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06-09-1977 Recessed u u BOARD OF ADJUSTMENTS June 9, 1977 Chairman Millard stated that this is a continuation of the meeting that began last night. He explained that last night was a rehearing on an application that had been made back in April. We gave two nights to it then, we have given two nights to it already in May, and we are here for the second time in June. We are here for one purpose only and that is to complete our voting and see if the applicant has complied with what they said they were going to do last night, which was to bread this area down to get as close to R-3 Zoning as they could as far as area goes. He asked Mr. Richards if he has an announcement to make, he can make it Mr. Richards introduced his attorney, Mr. Craig James, from Deland. He said that he has some exhibits whereby we can discuss trying to get the lots with the maximum square footage. Chairman Millard stated that he must ask Mr. Richards, after all of this time and expense, not to say of the volunteer time of this board and of the complete openness with which we have conducted everything, we have given you more time than anybody has ever had, at this late date, why do you find it necessary to employ legal counsel plus a court reporter? Are you suggesting that there is some question about the integrity of this board? Would you like to explain why you brought your own court reporter? He added that he takes it as a personal insult Mr. Richards stated that he is sorry about this. Attorney Craig asked if he could interrupt on his part ... Chairman Millard, stated No, let Mr. Richards continue. Mr. Richards went on to say that the reason being that they have been on this project since March and we do appreciate everything that the board has done for them. He said that they do not know where to go; they have so much involved in it, that we have to do something later on perhaps. For instance we may have to appeal, and we will need some history of what has taken place. He added that bringing his attorney should not offend any member of the board. Chairman Millard stated that it is not the attorney, but the presence of the Court reporter implies that we are not keeping accurate records. Mr. Richards stated that this is for their personal use. Attorney Craig asked"if he could explain why... Chairman Millard stated that Mr. Richards and Mr. Cartee have presented their case, the board has listened to them and to the members of the public who are interested. He added that last night the board repeatedly asked them to make their case of unnecessary hardship and they said that they had no other case other than economic cost, which is specifically prohibited as a cause for granting a variance. Mr. Cartee stated that they are represented by counsel and he feels that their representative should be heard. Chairman Millard stated that he is discussing this with Mr. Richards. Mr. Cartee asked then if he is denying them use of their attorney? Chairman Millard stated that they are not denying the use of anything. He went on to say that they have given every opportunity to let them present their case and there has been no evidence presented in regard to unnecessary hardship. He asked if they plan to do this tonight? u u Mr. Richards stated that if he may be allowed to speak, due to the fact that he is a layman in this type thing, he decided that he might need some profes- sional help. He added that he thinks it is his prerogative to have an attorney present and he does not think that we have violated anyone's constitutional rights. He also feels bad that the attitude that is being taken is being taken. Chairman Millard stated that he takes the attitude that they have conducted exhaustive hearings and you have had ample opportunity to have brought counsel in and at the stage where we are voting, that is really the last grasp chance to bring in. He added that he is not going to rule that he can not be here, but this can not be a very judicial thing to do. We are not going to go back and rehash this whole thing, unless the attorney can show that some constitu- tional rights have been violated. He asked Mr. Richards to sit while he spoke with the board. Chairman Millard asked Mr. Poland to call the roll: ROLL CALL: Chairman Ken Millard Mr. Lupinek Jerry Fenske Jim Poland Present Present Present Present Chairman Millard stated that Mr. Poland is excused from voting at his own choice however we do have the required three members here. Any votes that we take will have to be unanimous to be valid. He asked for any comments from the board. He went on to say that he remembers asking Mr. Richards at the beginning of these hearings if,he had counsel. Mr. Richards answered that they didn't at that time. Chairman Millard asked him to stand, and stated that this is a Board of Adjust- ments Hearing in Edgewater and he will have to ask the attorney to take an oath. Attorney James questioned if an oath was for testimonial purposes and he stated that he does not plan on testifying, he plans on presenting the case with witnesses. He added that an attorney is only a vehicle whereby men can testify. Chairman Millard asked if he plans to rehash what we have already gone through in previous hearings? Attorney James stated that he does not, he plans to present the facts that have been put forth and we do have new evidence. Chairman Millard stated that last night they were beginning to vote and we gave them an opportunity