MINUTES BOARD OF ADJUSTMENT PUBLIC HEARING JANUARY 6, 2005

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1 MINUTES BOARD OF ADJUSTMENT PUBLIC HEARING JANUARY 6, 2005 I. CALL TO ORDER A public hearing of the Town of Melbourne Beach Board of Adjustment was called to order by Chairman Schaefer at 6:06 p.m. on Thursday, January 6, 2005 in the Community Center. Present: Others Present: Chairman Schaefer Vice Chairman Rowe Member Wildman Member Gowdy Member Ross Alternate Member Tennant Town Attorney Gougelman Town Manager Higginbotham, Jr. Building Official McCaughin Elena Gomez, Deputy Town Clerk 11 members of the public Lois, Edwards, Coastal Technology Corporation Permit Specialist Brad Smith, Brad Smith Associates II. APPROVAL OF MINUTES: SEPTEMBER 16, 2004 PUBLIC HEARING. MEMBER WILDMAN MOVED, SECOND VICE CHAIRMAN ROWE TO APPROVE THE SEPTEMBER 16, 2005 REGULAR MEETING MINUTES. VOTE: ALL AYES. MOTION CARRIED. Chairman Schaefer commented that this is a different variance from a regular requested variance. He commented that with a Coastal Construction Variance, the applicant does not have to show undo hardship. Town Attorney Gougelman referenced town code 5A-6 subsection (d) (1) and (d) (2) for the Board to review and take in to consideration for the variance request. He read town code 5A-6 into the record. Member Gowdy commented that she went to Town Hall and spoke with the Building Official for clarification of the new height code and how the height applies to the requested variance. Chairman Schaefer replied that he spoke to the Building Official as well for clarification. III. REQUEST FOR COASTAL CONSTRUCTION VARIANCE: COASTAL TECHNOLOGY CORPORATION FOR MICHAEL F. LESSER REQUEST THAT A COASTAL CONSTRUCTION VARIANCE FOR CONSTRUCTION OF A CONFORMING SINGLE FAMILY RESIDENCE BE GRANTED FROM APPENDIX A, LAND DEVELOPMENT CODE, CHAPTER 5A ZONING, 1-RS SINGLE FAMILY RESIDENTIAL DISTRICT, SECTION 5A-2, COASTAL SETBACK LINE ESTABLISHED TO ALLOW A SINGLE FAMILY RESIDENCE BE LOCATED SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE. THE PROPERTY IS LEGALLY DESCRIBED AS THE SOUTH 25.0 FEET OF LOT 2, ALL OF LOTS 3 AND 4, BLOCK 5, MAP OF REPLAT OF BEAUJEAN PLAT OF MELBOURNE BEACH, ACCORDING TO THE PLAT

2 MINUTES BOARD OF ADJUSTMENT PUBLIC HEARING JANUARY 6, 2005 PAGE 2 THEREOF, AS RECORDED IN PLAT BOOK 9, PAGE 51, PUBLIC RECORDS OF BREVARD COUNTY, FLORIDA. THE SUBJECT PROPERTY HAS A STREET ADDRESS OF 405 ATLANTIC STREET, MELBOURNE BEACH, FLORIDA. Chairman Schaefer read the variance request into the record. He called the applicant s representatives to come forward. Chairman Schaefer read question 8(a) and the applicant s response of the application into the record. Chairman Schaefer read question 8(b) and the applicant s response of the application into the record. Chairman read question 8(c) and the applicant s response of the application into the record. Lois Edwards, permit specialist of Coastal Technology Corporation commented that the replacement home is proposed at an elevation of plus 6 feet higher than currently required by the Florida building code an in addition it is three quarters of a foot higher than what currently exists. She commented that the topography on the property is currently at plus 20, which leaves the first habitable floor elevation at plus 21 feet to not destabilized any material that needs to be destabilized seaward of the control line consistent with DEP guidelines and criteria. Member Ross asked where the height is measured from. Building Official McCaughin referenced ordinance and explained to the Board where the height is measured from. He commented that with Dr. Lesser s home the height would be measured 18 inches from the crown of the road, which is the higher elevation. He commented that the floor elevation is in the right place; however this is not where height measurement will be determined. Member Ross asked where the point is in relation to the 1 foot above ground elevation. Building Official McCaughin stated that based on the survey, the crown of the road is at 16.7 feet and then 18 inches on top of that would be an elevation of 18.2 feet and measure 28 feet up for the height. He commented that there will be some adjustments that need to be made for the height. He also commented that with the new height ordinance, the applicant will need to go before the Planning and Zoning Board for site plan approval as well as Town Commission approval. Attorney Gougelman asked that the applicant s representatives to state their name and address for the record. Lois Edwards, Permit Specialist of Coastal Technology Corporation, th Street, Vero Beach and Brad Smith of Brad Smith Associates, 1800 W. Hibiscus Blvd., Suite 112, Melbourne as the Landscape Architect and Planner for the project, presented their names for the record as representatives of Dr. Lesser s. Chairman Schaefer read question 8(d) and the applicant s response of the application into the record. Chairman Schaefer read question 8(e) and the applicant s response of the application into the record. Member Gowdy commented that the plans submitted do not meet current codes.

