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4-22-15 Special Called Meeting MINUTES OF SPECIAL CALLED MEETING OF ATLANTIC BEACH CITY COMMISSION HELD ON APRIL 22, 2015 PRESENT: Mayor Carolyn Woods Mayor Pro Tem Mark Beckenbach Commissioner Jonathan Daugherty (arrived at 5:47 p.m.) Commissioner Jimmy Hill Commissioner Maria Mark ALSO: Donald Wolfson, Petitioner Christopher White, Esq. Nelson Van Liere, Interim City Manager Rich Komando, City Attorney Donna L. Bartle, City Clerk Nancy E. Bailey, Recording Secretary Call to order. Mayor Woods called the Special Called meeting to order at 5:47 p.m. in the Commission Chamber. She explained, per the court order and the agreement between both parties, the only documents to be considered are those contained in the packet that has been submitted and distributed to the Commission. She stated, therefore,there will be no public comments or Courtesy of the Floor. City Attorney Rich Komando stated Christopher White is present with Donald Wolfson and they discussed this and the documents have been provided by them. He asked if Mr. White takes an exception to that. Mr. White stated he did not. 1. Wolfson Appeal of Variance Denial ZVAR-2011-01 A. City's Documentation. Jeremy Hubsch gave an overview of the zoning variance request made by Mr. and Mrs. Wolfson to the Community Development Board. He explained the grounds for denial of the request, stating the Board determined the request would have the greatest impact on the light and air to adjacent properties; and the grounds for approval, stating the Board did not believe the request met any of these conditions. He stated the Board voted 5-2 to deny the request for the 10 ft. setback reduction. He stated the applicants then appealed to the City Commission. City Attorney Komando explained there was a previous decision by the Commission that was appealed to the Circuit Court which was then appealed to the First District Court of Appeal and it was that decision which returns it to the Commission today. He stated Jeremy, at his advice, is being very cautious about discussing that so they don't violate the court order to limit the Commission's consideration to what was originally considered by the Community Development Board (CDB). He asked Mr. White if that was correct. Mr. White asked, as a point of order, in the agenda packet, have all of the decisions been presented to the Commission, i.e., the Circuit Court decision and the DCA decision. Mr. Komando stated he doesn't know that the most recent Circuit Court decision was added but the DCA opinion was provided last time. Mayor Woods confirmed that the Circuit Court decision was in the packet. Mr. White stated the consideration from the Commission has to be everything and only everything that was in the record but he doesn't know if that precludes them from commenting on any of the language contained in those orders from the Circuit Court. Mr. Komando stated he doesn't have a problem with that. B. Applicant's Documentation. Mr. Wolfson presented his case for his variance request. He stated this lot has always been zoned for residential use. He stated they purchased this lot in March 1981 prior to annexation of Seminole Beach by Atlantic Beach in 1987 and have owned this lot that was zoned for single family residence for 37 years. It was zoned RGA and the setbacks that were permissible when they were annexed were 20 ft. front yard, 2 ft rear yard and 15 ft combined side yards. The City of Atlantic Beach stated they would respect the same standards/rights that the citizens of Seminole Beach had at the time of annexation and to date there has been no communication of a change to that affect. He stated upon annexation in 1987 the nomenclature of that district changed to be uniform with the City of Atlantic Beach to RS2 zoned for single family residence. He stated they have paid taxes on this lot for 34 years that is zoned single family residence and were assessed for sewer tap-in. He stated without a variance they cannot build a single family residence compliant with the zoning requirements for that lot. He stated this Commission will either approve the request for the variance or deny it. He stated approval of their variance request enables them, as taxpaying property owners to enjoy the use of their property to the same extent that their neighbors are allowed; denial of their request restricts them to the two parking choices. He stated if they deny their variance today the City will place a strenuous use limitation upon them and if that is done today they will accept that; however, they expect the City and the County to refund the overcharged taxes for 34 years, plus interest, and to refund an assessment that was unfairly levied against them for a use that they do not need. He further stated something was said by the previous Development Board and previous Commission that by building a residential structure it will adversely impact light and air to adjacent properties. He stated that is the very purpose of a height limitation; that is what impairs air and light, not a single family residence. He stated they would be greatly appreciative if they approve their variance; if they deny it, they expect to have damages and reimbursement for the charges of their prorated taxes that they have been paying for a parking lot rather than for a single family residence, which it has been zoned for since 1936. Mr. Wolfson's attorney, Christopher White, further discussed the variance request, addressing the legal principles, due process, and pointing out the lack of competence of substantial evidence to justify the denial. He stated in the Commission's appellate capacity they should grant the variance based upon the reasons he has discussed and those Mr. Wolfson has stated and what is contained in the record. Mr. Komando stated Mr. White argued two different aspects, one being due process and one being competence of substantial evidence but the argument about a due process violation was essentially what occurred here at the Commission before it was appealed. He stated that argument wasn't for the CDB. He stated what was argued in the appellate decision, that due process was violated, asking Mr. White isn't that cured today. Mr. White stated what this body does in its appellate capacity is determine by the Board whether there was due process by the Board. He stated he isn't talking about what the Circuit -2- Court found out about the due process violation with the Commission; he is now going back a step to the appellate capacity of this Commission and what it can look into, which is not just the competency of substantial evidence but whether the Wolfsons were afforded due process before the Board. Mr. Komando asked is it his opinion that this process today cures that problem, one way or another. He asked if Mr. White believes he has not received due process from this hearing. Mr. White stated no, absolutely they have been afforded due process by this hearing. Mr. Komando