk Robert Schaefer, Chairman 2

8 Board of Adjustment Regular Meeting July 27, 2006 The Board of Adjustment of the Town of Melbourne Beach, Florida met in regular session on Thursday, July 27, 2006 in the Community Center, 509 Ocean Avenue, beginning at 6:30 p.m. Present were Chairman Robert Schaefer, Vice-Chairman Mike Rowe, and Members David Wildman, and Xochitl Ross. Member Gail Gowdy and Alternate Members Lou Failla and Charles Tennant were absent. Also in attendance were Town Manager Jim Bursick, Planning Official Dennis Ragsdale, Interim Town Attorney Gary Sack and Recording Secretary Linda Rust. Chairman Schaefer called the meeting to order. There was a single item on the agenda, that being a special exception to allow a restaurant, known as Burrito Beach, at 315 Ocean Avenue. This request was tabled at the Board s June 22, 2006 meeting in order that the applicant could provide a site plan and provide specific responses to the various criteria for granting a special exception as set forth in Section 7A-152(c) of the Town of Melbourne Beach Land Development Code. Applicant Robb Boykin, with permission of owner Edward Trader, proposed to open a sandwich shop serving sandwiches, along with beer and wine, in an existing structure at 315 Ocean Avenue. The subject property was zoned 6-B, Downtown Business District. Eating and drinking establishments were allowed in this zoning district as special exceptions (Reference Section 7A-36(d) of the Land Development Code). The subject property was legally described as Lot 5, Block 3, Wilcox Plat of Melbourne Beach as recorded in Plat Book 1, Page 58 of the Public Records of Brevard County, Florida. Chairman Schaefer invited Robb Boykin to the podium. At its June 22, 2006 meeting, the Board of Adjustment asked the applicant to respond to the criteria contained in the Land Development Code for consideration in granting a special exception. The Board was in receipt of the applicant s written response dated July 27, These included ingress and egress, off-street parking and loading areas, refuse and service areas, utilities, screening and buffering, signs, landscaping, etc. Member Wildman wondered whether or not a site plan for the proposed use was approved by the town to ensure that it met zoning requirements, parking requirements, etc. prior to it coming before the Board of Adjustment for approval of the special exception. Planning Official Ragsdale advised that there were two phases to this type of project, one being the special exception approval dealing with the use and the second, site plan review. However, there was some overlap between the two. Mr. Ragsdale also advised that it was appropriate to impose conditions on the special exception if the Board felt they were in order. Procedural issues were discussed at length, specifically use as a restaurant versus zoning and building requirements. It was felt that the site plan should first go to the building official and/or Planning and Zoning Board for compliance with site plan review 1

9 Regular Meeting July 27, 2006 criteria before it came before the Board of Adjustment for a decision on the special exception. Member Ross noted that the subject building had been in continuous use and wondered whether any grandfather clause might be applicable. Following discussion, members reached consensus that the subject request for a special exception should first be considered by the Planning and Zoning Board for technical compliance with site plan issues before being reconsidered by the Board of Adjustment. Applicant Robb Boykin reminded the Board that the building official signed off on his plans as had the Fire Department. In addition, Waste Management currently provided refuse services to the property and Brevard County approved its water and wastewater plan (reference application dated May 19, 2006). Electrical service and water was currently provided to the site. The existing structure was built in The Board asked Mr. Boykin to document the above statements in writing. Vice-Chairman Rowe moved to postpone Mr. Boykin s special exception request to a special meeting to be scheduled as expeditiously as possible, (prior to the next regular meeting) once the proper documentation was received. Member Wildman seconded the amendment and it carried unanimously. After hearing briefly from an interested individual in the audience, Vice-Chairman Rowe amended his earlier motion on the special exception by tabling it to a date certain, i.e. Thursday, August 10, 2006 at 6:30 p.m. Member Wildman seconded the motion and it carried on an all yes vote. A public hearing would be opened at that special meeting to receive comments from interested individuals. *** Chairman Schaefer noted that the Land Development Code required 15-day advance notice (i.e. publication in a newspaper of general circulation) for a variance while an ordinance only required 10-day advance notice. He asked that staff look into amending the Code to allow variances, etc. to be processed more quickly by requiring 10-day advance notice instead of 15 days. Town Manager Bursick took this under advisement and would report back to the Board. The meeting adjourned at 7:26 p.m. *** Robert Schaefer, Chairman ATTEST: Lenore R. Milan, Town Clerk 2

