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05172010Special
CITY Of HOME OF PELICAN ISLAND SEBASTIAN CITY COUNCIL SPECIAL MEETING HEARING ON GILLIAMS APPEAL TO PLANNING AND ZONING COMMISSION DECISION ON SEAWINDS CREMATORY MONDAY, MAY 17, 2010 5:30 PM CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA 1. Mayor Gillmor called the hearing to order at 5:30 p.m. 2. The Pledge of Allegiance was recited. 2. ROLL CALL City Council Present: Mayor Richard H. Gillmor Vice -Mayor Jim Hill Council Member Andrea Coy Council Member Eugene Wolff Council Member Don Wright Staff Present: City Manager, Al Minner City Attorney, Robert Ginsburg City Clerk, Sally Maio Deputy City Clerk, Jeanette Williams Building Director, Wayne Eseltine Growth Management Director, Rebecca Grohall Police Captain, Bob Lockhart Police Captain, Mike Beyers MIS Systems Analyst, Rob Messersmith Vice Mayor Hill said he was unable to attend the Tourist Development Council meeting in Vero Beach on Wednesday, May 19 as was his alternate, Mayor Gillmor, and since Council Member Wright had previously expressed an interest, Mr. Hill moved to appoint Mr. Wright as an alternate to attend the meeting and have the City Clerk send a letter to the committee advising them Mr. Wright will sit as alternate. Ms. Coy seconded the motion. Voice vote on the motion carried 5 -0. Special City Council Meeting May 17, 2010 Page Two 3. SPECIAL MEETING ITEM 10.045 A. Quasi Judicial Hearing of Appeal from Damien Gilliams of the April 1, 2010 Planning and Zoning Commission Approval of Site Plan Modification for the Seawinds Crematory Located at 735 S. Fleming Street (Growth Management Transmittal dated 5/7/10, See Page Index Attached to Agenda) Mayor Gillmor opened the hearing at 5:30 p.m. and the City Attorney read the title. There was no ex -parte communication to disclose by members of Council. The City Attorney swore in all those who intended to offer testimony. Appellant Presentation Kimberly Rezanka, Esq., 8240 Devereaux Drive, Melbourne, Attorney with the law firm, Dean, Mead, P.A., representing appellant Damien Gilliams, presented her background in land use and zoning law; and experience presenting cases on behalf of clients before several government agencies in the area. She said they are here to ask Council to overturn the Planning and Zoning (P Z) Commission's approval on the Seawinds crematory and investigate whether Seawinds has complied with the approved 2003 conditional use permit, noting issues were bought to everyone's attention because of the crematory fire in 2009. She also noted there is a motion to dismiss the appeal before Council and she will address that later on. Ms. Rezanka provided two maps from City records depicting the distance from Mr. Gilliams' properties to Seawinds (marked new exhibits 1 2 attached). She said Mr. Gilliams has close connections to the subject property, owning a home within .52 miles, frequents businesses adjacent to Seawinds and walks his dog on the property to the south, he is concerned with pollution that may be coming into the Elks, and he also has commercial property in close proximity to Seawinds which he feels might be depreciating in value. Ms. Rezanka handed out case law relating to this issue (new exhibit 3 attached), which included 31 pages of six court decisions. She read excerpts from the first three cases, citing the psychological defensiveness of the crematory, stating it is well recognized that people have a fear of death, there is common knowledge of the devaluation of property in close proximity to a funeral home, and it should be considered as true. She said as to the appeal of the site plan modification, it is clearly an expansion that raises quality of life and health and safety issues, and although approved as a conditional use and site plan, it was her opinion this was a change because they are expanding the size, enlarging the crematory and the cooler which is clearly an expansion of the use. She said the fire should have caused concern and should be considered a safety hazard. She noted that Council had received the March 6, 2003 P Z minutes but not the February 2003 P Z minutes which are very telling. She presented the February 2003 minutes in verbatim (new exhibit 4 attached) and read and cited underlined portions of those minutes. 2 Special City Council Meeting May 17, 2010 Page Three She noted Mr. Young testified that 50% or more bodies come from off site, however it was deemed to be an accessory use in 2003, and noted the March 6, 2003 minutes contain a great deal of testimony by Andrew Allocco, who had concerns about pollution. Ms. Rezanka cited and expounded on the following pages from the agenda packet exhibit: Page 126 Mr. Young testified that the facility would hold 5 -7 remains, Mr. Blessing asked if some one was always there and Mr. Young said a funeral director, but there was not a director there for the fire. It was suggested by Mr. Mosby there should be more buffering but Mr. Young said there would not be. Ms. Rezanka said if the appeal is not approved asked to look for more conditions to protect the health, safety, and welfare of the public at large. Mr. Blessing asked about reducing the operation hours but there was never any conditional uses placed on this in 2003. Page 137 Mr. Mahoney said he couldn't see how this small size could cause so much discomfort. Page 56 Ms. Rezanka said Mr. Gilliams believes there is substantial evidence to deny the expansion of conditional use based on health, safety, and welfare. Page 53 Mr. Nichols talked about the endangerment to lodge, suggesting moving the crematory to the other side of the property, and cited a violation letter from DEP because emissions were not checked as required. Madeline Walsh testified that she had personally seen smoke, and bodies pushed into the crematory on a gurney. She read adverse impacts from the Code defined as impacts potentially may be harmful or injurious to human life, wealth fare, or safety or property that may reasonably interfere with quality of life includes secondary or cumulative and she stated there are many people who have seen smoke, black smoke and gurneys. Page 11 March 10, 2010 Council minutes indicate Mr. Young said he would monitor with cameras but the condition was not imposed. Page 15 March 10, 2010 Council minutes indicate Attorney Vocelle said Mr. Young did not want to go back to P Z and would construct a wall adjacent to the Elks but it was not imposed as a condition. Special City Council Meeting May 17, 2010 Page Four Page 4 The number of employees and type of vehicles owned by the establishment weren't provided and there is no loading zone, service docks on the site plan. Page 103 The Elks asked for a number of conditions, there was an agreement but the conditions were never put into the plan approved by P Z. Page 113 The fire report stated, although considered an accident, the fire was caused by excessive heat, and failure to monitor which are conditions that can be imposed. Page 111 Maureen Mathewson's letters indicating she has seen gurneys wheeled in and out of the crematory. Page 151 There was a request from adjacent property owner Mr. Fischer, as stated by Warren Dill, for additional conditions that weren't incorporated, the most obvious being the hours of operation especially during Elks' Wednesday bingo from noon to 4 p.m. Page 172 Madeline Walsh's e-mail to the City talks about the acrid odors emanating, from the building, and the fire department has responded many times. Page 178, Section 3j the air permit does not relieve Seawinds of liability and penalties when the operation causes injury to animal plant, aquatic life for property. Page 189 Cited that DEP found the crematory in violation of statutes and regulations. Ms. Rezanka cited materials that were received by staff but not included in Council's agenda packet (part of new exhibit 4). Testimony submitted by former fireman Andrew J. Simso at April 1, 2010 P Z Commission meeting. Letter from Edward Arens, Past Exalted Ruler, Elks regarding witnessing the crematory fire. Signature pages people from the Elks attesting to witnessing smoke and sparks from the stack, strong offensive odors and gurneys. She then read from City Land Development Code criteria for funeral homes, citing procedures to protect health safety and welfare, citing the requirement for a major service road, with a service drive; and under site plan application, requiring designation of loading and unloading areas. 4 Special City Council Meeting May 17, 2010 Page Five 6:10 pm In closing, she respectfully requested that City Council overturn the P Z Commission's approval. She asked if she would have the opportunity to address the other court cases she had provided if necessary. She was advised that she will have a chance for rebuttal. Ms. Rezanka said Mr. Gilliams will testify to what he has seen and the adverse impacts. Damien Gilliams, 1623 US 1, Sebastian, said his home address is 713 Layport Drive, which is .5 miles from Seawinds crematory and he also owns property on CR 512. He said he has lived at the Layport address since 1989 and has been a real estate broker since 1987, stated as a realtor he meets at the Elks Lodge for membership meetings, as well as attends the Elks' breakfast on the 1 and 3rd Sunday mornings, and sometimes has lunch at the Irish pub and the Chinese restaurant, directly across from the crematory. He said he has observed the burning and disposing of bodies, noting one time when the Elks were replacing their roof, plumes of smoke were coming out and affecting the roofers, that he walks his dog near the crematory, and used to stop at the Exxon station which is now closed. He said it takes eight to nine minutes for him to walk there, and it is in his neighborhood and he has a right to object to what is taking place. He said people say he is being spiteful, but said when you are eating breakfast and you hear the fans go on the first thing you think about is what is being sucked into the vents on the Elks roof and this should offend people. He said he can't see how those units are not sucking in smoke from people who have had radiation, who had fillings in their mouths and though it may not be a lot, it is a psychological effect. Staff Presentation The Growth Management Director noted that Planning and Zoning heard all these issues on April 10, 2010 and imposed seven conditions as cited on agenda packet page 5. She then read the conditions. She said there are a number of people present as well as herself to take questions. Questions from Council Mr. Wolff asked for clarification that it had been stated that the maximum number of bodies per day would be 30 bodies. The Growth Management Director said though it came up in the hearing, she suggested posing this question to the applicant. Mr. Wolff said if that is true then it is possible to cremate 5,300 to 6,000 bodies per year, and with that kind of traffic, asked if we should be looking at loading zones, hours, number of employees, and as a City we should be prepared for that intensive use. The Growth Management Director read from criteria of the code relative to this use, the first being is it in an applicable zoning district, and the second such uses should be using a major thoroughfare such as Fleming Street, and uses should be screened for which they provided additional landscaping. Mr. Wolff asked how far the school zone extends. 5 Special City Council Meeting May 17, 2010 Page Six The Growth Management Director said she did not know, the City doesn't have codes regarding this and it may be federal. Mr. Wolff said with the ability to cremate 5,000 bodies per year, he asked if that would be like a stand alone business, and at what point is it recognized as stand alone. The Growth Management Director said in 2003 it was stated that the use was conditional and the structure subordinate to the use, and read from the conditional use criteria of the LDC. Input in Favor of the Appellant: Leon Nichols, with a business at 735 Sebastian Boulevard, stated his business is less than 200 yards from the crematory. He said he was the original appellant to the crematory. He said it has been stated that Seawinds has the absolute right to rebuild, which he contended is not true. He said he spoke to Jan King, Growth Management Manager who pointed to Chapter 2 of the LDC which states that non conformity can be rebuilt but not larger than the original plan. He said he contends that Council is not bound by the 2003 Planning and Zoning approval, it should be returned to Planning and Zoning and told they don't have the right to rebuilt. He said it is a tremendous danger to the community, with an oven temperature of 1600 degrees, we have double the danger, noted there is an office complex behind the crematory and the crematory should be out where there is no population. He noted the zoning to the east is for an apartment complex, and said the reason they are not objecting to this is that they are in foreclosure but some day there will be an owner to that property. He said the crematory does not fit in with existing and future development, that it is in the epicenter of the City of Sebastian and it needs to be moved. Mr. Wolff said from the beginning they have been told that the crematory was grandfathered and they could rebuild what they had before. Mr. Nichols directed the question to the City Attorney. The City Attorney said fire destroyed the facility but it did not destroy the site plan, and they can rebuild. He said that to expand 500 feet or less could have been approved by staff but staff had the discretion to bring it to Council and they did that. He said the expansion was before Council. Mr. Nichols said he was not answering the question, and asked what provision of the code states this. The City Attorney said if this were a single family home in a similar circumstance, they would still have the zoning to do it to rebuild, and in that particular location they have the right to put a crematory which was decided seven years ago. Mr. Wright said he believed the City Attorney answered the question. Mr. Wolff stated that the Elks felt compelled because they were grandfathered to go after some additional conditions. 6 Special City Council Meeting May 17, 2010 Page Seven Mr. Nichols asked again why that language doesn't appear in the code, noting there is language for non conforming uses but why not for this. Mr. Wolff said we have to be practical and ask do we want to fight a lawsuit, the Code does not address it, and it's what we have to work with tonight. He said the expansion is not a given. Input Opposing the Appellant Buck Vocelle, 333 20th Street, Vero Beach, Attorney representing Seawinds, asked Mr. Nichols to clarify that he was here as an individual and not representing the Elks club. Mr. Nichols responded yes. Mr. Vocelle said this has been approved by Planning and Zoning Commission twice, was appealed to City Council in March and was not successful, and due to concerns remanded back to Planning and Zoning, which voted 5 -2 to approve this site plan. He said he had filed a motion to dismiss Mr. Gilliams' standing to bring this appeal and noted the City Attorney had asked that the issue of the motion be put at the end of this hearing. He said the Code states that to have standing a person must be affected and aggrieved and this is defined in case law. He said there must be something that makes a person separate and apart from his neighbors, that notice was sent to people within 300 feet of the subject property, and pointed out that no one from the shopping center appealed, Mr. Fischer has not appealed, no one from the town houses appealed, and he stated he did not believe Mr. Gilliams has standing or any special interest. Mr. Vocelle said it appears people want to revisit what happened in 2003 which was within the parameters of the LDC; but they were here tonight for a minor site plan approval that is that Seawinds could rebuild on the 480 footprint upon which it previously existed with none of the special conditions. He said Seawinds went back to the Elks and they recognized it was better to have protections so they compromised with the Elks and modified time limits. He noted in 2003, City Attorney Stringer advised that time limits could not be addressed because the conditional use was already voted on. He noted the items that have been achieved as a result were not to have cremations on Wednesdays from noon to 4 p.m., the most important thing was flipped the burning units themselves which moves the stacks toward the parking lot side so they are now 20 feet from the Elks lodge, having an enclosed stack, with a sprinkler above and a sprinkler below, and agreeing to 24 hour surveillance. Mr. Vocelle pointed out that the Code states in terms of minor site plan revisions, they shall be reviewed by the Director, but staff felt this to be a political hot potato so they referred it to P Z. He also stated pursuant to LDC Section 54.1- 2.4(g)(4), that with regard to the appeal of the final order, the City Council shall be limited to review of testimony documents, plans, papers or other material constituting the record upon which the action below was taken. He said Council has been provided with new material by Ms. Rezanka. He said it was Council's prerogative to accept the new materials provided by Ms. Rezanka or not. Mr. Vocelle said he agreed with the City Attorney that Seawinds could reconstitute the unit on the existing site plan even if Council denied the appeal but they don't think that is 7 Special City Council Meeting May 17, 2010 Page Eight 6:43 p.m. desirable because they agreed with the Elks to flip the burning units so a wall is no longer needed and they believe that all concerns have been adequately addressed. He then asked Indian River County Fire Chief Brian Nolan to address the plan for sprinklers, fire protection system, and how it compares to the previous system. Brian Nolan, Bureau Chief, Fire Prevention Bureau, Indian River County, said he reviewed the plans and it was their idea that the chimney should be enclosed in a one hour rated enclosure with a fire sprinkler at the top and bottom, so in the event fire was able to get out, it would be contained by sprinklers for one hour. Mr. Vocelle asked him how the system would be monitored and Mr. Nolan said the fire sprinkler system would be monitored so if it discharged it would signal the monitoring agency and fire apparatus could respond. Mr. Vocelle asked if the Department was satisfied with the modifications suggested by the P Z Commission and Mr. Nolan said the sprinklers were not a requirement, but he suggested them to Mr. Young and Mr. Young wanted to be a good neighbor. Mr. Vocelle asked him if the project meets Fire Department approval and Mr. Nolan said yes it meets National Protection Association codes. Ms. Rezanka asked what caused the fire in 2009, and Mr. Nolan said he didn't investigate that fire, it was investigated by Captain Von Buelow, that the fire was able to get out of the chimney area to the roof but he was not sure of the exact cause. Ms. Kresanka asked, with this new system, is it impossible for the fire to get out and Mr. Nolan said it is not impossible but highly improbable, but if it gets out it that was the reason for the sprinkler system in the chimney area and it should be contained within the one hour enclosure. Mr. Vocelle called Project Engineer Randy Mosby to the podium and asked him to state his name and profession. In response to Mr. Vocelle, Randy Mosby, Mosby, Smith Engineering, he was a professional engineer and the crematory as modified by P Z conditions, meets and exceeds all the building codes. Ms. Rezanka asked Mr. Mosby what licenses he held and if they were current. Mr. Mosby said he is professional engineer with structural, civil, and environmental engineering, in Florida, North Carolina, South Carolina, Virginia and Maryland; and all his licenses were current. He also stated he was currently licenses as a general contractor and threshold inspector in Florida. Mr. Vocelle said he would like to address conditions imposed and Mr. Wolff's earlier question about the number of daily cremations. 8 Special City Council Meeting May 17, 2010 Page Nine James W. Young, 1310 River Edge Drive, Vero Beach, owner of Seawinds Crematory, said they will be able to do two cremains at a time, one in each unit, said in Indian River County there are about 1700 deaths per year, and Seawinds does about 900 case calls per year which is 54% of the market share. He said with the Melbourne facility, he receives 1400 calls per year, and 85% are cremations and that equates to approximately 1000 cremations per year and typically one to two per day. Mr. Wolff said he was concerned because if Seawinds was purchased by a national funeral home and they decided to bring in business, the capacity would dictate the use and the City would have a fiduciary responsibility. Mr. Young said his business was the largest on the Treasure Coast and Mr. Wolff said then it is a prime target for the taking. Mr. Young agreed. Mr. Vocelle asked Mr. Young to compare the proposed crematory with the conditions imposed with a rebuilt original crematory unit. Mr. Young said the crematory would be running a lot more. Mr. Vocelle noted he would not need the fire protection system with the original unit and Mr. Young said that was correct; he spoke to the Fire Marshall and the Elks and agreed with what the Fire Chief recommended. Ms. Rezanka asked if he had said they plan to do 1000 -1100 cremains per year and Mr. Young said yes and he is open 365 days per year. Ms. Rezanka asked him if he had testified that it takes 45 minutes to one hour per cremation and Mr. Young said the first cremation is one 1 /2 hours and then once it warms up, it is 45 minutes to one hours per individual depending on the weight, and there is a 15 -20 cool down period between bodies, but the incinerators can't run 24 hours per day normally. Mr. Vocelle said in summary, they are asking that Council not uphold the appeal which requires a supermajority vote, he understood the feelings in the community and Council, but they have addressed this to be less obtrusive, a much safer facility, and noted when making accords, nothing is perfect from one side to the other. He asked that Council deny the appeal and if it gets to standing, to deny that as well. 6:51 p.m. Appellant Rebuttal Ms. Rezanka cited the last three cases in the new exhibit 3 she had provided previously dealing with the standing issue, citing Albright vs. Henley was a variance being appealed and this case found the land owner and tax payers within a mile had standing. She said the Carlos Estates vs. Dade County case talks about legally recognizable interest and it just has to exceed the general interest in the community. She said Mr. Gilliams has an adverse interest; it is where he frequents so he is subject to adverse impacts, therefore asked Council to deny the motion to dismiss for lack of standing. 9 Special City Council Meeting May 17, 2010 Page Ten She asked them to go back to 2003 when the conditional use was approved, there were two hearings, the building burned down, there is adverse impact presented to Council and she believed it would be subject to a new conditional use approval. She noted Mr. Vocelle has raised the point of record below, but she stated that everything in the record going back to 1997 can be part of the record in this matter. She said Mr. Vocelle raises issue of the wall, which was to be used for buffering, and Mr. Vocelle confirmed double burner which equates to double use. Ms. Rezanka said Council was within their right to put conditions on the number of crematories, and asked that they deny the motion to dismiss for lack of standing, overturn the Planning and Zoning Commission site plan approval or send back for conditional use approval or and conditions with what's been requested to protect the interests of the public. Closing of Hearing and City Council Action MOTION by Mr. Hill and SECOND by Ms. Coy to reject the appeal and affirm the action of P Z. The City Attorney advised before they act, to include in the record the material that was provided, noting Ms. Rezanka is correct that prior records, maps can be included. Ms. Coy said it was not usual to have additional records provided. The City Attorney said it is based on the previous record but he is treating this as an appellant court and they do base opinions on the record below but have the authority (if they wish) to supplement the record with new materials. He said in this case the new material, by operation of law, is before you, the other is Mr. Vocelle's motion on the standing issue which is not something that is new and it is up to Council to decide if they want to supplement the record. Ms. Coy said she didn't have a problem, but for the record, she did not have time to read the new exhibits. The City Attorney asked the maker of the motion, if he wished to, to include reference to standing, and in this case, the motion should include a determination by the City Council that the appellant doesn't have standing. Mr. Wright asked the City Attorney if the question of standing has any affect on the motion itself, and if Council recognizes the appellant has standing that doesn't necessarily mean his argument is valid. The City Attorney said that was correct. Mr. Wright said the question of standing in his mind is moot. Mr. Hill asked whether, even without including standing in the motion, the motion as it stands doesn't necessary imply there is standing. 7:03 The City Attorney said standing is important as it relates to Council's jurisdiction to make a decision on the merits. He said if the person doesn't have standing, then Council doesn't have jurisdiction because the parties have to have requisite to be before them. 10 Special City Council Meeting May 17, 2010 Page Eleven He said since standing was raised below, Council could ignore the motion, decide the issue and if they decided the issue of standing, he would defend whatever action Council takes, if they include standing, it gives him the ability to defend on standing and merit and that is the only issue the court will look at and if the court disagrees, Council would have another hearing. He asked them for the opportunity to defend on both issues. Mr. Hill said he does not believe the individual has standing or merits in this case. He said he was concerned that standing might be a hold up for other members. Mr. Wright asked if they could consider them separately. Mayor Gillmor offered to make a secondary motion that the individual does not have standing. The City Attorney said if we didn't already have a motion on the floor, an alternative motion would be to consider standing, and the second issue would be the merits. Mr. Hill adjusted his motion based upon both merits of the complaint and the fact he did not believe there standing "to reject the appeal based on merits and lack of standing." Ms. Coy amended her second to include the adjusted motion. Mr. Wright said Seawinds deserves credit for addressing the Elks' concerns, and said he liked the fact that the hours will reduced. Ms. Coy thanked Seawinds for doing exactly what they asked. Mr. Wolff said he thought Council was missing the big picture, that to analyze the case you have to take the parties out of the picture because we do have a good business, and the Elks had concerns and made compromises, but he thought the big picture was the establishment of these incinerator units in communities, and the #1 aggrieved party would be the town houses, and #2 the school, and by establishing units capable of burning, in the event Seawinds is bought out, 6,000 plus bodies per year in our community and next to a school. He said we all have standing because we all live here. He said people talk of Mr. Gilliams being a political gadfly but the whole 22,000 of us are aggrieved parties and we missed it. He said projects change hands and then it is out of our hands, we have to look at quality of life, and again said take the parties out, it is the incinerators that are in question. Mayor Gillmor said he agreed with Mr. Wolff's passion, and felt that the aggrieved party will be the City, but we are in a process and we have to rein in our emotions and rule based on the evidence presented. Mr. Wolff said because of the conditional use, we are not addressing hours, etc. and all these things will be left unaddressed, and this doesn't allow us to reframe conditional use now that our eyes are open. 11 Special City Council Meeting May 17, 2010 Page Twelve Mr. Wright said we hear that the Code doesn't need to be updated, but this issue points out the archaic codes we have to follow and are the basis of our decisions. He said he believes the City Manager has asked P Z to start reviewing the Land Development Code, but to impose arbitrary conditions not in the Code is unreasonable. Ms. Coy said there were strong opinions at the last meeting, and all questions were answered. She said she has complete faith and trust that Seawinds will do what they say they will do, and cited that five years ago she began her Council career based on a development that promised to do a lot of stuff and then they didn't. She said that she is a bear, cautioning them to abide by their covenants. Result of the roll call on the restated motion "to reject the appeal based on merits and lack of standing." Mayor Gillmor aye Vice Mayor Hill aye Ms. Coy aye Mr. Wolff nay Mr. Wright aye Motion carried 4 -1 4. Mayor Gillmor adjourned the Special City Council Meeting at 7:17 p.m. Approved at the June 9 2010 regular City Council meeting. ATTEST: Sally A. Milo, MMC City Clerk 12 Indian River County, Florida Property Appraiser Printer Friendly Map Print 1 Back 31381100002108000007.0 TAYLi, R. AV 52 mtles 2728 24feet intw ParcelID 31382400001303000014.0 31381200004508000036.0 31381100002108000007.0 30382100001045000007.0 30383000007000000001.0 Indian River County GIS OwnerName GILLIAMS THOMAS THERESA GILLIAMS DAMIEN BONNIE FEY (1/3) GILLIAMS DAMIEN H BONNIE GILLIAMS DAMIEN H BONNIE FEY GILLIAMS DAMIEN BONNIE FEY Notes Page 1 of 1 //)tl 6 k PropertyAddress 338 BELFAST TER SEBASTIAN, FL 32958 651 SEBASTIAN BLVD SEBASTIAN, FL 32958 713 LAYPORT DR SEBASTIAN, FL 32958 13395 80TH AV SEBASTIAN, FL 32958 1623 US HIGHWAY 1 SEBASTIAN, FL 32958 http: /www.ircpa.org /PrintMap.aspx 4/5/2010 Indian River County, Florida Property Appraiser Printer Friendly Map Print 1 Back ParcelID Indian River County GIS sic# at ftf�s�eamccsresmemrr am,er OwnerName PropertyAddress 31381200004508000036.0 GILLIAMS DAMIEN BONNIE FEY (1/3) 651 SEBASTIAN BLVD SEBASTIAN, FL 32958 Notes Page 1 oil J -1_I Z t http: /www.ircpa.org /PrintMap.aspx 4/14/2010 Westtaw 134 So. 541 101 Fla. 585, 134 So. 541 (Cite as: 101 Fla. 585, 134 So. 541) c Affirmed. Supreme Court of Florida, Division A. STATE ex rel. SKILLMAN v. CITY OF MIAMI et al. May 12, 1931. Error to Circuit Court, Dade County; H. F. Atkinson, Judge. Habeas corpus proceeding by the State, on the rela- tion of John J. Skillman, against the City of Miami and Guy C. Reeve, Chief of Police. To review a judgment remanding petitioner to the custody of the Chief of Police, petitioner brings error. West Headnotes Ill Municipal Corporations 268 0'63.5 268 Municipal Corporations 268II Governmental Powers and Functions in General 268k63 Judicial Supervision 268k63.5 k. Discretion. Most Cited Cases (Formerly 268k63.1(2), 268k63(1)) Determination of question whether ordinance is emergency measure rests primarily in judgment and discretion of city commission. at Constitutional Law 92 t 2437 92 Constitutional Law 92XX Separation of Powers 92XX(B) Legislative Powers and Functions 92XX(B)4 Delegation of Powers 92k2434 To State and Local Authorities 92k2437 k. Municipalities and mu- nicipal employees and officials. Most Cited Cases (Formerly 92k63(2)) Legislative power to delegate zoning authority to governing body of municipality has been recognized and definitely determined. Sp.Acts 1925, c. 10847, 3(4), as added by Sp.Acts 1929, c. 14234, 5. 