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07-25-1979 ~ ~u UQ aITY OF EDGEWATER BOARD OF ADJUSTMENT REGULAR MEETING July 25, 1979 CALL TO ORDER Mr. Millard called the meeting to order at 7:00 P.M. in the Edgewater City Hall. ROLL CALL Mr. Glaser Present Mr. Gnau Present Mr. Lupinek Present Mr. Millard Present Mr. Poland Absent Also Present: City Attorney Judson Woods City Clerk Richard Weser Building Official Charlie Murphy Mr. Frank Opal Mr. Millard: This is a public meeting of the Edgewatar. Board of Adjustments, and we plan to discuss the implementation of decision by this Board, as approved by the Council and passed along to the proper building the department official. Mr. Murphy, who is here at the table, has to leave early, therefore, rather than develop the background to any great length, I'll try to be brief. We have had some cases, in which the Board granted a right to operate used car lots, provided they put up a buffer screen where the B-3 and R-3 meet. It's outlined pretty clearly in the B-3 regulations of Ordinance 880. There are, in addition, many businesses in town that do back up to R-3 areas, and that store various ob- jects in their back yard which residents can see. Mr. Murphy, how did you select the names of the people that you have written these letters to, that you are holding in your hand? Mr. Murphy: This particular group, were new businesses, new construction. Mr. Millard: When you say new, new as of what date? Mr. Murphy: 1976 and 1977. Mr. Millard: Did you go around to each business and look. in their back yard? Mr. Murphy: Yes Mr. Millard: Did you look at it from the point of view of the residential area in the back? Mr. Murphy: No. The way the Ordinance reads with a planted buffer zone that will eventually close in the area. Mr. Millard: Would you be a little more accurate Mr. Murphy, what are the 3 kinds of buffer that are permitted under the Ordinance 880, definition of a buffer. . uU uu Mr. Murphy: It can be a planted buffer, it can be a masonry wall or a wood fence. Mr. Millard: And certain parts of each can be opaque. Mr. Murphy: I sent these letters out and then I checked what they had done. In most cases they have done the planting, which is the most reasonable, and the least expensive. Mr. Millard: There is some exact description of the kind of planting required under the statue. Mr. Murphy: Evergreen Mr. Millard: Do you happen to know if it is a specific grade. Mr. Murphy: No. Mr. Millard: In other words, I'm establishing that there is a standard. It doesn't necessarily pass if they just plant a few sprigs of oleander. Mr. Murphy: No. These had to be at least 3'high, where they would spread. Mr. Millard: So these are new businesses and you have inspected them and what did you find when you inspected them? Mr. Murphy: Let me go through each one. Wheaton Construction had 2 buildings on Hibiscus, 2518 and 2110 Hibiscus. On both of them he had planted the trees 3'high and 2' apart. The property in back is residential but it is jungle. However he did plant, on his lot the buffer that is required. Mr. Millard: How long has he been in operation. Two years 3 years or more than three years? Mr. Murphy: This is 1979, and that warehouse stuff on Hibiscus, hasn't been there that long. So it's been about two years. The next one was Sullivan Realty and he used the colored aluminum strips in the fence and the Zoning Board approved that. He has the chain fence with the aluminum, which is probably the most expensive type of installation you can have. Jim Mackie said that was acceptable. Mr. Millard: Who said that? Mr. Murphy: Jim Mackie of the Zoning Board. This wasn't required by your Board, that's the only reason I mentioned it to him because that is in the Zoning regulations. Robert Redding, that's the boat sales building on U.S. 1. and he has a chain length fence around it and he did plant evergreens or oleanders on the back lot line and he is the one that owns all that land behind the business. Dungey on Ridgewood, is the tire place, and he put on 3 sides of his, a chain lenght fence with the aluminum strips. I think it cost him somewhere between $3,000 to $4,000 to do his job. Mr. Millard: How do you know how much it cost? Mr. Murphy: I questioned him on it. Mr. Millard: And that was his statement. Mr. Murphy: Yes. Kenny May, Coronado Paint. He put a buffer and he planted oleanders to the back of his property. J. D. Posey on Palmway and the Old County Road. He has no violation, I had sent him a letter. The land next to him is not residential it's commercial. Edgewater Electric, that's in a business zone, The land next to him is in a business zone. He was no violation. The property on the west side, was zoned B-2, dated April 25, 1977. That' owned by Magnuson. John Troup of 2526 Hibiscus. That one, I got no answer. I think the reason for that i~ because there has been two or three owners since the business star.ted, - 2 - uo uu Mr. Millard: What kind of a businees is that? Mr. Murphy: That's a wharehouse. Those are the initial letters I sent. Mr. Millard: Did you send other letters to used car dealers? Mr. Murphy: These are the first ones I sent. I sent letters to all used car dealers that received variance with the conditions requiring these installed buffers. Mr. Millard: How many were there? Mr. Murphy: Three, Rickelman, Loescher and Brown. Also a copy of the Board of Adjustment letter to Jim Cameron to conform to the buffer zone. I haven't heard anything from Cameron and I know nothing has been done at this point. Rickelman sold his place to someone else and the fellow said that the owner refuses to do any more than he has done. Loescher, that's the building that's owned by Paul Loeffler and I can't get any answer from him, he said he didn't make the deal, that's the word I got. The deal was made by Loescher, and if Loescher wants to do it, he can do it~ He said that Loeffler Ownes the property and Loeffler wasn't going to do it. This is a problem between a landlord and a lease owner. Mr. Millard: It is my understanding that there were some plants along that back line. Mr. Murphy: Well, it's minimum. Mr. Millard: It needs more? Mr. Murphy: Yes Mr. Millard: What about Brown? Mr. Murphy: He has still not complied with your requirements. The access driveway hasn't been done yet. The back lot screen, is supposed to be opaque and also a ten foot grass strip he doesn't understand why he should put in a fence or plant because you can't see anything from the other street. Mr. Millard: He is still in the process of building his lot. How much time does he have on that? Mr. Murphy: Ninety days. Mr. Millard: Are you pretty much aware when a hearing is held and the Council approves it? Do you get notification on that? Mr. Murphy: I get notification so I can send the letters out. Mr. Millard: Who actualJy notifies you that a variance on special exceptions has been granted. Mr. Murphy: Nancy gives me a copy of all of your minutes, and I also get a copy of the Council minutes. Mr. Millard: What actual routine have you established in your office to follow up? Do you have some type of file or system? Mr. Murphy: I do have a filing system for each job and as far as the zoning violations that's in a seperate folder and they are pulled out as they are taken care of. Mr. Millard: So you must check these out every other day? Mr. Murphy: Well not every other day, but once a month anyway. -3- ~ QO QO Mr. Millard: Two members of the Board of Adjustment also checked out the conditions of the eight or nine cases since we started this action. Mr. Lupinek you were on that task force. You want to give us a brief run down? Mr. Lupinek: We inspected Mr. Troup's property. We found no buffer anywhere. Mr. Murphy: I mentioned that I couldn't get in contact with him, and I understand that he sold it. To get the right owner was the problem with me. Mr. Lupinek: Mr. Robert Redding, on Ridgewood, he too has not complied there is no buffer zone, there. Mr. Murphy: He has planted there, I have seen the plants. Mr. Lupinek: Actually we didn't get out of the car, we're reluctant to go on somebody elses property. The only thing we saw on his fence, were some vines growing up on the fence. It's a 6' hurricane with a barbed wire top on it. Mr. Millard: So that can always be checked. Mr. Woods: You were right in not wanting to go on that property. The Building Official and the Zoning Enforcement Official is the only person's who should do this. Mr. Woods: If you don't have the owners permission, you should not go on his property. You could get a citation and have to go to County Court. Mr. Lupinek: Edgewater Electric is the only area that could require a buffer zone on the west side of the hurricane fence, it has none. We didn't know what the bordering lot was zoned. Mr. Murphy: Magnuson, that was zoned this past year if I'm not mistaken. Magnuson ownes it. Mr. Lupinek: Well we just observed