10 Board of Adjustment Special Meeting August 10, 2006 The Board of Adjustment of the Town of Melbourne Beach, Florida met in special session on Thursday, August 10, 2006 in the Community Center, 509 Ocean Avenue, beginning at 6:30 p.m. Present were Chairman Robert Schaefer, Vice-Chairman Mike Rowe, and Members Gail Gowdy, Xochitl Ross and David Wildman. Alternate Members Lou Failla and Charles Tennant were absent. Also in attendance were Planning Official Dennis Ragsdale, Interim Town Attorney Gary Sack, and Recording Secretary Linda Rust. Chairman Schaefer called the meeting to order. There was a single item on the agenda, that being a special exception to allow a restaurant, known as Burrito Beach, at 316 Ocean Avenue. This request was tabled from the Board s July 27, 2006 regular meeting in order that the applicant could provide specific responses to the criteria outlined in the Land Development Code relating to special exceptions. Section 7A-152(c) of the Town of Melbourne Beach Land Development Code outlined the procedure for securing a special exception. Applicant Robb Boykin, with permission of owner Edward Trader, proposed to open a sandwich shop serving sandwiches, along with beer and wine, in an existing structure at 315 Ocean Avenue. The subject property was zoned 6-B, Downtown Business District. Eating and drinking establishments were allowed in this zoning district as special exceptions (Reference Section 7A-36(d) of the Land Development Code). The subject property was legally described at Lot 5, Block 3, Wilcox Plat of Melbourne Beach as recorded in Plat Book 1, Page 58 of the Public Records of Brevard County, Florida. Prior to discussing the request. Member Ross advised that she was present in a home the previous evening where the Williamson s were present. (Note: The Williamson s objected to the request.) Member Ross did not discuss the request. Chairman Schaefer invited the applicant to the podium. Robb Boykin responded to the Board s inquiries and comments. The Board was in receipt of his written response to the conditions for approval outlined in Section 7A-152(c)(2) of the Code. He noted that the Brevard County Fire Marshal inspected the structure and found it in compliance as did the Melbourne Beach Fire Department and Building Official. Each individual criteria was discussed (i.e. ingress and egress, off-street parking and loading areas, refuse and service areas, utilities, screening/buffering, signs, yards/open spaces, height, landscaping, renewal or termination dates, compatibility with surrounding uses) and Mr. Boykin responded in detail. Planning Official Ragsdale noted his recommendation that the Planning and Zoning Board review the site plan for technical compliance. In fact, the Planning and Zoning Board considered the site plan at its meeting the previous evening (August 9, 2006). Several of the special exception review criteria overlapped with site plan review criteria considered by the Planning and Zoning Board. Mr. Ragsdale advised of the Planning Board s comments relating to certain review areas, (e.g. hours of operation, parking and seating, solid waste service, parking lot lighting, and the wall/fence abutting residential property to the rear). Mr. Ragsdale also advised that the Town did not have a separate application for a special exception because they were so rarely requested. In this case the variance form was used and the applicant asked to specifically address the conditions for granting a special exception as outlined in 7A-152(c). The Planning Official was working on a separate application for special exceptions. 1

