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HomeMy WebLinkAbout09-30-2009 BOA MinutesCity Council Present: Mayor Richard H. Gillmor Vice -Mayor Jim Hill Council Member Andrea Coy Council Member Eugene Wolff Council Member Dale Simchick mr a S E TuW HOME OF PELICAN ISLAND 1225 MAIN STREET SEBASTIAN, FLORIDA 32958 MINUTES BOARD OF ADJUSTMENT WEDNESDAY, SEPTEMBER 30, 2009 6:00 P.M. 1. Mayor Gillmor called the Board of Adjustment Meeting to order at 6:00 p.m. 2. The Pledge of Allegiance was recited. 3. ROLL CALL: Staff Present: City Manager, Al Minner City Attorney, Robert Ginsburg City Clerk, Sally Maio Deputy City Clerk, Jeanette Williams Growth Management Director, Rebecca Grohall Growth Management Manager, Jan King Deputy Police Chief, Greg Witt Senior MIS Systems Analyst, Barbara Brooke -Reese 4. ANNOUNCEMENTS: None Items 5 and 6 were skipped over at this time. 7. NEW BUSINESS: A. QUASI- JUDICIAL PUBLIC HEARING: ROBERT DENTON APPEAL OF THE ADMINISTRATIVE ZONING APPROVAL FOR THE CONSTRUCTION OF A MONUMENT SIGN LOCATED AT 25 AIRPORT DRIVE WEST REGARDING NONCOMPLIANCE WITH THE AIRPORT MASTER PLAN AND DEVELOPMENT GUIDELINES. Board of Adjustment September 30, 2009 Page Two The City Attorney read the title and Mayor Gillmor opened the public hearing at 6:01 p.m. (The September 30, 2009 agenda packet is to be considered Exhibit 1, along with large documents: Airport Master Plan dated March 2002, SMA Guiding Documents, Land Development Code, and Philipson Airport Lease as addressed in the City Manager's e-mail dated 9/25/09) Mayor Gillmor called for the disclosure of ex -parte communications and the following members disclosed they had conversations with: Mr. Hill Mr. Denton, the City Manager Ms. Coy– Mr. Denton, Ms. Dill, Ms. Putman Ms. Simchick Mr. Denton, Mr. Linus, Mr. Philipson, Ms. Putman, Mr. Zingman, Mr. Hermann Mr. Wolff- Mr. Denton Mayor Gillmor– Mr. Denton The City Attorney explained to the Board Members that the hearing was to be conducted as a judicial type hearing, though they are not judges and in order to conduct the hearing properly and preserve their decision they would need to be like a judge neutral, impartial; conduct the hearing on the record; people would be sworn in; and it was to be more formal than their legislative sessions. He asked each member if they had any impediment with regard to considering the evidence on the record tonight, they should only consider that evidence; and if they could be neutral and impartial when they consider the issue. All members answered in the affirmative. The City Attorney then asked the audience if they understood that the members are obligated to conduct the hearing in a judicial way, evidence presented, under oath, decision made, on the record, the neutrality of the people making the decision as a judge would be. The City Attorney noted for the court reporter that no one raised their hand or came forward or indicated any problem when asked and invited to do so. The City Clerk swore in all those who intended to give testimony. At this time, Mayor Gillmor asked the Board to return to item 5. 5. APPROVAL OF MINUTES: Regular meeting July 29, 2009 MOTION by Mr. Hill and SECOND by Mr. Wolff to approve the July 29, 2009 minutes passed with a unanimous voice vote of 5 -0. Board of Adjustment September 30, 2009 Page Three In response to Mayor Gillmor, Mr. Denton said he would need a half hour to present his case. Mayor Gillmor said his time would include all those individuals who planned to make the case with him. Mr. Denton then replied that he would probably need an hour and a half. The City Attorney said the time limit was for the Board to decide for the appellant and anyone who wished to support the appellant's position and at the conclusion, if there was time left, it was to be used for rebuttal, then staff would make a presentation, the appellant would rebut if he saved time, and then the hearing would be closed and the Board would deliberate and make a decision. Ms. Coy said she respected the advice of the City Attorney but unless this procedure was presented to the public and Mr. Denton previously, it would be an injustice to impose new procedures at this time. She noted Mr. Denton had not prepared his appeal in that manner, he has paid money to present his appeal, in the past the appellant could speak until done, and each member of the public was allowed five minutes and she had difficulty accepting a rule change at the last minute. Mayor Gillmor asked Mr. Denton if an hour and a half would be enough and Mr. Denton said he wasn't sure but an outline previously given to him from the City Manager indicated he would not be restricted. Ms. Simchick said she would favor Mr. Denton speaking as long as he needed so there wouldn't be any question of not giving him enough time. Mr. Hill agreed with Ms. Simchick. Mr. Wolff said as long as the appellant is relevant, stays on topic, doesn't repeat himself, he would like to hear what he has to say. Appellant Mr. Denton said they were here to discuss a sign on the 50 foot buffer area along the Airport side of Roseland Road. He explained with community participation, the City contracted with the LPA Group in the