3 MINUTES BOARD OF ADJUSTMENT PUBLIC HEARING JANUARY 6, 2005 PAGE 3 She referred to the height and the side setbacks. Attorney Gougelman commented that the Building Official stated earlier that the applicant will need to go before the Planning and Zoning Board and Town Commission regarding the issues of inconsistency of the house in relation to the town code. Attorney Gougelman commented that it is not the concern of this Board. Chairman Schaefer read question 8(f) and the applicant s response of the application into the record. Chairman Schaefer read question 8(g) and the applicant s response of the application into the record. Chairman Schaefer read question 8(h) and the applicant s response of the application into the record. Chairman Schaefer read question 8(i) and the applicant s response of the application into the record. Chairman Schaefer read question 8(j) and the applicant s response of the application into the record. Chairman Schaefer read question 8(k) and the applicant s response of the application into the record. Chairman Schaefer read question I. and the applicant s response of the application into the record. Lois Edwards presented drawings as Exhibit A, B & C for the record, which is on file with the clerk at Town Hall. She explained the drawings to the Board. Chairman Schaefer read question II. and the applicant s response of the application into the record. Lois Edwards presented drawings as Exhibits D & E for the record, which is on file with the clerk at Town Hall. She explained Exhibit D and stated that the drawing in black represents the proposed residence and the red represents the existing residence. Chairman Schaefer read question III. and the applicant s response of the application into the record. Chairman Schaefer read question IV. and the applicant s response of the application into the record. Brad Smith of Brad Smith Associates explained that there is a revised plan based on the Building Official s memo presented as Exhibit E. He commented that each issue raised by the Building Official have been addressed since the time of the memo. He explained that the side setback on the north side is now at the required 15 foot distance. He commented that a dimension line has been added to indicate that the front of the house is located 55 feet from the property line. He commented that the breezeway requirement does not apply to the 1-RS Single- Family Residential District and that Ed Washburn the Town Planner concurred with this and has

4 MINUTES BOARD OF ADJUSTMENT PUBLIC HEARING JANUARY 6, 2005 PAGE 4 indicated that it has historically been the position of the Town. He commented that the Building Official has spoken with the Town Planner. Building Official McCaughin concurred and stated that Mr. Washburn had made that determination. Member Wildman asked the Building Official if he was happy with the Town Planner s determination. Building Official McCaughin concurred. Member Rowe asked the Building Official if that changed his decision. Building Official McCaughin commented that Mr. Washburn is the Zoning Official and it was a zoning issue. Brad Smith commented that they have relocated the swimming pool closer to the house to provide for the 10 foot minimum setback. He commented about height issues and he was only aware as of yesterday as to how base elevation is measured. He explained there has been no beach dune erosion and granting the variance is not injurious to adjacent properties or contrary to public interest. Chairman Schaefer opened the meeting for public comments. Roy Alterman of 2115 Palm Bay Road asked about the CCCL and where is the line being determined. He asked if it was from the line from 1983 or the line that is in the middle of the roadway on A1A. Building Official McCaughin replied that the line will be placed between the new line and the old line. The variance request is from the 1986 line. Lois Edwards of Coastal technology referenced Exhibit E to Mr. Alterman and explained the line. No further comments were made. MEMBER WILDMAN MOVED, SECOND VICE CHAIRMAN ROWE TO APPOVE A VARIANCE FROM SECTION 5A-2 TO CONSTRUCT A CONFORMING SINGLE FAMILY RESIDENCE SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE OF 193 FEET AS DEPICTED ON REVISED SITE PLAN SUBMITTED BY THE APPLICANT AS EXHIBIT E (COPY ATTACHED). REFERENCED AS BRAD SMITH ASSOCIATES, INC. OF 1800 W. HIBISCUS BLVD., SUITE 112, MELBOURNE, FL 32901, PROJECT #03:0075, SHEET 3 OF 11, FL REG. LA CORP # , DATED , DATE PLOTTED VOTE: ALL AYES. MOTION CARRIED. IV. ADJOURNMENT ALTERNATE MEMBER WILDMAN MOVED, SECOND MEMBER GOWDY TO ADJOURN THE PUBLIC HEARING. VOTE: ALL AYES. MOTION CARRIED The public hearing of the Town of Melbourne Beach Board of Adjustment adjourned at 6:49 p.m. ROBERT SCHAEFER, CHAIRMAN ELENA GOMEZ, SECRETARY TO BOARD OF ADJUSTMENT Note: A mechanical recording has been made of the following procedures of which these minutes are a part and is on file in the office of the Town Clerk.

