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HomeMy WebLinkAbout08-13-2008 BOA Minutescrrv of i II ~~II~~ -..-~ ~~ HOME OF PELICAN ISLAND MINUTES BOARD OF ADJUSTMENT REGULAR MEETING WEDNESDAY, AUGUST 13, 2008 - 5:30 P.M. Mayor Coy called the Board of Adjustment Meeting to order at 5:30 p.m. 2. The Pledge of Allegiance was recited. The City Attorney explained that a Council Member Simchick could not miss any of the evidence in order to cast a vote so he advised that the meeting be held up after the approval of the minutes. 3. ROLL CALL Board Members Present: Mayor Andrea Coy Vice-Mayor Sal Neglia Council Member AI Paternoster Council Member Dale Simchick (5:47 p.m.) Council Member Eugene Wolff Staff Present: City Manager, AI Minner City Attorney, Rich Stringer City Clerk, Sally Maio Deputy City Clerk, Jeanette Williams Growth Management Director, Rebecca Grohall Growth Management Manager, Jan King MIS Systems Analyst, Rob Messersmith 4. ANNOUNCEMENTS -none 5. APPROVAL OF MINUTES: 1/9/08 MOTION by Mr. Nelgia, SECOND by Mr. Paternoster to approve the January 9th, 2008 minutes passed on a voice vote of 4-0. 6. OLD BUSINESS -none. Mayor Coy called for a five minute recess at 5:32 p.m. and reconvened the meeting at 5:47 p.m. upon Ms. Simchick's arrival. Board of Adjustment Meeting August 13, 2008 Page Two 7. NEW BUSINESS: A. QUASI-JUDICIAL PUBLIC HEARING: FRANK ROMEO, IN REGARDS TO LOT 66, SEBASTIAN RIVER LANDING SUBDIVISION, PHASE ONE, LOCATED AT 100 DRAKE WAY, IS REQUESTING A VARIANCE TO ALLOW A STRUCTURE TO BE 9.29 FEET FROM THE REAR PROPERTY LINE, WHEREAS THE CODE REQUIRES SUCH STRUCTURE TO BE A MINIMUM OF 20 FEET FROM THE REAR PROPERTY LINE. The City Attorney asked for ex-parte communication and there was none. The City Clerk swore in all those who intended to offer testimony. Attorneys Gary Rooney and Elizabeth Brooker were in attendance to represent Frank Romeo. Mr. Rooney thanked the board for continuances on this matter and gave a brief background on the variance request. He submitted pictures of the structures back where landscaping might hide the structure from view. In response to a line of questioning by his attorney, Mr. Romeo stated his name for the record, that he resides in New York State with a home at 100 Drake Way, Sebastian, Florida, that he was here tonight in regard to the Florida property, that the house was not built to plans but was flipped without his consent hindering the pool size and the installation of a handicap lift, the builder informed him the flip would prevent the pool, the home is four bedrooms, his father-in-law will be moving in with him, his parents would sometimes stay with him, he had some of his medical conditions requiring the pool when the home was built, he had though he did not want to elaborate on his medical condition, he has muscular seizures and every physician recommended a pool that is temperature controlled, that the structure was subcontracted by his pool company, that he found the structure did not meet setback codes when Building Official Wayne Eseltine placed a red "stop work" sticker on the structure. Mr. Rooney passed out and displayed overhead photos of the subject structure (see attached as exhibit to minutes), and continued his questioning of Mr. Romeo, who responded that he is willing to hide the structure's three sides with landscaping, noting there is a composite roof required by the engineer, the home will be their primary residence, the pool is not complete, he had spent $66,000 on the structure so far, that he has found no other way to change the roof structure to stay within code, and he did not have the money to knock it down and rebuild the pool. In closing, Mr. Rooney asked, on behalf of his client, that the Board grant a variance due to its minor intrusion at the .715 set back, because it is an attached structure with an unusual set of circumstances, keeping in mind that Mr. Romeo did not try to do this himself or cut corners, and had the same intent in mind since day 1, with the stipulation that landscaping be installed or the concrete is stained an earth tone. 2 Board of Adjustment Meeting August 13, 2008 Page Three Staff Presentation The Growth Management Director gave staff report, noting there are three