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04-13-1977 / u o , Board of Adjustments April 13, 1977 Public Hearing Chairman Millard called the Board of Adjustments to order at 7:00 P.M. in the Mayor's office. The purpose of this meeting is to hear the parties for the following cases: Mr. Bresnahan, Mr. Palmer and Government Builders. ROLL CALL: Chairman Millard asked the clerk as she called the roll to please pause. Mr. Fenske Present Mr. Millard stated that Jerry is retired and he lives on Rhode Island. Mr. Fenske stated that he was a tool and die maker. Mr. Lupinek Present Mr. Millard stated that Mr. Lupinek is also a retired tool and die maker, and he lives on Travelers Palm. Mrs. Nichols Present Mr. Millard stated that Mrs. Nichols is in Real Estate, she has some tie in with Lovell Real Estate, and she lives on Flagler Avenue Mr. Millard Present Mr. Millard stated that he is a retired advertising executive, and he lives on Riverside Drive. ORDER OF BUSINESS: Chairman Millard asked if anybody on the board is related or has any business interest with Mr. Palmer? They all indicated negatively. Chairman Millard asked the clerk if all the necessary people have been notified? She stated yes. Chairman Millard asked how did she go about doing this? She stated that the abutting property owners were sent letters, certified, return receipt requested. Chairman Millard asked if the people across the street were notified? The clerk stated said no. Chairman Millard asked if we have ever done that in the past? She stated no. The advertising is done in the newspaper. Chairman Millard stated that the property is in R-3 zoning, on"Beulah off of Flagler Avenue. He asked Mr. Palmer to explain what he wanted the variance on, he also asked if this was an existing lot and was it there prior to the passing of Ordinance 880? Mr. Palmer stated that it was. He stated that in the rear at the Northwest corner of the building there is 13 feet and we need 20 feet. The survey shows 11.1 feet on each side and the back shows 13.06 feet and the Northeast has 20 feet. Mr. Millard asked Mrs. Wadsworth if the zoning ordinance shows the rear set- back as 20 feet and the area as 8,625 square feet? This was checked and found to be correct. ~~ " u o Mr. Palmer has 100 x 50 feet, which would be 5,000 square feet. Chairman Millard asked if all the members had been out to inspect this property? Mr. Lupinek stated that he has not been out there, he has examined the map, he does not know what the surrounding property is like. Basically what we have here is one corner which is less than what is required. Mr. Palmer stated that the corner was 13.6 feet. Mr. Millard reminded Mr. Palmer that he was under oath. He also asked if there was anyone present who owns adjacent property who would like to make any remarks? Mrs. Vogika's daughter is speaking for her, she had a map that she showed the board. She stated that she was told that this lot should not have been divided the way it was. Mr. Lupinek asked if she knew who owned the property behind her? She stated that Mrs. Baker did. Mr. Lupinek wanted to know if the people that were here were against the variance or for the variance. They stated that they did not want the house there. Mr. Palmer stated that he would only be too glad to sell this property to these two ladies for $22,000. Chairman Millard stated that this is not the time to make an offer. Chairman Millard stated that the question here is that your house is 5 feet to the lot line and the new house will be 11 feet. Mr. Palmer stated that he has not owned this lot very long, he bought it from Mrs. LeClair. Chairman Millard asked Mr. Palmer if he was planning on building a home there? He replied that he was, and it would be for sale. Mrs. Nichols stated that she did research this property to see if by dividing it, it would have been a conforming lot under the ordinance and it would have been. Mr. Fenske stated that he was short quite a bit of area there. Mr. Palmer answered a question that the property was 11.15 on one side and 11.16 on the other side. Mr. Millard stated that the observation he made on driving around that entire area is that this is the same lot size as many of the houses are built on some of the lots that are smaller. He explained that one of the things that we take into interest in weighing this is what the rest of the community has done. Is it built the same way, will this improve it? When this ordinance was written they included some guidance for us. The Board of Adjustments has the power to hear and decide on applications to allow variations from the regulations. He asked Mrs. Wadsworth to read from page 126 of the Zoning Ordinance,Criteria for Granting a Variance. Mrs. Nichols spoke on Section A. She stated that it does meet this, because you only have the 5,000 feet that is all that is there. If there was any more land that he could obtain, then you could say that you must buy that land to comply. The property around him, the lots are all deeper and it is bad that it was cutoff like it was. He would be allowed to build under the old ordinance. This lot was recorded in 1972. The City map has not been changed as to recorded lots since the beginning of time. Chairman