10-09-1986
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CITY OF EDGEWATER
BOARD OF ADJUS'IMENTS
October 9, 1986 7:00 p.m.
Corrmunity Center
MINUI'ES
The Chairman of the Board, Robert Garthwaite, called the meeting to order
in the Corrmunity Center of Edgewater at 7:00 p.m.
ROLL CALL:
Members present were: Chairman Robert Garthwaite, Richard Moran, Jirrmie Newell,
Louise Martin, Alice Murphy, Ray Savini, Robert Wolfe. Also present were:
Mr. Willis Jenkins, Mr. George Mundell, Attorney Sid Peterson, Jill Keeping
(representing Edgewater Plaza Business OWners Association, who were also
present), Mr. Baker, Mr. William Riggle, Mr. Di Benedetto.
APPROVAL OF MINUI'ES
Mr. Garthwaite called for approval of the minutes of September 11, 1986 meeting.
It was noved by Mr. Wolfe and seconded by Mr. Savini that the minutes be
approved, and notion CARRIED 7-0.
OID BUSINESS
None
NEW BUSINESS
Williams, Donnie J. - Special Exception to allow retail sales of Gasoline at
Convenience Food Stores-Zoned B-2, Indian River Boulevard and Fern Palm Drive.
Mr. Garthwaite announced the above application has been withdrawn.
Mundell, Chris (Bric-A-Brac) - Special Exception to permit outside display,
storage, or sale of vehicles in B-3 Zone at 2018 S. Ridgewood Avenue.
Mr. Garthwaite addressed Mr. Mundell, husband of Chris Mundell, asking him to
sit with the Board or whatever he wished. Mr. Mundell's Attorney, Sid Peterson,
then introduced himself, saying it is his first time before our Board and that
he is not familiar with our system. Mr. Garthwaite then asked the secretcu:y if
City Attorney Alvarez was to be here and she answered yes. Mr. Garthwaite then
asked Attoney Peterson to please be on hold until the City Attorney arrived.
Mrs. Jill Keeping, an Edgewater Plaza business owner, asked if questions could
be asked during this meeting and Mr. Garthwaite assured her she could speak when
the Board is discussing this case. Mr. Garthwaite then asked anyone in the
audience who might be interested in the "Bric-A-Brac" case to please come up
to the stage and pull up some chairs. Several minutes went by until everyone
was settled.
At 7: 10 Mr. Garthwaite announced we would go ahead and get started with this case.
He then read a merro from the Planning and Zoning Board, recorrrnending denial of
Special Exceptions of this type until the Planning and Zoning Board can really
evaluate the Ordinance as far as definite quidelines to go by, limitations as
to what can be displayed, how much space can be used for outdoor display, and
that the areas involved are not eyesores to the corrmuni ty. Mr. Garthwaite asked
if there were any questions from the members of the Board, and Mr. Newell
stated if the Planning and Zoning Board believes they have questions that must
be answered, the Board should wait until we get the answers. Mr.. Garthwaite
stated we don't want to take a hard line and say he can't do anything until
the Planning and Zoning Board comes up with their answers. ~ll. Garthwaite
stated he had been thinking, as a temporary measure, to grant a Special
Exception with a limitation of three or six nonths, and wait for the Planning
and Zoning Board to come up with whatever changes in the Ordinance. they. want
to make. He continued the applicants could then come back for a permanent
Special Exception. Mrs. Murphy said there are many places displaying outside
and Mr. Garthwaite agreed, saying they should all come under the same thing.
Mrs. Murphy asked how we could say one person can do it and another can't.