131 Zoning and Planning 414'1101 141 Zoning and Planning 414'1101 15j Zoning and Planning 4141038 161 Municipal Corporations 26863.20 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. /Out) 3 Page 1 414 Zoning and Planning 414II Validity of Zoning Regulations 4141I(B) Particular Matters 414k110I k. Mortuaries, cemeteries, and mausoleums. Most Cited Cases (Formerly 414k80, 268k601.2, 268k601) Funeral homes, embalming establishments, and mor- tuaries held subject to regulation by city under police power. Sp.Acts 1925, c. 10847, 3(4), as added by Sp.Acts 1929, c. 14234, 5. 414 Zoning and Planning 41411 Validity of Zoning Regulations 41411(B) Particular Matters 414k1101 k. Mortuaries, cemeteries, and mausoleums. Most Cited Cases (Formerly 414k11.1, 414k11, 268k601) Determination that conduct of funeral home in par- ticular locality will be detrimental to comfort and convenience of inhabitants held within province of city commission. Sp.Acts 1925, c. 10847, 3(4), as added by Sp.Acts 1929, c. 14234, 5. 414 Zoning and Planning 4141I Validity of Zoning Regulations 4141I(A) In General 414k1038 k. Matters affecting validity in general. Most Cited Cases (Formerly 414k25, 268k601) To render zoning ordinance invalid, it must affuJua- tively appear that restriction is clearly arbitrary and unreasonable and without substantial relation to pub- lic safety, health, morals, comfort, or general welfare. 268 Municipal Corporations 268II Governmental Powers and Functions in General 268k63 Judicial Supervision 134 So. 541 101 Fla. 585, 134 So. 541 (Cite as: 101 Fla. 585, 134 So. 541) 268k63.20 k. Reasonableness nances. Most Cited Cases (Formerly 268k63.2, 268k63(2)) Zoning and Planning 414,€ '1629 414 Zoning and Planning 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)1 In General 414k1627 Arbitrary, Capricious, or Unreasonable Action 414k1629 k. Regulations. Most Cited Cases (Formerly 414k609, 268k601) Where value of property rights destroyed by zoning ordinance is so great as compared with benefit that it clearly appears ordinance is arbitrary and unreason- able, courts will interfere. Lj Municipal Corporations 268=63.20 268 Municipal Corporations 268I1 Governmental Powers and Functions General 268k63 Judicial Supervision 268k63.20 k. Reasonableness of ordi- nances. Most Cited Cases (Formerly 268k63(2)) Zoning and Planning 414 G-'1036 414 Zoning and Planning 414I1 Validity of Zoning Regulations 414II(A) In General 414k1036 k. Reasonableness in general. Most Cited Cases (Formerly 414k21.5, 414k101, 268k601) If reasonable argument exists on question whether zoning ordinance is arbitrary and unreasonable, legis- lative will must prevail. Lj Zoning and Planning 414 C=1053 414 Zoning and Planning 414II Validity of Zoning Regulations 414II(A) In General 414k1053 k. Hardship, loss, or benefit to particular persons. Most Cited Cases (Formerly 414k38) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Syllabus by the Court. Page 2 of ordi- In determining whether general welfare requires en- actment of zoning ordinance interfering with property rights, municipality should and presumably does con- sider resulting floss to property owners. The ordinance under consideration here, by its own terms, declares the same to be an emergency meas- ure. Therefore, in this case, the question as to whether or not it was an emergency measure is elimi- nated from consideration because this question is one which rests primarily in the judgment and discretion of the city commission for determination. The power of the Legislature to delegate what is known as `zoning authority' to the governing power of a municipality has been recognized and deter- mined definitely in this jurisdiction. Funeral homes, embalming establishments, and mor- tuaries have long been held to be subject to regulation under police power, and this before the modern prac- in tice of zoning became recognized as an attribute of municipal power. The conducting of a funeral home in a particular locality may not be detrimental to the health, morals, safety, or welfare of those surrounding and in close proximity to the establishment, but it is well within the province of the city commission to determine that the location of such business will be detrimental to the comfort and convenience of those inhabitants of the city who immediately surround and are adjacent to the place where such business is conducted. The validity of ordinances dividing the city into dis- tricts and limiting the use of real estate within such districts to certain purposes has been sustained, it being held that, in order for such ordinance to be de- clared unconstitutional, it must affirmatively appear that the restriction is clearly arbitrary and unreason- able and has not any substantial relation to the public safety, health, morals, comfort, or general welfare. In determining whether the general welfare requires interference with property rights by a zoning ordi- nance, municipalities should, be presumably gener- ally do, consider, among other things, the loss to property owners by a restriction of the use of their 134 So. 541 101 Fla. 585, 134 So. 541 (Cite as: 101 Fla. 585, 134 So. 541) property. This, however, is only one of the considera- tions on which the final decision is to be based. Doubtless, if the value of the property rights de- stroyed is so great, as compared with the benefit done, that it clearly appears the ordinance is arbitrary and unreasonable, the courts will interfere, but, if there can be any reasonable argument on the ques- tion, the legislative will must prevail. *587 *542 Semple Hirschman, T. E. Price, and Harold Kassewitz, all of Miami, for plaintiff in error. J. W. Watson, Jr., and Loftin, Stokes Calkins, all of Miami, for defendant in error. BUFORD, C. J. On December 2, 1930, the city commission of the city of Miami, Fla., adopted Ordinance No. 950. Sec- tion 1 of said ordinance was as follows: `Section 1. It shall be unlawful to conduct, operate or maintain any undertaking or embalming establish- ment, mortuary, funeral home, or any place for the purpose of caring for and keeping dead bodies, for holding funerals or for practicing the profession of undertaker, embalmer, mortician or funeral director in or on any part of the Avenue or the Boulevard hereinafter (in this section) described, or on or in any part of the walks or ways, or in or contiguous to any part of the Avenue or the Boulevard hereinafter (in this section) described, or on or in any part of any lot (by whomsoever owned) contiguous to any part of the Avenue or the Boulevard in the City of Miami, Dade County, Florida, hereinafter described, namely: `A. Brickell Avenue, between its northern and its southern termini; `B. Biscayne Boulevard between the North side of Northeast 62nd Street on the North and the South side of Northeast 13th Street on the South; `C. Biscayne Boulevard between the North side of Northeast 6th Street on the North and the Southern terminus of said Boulevard.' Section 2 of the ordinance was as follows: `Section 2. It shall be unlawful to conduct, operate or maintain any undertaking or embalming establish- 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 ment, *588 mortuary, funeral home, or any place for the purpose of *543 caring for and keeping dead bodies, for holding funerals, or for practicing the pro- fession of undertaker, embalmer, mortician or funeral director in or on any part of the Boulevard hereinafter (in this section) described, or on or in any part of the walks or ways, or in or contiguous to any part of the Boulevard hereinafter (in this section) described, or on or in any part of any lot (by whomsoever owned) contiguous to any part of the Boulevard in Miami, Dade County, Florida, hereinafter described namely: `Biscayne Boulevard between the South side of Northeast 13th Street on the North and the North side of Northeast 6th Street on the South, without first having obtained a written permit so to do from the Commission of the City of Miami, Flor- ida, which permit may be granted by said Commis- sion by resolution upon application therefor, upon showing to the satisfaction of the said Commission that the permitted occupation would not at the place and under the conditions in which it would be carried on be a nuisance or seriously impair the value of property in the vicinity or be against the public safety convenience and welfare.' Section 3 of the ordinance provided for penalties for its violation. Section 4 of the ordinance provided as follows: `Section 4. If section 1 of this Ordinance shall, for any reason, be adjudged void, or for any reason inop- erative, with regard to the whole or any part of the area therein described, the area thereby excised from the provisions of said Section 1 shall be subject to the provisions of Section 2 of this ordinance, with like effect as if originally contained in said Section 2.' Section 5 declared the ordinance to be an emergency measure. *589 Section 6 provided that the necessity of reading the ordinance on two separate occasions is dispensed with by a four -fifths vote of the commission. John J. Skillman was arrested on an affidavit filed January 9, 1931, charging a violation of the ordi- nance. The violation of the ordinance is alleged to have occurred on the 9th day of January, 1931, and is 134 So. 541 101 Fla. 585, 134 So. 541 (Cite as: 101 Fla. 585, 134 So. 541) in five counts. Each count in effect charges that Skillman did unlawfully conduct, operate, and main- tain a funeral home on a lot contiguous to Biscayne boulevard between the north side of Northeast Sixty Second street and the south side of Northeast Thir- teenth street, to wit, in a building on the lot on the west side of Biscayne boulevard fronting east on the said boulevard and being between Northeast Nine- teenth street and Northeast Eighteenth street and des- ignated as No. 1822 Biscayne boulevard. Skillman sued out writ of habeas corpus contending that the ordinance was invalid. On hearing under an agreed statement of facts before the circuit court, petitioner was remanded to the cus- tody of the sheriff. From this judgment writ of error was sued out. 1 The ordinance by its own terms declares the same to be an emergency measure. Therefore in this case the question as to whether or not it was an emergency measure is eliminated from consideration because this question is one which rests primarily in the judgment and discretion of the city commission for determination. State ex rel. Swift v. Dillon, 75 Fla. 785. 79 So. 29; Metropolis Publishing Co. v. City of Miami et al. (Fla.) 129 So. 913. 12J Section 5 of chapter 14234, Special Acts of 1929, provided an amendment to chapter 10847, Special Acts of 1925 (adding section 3(4), as follows: *590 `The Commission of the City of Miami may, by ordinance, provide regulations and restrictions governing the height, number of stories, and size of buildings and other structures, the percentage and portion of lot that may be occupied, the size of yards, courts, and other open spaces, and the location, use of buildings, structures, and land for trade, industry, residences, apat lnient houses and other purposes.' This provision of the charter authorizes the city of Miami, through its commission, by ordinance, to ex- ercise the power of zoning. The power of the Legisla- ture to delegate such authority to the governing power of the municipality has been recognized and determined definitely in this jurisdiction by the opin- ion and judgment prepared by Mr. Justice Terrell in the case of State ex rel. Taylor v. City of Jacksonville (Fla. filed March 24, 1931) reported 133 So. 114. The 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 opinion in that case may be said to settle every mate- rial question involved in this case, except the ques- tion as to whether or not the business sought to be engaged in by the petitioner is within a class or clas- sification which may be properly subjected to regula- tory ordinances. 1J The business sought to be conducted by the plain- tiff in error is that of a mortuary or funeral home. Section 3 of chapter 10847, Special Acts of 1925, authorized the city of Miami, among other things, `to regulate or prevent slaughter houses or other noisome or offensive business within said City to regu- late or prohibit the exercise of any dangerous or unwholesome business, trade or employment therein; and generally to define, prohibit, abate, sup- press and prevent all things detrimental to the health, morals, comfort, safety, convenience and welfare of the inhabitants of the City.' Subdivision (p). Funeral homes, embalming establishments, and mortuaries have long been held to be subject to regulation* *544 under police power, *591 and this before the modern practice of zoning became recognized as an attribute of municipal power. It is contended here that, because there exists a cemetery near the location of the proposed mortuary, though not fronting on the same street, the mortuary would add nothing to the discomfort of the location. That other business enterprises which are properly subject to regulatory ordinances are conducted within the restricted area and are not affected by this or any other ordinance. It is also contended that there is a church located within a short distance of the mortu- ary and on the same street, and that, because funerals may be conducted from the church, it is an unwar- ranted discrimination to prohibit funerals being con- ducted from the proposed mortuary. It is a well- recognized fact that people throughout all ages have generally possessed what may be, or be akin to, horror of death. In the presence of a funeral home, it is hard for the average person to eliminate from his mind the depressing contemplation of death. When one looks upon a funeral home his thoughts naturally turn to the certainty of death and to the scenes of desolation and sorrow which within his experience have been occasioned by the grim reaper. When he looks upon a church he may have passing thoughts of the transition by death to another and different life, bnt if his thoughts dwell upon the edi- 134 So. 541 101 Fla. 585, 134 So. 541 (Cite as: 101 Fla. 585, 134 So. 541) fice of the church, the natural inclination is to think of what the church means, of its promise, of hope of eternal life, of its being the house of God and a place where people may gather together and in mutual hap- piness give praise unto and worship the Universal Father. Therefore, it must be accepted as a matter of com- mon knowledge that, while the contact with a funeral home may result, in great discomfort in depression and unhappy *592 thoughts, the beholding of the church should gladden the heart and bring pleasant thoughts to the beholder. It may not be the unusual noise, noxious odors, or unsanitary conditions which make the funeral home obnoxious when established in any locality, but cer- tainly one reason why it is so is the fact that in and out of its doors day by day and night by night pass the dead followed by those who mourn and are grief stricken because of the passing of their loved ones, throwing a shadow of sorrow over those who imme- diately surround the location. It is the natural inclina- tion of people to shun as far as is convenient any as- sociation with a funeral home. Few people would choose as a place of residence a location adjoining or near to such an establishment. (4] The conducting of a funeral home in a particular locality may not be detrimental to the health, morals, safety, or welfare of those surrounding and in close proximity to the establishment, but it is well within the province of the city commission to determine that the location of such business will be detrimental to the comfort and convenience of those inhabitants of the city who immediately surround and are adjacent to the place where such business is conducted. One of the best reasoned cases which we have had occasion to study during our consideration of this case is that of the city of Tucson v. Arizona Mortu- ary, 34 Ariz. 495, 272 P. 923, 925. In that case Mr. Justice Lockwood, in the opinion prepared for the court, said: `The leading case in the United States on the general regulation of the location of business establishments is undoubtedly that of Euclid v. Ambler Realty Co., 272 U. S. 365, 54 A. L. R. 1016, 71 L. Ed. 303, 47 S. Ct. 114. In that case the village of Euclid had *593 attempted to regulate the location of practically all 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 classes of business within its limit by what is known as a `general zoning ordinance.' The entire village was divided into some six classes of `use' districts, and these districts were classified rigidly in respect to the use to which buildings erected therein could be put. The Supreme Court of the United States, in dis- cussing the constitutionality of such an ordinance, said: "Building zone laws are of modern origin. They be- gan in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communi- ties. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected asf arbitrary and oppres- sive. Such regulations are sustained, under the com- plex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbi- trary and unreasonable. And in this there is no incon- sistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and differ- ent conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the mean- ing, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform* *545 to the Constitution, of course, must fall." LE *594 In the cases of Zahn v. Board of Public Works, 274 U. S. 325, 47 S. Ct. 594, 71 L. Ed. 1074; Gorieb v. Fox, 274 U. S. 603, 47 S. Ct. 675, 71 L. Ed. 1228, 53 A. L. R. 1210; Nectow v. Cambridge, 277 U. S. 183, 48 S. Ct. 447, 72 L. Ed. 842, the validity of ordinances dividing the city into districts and lim- iting the use of real estate within such districts to certain purposes has been sustained, it being held that, in order for such ordinance to be declared un- constitutional, it must affirmatively appear that the 134 So. 541 101 Fla. 585, 134 So. 541 (Cite as: 101 Fla. 585, 134 So. 541) restriction is clearly arbitrary and unreasonable and has not any substantial relation to the public safety, health, morals, comfort, or general welfare. 16] In the case of City of Tucson v. Arizona Mortu- ary, supra, it is said: `It is also contended that plaintiff had vested rights which were entitled to protection. Although it had purchased the land in question and let the contract for the building before the ordinance was adopted, yet before any material amount of construction had actu- ally been done, it was fully advised that the ordinance was under contemplation. Instead of awaiting the action of the council, it apparently proceeded on the theory either that the ordinance would not be passed, or that, if passed, it was void. Having taken that chance, it may not now be heard to set up any loss to it which arose from its actions after it had knowledge that the ordinance was being considered. But even if plaintiff suffered some damages through things oc- curring before the protest, financial loss, no matter how severe, does not of itself give parties a vested right to continue a business, no matter how long it has been conducted, if the business is one whose lo- cation may be regulated under the police power. In the case of Hadacheck v. Sebastian, 239 U. S. 394, Ann. Cas. 1917B, 927, 60 L. Ed. 348, 36 S. Ct. 143, it appeared that plaintiff had long been engaged in the manufacture of *595 bricks in a certain location in Los Angeles, and that his property for that purpose was worth some $800,000. Later the city passed a zoning ordinance which prohibited the use of the property for brickmaking, and in effect lowered its value to less than $100,000. The court, however, held that his vested interest could not be asserted against the police power, stating: "It is to be remembered that we are dealing with one of the most essential powers of government, -one that is the least limitable. It may, indeed, seem harsh in its exercise, usually is on some individual, but the im- perative necessity for its existence precludes any limitation upon it when not exerted arbitrarily. A vested interest cannot be asserted against it because of conditions once obtaining. Chicago A. R. Co. v. Transbarger, 238 U. S. 67, 78, 59 L. Ed. 1204, 1211, 35 S. Ct. 678. To so hold would preclude develop- ment and fix a city forever in its primitive conditions. There must be progress, and if in its march private interests are in the way, they must yield to the good Affirmed. 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 6 of the community. The logical result of petitioner's contention would seem to be that a city could not be formed or enlarged against the resistance of an occu- pant of the ground, and that if it grows at all it can only grow as the environment of the occupations that aie usually banished to the purlieus.' Italics ours. Atlantic Coast Line R. Co. v. Goldsboro, 232 U. S. 548, 58 L. Ed. 721, 34 S. Ct. 364, and cases cited. `It is of course true that in determining whether the general welfare requires interference with property rights by a zoning ordinance, municipalities should, and presumably generally do, consider, among other things, the loss to property owners by a restriction of the use of their property. This, however, is only one of the considerations on which the final decision is to be based. *596 Doubtless, if the value of the property rights destroyed is so great, as compared with the benefit done, that it clearly appears the ordinance is arbitrary and unreasonable, the courts will interfere, but if there can be any reasonable argument on the question the legislative will must prevail.' We have quoted at some length from the Tucson Case because the writer appears therein to have enunciated the law which must be applied to the in- stant case, and the enunciation therein contained are in line with what was said by this court in the case of State ex rel. Taylor v. City of Jacksonville, supra. The restricted district as established by the ordinance here under consideration is shown to be the desig- nated parts of a certain avenue and a certain boule- vard in the city of Miami, Fla., which avenue and boulevard constitute parts of one of the most traveled and most expensive thoroughfares in the South. The restricted area constitutes a very small portion of the great city of Miami. In this ordinance the city au- thorities have not attempted to confine the right to conduct a mortuary or funeral home within a limited area, but, on the contrary, have by ordinance ex- cluded a very limited area of the city from being used as the location for the operation or conduct of such business. For the reasons stated, it appears that there was no error in the judgment to which writ of error was taken and the same should be affirmed. It is so ordered. Westlaw, 334 So.2d 563 (Cite as: 334 So.2d 563) H Supreme Court of Florida. The TELOPHASE SOCIETY OF FLORIDA, INC., et al., Appellants, v. STATE BOARD OF FUNERAL DIRECTORS AND EMBALMERS, etc., Appellee. Nos. 47187, 47188. Affirmed. June 4, 1976. Rehearing Denied July 29, 1976. State Board of Funeral Directors and Embalmers sought to enjoin business from cremating human re- mains without a license. The District Court of Ap- peals, Second District, 308 So.2d 606, affirmed trial court's grant of injunction and business appealed. The Supreme Court, Boyd, J., held that Florida statutes relating to handling, storing, preparing and final dis- posal of dead human bodies was a constitutional ex- ercise of police power and did not violate substantive due process; that statute defining funeral directing was to be construed in the conjunctive; that evidence sustained determination that the business had pre- pared dead human bodies for cremation by means other than embalming, that the business had disposed of dead human bodies by cremation, and that the business maintained a place for the preparation of dead human bodies; and that the receiving, freezing, storing, and cremation of dead human bodies with or without embalming without a license was a violation of statute. England, J., dissented and filed an opinion in which Overton, C.J., concurred. West Headnotes 111 Constitutional Law 92 €4284 92 Constitutional Law 92XXVII Due Process 92XXVII(G) Particular Issues and Applica- tions 92XXVII(G)12 Trade or Business lations 92k4284 k. Funeral Directors, Ceme- teries, and Related Occupations. Most Cited Cases (Formerly 92k320.5, 92k253.1) Dead Bodies 116 €1 121 Dead Bodies 116 G---'1 u Licenses 238 x'8(1) 141 Licenses 238 €'11(1) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 1 92k4266 Particular Subjects and Regu- 116 Dead Bodies 1 16k1 k. Right of Possession and Disposition in General. Most Cited Cases Statute relating to handling, storing, preparing and final disposal of dead human bodies is a constitu- tional exercise of police power and does not violate substantive due process. U.S.C.A.Const. Amend. 14; West's F.S.A. 470.01 et seq. 116 Dead Bodies 116k1 k. Right of Possession and Disposition in General. Most Cited Cases Public health and welfare requires that dead bodies be disposed of in such a manner as to prevent the spread of disease and other conditions offensive to surviving relatives and friends and the public at large. 238 Licenses 238I For Occupations and Privileges 238k8 Statutory Provisions 238k8(1) k. Construction and Operation in General. Most Cited Cases Legislative intent in adopting statute dealing with funeral directing was to require that human corpses be handled and disposed of by persons highly skilled in the professional care of human remains. West's F.S.A. 470.01(3). 238 Licenses 238I For Occupations and Privileges 238k10 Subjects of License or Tax 238k11 Occupations and Employments in General 334 So.2d 563 (Cite as: 334 So.2d 563) Cases It was legislative intent that statute regulating funeral directing and defining "funeral directing" as the "pro- fession of directing and supervising funerals for profit, or the profession of preparing dead bodies for burial or cremation by means other than embalming, or the disposition or shipping of dead human bodies, or the provision or maintenance of a place for the preparation of dead human bodies" that any one of enumerated activities constitute "funeral directing statute should be construed in the disjunctive. West's F.S.A. 470.01(3). 151 Statutes 361 €197 238k11(1) k. In General. Most Cited 361 Statutes 361 VI Construction and Operation 361V1(A) General Rules of Construction 361k187 Meaning of Language 361k197 k. Conjunctive and Disjunc- tive Words. Most Cited Cases Word "or" when used in a statute is generally to be construed in the disjunctive. j6j Injunction 212 128(8) 212 Injunction 212I1I Actions for Injunctions 212k124 Evidence 212k128 Weight and Sufficiency 212k128(8) k. Public Welfare, Prop- erty, and Rights. Most Cited Cases Evidence, in action for injunction, demonstrated that business operated for the purpose of cremating hu- man remains prepared dead bodies by means other than embalming and without a license in violation of statute regulating funeral directing. West's F.S.A. 470.01 et seq. in Licenses 238 x'11(1) 238 Licenses 238I For Occupations and Privileges 238k10 Subjects of License or Tax 238k11 Occupations and Employments in General 23 81(11(1) k. In General. Most Cited Cases The receiving, freezing, storing, and cremation of Page 2 dead bodies, with or without embalming, without complying with statutes governing profession of fu- neral directing is a violation of statute. West's F.S.A. 470.01 et seq., 470.01(3). 181 Injunction 212 €128(8) Jj j Licenses 238 0 General BOYD, Justice. 