what we could see from the next street. In order to make it more attractive, it wouldn't hurt to put plastic strips in the fence. He's got an awful junk yard there. Mr. Murphy: I agree with you, but there is no ordinance that tells him that he has to, and I did ask him. Mr. Millard: There no ordinances that you know of. Mr. Murphy: A new ordinance can come out any time. Mr. Woods: That's true, all we have to do is pass it. That is a question of making it retro-active, so you've got serious problems there gentlemen. Mr. Murphy: I don't think you can do it. Mr. Woods: I don't either. - 4 - ou uO Mr. Poland: That's Palmway. Mr. Lupinek: That is in back of one of the buildings at Coronado. Mr. Murphy: Right, and the odd part about that place, around behind it is business, its zoned the same as his. He's only using one lot, you go look at the map and you will see that the lot next to it is still another business lot and you can't force him to do anything. Even if there is a house on it. Mr. Lupinek: There is a house on it and we could observe by the lawn around the house is cut and the back of the manufacturing building, whatever it is,so there is no violation. Coronado Paint, wanted to put a office building on the side. Mr. Murphy: He planted those oleanders there. Mr. Lupinek: I don't know just how far back he goes. Mr. Murphy: On the back of his lot he planted oleanders. Mr. Millard: Where the 1-2, whatever that is, meets the residential and you saw that yourself. Mr. Murphy: Yes. Mr. Lupinek: Dungey, as you just said a little while ago, that he had put $3,000 to $4,000 worth of fence in there. Mr. Murphy: He's very mad at the City. Mr. Lupinek: I explained, we are only making a check. That is the only one that we found that is actually complying with buffer laws. Wheaton, there is two of them there. We found no buffers. Mr. Murphy: On April 9, 1979, both those properties were inspected by us and they did have the plants, they are 2' apart and 3' high. Mr. Millard: Where were they? Mr. Murphy: In the back end of the lot. Mr. Millard: Could you see all the way to the back of the lot. Mr. Lupinek: No. Mr. Murphy: I don't think he could distinguish them really between that and the jungle behind him. Mr. Lupinek: Well perhaps we couldn't. Mr. Millard: That wasn't a good one to pick out. I don't know why you did. We'll have to screen these a little better. Mr. Lupinek: Sullivan Realty, there is a metal fence there 5' high. Mr. Murphy: Chain link with the metal stripa interwoven. Mr. Millard: That was not one of the three kinds that were outlined. Mr. Murphy: No, that's the one he went to the Zoning Board and asked their permission. Mr. Millard: And they said that was alright. Mr. Lupinek: The only thing we questioned was, there is a about an 18' or 20' structural type gate. I wonder whether that would be permissable. - 5 - uu QU Mr. Murphy: In the front? Mr. Lupinek: No in the back. We thought it was a metal fence, it looks like aluminum put up on a frame. We didn't get out. We just wanted to remark about it that it had a gateway in there. Mr. Murphy: There is nothing in the law that says you can't put a gate in a fence. For security purposes, I don't think I would want a gate in a fence, but maybe he had a reason for it I don't know. Mr. Lupinek: It's more like a gate that you would use for cattle. It's not a high one. Mr. Millard: Did you have any others to ask about. Mr. Lupinek: I have just one more, this one was about Mr. Cameron, we find nothing has been done either on the south, west or north sides. Mr. Murphy: There is one thing you have to remember, he's had that property for quite a long while, I don't know if it was prior to 1974, when the zoning came in, I think it's a little bit of a legal problem asking him to do something. Mr. Woods: You're going to check back and see when he started his business on that property. Mr. Lupinek: When we had it about a year ago, would that bring up the date on that. We had a case on that about a year ago where he and Mr. Wisenberger were undecided where the zoning line went through a piece of property, the zoning line went through this lot that supposed to have belonged to Mr. Wisenberger. It was then resolved Mr. Wisenberger's lot was zoned residential. Mr. Woods: I think we did so by a resolution declaring that Wisenberger's property was in fact residential. I think the crucial thing is to deter- mine when Mr. Cameron first started his operation as a Mobile Home Park, and if he started it after our zoning ordinance, then certainly you can require him to comply with it. Concerni~g Mr. .Trou~, no question about it, Charlie has the authority. Mr. Murphy: He has to. All I need is to find out who the owner is and get today's owner not yesterday's owner, and make him comply. That's my only problem there. Mr. Woods: And what about the other used car lots. Mr. Murphy: That's the one Rickelman has, it's owned by Dr. Waller. It's leased. Dr. Waller doesn't want to do anything, he just leased it. Rickelman sold the thing to somebody else. Mr. Woods: But this fellow is now still operating a used car lot. I want him to show cause why he has not complied and I think that's the next step for the Board of Adjustments. Mr. Lupinek: You mean Dr. Waller or the business owner. Mr. Woods: No, the new business owner. Mr. Lupinek: Is he aware that there is supposed to be a buffer? Mr. Murphy: Yes, this went to Rickelman and he passed it over to the new fellow. Mr. Woods: If he doesn't want to comply, just flat doesn't want to comply, then there can be irrevocation of his license. - 6 - ~ QU QO ~r. Gnau: I was just wondering Charlie, whether you have any recommendation or suggestions how this can be improved so we can keep on top of this or not. Mr. Murphy: It's a slipshod- way of doing it really. The thing that people are throwing back at me. Why should I put up a nice neet little planting when I have got the jungle behind me. The jungle is liable to be there forever, because your not required to cut that down at all, it is a screen, and I think probably the intent was to make sure that business was screened from residentials. There is places we can clean up and places we can't even touch because it's grandfathered in. Mr. Millard: It's very easy for them to appeal from that and present their case here, we are here once a month and we listen to things like that. Mr. Woods: Who besides Cameron and Troup are not in compliance. Mr. Murphy: There is one other fellow that got a license w~y back and this was without a special exception, two of them rather, on used cars. One is D & A and the other is Reed. Reed is not in violation anyway because he's using half of the front of the business lot, the property in back of him is zoned business. The house is on business zone it's not residential. So regardless he's not in violation. D & A, has that trailer area behind him. I think he's in violation, but this is one of the licenses the Council issued. Mr. Woods: But it was still issued after 1974. Mr. Murphy: Yes. Mr. Woods: Then he would have to comply. Mr. Murphy: As I say, he's the only one really. It's on the map as MHIA and that map was printed before 1974 and I feel that he was probably zoned that at that time. Mr. Millard: Mr. Cameron maintains a very nice park, he's got it very well landscaped and he takes excellent care of it. We are talking about a metal storage building he has, which appears to be on USl. Actually his mobile home park land and his B-3 building land enclosed one lot that happens to be a residential lot and it does concern Mr. Wisenberger. Mr. Murphy: I think a little diplomacy with Jim Cameron would solve it. A'letter tends to drive a man up a wall. Mr. Millard: Frankly, this case has already been heard and I don't think there is any big problem with that one or any hassle on it. Our problem is that I think this Board has to decide, either at this Board has to decide, either at this meeting or the next meeting, what we want to recommend to the Council and we are in a position here where we may have to interpret what the intent of the ordinance was. The ordinance to be continued a use of the land or a use of business or a lot that's too small in terms of 880 and it also permits a building that might not have the right area to continue to exist, it very specifically points these things out. It says these things can continue even though they do not conform. This is important and should be in there and we should make sure that everybody's right in that regard is protected. There is nothing else that I have found in that ordinance and maybe some other law that I don't know about that prohibits Edgewater, from regulating such things as signs. Now we have various paragraphs in here that says you cannot put up just any old sign, you have to do it a certain way. It also controls flashing signs, as I understand it, we have very strict ordinances in this town, that