Millard asked for Section B to be read. He stated after it was read that it seems clear that you have a recorded lot and you can't buy any more around it. He stated that he can't see how you can tell them not to build on that land and just leave it there. He stated that according to what has been read it is understood as long as he owns the property you have to grant the variance. -2- ~ u Q Chairman Millard asked for Section C to be read. He asked Mrs. Baker if she had anything to say about this? He asked her if she would like to see the drawing? She stated that she would. Mr. Lupinek asked her what property she owns. She stated that she owns lot 250. Chairman Millard stated that on Section C, the point was to decide whether the conditions of this lot result from the actions of the applicant. He stated that he did not think it did. He asked for any comments from the board on whether this would be a substantial detriment to the public welfare? No comments were made. Chairman Millard stated that it appears to be like many of the homes in the area as far as the way it is placed on the lot. It does not seem to impair the purpose and intent of this ordinance. There is one question though. He says that he has 11 feet on each side of the house. The lot is 25 feet wide and this is going to be a very small house. Mr. Palmer stated that the lot is 50 feet wide. Mr. Millard asked for Section E to be read. Mr. Millard stated that in other words, will this variance let him do a thing that everybody else is not doing. It does not appear to be a grant of a special privilege. He is asking for a minor variance on the back one corner. He has not brought up the argument of hardship there is nothing to rule on that. Chairman Millard asked Mr. Palmer if he planned to build on this lot immediately should the variance be granted? He stated yes as soon as he got the construction money. Mr. Millard asked if one year would be adequate time? Mr. Palmer stated that that would be too long. He plans to build in 90 days or less. Mrs. Vogika's daugther asked about the construction of the house. Will it be even with her mother's house or what? Mr. Palmer stated that the house will be 50 feet deep. She asked where the carport would be? He stated on the west side. Chairman Millard thanked everyone for their comments and he said that we are getting a little off of the point. He entertained for any comments from the board. Mr. Lupinek stated that if this building is going to conform with the rest of the property and as the ordinance tells us it seems that we are in the right to grant this variance. Chairman Millard asked Mr. Lupinek if this is his vote? Mr. Fenske stated that he votes for the variance. Mrs. Nichols stated that he needs it in the rear setback and the lot size. Unless that amendment to the ordinance took care of that. She went on to say that for the record she wishes that we could deny it, because it is too little land, but we can1t do it and be right about it so she also votes yes. Chairman Millard voted yes. Chairman Millard called a recess before Mr. Bresnahan's variance will be heard. Chairman Millard asked Mr. Bresnahan to be seated at the table. Mr. Thomas Wright introduced himself as Mr. Bresnahan's attorney, from New Smyrna Beach. He stated that Mr. Bresnahan1s application speaks for itself. -3- ~ Q Chairman Millard asked about the notification that was made. It was stated for the record that the proper publications were made. Chairman Millard asked Mr. Bresnahan to explain his ownership of lots. Mr. Bresnahan stated that he owns 10 and 11. Chairman Millard asked if he has any houses on these lots? Mr. Bresnahan stated that there were not any homes on this property. Chairman Millard asked him if he was asking for the variance on the corner lot? He stated that this was correct. Chairman Millard asked if all the members had been out to look at the property on Rio Vista and Erskine? They all have been there. This property is zoned R-3. is that you are asking for a road. 17 feet from the road serious to grant. 8,625 square feet is required. The difficulty here variaace on how far back your house is from the edge and this is normally something that is very Mr. Bresnahan stated that in order to conform with the ordinance he would have to put a 15 foot house on the lot. He can conform with every other setback, and the existing houses only have about 10 feet off the street now. Chairman Millard asked if this lot existed prior to Ordinance 880? Mr. Bresnahan stated yes. Chairman Millard asked if he owns the lot next to it. Mr. Bresnahan stated he does. Chairman Millard asked if i1 was about the same size? Mr. Bresnahan said no that one is 60 x 100, this one is five feet larger. Mrs. Nichols asked why he doesn't want to put it further back and ask for the back variance? Mr. Bresnahan stated that the house next to it is only 10 feet off the street, and it would cut down on the size of the back yard. Also, he wants to put another home on the lot next to it. He will comply with the new ordinance they are coming up with. Mrs. Nichols stated that she does not believe they have ever relaxed the requirements on a corner side setback situation. Mr. Wright stated that he was not sure how