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HomeMy WebLinkAbout09262007BOA AgendaCl'1Y QF HOME OF PELICAN 15LANQ 1225 MAIN STREET ^ SEBASTIAN, FLORIDA 32958 TELEPHONE (772) 589-5518 ^ FAX (772) 388-8248 AGENDA BOARD OF ADJUSTMENT WEDNESDAY, SEPTEMBER 26, 2007 5:30 P.M. 1. CALL TO ORDER: 2. PLEDGE OF ALLEGIANCE: 3. ROLL CALL: 4. ANNOUNCEMENTS: 5. APPROVAL OF MINUTES: Regular meeting 2-28-07 6. OLD BUSINESS: NEW BUSINESS: A. QUASI-JUDICIAL PUBLIC HEARING: CHUCK BRADFORD, IN REGARDS TO A RESIDENCE LOCATED AT 850 INDIAN RIVER DRIVE, IS REQUESTING A VARIANCE TO ALLOW A STRUCTURE TO BE 1.12 FEET FROM THE NORTH (SIDE) PROPERTY LINE AND 1.18 FEET FROM THE SOUTH (SIDE) PROPERTY LINE, WHEREAS THE CODE REQUIRES SUCH STRUCTURE TO BE A MINIMUM OF 10 FEET FROM THE NORTH (SIDE) PROPERTY LINE AND 5 FEET FROM THE SOUTH (SIDE) PROPERTY LINE. 8. CHAIRMAN'S MATTERS: 9. MEMBERS' MATTERS: 10. STAFF MATTERS: 11. ADJOURN ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE BY THE BOARD OF ADJUSTMENT WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING (OR HEARING) WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE HEARD. (286.0105 F.S.) IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THIS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT (772) 589-5330 AT LEAST 48 HOURS IN ADVANCE OF THE MEETING. 1. Project Name: Bradford Residence at 850 Indian River Drive Growth Management Department Variance Application -Staff Report 2. Requested Action: Variance requested from Section 54-2-5.4.(d).(5) to allow a structure to be 1.12 feet from the north (side} property line and 1.18 feet from the south (side) property line, whereas the code requires such structure to be a minimum of 10 feet from the north (side) property line and 5 feet from the south (side) property line. 3. Project Location a. Address: b. Legal: c. Parcel ID: 4. Project Owner: CIfY OF f'J r~ ~) '~ r-t _~t ~ ~ ~. f ~ ~~~ ,"~, ~.._ FlfliiVlE C3F P~~.ICAN 1~iANL} 850 Indian River Drive Metes and bounds (see survey attached) 31-39-06-00000-0060-00006.0 Chuck Bradford Pelican Cover Sebastian, Inc. 5201 Bayview Drive Fort Lauderdale, FL 33308 5. Project Agent: Trendsetters Construction, Inc. 725 J Commerce Center Drive Sebastian, FL 32958 6. Project Engineer: Goldsmith Engineering, Inc. 17212 130th Avenue North Jupiter, FL 33478 Martha S. Kirkland (Campbell) 6207 S. Mirror Lake Drive Sebastian, FL 32958 7. Project Surveyor: Stuart Houston ' Houston, Schulke, Bittle & Stoddard, Inc. 1717 Indian River Blvd, Suite 202C Vero Beach, FL 32960 8. Project Description: a. Narrative of proposed action: Mr. Chuck Bradford has purchased the property at 850 Indian River Drive. The residence on the property is nearly complete, but has not been issued a certificate of occupancy because of side yard encroachments. He has asked for a variance to allow the structure to be 1.12 feet from the north property line instead of the required 10 feet, and 1.18 feet from the south property line, instead of the required 5 feet. b. Current Zoning: CR (Commercial Riverfront) c. Adjacent Properties: Zoning Current Land Future Land Use Use North: RM-8 River Oaks RMU Townhouses East:. C Indian River C South: PS Yacht Club INS West: CR Cleveland Street RMU d. Site Characteristics (1) Total Acreage: .1953 acres (2) Current Land Use(s): single family residence (under construction) (3) Water Service: public water (4) Sanitary Sewer Service: public sewer 8. Staff Comments: In January of 2002, Joseph Graham applied for site plan approval to construct a residence on his property at 850 Indian River Drive. Land development regulations specifically require site plan approval for all .single-family homes on the east side of Indian River Drive. On February 26, 2002, Tracy Hass, Director of Growth Management, administratively approved the site plan. During construction of the project, the property was sold to Mr. Bradford. 