02-12-1987
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CITY OF EDGEWATER
BOARD OF ADJUSTMENTS
February 12, 1987 7:00 p.m.
CITY HALL
MINUTES
The meeting was called to order by the Chairman, Robert Garthwaite,
at 7:00 p.m. in City Hall.
ROLL CALL
~lembers present- were: Jimmie Newell, Louise Martin, Alice Murphy,
Ray Savini, Robert Wolfe and Robert Garthwaite. Richard Moran
was excused. Also present were: Mr. and Mrs. Joseph Bairn; Mr. and
Mrs. Kenneth Schultz; Mrs. Lynne Plaskett, Planning Assistant/Grant
Administrator, and Beth Weilenman, Reporter.
APPROVAL OF MINUTES
Mr. Garthwaite asked for approval of the minutes of the January 8th,
1987 meeting and Mrs. Murphy wanted clarification of the minutes
regarding Mr. Schultz's variance where Mr. Newell made a statement
that the City would never pave that street anyway and believes it
should be in the minutes. Mr. Garthwaite asked if it was and the
secretary said she didn't think so, it was just part of a discussion,
Mr. Garthwaite asked her to check on this, which she agreed to co.
Mrs. Martin asked that on page 3, first section, the word house
should be driveway; Mr. Garthwaite asked that Mr. Labondi's title
be changed from realtor to Building Official. Mr. Newell then
moved the minutes be accepted as corrected, seconded by Mr. Savini.
At roll call on the vote, Mrs. Murphy again stated she wished some
things had been included in the minutes, believes the secretary does
a good job, but she doesn't want to have them rewritten, if someone
wants to, they can listen to the tapes. Motion CARRIED 6-0.
Mr. Garthwaite then told the Board that the Memo sent to Council on
Replatting has been accepted and has been turned over to the City
Attorney. He stated he did not know whether it would be handled by
Ordinance or Administratively. Mrs. Murphy questioned the number of
surveys that would be required and if it would apply to houses under
construction. Mr. Garthwaite said a replat would have to be done and
the Building Official 'shouldchec~,it; if an encroachment was found,
it would have to be rectified. A discussion followed as to what can
be done if a violation is seen, and Mr. Garthwaite said it should be
reported to the Building Official and if it is in violation, part of
the slab' will have to be cut off.
NEW BUSINESS
JOSEPH BAlM - Request for additional parking places to permit the
opening of a restaurant at Indian River Boulevard and India Palm.
Mr.Garthwaite sta~~d Mr. Bairn is requesting additional parking places
to open a restau~ant--on Indian Rive Boulevard, occupying the same
building as the Re~l Estate Store. Mrs. Martin asked how many parking
spaces were thera now, and Mr. Garthwaite said eighteen. Mr. Bairn
explained ten are assigned to the Real Estate Store and eight are
assisned to him. Mrs. Plaskett then stated that whenfue original
site plan came in, it showed three offices. Mrs. Murphy asked how many
additional spaces Mr. Bairn needs, and Mr. Bairn answered six, for a
total of fourteen. He stated he can now seat twenty four people but
would like to seat forty four. Mr. Garthwaite asked how many employe~s
he is going to have and Mr. Bairn said two. Mr. Bairn also stated he is
going to open at 6:00 a.m. in the morning, and the real estate company
is not open until nine, and he plans on that being his busiest time.
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He also said he will serve no alcohol nor beer. Mrs. Murphy believed
Mr. Wilbur should have corne in and ask to have his parking reduced,
and Mr. Bairn said Mr. Wilbur had sent in a letter. Mrs. Martin said
Mr. Wilbur doesn't mention how manyspac~s.he will relinquish in his
letter. Mr. Garthwaite said Mr. Wilbur would have to be notified
that if these spaces are relinquished, and he wants to sell his
business in the future, he will have less spaces. Mrs. Plaskett
stated the variance is a request for space, not a structure, and
perhaps that is the difference; once you change the use, that is
when the parking requirements would change. Mr. Newell said then
different businesses require different amounts of parking spaces. Mr.
Bairn said his problem was the dead space, the-kitchen, hallway, walk-in
closets, over nine hundred square feet practically empty, which would be
four parking spaces. A discussion followed as to what would happen if
the real estate company turned it over to someone else. Mr. Bairn said
four spaces would satisfy him; that he could open now with twenty four
seats but it is not feasible. Mr. Garthwaite then said if we grant at
all we must put continqencies on this~ Mr. Wilbur should be notified
that by giving up spaces it will l~Ait him. Mr. Wilbur has to understand
that if we grant six, it would leave him with four, which is really not"
enough; he is very limited. Mrs. Murphy stated she is still questioning
what the procedures will be if a new man comes in; will he have to
corne in for another variance. Mr. Wolfe said the City Attorney told
the Board they could put any type of conditions on anything they wish,
and Mr. Garthwaite said what we are doing here is granting a use, the
use being parking places. An in-depth discussion followed, with Mrs.