the proposed ordinance reads, . however it was his understanding that when the ordinance that was read at the Council meeting about a month ago passes, he would be allowed to build a house without a variance. Mrs. Nichols stated not with that setback it wouldn't. She read from Section 400.01 of Ordinance 880. Her interpretation of this is that if you have non- conforming lots of record you can build a house. There was an amendment to it that is not in. effect yet that if you can build a house complying with the existing setbacks then you can do so, but it does not say you can conform with the rest of the neighborhood and build. Mr. Bresnahan stated that he believes they have thrown this out. Mrs. Nichols stated that they have modified it, but at no time can you disregard setbacks entirely, especially street setbacks. When you have a corner it blocks the vision and it is suppose to be a safety factor. -4- / ~ o Chairman Millard stated that we should attack the next sentence."If more than two lots or combinations of lots and proportions of lots with continuous . frontage in single ownership are of record at the time of passage or amendment of this ordinance and if all or part of the lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided parcel for thepurpose of this ordinance, and no portion of said parcel shall be used or sold in a manner which deminishes compliance with lot width and area requirements established by this ordinance, nor shall any divided of any parcel be made which creates a lot with width or area below the requirements statements stated in this Ordinance" Chairman Millard stated that he will comment again that Mr. Bresnahan is still under oath as far as this application. There are two individual lots that you own and they are lots of record. Mr. Bresnahan stated that this is correct. Chairman Millard asked him if he had them broken up in order to come up with two houses? Mr. Bresnahan stated that he has not. Mr. Fenske asked if the lots are all the same size? Mr. Bresnahan stated basically yes, mostly all are 60 x 100 feet but that one happens to be 65 feet because it is a corner lot. Chairman Millard asked Mr. Bresnahan the reason for not wanting to move the house back a little in order to be more in compliance with the setback? Mr. Bresnahan stated that because the house next to it is only about 10 feet off the street. He was just trying to conform the rear setback and be in line with the rest of the neighborhood. There are quite a few homes that are not 30 feet back from the corner. Chairman Millard asked Mr. Fenske to give his opinion. Mr. Fenske stated that he feels that Mr. Bresnahan should set it back since he is on a corner. Chairman Millard stated that he feels that Mrs. Nichols said it very well; that the 20 feet in back seems a luxuary when you are that close on the front. What you are asking for is what we are going to rule on but that is just a free comment no charge for that. Unless you want to change it. Mr. Bresnahan stated that he would prefer it the way that it is set up now, if possible. He feels that people do more sitting in their back yards. Chairman Millard stated that he would like to direct the attention of the board members to Section 904.01. He asked that they read this to themselves and see how they feel about all five of the criteria. He asked if there were any people here that would like to make comments. Mr. Wright stated that if Mr. Bresnahan was to comply with the R-3 requirements, for the front yard, of course then he would not comply with the back yard set- back. One way or the other he would violate the requirements. Who is to say having a house a little closer to Erskine is worse than having a house a little closer to the rear lot line? True it will cut off the view across the corner, but if you move it back you are going to move it closer to the residences on the neighboring lot. Chairman Millard stated that he has only two lots, he does not have more than two. Mr. Wright stated that they would have to be continuous lots to cover that statute. Chairman Millard stated that they are continuous lots, and when he wants to build on the next lot he is going to have to come back for a variance on that. Mr. Wright stated that these lots were of record before Mr. Bresnahan bought them. -5- ~ ~ Mrs. Nichols stated that the people adjacent were notified and the fact that they don't appear leads you to think that they do not have any ob- jection. The house next door is very close, the traffic there is not fast traffic and she believes that just about all the lots there have been built on. Chairman Millard stated that there is a mixture, some are a little smaller and then there are some that are on two lots and there is a little more space around them. It is a mixed area which is why we were looking at the criteria. We have to find that it meets all five things. Starting with A - This is not a peculiar thing because the house next door to it has a similiar situation. B.- If we applied this strict application of R-3 we would deprive him of the reasonable rights of building on his property. C - This condition does not result from -the action of the applicant, that is obvious, the lot existed. 