early 2000's to do an Airport Master Plan which changed the configuration of the Airport. He said the east side was heavy industrial use, with the conservation area on the west and it was decided a buffer should separate the two. During the community meetings, the buffer was negotiated down to a 50 foot uninterrupted natural vegetation area except for the three entrance roads to the Airport. He said recently he has been told there is no recording of the buffer area although it has been recognized by staff, the original airport layout plan, the tenant and the Planning Zoning Commission, so it was difficult to understand why the City Manager says there is no buffer and the sign was allowed to be installed. Board of Adjustment September 30, 2009 Page Four He said the City Manager's staff report indicates the appeal is for the sign itself but his appeal is for the location of the sign in the restricted area. He said the buffer came into play when Mr. Philipson sought to construct an additional sign. 6:16 pm He outlined the City's "lease" position stated in the City Manager's September 24 memo which described a pre development meeting between the community and Mr. Philipson who requested the sign be placed in the buffer. To showcase the first non aviation development at the Airport, the City did not object to the placement and the public asked that the sign be designed as close as possible to the Dale Wimbrow Park sign so there wasn't a hodge podge of signs along Roseland Road and is outlined in the very last sentence of section 1.6 of Mr. Philipson's lease. 6:22 pm In regard to the City's three positions regarding the "SMA Guiding Documents," Mr. Denton pointed out the Guiding Documents require each tenant to have one sign per property, no signs on Roseland Road, and the maximum height of six feet to which Mr. Philipson is in violation of all three but sign's location is the issue that he would like to discuss. He said the City Manager's assumption that the guidelines only apply to the airside do not make any sense as a leasehold would not have anything to do with Roseland Road. He pointed out that Council approved the Guiding Documents therefore the decision to waive or alter minimum standards should go back to Council for approval and not just be the sole discretion of one person. Mr. Denton said his airport layout drawing of Sept. 2001 and the June 16, 2008 Planning Zoning minutes speak of the buffer zone. He also said a buffer is not indicated in the February 2002 adopted Airport Master Plan and the City Manager's March 2002 Airport Layout Plan and he could not understand what happened. Mr. Denton distributed a packet. (see attached Exhibit 2) He noted that he was present the night the Airport Master Plan was adopted and noted the layout was not displayed for the public. He went over the timeline (included in his packet) indicating Mr. Philipson changed his July 2008 decision to request more signage and the permit was issued without public knowledge in May 2009. He read excerpts from the City Manager's April 24, 2006 letter to Mr. Philipson (see attached Exhibit 2) noting development standards were waived and inconsistent which concerned him. He noted that he asked the City Manager if political pressure was being place on him to which he did not receive a response. Mr. Denton then said he began to meet with Council Members. Mayor Gillmor called for a recess at 6:55 p.m. and upon return at 7:06 p.m., all Board Members were present. Board of Adjustment September 30, 2009 Page Five Mr. Denton continued that during a conversation with one of the Council Members he could tell she was supportive of the sign and the location. In subsequent conversations, when he tried to set up a meeting she said she was advised by the City Attorney not to discuss the additional sign or the leased property. He said he felt stonewalled at that point and asked the City Attorney for the legal basis of his advice to the Council Member. The City Attorney explained this was a quasi judicial hearing in which the Members are deciding a case as a judge would with neutrality and impartiality, with no communication between any of the parties or any of the Board Members because it is the same as influencing the judge before hearing a case. He said zoning, land use are quasi in nature and any ex -parte communication can undercut their ability to make a decision and that is why the court prohibits ex parte communication between any party to a zoning case and the people who have to decide it. He said that is why at the beginning of the meeting the Board Members put on the record any discussions or meetings with anybody involved, he questioned Members on the record, and he admonished their responsibility to decide things in an impartial and neutral manner as a judge would and each one acknowledged they were able to do that. He said he turned to the audience to see if they had any objections and understood his directions and did not receive any questions. He noted Mr. Denton was present at that time and said that is why he advised the Council Member not to meet with him. Mr. Denton said the City Manager's August 14, 2009 letter stated barring an appeal, his