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09-14-1977 . o o Board of Adjustments September ]4, ]977 Public Hearing Chairman Millard called the Public Hearing Meeting of the Edgewater Board of Adjustments to order on September ]4, ]977 at 7:00 P.M. in the Mayor's Office. ROLL CALL Mr. Mr. Mr. Mr. Mr. Millard Asting.'J Lupinek Fenske Poland Present Present Excused Present Present The Public Hearing was a.-reques~ for a variance by Mr. John A. Schwartz of Florida Shores. Chairman Millard asked if all the proper legal notifications had been made: The Secretary replied that the abutting property owners had been notified; the property had been posted and newspaper advertisements had been run. Chairman Millard noted that there were return receipts for the notification of the neighbors. Present at the Hearing were Mr. and Mrs. John Schwartz and Mr. and Mrs. Paul, next door neighbors. Chairman Millard asked if all members of the Board had visited the site of this variance. All the members replied in the affirmative. Chairman Millard asked Mr. Astings for his comments on the request for variance. Mr. Astings wanted to know how far the driveway concrete is from the property line. Mr. Schwartz replied it was approximately [6.5~ft. Chairman Millard stated that apparently there is 20ft. plus between the house and the property line and the required variance from that line would be ]0 ft. Mr. Fenske asked if the neighbors had any objections to Mr. Schwartz building a carport. Mr. and Mrs. Paul replied that they would like to see the Schwartz' get the variance they wanted. Mr. Fenske asked how far the Paul's were from their lot line and the distance between their house and Mr. Schwartz' house. The Pauls did not know the exact footage but Mr. Schwartz volunteered the information that if he was able to build this carport it would leave over 25 ft. of space between the extremes of each house. Mr. Astings again asked for an answer to his first question about the distance from the edge of the concrete to the property line. Mr. Schwartz said it was 4 ft. 3 inches. Mr. Fenske asked how long the house had been there? that it had been finished in March. Mr. Schwartz replied Mr. Fenske wanted to know how far the carport would be from the lot line. Mr. Schwartz stated it was about ]9 feet. Mr. Fenske stated that would be within the building code but if Mr. Schwartz wants ]6 feet that would only leave about 4 feet. Mr. Schwartz stated that he only wanted a 4 ft variance. Mr. Fenske said that he would be ]6 ft. over. o 2 o Mr. Schwartz said that he did not want to come all the way that he only wanted ]4 ft. There was a short discussion about the size of the desired carport, the width of a standard car and the width of a regular one-car carport Chairman Millard stated that there would be 20 ft. from the house to the lot line and Mr. Schwartz needs ]0 or at the most ]2 ft. for a carport to be used for a car and that what the carport was used for thereafter was not relevent. Mr. Poland asked if Mr. Schwartz had closed in the original garage to make an additional room out of it. Mr. Schwartz replied that they had made a Florida room out of the original garage. He also explained why the concrete had been poured in a specific manner - an effort to save some trees -- that he now wishes he had had removed. The reason that he was asking for more room than he needed was to make a neater appearance that would blend in with Mr. Paul's house next door. If he has to stay with the code of 20 ft. 3 in. he can only come out ]0 ft. 3 in. and the carport would be narrow and not symmetrical with his neighbors It would not improve overall appearance. The other reason he wanted the carport located on that side of the house was to protect the house from the sun. Mr. Poland asked Mr. Schwartz if he had sought a building permit before he had tad the concrete poured for the driveway and carport. Mr. Schwartz replied that it was done originally by the contractor at the same time the house was built. Chairman Millard asked if the contractor had told Mr. Schwartz about the code at that time. Mr. Schwartz did not remember that far back, but he was aware of most of the building restrictions in this area. Chairman Millard stated that it was the Boards practice to have each applicant take an oath and though Mr. Schwartz application stated that all evidence he provided was true Chairman Millard asked Mr. Schwartz to raise his right hand and swear "To tell the truth the whole truth and nothing but the truth." Mr. Schwartz replied: "I do. Mr. Poland asked if the slab closer to the lot line than the required ]0 ft. was acceptable to the building inspector. Chairman Millard said that it appeared the slab was not part of the monolithic pour, that the