to meet as closely as he could the R-3 requirements. It was his understanding that they were going to bring a drawing and show what they are going to do, and we are going to be as reasonable as we can. We have given enough time to this case. Attorney James stated that he explains this. He said that his presentation will not extend the board's time 30 minutes at the most. He stated that the issue of hardship was brought up, which is an extremely difficult issue to handle. The statement that they must show hardship, and it can not be a mere financial loss, is a nice statement, however any hardship can be acquated to dollars. He gave an example showing this. He showed the board members a copy of a County case that was almost identical to this case, where the Zoning Board relaxed the zoning regulations to permit the variance. He stated that what we have here is not a change of use at all, all they want to do is build homes on approximately 7500 foot lots as opposed to an 8600 foot lot. He explained that Mr. Richards and Mr. Cartee do have drawings showing what it would look like at their best attempt. He added that it is significant that the board consider the use of the property as it exists. There are a number of homes in that area that are built on smaller lots or the same size, but are non-conforming. He went over what the tax roles show as the size of the various lots in that area. -2- u <.) Chairman Millard interrupted Attorney James, asking if the point is that there are homes on the land that are equal to or less than what they are asking for? He asked if there are any that are larger? Attorney James stated that they are not saying that they are in violation, what we are showing is the character of the neighborhood, which is the whole reason for giving a variance. He added that variances are liberally granted when you are not changing the classification, which we are not here. Chairman Millard asked if he has had a chance to read our Ordinance? Attorney James stated that he has, and there are two separate provisions that are confusing. Chairman Millard stated that it is pretty clear, which part is confusing? Attorney James stated that if we could meet the Ordinance we would not be here, we would have gotten a permit automatically. Chairman Millard stated that we have gone over this, and perhaps he can bring things up to date. We have an Ordinance that specifically prohibits the owner of more than two lots from breaking them up into non-conforming lots and that is very clear. Other than for unnecessary hardship, which is the prime thing that must be established, then we have the other criteria. Attorney James stated that he understands that the Ordinance has this. Chairman Millard stated that the board has probed with the applicants through many meetings trying to help them establish if they meet the criteria set up in this Ordinance. We are not for or against any group except the community interest and the individual rights. Attorney James asked Mr. Millard if they understand their function as a board? Do you understand why we are here? Chairman Millard did not answer, but stated that Attorney James is probably unaware of how much time we have given to this thing. We are pretty much agreed on the outer units, we gave them the vote on that last night. Now on this last group of nine houses, we are specifically directed not to allow them to be broken down into lots that do not meet the Ordinance. In spite of that we are prepared and almost voted to grant the depth variance down to 100 feet. We realize that there is a mathematical problem on that ilL" shaped piece of land, and they may not be able to exactly meet the R-3 area. We recessed the meeting, we could have voted last night or at a meeting before that. Now you come in and start allover again, he added that he is a little annoyed at this. He asked if his client is prepared to show how close he can come to R-3 area, and is he going to do that, so that we can get this off of our agenda? Attorney James stated that he would like to make one more statement about the undue hardship. He said that this relates specifically to what has happened in the past in relationship to what you have done to your property. They have filed permits and applied for loans. He asked if the board has hea rd thi s about fil i ng for loans and a 11 of the paperwork that goes to the Federal Government,if you have to start this allover again, then they will have to reapply and this is a tremendous hardship. They probably won't get the loan and get committment and the sale. This is a substantial problem. He asked if the board was aware of this? Mr. Lupinek stated that he has never heard of this until now. Attorney James explained that if they reapply on those loans and have to change their legal descriptions, they will lose their credit with the Federal Government. He stated that this was probably not brought up because they did not know that this was a hardship that the board could appreciate. He went on to explain the procedure in the event they have to reapply. -3- u u Mr. Lupinek interrupted and asked why we can't get right down to brass tacks and have them show us what they came up with? Mr. Poland asked a question regarding the loan applications.He asked if they applied for these loans prior to getting the variances they need in an issue which in the outset was extremely controversial. Mr. Cartee explained to the board that Government Builders alway try to get their