permits for this property and that the certificate of occupancy was never held up for this house, the pool enclosure permit was applied for in May 2007, that this is a Planned Unit Development and the zoning is on the face of the plat, that the code does allow fora 10 foot rear setback for a screen but staff does not agree that this is screen enclosure. She said the pool itself was approved with the condition they stay out of the setback, that she believed the pool contractor violated the condition, and said she thought the roof was remedial by reducing it by 20 feet and add landscaping. She noted that the Department has received a number of questions, comments, and complaints regarding the structure. Mayor Coy called for public input. Public Input Ryan Rusnack, President Sebastian River Landings Homeowner's Association (HOA), said he heard a separation of issues, i.e.., the pool structure, and the structure on top of the pool. He said the location of this property is quite prevalent, being on a corner lot, that the easement is dedicated to the HOA, and there hasn't been a request to vacate the easement. He said the reason for the easement is to keep uniform building around the lake, and the HOA architectural review committee hasn't received this yet. He said he knew there has to be hardship and certainly, money spent isn't a hardship, though he acknowledged if there was an act or omission Mr. Romeo may have money due. He stated he thought what you have is something that ran wildly out of control, at the entrance of this subdivision, and he asked the Board to deny this especially when it hasn't even met HOA board procedures. Tom Meskell, resident and real estate broker, said he has held many open houses in the area and he has found that people ask "what is this at 100 Drake Way" and it has given the town a black mark. Mayor Coy stated she was supposed to separate pro and con speaker input and now asked for those in favor of the request and there were none. She then asked for those opposed. Pat Meskell, 112 Drake Way, read a statement she had written, regarding people from all walks of life who chose to live in a deed restricted community which was critical for her personal home purchase in the subdivision. She said these people were under the belief this would not be allowed in our subdivision, that each homeowner had to sign that they received deed restrictions that this is across from a small retention pond, and was built without Architectural Review Committee review. She said many are concerned about what will happen during a wind storm, citing that there have been times the water has reached the wall of the subject structure. She expressed concern for Mr. Romeo trying to garner support because of his disabilities and noted many people have disabilities, that she has celiac disease and has gone through breast cancer treatment, but would not ask her neighbors to give consideration for her disabilities. She asked for those in favor of denying this stand up. She handed out a photo. 3 Board of Adjustment Meeting August 13, 2008 Page Four William Fountain, 112 Sebastian River Landing, requested a count of those who stood up and Mr. Wolff said it was unfair to operate a hearing this way. The City Attorney advised that courts hate hand counts. Applicants Response Mr. Rooney said the drainage easement is 10 foot and the over build is the width of a piece of paper that he held up. He said this is a hardship because of Mr. Romeo's medical condition and a series of mistakes that were made, that if the structure was torn down there will be a hole, he'll go into foreclosure and cited other violations in the association. He said other homeowners are killing wildlife and barbequing in their driveways and you can hear the hogs squealing. He said the role of this Board is not to get between the HOA and Mr. Romeo because there is the Circuit Court for that. This is to stop the expenses by requesting the variance. Mr. Paternoster asked if the meeting had to be extended. MOTION by Mr. Paternoster and SECOND by Mr. Neglia to continue with the meeting passed with a voice vote of 5-0. Mr. Rooney said he never heard the allegation of parts flying in the wind, that there is remedial talk. He said the City has a