0 - The granting of the variance will not cause substantial detri- ment to the public welfare. He does not see how with all the other houses being the same. Granting of the variance will not constitute a granting of a special privilege, that is denied to other lands, structures or buildings in the same district. Personally he feels that it meets all five. Mr. Lupinek stated that to his estimation, good common sense says it should be granted. Upon roll call vote Mr. Lupinek voted yes, Mrs. Nichols voted yes, Mr. Fenske voted yes, Mr. Millard voted yes. Mr. Millard told Mr. Bresnahan that we have to write this up in a memo to the Council and they will pass on it. Mr. Bresnahan thanked the board members. Mr. Millard asked for a three minute recess. Mr. Millard stated that the next item is the Government Builders' variance. For our record and for his education the members of the board were identified. He asked what state and division of the government the applicants are connected with. Mr. Richards and Mr. Cartee stated that they have formed a corporation several years ago knows as Government Builders, Inc., which has nothing to do with the government. We associate the name with the type housing we build, which is usually F.H.A., V.A., or whatever. Mr. Millard asked if they build for any other division or department of the government. They stated no. Mr. Millard asked if they were the owners of the land in question. Mr. Richards stated that they are the contractual purchasers subject to variances being granted. Mr. Cartee stated that the City has a letter that gives them permission to seek these variances for the two owners. Mr. Millard asked them to take an oath since there are two of them here and he only has one name on- the application. He continued with the oath. He stated that this is a judicial proceeding and we will try to be fair to everybody. It was stated for the record that all abutting property owners were notified. Mr. Millard stressed that this is a very large application for a variance and he wants to know the boards' feelings on allowing people living within a reasonable distance to speak. Mrs. Nichols stated that she thinks that is very good. Mr. Lupinek stated that they should be able to speak. He stated that they should resolve how far away that they should live though. -6- u u Mr. Cartee stated that he was told at the time that he prepared the application for variance that only the property owners adjacent to this property would have a say so at this meeting, which is the law in Edgewater. Mr. Millard stated that it was not very clear. We are going to vote on this now, whether we would like to at least hear what they say. Nobody controls the board except the board, and we can hear and investigate; we have broad powers in that area. We have each been to this area, we have driven up and down and around. I would like to say that anybody owning land directly opposite even if it is across the street or-next door we should give them the courteousy of listening. Mrs. Murphy was given the floor, and she stated that this question came up once before and the attorney at that time said that the rule was that you only have to notify the abutting property owners, but anyone in the City of Edgewater is permitted to come and speak because you don't know why they are concerned. Mr. Millard stated that this was interesting and it may be right but he does not read it that way. Mr. Richards stated that it makes no difference to them who speaks. Mr. Lupinek stated that if there are people interested he thinks they should be heard. Mr. Fenske stated that the thing is people across the street aren't as con- cerned as the ones that are adjacent to the property. Mrs. Nichols stated that the people across the street are also involved because they have to .live with it as much as the people who are abutting. She added that she does not agree that the whole City could speak, because we could be here all night. Mr. Millard stated that is why we are discussing it he certainly believes in people being able to speak their minds. Speaking of Mrs. Murphy1s point, the other place where I think she said the entire town of Edgewater would probably find a more proper place to bring these things up would be the Council meetings where this is approved. Mrs. Murphy stated that there was not tha many here, it is not like hearing the whole town. Mr. Millard stated that for the purpose of this case he would vote for opening it up to those across the street who own land across the street and therefore directly involved and the other adjacent lands, but he doesn't think he will go along with opening it up for everyone. Mr. Thomas Cain was given the floor. He stated that he was told on the phone that if I had something to say the place for me to say it is at this meeting. Now you are telling me that I can't speak because I am not an abutting property owner, or across the street. He stated that he is an interested party and he should be able to speak, and he asked who they were afraid of listening to? Mrs. Cain stated that she is 118 feet away. Her property is east of the property in question. Mr. Millard stated that when he spoke with her on the phone he said that we don1t discuss things on the phone, we