5 MINUTES BOARD OF ADJUSTMENT PUBLIC HEARING JANUARY 27, 2005 I. CALL TO ORDER A public hearing of the Town of Melbourne Beach Board of Adjustment was called to order by Chairman Schaefer at 6:07 p.m. on Thursday, January 27, 2005 in the Community Center. Members present were Robert Schaefer, Mike Rowe, David Wildman, Gail Gowdy, and Xochitl Ross. Alternate Member Charles Tennant was absent. Also in attendance were Town Manager Higginbotham, Jr., Building Official McCaughin, and Elena Gomez, Deputy Town Clerk. II. APPROVAL OF MINUTES: JANUARY 6, 2005 PUBLIC HEARING. MEMBER WILDMAN MOVED, SECOND MEMBER ROSS TO RECEND THE JANUARY 6, 2005 PUBLIC HEARING MINUTES. VOTE: ALL AYES. MOTION CARRIED. III. REQUEST FOR VARIANCE. BETTINA CONNER AND MICHAEL GOLDSTEIN REQUEST THAT A VARIANCE FOR A SWIMMING POOL BE GRANTED FROM APPENDIX A, LAND DEVELOPMENT CODE, CHAPTER 7A ZONING, 5-RMO, OCEANFRONT MULTI-FAMILY DISTRICT, SECTION 7A-57(E) TO ALLOW THE POOL FORWARD OF THE FRONT LINE OF THE BUILDING STRUCTURE AND A VARIANCE FROM SECTION 5A-2, COASTAL SETBACK LINE ESTABLISHED AND 4A- 94 (B)(5)(A), STANDARDS AND SPECIFICATIONS TO ALLOW THE STRUCTURE TO BE LOCATED SEAWARD OF THE COASTAL CONSTRUCTION CONTROL LINE. THE PROPERTY IS LEGALLY DESCRIBED AS LOTS 3 AND 4, BLOCK 26, WILCOX PLAT OF MELBOURNE BEACH, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 1, PAGE 58, OF THE PUBLIC RECORDS OF BREVARD COUNTY, FLORIDA. THE SUBJECT PROPERTY HAS A STREET ADDRESS OF 1505 ATLANTIC STREET, MELBOURNE BEACH, FLORIDA. Chairman Schaefer read the variance request into the record. Chairman Schaefer stated that there are two variances and the Board will address each one separately. Bettina Conner and Michael Goldstein of 1505 Atlantic Street were present to speak on their behalf of the variance request. Chairman Schaefer read question I. and the applicant s response of the variance application into the record. Bettina Conner commented that they would like to use the pond and change it into a pool. Chairman Schaefer read question II. and the applicant s response of the variance application into the record. Bettina Conner commented that they built the pond and got approval from DEP. Member Wildman asked the applicant when they obtained the approval from DEP. Bettina Conner replied that it was approximately 2 years ago. Member Wildman asked if there was approval from the town. Michael Goldstein replied that he got approval from the past Building Official, Daryl Munroe. Member Gowdy stated that there is not a permit on file for the pond. Chairman Schaefer asked if a permit is required for a pond. Michael Goldstein replied that the past Building Official told them that a permit was not required. Building Official McCaughin replied that a permit is required.

6 Regular Meeting January 27, 2005 Chairman Schaefer asked the clerk if there was any information pertaining to the pond. Deputy Town Clerk Gomez replied that there was no information on file with the town. Michael Goldstein commented that they had gotten verbal approval from the past Building Official and was not aware that they needed a permit. He commented that they have paperwork from DEP and DOT for setbacks. Member Ross asked if the applicant had spoken to DEP regarding the swimming pool. Michael Goldstein replied that they have spoken to DEP. He explained the process of the pool installitation. He commented that DEP came to the residence and took pictures and approved the swimming pool. He commented that they have to go before the Board and get approval before they get written approval from DEP. Chairman Schaefer read question III. and the applicant's response of the variance application into the record. Chairman Schaefer asked the applicant if there are any other residents with pools in their front yards. Michael Goldstein replied that there are a few to his knowledge. He commented that putting the pool in the front yard would save on impacting the dune. Chairman Schaefer read 7A-57, ACCESSORY STRUCTURES code. Member Wildman asked the Building Official where the front of the property is located. Building Official McCaughin replied that on this particular house the front yard is the principal structure from A1A westward of the house. Michael Goldstein commented that the front is very deep and there is a lot of room for the pool. Chairman Schaefer read question IV. and the applicant s response of the variance application into the record. Member Gowdy asked the applicant if water would impact the fiberglass structure in case of flooding. Member Ross replied that the applicant will have to build to DEP standards. Chairman Schaefer commented that you have to fill the pool so it would not float. Chairman Schaefer read question V. and the applicant's response of the variance application into the record. Bettina Conner commented that they originally planned to build the pool in the side yard. Chairman Schaefer read question VI. and the applicant s response of the variance application into the record. Michael Goldstein commented that he spoke with DEP to try and place the pool in the side yard, however having the pool in the front would be an easier process. He commented that the only difference would be that there would not be fish in the pool. Member Ross asked if they could put the pool in the side yard. Michael Goldstein stated that he could, however it would require extensive work and another variance for the setback. No further comments from the applicant. Chairman Schaefer opened discussion for public comments. Caroline Shea of 1500 G Atlantic Street commented that she submitted a petition and that the applicant is going against the code. No further comments from the general public. Member Wildman commented that there is no undue hardship showing that the variance could be approved. He commented that if approved then the Board would have to approve all swimming pools and go against the code. Member Rowe stated that the code would have to change and that would be a broad change. Chairman Schaefer commented that no accessory structure shall be erected in any front yard. He commented that there is no evidence showing the allowance for the pond. Michael Goldstein asked if they can apply for a variance for the swimming pool in the side yard and put gates in the front yard. Building Official McCaughin replied that the applicant can apply for a permit for a fence up to 4 feet high in the front yard. Chairman Schaefer commented that 2