problems out of the way before they build the homes. They do not have any desire to own property that they can not build on. They put the person who owns the property under contract with the provision that anything that is necessary for them to build a home is issued, even a bank loan. He added that seven of these homes are under contract and are ready to be processed through for approval with the Federal Government. Mr. Earl Wallace spoke to the board, explaining that he represents Smyrna Drafting Service and he has come up with something for the board to look at to help them with the matter at hand. He showed the plan to the board and went over it in detail. He showed a second sketch that they made, trying to go a step farther to meet the requirements. He explained that you can take a piece of land and work it just about to three or four different plans that will work, but the decision has to be made, in their opinion, on which one will improve that portion of the area and enhance the development. Mr. Poland stated to Mr. Wallace that the board stipulated last night that it will probably be impossible to achieve the 8600 square feet on each of the lots, but what we suggested is that perhaps they would consider narrowing the lots a little to compromise. Then would the land on the corner be more usable? Mr. Wallace explained that this may work, and the house would be setting in the same direction it will still restrict location as far as the setback requirements are concerned, it may meet the requirements, however it possibly proves a greater hardship in accessability to the property. He went over the sketches with Mr. Poland to show what they are talking about. He added that there are several methods that have been shown to the board, it is up to you which direction you wish to go. Mr. Lupinek asked about the angle on the property on the curve and suggested that it would be more feasible to spread the line there. Mr. Wallace stated that this could be done. He went on to explain that what he has sketched here shows just one less bUilding site than what was first proposed. The usage of the land is asking for more variances in about three lots than you are asking in the entire project. It is a matter of utilizing the area to these peoples advantage, the new owners as well as the people around it. There was discussion about easements being required if the land was divided like shown on the sketches. Mr. Kane was given the floor. He stated that he believes that there is an Ordinance and all we have to do is work by the Ordinance. Attorney James spoke that if we follow'the Ordinance this can not be done, that is the reason the applicants are in front of this board. He went on to say that he is sensitive about the functions about the different boards and he thinks that zoning will work, but you have to be careful the way you use it. He spoke of the County Ordinance. Zoning will deny you the use of your land if it is not applied fairly, and he suggests that in this case if you reduce from nine to eight homes unreasonably then it can come out to the complete denial of the use of one lot. If you make them adhere and tow the line you are not functioning as a Board of Adjustments. It is wrong to deny a man a reasonable use of his land. He explained that if the developer had not given the streets of that subdivision to the City, but left an ease- ment, it would have solved this problem and the requirements could have been met. He added that it takes common sense men, sensitive to an individual IS -4- u u rights, without bowing to peer pressure to To adhere to the rules strictly would call this is the primary function of a board of are asking too much, because otherwise you function as a Board of Adjustments. for the board to disband, because this type. He asked if these men are taking that one lot from them? Mr. Edward Stone, of 136 Wildwood Avenue, spoke to the attorney, stating that if he could see the matchboxes that these people want to build, he would be ashamed that he came to this meeting. He added that you are trying to cram something down our throats that we don't like. Mr. Millard called order to the meeting. Mrs. Kanes stated that she would like to correct one thing that is in error. It was stated that most of the homes in the area are on lesser lots that 75 feet. She added that this is not true. She has checked on this with the home owners. She said that there are two lots that are smaller, but there are six lots that are larger. This was discussed and explained that Mrs. Kane is discussing the lots on Wildwood Street, and Attorney James is talking about the lots in the entire area. Mr. Kane suggested that the board go ahead and vote on what the applicants have presented and get this over with. Chairman Millard asked if there are any further comments from the applicants? Mr. Richards and Mr. Cartee both stated that they felt that it was perhaps due to their ignorance that a decision had not been made prior to this, and they decided that perhaps they needed legal help to present their case properly. Chairman Millard stated that he does not blame them for presenting as strong of a case as they can. He asked for comments from the board members. Mr. Fenske stated that before we vote he would like to know what we are voting on. He wants to see what they decided on in the size of their lots. Chairman Millard stated that apparently they haven't yet. Attorney James stated that they are requesting the nine, however