dream to move in the right direction with the comprehensive plan and this does not change that dream, and asked the Board to grant this with the provision that there be some landscaping required. Staff Summation The Growth Management Director said the house was permitted on October 6, 2004, certificate of occupancy issued on December 9, 2005, the pool permit was not applied until Sept. 2006 and the pool enclosure was not applied for until May 2007, and the staff report recognized that if they were submitted at the same time, steps could have been taken to redesign the layout. She said staff knows that the Homeowners Association issue needs to be resolved as a civil manner, and recommended keeping the pool where it is, remove part of the roof, and add landscaping. In response to Mr. Wolff, she said the house was issued the certificate of occupancy on December 9, 2005. Council Deliberations Mr. Neglia said to him, this is a room that needed a setback and the roof should be removed. He said he is concerned with rising water, that any hardship was created by the people who did the work for Mr. Romeo, and personally, the people who live to the south wouldn't like it. Mr. Paternoster asked Mr. Romeo when he was notified there was no fencing around the pool and did he contact the pool company to report that there was a violation. Mr. Romeo said he called and got a recording so he came down and when he saw it, he went to the Melbourne warehouse of the pool company but there was no one there but after 3 or 4 calls, a representative offered to come down. In response to Mr. Paternoster, Mr. Romeo said he was not notified the house was going to be flipped, that in 2004 the HOA was not officially 4 Board of Adjustment Meeting August 13, 2008 Page Five set up yet, and the Vice-President of the homebuilder approved the pool in its entirety as long as Mr. Romeo used a pool company recommended by her and they were severely overpriced, and two companies were crossed off the list. He said the first complaint was the red flag he got from the City, that the builder was Sun Castles and they are no longer in Sebastian, that he has tried to contact them but was not treated respectfully. Mr. Romeo said there are a lot more offensive things in this community. When Mr. Paternoster asked when doctors said his conditions needed a pool, where they given to Growth Management when he applied for the enclosure, and Mr. Romeo said he contracted with the pool company, they staked out the pool and applied for the permits. Mr. Paternoster asked when the application for the enclosure was submitted did it show it was to be enclosed, and the Growth Management Director said the Building Director told her he was of the opinion that not all of the documents were applied for. The City Manager noted there are two separate dates and the Growth Management Director said she had placed the pool and enclosure application permits in the packet. Paternoster read the requirements for a variance as follows In order to authorize any variance from the terms of the land development regulations, the Board of Adjustment must find the following: -Existence of special conditions or circumstances -Conditions not created by applicant -Special privileges not conferred -Hardship conditions exist -Only minimum variance granted -Not injurious to public welfare or intent of ordinance -Conditions and safeguards may be imposed -Time limit may be imposed -No use variance permitted in specified instances and asked the City Attorney if a hardship is on the land, surmising hardship above and beyond that should not be considered. The City Attorney said the hardship would be on the land not based on personal circumstances. In response to Mr. Neglia, Mr. Romeo said Sea Breeze Pools was the pool contractor. Ms. Simchick said this was a calamity of errors and she noted when staff made errors she has said we broke it, we fix it. She said the application does say 3.30 aluminum composite roof but when she went to the site, it is something you would see as an extension of a modular room and didn't feel it was clearly spelled out in the application. She said she would be in favor of the 8 inch variance with the stipulation to make it a screen enclosure. Mr. Wolff asked