Loading...
HomeMy WebLinkAbout12011998BOA CITY OF SEBASTIAN BOARD OF ADJUSTMENT MINUTES OF REGULAR MEETING DECEMBER 1, 1998 Chmn. Devito called the meeting to order at 7:00 pm. The Pledge of Allegiance was said. ROLL CALL: PRESENT: Chron. Devito Gregory Gore Andrew AIIocco Keith Miller(a) VChmn. Crockett Clive Beckwith(a) James Schmitz ALSO PRESENT: Tracy Hass, Growth Management Director Jan King, Growth Management Manager Richard Stringer, City Attorney George Bonacci, Building Director Gerry Kubes, Recording Secretary APPROVAL OF MINUTES: (11/6/98) MOTION by Schmidt/Miller - (Secretary's note - Since Keith Miller is an alternate, he was not entitled to second this motion. The minutes for 11/6/98 will be up for approval again at the January meeting, or the next meeting to be held.) NEW BUSINESS: A. PUBLIC HEARING: 1. William Brognano, appeal of a zoning determination made by an administrative official regarding the definition of a dwelling unit in Section 20A-12.2 of the Sebastian Land Development Code, in regards to Lot 1, Block B, Collier Creek Estates. The subsequent zoning clearance has resulted in the issuance of a Building Permit. Mr. AIIocco noted a conflict in this case as he owns property in Collier Creek Estates, and he filed a Form 8B, Conflict of Interest, with the Secretary. Chron. Devito asked Atty. Stringer for clarification on the party issuing the appeal, and it was explained that William Brognano is the appellant. Mr. Warren Dill, Attorney for the appellant, was present. BOARD Of ADJUSTMENT MINUTES Of REGULAR MEETING OF DECEMBER 1, 1998 Mr. William Brognano, 71 S. Easy Street, Sebastian, was present and was swom in by the Chairman. Mr. Brognano stated that he resides across the street from the subject property, and noted that mother-in-law apartments have been permitted in the past as long as they don't have an exterior entry. He noted that the Building Department originally turned down the request based on past similar decisions. He then noted that, at that time, the owners of the site registered a complaint to the City Manager, Mr. Frame, who in turn basically demanded that this permit be issued, and would authorize overtime for staff to issue it that day. He didn't understand why Mr. Frame would override his staffs interpretation of the Codes. He commented that Collier Creek Estates is zoned RS-10, which is definitely single-family dwellings. He felt that the residents paid a lot of money for their properties, and are trying to protect their investments. Mr. Bruce Cooper, Satellite Beach, FL, 32937, representing Mr. Brognano, was present and gave a brief background of his time employed by the City of Sebastian in the Building Department beginning in 1987. He noted that he spent eight and one-half years (8% yrs) as the Director of Community Development/Building Official for the City of Sebastian. He was in charge of all zoning and Building Department functions, at that point. He commented that, during that time, he received sufficient and competent legal counsel regarding informed and consistent interpretations of the Land Development Code, and they were to be held at minimum requirements for the health, safety and general welfare of the City. He noted that his interpretations were also consistent with the Comprehensive Plan that is adopted and required with the Comprehensive Planning Act. He also noted that the Sebastian Building Department used the same criteria and interpretation for thirteen (13) years on what constitutes a second dwelling unit until this matter came before the Building Department by Burgoon-Berger. He then noted the correspondence in the Board members' packets which explains the owners complaint along with the other history. He commented that he understands that staff has been advised by the City Attorney to give the interpretation that is before us now, and he is here to show why that interpretation should not be allowed. At this point, Mr. Cooper passed out Exhibits 1, 2, 3. He then questioned Mr. Hass on the issue of a second dwelling unit. Mr. George Bonacci was sworn in by the Chairman. Mr. Cooper asked several questions of Mr. Bonacci about issues that constitute a duplex, and what constitutes a kitchen. Mr. Bonacci noted that criteria used by the Health Department considers a room to be a kitchen if it has a base cabinet with a sink. He also noted that the National Electrical Code steps in and requires all receptacles above the counter top must be GFI protected. He then noted that the