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Mr. Garthwaite said what we want to do is protect the City and also the business
man in the City, but do it in a manner that is not going to.put us in a permanent
bind as far as the City goes, for if we do it with one, we have to do it with
everyone. Mrs. Murphy suggested perhaps they are going to have to draw a line
along U. S . 1 and say no one can display in front of this, or else they would have
to get an Ordinance saying people rray display if they have fences. Mr. Garthwaite
said the fences are for storage, and the !>1undells have done that. Mrs. Murphy
added Mr. Mundell puts articles out in what is a fast lane, but if you don't,
you don't attract people. Mr. Garthwaite stated again we don't want to tell him
he can't do it, and we don't want to say yes, he can, until the Planning and
Zoning Board gets a chance to lCXJk through it, and that is why he believes a
temporary Special Exception with a time limit would do it. He continued that
three rronths would not be enough tine for any zoning chane. or Ordinance change,
and six rronths is reasonable. Attorney Sid Petersen then said he is in agreement,
as this is quite a novelty, Mr. Mundell being the first one to apply for a Special
Exception under this ordinance; that we all know it is being done and the Board
will now have to address the issue , especially since the Special Exception is on a
case-by-case basis with the five criteria to be met. Mr. Peterson believes this
type of case just does not fall under this type of five criteria; for example,
utilities - is that pertinent to outdCXJr display? He continued that Mr. Mundell's
business certainly is hurt by not putting a display outside, and somewhere along
the line the City is going to have to IPake the perimiters from which you can or
cannot do it, which he believes would have to be done by an Ordinance. Mr .
Peterson continued he believes Mr. Garthwaite's suggestion is a good one, and
the only thing he would ask is that his client would not be forced into going
through a reapplication fee six rronths down the road. Mr. Garthwaite explained
the City now has a full time planner, sorrething we have not had. Mrs. Martin
stated it is the kind of item you really cannot control, as you don't know
what kind of it~ are going to be out there from day to day, which means Route
1 would have to/~lice:i and an untidy thoroughfare would eventually be up and
down the road. Mrs. Martin also said she believes one good sign stating the
facts of the business should be sufficient instead of cluttering up the highway.
Mr. Newell stated Attorney Peterson had rrentioned these cases are on their own, but
that is why they come to this Board for a Special Exception and Mr. Newell
believes this Board has to IPake the decision that this could be a bad eyesore
or whatever, and we know there has to be some display of the business, we under-
stand that. Mr ~ Newell then said the Board has to decide what is going to be out
there and whether it will be an E!yesore or not. Mr. Garthwaite said that is
exactly what the Planning and Zoning Board is going to address, just what
limitations are to be put on it. Mr. Savini said he believes they should regulate
the distance fran the street to the display, end the l:x:>ard agreed that is
sanething the Planning and Zoning Board will have to work out. Quite a
discussion followed as to the exact placing of signs with Mrs. lfartin saying
it is all coming down to the fact the the Planning and Zoning Board will have
to look at the access off U. S. 1, and back onto U. S. 1; the parking; how much
display area he can have. Mrs. Murphy state she believes our hands are tied at
this tine and Mr. Garthwaite said basically, this should be done by Ordinance,
and the Planning and Zoning Board would like some rrore time and that is why he
is suggesting the six rronth period, as Mr. Mundell has complied wi th practically
all regulations that are in the book. Mr. Newell then rroved that the Special
Exception be granted for a period of six rronths or until the Planning and Zoning
Board I s criteria is developed. Mr. Savini seconded the rrotion. Mr. Garthwaite
then asked if anyone in the audience wished to speak, and Mr. Jill Keeping
stood up, saying she was representing fifteen members of the Merchant's Association
of the Edgewater Plaza. Mrs. Keeping said this place of business is looking rrore
like a flea rrarket everyday, but their main objection is to clothes hanging on
lines, beds and old sofas and rrattresses being displayed, as the Association is
trying to keep the area in a business-like atm::>sphere. Mr. Garthwaite told Mrs.