2 The original staff report is attached for your review, as well as a portion of the site plan showing the proposed residence, the proposed west elevation and the first and second floor layouts. In the CR district, the side yard requirement is stated as follows: "Side yard: 5 feet, except 10 feet when abutting a residential district or use." Setbacks are established to provide a visual separation between properties. The greater setback of 10 feet is to provide additional protection for residential uses. The side setback noted in the original staff report is incorrectly stated for the north side as, "5 feet required". This should have been 10 feet because the property to the north is zoned RM-8, which is a residential district. However, the previous director approved the site with 5 foot setbacks, a reduction from code requirements. When application was made for the building permits, the construction plans submitted were different from those approved by the Growth Management Department. Attached are copies of those plans. The building permit plans show an entirely different floor plan and also includes elevated decks that extend beyond the building footprint into the side setbacks. Those decks were not shown on the proposed site layout depicted on the survey, nor were they on the site plan that Growth Management approved. Additionally, plans submitted to the Building Department did not show distance to property lines. Growth Management staff relied on the site plan when approving the building permit. As a result, the encroachment was not evident and permits were issued. The property owner to the north filed a formal complaint regarding the setback of this structure. Staff reviewed the files and advised Mr. Bradford, Mr. Graham and the Building Director of the encroachment. As a result, no certificate of occupancy has been issued and Mr. Bradford has applied for this variance. 9. BOARD CRITERIA FOR DETERMINING VARIANCES (Section 54-1-2.~: In order to authorize any variance from the terms of the land development regulations, the Board of Adjustment must find the following: a. Existence of special conditions or circumstances. b. Conditions not created by applicant. 3 c. Special privileges not conferred. d. Hardship conditions ezist. e. Only the minimum variance granted. f. Not injurious to public welfare or intent of ordinance. g. Conditions and safeguards may be imposed. h. Time limit may be imposed. i. No use variance permitted in specified instances. Please reference Section 54-1-2.5 of the Land Development Code for further explanation and clarification of the conditions as set forth above. 10. Conclusion: Staff made an error when approval was given fora 5-foot setback along the north property line. Also, the original owner submitted plans to the Building Department different from those approved by Growth Management. The decks on the revised plans further encroach into the north and south 5-foot setback area. The decks could be removed. However, there are doors, stairways, and mechanical equipment which would be affected by such an action. 