11 Special Meeting August 10, 2006 Chairman Schaefer opened the public hearing. Diane and David Williamson, whose residence was located to the rear of the subject property, objected to the use of the subject property as a restaurant. The Board was in receipt of a written statement from the Williamson s outlining their specific objections. Ms. Williamson did not feel that the existing site met requirements of the American with Disabilities Act, particularly accessibility for individuals in wheelchairs. She was advised that this was a building code matter and any such deficiencies would be addressed at the time of permitting. Other concerns were delivery trucks especially given the size of the parking lot and delivery areas, regulations dealing with transport of food items (Mrs. Williamson was advised this was a matter for the Brevard County Health Department), noise and odors that would travel to adjacent residences, surrounding property value depreciation, compatibility with surrounding properties, compliance with adopted Comprehensive Plan, undesirable patrons, etc. Even if restrictions were placed on the use, she was concerned about enforcement. David Williamson continued with their objections. He felt strongly that his residential property would lose value as a result of this eating and drinking establishment being allowed. Chairman Schaefer explained the difference between a variance and a special exception and the fact that different criteria were applied to each. A resident from 310 First Avenue, objected to the restaurant noting that the reason for the request was a change in use. In the past, the rear parking lot was never used for patron parking. He was also concerned about noise and that there was insufficient parking for the restaurant s seating capacity. Health issues related to food handling and refuse were also a concern. The use would have a negative impact on neighbors and he did not see a benefit for the community. Another resident spoke in opposition. He would not have bought his home if he knew that the requested use would be allowed. He saw the restaurant operating basically as a bar and was concerned about deterioration, not only of property values, but also of the harmonious nature of the neighborhood. He referenced the petition signed by 20 individuals opposing the special exception. Bruce Ingram, 903 Riverside Drive, currently lived next to a bar and had no complaints about this situation. He felt that the applicant should be given a chance to operate his restaurant and saw it as an embarrassment that he had to go through this process. Many of the patrons would arrive on foot or by bicycle. A resident was concerned about allowing a restaurant that planned to offer microwave sandwiches and other foods that were not cooked at the site. What about the impact of plastic containers on landfill operations? A resident stated that his biggest concern was the setting of a precedent. He asked questions about how long the special exception would be allowed to run. Chairman Schaefer replied that this was a determination for the Board of Adjustment. Mr. Hoffman, who has been a resident for 16 years, spoke in favor. Dan Border, 419 Ocean Avenue, preferred to see the structure occupied rather than currently abandoned. He did not see that serving beer and wine would create the problems that previous speakers seemed to be concerned about. This was nothing more than a sandwich shop. He supported the request. A resident noted reminded the board of signatures on a petition opposing the special exception request. Other businesses along Ocean Avenue did not permit patron parking to the rear. Jean Marshall commented on the dispensing of draft beverages. 2

12 Special Meeting August 10, 2006 Mr. Boykin was given the opportunity to rebut some comments made by the earlier speakers. He clarified that he planned to serve bottled beer as opposed to draft. No one else wished to speak and the public hearing was closed. Board members discussed the matter before them for decision prior to making a motion. It was noted that the concerns of surrounding residents seemed to focus on parking in the rear, serving of alcoholic beverages, traffic, hours of operation, lighting, etc. If conditions were imposed, how would they be enforced? Based on careful consideration of all competent substantial evidence presented in this matter, and the finding that the request was in harmony with the purpose and intent of the Land Development Code, Vice-Chairman Rowe moved to grant the special exception to allow a eating and drinking establishment, known as Burrito Beach, in a 6-B Downtown Business Zoning District at 315 Ocean Avenue subject to the following conditions: The building and site shall be inspected, or re-inspected, as the case may be, for compliance with the Americans with Disabilities Act (ADA) by the person(s) who normally review ADA compliance for the Town of Melbourne Beach. Any