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08-28-1986 Special l . ~ ~ O ,'~ .J: t~/~ ,~I~"'- , r l CITY OF EDGEWATER BOARD OF ADJUSTMENTS SPECIAL MEETING AUGUST 28, 1986, 7:00 P.M. COMMUNITY CENTER MINUTES Chairman Garthwaite cal led to order a Special Meeting of the Board of Adjustments at 7:00 P.M., August 28, 1986, in the Community Center. ROLL CALL: Members present were Richard Morgan, Louise Martin, Al ice Murphy, Ray Savini, Robert Wolfe and Bob Garthwaite. Also present were Beverly Kinney, Secretary and Lynne Plaskett, Planning Assistant. Board Member Jimmy Newell was excused. OLD BUSINESS: SPECIAL EXCEPTION TO ALLOW GAS PUMPS IN A B-2 DISTRICT: SHOP E Z, INDIAN RIVER BLVD. Mr. Earl Wal lace and Attorney Gillespie were present to represent Mr. Richards, along with a court reporter. Attorney Gillespie requested to speak. Chiarman Garthwaite granted his request. "I am \4i 11 iam M. Gi llespie. I am an attorney at law. I had been retained by Mr. and Mrs. Richards the other day, subsequent to the other meeting you adjourned from, to assist him here this evening, and of course, assist the Board in it's decision 'on the petition that is present before you." "Mr. Chairman, I'd 1 ike to request that any evidence such as a letter from the City Attorney for the Board be admitted into the record that is establ ished by the corporate court.~ Chairman Garthwaite read the letter from City Attorney Alvarez to the Board in reference to the Boards letter to him. Chairman Garthwaite brought up the pumps being in the sixty (60) foot setback. There was a letter from Mrs. Plaskett stating the Ordinance stipulates a sixty (60) foot setback on Indian River Blvd in conjuction with the Department of Transportation. The reason is that in the event State Road 442 was widened, the buildings and/or parking areas built will not be too close to the road way. This usually is brought up at the time of the site plan review by the Planning and Zoning Board. Mrs. Plaskett added that the Board of Adjustments would only address it in the event that they ask for a variance. Chairman Garthwaite informed the Board that they were addressing the fact that Mr. Richards is requesting a special exception to al low gas pumps in a B-2 zoned area which is permitted by our Ordinance 36-0-3. Mrs. Murphy:asked if she was correct in thinking Attorney Alvarez stipulated the wording can be changed from shal I to may. Lynne Plaskett informed the Board that it would have to be done in Ordinance,form. Mrs. Plaskett informed the Board the way the ordinance reads, the gas pumps must be seven hundred fifty (750) feet apart. The problem is that there is a very 1 imited amount of area that is actually zoned B-2. If the intent was seven hundred fifty'(750) feet to keep them at a far enough distance apart to not allow gas stations, convenience stores with gas pumps, the sale of gasol ine and other products in a closely knit neighborhood district then we have to look at the fact there is a very minute area this is zoned B-2 and that only one convenience store with gas pumps would be allowed, no matten where in that district they put it on Indian River Blvd. vIe do have a B-2 district that runs on Hibiscus and Mango*that runs all the way down to thirtieth (30th), so the impact of the residential people that would use those services stations would be thirtieth (30th) street and Indian River Blvd until you get up to U.S.l, where this is exempt from the B-3 district. From What Mrs. Plaskett could understand from talking to the Attorneys from both sides, is that we have a problem with the fact that Mr. Richards has appl ied for his special exception first. If you grant his special exception and then 7-11 is denied their special exception, then actually Mr. Richards would have a n~nopoly in that particular district. If you -1- * In reviewing minutes, Mrs. Plaskett meant to say Guava nrivp nn~ ~~n"" '-> u grant his special exception and then 7-11 is denied their special exception, then actually Mr. Richards would have a monopoly in that particular district. If you allow the 7-11 people to go in within that seven hundred fifty (750) feet, then we would have to change the ordinance from the word shall to the word may, or you have a third option by denying both of them. Mrs. Plaskett's interpretation is that the seven hundred fifty (750) feet was put there for a reason, and the seven hundred fifty (750) distance does apply to convenience stores with gas pumps. Mrs. Plaskett informed the Board that 7-11 convenince store could go in with no problem, but not with the gas pumps, if you decide you don't want them that close together. Chairman