you can not leave your garbage can out along the curb after it has been emptied. You have to bring it in. It has nothing to do with what date they started any business or when Ordinance 880 was passed. - 7 - uu uo Mr. Millard (cont'd): There are regulations that control where YQur trees and your hedges can go so they don't block the view of a driver on the road, when he's turning a corner. That has nothing to do with 880. Gasoline stations, I've read, ar~ required to enclose 3 sides of the station, only leaving the part open on the entrance road. They are supposed to put a screen up on all 3 sides. We're not proposing to take away anybody's right to any non-conforming use of land or building. All B-3 requires, and it requires it in plain English, is that where a business backs up against a residential lot, that the businessman has the common decency to screen his backyard junk from the view of that resident. That's what we're talking about. The rights of the resident, those homeowners who live behind the B-3 business, who are looking at a back yard with ugly piles of junk,building materials, old merchandise, containers and general trash. Now we have to decide when one man's right to the use business property collides with his neighbors right to enjoy his property without the intrusion of undesirable and unwanted eyesores. I can't believe it was the intent of the people who drew the zoning ordinances to ride roughshod over the residents who also vote, not just businessmen vote. Does the community have the right to regulate and control this condition that I have just described? Can a business claim immunity from a reasonable requirement of the community to clean up his backyard or hide it behind a proper screen? Should not all businesses comply, not just some, with the intent of this law? I don't think any of them should be immune from a reasonable community standard. Mr. Woods: Let me try to answer part of it, but first, who is not complying other than D & A and Cameron maybe, who else? Mr. Millard: I would say almost both sides up and down U.S.I do not comply. Mr. Woods: Usually a ordinance or a law is not given any retroactive effect regardless. There are serious doubts that you could enforce this law against an existing use in this City, unless you might be able to constitute it as a nuisance per say. Mr. Millard: That's a good way to go. Mr. Woods: Perhaps. You have to prove in court that it is in fact a public nuisance, that's kind of tough to do. There is volumes of law on what a public nuisance would be. Allowing a sewer to back up on somebody's property by the municipality, allowing animals to run loose, deficating on the streets or something like that. Mr. Millard: What about if you have a tree and it hangs over somebody elses line, is that a nuisance? Mr. Woods: No. That's a trespass. You just cut it off. Mr. Millard: How did I get involved with retro-active, I'm not talking about that. Mr. Woods: Yes you are. You are talking about the prospective application of Ordinance 880, and if the man is there prior to the enactment of 880, and he is conducting a business use there and he didn't have a screen, and you come along say the ordinance says he shall have a screen.The question is can we impose those requirements on that. Mr. Millard: The question is that we are not taking away his use, he has his use and his land. - 8 - uO QU Mr. Woods: I don't know whether I can enlighten you or not. There needs to be some further research on our Florida laws on this matter, but it states in here, and I would like to give you copies of this, the general rule is that non-conforming structures and uses existing at the time of the effective date of the zoning ordinance or restriction may be continued, indeed most of the zoning statues and ordinances specifically provide for the continuance of non-conforming buildings and uses existing at the time. In other words it's generally the protection of the property owner, that he can continue that use of that property as it existed prior to the time of the ordinance. That's the general rule. The ordinances and laws of this nation are generally not given retro-active effect. That as you remember from your basic law that congress shall not enact any ex post facto law. Mr. Millard: You can't penalize them for it, but from this day onward, Edgewater could say, you have to put up a screen. Why not? What is there harmful to a man's use if he's running a used car lot or a shoe store or a restaurant, he can continue doing that even if it's not zoned for that. We're not changing his use, this Board, I gather, from what we've heard over the past 2 or 3 years, feels very strongly that there is not adequate protection for the residents, that are looking into the back yards that are junky. Nobody seems to have any intestinal strength in the town to stand up to the businessman and say, what you are doing is wrong, think about the guy in back of you. Now I'm not saying that you can write a letter to everybody and say you are in violation and have been and there- fore you are going to lose your license, that would be retro-active action and I agree with you, that is wrong, but I do feel that maybe somewhere in there or some of your other books, you'll find backing for the human concept that you can't impose your ugly eyesore on the guy in back of you. Mr. Woods: Why can't we use a little bit of diplomacy with these people first. Try to get them to comply. Charlie started on some. Many of them have already complied with your desires although there is a question of whether even Ken May had to. Ken May has been sitting out there for years. Ken Millard: I certainly wouldn't start a case with somebody with a jungle in back of them. I would merely tell them if that jungle ever comes down, you better have up a screen.. I assume we have that leeway. Mr. Woods: Yes. That's my suggestion. people to comply. You are getting most Mr. Glaser: I just had some general questions. A while back you sent us some excerpt out of one of your books that dealt with variances and non-conforming uses. My question was since that variance goes with the property if the property is sold. Does the special exception fall in that same category. Like, this one used car lot, the special exception was given to that used car lot, the used car lot was sold, by one person to another, does the special exception go with that? Mr. Woods: I would say it does, but all of the conditions that are imposed must be kept in force and effect. For instance you are talking about Rickelman, that's the one I was suggesting if the man doesn't comply you can call him before this Board and ask him to show cause why he will not comply. Now if he doesn't want to comply, you can revoke the special exception because it's always subject to revocation and I don't think he would want that, because he then could not obtain a license. He would be operating a business illegally. Mr. Millard: It seems to me he would be able to get the owner to do that. That's part of the basis upon which he is renting isn't it? Mr. Woods: The exception, I think, was granted to Rickelman, so he transfers it over, but he cannot continue a special exception if he's not going to comply with the requirements of this Board, no matter who he might sell it to or the license be transfered to. They still have to comply with the requirements. - 9 - 00 ~Q ~r. Woods (cont'd): Maybe someone could diplomatically tell him so. He might be called before this Board to show cause why this special exception should not be revoked. Mr. Glaser: I can see why we are questioning things on cases where we have held here and we have made exceptions that we have laid on these people. I don't know what we are trying to do by questioning what they're trying to do with saving the whole town. Mr. Millard: It's a fair question, I think, I kept asking that myself too. But the more we have had cases where we have told the people to do this, the more it became obvious that wasn't reasonable and fair because the guy next to him wasn't doing it. For instance the classic one was Mr. Brown, he has an air conditioning business that was there, in the next lot he started a used car business. We said put a screen back of this used car lot, well, the back yard of his air conditioning plant is used for storage and broken down machinery, it is far more objectionable to the residents that the new place where he had to put up the screen. You find illogic there and after awhile you think, what does the law say? Is the law reasonable or is it unreasonable. Mr. Woods: You act on reasonableness, all of these Boards your Board the Zoning Board our Council, don't let anybody intimidate you by saying, so and so did that so you have got to let me do that. It's a case by case basis you don't set a precedence. So don't worry about that, each case must be judged on its own merits. Mr. Millard: I was asking myself