ADA required improvements shall be accomplished prior to operation of the restaurant. The hours of operation of the restaurant shall be restricted to 11:00 A. M. to 8:00 P. M. Monday through Saturday. The restaurant shall be closed on Sunday. Refuse awaiting pickup shall be stored on-site in containers specified by the Town s franchisee hauler in a location accessible to the hauler. Further, the refuse shall be handled in accordance with the Town s franchise agreement. Care shall be taken to secure the storage containers from infiltration by animals. The maximum seating capacity shall be 18 persons. Capacity is based on inclusion of six parking spaces on the site. Signs shall comply with the provisions of the Town s sign ordinance. Lights shall be arranged or shielded so that the source of the light is not visible from adjacent residentially zoned properties and so that the light is not dispersed onto adjacent residentially zoned properties. No consumption of food or alcohol shall occur outdoors, including the back porch of the building. The fence along the rear property line shall be maintained and kept in good repair by the applicant. Damage to the fence shall be repaired within one week unless extraordinary circumstances, such as a hurricane or other disaster, prevent the repairs from being accomplished. Outside speakers or outside live music are prohibited. Deliveries to the site shall occur prior to opening for business (11:00 A. M.) Approval of the special exception is limited to this applicant and shall not be transferable. The restaurant owner is responsible for prohibiting outside consumption of alcohol sold at the restaurant. This approval shall be effective until the regularly scheduled Board of Adjustment meeting in August of 2007 at which time the applicant may request renewal. Consideration of renewal will be based on compliance with the conditions of this special exception and documented problems that are caused by the restaurant over the next year. Member Ross seconded the motion and it carried unanimously. Planning Official Ragsdale would prepare the Board s motion in the form of an order and submit it for each member s individual review and approval after which the chairman would sign it for the record. 3

13 Special Meeting August 10, 2006 The meeting adjourned at 9:05 p.m. ATTEST: Robert Schaefer, Chairman Lenore R. Milan, Town Clerk 4

14 Board of Adjustment Regular Meeting August 24, 2006 The Board of Adjustment of the Town of Melbourne Beach, Florida met in regular session on Thursday, August 24, 2006 in the Community Center, 509 Ocean Avenue, beginning at 6:33 p.m. Present were Chairman Robert Schaefer, Vice-Chairman Mike Rowe, Member Gail Gowdy and Alternate Member Lou Failla. Members Xochitl Ross and David Wildman were absent as was Alternate Member Charles Tennant. Also in attendance were Town Manager Jim Bursick, Planning Official Dennis Ragsdale, Interim Town Attorney Gary Sack, and Town Accountant Jane Antonsen (who acted as Recording Secretary for the meeting). Chairman Schaefer called the meeting to order and announced the first variance for consideration. Variance Application Town of Melbourne Beach Land Development Code, Section 7A- 33(f)(7)c. - 3-RS Single-Family Residential District; Lot and principal structures, sizes, and setbacks; Minimum yard requirements - side corner lot setback - 25 feet from lot line in order to allow an addition to the principal structure less than 25 feet from Avenue B, specifically 15 feet for a requested variance of 10 feet. The property was legally described as Lot 15, Block 2, Whiting Plat of Melbourne Beach, as recorded in Plat Book 1, Page 57 of the Public Records of Brevard County, Florida. This application was submitted by Pamela and James Munch, owners, for property located at 801 Riverside Drive. The proposed construction included an addition to the existing home that encroached into the required setback area. The proposed encroachment extended along the north property line a distance of 41.2 feet resulting in a total of square feet of building area to be located in the required yard area. Chairman Schaefer invited the applicants to the podium to speak in favor of their request. James Munch responded to questions about the non-conforming nature of his home and lot. The subject lot was only 60 feet wide and previously received a setback variance in 1997 to remodel due to the existing non-conformity of the lot. The owners now wished to enclose a balcony area extending from the second floor; the concrete footprint of the existing structure did not change. They experienced