7 Regular Meeting January 27, 2005 the applicant needs to apply for a setback variance as well as a CCCL variance. Chairman Schaefer stated that DEP requires an approval from the Board according to the town's Codes before they give their approval. Michael Goldstein asked if they were to come back, would they be approved for a variance. Member Wildman commented that the Board can not predetermine, however the applicant should meet with the Building Official for the required variance requests. Michael Goldstein asked if they choose to dig the pond deeper, do they need a permit. Chairman Schaefer commented that the applicant may run into problems due to not having a permit for the pond. Building Official commented that the applicant can meet with him or higher a professional for guidance. MEMBER WILDMAN MOVED, SECOND MEMBER ROWE TO DENY THE VARINCE FOR CONSTRUCTION OF A POOL TO BE LOCATED IN THE FRONT OF THE BUILDING LINE. VOTE: ALL AYES. MOTION CARRIED. Chairman Schaefer asked that the CCCL variance request be tabled due to the not having the necessary paperwork submitted to the Board. Chairman Schaefer read CCCL variance requirements. He commented that the survey submitted does not show setback requirements and if the applicant requested a CCCL variance then they need a better submittal of the survey. He suggested that a professional help them with drawings to determine the setback requirements. Member Wildman referred to 7A-57 of the code that was submitted with the request. He asked that the Board be updated with current code revision. Chairman Schafer suggested that when the clerk updates the Board with new codes, the members give back the old ones. IV. ADJOURNMENT MEMBER GOWDY MOVED, SECOND MEMBER WILDMAN TO ADJOURN THE PUBLIC HEARING. VOTE: ALL AYES. MOTION CARRIED The public hearing of the Town of Melbourne Beach Board of Adjustment adjourned at 6:49 p.m. Robert Schaefer, Chairperson Lenore R. Milan, Town Clerk Note: A mechanical recording has been made of the following procedures of which these minutes are a part and is on file in the office of the Town Clerk. 3

8 MINUTES BOARD OF ADJUSTMENT PUBLIC HEARING FEBRUARY 24, 2005 I. CALL TO ORDER The Board of Adjustment for the Town of Melbourne Beach, Florida met on Thursday, February 24, 2005 in the Community Center, 509 Ocean Avenue, and beginning at 6:07 p.m. Member of the Board present were Robert Schaefer, Mike Rowe, David Wildman, Gail Gowdy, Xochitl Ross and Charles Tennant. Others present were Paul Gougelman, Town Attorney and Karan Rounsavall, Interim Town Clerk. II. APPROVAL OF MINUTES: JANUARY 6, 2005 PUBLIC HEARING; JANUARY 27, 2005 PUBLIC HEARING. JANUARY 6, 2005 PUBLIC HEARING: Member Wildman moved to approve the minutes as submitted. Member Rowe seconded the motion and it carried unanimously. JANUARY 27, 2005 PUBLIC HEARING: Member Wildman then moved to approve the minutes of public hearing on January 27, Member Rowe seconded the motion and it likewise carried unanimously. III. REQUEST FOR VARIANCE: Traci And Brad Bates Request That A Variance From Section 7a-32(F)(7)D For An Addition To An Existing Single Family Residential House Be Granted From Appendix A, Land Development Code, Chapter 7a Zoning, 2-Rs, Single Family Residential District, To Allow A Variance Of 10 Feet From The Required 25 Foot Rear Setback. The Property Is Legally Described As Lot 11, Entire Block 8, According To Island Shores Of Melbourne Beach, According To The Plat Thereof, As Recorded In Plat Book 10, Page 52a, Of The Public Records Of Brevard County, Florida. The Subject Property Has A Street Address Of 402 Poinsettia Road, Melbourne Beach, Florida. The purpose of the meeting was to consider a variance requested by Traci and Brad Bates in order to add an addition to their home at 402 Poinsettia Road. Specifically the applicants sought a variance to Section 7A-32(f)(7)d of the Land Development Code, i.e. Zoning - 2-RS, Single Family Residential District to allow a 10-foot variance from the required 25-foot rear yard setback. The property was legally described as Lot 11, Block 8, Island Shores of Melbourne Beach, as recorded in Plat Book 10, Page 52A, Public Records of Brevard County, Florida. Traci Bates was present to speak on behalf of her variance request. She submitted a letter from Holly Hays, a surrounding property owner, stating no objection to the planned home addition. Ms. Bates responded to the Board's inquiry as to the variance requested and the special circumstances and conditions which were peculiar to the property which gave rise to the need for a variance. The subject lot was irregularly shaped and at one time had been divided into two lots. She now owned the adjacent lot and executed a unity of title such that the property was now recognized as a single parcel. She wished to construct an addition to the rear of the house (guest bedroom, pool bath, and family room) in a manner that contributed to the flow of the floor plan and worked with the placement of an existing swimming pool. Page 1 of 2

9 Member Ross asked whether the addition could be built to the side of the house, as there was a substantial side yard. Ms. Bates replied that the interior wall to that side was beautifully paneled with teak wood and to expand other than to the rear would be disruptive to the floor plan. Ms. Bates went on to advise that the town's previous building official had verbally given her a goahead with her plans and acting in reliance on his advice, she retained architectural services. There were no questions from the board at this time. Chairman Schaefer opened the meeting to comments from the public present. David Robinson, a surrounding property owner, had no objection to the planned addition and related the history of the lots as to their previous division. The public hearing was closed. Member Rowe moved to grant a variance of 10 feet to the rear property line. Member Wildman seconded the motion for discussion. He wished to add a condition that the lot could not be subdivided in the future. He felt that the positioning of the house upon the lot created uniqueness. Attorney Gougelman advised that this could not be done as a condition although if the lot were subdivided at this point it would create a non-conformity which was a code violation. The attorney went on to advise that a "binding lot agreement" could be voluntarily executed by the property owners to preclude its division into two lots in the future. Ms. Bates indicated her willingness to sign such an agreement. Member Wildman modified his second to the motion to grant the variance dependent upon the voluntary execution of a binding lot agreement as stated above. Member Rowe indicated his acceptance of this condition to his motion. The motion carried unanimously. Attorney Gougelman would prepare the agreement and forward it to staff. IV. ADJOURNMENT There being no further business to come before the board, the meeting adjourned at 7:43 p.m. Robert Schaefer, Chairman Karan Rounsavall, Interim Town Clerk Page 2 of 2

