04-02-1986 Special
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CITY OF EDGEWATER
BOARD OF ADJUSTMENTS
SPECIAL MEh'TING
April 2, 1986 6:00 p.m.
Community Center
MINUrES
The Chairman of-the Board of Adjustment, Mr. Garthwaite, called the
special meeting to order at 6: 05 p.m. in the Community Center of
Edgewater, and announced this meeting was requested by the Board to
meet with the City Attorney, Jose Alvarez, and ask him some questions.
ROLL C.n,,:('I,
Members present were Richard Moran, Jimmie Newell, Louise Martin, Alice
Murphy, Ray Savini, Robert Wolfe and Robert Garthwaite. Also present
was Jose Alvarez, City Attorney.
Mr. Garthwaite announced to Mr. Alvarez that the Board would like to talk
al::out Special Exceptions, Criteria for Variances and any questions the
Board lTay have pertaining to what our duties are, and perhaps Mr. Alvarez
could give the Board some answers that would help them. Mr. Alvarez asked
if there were any specific questions they wanted to ask right now, and tl'rr.
Garthwaite replied each member probably has his own questions. Mr. Alvarez
suggested he hear each of the members so as to have an idea what the concerns
are and he could then start to frame an answer.
.Mrs. Martin stated that on page 1645 under granting variances, (c) and (d)
state "do not" and "will not", so it is fuzzy as to whether you are saying
yes or no to such a statement. Mr. Alvarez then asked if there were any
other questions and Mrs. Murphy stated she doesn't understand corner lots,
as she believes a corner lot has two and sometimes three frontages; that
some people come in wanting to build a solid fence saying that is the side
of their house, but it is also the front of every other house on the street
and could block every one's view. Mr. Moran stated his question was similar
to Mrs. Martin's concerning the "will not" and "can not" phrases and believes
it is confusing to the applicant as well. Mr. Savini stated that is what he
would like to know, also, the proper answering of the above "will not" and
"can not" phrases. tl'rr. Newell agreed too many times we answer yes or no,
wondering if we should have said yes when we said no, etc. and he would
like to try and get them cleared up so they will be a little better understood.
Mr. Garthwaite had a question on the Land Use Plan, and asked if we could
interpret it as to the applicant meeting the Land Use Plan or is that
strictly the work of the Planning and Zoning Board. Mr. Garthwaite also
added that under "Granting Special Exceptions", "c", it states "The
requested use will be in conformity with the land use plan". Mr. Wolfe then
stated that, quoting from (b) of the criteria "strict application of the
provisions of this ordinance would deprive the applicant of reasonable
rights corrmonly applicable to other properties in the same district", but
he added that in the past, when a city was rezoned, it was rezoned for
the future rather than for the present, as you come in with non-conforming
lots and people come in for va.riances on non-conforming lots or set backs.
that it goes back to what Mr. Garthwaite was talking about, land use. That
to give or deny a variance, can you go back to the land use and say this is
what the land use of the future subscribes; are we giving a condition that
would deprive him of his legal right to use his land? Mr. JlJvarez then
\..;>ent into a discussion as follows:
I will take a few minutes and look at "What is the BOA? Hhy is it in existence?
What are the functions? ~.vhat basically is your job?" and we will then go into
the specifics of special exceptions and variances and rrore specifically, the
cri teria and the code. You are in a very delicate area of a free city
telling an individual how to use his land, how to use his property.
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Mr. Wolfe then stated he had been told the United States Supreme Court
said a man has the right to use his land, as lona as it is not interferinq
with the hEalth and welfare of the city. Mr. Alv~rez said ye2, zoning from--
the governmental point of view is a very, very, important function and there-
fore, this Board is, if not the rrost, one of the rrost important in the city
government structure. In recognition of tha.t, the State Legislature,
back in the sixties, said you will adopt a zoning ordinance in your city
that will regula:te the use of your land, that will classify the use of land
in the city; you will have a zoning ordinance, and you will have certain
criteria from that zoning ordinance, and as part of that zoning ordinance
you will also have a Board of Adjustments, so the Board of Adjustments is a
state board, as opposed to l:x")ards created by Council; the Parks and Recreation
Board and the Industrial Board are city boards. Board of Adjustments and the
Planning and Zoning Board are state boards, mandated by state law. The State
Statutes say who serves, how to be rerroved, duties of the board, criteria
for variances and special exceptions, and terms of office. He also added
that what it does is separate politics from the decisions you have to make;
the Board will have to make decisions that the legislative body really finds
difficult to make; it is a tough job.
Mr. Alvarez then n~d from the State Statutes the powers of the board,
hearing and deciding appeals, situations of hardship, how to adjust, that is
where it got its name, the Board of Adjustments. He also stated the safest
and rrost important guideline to grant or deny the special exception or
variance is by following your cri terias . Don't act in any manner that
is capricious or unreasonable; don't let your own personal notions or
personalities influence the decision you may make. A variance is when someone
says I cannot follow the terms of the ordinance, let me vary from that.