continual problems with the screened enclosure and also claimed financial and emotional hardship. Mr. Munch indicated that he had been working with the Town on this project for many months and provided over 40 copies of building plans to Town officials. Member Gowdy did not feel that the applicants had adequately demonstrated a hardship that was peculiar to their property in that they wanted to expand a non conformity. She pointed out that the existing Code would allow them to rebuild to the existing footprint in the event of a disaster. Member Gowdy moved to deny the Munch s application for a variance for the extension of the residence at 801 Riverside Drive. Vice-Chairman Rowe seconded the motion. Chairman Schaefer opened the public hearing. Ekko Niedermeier, 306 Fourth Avenue, did not understand the application of the hardship question, particularly as it related to a 60-foot wide lot. He pointed out that there were a number of narrow lots in the Town of Melbourne Beach. 1

15 Regular Meeting August 24, 2006 The chairman responded that demonstration of hardship was not the only criteria examined in granting a variance. James Munch also expressed confusion over the criteria for granting a variance. He was not sure what the Board of Adjustment was looking for. What were the issues? Chairman Schaefer advised that a variance, once granted, ran with the land and a future owner could demolish the existing structure and rebuild within the new setbacks. Member Gowdy pointed out that the Code allowed the owner to rebuild to the extent of the existing non conformity but not to expand upon that (i.e. add square footage). It was her opinion that a hardship was not demonstrated. Vice-Chairman Rowe suggested that a list of similar variance requests (i.e. 60-foot lots) be compiled. Perhaps a recommendation should be made to the Planning and Zoning Board to amend the Code of Ordinances relating to special circumstances for narrow lots. A letter from Walter and Fern Conner objecting to the requested variance was read into the record. The public hearing was closed. The motion to deny the variance for 801 Riverside Drive carried unanimously. *** Next was Variance Application Town of Melbourne Beach Land Development Code, Section 7A-31(f)(7)c - 1-RS Single-Family Residential District; Lot and principal structures, sizes, and setbacks; Minimum yard requirements - side interior setback - 15 feet from lot line in order to allow a covered patio roof less than 15 feet from the side yard lot line, specifically 10 feet for a requested variance of 5 feet. The property is legally described as Lot 9, Block N, The River Colony, as recorded in Plat Book 17, Page 56 of the Public Records of Brevard County, Florida. This application was submitted by Lori and Steve Emly, owners, for property located at 606 Hibiscus Trail. It was noted that the Board did not receive a full application, particularly the questions and answers that it was to consider in granting or denying a variance. Chairman Schaefer asked that the variance request be tabled to a special meeting scheduled for September 7, 2006 in order that a completed application could be submitted and moved accordingly. Vice-Chairman Rowe seconded the motion and it carried on an all yes vote. *** Board members and staff briefly discussed procedural issues. Planning Official Ragsdale advised of administrative changes that were forthcoming that would streamline the review process. The meeting adjourned at 7:35 p.m. ATTEST: Robert Schaefer, Chairman Lenore R. Milan, Town Clerk 2

16 Board of Adjustment Special Meeting September 7, 2006 The Board of Adjustment of the Town of Melbourne Beach, Florida met in special session on Thursday, September 7, 2006 in the Community Center, 509 Ocean Avenue, beginning at 6:30 p.m. Present were Chairman Robert Schaefer, Vice-Chairman Mike Rowe, and Members Gail Gowdy, Xochitl Ross and David Wildman. Alternate Members Lou Failla Charles Tennant were absent. A quorum was present. Also in attendance were Town Manager Jim Bursick, Planning Official Dennis Ragsdale, Interim Town Attorney Gary Sack, and Recording Secretary Linda Rust. Chairman Schaefer called the meeting to order and announced the first variance for consideration. Variance Application Town of Melbourne Beach Land Development Code, Section 7A- 31(f)(7)b - 1-RS Single-Family Residential District; Lot and principal structures, sizes, and setbacks; Minimum yard requirements - side interior setback - 15 feet from lot line in order to allow a covered patio roof less than 15 feet from the side yard lot line, specifically 10 feet