Plaskett saying Mr. Wilbur carne in with plans for their offices based
on square footage of office space requirements under the Ordinance
and he built it out to the maXi that the only thing to be done is base
it on the five criteria and if he meets the hardship. Mrs. Plaskett
explained Mr. Wilbur did corne to her asking if he could give up his
parking spaces, and Mrs. Plaskett explained the Ordinance, saying it
does not address dead space, etc., and the only solution seemed to be
an appearance before the Board to prove hardship.
Mr. Garthwaite then stated Mr. Bairn must understand that if the variance
is granted and he gives up the business, the spaces would revert. The
Board discussed several alternatives such as a one-year trial period
to see how the traffic and parking works out, Mrs. Murphy then
suggested the Board give him four and Mr. Wilbur could keep two more.
Mr. Garthwaite then stated the five criteria have to be met and the
Board would now go through these questions. Under (a), special circum-
.stances exist which are peculiar to the applicant's land, structure or
building, etc., Mr. Garthwaite said it miqht be correct to state that
the use of the building would be a special circumstance which would
not ordinarily exist for a building of this size, and the Ordinance
does not give leeway to differentiate between an office building and
a retail store. Mrs. Murphy added the adjacent buildings do not require
the amount of parking spaces it has and Mr. Bairn does. Section (a)
met with the approval of the Board.
section (b), strict applications of the provisions of this Ordinance
would deprive the applicant of reasonable rights commonly applicable
to other property in the same district, was answered by Mr. Wolfe, saying
there is nothing in the Ordinance for guidelines, and Mrs. Plaskett
said the Board could look at other restaurants in the B-2 zoning
District. Mrs. Murphy then asked if a reasonable right would include
enough parking for customers. Mr. Garthwaite said square footage versus
parking spaces should be a little more defined. Mrs. Martin then stated
making a living is a reasonable right. Mr. Garthwaite told the Board he
believed we should make some notes on the fairly good points the Board
is discussing here and perhaps go back to them and send them to the
Planning and Zoning Board and suggest we might want to change some of
the Ordinance, such as square footage versus parking spaces, etc.,
make it a little more specific. Section (b) then met with approval
of the Board, there being no objections.
Board of Adjustments Minutes
of February 12, 1987 Meeting
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Mr. Garthwaite then turned to Section (c), special circumstances
and conditions do not result from the actions of the applicant. The
Board agreed this section is one of the most difficult, with Mr. Wolfe
suggesting it is almost like Section (a) with different wording. Mrs.
Plaskett stated it makes one think doubly hard on a hardship; you have
to really prove a hardship. Mr. Wolfe said a hardship exists in one
way, but in another it does not; that in one way the building creates a
hardship as it limits what you can put in there. Mr. Garthwaite stated
perhaps it is reaching a little far, but it is an ideal location for
that type of business, and there is no place around available. Mr.
Bairn agreed it is ideal, with Mrs. Murphy saying neighbors would not
have to leave Florida Shores, it would be a safety feature. Mr.
Garthwaite stated he believes this Ordinance does not give any guide-
lines and that he had done a lot of thinking about this, saying the
criteria is very strict and you often have to consider what effect the
case is going to have, who is it going to hurt, and if you can answer
some of these questions in the affirmative that it is not going to
bother anyone, perhaps the Board could be a little more lenient. Fr.
Garthwaite then asked the Board if it is .generally agreed th~t the
criteria is granted on Section (c), and the Board answered yes.
Mr. Garthwaite turned to Section (d), the granting of the variance
will not cause substantial detriment to the public welfare or impair
the purposes and intent of this Ordinance. Mrs. Plaskett said the main
thing is to prove hardship; the second thing is to give reasonable
use, reasonable being whatever the circumstance, whether it is a
business or a structure; what the Board has to keep in mind is the
minimum use, not the maximum, not what they are asking; just the minimum
in order to make it work. Mrs. Murphy said she believes this is not
only not a detriment but will be a help. Mr. Bairn said he believes
it won't be detrimental as it will give people a new place to eat in
the area. Mr. Garthwaite stated there is only a small strip of B-2 in
that area, that the only other is out on Park by Wildwood, and a section
of 30th Street. Mr. Garthwaite then asked if there were any objections
to Section (d), and the Board voted no, there were not.