11. Options and Recommendations: Following are two options to consider: a. Approve a variance to establish the north property setback at 5 feet, and require the removal of all deck encroachments into both the north and south side yards. b. Approve the variance as requested. Staff is in an extremely difficult position for a recommendation. In a strict interpretation, the applicant does not meet the criteria for a variance. Staff also does not believe the applicant acted in "good faith" (as indicated by their attorney), in submitting different plans to Growth Management for site review and to the Building Department. The bottom line is that what was submitted for site plan approval is distinctly different from what was built on site. 4 This type of situation has occurred before. The example is the Steven Lulich building. In that case, the developer, Steven Lulich, made modifications to the building encroaching into the setback. However, this case is different because Lulich's encroachment was into a public right-of--way where life safety issues (i.e. street and electric services) posed dangers to the structure. In this situation, the encroachment into the setback is not into the right-of--way and no real safety concerns are present. Unfortunately, this should have been stopped prior to construction by staff, and it was not. As a result, staff has little option but to recommend approval of the variance with a 1.12 foot setback on the north property line and a 1.18 foot setback on the south property line. 12. Commission Action: Hold quasi judicial hearing to consider the request for variance. Prepared by Rebecca ohall, Director Growth Management Department ~(~l 07 Date 5 LAW OFFICES STEVEN LULICH stevet~lulich.com STEVEN LULICH, P.A. www.lulich.com Attorney & Consultant P.O. BOX 781390 SEBASTIAN, FL 32978-1390 (772)589-5500 FAX: (772)589-8800 September 19, 2007 RE: 850 Indian River Drive/Variance Dear Members of the City Council, F p~' E.+ .,.j'\ {.vi 'd .., .. -...Y F ~ S~ .per ~ . z ~~ ~, .., ~ `~~ \\• :-a ~e~~ed ~~ `'~`~.` Re ~ ; ; ~ ~~. , F. ~ Ei ~a ~ 1 i ., i:e i' I represent Chuck Bradford. He purchased the above premises from Joseph Graham. As you might be aware, the owner is ready to obtain a certificate of occupancy. He, at the request of the City has applied for a variance. In good faith, both Joe Graham and his successor Chuck Bradford, not knowing the fine points of site plans and engineered drawings, relied upon a building permit issued by the city of Sebastian. The home was built in accordance with the plans that were submitted. The plans clearly showed a balcony outside of the foundation footprint. See Page S-2 of plans provided by the City. (Also attached). The Building Department and the Planning and Zoning Department received and approved the plans. Find attached route list and application page 3 showing said approvals. My client substantially relied upon the issuance of the permit. If he were to change the design and remove the balcony it would cost him $40,380.00. Find attached estimate. Please note the attached Memorandum of Law. In similar cases the cities involved were estopped from making the owner make changes to a building that was constructed pursuant to a valid permit. In the alternative, the City can choose to pay for the changes to the plans they are requesting. We request that you allow my client to obtain a certificate of occupancy upon fmal inspection approvals and that the restriction placed upon the building department by the plans (Growth Management) department be lifted. We hope this matter can be resolved now so that my client and the City will not have to spend more time or money. Sincerely, ~ . STEVEN LULICH, ESQ. SL/mw ROIITE LIST: applicant ~ddress / _.,-- ~7~/' ~ ~~ Lot Block Qnit LL :1 1 " 1 ~:1 :11 T R TTT .T R R S J. J. J. J. 1 1. :L :1. :L "1 1 1 :L 1 1 1 1 1 1. J. ~ 1 =4 J. 1 J. 1 ~ T T T T T .T .T ,T R T Y R R .T T T T T T .T - R T R T T T R TT J. LL LL 1 1 ~y T T TT T T '~T T T T 1 y l 1. 