builder in response to Mr. Schwartz request to enclose the garage had put in the driveway after he had received Mr. Schwartz request. Chairman Millard wanted to know if Mr. Schwartz had told the builder where to pour the driveway. Mr. Schwartz replied that he had only requested that the trees be left where they were. ~ Chairman Millard explained that when people came before the Board of Adjustments they should be aware that the Board operates under the Zoning Ordinance 880 which was established by the zoning Board and the Planning Board and the City Council. It is the law under which the Board has to make their decisions. The prime directive that the law gives to the Board of Adjustments is a variance should not be granted where the hardship or the problem is created by the personapplying for the variance. In other words if you buy a house and you know that it's wrong and you want to change it and add on this, that or the other thing and then you come down and say well I bought the house and I want to do this because we have to have it -- in the eyes of this ordinance and the technical eye of the law the hardship is of your own creation and it would be very difficult for the Board of Adjustments to do anything about it. Chairman Millard asked Mr. Poland if he could find anything in the criteria that might give Mr. Schwartz some relief for his problem (although Mr. Schwartz did not appear to be pleading hardship) Mr. Schwartz stated that the heat from the sun on that part of the house was very unpleasant. u 3 u Chairman Millard asked Mr. Schwartz if he was aware of the Code. At the point where Mr. Schwartz told the contractor to close in the garage and put the driveway farther nobody told him that he could not go X amount of distance over. Mr. Schwartz said that they did not and it was his understanding that it had to be part of a building that would be in violation. It was also his understanding that he could go concrete all the way over to the end of the property line. Mr. Poland asked why Mr. Schwartz did not have the original contractor put the carport on at the time the house was built. Mr. Schwartz said that they did not think of it at that time. They bought the house while it was under construction and then left the area until after it was completed. Chairman Millard stated that the driveway was already poured so that there were no problems with trees. Strict application of the provision of the ordinance should not deprive the applicant of reasonable rights commonly applicable to other properties in the same district. Also that granting of a variance will not cause substantial detriment to the public welfare or impair the purposes and intent of the ordinance. Mr. Schwartz stated that he believed that a granting of the variance would improve the appearance of the property. Mr. Poland questioned Mr. Schwartz intent to make the carport not the full width of the slab only some ]2 ft. Chairman Millard stated that there was some 20 feet and to hold with the ordinance Mr. Schwartz would have to take only ]0 ft. for the carport. Mr. Poland asked about the overhang. Mr. Schwartz stated that it was his understanding that the overhang did not apply that it could overhang beyond the ]0 ft., but even with the overhang if the carport goes where they want to put it now it would still be 25 ft. between the two buildings. Chairman Millard asked if the other houses in the area had gone this route. Mr. Asting~ were closer closer than stated that he knew there were places therewhe~~ buildings to the property line than specified by the ordinance. Sometimes ]0 ft. Mr. Fenske said this might be because they were built before they had the new zoning laws. Chairman Millard asked Mr. Schwartz if he was going to have a plan drawn up to show what it would be like. Mr. Schwartz called the Board's attention to a drawing he had submitted with his request for variance. After inspecting the drawing Mr. Poland stated that it would be ]4 ft. and with the overhang they would be 4 ft. from the property line. Mr. Schwartz stated it was his understanding that the columns supporting the carport would be the part that they measured from not the overhang. said Chairman Millard/that a minor variance might be possible under the criteria The practical difficulty of building an adequate carport may be a reason for a variance. Mr. Schwartz has 20 ft. and he needs ]0 to ]2 for a carport for a car actually ]2 ft. is standard that means that he has ]0 ft. and needs a variance for 2 additional ft. to get a normal size car in. Partially on the grounds of practical difficulty of building it at ]0 ft. and also on Item B of 904.0] which says "strict application of this ordinance would deprive the applicant of reasonable rights" In other words there