So in effect, what the person is saying is let me do something that the
ordinance does not let me do. Mr. Alvarez then stated a special exception
is someone who wants a break, something special done for him. It has to
be a listed use under the special exception provision of that particular
zoning classification; it is a use not included in those uses autowatically
permitted within a particular zoning category, but one which is permitted
in the event the property owner complies with certain conditions and where
the use will not adversely affect the public interest. Mr . Alvarez then
stated the Board can go into long discussions, listen and discuss the matter;
put a time limit on your decision, such as subject to the building inspector
going out there and checking it out and seeing if there are any cOID?laints
from the citizens in the area, etc.. Mr. Garthwaite then asked if, as long
as the applicant accepted those conditions, we could poll the special exception
and if i-t is no longer valid and it doesn't work out, would this be without
a lawsuit? Mr. Alvarez answered not to worry about a law suit, that is his
problem. tvlrs. I\ilartin stated the judge usually rules the property owner has
the right to do what he wants in the end. Mr. Alvarez answered no, it is
diff:.LcuIt for a judge to go against seven people.ls decision on the basis that-
you felt it was not the right thing and you have reasons for it; the only way
the decision gets overturned is if the record doesn't show you really debated
the questions to arrive at your decision in an intelligent manner; that you
used criteria that are not in the ordinance, such as "we have too many movie
theaters, we don't need any more" or, "I don't like used car lots".
Mr . Alvarez continued his discussion as follows: The rrost important thing
the court will look at on appeal is not why you made your decision, but how
you - made it. As long as the applicant had an opportunity to present his case,
to bring in his presentation, his witnesses, his experts, or whatever, and had
an opportunity to be heard; that the opposition had a chance to be heard and
present their views, and you then based your decision on that evidence and
your criteria, you are alright. tv"K. Alvarez then WE'.nt i:::to all the points
the Board should cover at the hearing and the procedures to be followed. Mr .
Garthwaite then asked who makes the determination that he applies to this
board, and ttr. Alvarez stated the way it reads now it states the Planning
and Zoning Board. Mr. Garthwaite then asked if the Planning Board makes
reconmendations to us and we don't agree, can the Board use that as part
of our criteria for denial and Mr. Al varez answered yes, their-: reconmendation
is not binding on you, that no matter ~;...,:~at the Planninq BoaTd decides, if the
Board of Adjustments feels that, based on the criteria, it must be denied, they
will deny it.
-2- Board of Adjustment Minutes
of Special Meeting held
April 2, 1986
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A further discussion ensued as to whether, to meet certain conditions,
the ay,plicant should come to the Board of AdjustmeiB first, and Mr.
Garthwaite stated we have to work something else out later as to what all
we require. Mr . Alvarez suggested we should plan to amend the ordinance,
that they don't need to go to Planning and Zoning if it is a pure special
exception, that they should come to the Board of Adjustment first. It can
then be granted with a condition or subject to Planning and Zoning approval.
Mr. Garthwaite then suggested we send a letter to Council requesting this
be eliminated from the ordinance (going to Planning and Zoning first) .
The Board then called for a recess at 7:15, reconvening at 7:20.
I>1r. Alvarez continued his discussion of a special exception, stating
it must comply with the comprehensive plan, that all decisions must be
based on the criteria; you must not deny because some neighbors are not
in favor. IV.ir. Garthwaite asked. if. we must confer with the Planning ~d Zoning
Board, and Mr. Alvarez stated it is in the Statute, and he presumes
there must be some kind of conmunication. Mr. Garthwaite said a letter
from them stating the applicant has met the set backs is all we have.
They state they will grant it if we give the applicant a special
exception. After much discussion, the Board, at the request of Attorney
Alvarez, decided to send a letter to the Planner, requesting that coming
to the Planning and Zoning Board first be eliminated from the Ordinance
and insertID::; coming to the Board of Adjustmerts first, although the Board of:
Adjustments may want to get a reconmendation from the Planning and Zoning
Board.
A discussion then followed as to voting on the criteria. Mr . Alvarez stated
the Board has to find that all- the criteria must be met. If vou vote 4-3 all
the way down the criteria, then you must grant it. If five ~ple (a rrajority)
vote against even one criteria, it must be denied. There must be a vote of
four, a majority, for each criteria; if 4 vote yes and 3 vote no on each
criteria, it would pasS:-- ..
Mr. Alvarez then discussed the "do not" and "will not" phrases as appear in/
the (c) and (d) of the criteria, and -Nr. Alvarez suggested the Board line
through the words "do not" and "will not", as it will be less confusing.
The Board again suggested the secretary send a letter to the Planner, stating
that special exceptions come before this Board before Planning and Zoning,
and ask for her opinion as to whether this would be possible.
After discussion of various cases heard by the Board in the past, Mr.
Garthwaite announced there was no further business. Mr. Newell then moved the
meeting be adjourned, seconded by IvIr. Moran. The meeting adjourned at 8: 20 p. m.
Minutes submitted by
Dorothy C. Garrity.
Board of Adjustments Minutes
of Special Meeting held
April 2, 1986
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