that. Why do we make the least objectional place put up a screen and the one next to it no screen, because it was already there. Under B-3 it say's buffer along any side or rear lot line which abuts a residentially zoned lot an appropriate buffer shall be constructed, as defined in Article II. Why is it not within the province of Edgewater and Ordinance 880 to say to all businesses, you have to do this now. Mr. Woods: I'll be glad to look at that for you again, I promised you an opinion, I gave you one, right off the top of my head, your're trying to make it a retro-active effect. Mr. Millard: I really don't feel we have any right to do that. This is really a political concept of where people should get relief from their government for a unpleasant thing and nobody's trying to help the people. Mr. Woods: I will take it upon myself, when is your next meeting? Mr. Millard: August 22, 1979. Mr. Woods: I will have you a written opinion of the Florida 1aw. Mr. Millard: Is there a new municipal powers act that we should know about? Mr. Woods: You're talking about the old Zoning laws. When the legislature enacted the municipal home rule powers act that gave the cities the right to establish their own comprehensive zoning ordinance. And to enforce same, taking it away from state statues. This was the entire intent of the home rule powers act. So each time you wanted to change your charter, prior to the home rule powers act, you had to go to the state and get a special bill enacted by the legislature to change it. Well the legislators finally gave the cities the right to, more or less rule themselves, which is good for us, good for all the municipalities, because who can better rule than those close to home? - 10 - QU QO Mr. Millard: Was that part of the Comprehensive Zoning Act? Do they overlap in any way? Mr. Woods: Not really, the comprehensive act is for everybody to establish a comprehensive plan within each city by a certain time, the intent is to get your plan into effect, get a board which will probably be a joint board of appointees from the Zoning and Planning Boards, one board to control this comprehensive plan, so you don't have any more of this haphazard, spot zoning and changes. Just because some individual wants to come in and do this for economic gain. This can't be cone under a comprehensive plan and I think it's excellent, if it works. Mr. Millard: any comments Mr. Mackie, as chairman of the Zoning Board, do you have on our discussion? Mr. Mackie: The only thing I would like to ask Mr. Woods is about non- conforming businesses because they were there before the 880 Ordinance was passed. A lot of those businesses came in under the 880 Ordinance because we listed them as permitted uses. The shell gas station down here by Indian River Boulevard, refused to put up a fence because he was there before they started building the houses, but he came in under the 880 Ordinance. So the contractor had to put a stockade fence up to hide the junk in the back of the gas station. I feel that all of the businesses in the City before we passed the ordinance that are listed in the ordinance as permitted use should come under the 880 Ordinance. They are not non- conforming, the only ones that are non-conforming are the ones we don't have listed. We did take the time limit off of these. They would be the only ones that might stand some protection by no abiding by the 880 Ordinance, but the rest, I'd say, have to come under the 880 Ordinance. Mr. Woods: Jim, that',s why I have serious questions about how many businesses now in existence were in existence prior to the enactment or Ordinance 880. I just don't know. Mr. Mackie: I don't know of any that really went out of business when we made some Zoning changes. We have put most of them under permitted uses. Mr. Woods: It's very costly to litigate. I don't know if any of you have ever been into any litigation, but it's time consuming and often disastrou1 to one side or the other. Rather than litigate, I think the City should tr~ to get some program of putting in screens or buffers around these business properties. Try to get voluntary compliance with it, if that doesn't work then we try the other route. Mr. Mackie: We could go that route but I more or less agree with Ken, pertaining to businesses in the City of Edgewater that are a disaster area as far as their junk is concerned and they are making a living in Edgewater even though they were there before the ordinance, I still feel there should be some protection for the people who live along side them. Mr. Millard: That's the real issue and I don't know how to handle it. Mr. Woods: That's why I said, why not try a voluntary process. Try to instill some civic pride in the business people and the residents of the City. Have it a pleasant sight to come into our City, rather than what you see coming into New Smyrna Beach, that is the most awful sight I have ever seen coming into any City. Mr. Mackie: Couldn't we put an ordinance through for the beautification of the City of Edgewater. Mr. Woods: You could, I guess. Several years ago they had some kind of program in the state where all the cities were competing among themselves within a certain population range as a city beautiful. For instance, Lakeland won it, Gainsville won it on a national competition. It's not a bad program. - 11 - uu uo Mr. Mackie: I think New Smyrna Beach is getting ready to start it now it's in the papers. Mr. Woods: They ought to do something with that west side over there, of their city, that is just awful looking. I remember one time I was trying to get a zoning change out that way to put a graveyard in and that was one of the points I made to the County Council, and they all agreed, they said that is probably one of the worst eyesores coming in to the west side of New Smyrna Beach of any city in the state. Mr. Mackie: I think, myself, that the Board of Adjustments, the Zoning Board and all the boards of Edgewater should try to get the City in some kind of shape or form. Hr. Woods: Let's get a committee of business people, we have an Industrial Advisory Board. We have influential people in this city that are business men who make their living here, and maybe with some help from the city, like planting a few shrubs in the back. Why not be proud of the City and create a good will between the business and the resident behind him. Mr. Millard: I wonder how much business these guys loose because the residents behind them are talking them down. Mr. Woods: One time I suggested an ordinance to prohibit flea markets. Now this is something we should start pushing for because we don't want to look like Allendale, Saturday and Sunday. We had a hard enough time with the property next door to my office because he was going to have a flea market out there. Mr. Glaser: The grandfathering end of this business of not having to comply with certain stipulations in the zoning ordinance, if that business changes hands is the grandfathering still valid under those conditions. Mr. Woods: No. I think the intent there was to be, when the ordinance was enacted to allow that certain business owner as he was operating the property to go ahead and continue his non-conforming use. Mr. Glaser: So, if there were businesses for non-conforming as far as meeting the requirements of the buffer, some kind of a planter or a buffer, between the business and residential property if it changed hands maybe we could attempt to enforce it. Mr. Woods: You might only have minimul businesses that were there prior to 74. Mr. Lupinek: So the grandfather: stays only with the original applicant. Mr. Woods: Prior to 880. Mr. Lupinek: If it changes hands then the new applicant can't get the consideration of grandfather. Mr. Woods: He no longer enjoys the benefits of being a grandfatheree: Mr. Lupinek: We have that in our laws, do we not? Mr. Woods: I think it would be a reasonable interpretation of the zoning ordinance, they would not enjoy the use because it would apply to the owner prior to the enactment of the ordinance. Mr. Millard: Did any of the other members of the audience wish to make comments for this record? There were no further comments. Mr. Millard thanked Mr. Woods for coming. The Board continued the regular meeting. The Board approved the minutes of the meeting of July 25, 1979. Mr. Millard stated that his term on the Board would expire in August. He went on to say that Mr. Lupinek does not wish to continue as Vice Chairman. - 12 - . . O~ uo Mr. Millard made a motion that Mr. William Glaser become Chairman of the Board, effective after the adjournment of the August 22nd meeting. Upon roll call the motion CARRIED 3-0: Mr. Millard made a motion that Mr. Clarence Gnau become Vice Chairman of the Board, effective after the adjournment of the August 22nd meeting. Upon roll call the motion CARRIED 3-0: Meeting adjourned Minutes submitted by Donna Prevatt ~ 13 - I- ,. ~~ '" ;\ o o . CITY OF EDGEWATER BOARD OF ADJUSTMENT REGULAR MEETING July 25, 1979 CALL TO ORDER Mr. Millard called the meeting to order at 7:00 P.M. in the Edgewater City Hall. ROLL CALL Mr. Glaser Present Mr. Gnau Present Mr. Lupinek Present Mr. Millard Present Mr. Poland Absent Also Present: City Attorney Judson Woods City Clerk Richard Weser Building Official Charlie Murphy Mr. Frank Opal Mr. Millard: This is a public meetinB of the Edgewater.Board of Adjustments, and we plan to discuss the implementation of decision by this Board, as approved by the Council and passed along to the proper building the department official. Mr. Murphy, who is here at the table, has to leave early, therefore, rather than develop the background to any great length, I'll try to be brief. We have had some cases, in which the Board granted a right to operate used car lots, provided they put up a buffer screen where the B-3 and R-3 meet. It's outlined pretty clearly in the B-3 regulations of Ordinance 880. There are, in addition, many businesses in town that do back up to R-3 a~eas, and that store various ob- jects in their back yard which residents can see. Mr. Murphy, how did you 'select the names of the people that you have written these letters to, that 'you are holding in your hand? Mr. Murphy: This particular group, were new businesses, new construction. Mr. Millard: When you say new, new as of what date? Mr. Murphy: 1976 and 1977. Mr. M~llard: Did you go around to each business and look. in their back yard? Mr. Murphy: Yes Mr. Millard: Did you look at it from the point of view of the residential area in the back? Mr. Murphy: No. The way the Ordinance reads with a planted buffer zone that will eventually close in the area. Mr. Millard: Would you be a little more accurate Mr. Murphy, what are the 3 kinds of buffer that are permitted under the Ordinance 880, definition of a buffer. 1 ~ .' ,at o o " w Mr. Murphy: It can be a planted buffer, it can be a masonry wall or a wood fence. Mr. Millard: And certain parts of each can be opaque. Mr. Murphy: I sent these letters out and then I checked what they had done. In most cases they have done the planting, which is the most reasonable, and the least expensive. Mr. Millard: There is some exact description of the kind of planting required under the statue. Mr. Murphy: Evergreen Mr. Millard: Do you happen to know if it is a specific grade. Mr. Murphy: No. Mr. Millard: In other words, I'm establishing that there is a standard. It doesn't necessarily pass if they just plant a few sprigs of oleander. Mr. Murphy: No. These had to be at least 3lhigh, where they would spread. Mr. Millard: So these are new businesses and you have inspected them and what did you find when you inspected them? Mr. Murphy: Let me go through each one. Wheaton Construction had 2 buildings on Hibiscus, 2518 and 2110 Hibiscus. On both of them he had planted the trees 3'high and 2' apart. The property in back is residential but it is jungle. However he did plant, on his lot the buffer that is required. Mr. Millard: How long has he been in operation. 3 years or more than three years? Two years Mr. Murphy: This is 1979, and that warehouse stuff on Hibiscus, hasn't been there that long. So it's been about two years. The next one was Sullivan Realty and he used the colored aluminum strips in the fence and the Zoning Board approved that. He has the chain fence with the aluminum, which is probably the most expensive type of installation you can have. Jim Mackie said that was acceptable. Mr. Millard: Who said that? Mr. Murphy: Jim Mackie of the Zoning Board. This wasn't required by your Board, that's the only reason I mentioned it to him because that is in the Zoning regulations. Robert Redding, that's the boat sales building on u.S. 1. and he has a chain length fence around it and he did plant evergreens or oleanders on the back lot line and he is the one that owns all that land behind the business. Dungey on Ridgewood, is the tire place, and he put on 3 sides of his, a chain lenght fence with the aluminum strips. I think it cost him somewhere between $3,000 to $4,000 to do his job. Mr. Millard: How do you know how much it cost? Mr. Murphy: I questioned him on it. Mr. Millard: And that was his statement. Mr. Murphy: Yes. Kenny May, Coronado Paint. He put a buffer and he planted oleanders to the back of his property. J. D. Posey on Palmway and the Old County Road. He has no violation, I had sent him a letter. The land next to him is not residential it's commercial. Edgewater Electric, that's in a business zone, The land next to him is in a business zone. He was no violation. The property on the west side, was zoned B-2, dated April 25, 1977. That' owned by Magnuson. John Troup of 2526 Hibiscus. That one, I got no answer. I think the reason for that is because there has been two or three owners since the business star-ted, - 2 - , , o o , " ~.7 Mr. Millard: What kind of a businees is that? Mr. Murphy: That's a wharehouse. letters I sent. Those are the initial Mr. Millard: Did you send other letters to used car dealers? Mr. Murphy: These are the first ones I sent. I sent letters to all used car dealers that received variance with the conditions requiring these installed buffers. Mr. Millard: How many were there? Mr. Murphy: Three, Rickelman, Loescher and Brown. Also a copy of the Board of Adjustment letter to Jim Cameron to conform to the buffer zone. I haven't heard anything from Cameron and I know nothing has been done at this point. Rickelman sold his place to someone else and the fellow said that the owner refuses to do any more than he has done. Loescher, that's the building that's owned by Paul Loeffler and I can't"get any answer from him, he said he didn't make the deal, that's the word I got. The deal was made by Loescher, and if Loescher wants to do it, he can do it~ He said that Loeffler Ownes the property and Loeffler wasn't going to do it. This is a problem between a landlord and a lease owner. Mr. Millard: It is my understanding that there were some plants along that back line. Mr. Murphy: Well, it's minimum. Mr. Millard: It needs more? Mr. Murphy: Yes Mr. Millard: What about Brown? Mr. Murphy: He has still not complied with your requirements. The access driveway hasn't been done yet. The back lot screen, is supposed to be opaque and also a ten foot grass strip he doesn't understand why he should put in a fence or plant because you can't see anything from the other street. Mr. Millard: He is still in the process of building his lot. How much time does he have on that? Mr. Murphy: Ninety days. Mr. Millard: Are you pretty much aware when a hearing is held and the Council approves it? Do you get notification on that? Mr. Murphy: I get notification so I can send the letters out. Mr. Millard: Who actualJy notifies you that a variance on special exceptions has been granted. Mr. Murphy: Nancy gives me a copy of all of your minutes, and I also get a copy of the Council minutes. Mr. Millard: What actual routine have you established in your office to follow up? Do you have some type of file or system? Mr. Murphy: I do have a filing system for each job and as far as the zonin~ violations that's in a seperate folder and they are pulled out as they are taken care of. Mr. Millard:" So you must check these out every other day? Mr. Murphy: Well not every other day, but once a month anyway. -3- , ~ o o 1 ~ Mr. Millard: Two members of the Board of Adjustment also checked out the conditions of the eight or nine cases since we started this action. Mr. Lupinek you were on that task force. You want to give us a brief run down? Mr. Lupinek: We inspected Mr. Troup's property. We found no buffer anywhere. Mr. Murphy: I mentioned that I couldn't get in contact with him, and I understand that he sold it. To get the "right owner was the problem with me. Mr. Lupinek: Mr. Robert Redding, on Ridgewood, he too has not complied there is no buffer zone, there. Mr. Murphy: He has planted there, I have seen the plants. Mr. Lupinek: Actually we didn't get out of the car, we're reluctant to go on somebody elses property. The only thing we saw on his fence, were some vines growing up on the fence. It's a 6' hurricane with a barbed wire top on it. Mr. Millard: So that can always be checked. Mr. Woods: You were right in not wanting to go on that property. The Building Official and the Zoning Enforcement Official is the only person's who should do this. Mr. Woods: If you don't have the owners permission, you should not go on his property. You could get a citation and have to go to County Court. Mr. Lupinek: Edgewater Electric is the only area that could require a buffer zone on the west side of the hurricane fence, it has none. We didn't know what the bordering lot was zoned. Mr. Murphy: Magnuson, that was zoned this past year if I'm not mistaken. Magnuson ownes it. Mr. Lupinek: Well we just observed what we could see from the next