is a chance Mr. Schwartz could be granted 2 ft. which means he could come within 8 ft. of the line, and that would be the minimum he could go for. This comes under the heading of ~Il Adjustment Board discretion. There is no real substantial grounds for a variance, the Board would have to look hard to find one for him. Q 4 Q Mr Poland asked if the 2 ft. Chairman Millard was talking about was measured from the support columns or from the overhang. Chairman Millard suggested if Mr. Schwartz could minimize the overhang it might be possible for him to get the variance he needs without being in substantial violation of the ordinance. He stated that many people don't realize that this zoning ordinance protects the value of their property; the more you get crowding between houses the less value is there. Mr. Asting3 said that according to 904.] before any variances are granted by the Board of Adjustments they must find all the criteriaqis met. . __ c__...; Mr Poland said that it would appear to him that if the requirement said the overhang could go over the required setback that somebody who wanted to make a little carport sort of for his boat could just cantilever it right up to the property line. Chairman Millard stated that there was an ordinance passed recently on a companion article that said it was possible to make the distance from the lot line to the side ]O%of the lots width. It did not specifically apply to this case but it was in the ballpark - the lot was 80ft. wide and ]0% would be 8 ft. --. Mr. Poland asked if the driveway slab was ]6 ft. wide to the house. Mr. Schwartz said that it was. Mr. Poland said that the slab was then only about ]4 ft. wide which would mean they could not give too much of a variance. There was a discussion about the actual width of the driveway and the Board examined the pictures and drawings of the house and property. The Board also discussed the legality of pouring concrete up to the property line. Mr. Poland stated that he believed it was legal to pour concrete right up to the property line. The problem is whether or not you count the overhang. Chairman Millard said that the Board could continue discussing the request or if the members wished to have more time they could recess and take the request up another time. Mr. Asting~, said that Chairman Millard had wanted to find out about the overhang. Chairman Millard stated that Mr. Schwartz would find out about the overhang question when he took out his permit. Mr. Fenske said that if they granted Mr. Schwartz too much of a variance everyone else would be asking for the same thing. Chairman Millard said that luckily they had a provision in the law which says that each case stands alone and has no direct bearing on the next case. Mr. Fenske said that it was favorable that the neighbors did not disapprove of Mr. Schwartz' plans for a carport and they still have plenty of space between the two houses. Chairman Millard said that was a valid point that no other neighbors came to the hearing except the next door neighbors, the ones most concerned with Mr. Schwartz property. The Board could grant what is called legally "mercy" rather than an application of the law. The law would say that unnecessary hardship had not been established - there is hardship but it is not unnecessary. There is a slight touch of practical difficulty in that a ]0 ft. carport would not be much of a carport. It would have been better if the original design of the house had been left as it was but that is not anything that the Board should comment on. It's really a matter of granting understanding and mercy. Chairman Millard also stated that he could not give more than 8 ft. any more would be detrimental to the progress of the community. The Board considered other alternatives for the site of the carport. ~ 5 o Chairman Millard again stated that the chair was open to suggestions. Mr. Fenske asked Chairman Millard if what he was referring to was a ]2 ft. carport 8 ft. from the lot line. Chairman Millard said yes but he would not give an inch more. Mr. Schwartz said that if the Board could see fit to give him that variance then he could get started on the building and find out about the overhang. and make any necessary adjustments. Mr. Asting<~ asked if the variance approval had to be approved by the City Council. He was told that it would. He then advised Mr. Schwartz not to star~ right away on any building until final approval was given. Mr. Astingc said that the way he personally read the ordinance 8 ft. would be in conflict and that he had not heard anything presented that woudl authorize a variance. He was in sympathy with Mr. Schwartz but could not find anything in the law that would allow for a variance. The Board could go ahead with the 8 