drawing of the proposed home indicates three (3) GFI receptacles above the countertop that is supposed to be a wet-bar. He noted that there is nothing that addresses appliances in any code, and when a Certificate of Occupancy is issued, none of the appliances are required to be present. Mr. Cooper recalled that approximately twelve (12) similar units have been applied for, and emphasized that the key element seems to be the outside access. He cited 274 Main Street, which has almost two (2) separate units, but it is all internal with internal access. He referred to definitions in the Land Development Code for a dwelling unit, etc. BOARD OF ADJUSTMENT MINUTES OF REGULAR MEETING OF DECEMBER 1, 1998 Mr. Cooper continued to give further information on the subject. Atty. Dill gave his presentation and suggested that the problem most probably lay in the interpretation of a dwelling unit. He referenced several cases of similar nature. He suggested that if the exterior access is removed, the apartment would be in compliance. Atty. Stringer gave his presentation. He emphasized the "use" factor and the "design" factor from the City's Code. He referenced some of the same cases that Atty. Dill had referenced. Chmn. Devito asked if Collier Creek is a deed restricted community, and Atty. Dill responded that it is deed restricted and is limited to single family (which is not defined). After some discussion, Atty. Dill noted that the appeal is based on the fact that, after thirteen (13) years of determining this issue one way, it is being interpreted in a different manner. Mr. Crockett asked for clarification on the term "dwelling unit". Atty. Stringer responded that normally, an entire single family home is considered a "dwelling unit", and those opposed to the present determination feel that this structure has been divided into two (2) separate living units. He referred to the floor plan and noted "Door A" as being the dividing line between two separate living quarters. He then again referred to the Code and the terminology used, such as "...used and has design standards". He indicated that this is a two-part test. Chron. Devito referred to Section 20A-11.2, page 749. Mr. Cooper responded to a question by Chmn. Devito on the definition of a dwelling unit, as noted in Mr. CoopeCs letter of November 9, 1998. He also noted that once an appeal has been filed, a stop-work order should have been placed on the subject site. He repeated that the outside door is the key to the entire issue. Mr. Gore asked if there is a minimum number of ingress-egress accesses to a single dwelling unit, and it was determined that one ingress-egress is required. Mr. Bonacci gave a history of similar cases in the past thirteen (13) years having been turned down because of the exterior door. He then proceeded to explain the process as it unfolded on the present case. Mr. Spath, in the audience, denied the truth of some comments made by Mr. Bonacci. Atty. Stringer asked that Mr. Spath be sworn in and swear that the comments he made to Mr. Bonacci are true. Chmn. Devito preferred to wait until Mr. Spath gives his presentation. Proponents of the appellant were given time to speak. BOARD OF ADJUSTMENT MINUTES OF REGULAR MEETING OF DECEMBER 1, 1998 There were 32 notices of headng sent out and there are approximately eleven (11) letters of non-objection of the appeal returned. Ms. Marilyn Hoff, 704 S. Easy Street, was present and was swom in by the Chairman. She noted the thirteen-year precedence, and supported the appeal. Mr. Harry Hoff, 704 S. Easy Street, was present and was sworn in by the Chairman. He spoke in favor of the appeal. Ms. Constance Deluca, 205 W. Chello Ave., Sebastian was present and was sworn in by the Chairman. She spoke in favor of the appeal. Mr. Gary Vernon, who is building a house at 705 S. Easy St., was present and was sworn in by Chairman Devito. He spoke in favor of the appeal. Mr. Brad Cronin, 208 Chello Ave., was present and was swom in by the Chairman. He recommended that the Board uphold the professional staff decision and uphold the expectations of the homeowners. Mr. Joe Labrie, 203 W. Chello Ave., was present and was sworn in by the Chairman. Mr. Labrie spoke of having a mother-in-law apartment in his own home, and conforming to local ordinances and codes at the time it was built. He referred to deed restrictions, and an opinion that has been in existence for thirteen (13) years that may be put aside because one family wants to change that. He