Mr. Romeo why he is not living in the house. Mr. Romeo said he was not aware it was permitted for occupancy until January 2006 at which time he found the permit in his mailbox and the one year warranty had expired to include the air conditioner. He said 5 Board of Adjustment Meeting August 13, 2008 Page Six family medical circumstances have prevented them from moving down; noting that he had seven seizures driving back and he had slipped into a coma in Virginia in October, which was when the first variance hearing was to take place. Mr. Wolff asked when he discovered the plan was flipped did he do any legal procedures, and Mr. Romeo said he went to a Vero attorney who spoke to Attorney Steve Lulich who represented Sun Castles, who tried to rectify in some way and his attorney said if he went to court, he would win, and he would get back what he paid for the house or keep the house. Mr. Romeo said it was hinted that property values have dropped because of his enclosure but that he had seen a number of HOA violations. In response to Mr. Wolff, the Sebastian River Landings HOA President Mr. Rusnack, said Mr. Romeo is a member, that the community is known to be a deed restricted community. Mr. Wolff said he had sold one or two houses in Sebastian and it is pretty well understood there are restricted covenants in a gated community, therefore when one comes to erecting something unorthodox it would provoke some thought and research to see if it is allowed. In response to Mayor Coy who asked Mr. Rusnack when the HOA was turned over, he responded the HOA is still under control by the developer and he has been appointed by the developer as the HOA president. He explained when plans come before HOA someone has to look at them and that there is an architectural review committee. He said the home plan was approved by the HOA and he could not recall whether the pool was submitted. Mayor Coy said that is why pool companies are recommended because they are already approved. He said the pools sometimes include an enclosure and sometimes do not, and that he had never reviewed this structure. The City Attorney cited a series of HOA letters in the agenda packet. Mr. Paternoster noted on page 3 of the packet, the HOA had informed the City that the deed restrictions require approval of the construction, so Mr. Romeo was advised that this was happening. Mr. Romeo said he never saw anything and as long as he used one of the pool companies recommended the plans were approved. He said he took what he thought were preapproved plans to a company not on the developer's list. Mayor Coy asked staff to show in the packet where the enclosure is presented because she assumed it was a pitched roof and no one has put anything forward that the City saw the enclosure portion of the structure. Mayor Coy stated the plans we have do not have walls or windows. Mayor Coy said there is no malice here on anyone's part, and most of the errors are not the City's part. She said the solution is in answer A and no matter what the Board does; Mr. Romeo still has to deal with the HOA so she supported recommendation A. She said she did drive out there and said it doesn't fit with the subdivision. Mr. Paternoster asked if this is granted, does it override the HOA. The City Attorney said it did not, they could still deny the variance as it is a private contractual matter between two parties. Mr. Paternoster asked if the HOA easement that is being encroached also has to be taken up with the HOA and the City Attorney said yes it is also an issue. 6 Board of Adjustment Meeting August 13, 2008 Page Seven Mr. Neglia stated our concern is what staff recommends and let the HOA address the other concerns. Mayor Coy asked if the Board order could include a stipulation. MOTION by Mr. Wolff and SECOND Paternoster to deny the variance request as stated in option B, requiring the removal of a portion of the swimming pool deck, room addition and retaining wall in the setback. Roll call on the motion was as follows: Ayes: Neglia, Paternoster, Wolff Nays: Coy, Simchick Motion carried 3-2. 8. CHAIRMAN'S MATTERS -None 9. MEMBERS' MATTERS -None 10. STAFF MATTERS -None 11. Being no further business, Mayor Coy adjourned the Meeting at 7:12 p.m. Approved at the December 10th, 2008 Board of Adjustment hearing. Ric and illmor, Mayor ATTE ~ ~ ~~~~ Sally A. Maio, MC, City Clerk 7 _F..