1 J. _ 1 V~~~ ~ _. T .T 7 T 7 TT .T = ., Received: Date ~~ Time approved ror rP~ermit Comments: B ~1 Released Date Time R~~~_- v Releas d Date ~ Time LL :111 LL J. :1 LL LL J. :1 1 :L 1. LL 1 1 LL :L :1 :L LL :1 :L 1 LL1 :L J.~ LL 1 LL LL :L 1 '1 1 :1 T T T- T T T T :f IT - R T R T-- T .T .T T T~ R R R T T T T T T R T T T ( . . T ( T T : T R- R T r- .T -- T T R T R T T --- .- Zoning. ~~1~~ .. l~` view 'D ~e .3 /~6_.L~ Time ~-~i> P'La;-d1~1NQt . ~~~ ~ ~ ~' Comments: By __ Released Date Time .L J. ~ :L :: LL LL 1 :1 LL :L 1 J. J. :L :L J. 1 LL :L µ :L LL !i 1 J. :L 1 LL J. :L :L :1 (i1 :L 1 :1 1 :J. '1 1 :L .T .T T .T R T T T R T T T ,T T T .T _ T T Y Y R R R R fT Y T R R ,T R T T T T .T - .T T T T iT R '( T .T T- .T .T ,T T- :f T .T T T Plan Re'Tles"/: ReVLF~•J Dat~° T.tme Comments: By Released Date Time J. 1 1. .1 ;L LL :1 J. J. 1 1 J. 1 :1 S J. J.J. .L LL '1 J. :1 1 .} LL LL 7 1 :1l 1 1 1 1 :L LL :L LL LL :1 ., •• J. LL '1 :L :1 1 1 T7 T 'T T T T T T T T T T T T :T TTT R T R R T R T R 7 R R R T Y 'i' T T T T T TTT ? T T '1' T T T T TTT T T T- .',~Tn Permit Issuance: Review Date ~ d Time ~~"`~ Comments: Released D?te ~ Time ~~ 1. J. 1 1 :i 11 1 1 ~ " _ 1 :L J. J. :1 ~ 1 CL 1 .L :~ .. ~ " J. - :l ]. .:1 1 1 - T T T T T- T ~T T T T A T ~T R T T T .T T T T T T T T T T: ., T .. '~ T TTTT T- T T T T T T T T T 7-- T T :L 1 :L :L ~. 4 1 :1 :1 1 LL :1 :L 1 :L :11 1 1 1 LL 1 J. IL LL µ 1 1 :L :~ 1 1 LL :J. 1 :L LL (L LL IL1 _ 1 1 1 :1 :1 _ J. 1 1 1 J. J. :L _ 1 R' 7~ T T R T R R T R R T T T .l' T T :T 7 R R R' T R R R :I' T T .7 .7 IT R R !r T R R T R T T T T' T T T T T .T T T T T T ~' - ., .- Contractor Licensing: Revie~~ Date ~ Time ~~ COmcneRtS ~ '~ \- '._. `~`~~ ~, .~ c-- ~-~ 1'~ ~`.~ `~ ~1) r V APPLICATION IS HEREBY MADE TO OBTAIN A PERMIT TO DO THE WORK AND INSTALLATIONS AS INDICATED. (CERTIFY THAT NO WORK OR INSTALLATION HAS COMMENCED PRIOR TO THE ISSUANCE OF A PERMIT, AND THAT ALL WORK WILL BE PERFORMED TO MEET THE ST;4NDARDS OF ALL LAWS REGULATING CONSTRUCTION, INSURANCE, AND WORKMAN'S COMPENSATION. I UNDERSTAND THAT A SEPARATE SUB-PERMIT MUST BE OBTAINED FOR ELECTRICAL, PLUMBING, MECHANICAL, POOLS, ETC. PROPERTIES SHALL BE KEPT CLEAN OF LITTER AND ALL STREETS, SIDEWALKS, AND CURBS DAMAGED DUE TO THIS CONSTRUCTION SHALL BE REPAIRED TO THF_ SATISFACTION OF THE CITY ENGINEER PRIOR TO THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY. OWNER'S AFFIDAVIT: I CERTIFY THAT ALL THE FOREGOING INFORMATION IS ACCURATE AND THAT ALL WORK WILL BE DONE IN COMPLIANCE WITH ALL APPLICABLE LAWS REGULATING CONSTRUCTION AND ZONING.. **WARNING TO OWNER: YOUR FAILURE TO RECORD A NOTICE OF COMMENCEMENT MAY RESULT IN YOUR PAYING TWICE FOR IMPROVEMENTS TO YOUR PROPERTY.