indicated that the problem could be resolved by eliminating the exterior exit door. Mr. Peter Walls, 702 S. Easy St. was present and was sworn in by the Chairman. Mr. Walls was concerned about the overturning of thirteen (13) years of precedence without a proper hearing or public notification. He indicated that the zoning of all of Sebastian is being changed with this action without a proper headng. He spoke in favor of the appeal. Hank Altvater, 202 Chello Ave, was present and was sworn in by the Chairman. He noted that he is building a home next door to the Spath property, and after finding out about the controversy, asked Mr. Spath if he couldn't just eliminate the door and get along with everybody. He also indicated that this decision is a bad neighborhood policy. He then noted that the in-law apartment on the subject property could be lived in without using the remainder of the home. He spoke in favor of the appeal. Ms. Dorothy Hudson, Attorney, 2919 Cardinal Drive, Vero Beach, was present representing Mr. & Mrs. Spath, owners of the subject property. She noted that she has practiced law for twenty (20) years in this area, and gave credentials as to her experience in Real Estate Law. She proceeded to question Atty. Stringer on his legal opinion as to whether or not this single family home definition has changed. Atty. Stdnger responded that it has not changed under the definition of the Ordinance. ^tty Hudson asked Mr. Stdnger if her client has vested rights in this permit by way of having started construction. 4 BOARD Of ADJUSTMENT MINUTES OF REGULAR MEETING Of DECEMBER 1, 1998 Atty. Stdnger responded "yes". He then defined the extent of "vested dghts" as they refer to the present code. Atty. Hudson then referred to the floor plan of the subject property. There was much discussion concerning extedor ingress and egress, and the definition of a kitchen. She suggested that a wrong interpretation of the code having been used for thirteen (13) years does not mean that it should be continued. Mr. Greg Spath, 200 W. Chello, Collier Creek Estates, was present and was sworn in by the Chairman. He described his house under construction as having five (5) bedrooms and three and one-half (3~) baths, and he described how he plans to use this house. Mr. Keith Pelan, a planner with Kimberly, Horn Associates, Veto Beach, FL, was present and was sworn in by Chmn. Devito. Mr. Pelan was introduced as an expert witness by Atty. Hudson, and proceeded to give explanations of the issues and referred to determinations made by Indian River County and Palm Beach County. At this point, a break was taken. In response to a question by Chmn. Devito, Mr. Bonacci responded with an explanation of GFI receptacles noted on the plans in the debated "kitchen". Mr. Bruce Cooper responded to questions from Mr. Beckwith. Mr. Paul Robinson, father of Ms. Spath, was sworn in by the Chairman, and supported the house design. Mr. John Burgoon, owner of Burgoon-Berger Construction Corporation, was present and was sworn in by the Chairman. He noted that he pulled the permit for construction of this home and has a vested interested as relates to his clients, the Spaths. He noted that he has known and worked with City Building Officials, both past and present, for many years. He also noted that he has several other homes under contract in Collier Creek Estates, so he doesn't want to do anything to devalue Collier Creek. He gave his opinion that this site does not constitute a duplex, and spoke of other issues. He expressed concern that if this issue is a new interpretation, would it create other problems in the future? Atty. Stringer noted that the Board of Adjustment could suggest some changes to the Code in this area. Mr. Schmidt asked if he could add the subject floor area onto his home. Mr. Bonacci responded that under the present code, he could not do it. Mr. Crockett asked Mr. Bonacci how hard it would be to make the "kitchen/wet bar" area into a traditional kitchen. Mr. Bonacci responded that the space at the end of the countertop that indicates 110V outlet, if a microwave was placed there, it would become a kitchen, which is interpreted from the City's present code. He noted that 220V would be required to place a traditional stove in that space, but a gas stove could be installed BOARD OF ADJUSTMENT MINUTES OF REGULAR MEETING OF DECEMBER 1, 1998 with no electrical alterations. Mr. Hass listed issues that create a single family unit, as it pertains to the in-law area, and