Garthwaite reminded the Board that the only thing they should consider is the fact that they are requesting gas pumps in a B-2 area. Mrs. Plaskett requested to hear both sides from the Attorneys and see what they come up with. Mrs. Plaskett stated that II at least one of the attorneys had gotten a copy of the minutes that back on June 5,1985, I believe, Mr. Richards originally appl ied for gas pumps in the B-2 district. At that time they were seeking to add gas pumps as a permitted use. As this went on and on, all the way through October, 1985, having'public hearings, tabling 'it, going back and forth, they decided to allow them as a special exception without the foresight of seeing that another convenience store with gas pumps might want to go in that same district on the same street, not being able to see the seven hundred fifty (750) feet might cause a problem in the future. I don't think anyone ever realized that we would ever come up with this problem when they put the seven hundred fifty (750) feet in or as a special exception.11 Mrs. Plaskett said that in reading the minutes of all those meeting, she still did not have a,clear understanding of the intent of the seven hundred fifty (750) feet. Chairman Garthwaite gave Attorney Gillespie permission to speak: "Mr. Chairman, the ordinance is fairly simple to conclude. You've got a shall in there and I think the Board of Adjustments is bound by the ordinance until it is modified by the City Council. Personally, I think it would be a good idea if they modified the ordinance, but at the same time, we are stuck here with an ordinance that specifically says you've got seven hundred fifty (750) feet of seperation between convenience stores can put in gas pumps. That being:!the case, I think the position of this Board now is to consider the procedural aspects of what has happened. The situation exists simply that Mr. Richards, who is a merchant, ~ho has been a merchant on this particular street for a number of years in a business that has been establ ished for a number of years, has come along and taken advantage of the ordinance this city passed to put in gas pumps. Now provided Mr. Richards, who is the first in 1 ine to do this has compl ied with the rest of the ordinance in the design and engineering and all those things, that I think it would be incumbent upon this Board and certainly, I think, the City Attorney to advise you that you have a legal duty to consider the appl ication at this time. Not to consider anyone elses appl ication who may have come along later, after the ordinance was adopted. What I'm saying is Mr. Richards, he is the fi~st in 1 ine. He is a merchant here with an existing business and he wants to add to it and I have unfortunately not had an opportunity to completely famil iarize myself with the drawings and the reports, but certainly, I think Earl here has furnished the Planning Board with evidence of compl iance and has brought this evidence before you. So I really am of the opinion that the next step for the Board logically is to follow the ordinance and consider the matters that are set forth in the ordinance to consider. I don't think anyone else is before the Board I on appl ication at this time and that principally is my position, Mr. Chai rman." Mrs. Plaskett informed the Board that they have come before the Planning and Zoning Board and that was tabled. Attorney Gillespie: "\1hat I'm saying is that Mr. Richards came before the Planning and Zoning Board, the first applicant. Mr. Richards then came here at the last meeting before the meeting of the Planning and Zoning Board. Therefore, at the last meeting of this Board, except for the objections of someone who has not yet made an appl ication to the city, this Board should have acted. It didn't act wisely to, of course to the instruction of the City Attorney, but nonetheless, had this Board followed the ordinance at the time, there was no one else before the city properly. I submit to you, this merely is a continuation of that meeting. Now what occurred before the Planning Board last week is not -relevant to the activities of this Board at this"time;, and that's why I submit that I think this Board has an obligation to contend with the application at this time and no one elses, because they did'nt come here.