street. In order to make it more attractive, it wouldn't hurt to put plastic strips in the fence. He's got an awful junk yard there. Mr. Murphy: I agree with you, but there is no ordinance that tells him that he has to, and I did ask him. Mr. Millard: There no ordinances that you know of. Mr. Murphy: A new ordinance can come out any time. Mr. Woods: That's true, all we have to do is pass it. That is a qu~stion of making it retro-active, so you've got serious problems there gentlemen. Mr. Murphy: I don't think you can do it. Mr. Woods: I don't either. - 4 - , . o o Mr. Poland: That's Palmway. Mr. Lupinek: That is in back of one of the buildings at Coronado. Mr. Murphy: Right, and the odd part about that place, around behind it is business, its zoned the same as his. He's only using one lot, you go look at the map and you will see that the lot next to it is still another business lot and you can't force him to do anything. Even if there is a house on it. Mr. Lupinek: There is a house on it and we could observe by the lawn around the house is cut and the back of the manufacturing building, whatever it is,so there is no violation. Coronado Paint, wanted to put a office building on the side. Mr. Murphy: He planted those oleanders there. Mr. Lupinek: I don't know just how far back he goes. Mr. Murphy: On the back of his lot he planted oleanders. Mr. Millard: Where the 1-2, whatever that is, meets the residential and you saw that yourself. Mr. Murphy: Yes. Mr. Lupinek: Dungey, as you just said a little while ago, that he had put $3,000 to $4,000 worth of fence in there. Mr. Murphy: He's very mad at the City. Mr. Lupinek: I explained, we are only making a check. That is the only one that we found that is actually complying with buffer laws. Wheaton, there is two of them there. We found no buffers. Mr. Murphy: On April 9, 1979, both those properties were inspected by us and they did have the plants, they are 2' apart and 3' high. Mr. Millard: Where were they? Mr. Murphy: In the back end of the lot. Mr. Millard: Could you see all the way to the back of the lot. Mr. Lupinek: No. Mr. Murphy: I don't think he could distinguish them really between that and the jungle behind him. Mr. Lupinek: Well perhaps we couldn't. Mr. Millard: That wasn't a good one to pick out. I don't know why you did. We'll have to screen these a little better. Mr. Lupinek: Sullivan Realty, there is a metal fence there 5' high. Mr. Murphy: Chain link with the metal strips. interwoven. Mr. Millard: That was not one of the three kinds that were outlined. Mr. Murphy: No, that's the one he went to the Zoning Board and asked their permission. Mr. Millard: And they said that was alright. Mr. Lupinek: The only thing we questioned was, there is a about an 18' or 20' ~tructural type gate. I wonder whether that would be permissable. - 5 - ~ o o Mr. Murphy: In the front? Mr. Lupinek: No in the back. We thought it was a metal fence, it looks like aluminum put up on a frame. We didn't get out. We just wanted to remark about it that it had a gateway in there. Mr. Murphy: There is nothing in the law that says you can't put a gate in a fence. For security purposes, I don't think I would want a gate in a fence, but maybe he had a reason for it I don't know. Mr. Lupinek: It's more like a gate that you would use for cattle. It's not a high one. Mr. Millard: Did you have any others to ask about. Mr. Lupinek: I have just one more, this one was about Mr. Cameron, we find nothing has been done either on the south, west or north sides. Mr. Murphy: There is one thing you have to remember, he's had that property for qu~te a long while, I don't know if it was prior to 1974, when the zoning came in, I think it's a little bit of a legal problem asking him to do something. Mr. Woods: You're going to check back and see when he started his business on that property. Mr. Lupinek: When we had it about a year ago, would that bring up the date on that. We had a case on that about a year ago where he and Mr. Wisenberger were undecided where the zoning line went through a piece of property, the zoning line went through this lot that supposed to have belonged to Mr. Wisenberger. It was then resolved Mr. Wisenberger's lot was zoned residential. Mr. Woods: I think we did so by a resolution declaring that Wisenberger's property was in fact residential. I think the crucial thing is to deter- mine when Mr. Cameron first started his operation as a Mobile Home Park, and if he started it after our zoning ordinance, then certainly you can require him to comply with it. Concerning Mr. .Troup, no question about it, Charlie has the authority. Mr. Murphy: He has to. All I need is to find out who the owner is and get today's owner not yesterday's owner, and make him comply. That's my only problem there. Mr. Woods: And what about the other used car lots. Mr. Murphy: That's the one Rickelman has, it's owned by Dr. Waller. It's leased. Dr. Waller doesn't want to do anything, he just leased it. Rickelman sold the thing to somebody else. Mr. Woods: But this fellow is now still operating a used car lot. I want him to show cause why he has not complied and I think that's the next step for the Board of Adjustments. Mr. Lupinek: You mean Dr. Waller or the business owner. Mr. Woods: No, the new business owner. Mr. Lupinek: Is he aware that there is supposed to be a buffer? Mr. Murphy: Yes, this went to Rickelman and he passed it over to the new fellow. Mr. Woods: If he doesn't want to comply, just flat doesn't want to comply, then there can be irrevocation of his license. - 6 - J . o o ~r. Gnau: I was just wondering Charlie, whether you have any recommendation or suggestions how this can be improved so we can keep on top of this or not. Mr. Murphy: It's a slipshod- way of doing it really. The thing that people are throwing back at me. Why should I put up a nice neet little planting when I have got the jungle behind me. The jungle is liable to be there forever, because your not required to cut that down at all, it is a screen, and I think probably the intent was to make sure that business was screened from residentials. There is places.we can clean up and places we can't even touch because it's grandfathered in. Mr. Millard: It's very easy for them to appeal from that and present their case here, we are here once a month and we listen to things like that. Mr. Woods: Who besides Cameron and Troup are not in compliance. Mr. Murphy: There is one other fellow that got a license WaY back and this was without a special exception, two of them rather, on used cars. One is D & A and the other is Reed. Reed is not in violation anyway because he's using half of the front of the business lot, the property in back of him is zoned business. The house is on business zone it's not residential. So regardless he's not in violation. D & A, has that trailer area behind him. I think he's in violation, but this is one of the licenses the Council issued. Mr. Woods: But it was still issued after 1974. Mr. Murphy: Yes. Mr. Woods: Then he would have to comply. Mr. Murphy: As I say, he's the only one really. It's on the map as MHIA and that map was printed before 1974 and I feel that he was probably zoned that at that time. Mr. Millard: Mr. Cameron maintains a very nice park, he's got it very well landscaped and he takes excellent care of it. We are talking about a metal storage building he has, which appears to be on.US1. Actually his mobile home park land and his B-3 building land enclosed one lot that happens to be a residential lot and it does concern Mr. Wisenberger. Mr. Murphy: I think a little diplomacy with Jim Cameron would solve it. A"letter tends to drive a man up a wall. Mr. Millard: Frankly, this case has already been heard and I don't think there is any big problem with that one or any hassle on it. Our problem is that I think this Board has to decide, either at this Board has to decide, either at this meeting or the next meeting, what we want to recommend to the Council and we are in a position here where we may have to interpret what the intent of the ordinance was. The ordinance to be continued a use of the land or a use of business or a lot that's too small in terms of 880 and it also permits a building that might not have the right area to continue to exist, it very specifically points these things out. It says these things can continue even though they do not conform. This is important and should be in there and we should make sure that everybody's right in that regard is protected. There is nothing else that I have found in that ordinance and maybe some other law that I don't know about that prohibits Edgewater, from regulating such things as signs. Now we have various paragraphs in here. that says you cannot put up just any old sign, you have to do it a certain way. It also controls flashing signs, as I understand it, we have very strict ordinances in this town, that you can not leave your garbage