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 212 Injunction 2121I1 Actions for Injunctions 2121(124 Evidence 212k128 Weight and Sufficiency 212k128(8) k. Public Welfare, Prop- erty, and Rights. Most Cited Cases Evidence, in action for injunction, sustained finding that business which operated for the purpose of cre- mating human remains was disposing of dead human bodies and was subject to regulations of statute deal- ing with profession of funeral directing. West's F.S.A. 470.01 et seq. 238 Licenses 2381 For Occupations and Privileges 238k10 Subjects of License or Tax 2381(11 Occupations and Employments in 238k11(1) k. In General. Most Cited Cases Business which operated for purpose of cremating human bodies maintained a building in which dead bodies were received, refrigerated for 48 hours, and then cremated on the premises, with the remains de- livered to the families or disposed of by scattering maintained a place for preparation of dead human bodies and thus fell within scope of statute governing the profession of funeral directing. West's F.S.A. 470.01 et seq. *565 Anthony S. Battaglia and Michael L. Hastings of Battaglia, Parker, Ross, Parker Stolba, and Wil- liam H. Fleece of Fleece, Rhoades Werly, St. Pe- tersburg,'for appellants. Robert L. Shevin, Atty. Gen., and James D. Whis- enand and Donald D. Conn, Asst. Attys. Gen., for appellee. In this proceeding we are reviewing consolidated 334 So.2d 563 (Cite as: 334 So.2d 563) appeals from the Second District Court of Appeal, shown at 308 So.2d 606. holding Chapter 470, Flor- ida Statutes, constitutional as applied to Appellants, construing portions of the statute and affirming the trial court's order enjoining Appellants fi continu- ing operation of their cremation services. Appellants operate a business for the purpose of cre- mating human remains. Their physical plant consists of a refrigeration room and a cremation furnace. Hu- man bodies are delivered to them by a professional livery service. Once delivered, the bodies are placed in cardboard liners and refrigerated by Appellants for forty-eight hours, the time necessary to gain approval of the Board of Health. During the forty-eight hours Appellants process paper work relating to the crema- tion, including the Death Certificate, Cremation Re- quest, Cremation Permit, and Social Security and Veteran Benefit Forms. After completion of the paper work and approval by the Board of Health the liners containing the bodies, unembalmed and without cos- metics, are placed in the furnace and reduced to cre- mains. The cremains are often transferred to urns supplied by Appellants. Occasionally the cremains are scattered over a garden or at sea by Appellants, or they may be given to the family of the deceased and used in a memorial service unconnected with Appel- lants' business. The State sought to enjoin Appellants from operating their business because they were engaging in the pro- fession of funeral directing without a license from the State Board of Funeral Directors and Embalmers in violation of Section 470.21, Florida Statutes. Appel- lants answered the Complaint for Injunction by claiming that their operation did not meet the defini- tion of `funeral directing' as provided in Section 470.01(3), Florida Statutes: `The tern `funeral directing,' as used in this chapter, shall be construed to mean the profession of directing or supervising funerals for profit, or the profession of preparing dead human bodies for burial or cremation by means other than embalming, or the disposition or shipping of dead human bodies, or the provision or maintenance of a place for the preparation of dead human bodies.' The State moved for summary judgment. The trial court contrued Section 470.01(3), Florida 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 Statutes, in the disjunctive, holding the performance of any of the enumerated activities to constitute 'fu- neral directing.' Finding that Appellants, without the required lincense: provided and maintained a place for preparation of dead human bodies; prepared dead human bodies for cremation by means other than embalming; and disposed of dead human bodies by cremation. The court entered partial summary judg- ment and enjoined Appellants from the practice of `funeral directing.' Constitutional issues concerning the `state -as- applied' were raised, as well as issues of the trial court's construction of Chapter 470, Florida Statutes, by assignments of error, before District Court of Ap- peal, Second District. *566 The District Court of Appeal, Second District, found both that the statute was constitutionally ap- plied and that the trial court's construction of the stat- ute was correct. Consequently the court affirmed the order granting partial summary judgment. Since the partial summary judgment fully disposed of the case, the court treated it as a plenary summary judgment and remanded the cause with instruction to enter a final judgment enjoining Appellants' business. Appellants appealed the District Court's decision to this Court and also petitioned this Court for a writ of certiorari. Certiorari was denied, but appellate juris- diction was accepted. Appellants present five issues for our consideration: 1 1 1. Whether the application of Chapter 470, Flor- ida Statutes, is an unlawful exercise of the police power constituting a violation of substantive due process as guaranteed by the Fourteenth Amendment. It is our view that Chapter 470, Florida Statutes, re- lating to handling, storing, preparing and final dis- posal of dead human bodies is a constitutional exer- cise of police power and does not violate substantive due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States. State Board of Funeral Directors and Embalmers v. Cooksey 147 Fla. 788 3 So.2d 502 (1941) lists eight areas of public concern which provide a basis for regulation of funeral directing and embalming: 334 So.2d 563 (Cite as: 334 So.2d 563) (I) Care of dead human bodies; (2) Embalming; (3) Transportation of dead human bodies; (4) Location of business and its equipment; (5) Sanitation; (6) Dan- ger of infection or contagion from disease; (7) Ob- taining required certificates and permits before act- ing; and (8) Orderly conduct of funerals and burials. 121 The public health and welfare requires that dead bodies be disposed of in such manner as to prevent spread of disease and other conditions offensive to surviving relatives and friends and the public at large. `The legislature has a valid interest in safeguarding against the undue commercialization and exploitation of death and its various trappings.' State Board of Funeral Directors and Embalmers v. National Chap- els, Inc., 279 So.2d 677 (Fla.1971). Without the application of Chapter 470, Florida Stat- utes, to Appellants there would be no governmental sanctions available against Appellants for the most shocking and negligent handling of human corpses. On the contrary, misconduct by a licensed funeral director would likely end his professional career. It is clear to us that Appellants practice `funeral di- recting' as defined by Section 470.01(3) and that the Legislature intended that those operating cremato- ries comply with Chapter 470, Florida Statutes. 2. Whether the District Court erred in determining that Section 470.01(3), Florida Statutes, must be con- strued to read in the disjunctive and that the perform- ance of any of the enumerated activities in Section 470.01(3), Florida Statutes, would place one within the purview of said statute. [31[41[51 The legislative intent is to require that hu- man corpses be handled and disposed of by persons highly skilled in the professional care of human re- mains. This need increases as population density in- creases. Informal disposition of human corpses has been common in the past, but is generally unaccept- able today. It is the legislative intent that performing any of the enumerated activities in Section 470.01(3), Florida Statutes, constitutes `funeral directing.' The District Court correctly held that Section 470.01(3), Florida Statutes, be construed in the disjunctive. `Or' when used in a statute is generally to be construed in the disjunctive. *567Pompano Horse Club, Inc. v. State, 93 Fla. 415, 111 So. 801 (1927). 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 161171 3. Whether the District Court erred in affirm- ing a partial summary judgment and determining that Appellants have prepared dead human bodies for cremation by means other than embalming. The record shows Appellants prepared dead bodies by means other than embalming. The receiving, re- frigerating, storing and cremating dead bodies, with or without embalming, without complying with Chapter 470, Florida Statutes, is a violation of the statute. The District Court of Appeal, Second Dis- trict, was correct. [8] 4. Whether the District Court erred in affirming a partial summary judgment by concluding that the Appellants disposed of dead human bodies by crema- tion. The District Court of Appeal was correct in affirming the trial court's partial summary judgment finding that Appellants were disposing of dead human bod- ies. 191 5. Whether Appellants do provide or maintain a place for the preparation of dead human bodies. The record shows Appellants maintain a building in which dead bodies are received, refrigerated for forty -eight hours and then cremated on the premises, with the cremains delivered to the families or dis- posed of by scattering. The District Court of Appeal, Second District, was correct in its finding. Accordingly, the decision of the District Court of Appeal, Second District, herein reviewed is affirmed. It is so ordered. ROBERTS, ADKINS, SUNDBERG and HATCHETT, JJ., concur. ENGLAND, J., dissents with an opinion. OVERTON, C.J., dissents and concurs with ENGLAND, J. ENGLAND, Justice (dissenting). While I fully concur with the majority's conclusion that chapter 470 is a legitimate exercise of the state's police power, I must dissent from its conclusion that 334 So.2d 563 (Cite as: 334 So.2d 563) petitioners here are subject to that regulatory scheme. Ao far as is relevant here, Section 470.21, Florida Statutes (1975), makes it unlawful to engage in the profession of `funeral directing', or to hold oneself out as a So far as is relevant here, Section 470.21, 470.08(2) states that no applicant will be licensed as a `funeral director' unless he has all of the qualifications for an `embalmer', as set out in Section 470.08(1). The ef- fect of these provisions is to create a closed trade association for all aspects of the funeral business in Florida, to which only trained embalmers may be admitted. It is undisputed on the record before us that petition- ers do not embalm and have no need to do so. The service they provide the public meets all require- ments imposed by the Board of Health, yet it avoids the typical (and more costly) funeral which has be- come a part of our culture. By requiring petitioners to be licensed, and therefore to hire or be `embalmers', the majority has placed its approval on a purely anti- competitive statute by accepting a superficial appeal to the `police power'. Given that petitioners' premises are regularly inspected and approved by various health and sanitation authorities, I am unwilling to say, as the majority has done, that the police power may be invoked to require the employment or pres- ence of an embalmer for the performance of an activ- ity enumerated in Section 470.01(3) which is unre- lated to public health concerns.fFN1] FN 1. Why should those who supervise fu- nerals for profit or those who ship dead hu- man bodies be embalmers? Since when have priests or rabbis, airlines, ambulances or railroads, been required to be licensed as embalmers? Logically Section 470.01(3) can only be read as cumulative, not in the disjunctive, and when read in that fashion the state's legitimate interests become im- mediately apparent. *568 I prefer to leave some vitality in Article 1, Sec- tion 2 of the Florida Constitution and the 14th Amendment to the United States Constitution. The right to pursue an occupation which is not within the legitimate range of the police power to prohibit is a `liberty' worth preserving. Arbitrary licensing re- 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 quirements which preserve a trade or professional monopoly for no discernible public purpose should not be sanctioned by the courts. World Fair Freaks and Attractions, Inc. v. Hodges, 267 So.2d 817 (Fla.1972); State ex rel. Hosack v. Yocum, 136 Fla. 246, 186 So. 448 (1939); State ex rel. Fulton v. Ives, 123 Fla. 401, 167 So. 394 (1936); Riley v. Sweat, 110 Fla. 362, 149 So. 48 (1933); State ex rel. Davis v. Rose, 97 Fla. 710, 122 So. 225 (1929). Also see, Carbo, Inc. v. Meiklejohn, 217 So.2d 159, 160 (Fla.App. st 1968), Cert. denied, 225 So.2d 533 (Fla.1969). OVERTON, C.J., concurs. Fla. 1976. Telophase Soc. of Florida, Inc. v. State Bd. of Fu- neral Directors and Embalmers 334 So.2d 563 END OF DOCUMENT Westlavv 164 A. 220 164 Md. 146, 164 A. 220 (Cite as: 164 Md. 146, 164 A. 220) M Court of Appeals of Maryland. JACK LEWIS, INC., v. MAYOR AND CITY COUNCIL OF BALTIMORE ET AL. No. 98. Jan. 19, 1933. Dissenting Opinion Feb. 10, 1933. Appeal from Baltimore City Court; Samuel K. Den- nis, Judge. Proceeding by Jack Lewis, Inc., to review a decision of the Board of Zoning Appeals, opposed by the Mayor and City Council of Baltimore and others. From an order dismissing the appeal, petitioner ap- peals. Affirmed. PARKE, J., dissenting in part. West Headnotes Evidence 157 €'14 157 Evidence 1571 Judicial Notice 157k14 k. Facts relating to human life, health, habits, and acts. Most Cited Cases It is common knowledge that person seeking to buy home would not likely select one adjacent to under- taking establishment. Evidence 157 C '18 157 Evidence 157I Judicial Notice 157k18 k. Weights, measures, and values. Most Cited Cases It is common knowledge that value of adjacent resi- dential property is diminished by undertaking estab- lishment. 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Municipal Corporations 268 621 Page 1 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k621 k. Permits. Most Cited Cases Funeral home, or undertaking establishment, is not public or private nuisance per se, considered merely with reference to its incidents and not its location. Zoning and Planning 414 0 1101 414 Zoning and Planning 414II Validity of Zoning Regulations 4141I(B) Particular Matters 414k1101 k. Mortuaries, cemeteries, and mausoleums. Most Cited Cases (Formerly 414k80, 268k625) Zoning ordinance provision excluding from residence district undertaking establishments not already exist- ing held valid and not arbitrary or unreasonable. Acts 1927, c. 705. Zoning and Planning 4141119 414 Zoning and Planning 414II Validity of Zoning Regulations 4141I(B) Particular Matters 414k1119 k. Variances and exceptions. Most Cited Cases (Formerly 414k87) Grant of power to vary application of zoning ordi- nance, to be valid, must be so defined and limited that both citizen and board may know with certainty their rights, privileges, and power under ordinance. Zoning and Planning 414 €x--'1119 414 Zoning and Planning 41411 Validity of Zoning Regulations 41411(B) Particular Matters 414k1119 k. Variances and exceptions. Most Cited Cases (Formerly 414k87) Provisions of zoning ordinance empowering board to vary application of ordinance in cases of "practical 164 A. 220 164 Md. 146, 164 A. 220 (Cite as: 164 Md. 146, 164 A. 220) difficulties or unnecessary hardships" held invalid as too general and indefinite. Acts 1927, c. 705. Zoning and Planning 414 €1265 414 Zoning and Planning 414V Construction, Operation, and Effect 414V(C) Uses and Use Districts 414V(C)1 In General 414k1265 k. Mortuaries, cemeteries, and mausoleums. Most Cited Cases (Formerly 414k278.1, 414k278) To justify exclusion of undertaking establishment from residence district, it need not be nuisance per se, but it is sufficient if such establishment would unrea- sonably and adversely affect health or comfort of persons, other than applicant, residing in district. States 360=21(2) 360 States 36011 Government and Officers 360k21 Government Powers 360k21(2) k. Police power. Most Cited Cases (Formerly 92k1066, 92k81) Restrictions imposed on private property in exercise of state's police power must be for reasonable protec- tion of public health, morals, safety, or welfare. Municipal Corporations 268 0-'600 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k600 k. Use of property in general. Most Cited Cases (Formerly 92k1066, 92k81) Whether restrictions on private property in exercise of police power are reasonable depend on facts and conditions out of which question arises rather than on application of general principles. Municipal Corporations 268 0 '589 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k589 k. Nature and scope of power of municipality. Most Cited Cases (Formerly 92k1066, 92k81) Due consideration for public safety and welfare in imposing restrictions on private property in exercise of police power may properly extend to maintenance of conditions under which people may live and work in reasonable comfort and without unnecessary im- pairment of physical and mental vigor. Zoning and Planning 414 C '1039 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 414 Zoning and Planning 414I1 Validity of Zoning Regulations 41411(A) In General 414k1039 k. Police power, relation to. Most Cited Cases (Formerly 414k68, 268k600) Municipal corporation must act impartially in directly exercising police power, and restrictions on use of private property must be reasonably necessary to public welfare. Municipal Corporations 268 €111(4) 268 Municipal Corporations 268IV Proceedings of Council or Other Govern- ing Body 268IV(B) Ordinances and By -Laws in Gen- eral 268k111 Validity in General 268k1 11(4) k. Effect of partial invalid- ity. Most Cited Cases Invalidity of provision authorizing board to vary zon- ing ordinance in case of unnecessary hardship held not to invalidate ordinance as whole. Acts 1927, c. 705. Municipal Corporations 268 >589 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k589 k. Nature and scope of power of municipality. Most Cited Cases Validity of acts of municipal officers under police power may depend on whether they are vested with uncontrolled discretion or with ministerial and ad- ministrative functions subject to definite rules. 164 A. 220 164 Md. 146, 164 A. 220 (Cite as: 164 Md. 146, 164 A. 220) *221 Argued before BOND, C. J., and PATTISON, URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.J. Purdon Wright, of Baltimore, for ap- pellant. Ernest F. Fadum, Asst. City Sol., of Baltimore (R. E. Lee Marshall, City Sol., of Baltimore, on the brief), for appellees. William L. Marbury, of Baltimore, amicus curim. OFFUTT, J. Acting under the authority conferred by chapter 705 of the Acts of 1927, the mayor and city council of Baltimore on March 30, 1931, adopted Ordinance No. 1247, known as the zoning ordinance, the pur- pose of which is to regulate and restrict "the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occu- pied, the size of yards and other open spaces, the density of population and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes." Under that ordinance the city is divided and classified in height, use, and area districts, the outlines of which are shown on maps or plats adopted with the ordinance as a part of it. The use districts are classified as industrial, second commercial, first commercial, and residential. Among other things, it provides that no undertaking establishment, business or funeral home shall be lo- cated in a residential use district, paragraph 8, sub- section 32, but does not prevent the continuance of such a use if legally existing at its date, section 11. The building engineer, the first official charged with the enforcement of the ordinance, is forbidden to is- sue any permit for the construction, reconstruction, extension, repair, or alteration of any building or part thereof unless the plans and specifications "and in- tended use of such building" conform to the ordi- nance, and in case of any prohibited use he is author- ized in addition to such other remedies as he may have to institute an appropriate action or proceeding to *222 prevent or abate the same, section 31. From any decision of the building engineer there may be an appeal to the board of zoning appeals by any person aggrieved, section 32, which shall have the following powers: 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 "1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the building engineer in the enforcement of this ordinance. 2. To hear and decide special exceptions to the terms of this ordinance upon which the board is required to pass under this ordinance. 3. To authorize upon appeal in specific cases such variance from the terms of this ordinance as is neces- sary to avoid arbitrariness and so that the spirit of the ordinance shall be observed and substantial justice done." And by section 33(b) it may "grant a permit when there are any practical difficulties or unnecessary hardships in the way of carrying out the strict letter of any of the provisions of this ordinance." On January 7, 1932, Jack Lewis, Inc., an undertaker, filed with the building engineer of Baltimore city an application for a permit to make certain "alterations or repairs" in a private home known as 1804 Eutaw Place in said city to adapt it to use as a "funeral home." The proposed location is in territory shown on the use district map adopted as a part of the zoning ordinance as a "residential use district," and the ap- plication was refused on the ground that the proposed use would violate section 8 of that ordinance. That decision was affirmed on appeal by the board of zon- ing appeals, and thereupon the applicant, under sec- tion 35 of the ordinance, filed a petition in the Balti- more city court asking that court to review the deci- sion of the zoning board. An order was accordingly signed, directing the board of zoning appeals to transmit to that court all documents, records, papers, plats, and memoranda relating to the case. The ground alleged in the petition for the relief prayed was that the refusal of the permit deprived the peti- tioner of his property without due process of law, and amounted to a taking of the same without compensa- tion, that it denied it the equal protection of the law, that it was illegal, arbitrary, unreasonable, oppres- sive, discriminatory, and confiscatory. The respon- dents in their answer or return denied the existence of the grounds for relief alleged in the petition, and the court, after a hearing, dismissed the appeal. From that order the applicant appealed to this court. 164 A. 220 164 Md. 146, 164 A. 220 (Cite as: 164 Md. 146, 164 A. 220) Neither in the pleadings, nor in the written or oral arguments in this court is there any objection to the constitutionality of the use provisions of the ordi- nance as a whole, nor to the propriety or legality of the classification scheme or plan indicated on the "use district map," and adopted as a part of the ordi- nance itself, but the grounds of complaint are (1) that, conceding the legality of the ordinance and such clas- sification, the action of the mayor and city council in excluding funeral establishments from residential use districts is arbitrary, unreasonable, and not justified by any legitimate exercise of the police power, and (2) that the ordinance unlawfully delegates to admin- istrative officials the police power of the state in that it permits them at their arbitrary discretion to grant or withhold permits such as that for which the applicant applied. Considering these objections in inverse order, it is impossible to distinguish the delegation of power found in section 32, subsection (g -3), and section 33, subsection (b) from that which this court condemned as unlawful in Goldman v. Crowther, 147 Md. 282, 128 A. 50, 38 A. L. R. 1455. The board of zoning appeals is a mere administrative agency created and empowered to execute the provisions of the ordi- nance which the mayor and city council as its pri- mary delegate has in the exercise of the state's police power adopted. For as it was said in Mayor and City Council of Pocomoke City v. Standard Oil Co., 162 Md. 377, 159 A. 902, 905: "Where the power is exer- cised directly by the agency or delegate the validity of acts done under its authority is determined by whether its acts in a particular case are upon the facts of such case reasonably necessary to the protection of the public welfare, but, when any part of it is further delegated by the municipality to subordinate officials, the validity of their acts under it may depend upon whether the grant or delegation to such officials vested them with a complete and uncontrolled discre- tion, or, whether it vested them with mere ministerial and administrative functions to be exercised in obedi- ence to and in conformity with definite rules, guides, and standards. In the former case the right to use the power in support of an act pretended to be done un- der its authority is denied, not because the act is not reasonably necessary to the public welfare, but be- cause the delegation of power is too broad and in- definite, while in the second case ordinarily it is per- mitted, and the sole inquiry is whether acts done un- der it are reasonably necessary to the public welfare." Under these particular provisions the board of zoning 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 appeals is in effect given the power to set aside or annul the ordinance as to any given case with no more definite standard or guide than that such action may only be taken when there are "practical difficul- ties or unnecessary hardships" in the way of carrying out its strict letter, or where necessary to "avoid arbi- trariness and so that the spirit of the ordinance shall be observed and substantial justice done." It is, of course, implicit in other provisions of the ordinance that *223 the board is in the discharge of its duties to avoid arbitrariness, to do substantial justice, and not to inflict unnecessary hardship, but under our system of written Constitutions it is essential that they ac- complish those highly desirable objects in conformity with the restrictions, rules, and limitations which the law itself provides and not in disregard of them. The grant of a power such as that conferred by those pro- visions to an administrative agency, such as the board of zoning appeals, must, therefore, to be valid, be so defined and limited that both the citizen and the board may know with certainty what their rights, privileges, and powers under it are. If there are to be departures from its general plan or scheme, in order to supply the necessary elasticity to its efficient op- eration, they must be protected by such clear and defmite guides as those afforded by sections 12, 13, 27, and 29, and may not be left to the unguided dis- cretion of administrative officials. For such phrases as "practical difficulties," "unnecessary hardships," "substantial justice," are too general and indefinite to furnish such a guide, or to mark the limits or control the exercise of the power conferred by those provi- sions upon the board. But it is not apparent how the illegality of those par- ticular provisions helps the appellant in this case. They are not in any way essential to, nor does their illegality affect the ordinance as a whole, and what it complains of in this case, is that the discretion con- ferred upon the board to set aside the ordinance in cases where in their judgment such action would be justified, was not exercised in this case to set it aside as to it. That is it says at the same time that the dele- gation of power is unlawful and cannot be exercised at all, and that it should have been exercised to grant to it a permit which other provisions of the ordinance prohibited. So that the final and substantial question in the case is a very narrow one, whether that provision of the ordinance which excludes funeral establishments, 164 A.220 164 Md. 146, 164 A. 220 (Cite as: 164 Md. 146, 164 A. 220) other than those already existing, from a residential use zone is unlawful. In dealing with that question we need not consider the constitutionality of the general provisions of the ordinance which deal with residential uses, but only the specific provision which excludes from residen- tial districts funeral establishments, for, as stated, appellant challenges no other part of it except section 32, subsection (g -3), and section 33, subsection (b), which we have already considered, supra. In dealing with the question it cannot be considered as though it were in a vacuum detached and apart from the facts and circumstances which give it life, reality, and color, but it must necessarily be consid- ered in connection with such facts and circumstances for they alone can determine whether it is a valid exercise of the police power. It is intimated in appel- lees' brief that the case of Euclid, Ohio, Village v. Ambler Realty Company, 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016, has in some manner overruled the principles announced in Gold- man v. Crowther, supra, but that is not so. The Goldman Case was based upon the Constitution of this state, which has not been amended in any manner so as to affect that decision, and it is, of course, unaf- fected by the decision in the Euclid Case which dealt with the Federal Constitution and not with the Con- stitution of this state. As stated in the case of Gold- man v. Crowther, restrictions imposed by the state upon private property in the exercise of its police power can only be justified where they are required for the reasonable protection of the public health, morals, safety, or welfare, but where any such neces- sity exists, the power may be invoked to sustain them. Mayor and Council of Pocomoke City v. Stan- dard Oil Company, supra. Whether a restriction in a given case is reasonable or not depends not so much upon the application of gen- eral principles or rules as upon the facts and condi- tions out of which the question arises. The first as well as the last law of nature is self preservation, and, as laws are made for men and not men for laws, they must, if the law is to be a living thing, be construed with a due regard for the wisdom of that homely and changeless truth. With the high tension of the indus- trial civilization of today, the massing of vast num- bers of people in small areas, and the steady progress of sanitary science, it has become apparent that the 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 common safety and welfare require in congested cen- ters of population many restrictions on the use of property which could not be justified and would not be tolerated where no such congestion exists. Nor does a due consideration for the public safety and welfare necessarily stop with protection against the spread of disease, the ravages of fire, the hazards of traffic, or the predatory activities of the lawless, but it may properly extend to the maintenance of conditions under which people may live and work in reasonable comfort and without unnecessary impairment of their physical and mental vigor. To afford that protection it is obvious and inevitable that the use of property in a densely populated city should be subjected to restric- tions which in individual cases may be burdensome and oppressive but which are essential if the whole body of the people are to live in safety and with some measure of comfort. And yet the value of property lies always in the use that may be made of it, and as freedom of use narrows its value may lessen. But the same *224 organic law which protects the owner of property in some remote sparsely settled rural locality in his right to use it as he will applies with equal force to the owner of property in a densely populated city. Consequently there has been in the establish- ment and the enforcement of restrictions on the use of property in cities a constant struggle between "prece- dent and progress," between the letter and the spirit of the law, and between the rights of property and the rights of men. The burden which that struggle has placed on the courts is not new, for some twenty years ago Frederick R. Coudert said: "The courts have indeed to fmd a middle way between precedent and progress or certainty and justice. No