10 Regular Meeting April 28, 2005 Board of Adjustment Regular Meeting April 28, 2005 The Board of Adjustment of the Town of Melbourne Beach, Florida met in regular session on Thursday, April 28, 2005 in the Community Center, 509 Ocean Avenue, beginning at 6:10 p.m. Present were Chairman Robert Schaefer, Members Mike Rowe, Gail Gowdy, David Wildman, and Xochitl Ross. Also in attendance was Deputy Town Clerk Elena Scruggs. Chairman Schaefer called the meeting to order. The first item of business was approval of minutes of the February 24, 2005 public hearing. A correction was noted to the year (i.e rather than 2006) relating to approval of the January 6, 2005 public hearing minutes. Member Wildman moved to approve the February 24, 2005 public hearing minutes with the date correction noted. Member Ross seconded the motion and it carried unanimously. Chairman Schaefer noted that four variances were advertised for this evening: Variance Application No submitted by Wayne B. and Judith L. Thompson for 1405 Pine Street; Variance Application Nos and submitted by Clayton Bennett of Fleis & Bennett Engineering, Inc. on behalf of Sean Murphy, owner, for property located at 1209 and 1211 Atlantic Street; and Variance Application No submitted by Bruce Moia of Mosby Moia Bowles & Associates on behalf of Jose Hixon for property located at 103 Oak Street. Due to a last-minute scheduling change, the town attorney was unable to attend the meeting. Accordingly, the chairman requested that the above variances be rescheduled to a special meeting on May 12, Member Wildman moved to defer the variances to a special meeting on May 12, Member Gowdy seconded the motion and it carried on an all aye vote. The applicants would be notified of the change. The Board also requested that each of the variance applications be thoroughly examined for completeness, particularly as it related to submittal of surveys and construction plans, prior to the Board s consideration. It was noted that building plans were not available for the Murphy s variance at 1209 Atlantic Street. This made review difficult and the Board requested that these plans be obtained before the variances were reconsidered on May 12 th. In the case of variances from coastal construction standards, it was noted that the Town s approval was required before an owner could apply to the Florida Department of Environmental Protection (FDEP) for a permit. Board members questioned whether or not the Town s Code was consistent with FDEP regulations as to the sequence for coastal construction variances. The Board directed that this question be posed to the town attorney. It was also noted that the Town s Code referenced the Department of Natural Resources as opposed to the Department of Environmental Protection. This needed to be clarified as well. As to the variance for 1405 Pine Street, it appeared that the owner was rebuilding his home, perhaps moving it, but this was not altogether clear from the information received in the application. Further clarification was requested from the applicant as to intent; this could be in the form of a written letter or memorandum. Page 1 of 2

11 Regular Meeting April 28, 2005 The Board went on to discuss general questions relating to the applicability of a variance in differing circumstances, the appropriateness of exhibits, etc. The importance of a staff member reviewing applications prior to them coming before the Board of Adjustment for action was stressed. Deputy Town Clerk Scruggs noted that, pursuant to the Town Code, an annual meeting to discuss and review the Board s powers and duties was appropriate. Given the adoption of regularly scheduled meetings on the fourth Thursday of every month, such a meeting would be fairly easy to set up. The Board asked that a meeting with the attorney to review powers and duties be scheduled as soon as possible and also asked that the town manager and building official be in attendance. Other topics for discussion at this meeting included the Sunshine Law and the apparent overlap between Chapter 4A and 5A relating to Coastal Construction Standards. The meeting adjourned at 7:02 p.m. Robert Schaefer, Chairperson Karan Rounsavall, Interim Town Clerk Page 2 of 2

12 Board of Adjustment Workshop Meeting May 3, 2005 The Board of Adjustment of the Town of Melbourne Beach, Florida met in workshop session on Tuesday, May 3, 2005 in the Community Center, 509 Ocean Avenue, beginning at 6:10 p.m. Present were Chairman Robert Schaefer, Members Gail Gowdy, David Wildman, and Xochitl Ross and Alternate Member Charles Tennant. Also in attendance was Town Attorney Paul Gougelman and Deputy Town Clerk Elena Scruggs. Vice-Chairman Mike Rowe was absent. Vice-Mayor Sandy Wilson of the Town Commission was in the audience. Chairman Schaefer called the meeting to order. The purpose of the meeting was to review the powers and duties of the Board of Adjustment with the Town Attorney and to review applicability of the Town s Land Development Code to variances. Attorney Gougelman provided an informational handout outlining the duties of the board as related to variances, special exceptions, and appeals of determinations of the building official and zoning official. The attorney reviewed specific examples as well as case law and specific reference to the Town s Code. Board members questioned the appropriateness of variances for non-conforming and irregular shaped lots; the attorney replied that a great deal depended on whether or not the applicant wished to increase a non conformity. Generally an irregularly shaped lot represented an undue hardship. Discussion between board members and the attorney ensued during which specific situations were reviewed, e.g. temporary variances and restrictions on variances. Attorney Gougelman went on to review conditions for granting coastal construction control line variances. Board members sought clarification on whether or not permit approval from the Florida Department of Environmental Protection (DEP) was necessary before requesting a variance from the Board of Adjustment. It appeared that DEP wanted to see local approval before it granted a permit. This procedure conflicted with current Town Code. It was the consensus of the Board of Adjustment to request that the Town Commission amend Section 5A- 6(1) of the Land Development Code relating to coastal construction control line variances such that it was consistent with State requirements. However, until such amendment was in place, the Board would enforce the present Town Code requiring the DEP permit prepatory to the variance. The attorney continued his instructional review on special exceptions and appeals. Case law played a particularly important role when considering appeals. The meeting adjourned at 8:15 p.m. ATTEST: Robert Schaefer, Chairman Lenore Milan, Town Clerk 1