if the board insists on the eight, or if the vote on the nine does not pass we would like a vote on the eight. Chairman Millard stated that the board decided last night that they could not go on the nine lots. Mr. Cartee asked Mr. Millard if he said that last night they definitely decided on the nine lots? He stated that he understood last night they the board asked them to see if they could work out an alternate plan for eight homes, not that they had disregarded nine homes completely. He was not under this impression. He added that they have complied with the board's request. They were also asked to prove hardship and he feels that we have done so tonight. He said that he would like a decision on nine. Mr. Millard stated that perhaps he was misunderstood. At no point did the board say that they made a case. We were bending over backwords to see that you were able to make a case for unnecessary hardship. That hardship can not be brought about by your own actions. It can not be because of money. He went on to say that the board gave them another day to see if there was any that they could get their project ready. It was a suggestion not a direction from this board; we said that we would entertain a revised plan that would show that you had made an effort to comply with the R-3 Zoning. Keeping in mind that Mr. Wagner, who owns that 100 x 100 foot area in there is blocking them from getting adequate space all around. It is his understanding that Mr. Wagner owns that entire strip of land and he is the one who has continuous ownership of this land. He explained that the board is strictly forbidden in this Ordinance from allowinG someone who owns more than two lots to create more non-conforming lots and that is exactly what has happened here. We understand their commercial objective and we want them to get as much value out of this -5- (.) (.) land as they possibly can. We asked last night that you come back and show that your hardship is other than economic and not caused by their own actions, and that it was an unnecessary hardship. There is no need talking about what the other homes are doing or have done, that is probably the reason for the zoning. R-3 is what we are trying to do. He needs a depth variance 'for these lots, and that is fine, we are glad to give it to him, but we can1t ignore the fact that the Ordinance was established to improve and modify the style of homes in that area. He added that we are trying to get your clients to be engenious enough to work out a way to come as close as possible to R-3 area. He added that as he remembers the directions from the board to the men were to make it exactly R-3 area, and they blew it. They constricted themselves to an arbitrary number after the board said to show us how close you can get to it. He added that he is confused now why they come in and start stone walling this thing. He explained that we have a member of this board who is about to leave town and if he leaves they will be out of business for two months because we will only have three voting members. He added that if he was in the appli- cants shoes he would have worked on this drawing and adjusted it hoping to get one lot a little less and the others higher. He does not care how it is done, we opened the door to save the project and to go back to Mr. Wagner to see if he would give you a few feet here and there. We are not trying to stop the project and we are not trying to let it go ahead, we are trying to dispense justice, but without your cooperation there is no way: If we vote now, we are going to have to turn this thing down. Do you want me to start the vote, or do you want me to recess this meeting? He stated that he will give them a democratic opportunity to say something. Attorney James stated that they are really confused now, do you mean the eight won't do it or do you mean... Chairman Millard stated that we are not talking eight or nine, we are talking reasonable men who understand that you are trying to build and improve in this area. You are hemmed in with a road there and a house there, you have a layout problem. You need an architect to help them, maybe you don't make them all equal size, but he refuses to believe that they can't get eight homes in there that would be approvable by the community. Attorney James asked if Mr. Millard is saying that the eight plan is not reasonable? Chairman Millard stated that you don't want to use the eight plan. There was some commotion at this time. Chairma'n Millard stated that last night the board did not say that you had to give them R-3 square area, we said to see how close you can come to it. We are willing and cooperative, now you come back to say that you have to make it a certain area. He does not believe anyone said that. Mr. Cartee stated last night this board did not give us a figure. We asked several times, perhaps you could not give us a number. We did not want to get turned down again; we know this gentleman is leaving town for two months. We went for the full thing, 8,625 square feet in each lot. We did not want this to recess and have to continue. Chairman Millard stated that we don't intend to do that. Mr. Cartee stated that Mr. Millard just made the statement that you are ready to recess. He added that he would like to have a vote on the nine sites. Chairman Millard stated that we were going to vote last night and Mr. Richards was very eloquent and we said that we would come down one more night and do whatever we have to