answered questions from Chron. Devito. In questioning Mr. Bonacci, Mr. Crockett established that if the kitchen area is removed from the design, it would be approved. Atty. Stringer noted that he concentrated on the term "use", and indicated that the Spaths indicated that they would use it as a single family home. He also noted that when interpreting zoning codes, any ambiguities are interpreted in favor of the property owner, to use their land as they please. Mr. Warren Dill noted that the long term interpretation of City regulations is at issue here, and a question of stability for the residents of the City to know what the rules are, and stability for the builders within the community. He suggested that this Board look beyond the issues of the door or the kitchen. He then noted that no permits have been pulled for a pool or a pool enclosure and are not part of the facts that are being discussed today. His opinion of this issue was that this is a separate dwelling unit, and listed a living room, a kitchen, a bathroom, and an entrance to the outside. He suggested that this Board stay with the interpretation that has been used for thirteen years. Mr. Burgoon noted that there will be a pool and a pool enclosure. Mr. Pelan spoke on the definition of a kitchen. Ms. Hudson summarized the presentations offered at this meeting. Ms. Madlyn Hoff suggested that not following the recommendation of the "Zoning Board" could conceivably create a big problem in the future, and urged clarification of requirements for the future. Mr. Miller inquired about the ingress/egress door out of the bathroom in the subject area. He also commented on the overall effect this decision will have on all residences in the City. MOTION by Schmitz/Gore I'd like to make a motion that we uphold the appeal of William Brognano's determination under Section 20A-12.2 of Sebastian Land Development Code, and that the building permit as issued be continued, providing that the kitchen is removed and those rooms designated as living room or bedrooms. Roll call: Chmn. Devito - no Mr. Gore - yes Mr. Crockett - no Mr. Beckwith - no Mr. Schmitz - yes The vote was 2 to 3. Motion failed. BOARD OF ADJUSTMENT MINUTES OF REGULAR MEETING OF DECEMBER 1, 1998 MOTION by Beckwith/Crockett I would like to make a motion that the appeal be rejected, that the present building plan be approved and construction may begin including the wet-bar and the outside access. Discussion: Atty. Stringer advised against including any conditions in the motion. Mr. Tahir Qizilbash, who is building his own home on Barbara Court and suggested that it may be the biggest home in this subdivision, suggested that a better design could be used on the subject property. Carolyn Vemon, building a house at 705 S. Easy Street, provided a copy of the deed restrictions for Collier Creek Estates, prepared by Atty. Warren Dill. She read the following: Only the prohibited uses - No commercial, industrial or other non-single family residential use shall be permitted, except all uses for which a home occupation license is issued by the City of Sebastian shall be permitted. No time sharing, interval ownership or other similar division of fee simple ownership of any lot or any single family dwelling erected thereon shall be permitted. However, this provision shall not prevent the leasing of any single family dwelling to a tenant for normal single family residential purposes; no oil drilling, no oil development operation, oil refining, quarrying or mining operation of any kind shall be permitted upon any lot, nor shall oil wells, tanks, tunnels, mineral excavation or shacks be permitted upon any lot. Atty. Stringer noted that Ms. Vernon appeared to read from a recorded copy of the deed restrictions, and it was noted that it was from OR book 1171, page 307 and running up to page 349. At this point Mr. Beckwith clarified his motion as follows: I would like to make a motion that the appeal be rejected. (He rescinded all other wording made previously.) Mr. Gore suggested drafting a covenant to run with the land, that it shall never be used as an extra source of income or as anything other than a single-family unit. Ms. Hudson commented that she felt the above endeavor would be engaging in contract zoning, which she feels does not stand up, and asking the owner for something redundant. Roll call: Chron. Devito - yes VChmn. Crockett - yes Mr. Gore - no Mr. Beckwith(a) - yes Mr. Schmitz - no The vote was 3 - 2. Motion carried. BOARD OF ADJUSTMENT MINUTES OF REGULAR MEETING OF DECEMBER 1, 1998 Chmn. Devito adjourned the meeting at 10:30 pm. (12/7/98 AB) FORM 8B MEMORANDUM OF-VOTING CONFLICT FOR COUNTY, MUNICIPAL, AND OTHER lOCAL PUBLIC OFFICERS . _I;: C:R; NAME ~;;~AMIAi4_ '\7;~RE;h() fr CrTfJ J~,t/AJ7/4A/ NAME OF BOARD. COUNCIL. COMMISSION. AUTHORITY, OR COMMITIEE &A~o IF "f/,</t'A/T THE BOARD. COUNCIL. COMMISSION. AUTHORITY, OR COMMITTEE ON WHICH I SERVE IS A UNIT OF: /fOIJNTY ,_Z;h4~ k7~~ . cau NTY : ~ OTHER LOCAL AGENCY NAME OF POLlTlCAL SUBOIVISJQN: DATE ON \\"HICH iOyE OCCURRED A/;!