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_
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NAME OF BOARD. COUNCIL. COMMISSION. AUTHORITY, OR COMMITIEE
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THE BOARD. COUNCIL. COMMISSION. AUTHORITY, OR COMMITTEE ON
WHICH I SERVE IS A UNIT OF:
/fOIJNTY
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: ~ OTHER LOCAL AGENCY
NAME OF POLlTlCAL SUBOIVISJQN:
DATE ON \\"HICH iOyE OCCURRED
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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
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AN'fl/f'J/ /I; /tW C'
DISCLOSURE OF STATE OFFICER'S INTEREST
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. hereby disclose that on
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(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.
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Date Filed
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FORM 88 . 10.86
PAGE 1
City of Sebastian
1225 MAIN STREET [] SEBASTIAN, FLORIDA 32958
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BOARD OF ADJUSTMENT
APPROVED AT MEETING HELD
ANN BRACK, SECRETARY
BOACS.DOC