office considered the matter closed bringing him before the Board for an appeal. Public Input in Favor of the Appeal 7:14 pm Russell Hermann, 586 Redwood Court, Sebastian, highlighted two sections of a September 18, 2009 letter from Tim Glover President of Friends of St. Sebastian River. (see attached Exhibit 3) These sections reference that Mr. Philipson agreed to the 50 foot buffer and the Friends are concerned that the City has abandoned the standard. Mr. Hermann continued to say that In November 2001, the Association of Roseland Property Owners, Friends of the St. Sebastian River, and the Sebastian Property Owners sent a letter stating it is the role of staff to provide tools to minimize the effects of the industrial park and in March 2004, concerned residents formed the Airport Coalition Committee to protect the areas so close to the development. He said they were not advised of the new sign and are forced to take an adversary position. He asked the Board Members to respect the character of the area and have the monument sign removed. Fred Mensing, Acting President, Friends of Historic Roseland, read a letter dated Sept. 21, 2009 into the record requesting reconsideration of the sign. (see attached Exhibit 4) Board of Adjustment September 30, 2009 Page Six Beth McMillan, Assistant Director, Marine Resources Council, said the Marine Resources Council sponsored the inclusion of Roseland Road to the Indian River Lagoon Scenic Highway Program and said the road's intrinsic resources should be protected to prohibit unsightly advertising. Frank DeJoia, 11625 Roseland Road, also speaking on behalf of James and Cathy Spoto, thanked Mr. Denton for his effort and said it is important to maintain the buffer and prevent commercial signs along Roseland Road. Holly Dill, 11675 Roseland Road, also representing James Linus, said she is disappointed and weary of the sign approval because she has spent the last 10- 20 years meeting with officials and organizations to gain assurances and one of their greatest concerns are signs on Roseland Road. She said one of the gained assurances was the installation of directory signs which are fair and equitable to all of the business owners. She pointed out that the waiver was granted for a commercial kayak business using the minimum standards for aeronautical activities. Mayor Gillmor noted her speaking time was up. MOTION by Mr. Wolff and SECOND by Ms. Coy to allow Ms. Dill to continue passed with no objection from the Board. She said her objection is to the sign, not the business. She asked what other development regulations will now be waived. 7:38 pm Bill Brennan, 589 Redwood Court, Member of the Friends of St. Sebastian River, said when he left to go up north, he thought it was agreed that the sign would look like the others. He said there is a chance to do something about the sign tonight. Jackie James, Roseland, said she hoped the Board will correct the sign, as there might be a lot more like it similar to the east entrance into the Golf Course. She said to keep it simple and not botch it up with a bunch of signs. Joe Scozzari, Sebastian, said it is hard to believe Mr. Denton had to spend money to bring this before the Board. Mike Beck, Kayaks Etc., said he wanted the Board to know first hand that a little over a year ago they were looking at coming into that area and they were told numerous times that additional signs would not be allowed. He said it might have been possible that they could have half of the "About Storage" sign, but no additional signs because it is in the buffer zone. He said as an outdoor company and personally, they wanted to preserve the buffer zone as well so they ended negotiations. Board of Adjustment September 30, 2009 Page Seven Staff Presentation 7:46 pm The City Manager stated his request of the Board would be to dismiss the appellant's case with prejudice because the appellant did not argue the case as asserted in his appeal because his opening remarks state everything is okay but the location. He said if that is the case, the location is in the correct position because according to Exhibit B of Mr. Philipson's lease, that is the specified place for a sign and it does not remove any buffer. He continued that he did not know if that was truly the appellant's case because of his other testimony and the public's remarks who assert the sign is a violation of code. He gave a PowerPoint presentation with an event chronology, staff's position, and justification for staff's recommendation to deny the request to overturn the administrative determination. (see attached Exhibit 5) He said the appellant does think the sign meets uniformity with the Dale Wimbrow sign across the street, but it is in a bad spot. In response to Ms. Coy, the City Manager reiterated the appellant said the "About Kayak" sign was okay, it is just in a bad spot. He went to staff's argument that Exhibit B of the lease which dictates where a sign goes and noted the appellant is contradicting his argument. The City Manager explained the appellant is misinterpreting the Guiding Documents as Section 7 states Appendix B applies to the airside operations (inside the fence) and Appendix C