~ ii i ~ - L FRANK ROMEO and CONNIE YANG, Appellants, vs. CITY OF SEBASTIAN, Appellee. IN THE CITY OF SEBASTIAN, FLORIDA BOARD OF ADJUSTMENT NOTICE OF APPEAL NOTICE IS GIVEN that FRANK ROMEO and CONNIE YANG, Appellants, appeal to the Circuit Court of Indian River County, Florida the Order of this tribunal rendered on August 13, 2008. A conformed copy of the Order is attached to this Notice of Appeal. The nature of the Order is a final order. I HEREBY CERTIFY that a copy of the foreg 'gig was furnished to the City of Sebastian, 1225 Main Street, Seb 'sti , ~ 32958 this~f ~''' day of September, 2008. ----~._ EL~ABETH S. BROOKER Brooker & Rooney, P.A. 2145 14th Avenue, Suite 20 Vero Beach, Florida 32960 (772) 778-5400 FBN: 727660 Attorney for Appellants cmoF SE~~'~T HOME OF PELICAN ISLAND CERTIFICATION I, Sally A. Maio, MMC, do hereby certify the attached document is a true and correct copy of the record copy of the original Board of Adjustment order dated August 13th, 2008 and a copy of the record copy of the letter mailed certified return receipt no. 7008 0150 0002 8902 4501 to Mr. Frank Romeo at 21 Silver Street, West Babylon, NY 11704 on August 27, 2008. A copy of the. USPS return receipt as signed by Frank Romeo on 9/4/2008 is also attached. I hereby affix the seal of the City of Sebastian, this 9th day of September~,2'0.08. \~ .~ f~.~ t . _ .~ ~~, Sally A. Ma' ,MMC ~; _ City Clerk f. ~ ` ~~>' -~ ~, - City of Sebastian ~~~ ~ , .. j ,, , f A . yA 1 BOARD OF ADJUSTMENT CITY OF SEBASTIAN, FLORIDA IN RE VARIANCE APPLICATION OF: Frank Romeo, for property at Lot 66, Sebastian River Landing Subdivision Phase 1, Commonly called 100 Drake Way ORDER THIS CAUSE came on for public hearing before the CITY COUNCIL sitting as the BOARD OF ADJUSTMENT of the CITY OF SEBASTIAN, on August 13, 2008, after due notice and based on the evidence, the BOARD OF ADJUSTMENT enters the following FINDINGS OF FACT: 1. Public notice of this hearing was duly published in the Press Journal, a newspaper of general circulation. 2. A copy of the published notice was mailed to all property owners within three hundred (300) feet of the property involved in the application, as shown in the records of the property.appraiser of Indian River County. 3. Applicant has failed to prove the existence of the following grounds for a variance found in the Sebastian Land Development Code Sec. 54-1-2.5: a) Existence of special conditions or circumstances; b) Conditions not created by applicant; c) Special privileges not conferred; d) Hardship conditions exist; e) Only the minimum variance is granted; f) Not injurious to public welfare or intent of ordinance. ACCORDINGLY, the Board enters this ORDER: ~ Z ~..` . . That the application for variance is DENIED: - , '~' _- .,~ ~~ DONE AND ORDERED in Sebastian, Florida, this ~~~ day o~/~ugust, 2008. ~ ,, r~ ~ ~' . ;} f ,~- CITY OF SEBASTIAN, FLORIDA ~ °`4~ •,~,, . ATTEST: Sally A. M ~ , MMC, City Clerk as CLERK O THE BOARD OF ADJUSTMENT Mayor Andrea Coy, as Chairman BOARD OF ADJUSTMENT .~ • ~ ~ ,-a , . . .. - . - . 0 ti ~ 0"' Postage $ ,Lt- ~ Certified Fee Cj~yAN ~ ~Q' P / 0 ~ Retum Receipt Fee (Endorsement Required) , ~ ~ o~ark ~~ Cq ~/ ~ O ~ Restricted Delivery Fee (Endorsement Required) ?r ~ /gyp ~o ~ Total Postage & Fees ~ , Z u0 A o SPS Sent To O O Street, Apt. No.; or Po Box No. Z( S , Low A)~/ 11 .. . '~~ ~!J ." ~ ,^ f `~ . ~, ',~• <r t., t t ! $. s . w~,.• ,_.. . 1~-~~~~ ~~~~P~~r Date: 09/05/2008 /aura barr: The following is in response tb your 09/05/2008 request for delivery information on your Certified item number 7008 0150 0002 8902 4501. The delivery record shov:~s that this item was delivered on 09/04/2008 at 03:45 PM in WEST BABYLON, NY 11704. The scanned image of the recipient information is provided below. --------.- - p~y+~rl-S~ctbn axe Signature of Recipient: ~ ..~. "ir:. .. n _ v ---- r Address of Recipient: ~ ~ . S t ~ . Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service G C ~ ~, ~ c~ ~ ro :~ ~ ~ .a o;,G Co ~ = U tz. ~ ~~~ x .;~ R= ~ ~ ~ ~ ro ~ ~~ ~•~i ro Oti A~ :x7 o ~:, ; C ~' a .~ ~.4ti ~'~~ i,ff ~.~~e !.~ •: ..