HomeMy WebLinkAbout11162011 Attachment - Clams R Us Appeal01YOF
HOME OF PELICAN ISLAND
CITY COUNCIL
City of Sebastian, Florida
Appeal of Planning and Zoning Commission Decision:
Sebastian Village Condominium Resort Association Appeal of Planning and Zoning
Commission's Approval of a Site Plan for Clams R Us
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
THIS CAUSE came on for public hearing before the City Council of the City of
Sebastian on October 12, 2011, and based upon the testimony and all of the evidence
presented, the City Council enters the following:
FINDINGS OF FACT
1. Site Plan Approval:
Clams R Us, Inc., owner of the real property located at 1624 Indian
River Drive which is zoned Commercial Waterfront Residential (CWR),
requested site plan approval for a mixed -use project consisting of an
aquaculture facility and a single- family residence. Initially a partial waiver
from the Riverfront Overlay District landscaping requirements was also
applied for.
A staff report dated March 10, 2011, an Environmental Site Summary
dated January 27, 2011, and a staff report regarding the Landscape Waiver
request dated March 11, 2011, were provided to the Planning and Zoning
Commission. Following a public hearing with due notice held on March 17,
2011, the Commission discussed concerns with the building elevations and
landscape waiver request, and in lieu of approving or denying the project,
the Commission requested the applicant to consider modifying the design of
the structure and reschedule the hearing.
The applicant submitted revised building elevations, a revised
landscape plan and withdrew the request for the partial waiver. An amended
staff report dated July 26, 2011, and an email dated July 7, 2011, from the
civil engineer noting the revisions made to the site plan were provided to the
Planning and Zoning Commission. City staff recommended approval.
Following a public hearing with due notice, the Commission approved the
proposed mixed -use site plan on August 4, 2011, with the condition that a
barrier or safety measure be provided on top of certain retaining walls. No
one appeared or testified on August 4, 2011, in opposition to the request.
2. The Appeal:
On August 15, 2011, Norm Adams, President of Sebastian Village Resort
Condominium, Inc. (Condo Association), the property immediately across the street
from the subject site, filed an appeal of the Planning and Zoning Commission's
decision. The appeal was scheduled for a quasi - judicial hearing by the Sebastian
City Council on October 12, 2011.
Public notice of the appeal hearing was published on September 27,
2011, in the Press Journal, a newspaper of general circulation in the City of
Sebastian, Florida, along with due notice mailed to surrounding property
owners.
The appellant was represented by Michael McNerney, a condominium
owner, who proffered that the building elevations were resubmitted to the
Planning and Zoning Commission without addressing the size of the
structure, landscaping concerns were not addressed, and the proposed
residential use was not consistent with the City's vision for the area. He also
stated there were no plans for the aquaculture structure.
Attorney Doug Vitunac, representing the applicant Clams R Us, spoke
in opposition to the appeal. He stated the building size and landscaping met
zoning requirements, and that residential uses were a permitted use in the
CWR Zoning District.
Joseph Weissmann, owner of Clams R Us, provided additional
testimony that the aquaculture facility has been approved by the State of
Florida, and other applicable jurisdictional agencies, and that the
information for the aquaculture structure is a part of the site plan.
Mr. Vitunac objected to 1) The appellant's presentation of a video excerpt
from the August 4, 2011 Planning and Zoning Commission meeting, 2) that the
appellee was deprived of the opportunity of cross - examination, 3) that Mr.
McNerny was not authorized to represent the Condo Association, and 4) that no one
from the Condo Association was present at the August 4th hearing of the Planning
and Zoning Commission. The City Council reserved ruling on Mr. Vitunac's
objections, noted that they might have merit, but in an effort to provide a
meaningful review of the merits of the appeal, the City Council conducted a full
hearing on the appeal.
2
CONCLUSIONS OF LAW
Based upon careful consideration of the evidence and testimony presented, and the
applicable provisions of the Sebastian Land Development Code, the City Council hereby
finds and determines:
The code requirements for granting the site plan have been satisfied, and the
Planning and Zoning Commission approval, with its one condition, is supported by
competent, substantial evidence in the record and is correct.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, a motion was
made to deny the appeal and affirm the Planning and Zoning decision. The motion was
made by Council Member Richard Gillmor, and seconded by Vice Mayor Don Wright, and
adopted by the Council by a vote of 5 in favor and none against.
The appeal is hereby DENIED; the Planning and Zoning Commission decision to
approve the site plan with one condition be and the same is hereby UPHELD.
DONE AND ORDERED in Sebastian, Indian River County, Florida, this 12th day
of October, 2011.
ATTEST:
Sally Maio, ity Clerk, MMA
3
CITY OF EBASTIAN
a 1�/es Hill, Mayor
Date