Mr. Garthwaite then turned to Section(e), that granting of the variance
will not constitute a grant of special privilege" that is denied by
this ordinance to other lands, structures or buildings in the same
district. Mr. Wolfe suggested this is going back to dealing with B-2,
and we are not doing anything to the structure of the building or the
land, and Mr. Garthwaite added just providing additional parking spaces.
The Board had no objections to Section (e), at which time Mr. Garthwaite
asked for a motion. After discussion, Mrs. Murphy moved the Board grant
Mr. Bairn four additional spaces and Mr. Garthwaite said we could grant
the variance, subject to conditions which would decide the number of
spaces and any other special conditions we would care to put on it.
Mrs. Murphy said she would then withdraw her motion, as she couldn't
put all that on, but Mr. Garthwaite said the conditions could be put
on after the varIance is granted. Mrs. Murphy again moved the Board
grant Mr. Bairn additional parking spaces to be taken from the adjacent
Real Estate Store, seconded by Mr. Wolfe. Before voting, Mrs. Plaskett
asked that the Board secure something from Mr. Wilbur in writing,
stating he is giving up so many spaces as the owner, for she has to
sign the occupational. license. Mr. Garthwaite said the Board must write"
to Mr. Wilbur, explaining the conditions, and Mrs. Martin added the
motion will be contingent upon his letter of acceptance. Mr. Garthwaite
directed the Board's attention to the fact that the number of parking
spaces granted must be determined. A discussion followed as to the
total amount of spaces involved;the spaces required by Mr. Wilbur, and
the spaces for Mr. Bairn. Mrs. Martin. added the people involved are
not all there at the same time, and Mrs. Plaskett stated it has to be
established the minimum spaces it will take for Mr. Bairn to make a living.
Board of Adjustments Minutes
of February 12, 1987 Meeting
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Mr. Savini said he believes Mr. Wilbur should have three parking
spaces at all times, and at least three for patrons, leaving twelve
for Mr. Bairn. Mr. Wolfe asked about the parking for handicap and
Mrs. Plaskett said that has already been provided. It was then
suggested the Board grant four additional parking spaces to Mr.
Bairn, said spaces to be taken from the Real Estate Store and given
to J.J. 's Home Plate Restaurant, as originally moved by Mrs. Murphy
and seconded by Mr. Wolfe, adding the concurrence of Mr. John Wilbur
has to be obtained. Mr. Garthwaite asked another condition be added;
if J.J. 's Home Plate Restaurant goes out of business, the parking
spaces will revert back to the Real Estate Store. The Board unani-
mously agreed to this condition being added. Mr. Garthwaite then
called for a vote on the motion that the parking spaces revert back
to the Real Estate Store if the use changes and the Board carried
this vote 6-0. Mr. Garthwaite then called for a vote of four
additional parking spaces to be alloted to J.J. 's Home Plate
Restaurant, with the concurrence of Mr. John Wilbur. The Board
carried this vote 6-0. Mr. Garthwaite then stated the last vote
is to grant the variance as stated in the addendum. The Board
carried this vote 6-0. Mr. Garthwaite then instructed the secretary
to send a letter to Mr. Wilbur informing him of the allotted spaces
and if he should close his business, he will be limited as to whate
he can allow in there. At this point, Mr. Garthwaite called for a
break at 8:15, after instructing the secretary to inform Mr. Wilbur
he must return a notarized letter to the Board, attesting to the
above stated facts.
The following is taken from the shorthand notes of the secretary, due
to'malfunction of the machinery. Mr. Garthwaite called the meeting
back to order at 8:23. Mr. Wolfe asked if he could discuss a letter
the Board received from City Attorney Alvarez, stating the letter was
not understandable to him. Mrs. Plaskett read the letter to the
Board which referred to the Nolan case on Riverside Drive. Mrs.
Plaskett explained the Board should not request the City Attorney
to research titles of private property owners; this should be done
by the owner at his own expense and his own legal counsel's opinion.
Mrs. Murphy then asked the strict definition of "street", as she
believes Mrs. Lipscomb's property is a street, but Mr. Wolfe answered
only that portion that is paved, and they have to prove they own it.
OLD BUSINESS
DISCUSSION OF KENNETH SCHULTZ VARIANCE from required 30' setback to
20' setback at Hardin Place and Riverside Drive
Mr. Garthwaite then returned to the agenda and Mrs. Plaskett brought
the Board up to date regarding the Schultz case, saying. this goes back
quite a few months when she was asked to look into the variance that
the Board had granted Mr. Schultz. Mrs. Plaskett said she has no
problem with Mr. Schultz asking for a variance; the problem is the
minimum needed to make use of his lot, and that he does not have a
deed to all of the property; that Mr. Schultz has a fence upon property
which does not belong to him. Mrs. Plaskett said there is also a
case of prescriptive rights, as the public has been using the road
to walk down to the river and the fence must be taken down until a
disclaimer is given to the endof the property, which might take six
to eight months. Mr. Schultz said he has riparian rights, but Mrs.