do. Apparently what he is saying is not getting through. He asked the attorney to explain what he is saying. Attorney James stated that this is a little confusing; are you saying that they have done the best they can with nine and you are saying that they should take eight and try to fit it in better, and they have already tried? -6- u u Chairman Millard stated that we were on the verge of voting and were saying that nine won't work, and we said can they go back to the drawing board and work it out to see how close they can come to R-3 zoning? So what comes back is they say you see how terrible it is when you do it? Attorney James showed them the sketch with nine sites. and he says that it is not terrible. Mr. Cartee stated that an expert testified that this is as much as he can do. There was confusion among the meeting, with everyone looking over the sketch and talking at the same time. Mr. Cartee asked if the board will accept eight if they can come as close as humanly possible? Chairman Millard stated that we can not say we will approve it, but that is what we said last night. There was discussion again over the sketch. Chairman Millard stated again that they are trying to be cooperative, and some members of the community feel that they are being too cooperative. He said that with the eight. they really don't have much of a problem. We expected them to come in with a thing tonight and that we were going to be out of here within an hour, and you come in with an attorney and some drawings that suggest that they are playing with them. He said that he ,has been in advertising and he recognizes a ploy when he sees one. He said again that no one is trying to stop you from bUilding your houses, we are trying to stop you from building more houses than are correct by the zoning. He stated again also that the board never said that you have to meet the exact R-3 area. He said that we want to be fair but they should give us some materials to work with. Mr. Richards went over the sketch with the members again, showing the eight sites. Attorney James stated that he has a suggestion that will solve the problem. If the board will reduce the square acreage requirement to 8,000 square feet or to 8,200 feet for this group of lots, which will keep them from putting more than eight houses in there, and every house will have to be at least 8,000 square feet therefore they can play with it all they want and the board will never have to see the diagram. Chairman Millard stated that he is a little lost with all of those figures, he asked Mr. Poland what he thinks about it. Mr. Poland stated that there is some logic in that. Chairman Millard stated that he is not a mathematician, but the problem is that corner area and it is difficult for a generality to be used and to make all of the lots the same. Attorney James stated that he is saying no less than a certain figure. The board could list the lots and say that they are being allowed to put in eight homes. Chairman Millard stated that we would almost have to see a sketch to show where these houses are, we are not going to give them a blank check. Mr. Richards stated that perh~ps they could word it whereby we could just have eight houses from this point to this point. Mr. Kane was given the floor again, he stated that we have an Ordinance and we should go by it, this is for financial gain. Chairman Millard stated that this is a good point, and he should clarify that -7- u u this is not an application of the zoning law before some other board. They recognize that they are trying to get leniency from the Ordinance; this is the purpose of our board. He went in detail about the process by which someone comes to the Board of Adjustments for mercy. Mr. Kane stated that the people will have to live with the board's decision, however the board should vote on what their application asked for, if the board is to vote on anything else, they will have to come back with a new application. Chairman Millard stated that this is true, however the board also has the right to attach conditions to their approval or denial. He went back over what was decided last night, and stated that he has to see something on what they have planned ahd he knows they need time to do this. Now we are right back where we were when we left last night. Mr. Cartee asked if they could come back with drawings, perhaps to the City Council with the recommendation from the board... Chairman Millard stated that they will not advocate our responsibility and duty. He asked how long it would take them to get this drawing done? Mr. Richards stated that if they were given another working day, perhaps they could get Mr. Wallace to help them again. Chairman Millard stated that he is going to make an irrelevant comment for the board, but he is sure that it has occurred to them all that the owner of all of this land wants to sell, and if he is the obstacle being used by the applicant, he is sure that they can think of an argument to use with him. He added that surely they could get enough land to come substantially close. Mr. Lupinek stated that he would like to see some common sense used on this, and if Mr. Cartee would keep his nose out of it and let Mr. Williams do what he thinks is right he thinks that they will get somewhere, instead of messing around with it. He asked Mr. Cartee if he understands him? Chairman Millard stated that he thinks that he understands. Mr. Cartee stated that he understands quite well, however it is his