** (iF YOU INTEND TO OBTAIN FINANCING, CONSULT WITH YOUR LENDER OR AN ATTORNEY BEFORE RECORDING YOUR NOTICE OF COMMENCEMENT). A N.O.C--IBS REQUIRED FOR ALL JOBS VALUED AT $2, 500 OR MORE._ SI A U OF WNER OR AGENT S NA UR OF ONTRACTOR DATE: ,Z-~ D DATE: ~~ ~ NOTARY AS TO OWNER~OR AGENT NOTARY AS TO CONTRACTOR MY COMMISSION. EXPIRES:. Notary Seal: '~ Geraldine Frances Kubes MY Commission DD755B37 ~®e v~°' Expires October 28, 2ppg MY COMMISSION EXPIRES: ~~'°+~ GeraNldine Frryances Kubes ~ MY Commisston DD155637 ~or wd~ Expires October 26, 20b6 ..................................................................... . DO NOT WRITE BELOW THIS LINE - OFFICE U ONLY ~ ~ ~~~~ BUILDING PERMIT # r~ ~~(]`~ ZONING TAZ # _~~~~ Z ~ Q APPLICATION RECEIVED BY: DATE: ~--~/ / P YMENT: ZONING REVIEWED BY: COMMENTS: PLANS REVIEW FEES BUILDING PERMIT PLUMBING PERMIT ELECTRICAL PERMIT MECHANICAL PERMIT RADON (STATE) REC. IMPACT FEES TOTAL FEES n PLANS REVIEWED BY:~~~~ SSUANCE BY: v --~~FEES c~ $ c. $ t ~~~~ i3~Le $ o ~ -ti' 6~ $ O r ~ U $ a $ _t~.~ l ~ Building Permit Application page 3 of 6 A B C S4 ~uit,oinlC~ 5 " ' ° -0 30 -0 0 P E N DECK RAIL TO CODE ° ~ ' " ' " ' " 12 -0 8 -0 5 -0 N ' " 9 3'-61/2" ~ i -51 2 4., ;, 10 H ~.. EXTERIOR WALLS I I-' ~ ARE SHOWN I I 9" THICK. I I I I I KITCHEN I L a °o ®® PEN GREAT ~ ~ a I ~_° ECK • ROOM " I ~ , ~ ~ ®® 4 I r Y I ~ I za 0 o ~ C701 ~ 0 3 ~ tO o ~ 10'-0 3/4" D o ~ ~ REFR. - W O ~ ~ i 'f" M I ''~ iv AHU - - - - --I ' " 14 -5 NOTE 6. T 1 14' 1" I 14 - 2'-7 1/2 I 1 ~---- 6'1/2" 12 NOTE 6. - o O ALL INT WALLS ARE 3-1 /2" ~ STUD UNLESS NOTED. ' " He 1 1o -s 1/2 ' ' ~ BEDROOM n 1 ~: ~; r ~ .; :. ..:. , F I - ~: - ' " 6 F 10' 2». 8 i D E ' " ' " 1 -3 1 /2 _ / 10 -9 --I-- 4 -3 . TO CODE ~ ~ 4'-3 1/2" M1 I O 6 ~ Z _ - w. ^ o ~'-o" v o I 4'-10" 25'-2" rn `- J 1 ST FLOO R PLAN NOTE: 1. WINDOW, DOOR, AND FINISH SELECTION BY OWNER. 2. ALL WINDOWS AND DOORS SHALL BE FLOOR AREA SUMMARY IMPACT RESISTANT. 3. WINDOW SIZES SHALL BE APPROXIMATELY AS SHOWN HEREIN. NR CONDITIONED AREA 4. MIN OF (4) 2X4 STUDS IN WAIL TO 1ST FLOOR 930 SO. FT. SUPPORT 6204 ABOVE. 2ND FLOOR ~ ~ - 496 S0. FT. 5. MIN OF (3) 2X4 STUDS 1N WALI TO OTAL A C 1426 50 Fi . . SUPPORT 8203 ABOVE. R. L1 PI IFT RF~TRAINT F(~R RFA615 A~~Z NON AIR CONDTIONED AREA ~A~ 5 ~ € I ~ ~'' ~ x ~s Sri 5 EC tv J -~~ s , WEST ELEV ©9!19/2©D7 12:2© 772-589-9©7© Tze;udsetters Construction, Inc. 725 J Commerce Center Dr. Sebastian, FL 32958 (770589-8229 Name !Address Chuck Bradford 850 Indian River Drive Sebastian. Florida 32858 TREtJDSETTERS COtJT. PAGE ©~/i32 Estimate Date Estimate # s~1 sr2oo7 Asa Project Description Qty Rate Total This estimate Is in regard to the removal of the North facing balcony 8 the Eest facing 4' wide extension ai the North facing barony. Engineering 500.00 500.00 Drafting 1.000.00 f,000.00 Remove existing roof at balcony to InGude all cedar rafters, beams, 2,800.00 2,800.00 posts, etc. Remove, replace, and modify rails 3,100.00 3,100.00 Concrete cut and removal of concrete balcony landings and supports 3,000.00 3,000.00 Swcco repair and coating 1,800.00 1,800.00 Re-build overhang roof labor and materials to tie into existing rear 8,200.00 6,200.00 porch balcony and roof. inc{udea all cedar, poat9, bAAms, r8$6rS etc. Remove and replace siding Tabor and materials to match existing 2,800.00 2.800.00 elevations R8-paint areas affected by afteretions to match existing finishes 2,100,00 2,100.00 Cool Coat Balwny deck affected 900.00 900.00 Dumpster and fees 500.00 500.00 Casual Labor 1,800.00 1,800.00 Clean-up 600.00 800.00 Equipment Rental 1.500.00 1,500.00 Contractor Fees 9,780.00 9,780.00 Total ~ao,sso 00 Memorandum of Law The doctrine of equitable estoppel has long been recognized by the Courts in Florida and maybe invoked where a landowner has in good faith made a