stated he just wanted to make sure that was clear. He further asked Mr. White, related to the 1993 Hawks variance, if he agreed that that decision by the Commission was not binding on this Commission. Mr. White stated absolutely, he conceded that the prior granting of variances are not binding; they do not set a precedent,just as the arbitrary denial should not take place when there is not competence of substantial evidence. Mr. Komando stated his client had asked for approval of the variance but Mr. White made a comment that they are not looking at the grounds for approval they are only looking at the grounds for denial. He asked if he is saying that there wasn't one of the Sec. 24-64(d) grounds for approval or is there a ground that they want the Commission to consider. He asked which criteria they want the Commission to focus on for grounds for approval. Mr. Wolfson stated the grounds for approval he believes applicable are #3 - Exceptional circumstances preventing the reasonable use of the property as compared to other properties in the area, and #6 - Substandard size of a lot of record warranting a variance in order to provide for the reasonable use of the property, elaborating on the reasons for choosing both. Mr. White also added #4—Onerous effect of regulations enacted after platting or after development of the property or after construction of improvements upon the property; explaining when the property was purchased there was a 10 ft. rear yard setback, when it was annexed the Atlantic Beach Code placed it at 20 ft. which places an onerous effect because of regulations that take affect after purchase of the property because of the annexation. Mr. Komando asked if there is a lesser variance that would get Mr. Wolfson to the 650 s.f. Mr. Wolfson explained the reason they asked for the 7 ft. variance. Because this is a quasi judicial hearing, Mr. Komando asked if there are any disclosures by the Commission of any ex parte communication pursuant to Resolution 95-26, meaning have they talked to anyone about this and if so, who and what was the content of the communication. Commissioner Daugherty stated besides the emails, which we have record of, he hasn't had any. Commissioner Beckenbach stated he has had the same emails. Mayor Woods stated she has discussed it with staff. Commissioner Hill stated he had an email requesting he come look at it but doesn't remember the citizen's name, but he never went and looked at the property directly with them. Commissioner Mark stated she has had emails from Joe Riggero, Barbara James , Donnie Wanstall, and Greg Kelly, who also called her on the phone regarding the variance hearing. Mr. Komando asked Mr. White if he had any exception to those. Mr. White stated the only exception he has is to the extent that any of them are not part of the record of the Board itself, because anything outside of that, just like with public comment here would be inappropriate to consider. Mr. Komando stated that was correct and the Commission has been advised not to consider anything that wasn't considered by the Community Development Board. He asked the Commission, by their affirmation, if they were able to do that today. The Commissioners, excluding Commissioner Daugherty, stated yes. Commissioner Daugherty disclosed that three-four years ago Mr. Wolfson invited him out to that -3- property and he did tour the property with Mr. Wolfson. Mr. Komando stated that was fine. Mr. Komando asked if the Commission had any questions for the applicant. The Commission asked Mr. Wolfson, the City Attorney and Mr. Hubsch several questions. Mr. Wolfson, Mr. Komando and Mr. Hubsch responded to each. Discussion ensued. Mr. Komando asked Mr. White and Mr. Wolfson if they had any rebuttal or closing that they would like to present. Mr. Wolfson gave his rebuttal stating the former director, Sonya Doerr, and her predecessor, Erika Hall, came before the Development Board with a lot of history. He stated what Mr. White was referring to was their finding of why they recommended the variance be approved with the land, not with the application. He stated the reason why was because that was the basis for granting the variances before. He stated that is the position that they have taken; that that is the expert opinion because that was the qualified perspective. He stated he just wanted to clarify that that was part of the original process. Commissioner Daugherty stated, as part of disclosure of ex parte communications, after looking back at his emails he noted that he replied to a citizen, either Don Wanstall or Greg Kelly, stating that "I don't see why the Commission would change its mind but I'm only one vote". Mr. Komando asked if he would still be able to make a decision based only on the record that was before the CDB. Commissioner Daugherty replied yes. Commissioner Mark expressed concern about Mr. Wolfson's closing comments about bringing an action against the City, suing for back property taxes that he has paid on this lot as residential lot. Mr. Komando asked that the Commission not take that into consideration. He stated the determination of property values is something that is the purview of the Property Appraiser, not something that is the purview of this Commission. Commissioner Hill stated you have to determine when a law is enacted and if a law is in place, from that point forward that law should be in place. He stated, if it isn't, why make the law in the first place. He stated at some point they have to be brave enough to do what our current laws say. Mayor Woods addressed each of the grounds for denial and the grounds for approval of a variance. She also read the memo in the agenda packet from staff to the citizens stating that any permissible activity allowed by the City of Jacksonville will be honored, asking when do you stop honoring a promise. Discussion ensued. Motion: Grant the Appeal and Approve the Variance. Moved by Daugherty, Seconded by Woods Further discussion ensued. Commissioner Mark stated, for the record, in the March 15, 2011 minutes of the Community Development Board it refers to denial of the Hawkes variance. She stated this discussion was with Mr. Wolfson where he gave a lengthy history of the area with particular reference to the original deed restrictions, stating "that garage approach was uniquely designed for additional parking facilities and not for living spaces, according to the CDB minutes of April 18, 1989", which she believes was after the annexation. Mayor Woods stated that is incorrect because the deed says shall be used for -4- residential purposes. Commissioner Mark stated she was only reading the quote from Mr. Wolfson. Discussion ensued. Votes: Aye: 2—Daugherty,Woods Nay: 3 - Beckenbach, Hill, Mark MOTION FAILED Adjournment There being no further discussion by the City Commission, Mayor Woods declared the meeting adjourned at 7:40 p.m. /i ' I� ATTEST Carolyn Woo d G42� i V2jd4e6 Mayor Donna L. Bartle, CMC City Clerk -5-