~ Chairman Garthwaite told Attorney Gillespie that was what the Board was doing tonight. Attorney Gillespie: I'That's what I mean, Mr. Chairman. I want the record to show that that's the position of the petition." -2- '-J <J Chairman Garthwaite asked the Attorney for Florida Shores, Bob Trumbo, to speak. Bob Trumbo: III think t1rs. Plaskett has put her finger on the problem. \-Ie reviewed the minutes in connection with the ordinance that created the special exception for convenience stores and gasol ine pumps, and there is no expression in there as to what the intent was behind the seven hundred fifty (750) foot requirement. Now I want to emphasize that our purpose in attending the meeting last time around was certainly not to thwart the efforts of Mr. Richards. We1re not trying to stop Mr. Richards from What we are trying to do is identify the intent of the seven hundred fifty (750) foot requirement. If it is an irrational intent, if it is an arbitrary attempt, then it is obviously an inval id 1 imitation. We think it is relevant to state our position at this time so that we can avoid a possible court action a little later on. I think that we can all appreciate the fact that we are talking about a very large residential area, and if we fol low the strict wording of this statute as it now reads, we get an irrational result. We have effectively two such convenience stores with pumps located in a vicinity to service a potential of seven thousand (7,000) home sites and it was our hope, and originally I bel ieve he planned on attending, it was our hope to have Mr. Alvarez here this evening so that he could identify the intent of the seven hundred fifty (750) foot 1 imitation and we could get this all squared away. Right now we are still in limbo, we don't know what the reason is for the requirement and in effect what we feel that would be occurring her~ and until that intent is identified if you grant this appl ication, then you are giving a virtual monopoly of this area to one party and imprejudicing the rights of another, but again, it's our approach is that the situation should allow for other parties to have conveninence stores and put in tanks. And itls not that this is an attack against Mr. Richards, it's a broader overview that we should all be entitled to participate.11 Attorney Gillespie'was given permission to respand by Chairman Garthwaite. Attorney Gillespie: "lf that is the reason of the objecting party, then they are not before the proper Board. The proper forum in the City of Edgewater to enact or repeal ordinances, Mr. Chairman, is the Council of Edgewater. That is where they should begin to change the ordinance. The ordinance does'nt need construction. The ordinance is perfectly clear. If it creates a monopoly, then possibly that is what the intent of the city to do. And I submit therefore, that the argument of monopoly might imply to a dozon different people who might come in and try to apply for the same particular use of adjacent property. I donlt really know what the dimensions' of this pr.operty is, all I know is the City of Edgewater can change their zoning from time to time in B-2 and that same ordinance would then apply. So I submit to you that the ordinance making power lies within the City Council. Now to construe the ordinance, and 11m sure your attorney will advise you also, we have to determine who construes ordinances. If there is a question involved, it's the courts, it's not up to us. All we do is present arguments to the proper tribunal and 11m of the opinion that this ordinance is not vague and ambiguous, this ordinance is perfectly clear. It just says in this particular zoning district within so many feet only one appliance of this nature or use of this nature can be made and I therefore submit, since Mr.' Richards is properly before this city through all of it's tribunals, his application is the only one to consider, not somebody else who might want to come along later, at this time." Chairman Garthwaite: "I want to get one thing straight. The city is not trying to grant anybody a monopoly. 11m sure that was never the intent of anybody in the city, whether it was the Planning and Zoning Board that drew up this ordinance, or the City Fathers we now have.'1 ,; Attorney Trumt~ III was just going to respond that the ordinance is vague and ambiguous, because it refers to chapter 713, and chapter 713 does not contain within itls definitions of any of the types of service stations a convenience store with gas pumps. Now that simply does not fall within any of the definitions as they presently exist. That is an ambiguity in the ordinance.11 Attorney Gillespie: liThe duty of this Board is to follow the laws of the City of Edgewater Mr. Chairman, and not to determine whether the laws passed by the City Council are vague and ambiguous. Only the City Council and the courts can do that, And therefore, that argument just does nit hold." Chairman Garthwaite: "What we have got to consider is the request for these pumps in a 8-2 zone. If there is problems with this ordinance, this is something that is going to have to be worked beyond this Board. 