substantial change in position in reliance upon the issuance of a permit. This doctrine has frequently been applied to municipalities in regard to the permitting process. In the case of Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla. 1976), the Supreme Court held that the doctrine of equitable estoppel would prohibit a municipality from revoking a building permit where the property owner, in good faith, has substantially relied upon the permit. The doctrine is specifically applicable under the facts involved in the permitting and construction of the residence located at 850 Indian River Drive, Sebastian being constructed by Joseph Graham. pursuant to a permit issued by the City of Sebastian upon the application of Joseph Graham, the land owner currently owned by Chuck Bradford. In this instance a full set of plans was submitted to the city including the elevations which showed a second story balcony on the north side of the building. The plans submitted were approved by the city and a permit based on the plans submitted was issued for the construction of the building. At the present time the improvements are substantially completed in accordance with the approved plans. At this juncture the city has raised an objection that the balcony extends into the easement and has now required that the property owner apply for a variance in order to allow the construction as it presently is configured. In this case the permitted property owner has performed work and expended money under the permit which constitutes substantial reliance and a substantial change of position. As a result, the city is equitably estopped from altering or requiring the property owner to change the in place building improvements. See Dade County v. Bengers Associates, Inc., 257 So.2d 291 (Fla. Dist. Ct. App. 3ra Dist. 1972). In a case remarkably similar to the instant situation the building inspector issued a permit authorizing a structure within the 15 foot setback and the builder in reliance upon the permit constructed a building within the set back. The Court ruled that the city was prohibited by the doctrine of equitable estoppel from canceling the permit to the builders prejudice. Alderman v. Stevens, 189 So.2d 168 (Fla. Dist. Ct. App. 2°a Dist. 1966). The issuance of a building permit is the most common government act used by the Courts to justify the application of equitable estoppel. In the case of Texas Co. v. Town of Miami Springs, 44 So.2d 808 (Fla. 1950) the Court noted the owners justifiable reliance and change of position and stated that the issuance of the permit represented official permission to proceed. In short, the doctrine of equitable estoppel is applicable against a local government when a property owner (1) relied in good faith (2) on an act of the government, (3) to make a substantial change in position or incur extensive obligations and expenses so that it would be highly unjust and inequitable to destroy the right acquired. See Hollywood Beach Hotel Co. v. Cif of Hollywood, supra. In the present instance the property owner relied in good faith on the issuance of the permit issued by the City of Sebastian to construct his building in accordance with the permit and incurred substantial expenses in undertaking the construction and therefore the City should allow the completion of the structure as authorized and should be estopped from requiring any alteration to the north side balcony. Dated: g' ~ ~. 6 Respectfully Submitted ~~ Steven Lulich, ESQ.