only do it at the meeting. He added that he had not at that point asked for the Zoning Board comments. It came because he felt as Chairman of the Board of Adjustments that this was a very important case and he wanted their input. He wanted them to tell him what they thought of the R-3 zoning and the way this would have to be varied, now he is stating tonight that the proper place would have been, if it had been advertised which it was not, would have been there. The Zoning Board would have been one place, the Council is one, and of course you can always go to court. Mrs. Cain stated that she can also speak for the abutting property owners, but she thinks that 100 feet away is valid to have a right to speak. -7- " Q o Mr. Millard stated that we normally don't have anyone speak but those on the adjacent land. Mrs. Murphy asked why it was advertised in the paper if it was just for the abutting property? Why didn't you send letters, what i~.the po~nt of putting it in the paper if ynu don't want the general public? Mr. Millard 3sked if there are any people here planning to speak who do not own land in'the immediate area? There were several people who spoke that they do own land. Mr. Griffith . stated that he plans to speak when the time comes. Mrs. Murphy stated that she wants to speak and she wants to ask some questions. She stated that she will have to wait and see, she is interested in some property in that area but she does not own it yet. M~~ Cartee suggested that we do each of the lots individually. The members looked over the maps. They began to go over each lot separately. Mr. Cartee told Mr. Millard that it is written on each one what they are asking for. There was discussion about the drainage pipes, the canal and the size of the houses to be built. Mr. Cartee stated that he believes if we read the request we have, we will see that it doesn't have anything to do with where the house sets on tthe lot. Why don't we just act on the two requests that we have. Mr. Millard stated that the question he has is - can he build a house on this lot which was of record prior to Ordinance 880, the only variance he is asking for is on the depth, which automatically cut the area. That is the only issue before the board. Mr. Cartee stated that we are hendered on Lot 15 because we can not buy property east of us or we can not buy property north of us. We are asking you to change the variance so that we can build on this lot. Mrs. Cain asked why can't you buy west of Lot 15? Mr. Cartee stated that there was an easement there that belongs to the City. Mr. Millard stated that we are really breaking our procedure rules here, however Mrs. Cain is making a good point, and we owe her a good reasonable answer. Since you have 80 feet on the lot to the west and the ones to the east of the canal are only 65 feet wide, why don't you divide this space equally between the two houses? Mr. Cartee stated that they do not own that property and they can't divide something that they don't own. Mr. Loeffler was questioned on this. He stated that he would imagine that the City bought the easement in order to maintain the ditch. I: Mr. Cain stated that the ditch is not involved it is the sewer line. That is the reason the easement is there. Mr. Millard stated that he will say one more time for this group and he really wants you all to pay attention to it because we are going to work this way and this is a very impartial and fair board. You are going to be heard, if you have a valid reason to be heard. We are going to listen to everybody, we are charged with the responsibility of being fair to the people who own the land. You all have property rights if it was you up here you would want us to be careful of your rights also. We are also aware of the community and we are neither pro or con, we want to get to the facts. -8- 1- (,,) u Mr. Millard let all the board members look at the memo from the Zoning Board. He stated that the board will vote on this first one, unless anybody else involved has a comment to make. Mrs. Murphy asked what area is he suppose to have? Mr. Millard stated 8,625 feet. Mrs. Murphy stated that he does not have 8,625 feet, she asked if he requested a variance on area? Mr. Millard stated if you have a variance on your depth you are automatically given a variance on the area. Mrs. Murphy stated that this is not right, he could increase the width of those lots 86.25 feet and then he would have enough area. That was also Mrs. Cain's point. Mr. Millard stated that this was the question to keep in mind. owned next to it and behind it, a road an easement and a canal. explored at great length how he could possibly add to it and he doesn't own that easement land and can not add to it. There is land We have says he Mr. Cartee stated that this is true. Mr. Millard stated that there is no way that this lot can be used unless a variance is granted. Mrs. Nichols asked the other property owners how much front footage they have. This was discussed further. Mrs. Cain stated that they know that they can not buy the depth but they can buy the width. Mr. Millard voted yes in granting this variance, and asked for a roll call. Mrs. Nichols voted yes, Mr. Lupinek voted yes, and Mr. Fenske