11m not a lawyer, unfortunately, our attorney is not here. We will have to do the best we can. Hopefully, we donlt make a mistake. Mrs. Plaskett advised the Board to review the criteria for special exceptions and -3- . Q o go over each one of the items in regards to this case and see if they meet all this criteria. Mrs. t1urphy brought up possible rezoning somewhere else along Indian River Blvd. for 7-11. Attorney Trumbo: IIMr. Chairman: on that subject, May I have Mr. Will iams address just the area in question, because I think it may help identify the whole matter._ Donnie Will iams: "This is a map of Florida Shores, and the area that is colored in green is a B-2 zone.and circled in red are, by your laws and rules and ordinances, the only places that gas pumps could be put in the B-2 zone. One at thirtieth (30th) Street and one at Indian River Blvd. By your conditions on the application, the five criteria for the special exception, it would be impossible to put a gas station along Hibiscus or Guava just simply because of your traffice and you flunk the exam on your conditions for a special exception,and the thing we are stating, if you look at your map on the wall behind the Chairman, you can see the magnitued of Florida Shores, which is larger than most Florida towns and is growing at a fantastic rate, and if you apply the ordinance code 713, which was really written for service stations i1 i and if you read it, it plainly says that to this special condition you would be I imiting the residence of Florida Shores to those two service stations. And as the attorney said, we are not against Mr. Richards doing it, we just think that particular get of unique conditions and would deprive the resident5 of Florida Shores.'1 Chairman Garthwaite went over the five (5) criteria for granting a special exception with the Board. The special exception met the five (5) criteria and was granted by the Board. Mr. \1olfe asked Mrs. Plaskett if she, as planner, could make a recommendation to the Planning and Zoning Board to change the wording of the ordinance. She said she could. Attorney Alvarez was present to address the questions from the Board and to try and give the Board an understanding of section 713. Attorney Alvarez asked the Board if they wanted to consider the seven hundred fifty (750) feet to apply and asked if it was reasonable given the B-2 area. Mr. Wolfe did not think it was reasonable, because of the small area that is zoned B-2. Attorney Alvarez asked the Board how they would handle cases that come before the Board in the meantime. Attorney Alvarez told the Board that what they were talking about was a special exception. He reminded the Board that with a special exception the Board can use a lot of discretion or place conditions to attach to the special exception. The Board can grant a special exception subject to the Council approving the amendment to the ordinance. Mrs. Murphy wanted to know where the I imitation would be if the ordinance was amended. Mrs. Plaskett told Mrs. Murphy that the special exception is basically to the use. The reason you have a special exception is so that you can put conditions on them. Mrs. Plaskett informed the Board that the B-2 district could be extended to the highway if necessary. Attorney Alvarez reminded the Board that in this case the criteria of 713 was designed for gas stations and garages, not convenience stores. Gasol ine is just one more retail item as far as convenience stores go. Attorney Alvarez informed the Board that if the ordinance is amended, the cases that come before the Board in the future can be dealt with in a flexable manner. The original intent was not for convenience stores, but for gas stations. From What Mrs. Plaskett and Attorney Alvarez have determined the basic reason for the seven hundred fifty (750) feet was for asthetics. The commission did not want to have them too close together in a neighborhood business district. When the ordinance was amended the city was after, at the time, was to avoid a loop- hole of the type C definition of gas stations. We didn't have any convenience stores back then. Mr..Savini said that the seven hundred fifty (750) feet really does'nt serve any purpose as far as convenince stores go. Attorney Alvarez said that what the Board was looking at was the asthetics. Attorney Alvarez asked the Board what they thought a reasonable distance would be that would not deprive owners of the use of their property. Mr. Savini felt it should be depending upon the individual appl