can out along the curb after it has been emptied. You have to bring it in. It has nothing to do with what date they started any business or when Ordinance 880 was passed. - 7 - . o o Mr. Millard (cont'd): There are regulations that control where YQur trees and your hedges can go so they don't block the view of a driver on the road, when he's turning a corner. That has nothing to do with 880. Gasoline stations, I've read, are required to enclose 3 sides of the station, only leaving the part open on the entrance road. They are supposed to put a screen up on all. 3 sides. We're not proposing to take away anybody's right to any non-conforming use of land or building. All B-3 requires, and it requires it in plain English, is that where a business backs up against a residential lot, that the businessman has the common decency to screen his backyard junk from the view of that resident. That's what we're talking about. The rights of the resident, those homeowners who live behind the B-3 business, who are looking at a back yard with ugly piles of junk,building materials, old merchandise, containers and general trash. Now we have to decide when one man's right to the use business property collides with his neighbors right to enjoy his property without the intrusion of undesirable and unwanted eyesores. I can't believe it was the intent of the people who drew the zoning ordinances to ride roughshod over the residents who also vote, not just businessmen vote. Does the community have the right to regulate and control this condition that I have just described? Can a business claim immunity from a reasonable requirement of the community to clean up his backyard or hide it behind a proper screen? Should not all businesses comply, not just some, with the intent of this law? I don't think any of them should be immune from a reasonable community standard. Mr. Woods: Let me try to answer part of it, but first, who is not complying other than D & A and Cameron maybe, who else? Mr. Millard: I would say almost both sides up and down U.S.l do not -comply. Mr. Woods: Usually a ordinance or a law.is not given any retroactive effect regardless. There are serious doubts that you could enforce this law against an existing use in this City, unless you might be able to constitute it as a nuisance per say. Mr. Millard: That's a good way to go. Mr. Woods: Perhaps. You have to prove in court that it is in fact a public nuisance, that's kind of tough to do. There is volumes of law on what a public nuisance would be. Allowing a sewer to back up on somebody's property by the municipality, allowing animals to run loose, deficating on the streets or something like that. Mr. Millard: What about if you have a tree and it hangs over somebody elses line, is that a nuisance? Mr. Woods: No. That's a trespass. You just cut it off. Mr. Millard: How did I get involved with retro-active, I'm not talking about that. Mr. Woods: Yes you are. You are talking about the prospective application of Ordinance 880, and if the man is there prior to the enactment of 880, and he is conducting a business use there and he didn't have a screen, and you come along say the ordinance says he shall have a screen.The question is can we impose those requirements on that. Mr. Millard: The question is that we are not taking away his use, he has his use and his land. - 8 - , " o o I Mr. Woods: I don't know whether I can enlighten you or not. There needs to be some further research on our Florida laws on this matter, but it states in here, and I would like to give you copies of this, the general rule is that non-conforming structures and uses existing at the time of the effective date of the ~oning ordinance or restriction may be continued, indeed most of the zoning statues and ordinances specifically provide for the continuance of non-conforming buildings and uses existing at the time. In other words it's generally the protection of the property owner, that he can continue that use of that property as it existed prior to the time of the ordinance. That's the general rule. The ordinances and laws of this nation are generally not given retro-active effect. That as you remember from your basic law that congress shall not enact any ex post facto law. Mr. Millard: You can't penalize them for it, but from this day onward, Edgewater could say,_ you have to put up a screen. Why not? What is there harmful to a man's use if he's running a used car lot or a shoe store or a restaurant, he can continue doing that even if it's not zoned for that. We're not changing his use, this Board, I gather, from what we've heard over the past 2 or 3 years, feels very strongly that there is not adequate protection for the residents, that are looking into the back yards that are junky. Nobody seems to have any intestinal strength in the town to stand up to the businessman and say, what you are doing is wrong, think about the guy in back of you. Now I'm not saying that you can write a letter to everybody and say you are in violation and have been and there- fore you are going to lose your license, that would be retro-active action and I agree with you, that is wrong, but I do feel that maybe somewhere in there or some of your other books, you'll find backing for the human concept that you can't impose your ugly eyesore on the guy in back of you. Mr. Woods: Why can't we use a little bit of diplomacy with these people first. Try to get them to comply. Charlie started on some. Many of them have already complied with your desires although there is a question of whether even Ken May had to. Ken May has been sitting out there for years. Ken Millard: I certainly wouldn't start a case with somebody with a jungle in back of them. I would merely tell them if that jungle ever comes down, you better have up a screen. I assume we have that leeway. Mr. Woods: Yes. That's my suggestion. people to comply. You are getting most Mr. Glaser: I just had some general questions. A while back you sent us some excerpt out of one of your books that dealt with variances and non-conforming uses. My question was since that variance goes with the property if the property is sold. Does the special exception fall in that same category. Like, this one used car lot, the special exception was given to that used car lot, the used car lot was sold, by one person to another, does the special exception go with that? Mr. Woods: I would say it does, but all of the conditions that are imposed must be kept in force and effect. For instance you are talking about Rickelman, that's the one I was suggesting if the man doesn't comply you can call him before this Board and ask him to show cause why he will not comply. Now if he doesn't want to comply, you can revoke the special exception because it's always subject to revocation and I don't think he would want that, because he then could not obtain a license. He would be operating a business illegally. Mr. Millard: It seems to me he would be able to get the owner to do that. That's part of the basis upon which he is renting isn't it? Mr. Woods: The exception, I think, was granted to Rickelman, so he transfers it. over, but he cannot continue a special exception if he's not going to comply with the requirements of this Board, no matter who he might sell it to or the license be transfered to. They still have to comply with the requirements. - 9 - . ~ o o ~ ~r. Woods I(cont'd): Maybe someone could diplomatically tell him so. He might be called before this Board to show cause why this special exception should not be revoked. Mr. Glaser: I can see why we are questioning things on cases where we have held here and we have made exceptions that we have laid on these people. I don't know what we are trying to do by questioning what they're trying to do with saving the whole town. Mr. Millard: It's a fair question, I think, I kept asking that myself too. But the more we have had cases where we have told the people to do this, the more it became obvious that wasn't reasonable and fair because the guy next to him wasn't doing it. For instance the classic one was Mr. Brown, he has an air conditioning business that was there, in the next lot he started a used car business. We said put a screen back of this used car lot, well, the back yard of his air conditioning plant is used for storage and broken down machinery, it is far more objectionable to the residents that the new place where he had to put up the screen. You find illogic there and after awhile you think, what does the law say? Is the law reasonable or is it unreasonable. Mr. Woods: You act on reasonableness, all of these Boards your Board the Zoning Board our Council, don't let anybody intimidate you by saying, so and so did that so you have got to let me do that. It's a case by case basis you don't set a precedence. So don't worry about that, each case must be judged on its own merits. Mr. Millard: I was asking myself that. Why do we