infallible method can be found to avoid this dilemma. Doubt- less some courts have gone to one extreme, others to the other. I can only suggest that constitutional deci- sions be fairly and fully discussed and that where the highest courts cannot sustain legislation by fair rea- soning and with due regard for that settled precedent without which law is not differentiated from anarchy, then proper amendment be made to the Constitution." Certainty and Justice, page 33. But while the lan- guage of the Constitution does not change, it may nevertheless mean one thing when applied to one set of facts, and an entirely different and contrary thing when applied to another. To prevent the owner of a farm in the country from keeping a barnyard or a pigpen thereon would probably be held to deprive him of his property without compensation, while to prevent the owner of land in the residential district of a city from maintaining similar conveniences there 164 A. 220 164 Md. 146, 164 A. 220 (Cite as: 164 Md. 146, 164 A. 220) would not be open to the same objection. To prevent the owner of property in the shopping district of a city where great numbers of people congregate from using it as a storage warehouse for high explosives, would not deprive him of his property without com- pensation, while to prevent an owner of land remote from any habitation might have that effect. So that in deciding whether denying to the owner of property in a residential use district the right to use it as a "fu- neral home," which appears to be a euphemism for an undertaking establishment, is so unreasonable as to amount to a taking of his property without due proc- ess of law and without compensation, the restriction must be considered in connection with the conditions to which it applies. As stated above the right of the appellees to establish residential use districts is not questioned by the appellant, but his contention is that the use of his property as an undertaking establish- ment is not so inconsistent with the residential char- acter of the district in which it is located, as to justify the denial of his right to so use it. But the state acting through its delegate the mayor and city council of Baltimore has said otherwise, and upon the facts, it cannot be said as a matter of law that its conclusion was either unreasonable or arbitrary. Such an establishment considered merely with refer- ence to its incidents, and not its location, is neither a public nor a private nuisance, per se, but to justify its exclusion it need not be either, since such action would be justified if in fact the proposed use would unreasonably and adversely affect the health or com- fort of persons other than the applicant residing in that district. From the character of the applicant, it is highly prob- able that the business will be conducted in the least offensive and most unobjectionable manner possible, but even so, it will nevertheless be an undertaking business. That such a use may adversely affect per- sons residing in the immediate neighborhood of the proposed establishment in the comfortable enjoyment of their homes and lessen the value thereof for resi- dential purposes is neither an arbitrary nor an unnatu- ral presumption, but on the contrary it is an inevitable inference from common knowledge of the nature and the minds of men. Because of their mortal nature, the certainty of death and the uncertainty of the time thereof, there is in the human race an instinctive hor- ror of death, and upon the intuitive desire to postpone or avoid it rests the first great law of nature. Much of 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 6 the world's wealth is spent in prolonging life, the se- verest punishment known to the law is to be deprived of it, and few there are who when the last call comes "leave the warm precincts of the cheerful day nor cast one longing lingering look behind." Death to the or- dinary man is associated always with sorrow and pain, with the loss of those nearest and dearest to him, with severed friendships that may not be re- newed, and with the dissolution of ties of love and affection which sweetened his life, and cheered and consoled him in misfortune and adversity. Conse- quently to one of normal sensibilities the presence of dead bodies, the gloomy trappings of funereal woe, the pall, the hearse, the shroud, and the casket, the knowledge that within a few feet of him bodies are being prepared for sepulture, the unending coming and going of funeral processions, must have a de- pressing and disturbing effect wholly inconsistent with the healing repose and respite from work and worry which whatever its character is usually associ- ated with the atmosphere of the home. And in dealing with the question in issue here, such factors are quite as much entitled to consideration as those which have a more direct, tangible, and physical effect, for it cannot now be doubted that physical deterioration may and probably will result from conditions which constantly depress and disturb *225 the mind, nor as was pointed out in City of Baltimore v. Fairfield Imp. Co., 87 Md. 364 et seq., 39 A. 1081, 1084, 40 L. R. A. 494, 67 Am. St. Rep. 344, is it essential that the sensations aroused by such condition be based upon demonstrable facts. In that case Judge McSherry for the court, referring to the establishment of a hospital for the treatment of leprosy, said: "There are modern theories and opinions of medical experts that the con- tagion is remote, and by no means dangerous; but the popular belief of its perils, founded on the Biblical narrative, on the stringent provisions of the Mosaic law that show how dreadful were its ravages, and how great the terror which it excited, and an almost universal sentiment, the result of a common concur- rence of thought for centuries, cannot, in this day, be shaken or dispelled by mere scientific asseveration or conjecture. It is not, in this case, so much a mere aca- demic inquiry as to whether the disease is in fact highly or remotely contagious, but the question is whether viewed as it is by the people generally, its introduction into a neighborhood is calculated to do a serious injury to the property of the plaintiff there located." Counsel for appellant in a very careful and useful 164 A. 220 164 Md. 146, 164 A. 220 (Cite as: 164 Md. 146, 164 A. 220) brief has stressed with much force the contention that the business in itself is lawful and carries no neces- sary menace of contagion or disease; that it will not affect the physical health or comfort of those in its neighborhood; and that its effect on their minds is of such an insubstantial and unreal character as not to afford a legal basis for its exclusion from a residential neighborhood. But while there are cases which sup- port that view, the weight of authority, and certainly the trend of recent cases is the other way. In Saier v. Joy, 198 Mich. 295, 164 N. W. 507, 508, L. R. A. 1918A, 825, there was a bill to enjoin the establishment of an undertaking establishment in a residential neighborhood. The court found upon the evidence that the value of plaintiffs property would be decreased, that there would be no danger from disease but that it was not certain that odors arising from the use of chemicals might not escape. In deal- ing with those facts it said: "We think it requires no deep research in psychology to reach the conclusion that a constant reminder of death has a depressing influence upon the normal person. Cheerful surround- ings are conducive to recovery for one suffering from disease, and cheerful surroundings are conducive to the maintenance of vigorous health in the normal person. Mental depression, horror, and dread lower the vitality, rendering one more susceptible to dis- ease, and reduce the power of resistance. We cannot overlook the right to engage in a lawful trade, nor the fact that the conduct of the undertaking busi- ness is not only lawful, but highly necessary, nor that it is not a nuisance per se. Nor can we overlook the right of the citizen to be protected in his home, and his right to the enjoyment thereof that repose and comfort that are inherently his. The question here is not the restraining of defendants' business, but the restraint of its intrusion into a long-established and strictly residential district." It held that, upon the maxim "sic utere tuo ut alienum non laedas," the in- junction should issue. In Osborn v. Shreveport, 143 La. 932, 79 So. 542, 548, 3 A. L. R. 955, where the question was whether the municipality could prevent the establishment of an undertaking establishment under an ordinance authorizing it to prevent the es- tablishment in certain localities of places where a nauseous or unwholesome business might be carried on it was said: "But, even if that were not the case, and there were no ordinance upon the subject, we can, at present, see no sufficient reason why the resi- dents of the threatened district should not be pro- tected from plaintiffs proposed invasion, under the 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 7 general provisions of law which safeguards the citi- zen, in his home life, not only against nuisances per se, but against occupations which become nuisances by reason of the inappropriateness of the places in which they are conducted." The same result was reached in Rowland v. Miller, 139 N. Y. 93, 34 N. E. 765, 22 L. R. A. 182, where it was held that an under- taking establishment violated a covenant against the establishment of an injurious or offensive business. In Densmore v. Evergreen Camp, 61 Wash. 230, 112 P. 255, 31 L. R. A. (N. S.) 608. Ann. Cas. 1912B, 1206, where it was proposed to locate an undertaking establishment in a residential neighborhood, the court, conceding that it was not a nuisance per se, said: "In this age, when population is becoming more and more congested in the cities, it would be mani- festly unfair to grant injunctive relief only in those cases where the object attacked was a nuisance per se, when other circumstances or conditions intervene which might tend to destroy the repose and comfort of a part of a city or town given over to homes." Af- ter referring to Westcott v. Middleton, 43 N. J. Eq. 478, 11 A. 490, contra, it cited in support of its con- clusion that the use might be enjoined, this quotation from Chancellor Zabriskie in Cleveland v. Citizens' Gaslight Co., 20 N. J. Eq. 201: "The discomforts must be physical, not such as depend upon taste or imagination. But whatever is offensive physically to the senses, and by such offensiveness makes life un- comfortable, is a nuisance; and it is not the less so, because there may be persons whose habits and oc- cupations have brought them to endure the same an- noyances without discomfort. Other persons or classes of persons whose senses have not been so hardened, and who, by their education and habits of life, retain the sensitiveness of their natural organiza- tion, are *226 entitled to enjoy life in comfort as they are constituted." In dealing with a similar question it was said in Cunningham v. Miller, 178 Wis. 220, 189 N. W. 531, 534, 23 A. L. R. 743: "The great weight of authorities in this country is to the effect that the establishment and operation of an undertaking and embalming business in a residential section under such circumstances constitutes a nuisance. Saier v. Joy, 198 Mich. 295, L. R. A. 1918A. 825, 164 N. W. 507 Densmore v. Evergreen Camp, 61 Wash. 230, 31 L. R. A. (N. S.) 608, 112 P. 255, Ann. Cas. 1912B, 1206; Stotler v. Rochelle, 83 Kan. 86, 29 L. R. A. (N. S.) 49, 109 P. 788; Barnes v. Hathorn, 54 Me. 124; Cleveland v. Citizens' Gaslight Co., 20 N. J. Eq. 201; Barth v. Christian Psychopathic Hospital Assn, 196 Mich. 642, 163 N. W. 62; Middlestadt v. 164 A. 220 164 Md. 146, 164 A. 220 (Cite as: 164 Md. 146, 164 A. 220) Waupaca Starch Potato Co., 93 Wis. 1, 66 N. W. 713." In Tureman v. Ketterlin, 304 Mo. 221, 263 S. W. 202, 204, 43 A. L. R. 1158, the court announced the result of the consideration given the question in a number of recent and well- considered cases in this language: "The business of preparing dead bodies for burial is not only lawful but indispensable. It may become a nuisance, however, from the manner in which it is conducted or because of the place at which it is maintained, and it is very generally held to be such when it intrudes itself into a strictly residen- tial district. Beisel v. Crosby, 104 Neb. 643, 178 N. W. 272; Densmore v. Evergreen Camp, 61 Wash. 230, 31 L. R. A. (N. S.) 608, 112 P. 255, Ann. Cas. 1912B, 1206; Saier v. Joy, 198 Mich. 295, L. R. A. 1918A, 825, 164 N. W. 507; Meauher v. Kessler, 147 Minn. 182, 179 N. W. 732; Osborn v. Shreveport, 143 La. 932, 3 A. L. R. 955, 79 So. 542; Goodrich v. Starrett, 108 Wash. 437, 184 P. 220; Cunningham v. Miller, 178 Wis. 22, 23 A. L. R. 739, 189 N. W. 531. The essential ground of such holding is that the main- tenance of an undertaking establishment in a resi- dence district tends to destroy the comfort, well be- ing, and the property rights of the owners of homes therein." In this case it appears from the record that the district in which the proposed establishment is to be located is a long established residential neighborhood in which the houses are contiguous on a city street, and that in the opinion of persons residing in that neighborhood, many of whom are intelligent persons of recognized standing in the professional and com- mercial life of the city, it will lessen the value of their homes, and render them less desirable for residential purposes. It cannot be assumed that these witnesses are abnormal or hypersensitive or that normal healthy persons would not be affected as they say they will be. But on the other hand their statements are so con- sistent with common knowledge and experience that, in the absence of substantial evidence to the contrary, they should be accepted as true. There is evidence to the contrary, but for the most part it is that of persons engaged in the same business as that of the applicant, who necessarily, as a result of their training and ex- perience, have not the same reaction to its incidents, as would the average man. And while the evidence as to the effect of the business upon nearby property is vague, it may be assumed, as a matter of common knowledge, that one looking for a home would not likely select one adjacent to an undertaking estab- lishment if he could for the same money secure one equally desirable elsewhere. Applying the principle stated above to those facts, it cannot be said that that provision of the ordinance which excludes undertaking establishments from residential use districts, is either arbitrary or unrea- sonable, or that it violates any provision of either the state or the Federal Constitutions, but it is, on the contrary, a valid and legitimate exercise of the police power delegated by the state to the mayor and city council of Baltimore. The order of the city court dis- missing the appeal will therefore be affirmed. Order affirmed with costs. 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 8 PARKE, J. (dissenting in part). The writer concurs in the decision of the court that section 32, subsection g -3, and section 33, subsection b, are void; but, while admitting the force of the rea- soning displayed and of the adverse trend of decision in this and other jurisdictions, he is, nevertheless, unable to agree that the provision of the ordinance which excludes from the residential use districts "un- dertaking business or establishment or funeral home," other than those in existence at the time of the pas- sage of the ordinance, is a lawful exercise of the po- lice power. The fact that the legislative body of the municipality specifically enacted this exclusion is a legislative determination that the particular inhibition would be inconsistent with the health, security, gen- eral welfare, or morals of the municipality; but this conclusion must be sound before it can be decisive. The governmental power to interfere by zoning regu- lations with the general property rights of the land- owner by restricting the character of his use is not arbitrary nor unlimited. The restriction is void unless it bear a substantial relation to the lawful exercise of the police power, because neither the General As- sembly of Maryland nor any municipality to which it has delegated the power to legislate may impose un- necessary and unreasonable restrictions upon the use of private property. The right of the owner of land to its lawful use is property within the protection of constitutional law. Washington ex rel. Seattle, etc., Co. v. Roberge, 278 U. S. 116, 120, 49 S. Ct. 50, 73 L. Ed. 210, 213. These principles have been repeat- edly affirmed by this tribunal. It remains to make their application. The place of business of an undertaker is *227 not a nuisance per se. If it become one by its condition or Wes tLaw 492 So.2d 852, 11 Fla. L. Weekly 1840 (Cite as: 492 So.2d 852) c District Court of Appeal of Florida, Fifth District. George ALBRIGHT, Jr., Agnes Albright, W.H. Smallridge and Juanita Smallridge, Appellants, v. Gene HENSLEY, et al., Appellees. No. 85 -286. Aug. 21, 1986. Landowners sought trial de novo of County Board of Adjustment decision to grant variance to nearby landowners seeking to divide land. The Circuit Court, Marion County, Raymond T. McNeal, J., overturned variance. On appeal, the District Court of Appeal, Sharp, J., held that: (1) landowners had standing to challenge granting of variance; (2) landowners should have elected certiorari review rather than de novo trial, since they based their challenge solely on record of proceedings before Board of. Adjustment, and appeal from decision overturning that grant would be treated as petition for common -law certio- rari; and (3) minimum standards for granting variance had not been met. Petition denied. Cowart, J., dissented and filed opinion. West Headnotes j� Zoning and Planning 414 x--'1586 414 Zoning and Planning 414X Judicial Review or Relief 414X(A) In General 414k1584 Right of Review; Standing 414k1586 k. Validity of regulations. Most Cited Cases (Formerly 414k23.1, 414k23) Zoning and Planning 414 °r 1589 414 Zoning and Planning 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 1 414X Judicial Review or Relief 414X(A) In General 414k1584 Right of Review; Standing 414k1589 k. Variances or exceptions. Most Cited Cases (Formerly 414k571) Whether party has standing to challenge zoning ordi- nance or variance depends upon reason why chal- lenge is being made; if attack is fundamental, proce- dural one that would make zoning variance void, then person has standing by virtue of status as taxpayer or owner of property in same governmental unit issuing ordinance or variance, whereas if attack is on reason- ableness of zoning board's action and challenging party has burden of showing that action was arbitrary and not fairly debatable, then that party must estab- lish some special or additional damage to his prop- erty caused by variance or ordinance. j2j Zoning and Planning 414 C1661 414 Zoning and Planning 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)2 Additional Proofs and Trial De Novo 414k1658 Weight and Sufficiency of Evidence in General 414k1661 k. Variances and excep- tions. Most Cited Cases (Formerly 414k646) Trial court decision overturning granting of variance would be upheld where it was supported by evidence, even though challenge was based primarily on record from proceeding of County Board of Adjustment and should have been made through petition for certiorari rather than trial de novo. *853 George J. Albright, III, Ocala, and C. Ray Green, Jr., of Greene, Greene, Falck Coalson, Fort McCoy, for appellants. John P. McKeever, of Patillo and McKeever, P.A., Ocala, for appellees. SHARP, Judge. The Albrights and the Smallridges, owners of four 492 So.2d 852, 11 Fla. L. Weekly 1840 (Cite as: 492 So.2d 852) tracts of land located on Lake Weir in Marion County, appeal from the circuit court's final judgment which overturned a variance granted to them by the Marion County Board of Adjustment. Pursuant to the Zoning Code FIJI each lot in a single family residen- tial zoning district (in which this land is located) re- quires an 85 foot tract width (the horizontal distance between side tract lines at the depth of the front building lines). Because these tracts were wider at either end than in the middle, a variance was required in order to permit the owners to divide the tracts into eight building lots rather than seven or some lesser number. The variance reduced the required tract width to 78 feet. We sustain the trial court's decision. FN1. Marion County, Fla., Zoning Code (1982). Appellants' sole attack on the final judgment is that the appellees lack standing to challenge the variance because they did not allege or prove any special dam- ages they would suffer which were different in kind than those which would be suffered by the commu- nity in general.' Regarding standing, the sole proofs in the record consist of the parties' joint stipu- lation which was introduced into evidence at trial by the appellants: FN2. Renard v. Dade County, 261 So.2d 832 (FIa.1972). 1. Each of the Plaintiffs are the owners, indi- vidually or in joint tenancy, of property with front- age on Lake Weir in Marion County, Florida, on which Plaintiffs maintain their principal residences. 2. The property of Defendants ALBRIGHT and SMALLRIDGE (the Smallridge Property") sub- ject of the action by the Marion County Board of Adjustment sought to be reviewed in this case is located on Lake Weir in Marion County, Florida. 3. None of the Plaintiffs own property adjacent to the Smallridge Property. Of the properties owned by Plaintiffs, respectively, the property of Plaintiff HENSLEY is closest to the Smallridge Property, lying South at a distance of 1,320 feet or more from the Smallridge Property and separated from the Smallridge Property by two intervening parcels, *854 one owned by Defendant Albright ad- jacent to the Smallridge Property. The properties of 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 the remaining Plaintiffs lie at greater distances from the Smallridge Property. 4. Plaintiffs do not allege nor contend they will suffer any injury as a result of the action of the Marion County Board of Adjustment different in nature, kind or degree than that suffered by any other owner of property on Lake Weir. 5. Plaintiffs have not alleged nor do they contend that they have or will suffer an immediate or direct economic loss as a result of the action of the Marion County Board of Adjustment respecting the Smallridge Property. The appellees sought to challenge the variance by filing a "Complaint for Judicial Review of Decision of Board of Adjustment," pursuant to section 163.250, Florida Statutes (1983). That statute allows any person who is "aggrieved" by a decision of the board of adjustment to apply to the circuit court for judicial relief. Two types of suits are contemplated: Review in the circuit court shall be either by a trial de novo, which shall be governed by the Florida Rules of Civil Procedure, or by petition for writ of certiorari, which shall be governed by the Florida Appellate Rules. The election of remedies shall lie with the appellant. In this case, the parties seeking to challenge the vari- ance sought a trial de novo in the circuit court, al- though at trial, the only issues and proofs they of- fered were more appropriate for certiorari review. The sole thrust of their challenge was that the Board of Adjustment acted in violation of the Marion County Zoning Code section 15.2 and section 163.225(3), Florida Statutes (1983), which prescribe the minimum standards for granting variances, be- cause at the hearing where the application was con- sidered, appellants and the county officials failed to present any evidence to substantiate the fmdings re- quired by the statute and ordinance F— FN3. The zoning code requires that the peti- tion for a variance must demonstrate: A. Special conditions and circumstances exist which are peculiar to the land, struc- ture or building involved and which are 492 So.2d 852, 11 Fla. L. Weekly 1840 (Cite as: 492 So.2d 852) not applicable to other lands, structures or buildings in the same zoning district. B. The special conditions and circum- stances do not result from the actions of the applicant. C. Literal interpretation of the provisions of regulations would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district un- der the terms of these Regulations and would work unnecessary and undue hard- ship on the applicant. D. The variance, if granted, is the mini- mum variance that will make possible the reasonable use of the land, building or structure. E. Granting the variance requested will not confer on the applicant any special privilege that is denied by these Regula- tions to other lands, buildings or structures in the same zoning district. F. The granting of the variance will be in harmony with the general intent and pur- pose of these Regulations, will not be in- jurious to the neighborhood or otherwise detrimental to the public welfare. The statute requires that the Board author- izing a variance must find: 1. That special conditions and circum- stances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district; 2. That the special conditions and circum- stances do not result from the actions of the applicant; 3. That granting the variances requested will not confer on the applicant any spe- cial privilege that is denied by this ordi- nance to other lands, buildings, or struc- ©2010 Thomson Reuters. No Claim to Orig. US Gov. Works. tures in the same zoning district; Page 3 4. That literal interpretation of the provi- sions of the ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning dis- trict under the terms of the ordinance and would work unnecessary and undue hard- ship on the applicant; 5. That the variance granted is the mini- mum variance that will make possible the reasonable use of the land, building or structure; 6. That the grant of the variance will be in harmony with the general intent and pur- pose of the ordinance and that such vari- ance will not be injurious to the area in- volved or otherwise detrimental to the public welfare. 163.225(3)(a). Appellees authenticated and introduced in evidence the minutes of the meeting of the Board of Adjust- ment where the variance *855 was considered, the applications for the zoning variance, and the formal findings and action of the Board in granting the vari- ance. They offered little proofs beyond those docu- ments. At that point, appellants moved for judgment in their favor. The court denied their motion. There- after, appellants presented testimony from each land- owner in the group whose land benefited from the variance. They purchased the tracts for investment purposes, planning to sell off the smaller building lots. Due to the shape of the tracts, they could only get seven instead of eight lots out of them, because of the width of lot requirement. They were unaware of this problem before they purchased the land, although they knew of the zoning rules, and they knew the property was zoned R -1. The final judgment in this case overturning the vari- ance found that it had been granted without any evi- dence to support the necessary findings required by the zoning code and the statute. It also found that evidence at the trial rebutted that any of the required special circumstances existed regarding these lands which would have justified a variance. Our review of the record supports the trial judge's findings. 492 So.2d 852, 11 Fla. L. Weekly 1840 (Cite as: 492 So.2d 852) [1] The necessary quality of a party's "standing" to challenge a zoning ordinance or variance depends upon the reason why the challenge is being made. FNa If the attack is a fundamental, procedural one that would make the zoning variance void, then a person has standing under section 163.250 by simply being a taxpayer or owner of property in the same govern- mental unit issuing the ordinance or variance. If the attack is on the reasonableness of the zoning board's action, with the concomittant burden to show such action was arbitrary and not fairly debatable, then the challenging party must establish some spe- cial or additional damage to his property caused by the variance or ordinance. The showing of special damages is still required in such cases, although the courts have reduced what was formally required to establish special damages. FN4. Skaggs Albertson's v. ABC Liquors, Inc., 363 So.2d 1082 (Fla.1978). FN5. Exchange Investments, Inc. v. Alachua County, 481 So.2d 1223 (Fla. 1st DCA 1985); City of Miami v. Save Brickell Ave., Inc., 426 So.2d 1100 (Fla. 3rd DCA 1983); Upper Keys Citizens Ass'n., Inc. v. Wedel. 341 So.2d 1062 (Fla. 3rd DCA 1977). FN6. Renard, 261 So.2d at 837; cf. Skaggs Albertson (interpretation of zoning ordi- nance); Citizens Growth Management Coali- tion of West Palm Beach, Inc. v. City of West Palm Beach, Inc., 450 So.2d 204 (F1a.1984) (rezoning challenged because contrary to lo- cal government comprehensive planning act). FN7. Renard, 261 So.2d at 837; Skaggs Albertson, 363 So.2d at 1088. In this case, we do not need to determine whether or not appellees had this enlarged standing because of their being riparian landowners on Lake Weir, lo- cated from a mile to 1320 feet from the appellants' lands. They were clearly landowners and taxpay- ers within Marion County, the jurisdiction which issued the variance. These facts were sufficient to allow the kind of attack they mounted on the zoning variance in this case. Making a finding on the basis of no evidence, when required to hold a hearing and 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 consider various factors before taking such action, is fundamentally procedurally defective. F119 It is equally as defective as failing to give notice, or an illegal enactment due to violation of the Sunshine Law.' 11 FN8. See Exchange Investments, Inc. v. Alachua County, 481 So.2d at 1225 -1226 (dictum) (court said increased parking and traffic problem might give property owner standing to challenge rezoning, where its property was located one mile distant from the rezoned property). FN9. U.S. CONST.amend. V; see Town of Indialantic v. Nance, 485 So.2d 1318 (Fla. 5th DCA 1986). FN10. See Renard, 261 So.2d at 838; Save Brickell Ave., Inc. v. City of Miami, 395 So.2d 246 (Fla. 3rd DCA 1981). FN11. Upper Keys Citizens Ass'n., Inc. v. Wedel, 341 So.2d 1062 (Fla. 3rd DCA 1977). *856 12] The appellees probably should have elected certiorari review rather than a de novo trial. They proved their challenge based solely on the record of the proceedings before the board of adjustment, and they were not asking the circuit court to step into the shoes of the board and make the determination to grant or not grant the variance based on new evidence presented at the trial. Under these circumstances, nothing would have been done differently by the trial court or other parties had the suit been denominated "petition for certiorari." Upon reviewing the record, we conclude that substance should triumph over form, unless it operates to deprive a party of a substantial right or opportunity to present his case. Neither occurred here. We elect to treat this appeal as a petition for common law certiorari, and appellant's complaint below as a statutory writ of certiorari. Ac- cordingly, we deny the petition because the lower court reached the correct result even though appellees pursued an incorrect remedy. City of Deerfield Beach v. Valliant, 419 So.2d 624 (FIa.1982). FN 12. See City of Ormond Beach v. State Ex rel Del Marco, 426 So.2d 1029 (Fla. 5th DCA 1983). WestLaw. 