Keeping the Associaiton can go to the Planning and Zoning Board with their
objections. Mr. Keeping then asked if Mr. Mundell could still have his clothes
and beds, etc. out front and Mr. Garthwaite said yes, until the Planning and Zoning
Board comes up with a change in the Ordinance. Mrs. Murphy stated she was sure
Mr. . MUndell would not want to violate anything at this point as he is lCXJking for
some lenience. Another member of the Edgewater Association stood up, a Mrs. Fisher,
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and stated the Associaiton Members are not allowed to put out flashing signs and
if this man can ask f or a Special Exception and get six rronths, then why can't
they get flashing signs? She also asked if they could get a petition together
and Mr. Grrthwaite said yes, present it to the Planning and Zoning Board.
Mr. Moran then inquired if the fee would have to be paid again at the end of six
rronths and Mr. Garthwaite asked the secretaJy to write a merro to Administration
inquiring about this. Mr. Garthwaite then asked for a roll call on the rrotion
previously rroved and seconded. pertaining to the six rronth Special Exception, and
the rrotion CARRIED 6-1, Mrs. Martin voting No. Mr. Garthwaite then announced
to Mr. Mundell that he has a Special Exception for six rronths or until the
Ordinance has been revised and that he will be so notified of whatever criteria
he will have to meet besides what he has already met. Attorney Peterson asked
to be kept infonned and Mr. Garthwaite told him to call City Hall for the Agenda
of the Planning and Zoning Board.
B.J. 's General Merchandise - Willis Jenkins - Special Exception to pennit outside
display of General Merchandise in B-3 Zone at 411 S. Ridgewood at Ocean Avenue.
Mr. Garthwaite announced this as the next order of business and asked Mr . Jenkins
to sit at the table if he so desires. Mr. Garthwaite explained to the Board
that this case is the same idea a; Bric-A-Brac, outdoor display. Mr. Jenkins
said he believes it is up to the business man to take care of his property so
that it is keptclean.and-decent, stating. < he has a VCR ta~e showing everyone
in the neighborhood keeps merchandise out. The Board discussed the dimensions
of the property, with Mr. Garthwaite asking who owns the rrotel, and Mr. Jenkins
replied Mr. Ralph Di Benedetto, who is in attendance this evening. Mr. Garthwaite
asked Mr. Jenkins about the vehicles he had seen Parked there and Mr. Jankins
answered there weren't any abandoned vehicles there; they had just been rroving
merchandise in and out. A Mr. Baker then asked if he could speak and told the
Board you can't find a better business man than Mr. Jenkins; that it is nice
and quiet; that Mr. Jenkins is no trouble. Mr. Newell asked if the merchandise
sitting around might not be detrirrental to the rrotel, and Mr. Baker stated the
rrotel, for the first time in years, has been full. Mr. Newell said he owns a
rrotel and he wouldn't want that merchandise sitting in front of his rrotel. Mr .
Jenkins stated his business is not like the lady here who has a delicatessen;
she can put a sign that says "Deli" and you know that's in there, but with a
general store, you have to put things out there, such as clothes racks,. Mr .
Jenkins then went on to describe the merchandise he does sell, such as dolls
and toys. Mr. Garthwaite asked the dimensions of this property and the Board
spent several minutes detennining there is about forty feet for Parking,
according to the drawing, but the drawing seemed to be incorrect. Mr. Garthwaite
then asked the owner, Mr. Di Benedetto, if he was the owner of the 160 feet,
renting 90 feet to Mr. Jenkins and keeping the other 70 feet for himself, and
Mr. Benedetto answered yes. Mr. Newell then rroved this case be handled the same
as the first one, that is, a Special Exception for six rronths or until the
Planning and Zoning Board's criteria is developed, seconded by Mr. Wolfe. Motion
CARRIED 6-1, Mrs. Martin voting No. Mr. Garthwaite then told Mr. Jenkins his
Special Exception has been granted, that it is for six rronths and he will be
notified as to what criteria he must meet.
Mr. Garthwaite then read a merro from Mrs. Martinez, stating the City Council
has requested the Board to schedule a special meeting to consider the request
of Mrs. Helen Hann at 1013 Egret Court, stating Mrs. Hann has a physician's
statement c;oncet'hj..ng this _ case. The Countil also asked to be advised when
a date has been selected. Mr. Garthwaite explained to the Board this merro
concerned a carport at Pelican Cove West and asked for any discussion. Mr .