~.. ffr if> +.1 ~. ... t ~ N ~ ~ ~ ~ ~ N n ~ ~•~ TI (q0 r -~ -^ N ~ ~ ~ v ~ ~ N w ti .~ ti~ .r .f . s ,' VNITFpS ~; °' ~` TAN ~y ;~ ~ 1 .~y ~~ Y; ;~ .~ r~~_ ~i0~g m g' ~ ~ `oa^' P~ r~ co 4 ~ 4I ~.. x~.d ~ cmoF ~.:. HOME OF PELICAN ISLAND GROWTH MANAGEMENT DEPARTMENT 1225 MAIN STREET ^ SEBASTIAN, FLORIDA 32958 TELEPHONE (772) 589-5518 ^ FAX (772) 388-8248 August 27, 2008 Mr. Frank Romeo 21 Silver Street West Babylon, NY 11704 RE: Residential Variance Via USPS Certified Mail 7008 0150 0002 8902 4501 Dear Mr. Romeo, In light of the enclosed order indicating the variance was not approved, you have 90 days from the date of this letter to correct the encroachment. There are several options for remediating the encroachment. The first option is to retrofit the encroachment of the pool to meet the ten (10) foot rear yard setback AND convert your accessory structure to a screen enclosure that meets the City's definition of a same (an open structure consisting of screens and their framing). Another option is to retrofit the pool and the accessory structure to meet the twenty (20) foot rear yard setback. A third option would be to remove the pool and the accessory structure altogether. It should be noted that there is a Stop Work Order issued by the Building Director, Wayne Eseltine, in effect since June 2007 and has been reposted at the site. Mr. Eseltine met with Connie on site on Monday, August 25th, 2008 and returned to repost the Stop Work Order. Mr. Eseltine also indicated that replacement of screens with plexiglass windows is not only in violation to the Stop Work Order, but is detrimental to the structure. Any work requires plans and permits, including removal of the encroaching structures. Sincerely, Rebecca ~rohall, AICP Director c: AI Minner,-City Manager Rich Stringer, City Attorney /S{ally Maio, City Clerk Code Enforcement Building Department Sebastian River Landings HOA BOARD OF ADJUSTMENT CITY OF SEBASTIAN, FLORIDA IN RE VARIANCE APPLICATION OF: Frank Romeo, for property at Lot 66, Sebastian River Landing Subdivision Phase 1, Commonly called 100 Drake Way ORDER THIS CAUSE came on for public hearing before the CITY COUNCIL sitting as the BOARD OF ADJUSTMENT of the CITY OF SEBASTIAN, on August 13, 2008, after due notice and based on the evidence, the BOARD OF ADJUSTMENT enters the following FINDINGS OF FACT: 1. Public notice .of this hearing was duly published in the Press Journal, a newspaper of general circulation. 2. A copy of the published notice was mailed to all property owners within three hundred (300) feet of the property involved in the application, as shown in the records of the property.appraiser of Indian River County. 3. Applicant has failed to prove the existence of the following grounds for a variance found in the Sebastian Land Development Code Sec. 54-1-2.5: a) Existence of special conditions or circumstances; b) Conditions not created by applicant; c) Special privileges not conferred; d) Hardship conditions exist; e) Only the minimum variance is granted; f) Not injurious to public welfare or intent of ordinance. ACCORDINGLY, the Board enters this ORDER: That the application for variance is DENIED. DONE AND ORDERED in Sebastian, Florida, this ~~~ day of August, 2008. CITY OF SEBASTIAN, FLORIDA ATTEST: Sally A. M , MMC, City Clerk as CLERK THE BOARD OF ADJUSTMENT Mayor Andrea Coy, as Chairman BOARD OF ADJUSTMENT ~ t:/~LlIlI:A7I(Hi7fa/t~l/II'MC[r)LFY/I/:I/IKH~l~I'LaKIdl1(~l%U[:I~ O ~ °~ ;~ ySg~ 1 Y ~ ' Postage $ ~ ~ Certified Fee ~ ~ Retum Receipt Fee O (Endorsement Required) O Restricted Delivery Fee . (Endorsement Regwred) O ~ Total Postage & Fees r~ O ~P5~1AN ,\ Po~tp-ark ' ~~ ~ 1uJiP7 ~g 2T 2008 / ~~SPS w ~vlg-:--~! O Street, Apt No.; O or PO Box No. Z( lti :.~. ~:_._ ~,,,.. ~~+~}Me iii Ti ~I~~L -:... ,. Date: 09/05/2008 laura barr: The following is in response to your 09/05/2008 request for delivery information on your Certified item number 7008 0150 0002 8902 4501. The delivery record shows that this item was delivered on 09/04/2008 at 03:45 PM in WEST BABYLON, NY 11704. The scanned image of the recipient information is provided below. Signature of Recipient: `~ ~ y ~ ~ _ .= ~;,... ea .. .... _ , -- ---- - Address of Recipient: ~ : ~ S t Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service