/' MY POSITION IS: ELECTIVE APPOINT1VE WHO MUST FILE FORM 88 This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council. commission. authority, or committee. It applies equally to members of advisory and non-advisory bodies who are presented with a voting conflict of interest under Section 112.3143. Florida Statutes. The requirements of this law are mandatory; although the use of this particular form is not required by law, you are encouraged to use it in making the disclosure required by law. Your responsibilities under the law when faced with a measure in which you have a conflict of interest will vary greatly depending on whether you hold an elective or appointive position. For this reason. please pay close attention to the instructions on this form before completing the reverse side and filing the form. INSTRUCTIONS FOR COMPUANCE WITH SECTION 112.3143, FLORIDA STATUTES ELECTED OFFICERS: A person holding elective county. municipal. or other local public office MUST ABSTAIN from voting on a measure which inures to his special private gain. Each local officer also is prohibited from knowingly voting on a measure which inures to the special gain of a principal (other than a government agency) by whom he is retained. In either case, you should disclose the conflict: PRIOR TO THE VOTE BEING TAKEN by publicly stating 10 the assembly the nature of your interest in the measure on which you are abstaining from voting; and WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the minutes of the meeting, who should incorporate the form in the minutes. APPOINTED OFFICERS: A person holding appointive county. municipal. or other local public office MUST ABSTAIN from voting on a measure which inures to his special private gain. Each local officer also is prohibited from knowingly voting on a measure which inures to the special gain of a principal (other than a government agency) by whom he is retained. A person holding an appointive local office otherwise may panicipate in a mauer in which he has a conflict of interest, but must disclose the nature of the conflict before making any attempt to influence the decision by oral or written communication, whether made by the officer or at his direction. IF MJ INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH T"OTE WILL BE TAKEN: . You should complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the minutes of the meeting, who will incorporate the form in rhe minutes. . A copy of the form should be provided immediately co the other members of the agency. . The form should be read publicly at the meering prior co consiaeration of the matter in which you have a conflict of interes!. IF YOU MAKE NO ATTEMPT TO'INFLUENCE THE DECISION EXCEPT BY DISCUSSION OR VOTE AT TIiE MEETING; . You should disclose orally the nature of your conflict in the measure before participating. . . You should complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minute of the meeting, who should incorporale the form in the minutes. I, AN'fl/f'J/ /I; /tW C' DISCLOSURE OF STATE OFFICER'S INTEREST )€,C . hereby disclose that on / . 19 9cf1 : (a) A measure came or will come before my agency which (check one) ~nured to my special private gain; or _. inured to the special gain of . by whom I am retained. (b) The measure before my agency and the nature of my interest in the measure is as follows: f. & v-/ Ad!afj /;; JA/~ J;&,j;0;/~~ /2-) If/' Date Filed ~~ S~lure ' , NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES illl2.317 (1985), A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES GROUNDS FOR AND MA Y BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION. REDUCTION IN SALARY. REPRIMAND. OR A CIVIL PENALTY NOT TO EXCEED $5.000. FORM 88 . 10.86 PAGE 1 City of Sebastian 1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958 TELEPHONE (,561) ,589-,5,537 [] FAX (,561) ,589-2,566 BOARD OF ADJUSTMENT APPROVED AT MEETING HELD ANN BRACK, SECRETARY BOACS.DOC