Wolfe stated the first time we considered this case we granted it; then the
second time it was not granted; now they want to do it differently again. He
continued he would like the Board to send a letter to Mrs. Martinez that we do
not believe there has to be another meeting on this, and if the City wishes to
give the lady that variance, let the City Council do it. Mr. Garthwaite
expressed the view that it is not only Mrs. Hann.'s property in there, but other
places with the same problem and the property sf10uld -be' rezoned. Mr. Wo~fe answered
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of October 9, 1986 Meeting
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yes, and what we \\Duld be doing is breaking the law; we granted it the first
time and had egg on our face when we gave it we denied it the second time
and nON they are saying we should have left it alone the second time, so why
should we have another meeting. He continued the Council could give the lady
her Variance; they are supposed to be the last, right? The Board discussed
the fact that Mrs. Hann should nON go to Circuit Court but the secretary stated
Mrs. Martinez stressed it was not Mrs. Hann asking but Council. Mr . Garthwaite
then discussed a meeting held by Council where a citizen of Pelican Cove West
raised questions about our decision and Mr. Garthwaite believes that is where
confusion set in. Mr. Garthwaite also continued the Board doesn't know what
the set backs are over there; that he bel;ieves the only set back changes
made in that R-4 district, Phase I, was to the back; they can put in porches in
the back; that nothing is said about a side set back. Quite a discussion followed
as to whether an Ordinance was ever passed or just a private meeting, and Mrs.
Murphy asked if they had passed an Ordinance at that time. Mr. Garthwaite said
he has read the 20th Supplement and no change about side set backs was noted, not
even rear set backs. Mr. Savini stated he recalled a meeting with City Attorney
Alvarez where the City Attorney informed the Board they just took Phase I and
Passed just for the screen rooms. ltr. Savini also stated he believed that when
a carport is open, not closed in, it is the same as the carport case we passed a
little while back, but when you put a utility room at the end of the carport, it
is a whole different ballgame; you have a closed building wi thin six feet of
the line and I don't think you can do that. A discussion was held concerning
the medical problem of stepping from an air conditioned house to a hot car but
discussion continued as to whether this is really a hardship. The Board suggested
rezoning of this area to decrease the size of the set back, which is usually
done when there is a general hardship of the whole area. tl'rr. Garthwaite then
suggested the Board send a merro to City Attorney Alvarez, asking what has been
passed allONing a screen room wi thin eight feet of the rear set back line in
Pelican Cove West, phase 1. Mr. Garthwaite then decided the me.rro should go to
Mrs. Lynne Plaskett.
City Attorney Alvarez arrived at 8:05 and imnediately explained to the Board
that a written piece of paper had been sent to the Board concerning the gas
pumps and it was not a legal opinion, just a merro he gave to his secretary to
send to Mrs. Plaskett, that the initials on the merro are not his. He continued
that he wanted the Board to know this was not a legal opinion, it was a merro
discussing the use of "shall" in an Ordinance, or the \\Drd "may". Mr. Garthwaite
then asked City Attorney Alvarez just what the set backs are in Pelican Cove
West; had they been changed; was it just the rear set backs, not the side set
backs that were changed? City Attorney Alvarez stated Pelican Cove West, Phase I
set backs were changed, and Mr. Garthwaite asked the secretary to secure a copy
of that Ordinance. A very lengthy discussion followed concerning Mrs. Hann' s set
backs with Mr. Garthwaite explaining to City Attorney Alvarez that Mrs. Hann
is four feet into the side set back with her carport. Mrs. Murphy said the
lot is non-conforming nON and we would be adding to the non-conformity. Mr .
Garthwaite also explained that Council has asked us to reconsider this case.
Mr. Wolfe explained to City Attorney Alvarez the procedure the Board had
follONed with this case and are now being asked to reconsider their decision.