13 Board of Adjustment Public Hearing May 12, 2005 The Board of Adjustment of the Town of Melbourne Beach, Florida held an advertised public hearing on Thursday, May 12, 2005 in the Community Center, 509 Ocean Avenue, beginning at 6 p.m. Present were Chairman Robert Schaefer, Vice-Chairman Mike Rowe, and Members Gail Gowdy, David Wildman, and Xochitl Ross. Also in attendance were Town Attorney Paul Gougelman and Deputy Town Clerk Elena Scruggs. Alternate Member Charles Tennant was absent. Chairman Schaefer called the meeting to order. Items on the evening s agenda were continued from the April 28, 2005 regular meeting. The first item was Variance Application No submitted by Wayne B. and Judith L. Thompson, owners, for property located at 1405 Pine Street. The owners sought a variance from the Land Development Code, specifically Section 7A-33(f)(7)(a) and (c) Minimum Yard Requirements, Front Setback and Side Corner Setback Requirements in a 3-RS Single-Family Residential District, in order to allow construction of an addition to an existing dwelling less than 25 feet from the front yard lot line and less than 25 feet from the side corner yard lot line. Chairman Schaefer opened the public hearing. Wayne Thompson spoke on behalf of his request, responding to the chairman s reading of questions on the variance application. He explained that his family wished to rebuild their home which was destroyed by the 2004 hurricanes using basically the same footprint and the same setbacks that had been in place for 25 years. They wished to build the new structure 63 feet wide instead of the previous 60 feet, thus the need for a three-foot side-yard setback variance (from Fifth Avenue). Judy Thompson also spoke in favor; she mentioned that a variance was previously granted in 1990 for their garage. Board members reviewed the proposed plans with the owners. The public hearing was closed. Vice-Chairman Rowe moved to grant a side-yard setback variance of three feet (Section 7A- 33(f)(7)(c) of the Land Development Code) in order to allow construction of a single-family residence 22 feet from the lot line on Fifth Avenue. Member Wildman seconded the motion. Discussion ensued as to whether or not the applicant had demonstrated hardship as compared to other comparable corner lots. It was pointed out that the house was originally constructed outside the setbacks, but this was obviously not detected by city officials at that time. When a garage was later constructed in 1990, the need for a variance was first discovered. Mr. Thompson advised that building plans were already completed and to require him to redesign was a hardship, particularly if it meant a change of orientation of the structure toward Fifth Avenue. Board members pointed out that once the existing structure was demolished, it was no longer a non conforming structure, thus no leeway to continue the non conformity. The motion to approve the variance failed. Member Wildman then moved to deny the request as the applicant failed to demonstrate hardship and meet the conditions necessary for granting a variance. Member Gowdy seconded the motion and it carried unanimously. 1

14 Regular Meeting May 12, 2005 Variance Application Nos and were both submitted by Clayton Bennett of Fleis & Bennett Engineering, Inc. on behalf of Sean Murphy for property located at 1209 and 1211 Atlantic Street. The first request was to Section 7A-84(5) of the Land Development Code, nonconforming use status applicability to a structure damaged to an extent of more than 50 percent of its replacement cost at time of destruction, in order to reconstruct an existing single-family residence with a non-conforming status that was designed to meet the current Florida Building Code. The second request was to Section 4A-94(b)(5)a. of the Land Development Code, Coastal Construction Standards and Specifications and Section 5A-2, Coastal Setback Line Established, in order to allow reconstruction of a single-family residence less than 25 feet landward of the Coastal Construction Control Line as set by the State of Florida, Department of Natural Resources and the Melbourne Beach Coastal Setback Line. The applications would be considered together but voted upon separately. Chairman Schaefer opened the public hearing. Clayton Bennett was present on behalf of the owners. Prior to requesting the variance, a determination from the zoning official was requested who opined that once the structure was destroyed, it would lose its non-conforming status and could not be rebuilt in its current configuration and density. At that point, there were two options: (1) appeal the zoning official s decision; or (2) seek a variance. The owners were seeking reconstruction of a structure with a non-conforming status. Since 1921, the subject property accommodated a single-family residence and a duplex which predated the current zoning which limited the density to six units per acre. Over the years, the ocean bluff line had shifted thus reducing the allowable density on the lot. The owners wished to rebuild a structure more to the west that met current building codes and was better able to withstand hurricane force winds. No change to the pre-existing density was planned. Attorney Gougelman advised that the comprehensive plan should be consulted as to whether or not a greater density than currently existed was even permitted on the property. A variance to the comprehensive plan was not possible; whereas a variance to the zoning regulations could be considered. Sean Murphy, owner, advised that the lot was over one-half acre; it was his understanding that the density would allow three units. The lot line could change every year because of changes in the bluff line as a result of natural shoreline effects; this affected the buildable area. The board felt that additional clarification was needed from the zoning official on the density question. Joseph Colombo, present on behalf of an adjacent property owner, asked that the application be heard. He did not understand what type of clarification the board was seeking. Chairman Schaefer attempted to explain. Attorney Gougelman felt the issues in this case were three-fold. He explained that by the zoning official s determination, the density on the lot was too great. First, if more land was available, as represented by the owner, then density would not be a problem. Secondly, it appeared to the board that the owners were applying for a variance to expand a non conforming use with regard to density. There was a question as to whether or not that request could even be granted. Finally, there was the question of the town s comprehensive plan which had not even been examined. At this time, he presented two options: (1) to defer the variance request until the zoning official could be consulted and possibly attend the meeting to 2