Plaskett stated the deed does not show that. Mr. Schultz also said
the fence is considered an artificial structure, and Mr. Wolfe said
it is not. Mr. Schultz then said the fence is no problem, he will
take it down; he will comply with the set backs, as he previously
stated at the last meeting. There followed a discussion as to
Board of Adjustments Minutes
of February 12, 1987 Meeting
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whether Mr. Schultz was filling in wet lands. Mrs. Plaskett returned
to the survey submitted by Mr. Schultz and stated it was not a survey,
it was topography of Hardin Place, showing elevations, etc., that it
does not show what is owned by Mr. Schultz. She continued the City has
no intention of vacating this road. Mrs. Plaskett said the Board was led
to believe that road would never be used, and this had influenced their
decision, with Mr. Garthwaite saying some statements had been made. Mrs.
Murphy stated she had made a motion at the last meeting that if the variance
was granted, Mr. Schultz was to pull back his lot line, but it died due to
lack of a second; that the reason she made that motion was that non-
conforming lots of record upon which new dwellings are erected, the
dwellings shall be placed to conform with front set backs of existing
dwellings on the same street. Mr. Garthwaite then read from the code
book the set back definitions, saying the minimum front set back on River-
side Drive is 40 feet, which means if the guy next door is 30 feet instead
of 40 feet, then Mr. Schultz can set his at 30 feet. Mrs. Murphy still
stated she is very concerned that Mr. Schultz is going to build in front
of everybody else; the view from the south or north will be denied and
she doesn't believe he should be given a variance until it is definitely
established that he is going to pull his house back from the 30 feet of
his rear lot line.
Mr. Newell then stated the Board gave him the variance with the under-
standing that he had to have enough land behind him to build his house.
The secretary then read from the minutes of the last meeting. Mr. Schultz
stated he had no intention of building any closer to the river; that he
is going to get a survey and will show where that mound of dirt is, that
the house has to be 30 feet back and it will be. He also stated he will
not be building on that disclaimed portion; he will be thirty feet in front
of that disclaimed portion, and Mr. Wolfe said that is what he wants to see.
Mr. Garthwaite then stated if anyone on the Board is bothered, we will
hold the permit until such time as a survey is given to us and proof he
owns that property. Mr. Schultz said he has no intention of getting a
permit until he has everything in his hands. Mrs. Murphy then said
statements were made from two members of the Board at the last meeting
saying the street would be closed, which might have influenced our
decision in granting him his variance. Mrs. Martin said two neighbors
of hers down the street must have thought this, as they built a dock down
there. A discussion followed concerning non-conforming lots. Mrs. Martin
then moved this case be tabled until Mr. Schultz has proof of ownership
of this property, at which time he is to call the secretary and the case
will be put back on the agenda. The motion was seconded by Mrs. Murphy
and CARRIED 5-1, Mr. Newell voting No.
Mr. Garthwaite stated the next order of business is the resignation of
Mr. Garthwaite as Chairman, and that Mrs. Martin has agreed to assume the
Chairmanship. Mr. Wolfe nominated Mr. Savini as Vice Chairman, who
declined because of his employment. Mr. Wolfe than nominated Mr. Newell,
who accepted. The Board unanimously approved Mr. Newell as Vice Chairman.
Mrs. Murphy asked permission to ask questions regarding corner lots,
asking if a man could build a swimming pool by jumping that 30 foot set
back to build the pool. Mr. Garthwaite asked Mrs. Plaskett if she had
any experience with this and Mrs. Plaskett said yes, especially the
pool Mrs. Murphy is talking about. She continued it was considered
when it was brought in as not being in the front, actually on the side,
on a corner lot and yes, it has to meet the 30 foot set back, and it did.
Mrs. Murphy said we have been very strict about set backs of corner lots,
considering a corner lot has two fronts, and that denial has been given
to several people; as an example, a small lot on Riverside Drive on the
corner that no one has ever been able to build on because the side set back
is so severe. There followed a brief discussion on this subject.
Mr. Garthwaite then moved the meeting be adjourned, seconded by Mr. Savini.
The meeting adjourned at 9:35.
Minutes submitted by
Dorothy C. Garrity
Board of Adjustments Minute
of February 12, 1987 meeting
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