make the least objectional place put up a screen and the one next to it no screen, because it was already there. Under B-3 it say's buffer along any side or rear lot line which abuts a residentially zoned lot an appropriate buffer shall be constructed, as defined in Article II. Why is it not within the province of Edgewater and Ordinance 880 to say to all businesses, you have to do this now. Mr. W60ds: I'll be glad to look at that for you again, I promised you an opinion, I gave you one, right off the top of my head, your're trying to make it a retro-active effect. Mr. Millard: I really don't feel we have any right to do that. This is really a political concept of where people should get relief from their government for a unpleasant thing and nobody's trying to help the people. Mr. Woods: I will take it upon myself, when is your next meeting? Mr. Millard: August 22, 1979. Mr. Woods: I will have you a written opinion of the Florida Law. Mr. Millard: Is there a new municipal powers act that we should know about? Mr. Woods: You're talking about the old Zoning laws. When the legislature enacted the municipal home rule powers act that gave the cities the right to establish their own comprehensive zoning ordinance. And to enforce same, taking it away from state statues. This was the entire intent of the home rule powers act. So each time you wanted to change your charter, prior to the home rule powers act, you had to go to the state and get a special bill enacted by the legislature to change it. Well the legislators finally gave the cities the right to, more or less rule themselves, which is good for us, good for all the municipalities, because who can better rule than those close to home? - 10 - .- . o o ~ Mr. Millard: Was that part of the Comprehensive Zoning Act? Do they overlap in any way? Mr. Woods: Not really, the comprehensive act is for everybody to establish a comprehensive plan within each city by a certain time, the intent is to I get your plan into effect, get a board which will probably be a joint board of appointees from the Zoning and Planning Boards, one board to control th~ comprehensive plan, so you don't have any more of this haphazard, spot zoning and changes. Just because some individual wants to come in and do this for economic gain. This can't be cone under a comprehensive plan and I think it's excellent, if it works. Mr. Millard: any comments Mr. Mackie, as chairman of the Zoning Board, do you have on our discussion? Mr. Mackie: The only thing I would like to ask Mr. Woods is about non- conforming businesses because they were there before the 880 Ordinance was passed. A lot of those businesses came in under the 880 Ordinance because we listed them as permitted uses. The shell gas station down here by Indian River Boulevard, refused to put up a fence because he was there before they started building the houses, but he came in under the 880 Ordinance. So the contractor had to put a stockade fence up to hide the junk in the back of the gas station. I feel that all of the businesses in the City before we passed the ordinance that are listed in the ordinance as permitted use should come under the 880 Ordinance. They are not non- conforming, the only ones that are non-conforming are the ones we don't have listed. We did take the time limit off of these. They would be the only ones that might stand some protection by no abiding by the 880 Ordinance, but the rest, I'd say, have to come under the 880 Ordinance. Mr. Woods: Jim, that's why I have serious questions about how many businesses now in existence were in existence prior to the enactment or Ordinance 880. I just don't know. Mr. Mackie: I don't know of any that really went out of business when we made some Zoning changes. We have put most of them under permitted uses. Mr. Woods: It's very costly to litigate. I don't know if any of you have ever been into any litigation, but it's time consuming and often disastrot to one side or the other. Rather than litigate, I think the City should tl to get some program of putting in screens or buffers around these business properties. Try to get volu~tary compliance with it, if that doesn't >lork then we try the other route. Mr. Mackie: We could go that route but I more or less agree with Ken, pertaining to businesses in the City of Edgewater that are a disaster area as far as their junk is concerned and they are making a living in Edgewater even though they were there before the ordinance, I still fee: there should be some protection for the people who live along side them. Mr. Millard: That's the real issue and I don't know how to handle it. Mr. Woods: That's why I said, why not try a voluntary process. Try to instill some civic pride in the business people and the residents of the City. Have it a pleasant sight to come into our City, rather than what you see coming into New Smyrna Beach, that is the most awful sight I have ever seen coming into any City. Mr. Mackie: Couldn't we put an ordinance through for the beautification of the City of Edgewater. Mr. Woods: You could, I guess. Several years ago they had some kind of program in the state where all the cities were competing among themselves within a certain population range as a city beautiful. For instance, Lakeland won it, Gainsville won it on a national competition. It's not a bad program. - 11 - .- . o o ~ Mr. Mackie: I think New Smyrna Beach is getting ready to start it now it's in the papers. Mr. Woods: They ought to do something with that west side over there, of their city, that is just awful looking. I remember one time I was tryin to get a zoning change out that way to put a graveyard in and that was one of the points I made.to the County Council, and they all agreed, they said that is probably one of the worst eyesores coming in to the west side of New Smyrna Beach of any city in the state. Mr. Mackie: I think, myself, that the Board of Adjustments, the Zoning Board and all the boards of Edgewater should' try to get the City in some kind of shape or form. Mr. Woods: Let's get a committee of business people, we have an Industrial Advisory Board. We have influential people in this city that are business men who make their living here, and maybe with some help from the city, like planting a few shrubs in the back. Why not be proud of the City and create a good will between the business and the resident behind him. Mr. Millard: I wonder how much business these guys loose because the residents behind them are talking them down. Mr. Woods: One time I suggested an ordinance to prohibit flea markets. Now this is something we should start pushing for because we don't want to look like Allendale, Saturday and Sunday. We had a hard enough time with the property next door to my office because he was going to have a flea market out there. Mr. Glaser: The grandfathering end of this business of not having to comply with certain stipulations in the zoning ordinance, if that business changes hands is the grandfathering still valid under those conditions. Mr. Woods: No. I think the intent there was to be, when the ordinance was enacted to allow that certain business owner as he was operating the property to go ahead and continue his non-conforming use. Mr. Glaser: So, if there were businesses for non-conforming as far as meeting the requirements of the buffer, some kind of a planter or a buffer. between the business and residential property if it changed hands maybe we could attempt to enforce it. Mr. Woods: You might only have minimul businesses that were there prior to 74. Mr. Lupinek: So the grandfather::stays only with the original applicant. Mr. Woods: Prior to 880. Mr. Lupinek: If it changes hands then the new applicant can't get the consideration of grandfather. Mr. Woods: He no longer enjoys the benefits of being a grandfatheree: Mr. Lupinek: We have that in our laws, do we not? Mr. Woods: I think it would be a reasonable interpretation of the zoning ordinance, they would not enjoy the use because it would apply to the owner prior to the enactment of the ordinance. Mr. Millard: Did any of the other members of the audience wish to make comments for this record? There were no further comments. Mr. Millard thanked Mr. Woods for coming. The Board continued the regular meeting. The Board approved the minutes of the meeting of July 25, 1979. Mr. Millard stated that his term on the Board would expire in August. He went on to say that Mr. Lupinek does not wish to continue as Vice Chairman. - 12 - .,J . .~. ~ , - ." o o Mr. Millard made a motion that Mr. William Glaser become Chairman of the Board, effective after the adjournment of the August 22nd meeting. Upon roll call the motion CARRIED 3-0. Mr. Millard made a motion that Mr. Clarence Gnau become Vice Chairman of the Board, effective after the adjournment of the August 22nd meeting. Upon roll call the motion CARRIED 3-0: Meeting adjourned Minutes submitted by Donna Prevatt "<"' l3 -