D apply to other industrial operations. He said staff believes the regulation of the sign belongs in Appendix C D where there is no restriction on signage. He said staff felt they were in conformity with the lease, the Guiding Documents and the Land Development Code. He said the About Kayak sign complies with the IRC Corridor Plan but not the Roseland Road Corridor plan provision which dictates 200 feet between signs. The City Manager said there was original documentation indicating that there is supposed to be a buffer along Roseland Road, however the Master Plan and Airport Layout Plan do not indicate a buffer but those are the documents that staff has been and are working with. The City Manager said staff has made an effort to watch out for our Roseland neighbors, protect our development rights, and serve the community the best. He asked the Board to deny the appeal to overturn the administrative decision. Board of Adjustment September 30, 2009 Page Eight Public Input Against the Request 8:16 pm Steve Philipson, leaseholder, said he said he applied and received the permit, but did not go to the maximum of what was permitted for the sign. He said he has tried to be a good neighbor and has been commended for being a positive development for the community. Appellant's Response Mr. Denton said the most troubling part was the sign was allowed behind the scene with no public input. Mayor Gillmor called for a recess at 8:26 p.m. and upon return at 8:36 p.m., all Board Members were present. Council Deliberation 8:36 pm Ms. Coy stated she disagreed with staff's recommendation. She cited the 200 foot requirement of the Roseland Road Corridor Plan, Section 1.6 of Mr. Philipson's lease noting sign requirements of Exhibit B, the three sections of the Airport Guiding Documents, the 50 foot buffer noted in a site plan presented to Planning and Zoning Commission, overlay plans should take priority over the LDC, and to say it was an economic development issue is a big stretch. She said the sign request should have been brought to Council. Mr. Hill said he hoped this issue didn't destroy the many years of trust between the City and Roseland, believed we are doing a good job in developing the City. He asked the City Manager if there was any offer to remove the sign and he replied no. He then asked the City Attorney if the City Manager was within his administrative authority to approve the sign. The City Attorney replied he was. Mayor Gillmor said he recently drove down State Road A1A from St. Augustine and he realizes why they live in Sebastian as monument signs make a tremendous difference. He noted the lease says "sign or signs," it is not in the buffer and didn't see a problem. Ms. Simchick said she would apply the written rules and laws and asked the City Attorney to define "aggrieved" as cited in LDC Section 54- 1- 2.2(d). The City Attorney said the short form version is a person is aggrieved if that person is adversely affected by a decision or if legal right has been infringed by that decision. He said he views the definition of aggrieved to grant relief to people who want to review administrative decisions. He said this is a difficult case because people aren't close enough or impacted enough by the decision Board of Adjustment September 30, 2009 Page Nine and he thought a court would have some difficulty, but the Board is willing to offer the opportunity for people to come forward if a staff decision didn't go the way they would have hoped. Ms. Simchick asked if in the legal court, would the aggrieved party be abutting parcel owners. The City Attorney replied yes. Ms. Simchick then clarified the tenant isn't aggrieved but if the Board overturns the decision, does that create the tenant as an aggrieved party; and the City Attorney said yes because he would then have to spend money to remove the sign. Ms. Simchick asked what court would the tenant take the case to. The City Attorney said it would go to the appellant division of the circuit court. Ms. Simchick asked the City Manager if the sign was built to its own plan and a certificate of occupancy granted. The City Manager said yes to both inquiries. Ms. Wolff said the most disturbing aspect is the disappearance of the buffer, some type of transition area is critical. He said the fact that Kayaks Etc. was repeatedly denied a sign at the key location and subsequently the storage owner was able to erect a sign and start the kayak business did not sit well with him. He said Mr. Denton contacted him to say he was giving up on the case, was surprised that he filed the appeal, and had to put up money to do so. He said the Board is supposed to be at the public's service, not adversaries because they interpreted something different and hoped putting up the sign under the guise of economic development doesn't become the guise of uncontrolled growth. He said given the background of Mr. Philipson's lease, it would have been prudent to come before the public in this case and from an ethical sense, it does not sit very well with him. MOTION by Ms. Coy and SECOND by Mr. Wolff to approve the administrative appeal with sign to come down and refund Mr. Philipson the money he spent. Result