for a requested variance of 5 feet. The property was legally described as Lot 9, Block N, The River Colony, as recorded in Plat Book 17, Page 56 of the Public Records of Brevard County, Florida. This application was submitted by Lori and Steve Emly, owners, for property located at 606 Hibiscus Trail. This variance was tabled at the Board s August 24, 2006 regular meeting in order that the applicants could submit a complete application, including the questions and answers that the Board was to consider in granting or denying a variance. Chairman Schaefer invited the applicants to the podium. Lori Emly reviewed her responses with the Board. She proposed an extension of her main roof to increase the covered area of the pool deck. The roof required support columns which needed to be placed a minimum of five feet from the pool per Building Code. Because of this, the only possibility for placement of such a support structure resulted in a five-foot encroachment into the required side yard setback. Chairman Schaefer opened the public hearing. There being no one present who wished to speak, the public hearing was closed. Vice-Chairman Rowe moved to grant the requested side yard setback variance with two conditions: (1) that the extension remain a covered patio and cannot be enclosed (as in a Florida room); and (2) that the granted variance was for the existing structure and the existing pool (i.e. the variance would not run with the land in the event of reconstruction). It was understood that the pool area could be screened. Member Wildman seconded the motion and it carried unanimously. *** Variance Application Town of Melbourne Beach Land Development Code: Section 7A-37(f)(7)d., 7-C General Commercial District, Lot and principal structure, sizes & setbacks Minimum yard requirements, rear setback (25 feet from residential) in order to allow a rear yard setback of seven feet, a variance of 18 feet. Section 7A-37(f)(8)a. 7-C General Commercial District, Service station requirements - Building setbacks shall be a minimum of 70 feet from road rights-of-way with canopies and pumps at a

17 Special Meeting September 7, 2006 minimum of 30 feet in order to allow canopy and pump 21.9 feet from Ocean Avenue right-ofway, a variance of 8.1 feet. Section 7A-37(f)(8)b. 7-C General Commercial District, Service station requirements - Two curb cuts for ingress and egress are required for each street side in order to allow only one curb cut on Ocean Avenue, a variance of one curb cut. Section 7A-50 Off-Street Parking - in order to allow 14 parking spaces which was less than the required 25 off-street parking spaces, a variance of 11 spaces. Section 7A-50 (b) Off-Street Parking, Off-Street Loading Requirements in order to eliminate requirement for an off-street loading zone altogether. The property was legally described as the east 50 feet of Lot 24 and all of Lots 25 and 26, Block 1, Graves Plat of Melbourne Beach, according to the plat thereof, as recorded in Plat Book 1, Page 38, Public Records of Brevard County, Florida. This application was submitted by Ray Caito of Summit Construction Management Services, L.L.C. on behalf of Melbourne Beach Enterprises, owner, for property located at 904 Oak Street. A service/gas station was currently operating at this location. For the record, Chairman Schaefer advised that he lived within 500 feet of the subject property. The Board agreed that it would hear the variance in its entirety but would vote on each individual section separately. At a previous Town Commission meeting, Member Gowdy received a copy of a final judgment issued by the Brevard Circuit Court on the subject property relating to its right to operate a convenience store in conjunction with the service station. Attorney Sack advised that the order was issued 19 years earlier and that the courts ruled, at that time, that both uses could exist simultaneously as long as certain requirements were met. The Board determined that this document would not be made a part of the record relative to this variance. The meeting recessed briefly at time in order that copies of relevant documents could be made and distributed to Board members. Upon reconvening, Board members took the necessary time to review the documents just received. Chairman Schaefer invited the applicant to the podium. Ray Caito of Summit Construction Management Services, L.L.C. reviewed his responses with the Board. When asked about the subject property s unique characteristics, the applicant replied that it was the only service station in town. Planning Official Ragsdale advised the Board of