426 So.2d 1167 (Cite as: 426 So.2d 1167) District Court of Appeal of Florida, Third District. CARLOS ESTATES, 1NC., a Florida corporation, Petitioner, v. DADE COUNTY, Florida, a political subdivision of the State of Florida, Respondent. No. 82 -1544. Feb. 8, 1983. Developer brought a petition for a writ of certiorari to the Circuit Court for Dade County, Thomas E. Scott, George Orr, and Maria M. Korvick, JJ., which af- firmed a zoning resolution adopted by board of county commissioners denying developer a special exception for a "zero lot line" site plan of single family residential units. The District Court of Appeal, Daniel S. Pearson, J., held that: (1) an individual who lived within 700 feet of the subject property had the requisite standing to prosecute the appeal from the decision of the zoning appeals board in favor of de- veloper to county commission, since although the adverse impact on the individual of the "zero lot line" special exception may have been shared with other persons in the neighborhood, he had a defmite inter- est exceeding the general interest in common with all citizens, and (2) the evidence was sufficient to sustain either the county commission's conclusion that a spe- cial exception would generate excessive traffic, cause an undue burden on public facilities, and provoke an excessive concentration of people or population, or that the special exception, if granted, would adversely affect the public interest. Certiorari denied. West Headnotes al Zoning and Planning 4141588 414 Zoning and Planning 414X Judicial Review or Relief 414X(A) In General 414k1584 Right of Review; Standing 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 1 414k1588 k. Permits, certificates, and approvals. Most Cited Cases (Formerly 414k571) Individual who lived within 700 feet of the subject property had standing to appeal decision of zoning appeals board in favor of developer on its application for a special exception for a "zero lot line" site plan of single- family residential units to the county com- mission, since even though adverse impact on such individual of the "zero lot line" special exception may have been shared with other persons in the neighborhood, individual had a definite interest ex- ceeding general interest in the community in common with all citizens, and thus he had a legally recogniz- able interest sufficient to confer standing on him. L2j Zoning and Planning 414 x'1589 414 Zoning and Planning 414X Judicial Review or Relief 414X(A) In General 414k1584 Right of Review; Standing 414k1589 k. Variances or exceptions. Most Cited Cases (Formerly 414k571) A person seeking to challenge a special exception, or persons seeking to challenge a variance in their im- mediate neighborhood, unlike alleged victims of a zoning violation, need not show an impact unique to their property, that is, "special damage," in order to have standing to contest the zoning action. Lai Zoning and Planning 414 €1661 414 Zoning and Planning 414X Judicial Review or Relief 414X(C) Scope of Review 414X(C)2 Additional Proofs and Trial De Novo 414k1658 Weight and Sufficiency of Evidence in General 414k1661 k. Variances and excep- tions. Most Cited Cases (Formerly 414k646) In proceeding on application by developer for a spe- cial exception for a "zero lot line" site plan of single family residential units, evidence was sufficient to 426 So.2d 1167 (Cite as: 426 So.2d 1167) sustain either county commission's conclusion that a special exception would generate excessive traffic, cause an undue burden on public facilities, and pro- voke an excessive concentration of people or popula- tion, or that the special exception, if granted, would adversely affect the public interest. *1168 Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel Wolff and Anthony J. O'Donnell, Jr., Mi- ami, for petitioner. Robert A. Ginsburg, County Atty., and Eileen Ball Mehta, Asst. County Atty., for respondent. Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ. DANIEL S. PEARSON, Judge. We deny the petition for writ of certiorari to the Cir- cuit Court, which, sitting in its appellate capacity, affirmed without opinion a zoning resolution adopted by the Dade County Board of County Commissioners denying to Carlos Estates, Inc., a developer, a special exception for a "zero lot line" site plan of single family residential units in an RU -1 zone.' We ad- dress the petitioner's main contentions. FN1. Under Ordinance No. 81 -9, Dade County's "Zero Lot Line Ordinance," the development of single- family residential units in a zero lot line configuration is a permitted use in an RU -1 zone, subject to review and approval of a site plan by way of special exception. The ordinance, as its name suggests, permits the dwelling to be placed against the property line, one conse- quence of which is that outdoor space is grouped and utilized to its maximum bene- fit. al First, contrary to the petitioner's position, the re- cord before the Commission reflects that the individ- ual who appealed the decision of the Zoning Appeals Board in favor of the developer to the County Com- mission *1169 had the requisite standing to prosecute the appeal. That individual, a Mr. Suero, lives within 700 feet of the subject property, and although the adverse impact on him of the zero lot line special exception (e.g., decreased traffic safety and water pressure, and increased population in the neighbor- hood school) may have been shared with other per- 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 sons in the neighborhood, Mr. Suero clearly had a "defmite interest exceeding the general interest in community good share [sic] in common with all citi- zens," a "legally recognizable interest" sufficient to confer standing on him. Renard v. Dade County, 261 So.2d 832, 837 (Fla.1972). FN2. While we recognize that the mere fact that Mr. Suero received a courtesy notice of the special exception hearing does not, ipso facto, give him standing to appeal, F. R. Builders, Inc. v. Durant, 390 So.2d 784 (Fla. 3d DCA 1980), the fact that he was among those deemed by the County to be entitled to notice, see 33- 310(a), Dade County Code, is a factor to be considered on the question of standing. Renard v. Dade County, 261 So.2d 832 (Fla.1972). [2] We reject petitioner's argument, primarily bot- tomed on language in Hemisphere Equity Realty Co. v. Kev Biscayne Property Taxpayers Association, 369 So.2d 996 (Fla. 3d DCA 1979), that a requisite for Suero's standing was a showing that he was specially damaged. In our view, Renard makes clear that the special damage requirement applies only in instances where an individual seeks to challenge an asserted violation of an existing and valid zoning ordinance: "The `special damage' rule of the Boucher [v. Novotn 102 So.2d 132 (F1a.1958) case is an outgrowth of the law of public nuisance. Zoning violations have historically been treated as public nuisances not subject to suit by an individual unless that individual has suffered damages differ- ent in kind and degree from the rest of the commu- nity. The Boucher rule was not intended to be ap- plied to zoning matters other than suits by indi- viduals for zoning violations." Renard v. Dade County, 261 So.2d at 835 (footnotes omitted). A person, such as Suero, seeking to challenge a spe- cial exception, or persons, such as the Key Biscayne homeowners in Hemisphere Equity, seeking to chal- lenge a variance in their immediate neighborhood, unlike alleged victims of a zoning violation, see, e.g., State ex rel. Gardner v. Sailboat Kev, Inc., 306 So.2d 616 (Fla. 3d DCA 1974) (raising of grade level in claimed violation of zoning ordinance on immedi- ately adjacent property would obstruct plaintiffs view and aggravate risk of flooding in plaintiffs 426 So.2d 1167 (Cite as: 426 So.2d 1167) home); Hudson v. Tabas. 136 So.2d 243 (Fla. 3d DCA 1962) (building of addition in claimed violation of zoning ordinance's set -back requirement on con- tiguous land denied plaintiff right to open space be- tween her home and that of neighbor), need not show an impact unique to their property, that is, "special damage." All that Suero needed to show, and did show, was that the effect of the special exception on him was different from the community at large, even if no different from others in his neighborhood. While that showing might be (as it was in Hemi- sphere Equity) loosely called a "special damage," it is distinguishable from "special damage" used as a term of art in Renard to define the greater showing of adverse effect needed to establish standing to contest a zoning violation. j_3] Second, while the petitioner may have met the criteria set forth in the Zero Lot Line Ordinance, it was additionally required to satisfy the special excep- tion criteria set forth in Section 33- 311(d) of the Code of Metropolitan Dade County. *1170Board of County Commissioners of Dade County v. First Free Will Baptist Church 374 So.2d 1055 (Fla. 3d DCA 1979). There is substantial competent evidence in the record, see, e.g., DeGroot v. Shegield, 95 So.2d 912 (F1a.1957), to support either the County Com- mission's conclusion that a special exception here would generate excessive traffic, cause an undue burden on public facilities, and provoke an excessive concentration of people or population; or, alterna- tively, that the special exception, if granted, would adversely affect the public interest, see B S Enter- prises, Inc. v. Dade County, 342 So.2d 117 (Fla. 3d DCA 1977); Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478 (Fla. 4th DCA 1975). FN3. "Special exceptions, unusual and new uses. [The Board of County Commissioners is empowered to] [h]ear application for and grant or deny special exceptions; that is, those exceptions permitted by the regula- tions only upon approval after public hear- ing, new uses and unusual uses which by the regulations are only permitted upon ap- proval after public hearing; provided the ap- plied for exception or use, including excep- tion for site or plot plan approval, in the opinion of the zoning board, would not have an unfavorable effect on the economy of Dade County, Florida, would not generate or Accordingly, because we cannot conscientiously conclude that the Circuit Court departed from the essential requirements of the law in affirming the County Commission's action, we deny the petition for writ of certiorari. Certiorari denied. 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 result in excessive noise or traffic, cause un- due or excessive burden on public facilities, including water, sewer, solid waste disposal, recreation, transportation, streets, roads, highways or other such facilities which have been constructed or which are planned and budgeted for construction, are accessible by private or public roads, streets or highways, tend to create a fire or other equally or greater dangerous hazards, or provoke ex- cessive overcrowding or concentration of people or population, when considering the necessity for and reasonableness of such ap- plied for exception or use in relation to the present and future development of the area concerned and the compatibility of the ap- plied for exception or use with such area and its development...." Fla.App. 3 Dist.,1983. Carlos Estates, Inc. v. Dade County 426 So.2d 1167 END OF DOCUMENT Westlaw. 757 So.2d 590, 25 Fla. L. Weekly D1169 (Cite as: 757 So.2d 590) H District Court of Appeal of Florida, Fifth District. PUTNAM COUNTY ENVIRONMENTAL COUNCIL, INC., Appellant, v. BOARD OF COUNTY COMMISSIONERS OF PUTNAM COUNTY, etc., et al., Appellee. No. 5D99 -2508. May 12, 2000. Nonprofit corporation filed action seeking injunctive and declaratory relief challenging county commis- sion's affirmance of board of adjustment's order ap- proving application for special exception to county's comprehensive land use plan. The Circuit Court, Put- nam County, William A. Parsons, J., dismissed ac- tion. Corporation appealed. The District Court of Appeal, Antoon, C.J., held that corporation had standing to challenge rezoning. Reversed and remanded. W. Sharp, J., filed a specially concurring opinion. West Headnotes al Zoning and Planning 414 -'1587 414 Zoning and Planning 414X Judicial Review or Relief 414X(A) In General 414k1584 Right of Review; Standing 414k1587 k. Modification or amend- ment. Most Cited Cases (Formerly 414k571) Environmental nonprofit corporation sufficiently alleged an interest in land exceeding general interest in community good shared by all, and thus had stand- ing to challenge rezoning to allow construction of middle school complex on property previously zoned agricultural, where corporation alleged specific inju- ries including destruction of habitat of species being studied by its members and elimination of members' access to the forest and forest's creatures by over- growth of forest; diminution of species being studied was a harm particular to corporation, giving it more than just amorphous "environmental concerns." West's F.S.A. 163.3215. u Zoning and Planning 414 °1589 414 Zoning and Planning 414X Judicial Review or Relief 414X(A) In General 414k1584 Right of Review; Standing 414k1589 k. Variances or exceptions. Most Cited Cases (Formerly 414k571) Mere fact of citizen group's interest in the environ- ment was alone insufficient to give group standing to challenge approval of application for special excep- tion to comprehensive plan. West's F.S.A. 163.3215. li Zoning and Planning 414 €1587 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 1 414 Zoning and Planning 414X Judicial Review or Relief 414X(A) In General 414k1584 Right of Review; Standing 414k1587 k. Modification or amend- ment. Most Cited Cases (Formerly 414k571) Where environmental group has continued connec- tions with the land which would be adversely im- pacted by the rezoning, the group possesses an inter- est which exceeds the general interest in community good shared by all people, and thus has standing to challenge rezoning. West's F.S.A. 163.3215. J41 Appeal and Error 30 893(1) 30 Appeal and Error 30XVI Review 30XVI(F) Trial De Novo 30k892 Trial De Novo 30k893 Cases Triable in Appellate Court 30k893(1) k. In general. Most Cited Cases Standard of review for the dismissal of a complaint for failure to allege facts establishing the plaintiffs 757 So.2d 590, 25 Fla. L. Weekly D1169 (Cite as:.757 So.2d 590) standing is de novo. jJ Appeal and Error 30 x'919 30 Appeal and Error 30XVI Review 30XVI(G) Presumptions 30k915 Pleading 30k919 k. Striking out or dismissal. Most Cited Cases In reviewing the dismissal of a complaint for failure to allege facts establishing the plaintiffs standing, court must accept the allegations contained in the complaint as true. *591 Michael W. Woodward of Keyser Wood- ward, P.A., Interlachen, for Appellant. Terrell K. Arline of 1000 Friends of Florida, Inc., Tallahassee, Amicus Curiae in Support of Appellant Putnam County Environmental Council, Inc. Russell D. Castleberry for Board of County Commis- sioners of Putnam County; and Edward E. Hedstrom for District School Board of Putnam County and Roberts Land and Timber Company, Palatka, Appel- lees. ANTOON, C.J. Putnam County Environmental Council, Inc. (PCEC), a nonprofit corporation, filed an action seeking in- junctive and declaratory relief. The action challenged the Putnam County Board of County Commissioners' (County Commission) affirmance of the Board of Adjustment's order approving an application for a special exception to the county's comprehensive land use plan. The trial court dismissed the action, ruling PCEC did not possess standing to challenge the order under section 163.3215 of the Florida Statutes (1999). We reverse. Roberts Land and Timber Company (Roberts) owns property located in Putnam County. The land, zoned for agricultural use, is located adjacent to the Etoniah Creek State Forest on Highway 100. Roberts and the Putnam County District School Board applied for a special exception to the county's comprehensive plan to allow the construction of a regional middle school complex on Roberts' property. Following the County Commission's ratification of the Board of Adjust- Page 2 ment's approval of the application for the special ex- ception, PCEC filed a complaint seeking to enforce Putnam County's comprehensive plan pursuant to chapter 163. 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Section 163.3215 sets forth the standing requirements for parties seeking to enforce a local comprehensive plan. The statute provides: 163.3215. Standing to enforce local comprehensive plans through development orders (1) Any aggrieved or adversely affected party may maintain an action for injunctive or other re- lief against any local government to prevent such local government from taking any action on a de- velopment order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property that is not consistent with the comprehensive plan adopted under this part. (2) "Aggrieved or adversely affected party" means any person or local government which will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transporta- tion facilities, health care facilities, equipment or services, or environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large, but shall exceed in degree the general inter- est in community good shared by all persons. 163.3215, Fla. Stat. (1999)(emphasis added). The County Commission moved to dismiss the com- plaint on the grounds that PCEC lacked standing un- der section 163.3215. The trial court granted the mo- tion *592 to dismiss with leave to amend. PCEC then amended its complaint to include allegations of the specific adverse effects that it and its members would suffer to their interests in the conservation and pro- tection of the natural resources of the Etoniah Creek State Forest if construction of the school was permit- ted. Specifically, PCEC's complaint asserted: A. PCEC's primary organizational purposes and ac- 757 So.2d 590, 25 Fla. L. Weekly D1169 (Cite as: 757 So.2d 590) tivities include the study and protection of natural resources and the advocacy of sound land use and growth management policies affecting the envi- ronment. B. Officers and members of PCEC initiated and fa- cilitated the original public acquisition of the Eto- niah Creek State Forest, which is located adjacent to the subject parcel. C. A substantial number of PCEC's members, along with non members who participate in PCEC- sponsored activities, use the Etoniah Creek State Forest for recreational and educational purposes. D. The use allowed under the special exception will adversely affect PCEC's use and its members' use of the adjacent Etoniah Creek State Forest as natural resource area. The use of the subject parcel for a school will adversely impact the ability of the Division of Forestry to use controlled burns to manage the adjacent state forest. Without con- trolled burns, habitat for a variety of species in the Etoniah Creek State Forest will be reduced or eliminated, thus adversely affecting the ability of PCEC, its members, and others who participate in PCEC- sponsored activities to observe or study those species. Also, without controlled burns, much of the forest will become overgrown with under story species, thus adversely affecting the ability of PCEC, its members, and others who participate in PCEC- sponsored activities to access and hike por- tions of Etoniah Creek State Forest. Furthermore, the physical presence of a school plant as well as the increased traffic and the activity, lights, and noise associated with a school facility, athletic fields, parking lots, and school bands are incom- patible with Etoniah Creek State Forest's nature based recreation and will discourage and interfere with the ability of wide ranging species such as the black bear to reach or remain in the state forest. This will adversely affect the ability of PCEC, its members, and others who participate in PCEC- sponsored activities to observe or study those spe- cies. The County Commission then moved to dismiss the amended complaint, again arguing that PCEC lacked standing because PCEC did not meet the statutory definition of an aggrieved or adversely affected party. 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 A hearing was held on the motion to dismiss, after which the trial court, in a thorough and thoughtful written order, dismissed the amended complaint with prejudice based upon the conclusion that PCEC lacked standing to challenge the order. The trial court narrowly construed the standing requirement of section 163.3215, rejecting PCEC's claim that the statute was designed to expand the group of persons possessing standing to enforce local comprehensive plans. After noting that PCEC does not own land adjacent to the rezoned property, the trial court con- cluded that PCEC was merely attempting to act 011 behalf of its perceived interest in the community good, which is an interest shared by all persons, and did not have any interests that were any greater than those of the community at large. "Any other conclu- sion," wrote the court, "would in essence allow any citizen to bring an action without being `aggrieved or adversely affected.' The trial court's conclusion that section 163.3215 was not to be liberally construed was incorrect. Prior to the enactment of section 163.3215 in 1985, the common law rule for standing applied. Under the common law rule, in order to possess standing to challenge*593 a land use decision, the party had to possess a legally recognized right that would be ad- versely affected by the decision. See Citizens Growth Management Coalition of West Palm Beach, Inc. v. City of West Palm Beach, 450 So.2d 204, 208 (Fla.1984). That standard changed, however, with the 1985 adoption of section 163.3215, which liberalized the standing requirements and "demonstrat[ed] a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action." Southwest Ranches Homeowners Assn, Inc. v. County of Broward, 502 So.2d 931, 935 (Fla. 4th DCA), rev. denied, 511 So.2d 999 (Fla.1987); see also Education Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621 (Fla. 4th DCA 1999) (noting that section 163.3215 is a remedial statute and as such is to be liberally construed to ensure standing to any party with a protected interest under the comprehensive plan). [I ][2] Testing PCEC's allegations against the liberal- ized standing test of section 163.3215, we conclude that PCEC's assertions, taken as a whole, are suffi- cient to give PCEC standing to seek enforcement of Putnam County's Comprehensive Plan. While the mere fact of PCEC's interest in the environment is 757 So.2d 590, 25 Fla. L. Weekly D1169 (Cite as: 757 So.2d 590) alone insufficient to give PCEC standing, see Florida Rock Properties v. Keyser, 709 So.2d 175 (Fla. 5th DCA 1998), the allegations set forth in PCEC's amended complaint were sufficient to distinguish PCEC's situation from that in Florida Rock Proper- ties. In Florida Rock Properties, this court rejected Keyser's assertion that his lifelong interest in envi- ronmental protection and his activism in that field gave him standing under section 163.3215, noting, "Keyser never demonstrated any specific injury, only that the county would not be as bucolic as it once was. Keyser is a citizen with an interest in the envi- ronment and nothing more." Id. at 177. Keyser had filed suit to block Florida Rock from hav- ing 509 acres re -zoned from agricultural to mining. Keyser alleged his ownership of property 10 miles from the 509 -acre site; his law firm business in Put nam County, including his representation of conser- vationists; his life -long interest in environmental pro- tection matters; and the adverse impact the Board's failure to require a 25% set -aside would have on his quality of life. The trial court found that Keyser had standing because Keyser's `exceptional personal and professional interests, efforts, and activities in conservation, wildlife and environmental protection matters were proven' and those interests "would be adversely affected by the Board's decision `to a greater degree than other members of the commu- nity.' Id. at 176. This court reversed, writing, "Had Keyser lived adjacent to the property, and had he been able to show a specific impact the zoning change would have upon him or his property, he would have standing." Id. at 177. This court also re- jected Keyser's professional interests as a ground for standing. Keyser's strongest argument, this court con- cluded, was his claim that the zoning decision would adversely affect his quality of life by its negative im- pact on Putnam County's wildlife population and habitat. Id. The argument was not sufficient to carry the day for Keyser, however, because Keyser failed to demonstrate any specific injury. In contrast to Keyser, here PCEC's complaint alleged specific injuries that PCEC would suffer if a middle school complex was constructed on Roberts' prop- erty, including the destruction of the habitat of spe- cies being studied by PCEC members and the elimi- nation of PCEC members' access to the forest and the 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 forest's creatures by the overgrowth of the forest. The diminution of species being studied by the group is a harm particular to PCEC, making PCEC more than just a group with amorphous "environmental con- cerns." Accordingly, the allegations set forth in PCEC's complaint are sufficient to demonstrate the requisite level of interest. Under *594 the liberalized standing test, PCEC possesses standing to challenge the order. [3] PCEC's involvement in the original acquisition of the land for use as a state forest and its continued, active connection with that state forest further dem- onstrate an interest greater than that which all persons share in the community good. We acknowledge that a similar argument was rejected in Friends of the Ever- glades, Inc. v. Board of Trustees of the Internal Im- provement Trust Fund, 595 So.2d 186 (Fla. 1st DCA 1992), which was decided under the "substantial in- terest" standing test of the Administrative Procedure Act, a wholly different test than that involved here. See 120.52(12), Fla. Stat. (1999). To the extent that Friends of the Everglades, Inc. can be read to hold that a group successful in having land acquired by the state for environmental protection purposes does not possess standing to challenge an environmental threat to that land, we disagree therewith. Such a group can demonstrate an interest greater than that shared by all people for the good of the community by translating its interest in environmental protection into action and results, in this case a state forest. Where, as here, the group has continued connections with the land which would be adversely impacted by the rezoning, the group possesses an interest which exceeds the general interest in community good shared by all people. [41[5] In closing, we note that the standard of review for the dismissal of a complaint for failure to allege facts establishing the plaintiffs standing is de novo review. See Turner v. Hillsborough County Aviation Auth., 739 So.2d 175, 177 (Fla. 2d DCA 1999) (hold- ing that the appeal of a ruling on a party's standing to bring the action presents a pure question of law to be reviewed de novo rev. granted, No. SC96674, 761 So.2d 332 (Fla. Jan25, 2000). In conducting this review, we must accept the allegations contained in the complaint as true. See Cintron v. Osmose Wood Preserving, Inc., 681 So.2d 859 (Fla. 5th DCA 1996). Having done so, we conclude that the averments set forth in PCEC's amended complaint satisfied the 757 So.2d 590, 25 Fla. L. Weekly D1169 (Cite as: 757 So.2d 590) standing requirement of section 163.3215. Accord- ingly, we reverse the trial court's dismissal order and remand this matter for further proceedings. REVERSED and REMANDED. GRIFFIN, J., concurs. W. SHARP, J., concurring specially, with opinion. W. SHARP, J., concurring specially. I agree with the result in this case, but not its attempt to distinguish Florida Rock Properties v. Keyser, 709 So.2d 175 (Fla. 5th DCA 1998), which I believe was wrongly decided. The major distinctions are that Keyser was an individual, personally and profession- ally interested, and greatly involved in environmental issues concerning his county of residence and else- where -far more than the average citizen. And, in this case, PCEC is a non -profit corporation primarily in- terested in a specific forest, which would be affected by the planned development. In my view, those are distinctions without great import, and both should have standing under section 163.3215, Florida Stat- utes. As pointed out in my dissent in Keyser, the ma- jority opinion in that case as well as this one, leaves the very large acreage owner whose proposed devel- opment is surrounded only by the developer's own land, free from challenge pursuant to section 163.3215. Fla.App. 5 Dist.,2000. Putnam County Environmental Council, Inc. v. Board of County Com'rs of Putnam County 757 So.2d 590, 25 Fla. L. Weekly D1169 END OF DOCUMENT 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 CITY OF SEBASTIAN SEBASTIAN CITY COUNCIL SPECIAL MEETING ON GILLIAMS APPEAL TO PLANNING AND ZONING COMMISSION DECISION ON SEAWINDS CREMATORY MONDAY, MAY 17, 2010 5:30 PM CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA SPECIAL MEETING ITEM Quasi Judicial Hearing of Appeal from Damien Gilliams of the April 1, 2010 Planning and Zoning Commission Approval of Site Plan Modification for the Seawinds Crematory Located at 735 S. Fleming Street Presented by: KIMBERLY BONDER REZANKA, ESQ. DEAN MEAD ATTORNEYS AT LAW SUITE 100 8240 DEVEREUX DRIVE VIERA, FL 32940 On behalf of Damien Gilliams CITY OF SEBASTIAN PLANNING AND ZONING COMMISSION MINUTES OF REGULAR MEETING FEBRUARY 6, 2003 Chairman Smith called the meeting to order at 7:00 P.M. The Pledge of Allegiance was said. ROLL CALL: PRESENT: ALSO PRESENT: ANNOUNCEMENTS: OLD BUSINESS: NEW BUSINESS: Chmn. Smith Mr. Mahoney Mr. Faille EXCUSED: Ms. Monier Mr. Svatik Tracy Hass, Growth Management Director Rich Stringer, City Attorney Susan Lorusso, Secretary Chmn Smith said Ms. Monier and Mr. Svatik are excused and Mr. Allocco and Mr. Blessing will be voting in their places. The City Council will address the seat vacated by Mr. Rauth at their next regular meeting. APPROVAL OF MINUTES: 1/23/03 MOTION by Barrett/Blessing "1'11 make a motion we accept the minutes of 1/23/03." A voice vote was taken. 