15 Regular Meeting May 12, 2005 respond to questions; or (2) continue the public hearing to allow everyone the opportunity to be heard and then continue the hearing to a future date. The board agreed to continue the public hearing this evening and then to table the variance to a future meeting pending clarification from the zoning official. Attorney Joseph Colombo represented Dr. John Magri, the owner to the north of the subject property. He felt the appeal of the zoning official s decision was untimely and he also questioned the jurisdiction of the board to consider this matter. Currently there were two residences on the property; he believed that the second residence was rental property. It was clearly a non conforming structure and a variance was not allowed if the structure was enlarged or altered in any way. The Murphy s wanted to expand the structure, in his opinion, by 60 to 70 percent. This was extreme and was not an undue hardship on the owners, particularly since the application stated that the structure could be repaired at less than 50 percent of its value. The owners simply wanted to rebuild a larger structure. If the expanded structure was allowed, his client s property would be squeezed. As to the comprehensive plan, the land use was for multi-family but did allow single-family residences. The plan further stated that building must abide by the ocean setback. He saw no justification for the variance either from the density standpoint or the substantial expansion of a non conformity. Mr. Colombo asked to be advised of the next meeting date on these variances. The public hearing was closed. Vice-Chairman Ross moved to table Variance Request Nos and to the Board s June 23, 2005 meeting. Member Gowdy seconded the motion and it carried. The final item was Variance Application No to Section 4A-94(b)(5)a. of the Land Development Code, Coastal Construction Standards and Specifications and Section 5A-2, Coastal Setback Line Established, in order to allow construction of a swimming pool less than 25 feet landward of the Coastal Construction Control Line as set by the State of Florida, Department of Natural Resources and the Melbourne Beach Coastal Setback Line. The application was submitted by Bruce Moia of Mosby Moia Bowles & Associates on behalf of Jose Hixon, owner of property located at 103 Oak Street. Chairman Schaefer opened the public hearing. Bruce Moia spoke on behalf of the Hixon s variance request. The board reviewed the proposed site plan and survey and took a short break at 8:01 p.m. to locate a scale ruler. The meeting reconvened at 8:03 p.m. After performing some calculations, Attorney Gougelman advised that the owners were seeking two variances: (1) to construct up to 230 feet seaward of the Coastal Construction Control Line as established by the Department of Natural Resources (Section 4A); and (2) to build up to 94 feet seaward of the Melbourne Beach Control Line (Section 5A). Member Wildman moved to approve the two variance requests for construction of a swimming pool as stated by the attorney above. Vice-Chairman Rowe seconded the motion. 3

16 Regular Meeting May 12, 2005 Rita Carpie questioned whether or not the board was doing the applicant a favor in granting the variances. Chairman Schaefer responded that variances from the coastal control line, as well as construction standards in the vicinity of the coastal construction control line were quite stringent, particularly as it related to Department of Environmental Protection standards. Attorney Gougelman also explained the procedure and grounds for granting a variance from the coastal control line. The public hearing was closed. The motion carried unanimously. The board discussed the practicality of considering up to four variances during a single meeting given that it was impossible to know how long each one would take. Previously the board received written comments from the building official; for whatever reason, this was no longer the case. The board appreciated insight from both the building and zoning officials. Attorney Gougleman felt that part of the problem was the fact that professional staff was not present at the board s meeting. He also felt that the town was very short staffed. As a result, the background packages were lacking in detail. The Board of Adjustment reiterated the consensus from its May 3, 2005 meeting to request that the Town Commission amend the Land Development Code relating to coastal construction control line variances such that it was consistent with Florida Department of Environmental Protection permitting requirements. However, until such amendment was in place, the Board would continue to enforce the present Town Code requiring that the DEP permit be presented prior to the variance being heard. The meeting adjourned at 8:55 p.m. ATTEST: Robert Schaefer, Chairman Lenore Milan, Town Clerk 4

17 MINUTES Board of Adjustment Regular Meeting Thursday, June 23, 2005 I. Call to order The Board of Adjustment for the Town of Melbourne Beach, Florida met on Thursday, June 23, 2005 in the Community Center, 509 Ocean Avenue, and beginning at 6:05 p.m. Members of the Board present were Robert Schaefer, Gail Gowdy, and Xochitl Ross. Alternate member Charles Tennant and regular members David Wildman and Mike Rowe were absent. Others present were Elena Scruggs, Deputy Town Clerk and Paul Gougelman, Town Attorney. II Approval of Minutes Member Gowdy moved to approve the minutes of April 28, 2005 regular meeting. Member Ross seconded the motion and it carried. III. Public Hearing Chairman Schaefer stated to both applicants that they have a choice to be heard based on a three (3) member board or wait to have a full board. Both applicants agreed to come back. Member Gowdy moved to continue the public hearing items A-C to June 30, 2005 at 6:00 pm. Member Ross seconded the motion and it carried. IV. Adjournment There being no further business to come before the board, the meeting adjourned at 6:20 p.m. Robert Schaefer, Chairman Lenore R. Milan, Town Clerk Page 1 of 1