voted yes. Mrs. Nichols stated that it would be up to the Building Official to see if setbacks are complied with. Mr. Cain asked what variance did you grant? Mr. Millard stated that the variance that was granted to the applicant for this particular lot was exactly as he asked for it, with the interpretation that I have given the variance on the depth and a variance on the width automatically does along with a variance on area. There is no other way in doing it. You can't have area without the required width and depth. We are now talking about the Lot 17, and 30 feet of 16. They have asked to change the depth of the lot from 100 feet due to being unable to pur- chase the land at rear of the lots. They are leaving 80 feet in the front which is more than R-3 zoning requires. You now have 8,000 square feet. Mrs. Murphy asked do you have to take a depth and width request and grant both? Couldn't you, in fact, have granted a depth request without granting a width request? She does not understand why Mr. Millard said that it was automatic that he got an area variance. You could have granted him both variances. Mr. Millard asked if she was talking about the one we have already done? She stated that she is talking about anyone of them coming up - they all have the same problem. She is just pointing out that you don't have to grant a twin variance. -9- ~ ~ Mr. Millard asked for a roll call on this reauest. I Mr. Lupinek voted yes, Mr. Fenske voted yes, Mrs. Nichols voted yes, and Mr. Millard voted yes. The board went to the next request. Chairman Millard stated that we should look over the criteria for granting a variance. The variance requested on the depth of the lot due to inability to purchase more property. Mrs. Nichols stated that she would not accept this. Mrs. Cain questioned the size of the house they are planning to build on that stretch of land. Mr. Richard stated that the area was zoned a 50 foot lot in the beginning. They changed the ordinance or some ruling pertaining to these lots. People bought those lots several years ago thinking they would build a retirement home on them. Suddenly we find out that the laws have changed and they need 75 or 80 feet. Therefore they have a 50 foot lot that they can not do any- thing with unless the come in here and plea their case and see if they can build. There was a lot of discussion on the revision of the ordinance. Chairman Millard asked Mrs. Murphy for her help on this - If a person owns a lot and has owned prior to 880 after 880, some person comes in and buys that lot do they carry that same right. Mrs. Murphy stated if it is a single lot or double lot,yes, but if it is three or more than three, they don't get the automatic. They do have the right of appeal but they have to ask for all the variances. Lots 20 and 21 are one case, Lots 22 and 23 and 24 are all the same in width and depth and the setbacks. He is requesting a variance on the depth because he can't buy the back. Mrs. Murphy asked suppose he decided not to build couldn't he still sell the lots and someone build on every 50 foot lot? Mr. Millard stated that she is asking a legal and zoning question. His ob- servation is that it is not a ruling if we grant a variance. The variance goes with the land. The board discussed lots 20-24. They need a depth vairance. Mr. Millard asked if there were any comments from anyone on these three lots? Mr. Millard stated that we will now go to the criteria of granting a variance. He called the attention to Section B of the criteria. He asked Mr. Loeffler if this size lot is commonly privelent in Highland Shores. Mr. Loeffler stated that it is. They went on to discuss the criteria. Mr. Cartee stated that they are conforming to R-3 in the front they are asking for a variance in depth only. Mr. Lupinek stated that he would like to do a little more study on the existing property owners, the pieces of property, since there is such a conflict. There was some discussion on the property that the people own in Highland Shores. Mr. Millard asked Mr. Loeffler to help out on this. Mr. Loeffler stated that he did not study this he is taking it from the map. There are several 40 feet lots, he does not know if these are individually owned. -10- / Q (,,) What we are trying to find out is what is the general lot size in that area. The general size is 150 feet. Mr. Fenske stated that he thought it would be good to go back there and check on the houses that are already out there. Mr. Cartee stated that he doubts very seriously that there is a house out there that would extend past 50 feet in land which means that each house would be built on a 50 foot lot which is a homesite. He added that all they are asking for is a variance on the depth. Mr. Millard stated that he has been there and he knows the other members have been there, he feels we can discuss and vote on these three and then recess this meeting until next week. Upon roll call, Mrs. Nichols stated that if we are going to go out and look at this she is not going to vote on any of them. Mr. Fenske stated that he feels the same way. Mr. Millard stated that these proceedings are recessed until one week from tonight at the same time and that the same people are invited to come. -11-