6 -0 minutes approved. NONE CHr` IRi,1 /ii`Z VC Barrett Mr. Allocco (a) Mr. Blessing (a) Quasi Judicial Public Hearing Site Plan Review Minor Modification Seawinds Real Estate Company 735 Fleming Street Funeral Home Crematorium PLANNING AND ZONING COMMISSION MINUTES OF REGULAR MEETING OF FEBRUARY 6, 2003 Chmn Smith opened the public hearing at 7:10 p.m. James W. Young of 1452 42" Circle, Vero Beach, FL was present and sworn in by Chmn Smith. Mr. Hass was also sworn in. Mr. Young gave details on the proposed accessory structure at Seawinds Funeral Home. It is to be a 480 Sq. Ft. steel frame, brick constructed accessory structure to be used as a crematorium. He has obtained an air emission permit from the state and offered to answer any questions from the board. Chmn. Smith asked how odor and smoke emission is to be filtered. Mr. Young explained the State of Florida air emissions permitting process requires a filter on the crematory before the smoke enters the air so it is a clear odorless smoke. Mr. Allocco requested time of operation and Mr. Young replied 8:00 a.m. to 5:00 or 6:00 p.m. with q 6 the process taking about one and one -half hours. Mr. Young added that his business is small, serving approximately 120 families this past year and the cremation rate is about 75% to 80 Seawinds also owns Davis Funeral Home in Melbourne and have under construction a new funeral home in Vero Beach on 27 Avenue. Mr. Allocco was interested in zone districts for this use and air monitoring. Mr. Hass said this is accessory to the funeral home, which is allowed in the Commercial Zone and Mr. Young added that most crematories are put in commercial zones with funeral homes and not located in industrial parks. The state health department monitors emissions and checks the machinery periodically. Mr. Allocco was also concerned about the location of the crematory on the property and asked if there were any objections from neighbors. Mr. Hass said he had received two objections and added that staff initially had real concerns with smoke, smell and transporting of bodies to the facility until Mr. Young answered all their questions and offered an understanding of the operation. Mr. Barrett asked about clientele and Mr. Young said only families using one of their three funeral homes would have access to the crematorium at this time. Mr. Stringer explained accessory use to an approved use and this is a site plan review; the use is not at issue here. If fifty percent or more of their business was coming from off-site, then that would be an independent crematorium and they would have to come in for conditional use approval. As long as it is being approved as an accessory use it will have to be a minor part of their business. Mr. Barrett also asked if the removal of the three parking spaces would affect the previously approved site plan and Mr. Hass said it would not. Mr. Blessing opened discussion regarding the setback of the building from the property line, the purpose of the ventilation fan on the east side of the building and the possibility of increasing the landscape screening. Mr. Young replied to the first two issues; the setback is ten feet, which is required by code, and the fan is a ventilation fan for the work environment of the employees and would not emit any odor. Mr. Hass addressed the landscaping concern and suggested the Type A opaque buffer, which is 90 percent opaque. Mr. Mahoney wanted to know the height of the building and Mr. Young said it would match the height of the existing building. Mr. Blessing also asked about cleaning and servicing of the crematory and Mr. Young said the manufacturer is in Orlando and 2 PLANNING AND ZONING COMMISSION MINUTES OF REGULAR MEETING OF FEBRUARY 6, 2003 services the crematory about two to three times a year. Also, the state inspects the system. He added that the life span on a crematory is about thirty years. Mr. Hass said that staff's initial concerns were the emissions and location of this facility. Mr. Young and Mr. Mosby worked with staff to alleviate those concerns. From a commercial standpoint under the regulations, this is not a use issue. Chmn Smith swore in Dr. Henry Fischer, 520 Blue Island. He is strongly opposed to this application as the abutting property, which he owns, is proposed to be residential. Hank Fischer, 755 So. Fisher Circle, was sworn in by Chmn Smith. He wanted to know if this application was approved, what safeguards were there if an odor should be emitted from site. Mr. Hass said if there were any odors coming from the crematorium it would be referred to the state health department. Mr. Blessing asked Dr. Fisher if there were any way the site could be landscaped to screen the building from his property and Dr. Fischer felt there wasn't anything acceptable to him. Mr. Mahoney requested an interpretation from Mr. Stringer if this is a suitable accessory to a funeral home. Mr. Stringer said it can be considered accessory to have a crematorium there but not a freestanding operation. Mr. Allocco asked Mr. Hass if he had seen the state permit and Mr. Hass said he had. Essentially it is a permit that has been issued based on compliance at this point and there will be ongoing and continuing review of the air emissions to insure that performance is meeting state standards. Mr. Mahoney asked about signage and Mr. Young assured him that there would be no indication that cremation is there. Churn Smith closed the public hearing at 7:35 p.m. MOTION by Mr. Blessing to approve the application with the condition that the exhaust fan be redirected to the north and a row of canopy trees run 25 Ft. in length with a Type A opaque tiered effect for 15 feet, as per the overlay district. As there was no second to the motion, Chmn Smith called for another motion. Mr. Stringer recommended that the application should be noticed as a conditional use so the board can table the matter for one month in order to properly advertise the legal notice for conditional use. MOTION by Barrett/Blessing "So moved." [To table for one month for the purpose of legal notification of a conditional use, the application of Seawinds Real Estate Company for a funeral home crematorium at 735 Fleming Street.] Roll CaII: Mr. Faille yes Mr. Allocco no Mr. Mahoney no Chmn Smith yes Mr. Blessing yes VC Barrett yes The vote was 4 -2. Motion carried. 3 PLANNING AND ZONING COMMISSION MINUTES OF REGULAR MEETING OF FEBRUARY 6, 2003 B. Quasi Judicial Public Hearing Site Plan Review Major Modification Indian River RV —1698 N. Central Avenue Chmn Smith opened the public hearing at 7:55 p.m. Mr. Randy Mosby of Mosby and Associates, 2455 14 Avenue, Vero Beach was present and sworn in by Chmn. Smith. Mr. Mosby gave a history of the site and detailed the project to bring it into compliance with the riverfront ordinances. He complimented staff on the thorough job done reviewing this plan and is available to answer any questions the board may have. Mr. Hass gave a brief description of the proposal as a 4,000 sq. ft. RV service building at the intersection of North Central and Davis. He complimented the property owners on their willingness to work with staff under the overlay district requirements. The existing row of trees on the east side of the property will offer a good buffer and it is proposed to add enhanced landscaping to comply with regulations. Staff recommends approval_ Mr. Allocco asked about fire protection and was informed that sprinklers were not required. Mr. Hass said the fire department has reviewed the proposal and had no comments. Mr. Barrett noted the driveway to Davis Street was very restrictive and Mr. Mosby said it was for employees and their service vehicles only. Mr. Blessing wanted to know if there was going to be sewage pump -out. Mr. Harold Hall, 1698 N. Central was sworn in by Chmn Smith and explained that they take the vehicle to the campground and property dispose of the sewage. The waste oil is kept in barrels and a private company pumps those out as needed. Mr. Mahoney inquired about the actual function of the property. Mr. Hass explained that it has been part boat and RV storage and it was grouped under the marine sales and service portion of the code and is a conforming use. Churn Smith closed the public hearing at 8:10 p.m. Mr. Stringer advised Chmn Smith that the interpretation for this property pre -dated their time with the commission. MOTION by Barrett/Faille 'I'll make a motion to approve the application of Indian River RV, 1698 N. Central Avenue [for a maintenance /storage building] Roll Call: Mr. Faille yes Mr. Blessing yes Chmn. Smith yes Mr. Allocco yes VC Barrett yes Mr. Mahoney no The vote was 5 -1. Motion carried. CHAIRMAN MATTERS: Chmn. Smith inquired about the parapet wall and Mr. Hass knows they met with the building official but as he was not in the meeting he cannot comment on the outcome. He will check on the status. 4 PLANNING AND ZONING COMMISSION MINUTES OF REGULAR MEETING OF FEBRUARY 6, 2003 MEMBER MATTERS: Mr. Barrett asked about the status of the riverfront design modifications. Mr. Hass explained that it is on hold for now as they are working on the CRA District (Community Redevelopment Area District) which is the riverfront. He will be meeting with the consultant next week but has asked them to draft the whole document that governs the CRA district and that would be an appropriate time to re- evaluate the actual guidelines in place. Mr. Blessing requested clarification when a motion does not get a second and Mr. Stringer suggested they not discuss the application as it will be returning to them for public hearing. He did say that a motion dies without a second. Mr. Blessing questioned the process of imposing exceptions on approvals and opened discussion on changes to the code. Mr. Stringer clarified that he meant conditions instead of exceptions and Mr. Blessing agreed. Mr. Mahoney added the issue of model home signs and the interpretation of copy area. Mr. Stringer explained that the use of copy area was to help distinguish between the sign and the face of the monument stand. Mr. Hass did agree that applicants were stretching the interpretation for model home signs and would look into making modifications to the code. Mr. Mahoney asked when does the commission get involved in the annexation of Dr. Shaloub's property and Mr. Hass said as soon as they file an application after it is annexed. DIRECTOR MATTERS: Mr. Hass explained that exceptions, which staff does not do because a variance is required for that, but when conditions are made this is where a gray area appears in the code leaving room for interpretation. ATTORNEY MATTERS: None Chmn. Smith adjourned the meeting at 8:36 p.m. (1/27/03 SBL) 5 QUASI- JUDICIAL PUBLIC HEARING MARCH 6, 2003 PLANNING ZONING COMMISSION SMITH: Announcements Mr. Barrett and Mr. Svatik are excused Mr. Blessing and Mr. Carroll will be voting if Mr. Carroll shows up okay. Did everyone have a chance to read the minutes of February 20 any comments corrections alterations okay I'll entertain a motion that we MONIER: I'll make a motion we approve the minutes of February 20 BLESSING: Second. LORUSSO: I'm sorry who second. MONIER: Mr. Blessing LORUSSO: Thank you SMITH: All those in favor please pass that down to Sue all right old business we have a quasi-judicial public hearing and we have two of them tonight we're gonna combine them we're going try to take both we're going to swear you in once so everyone who is going to testify here on either one would you please stand and 111 administer the oath to you. Anyone else. Okay do you swear or affirm that the factual statements and factual representations which you are about to give or present before or to this planning and zoning commission during this public hearing will be truthful and accurate. (Those standing answered in the affirmative) Okay thank you just when you come up to the podium to testify just give your name and address please okay will the applicant come to the podium please. LORUSSO: Excuse me Mr. Chairman I believe the next stage would be the ex parte communication if anyone has that at this time. SMITH: Okay would you do we have any disclosure of ex parte communications in accordance with the law on this item LORUSSO: Has anyone SMITH: Has anyone anything to say LORUSSO: Contacted or obtained information SMITH: contacted the crematorium ALLOCCO: You mean research LORUSSO: I'm sorry Tracy HASS: Any communication with the applicant including site visits or inquiries to the proposed use. Co/t/7?sib'• 1 EXHIBIT 5 ALLOCCO: I have made inquiries to the Department of Environmental Protection conceming the application made here not with the applicant (feedback from the microphone) nor did I visit the property from afar I made my observations I guess that would fall under all disclosure I've not contacted any the other members of the commission outside of any public hearing tonight probably would be the first contact. SMITH: Anyone else? Okay. ALLOCCO: And I have talked to the city attomey on certain matters relating to this issue. SMITH: All right then I'II ask you to come up again applicant please. Would you please state your name and address sir. YOUNG: James W. Young 1450 42 Circle Vero Beach Florida. As far as when we met two weeks ago you had asked for a couple of different options for the crematory site my engineer Randy Mosby has turned that in to the staff and to my understanding we got staff approval on the new location for the crematory really at this time that's all that I have to add. SMITH: Okay we covered the applicants that was the application was sent out to the other people to make comments didn't we? LORUSSO: Sorry sir. SMITH: Did you send out the ah LORUSSO: Yes, letters were sent. SMITH: Okay we had two responses didn't we. LORUSSO: The first time I don't believe any responses may have come back SMITH: Okay all right Andy_ MOSBY: Randy Mosby of Mosby and Associates if I could speak um just a little bit of additional information in what Jim has provided what we did do in the re- design is we tried to incorporate to the best of our abilities I did not speak at the last meeting but from my understanding of what the commission wanted we tried to provide additional buffering and landscaping in addition to the relocation of the crematorium and I think that's reflected ah well it is reflected on the new site plan that you have and I'm here to answer any technical questions you have I have talked a little bit with Dr_ Fischer on the project and I think the buffers are one of the big issues that we have and we're here to address any of those. SMITH: Okay thank you anyone else for the applicant. Okay does anyone else want to comment on this. Mr. Fischer. FISCHER: Henry Fischer 520 Blue Island Street Sebastian we had some comments last time my major concem and I've discussed it with Tracy Hass that ah this is a to the Elks directly adjacent to any residential property close by the charter school across from the Kash N Kerry. BLESSING: Say that again ALLOCCO: one point two pounds of particulate matter BLESSING: That's if its malfunctioning? ALLOCCO: No that's under normal operation they're allowed to spill this into the atmosphere after all if we take a 200 pound person and we incinerate them for 2 hours where does the body weight go we're left with a small um full of ash or bone chips it goes up into the air. BLESSING: I spent two hours at Lowther Funeral Horne at their crematory and they were cremating someone and nothing was coming out and they had mirrors to reflect anything that was coming out. ALLOCCO: Well I beg to differ you're welcome to 111 give you Mr. Ruskin's phone number here and ask him about it yes it does go up into the air now as a commercial property adjacent to this for instance the Elks hall or the Kash N Karry they have conditioning systems located on the roof by Florida statute falling under the mechanical code they're allowed or required to draw ten percent of outside air to dilute the build -up of gases within the building and where do you think that's going to be drawn from the surround area or the plume that's put up from the incinerator so no mention was made of this its pure fact it can be check this is exactly 1.2 pounds its quite a bit based on a yearly if we expanded his permit allows 10,241 pounds to be released into the atmosphere up to any amount to and that would include I mean that would partake in about a thousand cadavers. Based on this I don't see how 1 could vote for this type of operation anywhere and based on the misrepresentations if I'm allowed to I would ah like to make a motion right now although I would pass to other questions that the board members might have and I would like to make the first motion upon retum to me. Thank you. SMITH: Mr. Faille. FAILLE: I'd like to ask is there an air washer involved in the equipment with this place? YOUNG: Before I go on Andrew as far as are you a mechanical engineer? ALLOCCO: Yes I am I'm a professional engineer licensed by the State of Florida plus I'm a mechanical contractor State of Florida license for 16 17 years now. YOUNG: I was just curious if you were a mechanical engineer. As far as the process for the cremation which I spoke about a couple of weeks ago the cremation process takes about an hour and a half to two hours. The degree of the crematory is between 1900 and 2200 degrees Fahrenheit it is a direct flame that hits that cremates the person during the process the smoke goes up through a filtration system, which is approved, by the state of Florida and it purifies and goes out the top of the crematory through the furnace_ FAILLE: My question was is the filtration process dry or wet? YOUNG: It's dry. ALLOCCO: It's ah, question please sir it's not a zero emission operation it's not a zero emission operation correct? YOUNG: I'm not a mechanical engineer and I as far as that would ALLOCCO: Well that was another problem t believe one of the members 1 think Mr. Blessing asked to be supplied with technical data on the equipment specifically operation manuals and the like all we did receive was a hand sketch of a YOUNG: There's been a full copy of the retort given to Tracy. HASS: In our files if anyone would like to peruse the documents YOUNG; It's in their files_ Well I guess my only concern would be we can a crematory in Vero Beach we can have three crematories in Brevard county but here in Sebastian we cannot have one. ALLOCCO: You have a home in Melbourne which is a city of an excess of 60,000 persons have you applied up there for a crematorium. YOUNG: I just recently acquired the funeral home. ALLOCCO: By the way the one in Vero is located directly across from the railroad tracks because I visited the exterior of it today it is not in a highly residential area its next door to the Lesco fertilizer plant. YOUNG: It's also beside the Indian River County Health Unit. ALLOCCO: Well no the health department l believe is by the theater which is YOUNG: The health department is right down the street and they keep a close eye on the crematory_ STRINGER: If 1 can Mr. Chairman just stating for the record um as we typically do where we have two quasi-judicial hearings concerning the same matter we jointly hear the testimony and have the hearing but entertain separate motions um for that reason this is also the hearing for the conditional use. SMITH: Right STRINGER: Um while emissions may not generally be within the realm of a site plan review they would be within the conditional use if you look at the requirements of the code but just for the record this actually is a dual hearing but typically we vote on separate motions. SMITH: That's what I intended to do with it to vote on two separate items here but we did swear everyone in for both. Mr. Mahoney. MAHONEY: Oh are you going around this way oh okay fine. I gotta thank Mr. Allocco for his ah intrinsic statements he's made here but ah got to remember we're next to 512 which is a major artery and there's a lot of atomized rubber from tires going by there every hour and- I wonder if anyone's done any studies on that to see how much particulate matter wafting into the air from all those tires there's got to be a considerable amount of that and my biggest problem is I'm confused about the permit or the issuance of the permit or the lack of issuance thereof. There was an article in the paper or a public notice an intent to issue a permit for an air construction permit and an air construction permit is the one you must secure before you can make it an air general permit or a regular operating permit so this was issued February 11 after we had our meeting and after people had stated that the permits had been acquired so that's where I'm confused. Do they have an air construction permit now? HASS: On January 21 the state issued the notice of completion of their review now when I, I'm sorry if I misled anyone at the previous hearing when I said that we had that in the file what we had in the file was the actual notice from the state they completed their review and were preparing the notice of intent then the next step is the notice of intent following notice of intent to issue after the advertising requirements have been satisfied that's when the permit is issued much like when we go through a land use change within a community the state department of community affairs for any type of modification or comp plan they will advertise that prior to acknowledging that the city can move forward with that and so that's what's happened in this particular instance they ran the ad in the local newspaper and also sent the applicant the detailed letter package outlining that they were going to issue the permit MAHONEY: Notice of Intent HASS: Notice of intent MAHONEY: but there's a period when someone may appeal HASS: That's correct MAHONEY: Yes sir YOUNG: They issued the draft permit about a month and a half ago which they issue ahead of time and then once the ah as far as the actual permit we should receive that probably in the next few days we're expecting it any day but they issue a draft permit and give you the number just to go ahead and take care of the city part of it ALLOCCO: Draft permit MAHONEY: A draft permit? ALLOCCO: Draft permit MAHONEY: Could you explain what that is? YOUNG: You should have a copy of ah ALLOCCO: Well do we have it in the file would we send Mr. Hass to his office to retract it and ah show it to us a draft permit you might mean a draft application YOUNG: It was faxed to me I gave it to you HASS: Yeah I think its in here I saw it ALLOCCO: 1 have the copy of what you have in your hand there and that just shows that you have a completed application and paid your fee. HASS: This was issued YOUNG: We've had that for two months HASS: January 21 2003 this is what I was referring to that was in the file ALLOCCO: So in other words what this tells me is that he submitted a complete application but it says here they're not going to act on it until probably April 21 which is contrary to a few days from now again!! really don't want to stress again misrepresentation but it seems that's all we're getting here. HASS: This is typical of any as I explained in my memo to the commission this is typical of any intergovernmental agency that we deal with when they're reviewing St. John's permit for instance we ALLOCCO: We're not talking about the St. John's permit HASS: Well we're talking about similar issues let me explain please in a St. John's permit the same thing occurs we very rarely have a St. John's permit in hand prior to the issuance of the site plan approval or the subdivision approval just as with the health department these are other governmental agencies that have jurisdictional review capabilities through their own separate permits our site plan approval is not contingent upon the applicant obtaining these other state agency permits yes our code stipulates that they have to obtain those but that does not mean that we have to they have to obtain them prior to the site plan being approved. ALLOCCO: Well if you remember a month ago I asked you specifically questions such as that in other words if we tumed down a month ago there's a good chance the state wouldn't issue that permit but if we pass it there's another good chance that they might now your HASS: The state is not going to evaluate based on whether or not the city approves it or not the state is going to issue it under their own criteria they have a separate set of guidelines they follow it has nothing to do with the local jurisdiction. ALLOCCO: Okay YOUNG: Can I add something, They're going to come down and check the machine also once it's installed. ALLOCCO: I have no problem with that because the machine most likely if its being sold in the state must comply 1 don't have a question with that and in going back to the memo that you've submitted just now to me you eliminated a few other words that I had asked you about a month ago now if we must I brought the transcript of the tape we can play the tape right now if you'd like and hear the whole story. HASS: I'm not sure that would accomplish anything what we're trying to do here is establish the fact of the matter is they've obtained the necessary they've submitted the necessary applications to the state the state has issued the interim permit the state has issued the notice of intent to issue permit ALLOCCO: I disagree HASS: Which is not a part of the actual the site plan application that's being reviewed here by you you are reviewing the use yes they still have to obtain the state permits if they do not obtain the state permits they will not get building permits ALLOCCO: I object to the use interim permit I spoke with Mr_ Ruskin have you spoken with him HASS: No I have not spoken with him ALLOCCO: .There no such thing as an interim permit there's a permit or no permit HASS: Well they have an interim number so what do you want to call it and I don't see where this line of questioning is going what we're here to review is exactly we're to review the actual use is this use consistent with our land use guidelines and our zoning guidelines is this an appropriate use for this piece of property the state will handle the guidelines they will review this from their own regulatory ALLOCCO: Okay HASS: issue and determine whether or not it's consistent with their guidelines_ If they don't abstain if Mr. Young does not obtain all of the sign offs from the state level he's not going to get local permits to build the facility. SMITH: Mr. Mahoney do you have anything else? MAHONEY: Yeah I'd like to read from your first synopsis they signed off on January the 29 where your talking about number 23 other matters and you say Seawinds Real Estate company has received the requisite department of environmental protection air resources management permits for a humane I remember I asked about humane you said that's the way the permit was printed HASS: That's right right on here MAHONEY: crematory facility so that's saying that he has received all the permits HASS: Well and that's in accordance with what I had received from Mr. Young that was actually a copy of what the state had issued to him MAHONEY: Yes well ALLOCCO: Do we have a copy of the actual handwritten or typed application that was made? HASS: We've got the complete application we've got all of the technical specifications we've got everything that you could ever ask for its right here. SMITH: Mr. Fischer. FISCHER: Ah, Henry Fischer, if the applicant had stated on LORUSSO: Dr. Fischer, would you please, thank you so much. FISCHER: The adjacent property owner was never notified by the state or by this individual had the ah I clearly remember him stating he had this permit in hand. If he hadn't had the permit in hand and he wouldn't have said that we could there's a public input ah into the DEP permitting process and we would have had able to comment on this by him disguising that he had the permit when he didn't have the permit left once again the adjacent property owner ah without adequate notification. Thank you. SMITH: Bill. MAHONEY: Oh well enough of that as for the change itself you're going to be removing the dumpster correct. Where the dumpster is now HASS: That is correct and the actually from our understanding currently do not really utilize the dumpster itself they have pick up at the door as opposed to using the dumpster and its not a specific requirement that site can maintain a separate dumpster as long as they have MAHONEY: t was wondering where is the dumpster there's not going to be one HASS: No there's not going to be one. MAHONEY: Okay its just going to be removed okay correct so putting the facility there you know that would be a change since the dumpster is already there yeah HASS: Right. MAHONEY; So HASS: Right, its going in the location where the dumpster was MAHONEY: It would be unobtrusive as far as the worthiness of the change um I was just wondering where Dr. Fischer in relation to Seawinds you plan on putting in your apartments. FISCHER: The apartments can go adjacent to this property. MAHONEY: Yes okay well they're putting in live oak correct they're going to put some live oak in there which they start off live oak starts branching very close to the ground so its a very good tree for covering that they've got so that's a good move right there and actually you're not going to have only 47 parking spaces now you'll have 49 because you're only removing one parking space. HASS: Right with the modification now right MAHONEY: Yeah okay just want to get that corrected well that's all I have for now, thank you. SMITH: Mr. Blessing BLESSING: Yes I'm going to have some questions for Mr. Young and Mr. Mosby I'm not entirely satisfied with the screening that I had suggested previously that there be 25 foot screening of a class A catch me if I'm wrong here Tracy, but a class A opaque screen and my purpose was to sort of disguise funeral cars backing up to this facility in other words minimizing the activity that would be going in there I now believe that the screen should be 40 foot in length from both sides not 25 and then I'd like to see for the next 15 feet a Type B screen