18 Board of Adjustment Public Hearing June 30, 2005 The Board of Adjustment of the Town of Melbourne Beach, Florida held a public hearing on Thursday, June 30, 2005 in the Community Center, 509 Ocean Avenue, beginning at 6 p.m. Present were Chairman Robert Schaefer, Vice-Chairman Mike Rowe, and Members Gail Gowdy, David Wildman, and Xochitl Ross. Also in attendance were Town Attorney Paul Gougelman and Deputy Town Clerk Elena Scruggs. Alternate Member Charles Tennant was absent. Chairman Schaefer called the meeting to order. Items on the evening s agenda were continued from the June 23, 2005 regular meeting. The first matter of business was approval of minutes of the June 23, 2005 regular meeting. Member Ross noted a scrivener error to the minutes and moved for approval. Member Gowdy seconded the motion and it carried unanimously. Variance Application Nos and were both submitted by Clayton Bennett of Fleis & Bennett Engineering, Inc. on behalf of Sean Murphy for property located at 1209 and 1211 Atlantic Street. The first request was to Section 7A-84(5) of the Land Development Code, nonconforming use status applicability to a structure damaged to an extent of more than 50 percent of its replacement cost at time of destruction, in order to reconstruct an existing single-family residence with a non-conforming status that was designed to meet the current Florida Building Code. The second request was to Section 4A-94(b)(5)a. of the Land Development Code, Coastal Construction Standards and Specifications and Section 5A-2, Coastal Setback Line Established, in order to allow reconstruction of a single-family residence less than 25 feet landward of the Coastal Construction Control Line as set by the State of Florida, Department of Natural Resources and the Melbourne Beach Coastal Setback Line. The applications would be considered together but voted upon separately. Both applications were originally tabled from the May 12, 2005 public hearing. Chairman Schaefer opened the public hearing. Clayton Bennett was present on behalf of the owners. The site presently contained three structures: a single-family residence, a duplex, and a detached garage. As the principal structure was built in 1921, it did not meet current building code requirements. The owners were requesting several variances, one to tear down the existing structure (approximately 1,350 square feet) and build a new one with a larger footprint that met the current Florida Building Code. The site plan for the new structure would be reviewed by the Planning and Zoning Board as well as the City Council as to setbacks and height. Mr. Bennett discussed benefits of the new structure: pile foundation, wind load design, current building codes, turtle protection features, etc. Due to a shift in the ocean bluff line over the years, the proposed structure would be built landward an additional six feet. He referenced discussions with town officials exploring options and clarifying that a variance of this type could be granted. The owners did not wish to increase the density, simply to maintain the current density (i.e. principal structure, duplex, and detached garage). 1

19 Regular Meeting June 30, 2005 Chairman Schaefer reviewed the specific criteria for granting a variance with the applicant. Mr. Bennett felt that a hardship existed due to a shift in the dune line over the years. Member Wildman pointed out that adjacent properties also experienced a shift in the dune line. Member Ross felt that the main difference was the non-conforming status of the property in that it was occupied by more than one structure. Attorney Gougelman directed the Board to the Code of Ordinances related to granting variances. The Code provided that a variance was authorized only for height, area, size of structure, size of yards, and open spaces. Did the subject variance meet this standard? The zoning official s responsibility was to interpret the Code; accordingly, Town Planner Ed Washburn ruled that because the existing property already exceeded the allowable density, a variance to allow demolition of a non conforming structure and rebuilding of same was appropriate. There was some question as to whether or not the present codification was in error as to this provision as both the zoning official and town attorney recalled language allowing greater latitude in granting variances. Attorney Gougelman reminded the Board members that, in their deliberation, all criteria for granting a variance were to be considered, not just the undue hardship provision. Discussion then shifted to the related request for a variance from the coastal construction control line (No ). Mr. Bennett responded to questions from the board. A plot plan was provided showing the proposed location of the structure, however, building plans were not available because a decision on the variance was still uncertain. To do otherwise would be extremely costly to the applicant. Member Wildman noted that submittal of building plans was a Code requirement for a coastal construction control line variance. He wondered whether or not this provision could be waived. Attorney Gougelman commented on the possible history of this provision, theorizing that the size of the structure might have some meaning with regard to erosion rates. Mr. Bennett mentioned that Brevard County had similar language requiring plans for coastal construction line variances, however, this requirement for detailed construction drawings was routinely waived. Attorney Gougelman advised that technically, the board could not waive the requirement for plans, however, counseled the board to focus on the location and height of the structure, etc. At this time, Sean Murphy, owner, provided a copy of the proposed elevation of the structure which the board studied. The board determined that these plans were acceptable for the purpose of proceeding with the variance. The attorney advised that any variance, if granted, should be tied to these specific plans. Attorney Gougelman reminded the board that the applicant was seeking two variances to the coastal construction control line, specifically, Section 5A-6 (1981 line) and Section 4A-96 (1986 line established by the State of Florida). Chairman Schaefer went on to review the criteria for granting coastal construction control line variances. Mr. Bennett elaborated on the responses provided in the written application. The board entertained comments from the general public at this time. Attorney Joseph Colombo represented Dr. John Magri, the owner to the north of the subject property. He presented his client s objection to both variances, however, more stringently to Variance No being the expansion of a non-conforming structure. There was not an undue hardship on the owners, particularly since it was stated that the hurricane damage was minimal and the structure could be repaired at less than 50 percent of its value. The request was for a substantial enlargement of the principal residence. He did not feel that any of the criteria for granting a variance were met. 2