ft. and then it is subject to action by the City Council. Mr Poland stated that he believed if the Board of Adjustments recommended a variance that unless it is a very controversial case the City Council would go along with the Board's recommendation. Mr. Asting~ suggested that they make a comparison before he reached a decision. The De Phillippe case - he was granted a variance of one foot. Chairman Millard stated that the Board made an issue of the fact that just because they granted that variance it shouldn't suggest to anyone else that they should go ahead and do the same thing. Then he said that Mr. Asting. "statement was correct that there was no arguement with what he had said about the ordinance. Mr. Poland said there was no basis in the law to grant this. Chairman Millard said he did not say that. Mr. Poland replied that there was a clause which says that the Board may use their discretion. Chairman Millard said that was right and the fact that this driveway was poured by the contractor not at the specific directions of the applicant. This should be a contributing point to keep in mind. Chairman Millard continued that he had gathered from the conversation that Mr. Schwartz was not actually interested in putting in a carport, rather they wanted something to shade the house from the sun and possibly a place to sit outside, possibly screened in. Mr. Schwartz stated that something like that would look funny sitting on the driveway. That was why he wanted to move it over. That he would like to be able to build a carport he could use for his car. Mr. Fenske said that if he used 12 ft. he would still have 4 ft. left over to sit on outside. Mr. Schwartz asked again about the "mercy" clause Chairman Millard mentioned. Chairman Millard said that was a legal term that means granting a request even if there is not a strong case. He asked for Mr. Poland's point of view. Mr. Poland says he feels about this request the way Mr. Asting does. He sees no criteria met as they are outlined in Ordinance 880. Mr. Schwartz has a house with a driveway poured where he wanted it to conserve the trees (which is very laudable). It would be a shame to remove the trees now although that is within the realm of possibility and it would appear that he has changed his mind about what he wants to do with the house and decided that now he would like a carport like his neighbors and he has a problem. Basically there is no hardship, no deprivation of a reasonable use of his property. It just does not meet the criteria for granting a variance other than simply saying okay we gi ve it to him out of "mercy". He further stated that he felt that it woul d put the house very close to the property line as the variance is requested. Mr. Schwartz asked if it would make any difference if they took 2 ft. off the request. Mr. Poland said that would only leave him 6ft. 3 in. Mr. Asting asked Chairman Millard if there was going to be any changes in the ordinance u o - 6 - Chairman Mi~lard answered that it might be possible sometime in the future He then sald that he felt that Mr. Poland had summed up the problem. The only one he found ~hat was helpful in the criteria was the reasonable use of ~he pr?perty, bendlng that to say that a 10 ft. carport was too small when there lS avallable space. There was a discussion about the wall attached to the house and why the driveway was poured the way it was. Chairman Millard said that they had discussed the request quite a bit and if the members were not ready to vote they would recess. He asked if anyone felt they were not ready to vote. The members said they were all concerned about the overhang issue. The Chairman asked the secretary to get Mr. Loeffler on the telephone. The secretary was unable to get in touch with Mr. Loeffler. The Chairman then stated that the Board could make the condition that the overhang cannot extend beyond a specific point. The Board is adjusting a building permit that was denied by the Edgewater Building Department. Chairman Millard further stated that in his opinion 8 ft. from the lot line should include the overhang. If Mr. Schwartz wants to build his carport on a variance this Board apparently feels that 8 ft. is as near as he can come to that lot line with the overhang or any part of the carport. That would be the condition that the Board would grant the variance under. Chairman Millard asked the secretary to call the roll: Chairman Millard: I would vote for 8 ft. from the lot line, the 8 ft. to be measured from the edge of the overhang to the lot line. Mr. Asting : I vote yes, under the same conditions. Mr. Fenske: I vote the same under those conditions. Mr. Poland: Yes. Mr. Asting further added that if the carport is built that any concrete that extends beyond the