Mr. Alvarez stated the first time he heard this case he was under the impression
Mrs. Hann wanted to use the rear, and 1>1r. Dennis Fischer said no, she has used the
rear one for enclosure, but this is a side one. Mr. Garthwaite then explained to
City Attorney Alvarez that the Board intended to send a merro to Council that they
have heard the case, have made a decision, and the decision stands; that if the
Council believes it is a hardship that is carmon to the whole property, we
reccmnend they rezone the side set backs. After discussion, City Attorney Alvarez
stated this was really very confusing. fI.tr. Garthwaite then gave a quick briefing
on the cases heard this evening concerning outside display special exceptions, as
City Attorney Alvarez had not arrived at that time. Mr. Garthwaite also stated
we would send a merro to Planning and Zoning, informing them of this action.
City Attorney Alvarez recorrmended that on the merro being sent toCouncil concerning
the carport, it should be recognized that the variance was granted the first time
and because of new factors, the bottom line is, it is a middle of the road case.
Board of Adjustment Minutes of
October 9, 1986 Meeting.
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City Attorney Alvarez then asked if there were any hardships, and Mrs. Murphy
stated Mrs. Harm could sell it and the man that rroved in might not have a hardship,
and the hardship ~uld then stay with the property. City Attorney Alvarez then
asked how the first opinion was changed, and Mr. Savini stated Mrs. Plaskett had
said it was illegal, with Mr. Garthwaite adding mainly because there were two "No's"
in the voting, basically due to the fact there was no hardship which the Board
should have considered, and the Board didn't believe there was a hardship. Mr .
Garthwaite continued the answer would be "No" to anyone else in the district as
there was no hardship, and that is why we turned it dawn the second time; we had
not considered the fact that there was a hardship, which we should have considered.
Mr. Garthwaite continued there was also confusion over just what the set backs were,
what had the Council passed? City Attorney Alvarez explained that if this case
were to go to Court, the Court would ask the Board their reasons for their second
decision, and Mr. Garthwaite replied Mrs. Plaskett had asked them their reasons
i:for granting; where was the hardship? City Attorney Alvarez entered into a
discussion of "hardships", whether it goes to the property or the owner and stated
he believes it goes to the land itself, to which the Board agreed. City Attorney
Alvarez also asked is there a hardship to this particular piece of property, one
that is not comron to the entire district? City Attorney Alvarez stated he believes
the hardship of this property was due to the City's failure to enforce an Ordinance
when they allowed building on that shape of lot, and Mr. Garthwaite replied
wouldn't it be up to the City, then, to just go in and rezone the whole thing?
He continued, we had shut down Shangri-La in the back; if we give a variance on
the side, we open another box again. He continued that is why he favors Council
rezoning. City Attorney Alvarez then said if Council allows a carPOrt to be built
over there, why could we not have one on Florida Shores? Why not? Mr. Garthwaite
agreed that if we open up variances there, we are going to have to do them in
other places. City Attorney Alvarez then asked if the Board's recornnendation is
that the Ordinance be amended to allow that, but Mr. Newell stated no, we had
made our decision and if Council wants sorrething done, let them change it. But
City Attorney Alvarez said the Council legislates, but only on the Board's advising
them it is the best way to go. The Board and City Attorney Alvarez then v.ent into
a discussion as to the Pelican Cove plan being a sore thumb; and City Attorney
Alvarez stated if this odd shape could be isolated to just one lot or two lots
and Mr. Wolfe (being a surveyor) studied the plan and answered it is Lots Nos.
14 and 15 who have the problem. City Attorney Alvarez then suggested this be
tabled until rrore information can be obtained.