Adjustment that a unique use did not constitute grounds for granting a variance, rather, the question inferred whether or not the property itself (i.e. actual land and/or building) possessed unique characteristics that made the variance necessary. Mr. Caito proposed to build a state-of-the-art service station and small convenience store for the subject property. In order to upgrade and improve the facility and ensure public safety and welfare, it was felt that encroachment into the otherwise required setbacks were necessary. In his analysis of the variance request, Mr. Ragsdale advised that setbacks could be adequately addressed with a smaller building. Placing limits on sizes and intensity of uses was a major purpose of zoning. Mr. Ragsdale also concluded that traffic circulation would be encumbered by the lack of a driveway and lack of a loading zone. In addition, the proposed location of storage tanks would hinder traffic circulation when a gasoline delivery truck was present. Several parking spaces would also be blocked during gasoline deliveries. 2

18 Special Meeting September 7, 2006 Mr. Caito responded to the comment about constructing a smaller facility. The applicant was then given the opportunity to elaborate on several of the requested variances that were not previously discussed, to-wit: curb cuts, off-street loading, and parking, as well as respond to individual Board member s questions. Thijs Stelling, property owner, participated in the exchange of information and response to the Board s questions. At this time, Chairman Schaefer opened the public hearing. William Murray, 406 Ocean Avenue, owned the adjacent property and wondered whether a modification to setbacks on the subject property would affect the setbacks on his property. He was advised that setbacks associated with his property would remain unchanged. As an adjacent property owner, he was also concerned about hours of operation and noise that might originate at the site. Another concern was off-street parking and whether or not it would affect access to his property. Wilma Moultrie, 405 Avenue A, spoke with the owner about his plans to develop. After learning of them, she was in support thereof. D. X. Ross, 315 Fourth Avenue, was concerned about whether or not there would be sufficient business to support the expense of the proposed expansion. If it did not, she would not want to see a blighted corner in Melbourne Beach. No one else wished to speak and the public hearing was closed. Chairman Schaefer entertained motions on the individual components of the overall variance. As to Section 7A-37(f)(7)d., 7-C General Commercial District, Lot and principal structure, sizes & setbacks Minimum yard requirements, rear setback (25 feet from residential) in order to allow a rear yard setback of seven feet, a variance of 18 feet, Vice-Chairman Rowe moved for denial. Member Ross seconded the motion. Vice-Chairman Rowe felt that there was a lack of competent, substantial evidence that there was a hardship not brought on by the applicant in this particular case, thus his motion to deny. The requested variance was for 18 feet; this was substantial. In listening to the applicant s rationale, he did not see that any thought was given to the site that for which the proposed facility was planned. Other board members also voiced difficulty granting such a large setback variance. The motion to deny the rear yard setback variance carried unanimously. Member Ross moved to deny the variance requested to Section 7A-37(f)(8)a. 7-C General Commercial District, Service station requirements - Building setbacks shall be a minimum of 70 feet from road rights-of-way with canopies and pumps at a minimum of 30 feet in order to allow canopy and pump 21.9 feet from Ocean Avenue right-of-way, a variance of 8.1 feet. Member Gowdy seconded the motion. The motion to deny the canopy/pump setback variance carried with Chairman Schaefer and Member Wildman voting no. Vice-Chairman Rowe voted in favor with the understanding that if the applicant came back with a new overall plan that they would be able to readdress this particular variance. There was a motion to approve Section 7A-37(f)(8)b. 7-C General Commercial District, Service station requirements - Two curb cuts for ingress and egress are required for each street side in order to allow only one curb cut on Ocean Avenue, a variance of one curb cut. 3