on both sides. I think that would have a little bit better effect on screening this facility and making it less um offensive to people who might be looking there. Question, garage door, which way is it going to open besides up I mean is it going to open on the west side of the building or the south side of the building. YOUNG: LORUSSO: STRINGER: YOUNG: BLESSING: YOUNG: It will be on the I'm sorry Mr. Young please come up to the podium. Thank you. Then everybody can hear once the question has been answered It would be on the west side of the building. Is there any reason why it can't be on the south side again There's no problem BLESSING: Again ah your limousines or the funeral parlor's would be more screened by the funeral home and the screening landscape screening we're asking for if they were backing up from that direction YOUNG: Yeah, that's no problem, as far as putting the garage door on the other on the south side of the building but I guess you know as far as we have funerals there probably every other day or two or three times a week and we go out the side of the chapel and place them into the funeral coach and we BLESSING: I understand that all I'm trying to do is minimize the offensiveness the psychological offensiveness that this may have to people that are looking in at the property YOUNG: Yeah, that would be no problem to make that change to the facility. BLESSING: How many bodies will the refrigeration store 3, 6 YOUNG: Probably the unit that we will put inside the facility will hold 5 to 7 remains. BLESSING: Okay, ah the crematory requires a lot of air I mean from what I observed when I went down to Lowther Funeral Home was that it consumed a great deal of air and they had a screened garage door that was opened plus they had other vents around the building. The last meeting we talked about venting to the north and 1 presume that you are still going to do it but it looks there was no indication of venting on the wall there power vent I think it is right. YOUNG: Correct. BLESSING: Okay so if we can make sure that that still is going to be on the north side YOUNG: That's no problem as far as BLESSING: And it might be wise to have a screen facility over the door the garage door so it could be left opened now I've I sat there and watched that chimney there was a person being cremated for at least 2 hours and there was not any white smoke there didn't seem to be any particular pollution coming out of it it was clean and frankly ah Mr. Lowther told me he said we have to be very careful of that because if the state the state just rolls in here and sits back in the parking lot and watches this thing for half a day at a time he said and if it starts to smoke he said we are in serious trouble he said it's something that we really watch carefully and he emphasized the fact that you need operations that have been well trained on this and ah so that they're doing things right they can't start the fumace too soon without it heating up that sort of thing. Who made your furnace and where are they located? YOUNG: Ws a Crawford machine it's out of Orlando, Florida BLESSING: Oh okay, okay that's probably the same one that I saw. Um will they service it for you and does it require regular service? YOUNG: Yes sir it does require regular service and they will take they will have a maintenance contract with the Seawinds Real Estate Company. BLESSING: Okay if ah how often have you been told that the state will show up unannounced YOUNG: Well they show up right now probably 5 or 6 times a year to check over the funeral home the preparation room the department of professional regulations they check over our paper work they come in and check the facilities ah since the problems up in Georgia and some of the other states they quite frequently come to the facilities. As a matter of fact we were just inspected not even a month ago. BLESSING: Is there someone from management always going to be available when a cremation is going on YOUNG: As far as one of the funeral directors will be at the site BLESSING: Skilled in handling this kind of a facility YOUNG: Ah yes sir as far as the training procedures I had sent that to Tracy the engineer I hired from Orlando comes over and does the training for the people that are going to operate the machine and they are certified he is certified by the state of Florida to do the training and Tracy does have a copy of that in his file. BLESSING: 1 know this is an emotional issue with people but its our job to be constructive and not obstructive and we don't want anybody getting hurt the adjacent land owners included but Sebastian is growing at around 9% a year and I frankly believe we've got to consider this favorably. It's zoned properly and if we can keeg_the offensivenes is th s chological offensiveness of thinacility at a minimum I would vote or it. That's all I have. YOUNG: 'Thank you Mr. Blessing. MAHONEY: Might 1 ask you a question at what stage of the process are you in acquiring the permit? YOUNG: As far as the state permit for the crematory MAHONEY: Yes the state permit. YOUNG: The state has issued a draft permit number to the funeral home and that's where we're at this point. MAHONEY: Yes we were provided with some information from Mr. Allocco is that prior to obtaining an air general permit a regular operating permit all new facilities are required to obtain and demonstrate compliance with an air construction permit have you acquired an air construction permit. YOUNG: Yes sir we have that's the draft that's the copy that Tracy has in his file from the state with the number_ MAHONEY: Did you have it a month ago when you made the statement that you did have it (unintelligible) that you did have the permit a month ago. YOUNG: I received it in January from the state of Florida and there's a note from the gentleman, which Tracy has in his file that your permit number has been issued and you can continue with the project. MAHONEY: Was that the intent to issue a permit or you had obtained the permit YOUNG: Yes they had they had given us the okay on the machine they look into the machine as far as the actual machine the specs on the machine and they issue the permit if it meets their criteria which it did and they issued the draft permit number to us. I mean as far as the actual crematory goes through the state and as far as you gentlemen as far as I would feel we meet the requirement of the City of Sebastian on the and use the crematory goes through the state of Florida to get the approval it really has very little to do with the City of Sebastian. STRINGER: That's my job to advise them they have to do so. YOUNG: But my statement as far as the permit is offered is brought to us by the state of Florida on the machine as far as the machine has past their tests we've given them all the specs on the machine they've issued the permit number for us it's called a draft permit. MAHONEY: Yeah I have a permit number here but I thought it would be different yes Randy. MOSBY: Again Randy Mosby, ah I'm kind of in a particular situation here because I'm the engineer of record for Chessar's Gap and I've been Dr. Fischer's engineer for many, many, many years and ah I know that there's been some discussions about buffering between Mr. young and Dr. Fischer and again that's not an engineering issue that's a land deal issue and I don't even want to address that and I really do appreciate it I've never met Andrew before and I appreciate you all having an engineer on staff because I think it's very valuable to your commission but one thing as a suggestion that I can make and I cannot offer probably any more to this meeting tonight than maybe make one more change or suggested change to the drawings the site as its designed has two additional parking spaces and what we can do to provide more buffer as Mr. Blessing was referring to we could move that crematorium approximately 20 feet turther to the west and eliminate two parking spaces and would still meet the parking requirements of the city that would give us 20 feet more buffer to the property to the east and we could and again I haven't talked this over with my client we could in addition to the buffering for that short segment of the building there could be a missionary wall opaque buffer put in along that east property line so we could add 20 more feet of landscape area and add a wall for that short distance and it would provide a substantial more buffer with regards to what Dr. Fischer is recommending 1 can't comment on that at all it's not my money 1 don't write the paychecks but as an engineer the site plan can be modified to make those changes and from what I'm picking up from the discussions here its ah the main issue is buffering and the landscaping and 1 believe that's one if Mr. Blessing's the comments about the emissions you know more about mechanical engine I'm a structural civil engineer well when the permit allows it they set those as maximum limits when you look at that bag there that's scary to me ah if that's the maximum allowed by permit hopefully its not producing that so you hope that your permits are operating at much lower than what's allowed by the permit application. 1, 1, my office is right next to the one that you went to Lowther's funeral home I've never even seen any emissions, smelled anything, our office is right next door to it if I didn't know it was there I wouldn't know it was there. You know but as an engineer we could we could move the building 20 feet to the west and we can get more green space and more buffer and if my client agrees to it he could even put a short segment of masonry wall there that would provide a more opaque feature. Again but that I can't speak of what Dr. Fischer would agree to and I can't speak for what Mr. Young is going to agree to but engineering wise the site plan can be modified and still meet all the codes. Tracy and I just looked at it and ah that's all I have to ah add I mean if there's any other technical questions which it doesn't sound like there is cause I'm not a mechanical engineer ALLOCCO: We have one here MOSBY: ALLOCCO: parking? MOSBY: ALLOCCO: MOSBY: MAHONEY: ALLOCCO: Okay The addition of the 480 square foot building doesn't that require additional Hopefully it's reflected in the revised parking calculations Tracy um You're very marginal as it is and As you see on this my engineer on the site plan ...five spaces for employees Now do you add an employee to operate the crematorium? MOSBY: Ah I don't know how again I don't know how that operates I would think that you are probably not having your not doing a cremation while you're having a funeral service I don't know hopefully I won't know that business for a long time and then when I get to that point hopefully I won't know how it's done anyway. Ah but I don't know with the power I believe our parking calculations are done per code and I've got a very good engineer that does those for me and ah I'd look at them at one time but I don't remember but I'm sure that we did them per the code. HASS: Based on the use proposed there's an additional 5 parking spaces over what is required by code for this use. SMITH: Okay. Randy I like your comment on having an engineer but many of us up here have much more experience in different fields and I think you've come up in the brunt of it a few times here with some of your things MOSBY: Oh yeah SMITH: I took you on quite a few times MOSBY: Don't get me wrong I wasn't saying that anyone here is more knowledgeable than anyone else I think you have a very good board here I've just never really been let's say in one of my areas of expertise or one of my site plans where it was real technically orientated where I could answer the questions which a crematorium is not I haven't had that opportunity to go head to head with Andrew but I think it's great to have an engineer_ SMITH: We're very fortunate to have Andrew with us. Ms. Monier. MONIER: I'm almost glad I missed the last meeting. (END OF SIDE ONE) and the terminology that's being used I'd like to see leave this meeting um this is a natural process its not necessarily a comfortable one for a lot of people but it sounds to me that Mr. Young is dong everything he can to work with the community as far as buffer and to ease that psychological issue um as far as 1 can tell the paperwork whether the timing was off one way or the other it seems straight to me by now all the permits the state's doing what they need to do um I don't think I see any problems with this, this is just part of life and unless there's a staff issue with permitting, which seems to be our biggest issue, it sounds like it's been taken care of. SMITH: Dr. Fischer you want to speak again? FISCHER: Yeah, please, this is only nice if its in somebody else's back yard if this was near your house be screaming ah there's a number of choices that can be made tonight ah the number one choice would be this gentleman would move to a place near the railroad track in a general commercial away from a residential area um that would be a great thing 1 would recommend if you are going to approve it delay it 30 days for further discussion and ah there are a lot things that you can do as a planning and zoning board you're just not up here for a formality there are restrictions can be put on this operation of this very very very very negative impact on my property and I would strongly recommend this gentleman move it up to the northwest number one he doesn't have to put it on my boundary it's a nice recommendation on 20 feet he should purchase more buffer so he doesn't negatively the value of my property will be decreased at least 50 to 80 percent when he puts this on my boundary line okay this is not a mundane operation he should be restricted to the hours of operations not on Saturday or Sunday he's told us that he's only going to do one or two things he said there's not very much business on this so he doesn't need Saturday and Sunday and that's your prerogative that's your duty in matter of fact that's why you're here hours of operation it's not unusual you put hours of operations on my operations all the time so I'm not I'm used to that so you do that that's part of you job_ MAHONEY: We've done that with the car wash. FISCHER: Pardon MAHONEY: We've done it on a car wash. FISCHER: You've done it on car washes so here's a guy with an incinerator next to residential areas so you do have the right to certify that the Elks while they're having a picnic on Sunday don't have to have him cranking this thing up. Um the ah you can demand or you can require an operator that's certified on site at all time we know they do fail that's why the state comes looks at these things and you already know from t his engineer that gave a that the state when they would come to you they would need a certified smoke detector the DEP doesn't have that he says I inspect it 5 times that doesn't mean anything the DEP would have to send a smoke specialist with the instruments to negate or cause him any trouble so he got this ah what is it 11 what was the poundage it can do. ALLOCCO: It can do 12 pounds per hour FISCHER: 12 pounds per hour ALLOCCO: 10,241 FISCHER: 10,000 see that's a lot that's more than a gigantic incinerator which Randy knows so you got this ah hours of operation, certified personnel on site, more buffer, go to the northwest side, if he's in a hurry hell yield to you he'll go to the northwest side I don't want him on my boundary I don't want him to cost me I paid a lot of money for this site I put in water and sewer and drainage and ah thoroughfares and um plumbing water pipes drainage pipes and I've got a lot of money in this thing okay and it's not fair for this fellow to come here and dump on this community on this thing you need to limit his hours to 8 hours a day no Saturdays and Sunday a certified person on site and you all need to get a smoke detector so in case this doesn't because there's no one gonna monitor this the DEP doesn't send a smoke detector down in 25 years so this thing.can -run any way he wants to run it so at least give the Elks a chance in their picnic area on Saturday and Sunday that they don't have this guy cranking these bodies out of here which I don't have any problem with these I just have a problem with it in my back yard. Thank you. MONIER: Sir do you SMITH: Dr. Fischer can I ask you one question. You mentioned about a buffer that you were trying to get Mr. Young to purchase part of your land to use as a buffer you said something about 97 feet is that the length across the back of the property. FISCHER: It's 250 by 87 would be a half acre and that's what we discussed with this gentleman and he's got another home he's built he tells me and he's just purchased one in Melbourne and he's building one in Vero and where do you think all those bodies are going to go. Now there's hundreds and hundreds and thousands of bodies sitting in Melbourne with no place to go and he's picked Sebastian so you got to know that he's going to crank them out you need ah you don't need them there cranking that thing 24 hours a day if he can't do it in 8 hours and he can't do it during the week days and he can't do it within (unintelligible) then don't give him the permit. MONIER: Um, how long has Strunk Funeral home when was it built? MR. YOUNG: 1982 MONIER: 1982 Dr. Fischer when did you buy your property? SMITH: That was his all along MONIER: Or Seawinds I'm sorry FISCHER: Sold him his property I've sold him his property okay MR. YOUNG: 5 years ago FISCHER: 5 years ago I bought the property in 86 something like that MONIER: Okay so you bought the property the funeral home was there no HASS: No it was constructed after the purchase MONIER: After Dr. Fischer owned all the property and then sold to for a funeral home HASS: That's correct r3� MONIER: Okay MR. YOUNG: 1'd like to add something, as far as restricting the crematory for not being able to run the crematory on the weekend the problem with that in the state of Florida there's a 48 hour waiting period before you can be cremated and also there's paperwork that we need to get completed in the mean time let's say for instance somebody passed away.on Wednesday and they came into the funeral home and made the arrangements there's a 48 hour waiting period before we can cremate the person well we may not get the paperwork with the authorization back from the medical examiner so we would have to wait until Monday of the following week to cremate that person it it as far as it's 48 hours from the time of death and also sometimes the doctor won't sign the death certificate for a day or a day and a half so we would have to make that family wait until the following Monday before the cremation would take place so you're talking Wednesday, Thursday, Friday, Saturday, Sunday, Monday six days before the person would be cremated. SMITH: I understand that you have a refrigerator that will hold 7 bodies is that correct. YOUNG: That's correct but I'm talking about the part that your mother is there at the funeral home for 6 days before she can be cremated because the City of Sebastian doesn't want anybody working on the weekend in the crematory. SMITH: Well, okay thank you. BLESSING: One question Mr. Young ah the crematory is equipped with a silencer YOUNG: Yes sir you can pretty much stand right outside the crematory and not hear it run. I mean you were down at Lowther Funeral Home and you were probably sitting in the front reception in the reception where the reception is and probably couldn't even hear the retort running could you. BLESSING: No it was it was relatively quiet you can hear it but for a machine that size and doing what it was doing it was relatively quiet. YOUNG: It's very quiet. BLESSING: And I want to thank you Mr. Fischer for suggesting that I leam something about crematories. ALLOCCO: Okay, is it a requirement that you have a sign there explaining crematorium or stating crematorium is that in the Florida Statute in your industry. 'YOUNG: That a crematory is located on the property? ALLOCCO: Doesn't it have to say crematorium. YOUNG: Well we will put up a new sign once this is approved and put Seawinds Funeral Home and Crematory but to my knowledge ALLOCCO: You were asked that question a month ago and ah somebody asked about identifying it and you said it would be not obvious. YOUNG: As far as most of the funeral homes have for instance Strunk Funeral Home and Cremation Service its part of your advertising that you offer that service doesn't mean that you have a crematory but if you look in the phone book they're all listed under crematories and cremation services_ SMITH: And they farm out the body then. ALLOCCO: Prior YOUNG: Excuse me SMITH: They farm out the bodies YOUNG: That's correct ALLOCCO: Prior to cremation do you remove the fillings from the cadavers' teeth? YOUNG: I won't even go there you know better than that ALLOCCO: No 1 I'm bring this point up because it's a general knowledge throughout the industry that buming of the fillings causes a hazardous material within the air this is another thing from Mr. Ruskin you probably familiar with that am I not you never heard that before? 1 asked a question have you heard about that YOUNG: And 1 won't even answer that question ALLOCCO: Okay MONIER: Thank you very much. SMITH: I think that we covered this yes FISCHER: I can answer that for you Mercury's a stable compound in your teeth as long as it is in the form of an amalgam_ When you bum it mercury vapors release that's just plain chemistry. ALLOCCO: That's a hazardous material exactly as an expert SMITH: But the chemicals are so minute that it wouldn't enter into the equation MAHONEY: So once it enters the air it becomes methyl mercury that's going to become SMITH: Oh my God we teamed that in chemistry years ago okay I think we beat this to death I'd like to ask any one else had any more questions on this we'll take the first the STRINGER: 1 would like to SMITH: Minor modification first STRINGER: Actually um probably it would be best to do the conditional use because if you don't allow the use you don't have to worry about whether or not you are going to approve that specific site plan general you go from the more general to the more specific the only reason they're in this order on the agenda is one was old business. SMITH: Okay so I'll ask for the conditional use STRINGER: Ah yeah just to read you over what you are to consider and also as far as one direction as to what you're not to consider and that is the interpretation under this code um interpretation of whether or not having a crematorium on the site would be an accessory use while the planning director had the option to go to the Planning Commission for advisory opinion the following interpretation of that is up to the Growth Director any appeals from that if someone disagrees that this is an accessory use to the funeral home appeals of that could be made to the City Council sitting as the Board of Adjustment that's where really the decision of whether or not it is an accessory use is not within your jurisdiction within your jurisdiction you have six criteria to look at which is on 6 -1 of your LDC if you want to read it but one is that the design located and proposed to be operated so thus the operation type thing comes into play so that the public health safety and welfare will be protected. Number 2 that it does not present an unduly adverse impact upon other properties in the impacted area in which it is located you're also supposed to find it based on the skill intensity and operation of the use it shall not generate unreasonable noise traffic congestion or the potential nuisances or hazards to contiguous residential properties. Ah your fourth finding is that it conforms to all applicable provisions of the district in which the use is to be located um that would be more along the lines of site specific things ah as I said the interpretation that it is an accessory use has been made um you have to find it satisfies specific criteria which are not really in here there's specific criteria for funeral homes which have already been met so there number 5 is not applicable. The following is it consistent with the Code of Ordinances and the Comprehensive Plan so those are the things that you're actually supposed to be able to say we find all those are present or if you vote no you have to say what you find is not. SMITH: Then I can ask for a motion on the conditional use permit first, Mr. Stringer? STRINGER: Yes. SMITH: Okay, I'd like a motion on the conditional use permit first anyone make a motion. ALLOCCO: Mr. Chairman I'd like to make a motion we disapprove the application of the conditional use based on items one and two as read by Attorney Stringer mainly doing with the health and safety and adverse activity upon the neighborhood. SMITH: Okay you make a motion not to accept it anyone want to second that. FAILLE: I didn't hear the motion could you repeat it please. ALLOCCO: Yes I make a motion we disapprove issue of the special based on items 1 and 2 dealing with public safety and adverse conditions. FAILLE: Okay thank you SMITH: Do we have a second? FAILLE: I'll second. SMITH: Okay call for the vote Susan LORUSSO: Okay, Mr. Faille (yes), Chmn Smith (no), Mr. Blessing (no), Mr. Allocco (yes), Mr. Mahoney (no), Ms. Monier (no) okay the vote is one, two, three, four no two yes motion to deny fails. SMITH: Okay can I have a motion on the conditional use permit? MONIER: I'll make a motion we approve the conditional use for Seawinds BLESSING: Second LORUSSO: Mr. Blessing second SMITH: Mr. Blessing second call for the vote. LORUSSO: Mr. Faille (yes), Mr. Mahoney (yes), Mr. Blessing (yes), Ms. Monier (yes), Mr. Allocco (no), Chmn Smith (yes). Motion passes 5 to 1. SMITH: Okay the second one will be on the site plan is that correct, minor modification can I have a motion for that please. BLESSING: Mr. Chairman I move to approve the application from Seawinds Real Estate Company to add a 480 square foot crematory to their property at 735 Fleming Street, Sebastian subject to the following conditions that a landscape screen namely a Type A opaque screen as described in the Land Development Code under Section 54.3- 14.16 be extended to 40 feet on the east side of the crematory building and to 40 feet on the north side of the crematory building. That a Type B screen will be added so as to extend the landscape screen an additional 15 feet on both the east and north sides of the property thus the overall screens on the east and north sides will be 55 feet. That the garage door shall face south and be screened. That the powered exhaust fan shall vent to the north and I've got thoughts on this and that ah the operatin hours be restricted to five and a half days per week. Do we have to name t e hours there? MAHONEY: Did we get into that? STRINGER: All right ah actually if you want anything like that what you have to do is move to reconsider on the conditional use because it was passed without conditions_ SMITH: Oh okay okay STRINGER: You can add conditions on the conditional use as you can on the site plan but I think if you want to have hours of operation or something tike that all you gotta do is move to reconsider the approval on the conditional use and add that. BLESSING: Well I'll leave that that's my motion. SMITH: You got that LORUSSO: Got it. SMITH: Anyone second you want to read the motion so we all understand it. MONIER:. The hours are not included. LORUSSO: The hours are not included. What is included is the Type A opaque buffer 40 feet on the east and 40 on the north with a Type B additional going for an additional 15 feet east and north the garage doors are to facing south and be screened and the exhaust fan to vent north. Those are the conditions. MAHONEY: I'll second for discussion. You're talking about screening the door? BLESSING: Yes. MAHONEY: How do you accomplish that? BLESSING: Sliding screen. They need air from what I can gather that crematory really consumes air and they have to have vents on all sides of the property but the powered vent should be going facing north because it really sucks in air_ MAHONEY: You're referring to the revised site plan. BLESSING: Yes. MAHONEY: Okay, in the northeastern comer BLESSING: Yes. MAHONEY: Well I seconded it for discussion. The problem I have is with this accessory use is the permitted use I shouldn't be talking about this now but it seems tike its just its sort of like humpty dumpty a word is whatever I say it is no more no less because this is like a wide open provision accessory use permitting it could be a lot of things that aren't in the code this seems too open for me. I know I shouldn't be bringing it up now but that's a problem 1 have in accessory uses. STRINGER: It's those guys that were on the planning commission when they approved the LDC changes it is defined (unintelligible) um it says uses clearly incidental to the principle purpose ah that is subordinate in the area extent and purpose to the principle use and you talk about pretty wide open and that contributes to the comfort convenience or necessity of the principle use and located on the same lot so you know when you consider that as being the definition of accessory use Tracy's probably not too out in left field with his interpretation um I think it could be argued that it does help the convenience of the funeral home to have a crematorium on the site MAHONEY: But it's not consequential to it STRINGER: Yeah, it's wild MAHONEY: Yeah, that's the problem I have with it STRINGER: Actually there is a second to the motion SMITH: Right there is a second STRINGER: Ah under strict procedure we've always had this backwards in Sebastian don't ask me why but usually after the second then you have discussion among yourselves and the only most of the boards around here think once there is a second they can't discuss it anymore in truth after the second you can discuss it with what it prohibits while there's a standing motion with no more input other than if there is a specific question from you guys to either us or somebody else. MAHONEY: Right that's why l seconded it for discussion. STRINGER: t knew you knew that. .SMITH: Well anyone want to discuss it. MAHONEY: Well if we could incorporate the proper safeguards I think Dr. Fischer is worried more about sight lines when he puts his apartments in than anything else people might be viewing this or just aware of its presence on the property but since the code says its an accessory use to Seawinds Funeral Home which is already there w ich is not supposedly dissatisfying I can't see how putting in a crematorium of this mall ize would _cause so much discomfort unless there's some religious you know. es Dr. Fi cher FISCHER: We're under public discussion yet we didn't close