ication. Attorney Alvarez said that if the Board felt that way then that is where the word may would apply. This way the Board can look at each case. Mr. Wolfe made a motion to have Mrs. Plaskett send a letter to the Planning and Zoning Board to have the wording changed from shal I to may, so that when things come before the Board there is not a conflict of interest with the city ordinance or all of the criteria in 713. Mrs. Martin seconded the motion. Motion carried 6-0 -4- '-J u VARIANCE REQUESTS: Lynne Plaskett informed the Board that all variances granted at the last meeting were done illegally, because the parties involved did not meet the five (5) criteria, but were given a variance anyway. In the future all people wishing to apply for a special exception or variance will get the application from t~e secretary to the Board of Adjustments, and fill it out, including drawings. Before turning in the appl ication and paying the appl ication fee they are to see Lynne Plaskett. Mrs. Plaskett will be able to determine how they stand, whether they should apply or not. She can try to discourage those people who shouldn't apply from wasting their time, and money and your time. Lynne Plaskett told the Board that when someone comes before the Board for a variance, all five (5) criteria must be met before the Board can qrant the variance. If there is any doubt in your mind that they meet the criteria you have to deny the variance. There is no majority rules. They must prove to the Board they meet all five (5) criteria and that there is a hardship. This is part of the problem with the ones that are coming back before the Board. Chairman Garthwaite added that from now on all plot plans will have to be drawn to scale if the appl ication for variance or special exception is to be accepted. MILDRED LIPSCOMB REQUESTING VARIANCE OF FIVE (5) FEET TO ALLOW ERECTION OF A CARPORT OVER EXISTING DRIVEWAY 111 EAST PARK AVENUE. The Board discussed the appl ication for a variance, going over the same points as in the previous meeting and discussion. Mr. Wolfe made a motion to grant a variance for a carport with the stipulation that the carport is never enclosed. The motion was seconded by Mr. Savini. Motion Carried 6-0. ROCKY'S ALUMINUM PRODUCTS REQUESTING FOUR (4) FOOT VARIANCE TO ALLOW ERECTION OF A CARPORT AND UTILITY ROOM 1013 EGRET COURT. The Board discussed the application for a variance, going over the same points as in the previous meeting and.'discussion. Mr. Jones from Rocky's Aluminum said that the way the land lays, Mrs. Hann is the only one in there that is going to have to have a variance, because of the setback problems. Mrs. Hann was told by the individual who owned the house that she could put one up there. Mr. Jones talked to Mrs. Plaskett and she informed him that she didn't think the variance would be granted. Mrs. Plaskett asked Mr. Jones what the hardship was. Mr. Jones said there really was not any hardship. Mrs. Hann has got a thirty (30) to forty-four (44) foot driveway there. She pulls her car up on it and the sun is beating down on it. She has got about a fifteen thousand (15,000.00) dollar car, and she would like to get it under a shed. Under that same shed she wants to build a small utility room. Mrs. Plaskett informed the board that Mrs. Hann knew when she purchased the house there was no carport there. Mrs. Hann called Mrs. Plaskett and Mrs. Plaskett told her at that time she could not have a carport before Mrs. Plaskett talked to Mr. Jones. fIrs. Plaskett also informed the Board that any additions would have to comply with current setback regulations. There was further discussion by the Board. The variance request did not meet the five (5) criteria and was denied by the Board 6-0. Chairman Garthwaite asked Attorney Alvarez if the Board was correct in changing it's decision regarding this variance request. Attorney Alvarez stated that when you take an action as a Board and that action is not within the scope of the powers that you have by state statute and by the city code, it is just as if you never took the action. BELMONT HONES REQ.UEST FOR VAR I ANCE FROM TH I RTY (30) FEET TO TWENTY-F I VE (25) FEET TO ALLOW ERECTION OF A PATIO AT 125 ORANGE AVENUE. The Board decided to table this because no one was there to represent Belmont Homes or 125 Orange Avenue. Motion to table variance was made by Mr. Wolfe, motion seconded by Mr. Savini. Motion Carried 6-0. There being no further business, Mr. Savini moved that the meeting be adjourned. The meeting adjourned at 10:45 P.M. Minutes respectfully submitted by: Beverly Kinney -5- Board of Adjustments Minutes of August 28, 1986 Meeting