Mrs. Martin then asked City Attorney Alvarez a question, before he had to leave,
concerning the gas pumps. She asked if the Board could suggest an addition
or: change in Section 713 pertaining to a canplete gas station versus
convenience stores with just gas pumps out:f[r:ont;.: that 750 feet is alright
for gas stations. City Attorney Alvarez explained to the Board how the change
came about in Section 713 and stated it was one of the rrost difficult Ordinances
to change he had ever encountered. However, he continued, they decided to
change the whole concept and introduce "convenience stores", the primary use
to sell merchandise and gasoline as only an addition. He continued that in the
process of changing provision 713 to include convenience stores with gas pumps,
no one realized at the time that Section 713 was designed for gasoline stations
and garages, not for convenience stores, and if if we say 713 applies to
convenience stores, why? especially under Special Exceptions. City Attorney
Alvarez then spoke with Mrs. Plaskett about this at the time and the result,
was, . let the Board of Adjustment make decisions concerning this criteria on
a case-by-case basis. He also stated the Board should recornnend "may" instead
of "shall", and if you want to have 750 feet you may; if you think 750 feet is.
too strict, you may want to have sorrething else, as the reason for the 750 f~t
is not clear. City Attorney Alvarez then stated that if the Board has an evll .
it wants to address to the legislative process, what is the evil here - the eVll
here will be that you do not want garages closer than 750 feet - why? - because
. the Fire Chief said because of gasoline fumes and gasoline exploding, you have to
have at least 750 feet; but one tank 800 feet away exploded and one at 500 feet
exploded, so it is reasonable to do it. He continued, that applied to garag7s
and gasoline stations, but as to convenience stores, we don't know, because 1 t
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of October 0, 1986 Meeting.
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is a new concept in the Code. City Attorney Alvarez stated that he is speaking
in generalities, not about Seven Eleven or whatever; but once you have a criteria
~u are going to apply, you must follow it every time for your special exceptions
or variances, and when the criteria is applied, you must detennine if that
criteria is reasonable to the situation, and if it is not, you have the right to
tell the Council to change the ordinance. Mr. Garthwaite said the Ordinance
should definitely be cleaned up in meaning and Mrs. Martin said then we are
creating a IIOnopoly. City Attorney Alvarez said that is something again, that
is a gcxxi argument, but it is one to which he would answer "that is too bad"; we
are not trying to do that; what bothers him is the 750 feet, as that was not
designed for convenience stores. He then stated that if we had to go to Court
and did not have a Fire Chief to testify under oath that 750 feet makes a difference
. to an explosion, he would not have a case, but he believes this case serves a purpose
in that the Ordinance has to be addressed, and whenever a special exception comes
to this Board, he would go so far as to say the Board is going to be able to
decide and further, when the Ordinance says the 713 criteria shall be applied
and divests the Board of discretion the State Statute gave them, that is an
~roPer legislative litigation.
A lengthy discussion followed pertaining to Florida shores originally being planned
with no commercial interests on Indian River Boulevard, but someone said no one
w:mld want to build right next to the railroad tracks, and so it was allowed.
Mr". Garthwaite asked if anyone knew why Southland pulled out and Mr. Wolfe stated
he believes they are going to approach it as they should, through Planning and
loning.
Mr. Garthwaite asked if there were any IIOre questions of City Attorney Alvarez,
and the Board answered no. Mr. Garthwaite then reminded the Board we had not
voted on the rnerrorandum to be sent to Council tabling the request from Mrs. Martinez
to set up a meeting on the Egret Court matter, IIOved by Mr. Wolfe and seconded
~ Mr. Savini. Motion CARRIED 7-0. Mr. Garthwaite asked the secretary to send a
rrerro to Planning and Zoning regarding the six IIOnth Special Exception to Mr. Jenkins
and Mr. Mundell. The secretary was also asked to;send a merro to Mrs. plaskett
asking her to check if a merro had been sent to Council regarding the changing
of Section 713.07.
There being no further business, Mr. Newell IIOved we adjourn the meeting, seconded
by Mr. Savini. Motion CARRIED 7-0, and the meeting adjourned at 8: 56.
Minutes suJ::rnitted by
Dorothy C. Garrity
Board of Adjustments Minutes
of October 9, 1986 Meeting.
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