19 Special Meeting September 7, 2006 Town Attorney Sack reminded the Board of Adjustment that while it was taking separate votes on the several variances requested, it all related to a specific development plan that was likely to change. It was important that the Board keep in mind the possible effect it might have if one component of the overall variance request was approved without the others. Mr. Caito asked whether an alternative would be to table the request in its entirety in order that he could speak with Town staff to try to develop a plan that was acceptable. He was advised that such an action would be in order. Another option was to withdraw the application. If the variance was denied, the owner would be prohibited from reapplying for a one-year period. At this time, the applicant withdrew the variance application before the Board. Town Attorney Sack suggested that the Board rescind its earlier motions to deny so that everything was back to square one. Board members were not in favor of this and there was no motion to rescind. The applicant wished to be able to work with Planning Official Ragsdale to work out an acceptable development plan. This was understood. A new variance could be submitted, however, the present one could not be reheard. The meeting adjourned at 9:10 p.m. ATTEST: Robert Schaefer, Chairman Lenore R. Milan, Town Clerk 4

20 Board of Adjustment Regular Meeting September 28, 2006 The Board of Adjustment of the Town of Melbourne Beach, Florida met in regular session on Thursday, September 28, 2006 in the Community Center, 509 Ocean Avenue, beginning at 6:35 p.m. Present were Vice-Chairman Mike Rowe, Member Gail Gowdy, Xochitl Ross and David Wildman and Alternate Member Charles Tennant. Member absent was Chairman Robert Schaefer. Also in attendance were Town Manager Jim Bursick, Planning Official Dennis Ragsdale, Interim Town Attorney Gary Sack, and Town Clerk Lenore Milan. Acting Chairman Rowe called the meeting to order and announced the variance for consideration. Variance Application Town of Melbourne Beach Land Development Code, Section 7A- 33(f)(7)b. - 3-RS Single-Family Residential District; Lot and principal structures, sizes, and setbacks; Minimum yard requirements - side interior lot setback, in order to allow an addition to the house and replacement of a screened wood deck less than the required 15 feet from the lot line. The property was legally described as Lot 17, Block 22, Wilcox Plat of Melbourne Beach, as recorded in Plat Book 1, Page 58 of the Public Records of Brevard County, Florida. This application was submitted by Deborah L. Greenway, owner, for property located at 408 Fifth Avenue. Acting Chairman Rowe invited the applicant to the podium to speak in favor of her request. Deborah Greenway presented pictures of her home and a petition with 15 signatures in favor of her request. She stated that she loved it here and wanted to stay in Melbourne Beach. Ms. Greenway responded to questions about adding to the back of her home and putting in a screened porch. There was a discussion regarding there actually being three variances; extending the roof, addition to the house and screening the porch. Acting Chairman Rowe opened the public hearing. Ms. Heather Holjes of 412 Fifth Avenue, stated she lives two houses down from Ms. Greenway and is here to support her on this project. The public hearing was closed. Member Wildman asked Mr. Ragsdale, the Town s planner, about the impact on other houses with 60 foot lots. Mr. Ragsdale explained that every 60 foot lot has a potential problem, the Board should look at the character of the houses in this area. There was a discussion about building on this particular size lot. Member Wildman expressed concern that this request would set a precedent. Mr. Ragsdale said he understood his concern and spoke about going to the Town Commission or Planning and Zoning about this issue. 1

21 Board of Adjustment Regular Meeting Minutes September 28, 2006 Member Wildman advised that he was uncomfortable, as a Board of Adjustment Member, that everyone with 60 foot lots would want to make changes. He acknowledged that for this property, this is the best Ms. Greenway could do. Mr. Ragsdale stated that the Board has to make the findings, it is not a black and white line, this is a subjected area. He said to look at it more comprehensively, as to consistency with the neighborhood. After a brief discussion, regarding receiving additional information about 60 foot lots in the Town, Member Wildman made a motion to continue this variance at the October 26, 2006 Board of Adjustment meeting, which was seconded by Member Tennant. The motion carried 4-1, with Acting Chair Rowe opposing. The meeting duly adjourned at 7:45 P.M. ATTEST: Robert Schaefer, Chairman Lenore R. Milan, Town Clerk 2