of the roll call: Ayes: Coy, Wolff Nays: Gillmor, Hill, Simchick 2 -3 Failed MOTION by Mr. Hill and SECOND by Ms. Simchick to deny the appeal to overturn the administrative decision. Result of the roll call: Ayes: Hill, Simchick, Gillmor Nays: Coy, Wolff 3 -2 Passed Board of Adjustment September 30, 2009 Page Ten ATT Ms. Simchick clarified with the City Attorney that fees are in place to prevent frivolous cases and asked if they had the ability to waive the appeal fee. The City Attorney said yes. MOTION by Ms. Simchick and SECOND by Ms. Coy that the Board of Adjustment waive the appeal fee for Mr. Denton. Result of the roll call: Ayes: All Nays: None 5 -0 Passed Being no further business, Mayor Gillmor adjourned the Board of Adjustment meeting at 9:20 p.m. 6. OLD BUSINESS —none. 8. CHAIRMAN'S MATTERS none. 9. MEMBERS' MATTERS none. 10. STAFF MATTERS none. 11. ADJOURN Approved at the May 12 2010 Sally A. Maio, C City Clerk Board of Adjustment meeting. BOARD OF ADJUSTMENT City of Sebastian, Florida Appeal of Administrative Decision: Robert Denton Appeal of Sign Approval FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER THIS CAUSE came on for public hearing before the Board of Adjustment of the City of Sebastian on September 30, 2009, and based upon the testimony and all of the evidence presented, the Board of Adjustment enters the following: FINDINGS OF FACT Case No. 09 -APL -5 1. ROBERT DENTON, "Appellant has appealed the administrative zoning approval for the construction of a monument sign located at 25 Airport Drive West. 2. Public notice of this hearing was published on September 15, 2009, in the Press Journal, a newspaper of general circulation in the City of Sebastian, Florida. 3. The Land Development Code of the City of Sebastian (LDC) requires mailed notice to all property owners within 300 feet of the subject property. However, in this case, since a 300 foot notice would encompass only one residential property, the City expanded the area of mailed notice to 600 feet. The 600 foot notice picked up a number of additional residential properties, including some who signed a petition in support of the Denton appeal. 4. The Appellant's residential property located at 11245 Roseland road, is approximately 2400 feet from the sign, and consequently is not located within the 300 feet notice requirement of the LDC or within the 600 feet expanded notice area provided by the City. 5. The sign that is the subject of this appeal is located on property owned by the Sebastian Municipal Airport and leased to Sebastian Airport Storage, LLC. 6. The sign is 12 feet wide, 2.5 feet in depth and 10 feet in height. 7. The sign advertises a kayak rental facility, and it is located across the street from a county park on the St. Sebastian River featuring a boat ramp available for use by kayaks. 8. Appellant presented his position regarding the subject sign. 9. Nine people spoke in support of the appeal. 10. The Sebastian City Manager presented a staff report explaining the justification for the administrative zoning approval of the monument sign. The Board of Adjustment hereby adopts the factual statements made in the City Manager's presentation and incorporates them as a portion of this Order as if fully stated herein. 11. One person spoke in support of the staff position. 12. The LDC contains specific provisions relating to signage: Section 54- 3- 16.5(b)(1). The subject sign is in compliance with these provisions of the LDC. 13. The Sebastian City Council has adopted Resolution No. R -09 -11 approving a draft economic development plan for the City of Sebastian dated, March 2009. The subject sign is in conformance with this plan. CONCLUSIONS OF LAW The Board of Adjustment recognizes that the Appellant may not meet the standing requirements necessary to provide a Florida court with jurisdiction (See paragraphs 3 -4 above.) Nevertheless, in an effort to provide meaningful appeal of an administrative decision, this Board had heard the appeal on the merits. The interpretations by City staff of the ordinances it is charged with enforcing, specifically the provisions of the LDC, are given deference and will be followed unless they are clearly erroneous or contrary to the legislative intent. Based upon a careful consideration of the evidence presented, the Board of Adjustment hereby determines that the administrative zoning approval for the construction of a monument sign located at 25 Airport Drive West is in compliance with the Sebastian Land Development Code and the draft Economic Development Plan for the City of Sebastian, dated March 2009, as approved by Resolution No. R- 09 -11. Based upon the foregoing Findings of Fact and Conclusions of Law, a motion to DENY the appeal to overturn the administrative decision was made by Board Member Jim Hill, and seconded by Board Member Dale Simchick, and adopted by the Board by a vote of 3 in favor and 2 against. The appeal is DENIED; the administrative decision to approve the subject sign is UPHELD. DONE AND ORDERED in Sebastian, Indian River County, Florida, this 30 day of September, 2009. ATTEST: Q h, ORDER CITY OF SEBASTIAN CLERK BOARD OF ADJUSTMENT CHAIRMAN BOARD OF ADJUSTMENT