overhang something be done to improve appearance of it. Mr. Fenske said it would not be too much of a job to cut the concrete out. Mr. Schwartz said that he would rather try to do something else to improve the appearance. Mr. Poland said that he would not like to put that in as part of the condition but he would go along with the suggestion to improve the appearance as long as it did not dictate what Mr. Schwartz has to do. Mr. Schwartz should be allowed to use his discretion. Chairman Millard then told Mr. Schwartz that the Board of Adjustments would prepare a brief memo report for the Council, hopefully it will be presented at the next Council Meeting. The Council will then vote on the Board's recommendation. The Attorney will prepare a resolution which the Council will verify the following week. He cautioned Mr. Schwartz not to proceed with any building until he had the final verification of the granting of his request. Mr. Asting suggested that another point to add to the minutes would be that the carport would provide shelter for a vehicle and also shelter in stormy weather to enter their dwelling. Chairman Millard then stated that Mr. Schwartz participation in the Board1s Meeting was concluded and if he and the other guests wished to leave they may do so. Chairman Millard then said that he wished to talk to the Board for a few minutes. Mr. Poland suggested that in accordance with procedure the Board go over the minutes of the last regular meeting on August 10 and approve them for the record. Mr. Poland also asked if Chairman Millard had received a reply on their request for a clarification of the perjury question. <.) - 7 o Chairman Millard said that he had not and he believes that the subject should be looked into and discussed more thoroughly. The Board is still not clear on what the procedure is if a witness at a public hearing commits perjury. He has written to the City Attorney and still not received an answer. Mr. Poland made a motion to approve the minutes of the August 10th meeting as submitted. Chairman Millard made note of some misspelling. He also asked the secretary to find the original copy of the rules for Board procedure so that Mr. Fenske could sign it. Mr. Fenske signed the original copy of the rules. Chairman Millard also requested some editorial changes in the minutes. He feels that there should be more detail in the minutes. Mr. Poland said that it was his opinion that anyone who was interested in the details of a specific case would want to listen to the entire tape of the meeting; however anyone who was merely reviewing the function of the Board in a continuom would therefore not be interested in the tapes but would read the minutes and for their purposes would not need explicit details. The secretary stated that most newsmen and attorneys who are interested in a specific case will listen to the tapes and not read the minutes. Chairman Millard said that he had no arguement with that statement but he would like to exercise some control over what is in the minutes. He is not requesting a verbatim transcript but would appreciate some more detail on significant points that are brought up during the meetings. Chairman Millard stated if there were no further comments on the August 10th minutes (other than a few typographical corrections), it would be in order for the secretary to call the roll. Chairman Millard Mr. Asting Mr. Fenske Mr. Poland Approve Approve Approve Approve Mr. Poland said that the grammatical errors were his not the secretaries, he was the one who gave her the rough type copy. Mr. Poland said the minutes were taken voluntarily since he had never been appointed as secretary. Chairman Millard said that we should take up the matter of appointing Mr. Poland Mr. Asting read a report from the State's Adjustment, Zoning and Planning expert Dr. Bartley: The Board of Adjustments shall consider and be guided by the following standards and shall make findings in regard to them in making determination on any petition for variance. Chairman Millard said that was different than what is stated in their ordinance which states the Board must find that all these criteria are met. Mr. Asting said that he felt Chairman Millards suggestion on variances of 10% of the width of the lot would give the Board something definite to work with. Chairman Millard asked the secretary if she recalled hearing on any tapes or reading any information concerning the Board's desire to destroy any tapes? Mrs. Wadsworth said no,but there was something about destroying minutes. Chairman Millard stated the question involved two sets of minutes and one of them obviously has to be wrong. They don't want two versions but there was never any intent to destroy tapes. Chairman Millard adjourned the meeting.