the public hearing did we? MAHONEY: 1 don't think we did no SMITH: Okay, I don't think that's applicable is it Mr. Stringer. STRINGER: (Unintelligible) I didn't hear it BLESSING: We can re -open the conditional use. FISCHER: Okay under discussion ah the engineer offered you a 20 foot more foot setback and a wall would be a positive and another positive when you go back to the comprehensive part with the two ah restrict the hours on the weekends to after B o'clock if he needs weekend hours so the Elks are having a picnic in the afternoon he should be restricted on the hours of operation till later in the day Sunday say like after 7 or 8 o'clock. Thank you. SMITH: I know but I don't want to go through that again. YOUNG: I guess my concem would be how about if I'm having a funeral on a Saturday and the Elks are over having a barbeque. I mean what's the difference. SMITH: Okay MAHONEY: The transporter vehicles are still there and you know they've been going on. SMITH: I think 1 better close this public hearing. STRINGER: Then we need to restate the motion. SMITH: Okay. I'm going to close the public hearing now so everyone who spoke is finished. Okay restate the motion. BLESSING: You want Sue to do it? LORUSSO: Both of them or just the site plan. STRINGER: Oh he can just say I remake my motion at this time. BLESSING: I remake my motion. LORUSSO: What I'm saying both motions the conditional use and the site plan or just the site plan, just the site plan okay STRINGER: If they're clear on what the motion is you don't actually have to read it just the maker needs to say that he remakes his motion because we really weren't supposed to be taking a motion in public hearing. SMITH: Bill you want to add anything. MAHONEY: Well I like what Randy said but he's not here anymore. Could we incorp would you be amenable to incorporating what Randy suggested to removing two more parking spaces and putting in more buffer 1 forgot how he phrased it. BLESSING: Um actually if we could move it forward 20 feet is that what it was and ah still put the buffering landscaping in and he even offered a wall I believe that's an either or choice. MAHONEY: It depends on what Mr. Young is agreeable to. MR. YOUNG: Was he speaking for Mr. Fischer or for myself. BLESSING: No he was just speaking general. MR. YOUNG: As far as I'm concerned the site plan that we've turned in as long as we're not interested in making any changes unless it to the buffer as far as the landscaping hg was talking for Dr. Fischer not for me. SMITH: We have a motion and we have a second LORUSSO: Yes and the public hearing is closed now no no it's closed now we can't any more public input FISCHER: Mr. Young just made some input and I would like to say it's detrimental to my property and by setting it back 20 feet further to the west and putting a wall up and buffering as your doing is a further positive part of a negative impact. SMITH: Where are Sue. BLESSING: I repeat my motion. LORUSSO: Thank you Mr. Blessing. MONIER: That motion is to contain the buffering right the landscaping. LORUSSO: That motion contains the Type A landscaping 40 feet going east and north then Type B going east and north for 15 feet BLESSING: Additional feet LORUSSO: Additional feet yes. It contains the garage door to face south and have screening. The exhaust fan to vent to the north. SMITH: Okay all right FAILLE: There's no restrictive hours of operation. LORUSSO: no BLESSING: No that's ah Rich said we had to we'd have to reopen the conditional use hearing again if we wanted to do that. MONIER: Okay I will second that. LORUSSO: Well that motion had been seconded by Mr. Mahoney did you want to re- second. MAHONEY: We renewed it I'm waiting for another second MONIER: I'II second as a final. LORUSSO: Okay thank you. SMITH: Okay want to call for the vote then. LORUSSO: Okay, Mr_ Faille (yes), Ms. Monier (yes), Chmn Smith (yes), Mr. Mahoney (yes), Mr_ Blessing (yes), .Mr. Allocco (no). Motion passes 5 —1. L� SMITH: Okay do you want to reopen for the we're done with that okay all right chairman matters, Tracy I have only one thing I brought to Sue's attention that the notice in the paper on Sunday had the meeting time as 6:00 p.m. and it may through people off on these government meetings at 6:00 p.m. instead of 7:00 p.m. would you just make sure they do the right thing in the newspaper. LORUSSO: May 1 answer that? MAHONEY: They printed a retraction. SMITH: Did they. LORUSSO: Yes, Mr. Smith I did contact Jeannette at the city clerk's office she called the newspaper and as Mr. Mahoney said yes they did print a retraction and did correct that. SMITH: Good 1 just wanted to bring it to your attention. Okay thank you very much. Members matters anyone have anything. BLESSING: Have we heard anything about Sebastian Retail? That place is as clean as a whistle nobody's doing beans up there. SMITH: That's for sure. HASS: The building department contacted them and issued the permit the applicant picked up the permit last week and the materials will be in and construction will start Monday. SMITH: Great we'll be watching. HASS: So will we. SMITH: Okay, director's matters. HASS: 1 have nothing. SMITH: Okay MAHONEY: Oh wait we didn't go SMITH: Mr. Stringer you have anything? STRINGER: We have one thing that that I guess we're going to need to bring to you but it will be quite simplistic which is the ah house numbers on buildings um code enforcement wanted that changed because right now they have 30 days once our officer gives them notice that they don't have the proper building numbers on their house and they don't know if that originated back when people had to go out and cut down the trees and build the house numbers themselves but with the implementation of Wal -Mart and such they figure that 7 days is plenty of time to go down there and buy house numbers and stick them on your wall. Ah looking at that though I don't know why the heck that's in the land development code you know since land development involves the G -`.J -e,ti -to S -E'te— Dct ��C -tests W� e ce_ And y C 9 �vr Z (4- hCt O w t PRESENTATION FOR PLANNING AND ZONING MEETING DATED APRIL 1, 2010 Board Members during the January 7, 2010 meeting you made a decision to approve the Seawinds Funeral Horne site plan minor modification and here again you are being requested to once again approve of this modification. A decision many of us Elks not only feel is detrimental to the well being of the Elks Lodge but to its members and guests, the City of Sebastian and the future of the townhouses planned for the area. Basically I have an issue with the factuality of some of the material and testimony that you based your decision on and would like to address some of these. First during the meeting of Jan. 7th you heard testimony from Charles Delauder our Exalted Ruler that after smelling smoke he went around to where the crematory is located and found it to be involved in flames at which time he called 911 from his cell phone and was told by the dispatcher to keep and eye on it and if it got bigger call back. Sounds to me like the Shepard who cries wolf too many times. Mr. Delauder also stated to the fact that no one from the funeral hone was around the scene at the time. Also time per nitted you will later hear testimony that it was indicated to some of our members during and after the fire by various City and County Departments that there were concerns about the location of the crematory to the Elks and the fact that we had over one hundred people many of them elderly people in our lodge at the time of the fire and that the police upon arrival evacuated the lodge. (Exhibit 1) Yet during the January 7 meeting you were told that two of these departments (fire building) verbally advised Ms King that the building performed as was supposed to during the fire. Yet there was no mention of the letter from the Chief of Police expressing her concerns. (Exhibit 2). Gentlemen you were given a copy of my credentials. I was in various stages of the fire service for 27 years. During this service I graduated from the Connecticut State Fire Academy and was appointed as a code enforcement, fire and arson investigator. Take a look at this structure fire! Now ask yourself, does this building look like it was built and performed in a manner that addressed the safety of surrounding structures. (Exhibit 3) These are pictures of the crematory after the fire. Notice in the picture on top to the left and to the right on the bottom is a palm tree in which the base stands 18' 8" from the crematory and 8 1/2 feet from the Elks Lodge that burst into flames. (Exhibits 4 5) Puts into perspective the distance of the branches to the soffit and roofline of the Elks. A matter of a few feet! (Exhibit 6) This is a distance sketch between the crematory and Lodge. Take notice that the distance between the crematory and the lodge at the soffit line is less then 14 feet. Gentlemen, let's talk facts and the simple fact is that it's not that the building performed as it was supposed to, our lodge was spared by pure luck! If the wind had been blowing from south to north instead of east to west our lodge would have suffered major damage. When we pointed out issues of concern at the Jan. 7 meeting your staff continuously stated that it met minimum code. Minimum code is just that the bare minimum code allowed. But when the minimum code can be proven to have the potential to cause an adverse affect on the integrity of an adjacent structure and the welfare of its occupants then the minimum code is not applicable. This could also address setbacks to an existing building. Would you allow a crematory within 20 feet of a home? To us Elks our lodge is like our home! In fact I advised the board at that meeting that local governments have the right to adopt their own codes as long as they are equal to or more stringent then the state codes! Exhibit 7 is a copy of the section of the Florida Building Code that attests to this fact. Yet the advice from your staff was that minimum code was all that they required. Approving this modification a second time knowing these facts could justify legal action against the city if a situation arises. During the Jan. 7 meeting some members of P Z showed concern and addressed the possibility of moving the crematory to the other side of the funeral home. That is until Mr. Young and staffers brought to your attention that the original plans called for the crematory to be built to the south of the funeral home next to property that was vacant then and is still vacant. Why would P Z members take it upon themselves to move the crematory from near vacant land to adjacent the Elks Lodge next to our fire exit? I'm sure politics had a lot to do with it! We at the Elks Lodge know what happened and we feel the City Council meeting verified what we concluded. When the owner of the vacant land was asked at the council meeting if they could move the crematory next to his property he exclaimed no way and the subject was dropped. 2 Wouldn't it have been nice if the Elks had been given the same respect! We have two alternatives, first the city council made a suggestion that the airport property might be a possible place for a crematory and it has also been brought to our attention that Mr. Young is involved in four funeral homes. One I'm told and he can correct me if he so wishes is in a commercial -park why not build there. Is there any doubt by anybody here that if Mr. Young is allowed to rebuild especially with the approval of the modification that with all the funeral homes he is an owner or partner in and the funeral homes without a crematory that contracts the use of his crematory that Sebastian will be known as the crematory factory of the east coast. I argue that factual evidence supports that this crematory is not a utility building as addressed by this boards interpretation. Under existing law for a permit to be issued for a structure to be built as a utility building it must be used on the property by Seawinds Funeral Home located at 735 S. Fleming St. period. Not a regional crematory factory used by several counties and multiple funeral homes! This would constitute a standalone business. The cremation units he plans to install can be run 24 hrs a day. According to the specifications he can cremate 6 deceased in a 10 -hour day per unit that's 12 deceased with fourteen hours left. He testified that the refrigeration he is requesting holds up to 28 bodies. If the townhouses ever built how will this affect the sales of these units. This area is a mixed -use area with private dwelling units. Is a crematory factory a good idea as part of the mixed usage? Especially a business that just pushes the button and walks away! Exhibit 8 is a copy of the fire report. If you read the fire report pages 3,4 7 you'll find that the fire department's investigation led to a finding that the fire started in the roof assembly's ordinary_ combustibles which was the result of excessive radiant and conductive heat transfer from the emissions stack to the combustible material. They fiirther concluded that it was the result of operator error. My years of experience and training lead me to agree with this conclusion with one addition. This fire did not just occur during this one event. From investigations I've conducted where the starting source of the fire was confirmed to be in the area surrounding a chimney or stack it has been concluded that years of excessive heat will cause a drying out and eventual charring effect of the wooden combustibles until it eventually ignites. 3 I have inspected and had telephone conversation with other crematory's in the area and found the roofing construction to be metal beams and decking with a stainless steel stack with 4 inches of installation to protect the surround area from heat. Yet this city would approve the over doubling the size of the crematory with two cremators installed with a wooden truss system. I know the new crematory calls for a sheetrock fire separation around the stack with a sprinkler head on the top and bottom of the shaft but I have issues of concern which I'm now researching Is the stack stainless steel or galvanized steel and what type of insulation protection does it have. (The use of galvanized steel in temperature above 392 degrees Fahrenheit could result in peeling of the zinc at the intermetallic layer) What is the UL rating on it and distance of separation from any combustibles? What heat is emitted from the sides of the stack and how would the burning of garbage and the deceased at the wrong temperature effect the stack temperatures? (Sheetrock subjected to high heat over the years could deteriorate and loosen from the fasteners) What protects the plywood sheathing from the stack and just where do they plan on installing the two sprinkler heads for maximum effect. Just like fire and police personal to maintain their certifications continuously train in their individual field of expertise, what type of on going training is provided the operators of the crematory and where are the records proving these individuals are certified to operate the equipment they are responsible for. Evidence, including the fire report, supports that the proper operation of this equipment is not being upheld. These are all things you should consider in your decision and how effective will the stipulations you set remain over the years to come? The main concern is the human error part and the way this crematory was operated. It's just a matter when something will happen again! On page two and five of the fire report the operator states the temperature in the chamber of the retort was in excess of 800 degrees when he placed the deceased in then pushed the button to bring the temperature up to 1690 degrees. Exhibit 9 is the DEP Rules for Crematories. On page 4 it states that cremation shall not start until the chamber reaches 1600 degrees Fahrenheit. From my talks with other crematories, putting a body in especially a large person at the lower temperature amounts to starting a grease fire obtaining greater temperatures in the unit and stack. 4 Yet the operator just pushed the button and walked away. This brings up another issue. He admits doing a previous cremation. At a remaining temperature of close to 900 degrees Fahrenheit when he put the second deceased in, how did he remove all the previous persons remains in that high of a temperature. Remember this was a one -door chamber! Have you ever opened your oven door or grill lid and stuck your hand in to check something and pulled back from the heat. That's only an average temperature of 350 -400 degrees. Imagine 900 degrees! Next on pages 4 -5 of the fire report states that no records were found during the search of the crematory. When questioned the operator stated they were in the building. Where these records ever found in compliance with page five of Exhibit 9? When we look to the integrity of the owner submitting the modification one only has to look as far as the Jan 7 board meeting. On Jan. 7th members of our lodge testified to garbage being burned at the crematory in violation of exhibit 9 pages 3 Rule 62- 210.310(3),F.A.C. (3)(e) and page 4 Rule 62- 296.401(5),F.A.C.2.(d). Mr. Young denied this fact while under oath. Exhibitl0 are Letters attesting to this fact and also addressing the fact that the operator admitted to them that he was burning old caskets! Also attached is the fire report of the incident confirming that upon arrival FD noticed smoke and red/orange glow coming from the exhaust on the roof. Can you imagine the intensity of the heat to make the stack glow? It is also proof that the operator uttered a false statement by stating he was cremating a body and not the garbage he admitted to members of our lodge. On Jan. 7 members of our lodge testified to witnessing smoke and sparks emitting from the stack of the crematory. Mr. Young while under oath denied this fact. Exhibit 11 is statement's attesting to this fact. On Jan. 7 Members of our lodge testified to the offensive odors coming into our lodge from the crematory. Mr. Young while under oath denied this fact. Exhibit 12 is statement's attesting to this fact. On Jan. 7 Member of our lodge testified to bodies being wheeled on gurneys from the funeral home to the crematory. Mr. Young while under oath denied this fact and gave a long story about how the deceased are driven from the Funeral home to the crematory. Exhibit 13 is letters attesting to our claim including a letter from a local restaurant. 5 Gentlemen a lot of mistakes were made in the original decisions and approval of the crematory. As I stated on Jan. 7 now is your opportunity to correct these mistakes. Do we really want a regional crematory factory within 20 feet of an existing building and in an area zoned for mixed -use occupancy including residential! Thank You. cc: State Building Dept cc: State Fire Marshal cc: State DEP Sincerely, Andrew J. Sims e Treasurer Sebastian Elks 1569 Ocean Cove St. Sebastian, FL 32958 77- 913 -2515 cell 6 City if Sebastian Planning Zoning Committee City Council members While conducting the 1 monthly meeting at our Sebastian Elks Lodge #2714 located at 731 S Fleming St in Sebastian on January 6th 2009. I smelled an odor almost the same as if florescent lighting ballast was shouldering, it seemed to be coming from our fire exit door on the south side of out Lodge building, which is located next to the Seawinds Crematorium building. As the meeting was almost over, I decided to wait until it was. Bob Williams was sitting close to me, just to the right of my podium, I gestured him to join me as I headed to the fire exit door, where upon 1 opened the door and viewed sparks and embers emitting from the crematory chimney, this was of extreme concern to me as our building is just the legal limits next to the crematorium. The sparks were flying 10' to 20' into the air above the chimney and this was not the same kind of smoke we had experienced before during our bingo secessions on Wednesday and Thursday evenings when they are cremating bodies. Bob and I walked around the Hedge line that separates our property line from the crematory property, we saw a shirtless attendant, bob asked "What in the Hell are you burning in there his reply was.... As I recall, "I'm burning some old packing stuff. At that point we could hear sirens coming from 512, the attendant then ran into the bldg and did something that stopped the sparks from coming out of the chimney, just before the fire engine arrived, some concerned citizen must have called it in, as it is just across the street from the chesser gap shopping complex, and would have been easily visible, I might add that on the other side of our building, is the EXON gas station and convenient store. All around the area surrounding our property is grass and brush which could be easily ignited by the sparks or embers. Bob Williams used to be a fireman up north around Boston and I could tell that he was visibly upset and mentioned that our roof could have easily caught on fire as a result of this sct of stupidity. I have a hard time understanding how the "Powers that Be" would allow a crematory in such close proximity to a commercial center on property which is at approximately geographically center of the city with lots of multi family zoning and adjacent to it, we have seen smoke and experienced odor coming from the crematory before, but nothing of this magnitude. We have over 450 members and most are very upset about this situation and feel the crematory at the very least should be relocated to another site more suitable or a t the very least moved to another location on their property. They want to double the size of the one that caught fire and burned down. Please look at the pictures; they are worth a thousand words Sincerely yours Edward W. Arens Past Exalted Ruler Sebastian Elks Lodge #2714 SMOKE/SPARKS FROM STACK 1 PLANNING AND ZONING ;OMMISSION MINUTES OF REGULAR MEETING OF JANUARY 7, 2010 Mr. Pete Sweeney, office address of 3333 20 St., Vero Beach, attorney for Seawinds Funeral Home. He stated the issue of stormwater drainage is not an issue pertinent to tonight's discussion. Chmn. Paul asked about the smoke and odor complaints from neighbors. Mr. Young explained that DEP will come to the facility and witness a cremation for a duration of two hours. DEP also inspects the machinery every two years. There was discussion about relocating the crematory to the back of the funeral home building, more to the south end of the property. Ms. King said that was the original location request but a previous Planning Zoning Commission requested it be placed at the northeast corner. She also said she spoke with the Indian River County Fire Department. They had no comments on this application and the Fire Marshal said they have no issue with the location of the building and everything went as it was supposed to in the event of a fire. Mr. Dodd asked about the final plat for this part of the PUD. Ms. King replied the PUD is a zoning classification, it is part of the Chesser's Gap PUD but it is not enjoined with the association that has been established to take care of the stormwater system. Mr. Neuberger asked about the fire marshal's report. Ms. King read a portion of the conclusions of the fire report which stated this fire was an accidental event, and handed copies to all the commissioners (see Exhibit 4). Mr. Young displayed on the overhead projector the machinery and specifications sheet (Exhibit 8). Mr. Dill rebutted some comments made. He is not asking for the building to be relocated; the drainage issue needs to be resolved; he feels the project just meets the minimum requirements; he read the fire marshal report, specifically the events leading up to the fire, to substantiate the need for a fire suppression system and fire rated drywall. There was a consensus of the commission to move the building south, away from the Elks Lodge. The commissioners also discussed viable buffers to be used. Mr. Young was agreeable to installing fire -rated drywall and improved landscaping but not moving the building or installing a wall between his building and the Elks Lodge. Also discussed was an aesthetic designed facade for the smokestack/chimney. Mr. Neuberger expressed his concerns about the location of the crematorium. Andrew Simso, 1569 Ocean Cove St, Treasurer of the Elks Lodge, expressed his concern with the building meeting minimum code and the odor. He feels there is a problem and this is a good time to correct it. 3 Greg Golien, 711 Wimbrow Dr., restated that he saw smoke emitted from the chimney. Chmn_ Paul dosed the public comment portion of the public hearing and asked for staff summation. Ms. Grohall said staff recommends approval with suggested conditions. MOT! N by Simmons/Duff to approve the site, plan minor modification by Seawinds Funeral Horne, 735 Fleming Street, for a 500 SF addition to an existing crematorium with the following conditions_ 1. Provide St. Johns River Water Management District Permit, or letter of exemption. 2 Comply with Department of Health comments regarding DEP Air Emissions permit. WITNESSES' TO BLACK SMOKE AND /OR SPARKS COMING OUT OF THE STACK OF THE CREMATORY LOCATED AT 735 S. Fleming Street We the below sign and attest to the fact, that we have at times witnessed black smoke and/or sparks coming from the stack located on top of the crematory building on the property of the Seawinds Funeral Home located at 735 S. Fleming St, which sits adjacent to the Elks Lodge located at 731 S. Fleming St.! Signature ,�_i 7 2 e c-76 .9 3 t-,\i .b -Pk \1 E !i 4/ Address 425 2`i-14 .V o -Ba VI s /3s' 97 677 g 1 /i /Zufd t k 3 9 I! 0/1 Z /1.-512 L--, f Date 1 //7— ODOR INTO ELK'S LODGE PLANNING AND ZONINL .OMMISSION MINUTES OF REGULAR MEETING OF JANUARY 7, 2010 Fi answering Mr. Durr's question about landscaping, Ms. King said there is a note on the site plan stating that damaged or dead landscaping on the entire site will be replaced prior to final certificate of completion. Mr. Simmons asked if the crematory were rebuilt within the same footprint then a public hearing would not be necessary and Ms. King agreed. Mr. Young said they are expanding their operation to two crematories because their business has grown. Chmn. Paul asked for people in favor to speak. No one approached. He then asked for anyone in opposition to speak. Charles DeLauder, Exalted Ruler of the Sebastian Elks Lodge, 731 S. Fleming St. Mr. DeLauder presented an information and recommendation letter (Exhibit 1, handed to the Commissioners). He commented that over the years the funeral home and Elks have been good neighbors. He has concerns about the increase in size of the crematory. He feels the facility is too close to their building. He showed photos to the Commissioners from the podium depicting the fire and at Mr. Ginsburg's instruction Mr. DeLauder gave the photos to the recording secretary (Exhibit 2, five photos). T s.#' Andrew Simso, Treasurer of the Sebastian Elks Lodge, 731 S. Fleming St. commented on the odor he smells from the crematory. Eric Fischer, 69 Fischer Hammock Rd., asked that extra safety precautions be taken when the crematory is rebuilt and possibly make the pipe extending above the roof more aesthetically in line with other structures in the area. He read a letter from Maureen Matheson to Mayor Gillmor and city council regarding the crematory's operation (Exhibit 3) Greg Golien, 711 Wimbrow Dr., thought the application should be a new site plan and not a minor modification and would like the building to be moved to the back of the property. Warren Dill, Esquire, 1565 US Highway #1, representing Sebastian General Partnership and property owners association of Chesser Gap. He presented "Contestant Exhibit A the Fire Marshal's report on the fire at the crematorium (Exhibit 4). He also submitted for the record "Contestant Exhibit B a verbatim copy of the Planning and Zoning Commission meeting of March 6, 2003 (Exhibit 5). He reviewed the past applications of Seawinds for the funeral home and the crematory. Mr. Dill asked for an increase in the buffer and decrease in the hours of operation. He submitted "Contestant Exhibit C the Chesser Gap Phase II Final Plat (Exhibit 6, handed to the Commissioners) and commented about the stormwater drainage. "Contestant Exhibit D" is a list of five conditions Mr. Dill would like to see placed on the approval of this application (Exhibit 7, handed to the Commissioners). Mr. Young addressed some of the comments made. He explained the difference between a funeral home which conducts visitations and services and a direct disposer, which cannot provide visitations and services but only cremates remains. Seawinds is a funeral home with a crematory on the facility. Shortened hours would not be acceptable as he has had families want to witness the cremation. 2 WITNESSES' TO ODOR IN ELKS LODGE COMING FROM CREMATORY We the below sign and attest to the fact, that on several occasions while attending functions at the Elks Lodge located at 731 S. Fleming St. in Sebastian, have witnessed a strong offensive smoke odor coming into the building from the crematory located adjacent to the Elks Lodge! Signature vE Cc� c." 4 4(' Address '0,*si, 1v� 27 (Pernck Qv/a 21/4.(127e 2 .4/ Ci:e_ z,44, v Z pv et,6/' Date 1 io 9 ZL TH C 3 V1 R rN .CC-1 Ft, i i 2 •Zr.N e. 13r P1 �;u� ChL- f "j-- 09 INZ tctc} bat E re L— GURNEYS WITH DECEASED IN VIEW OF PUBLIC %Jo try (7 VT\ S k0 1 1,7/e e by7.5,7, v v„ tte ColAlconAQ J _._,,,.)(4M tA if rt t r se i -C 1 00_ A„s„,3,(,e_____ -0 b,ru,.. irk.)(, s L.13\ k, 0 -(?_,IA.) t\-L_. p\_,e,,\,,zi-k-u.A,\ o%L., r SrL, c •v coo -,)i Lk- 0 vino G1 J Ik _'ae_ btu- UktAnd -�9 Friday, January 22, 2010 1; Charles De Lauder, wish to state that I personally saw a gurney from Seawinds Funeral home being pushed from the main building to the crematorium. There was something on the gurney that was covered by a shroud of some sort. When the gurney was pushed back outside, the shroud laid fiat upon the gurney. Whatever was under it, had been removed. Znnbra: simiiid @comcast.net SmartZone Communications Center Collaboration Suite Re: Seawinds Crematorium From: mathewsonm @bellsouth.net To: simiiid @colncast.net On two occasions I have seen guerneys being used at the Seawinds crematorium. On one occasion a guerney was being wheeled from the funeral home to the crematorium. There was something on the guerney. The object was covered. On another occasion an empty guerney was left outside the crematorium. The guerney had a white sheet on it. On three occasions I have seen very heavy black smoke coming from the crematorium. Maureen Mathewson 108 Harbor Point Drive Sebastian simiiid @comcast.net Thursday, January 14, 2010 2:56:04 PM Page 1 of 1 111A /'lnln