business. Mr. Lupinek stated that he thinks that Mr. Williams has the right approach... Chairman Millard stated that this is Mr. Richards. Mr. Lupinek continued about Mr. Richards having the right approach, and that he thinks he can come up with something that the community can live and that the board will sanction. Chairman Millard stated that this is a sound statement and he subscribes to it. Mr. Richards asked if he could show the board what he has in mind and see if they feel he is heading in the right direction. This was agreed with, and he showed them on the sketch what he intends. The board members made different suggestions also. The attorney tried to explain the problems that a surveyor is going to have making these divisions as the board suggested. Mr. Lupinek stated that if a drawing is brought in similar to this discussion with eight lots on there, he believes that the board will go along with them. Chairman Millard said that if any member of the board has an idea how this can be done it might be helpful, however this help is not to be construed that we approve it, we are saying here is an idea. -8- ~ u Mr. Poland helped Mr. Richards with the sketch, changing the lot lines to see what they could come up with. Chairman Millard stated that the audience is welcome to come up and see what is being done. There was discussion as to how the variance could be worded so that the applicants will not have to come back before the board again. Chairman Millard stated that he thinks that it would be proper if the attorney will state what general direction they are now going with the drawing, then he will ask the board what they would like to do with it. Attorney James stated that what they proposed is to take the same area that they have been talking about at all six meetings,which was originally broken down into nine lots, and breaking it down to a theoretical eight lots. By reducing the number of lots from nine to eight, they intend to produce a drawing which meets substantially the approach indicated by overlay Exhibit No.1, which has eight numbers on it for eight lots and the only various that they will produce in order to make an acceptable middle lot, which is designated as Lot 4, is to start on both extremes of this irregular shaped piece of property, including all eight lots, and reduce the present drawing, starting on the first lot and reducing the width measurements, measured on the back side by four feet and running in an imaginary line parallel with the existing east line, just four feet shy of the first adjacent property line and proceeding around through to the middle lot being Lot 4, by re- ducing each of the lot dimensions by four feet. They will come on around until they get to Lot 4 and the additional land that is left over by re- ducing the lot widths of Lot 1, 2 and 3 will be added onto the Lot 4, giving Lot 4 more square area. Chairman Millard stated that the board is not requiring that each lot be identical. Attorney James stated a correction as to Lot 4, instead of merely mathematically adding the four feet to Lot 4, we anticipate averaging the same area but reducing the entrance on the road to a mere 30 feet in fanning out. Lot 4 will be the only lot that will be fanned out on the back side pointed to a 30 foot entrance on the curve side. There was more discussion, Chairman Millard asked that the audience give the attorney their attention. Attorney James explained that the board is suggesting one qualification, instead of strictly adhering the necessary four foot incremental increase or decrease, that if it appears after putting it on the drawing board, that it is more attrac- tive and suits the requirements of the garage entrance, etc. in regard to Lot 4, that they will deem it acceptable to go down as low as reducing the lots by three feet or two feet, one criteria being that no plan shall be submitted that will be a violation of the directions or suggestions of the board. If any scheme is designed to implement or put nine houses on this piece of land, that it should be a design that will be appreciated from a standpoint of putting eight houses on these total lots as opposed to the initial plan of the nine houses. Chairman Millard stated that we need to get to the business of when this plan for approval will be supplied to us and whether the board can meet or not. Attorney James stated that in light of this eight lot proposal, it is not sug- gested by anyone that there be a requirement of purchase of any more land from anyone other than what is laid out in the original nine lots. Is this correct? Chairman Millard stated that this is what we got hung up on. He added that technically Mr. Wagner owns all of this stuff and the directive says that if it is in one man's ownership. It is a technicality; he can not imagine Mr. Wagner not wanting to give any 1and that you need. Attorney James stated that going down from nine sites to eight, they do not need any more land. If they could have got any more land, they would have stayed with the nine. -9- ~ ~ ~ Chairman Millard asked if we all stated that they could. who is interested in this to tomorrow night. all can meet tomorrow. The members Chairman Millard also asked anyone please attend the meeting at 7:00 Chairman Millard stated that he thinks what we are interested in is getting the maximum square feet. Also make it look good for our community. Chairman Millard stated the we will recess this meeting until Tomorrow night at 7:00 P.M.