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Handout - Tom Foppiano //aminea MINUTES REGULAR CITY COMMISSIO► ' EETING May 9, 2011 CITY HALL, 800 SEMINOL '.•AD Attendance IN ATTENDANCE: Mayor Mike Borno City Attorney Alan C. Jensen Mayor Pro Tern John L. Fletcher City Manager Jim Hanson Commissioner Jonathan Daugherty City Clerk Donna L. Battle Commissioner Paul Parsons Recording Secretary Nancy E. Bailey Commissioner Carolyn Woods Call to Order/Pledge Mayor Borno called the meeting to order at 6:00 p.m. Commissioner Fletcher gave the Invocation, followed by the Pledge of Allegiance to the Flag. Approval of Minutes 1. Approve the minutes of the Regular Commission Meeting of April 25, 2011. Motion: Approve the minutes of the Regular Commission Meeting of April 251 2011, as written. Moved by Daugherty, Seconded by Fletcher. Votes: Aye: 5—Borno, Daugherty, Fletcher,Parsons, Woods Nay: 0 MOTION CARRIED Courtesy of the Floor 2. Courtesy of the Floor to Visitors. A. Proclamation—National Public Works Week Mayor Borno read and presented Public Works Director Rick Carper with a Proclamation proclaiming May 15 — May 21, 2011 as National Public Works Week. Mr. Carper thanked the Mayor. Mayor Borno opened the Courtesy of the Floor to Visitors. He welcomed the audience and explained the process for public comments. He further explained for anyone wanting to speak regarding Item 8A he will hold their blue sheets until we get to that item. Richard Johnson, Jr., 857 Bonita Road, complained about a vacant house next to property he owns on Ardella Road. He stated the house has been broken into, the windows are busted out, graffiti has been written on the walls and it should be boarded up or condemned because it is a nuisance. He stated he has reported to the police several times that young girls have been in that house with boys, stating there is a lot going on in that house and whether it is drugs or sex, you never know. He asked that the Commission do something about it. Mayor Borno stated he will have the City Manager and Code Enforcement look into it and they will get back to him. Bruce Andrews, 328 11`h Street, addressed the Commission regarding the proposed disc golf course in Johansen Park, stating he does not believe this is a good idea in a passive park, which is to be used for reflective activities. May 9,2011 REGULAR COMMISSION MEETING Pace 3 STAFF RECOMMENDATIONS HAVE BEEN PREVIOUSLY SUBMITTED TO THE CITY COMMISSION ON THESE ITEMS. A. Acknowledge receipt of the Monthly Report of New Business Taxes for April 2011. Mayor Borno read the Consent Agenda. Motion: Approve Consent Agenda Item A as read. Moved by Woods, Seconded by Parsons. Votes: Aye: 5—Borno, Daugherty, Fletcher, Parsons, Woods Nay: 0 MOTION CARRIED Committee Reports 5. Committee Reports None. Action on Resolutions 6. Action on Resolutions None. Action on Ordinances 7. Action on Ordinances None. Mayor Borno recognized former Mayors Wolfson and Fletcher and former Commissioner Rosenbloom, who were in the audience. Miscellaneous / 8. Miscellaneous Business Business / A. Public Hearing- Appeal of Community Development Board Order denying I ZVAR-2011-01, request for a variance from Section 24-107(e)(2) to reduce the required twenty (20) foot rear yard setback to allow for the future construction of a residential structure on a nonconforming lot of record of substandard size located on the west side of the right-of-way at 1725 Beach Avenue. 0 Mayor Borno explained this is a quasi-judicial hearing and read the procedures for such a hearing. A court reporter was present. SPrincipal Planner Erika Hall explained this was an appeal of the decision of the Community Development Board regarding ZVAR-2011-01, a request for a variance 2; from Section 24-107(e)(2) to reduce the required twenty (20) foot rear yard setback to fi allow for the future construction of a residential structure on a nonconforming lot of record of substandard size located on the west side of the right-of-way at 1725 Beach Avenue and summarized the issue before the Commission. Mayor Borno asked if there were any witnesses for staff or applicant. No witnesses were present. May 9,2011 REGULAR COMMISSION MEETING Page 4 Ms. Hall further presented the history of the property, the background of this appeal and summarized her staff report. She expounded on the procedural due process, application of the correct law and substantial competent evidence. Christopher White, 4230 Pablo Professional Court, #200, Jacksonville, (representing Don and Karen Wolfson) , opened by stating their position was, if they have to go that route, that a court would back them up, but they hope they don't have d to. He stated that is time and expense for everybody and they consider it unnecessary. /�'//U //7/ " He further stated they take the position that there was not competent substantial evidence presented to the Board on which they rendered their denial of the variance. He stated they did not apply the law correctly or provide sufficient due process for the Wolfsons. He gave a chronological history of other properties in the surrounding area that had been granted variances. He further pointed out that the Commission could only look at the record. He stated staff recommended approval in February and March and for whatever reason the Board decided to ignore their recommendation. He stated one thing the Board made a big deal out of was Mr. Wolfson's previous positions. He stated Mr. Wolfson didn't want to do in the past, what he is asking for today. He stated, so what, there is no Commissioner who can look him in the eye and say that they have not changed their mind on a certain issue; you are allowed to, everybody is. He stated all that is is noise; ignore the noise. He further stated they don't want to go any farther than tonight and if they do, they do, but that is not a threat. He stated they can avoid that by keeping the policy consistent that Atlantic Beach has implemented since 1987 and they need to reject the denial of the Board. Mayor Borno opened the Public Hearing. Bob Parrish, 1731 Beach Avenue, addressed the Commission in favor of the appeal, c,/3� ) L stating he has a lot that is 50 x 90 and if they deny this appeal a lawsuit ensues and he will be forced to intervene in that suit as will his neighbors, Edward Lane who is an V/ attorney and Rob Clements who is represented by one of the finest land use attorneys in the City, T.R. Hainline. /145 Judy Beaubouef, 1209 Beach Avenue, stated there will be howls of protest if the sptL - Commission does not grant this variance, when the City has to pay the Wolfsons' attorney's fees, the City of Atlantic Beach's attorney's fees and damages to the Wolfsons at a time when we have scarce resources. She further stated Commissioner Fletcher left an important meeting to attend the Community Development Board meeting which had one agenda item, the Wolfson variance. She stated Commissioner Fletcher addressed the Board on the record and it was very clear from his comments that he opposed this variance. She stated he now sits in a quasi-judicial role as the judge on the record that he is part of even though Mr. Jensen advised Mr. Fletcher he had every right to do that legally. She stated she believes this is a perversion of due process and she expects more from her Commissioners and does not believe it is fair to the applicant or the City. Lyman Fletcher, 804 East Coast Drive, spoke in favor of the variance, comparing it to a variance that was granted in 1993. May 912011 REGULAR COMMISSION MEETING Page 5 T.R. Hainline, 1301 Riverplace Blvd., representing Rob Clements, a neighbor of Mr. Wolfson at 1739 Beach Avenue, spoke in support of the variance. He referenced the findings in the Community Development Board's order, stating they are very concerned about the precedent that is set. He asked the Commission to follow the staff's recommendation made to the Community Development Board and approve the Wolfson's variance. Donnie Wanstall, 1723 Ocean Grove Drive, spoke against the variance, stating the Community Development Board followed the Codes and Ordinances in making their determination for denial. He gave a chronological timeline of the events leading up to the variance request. Steve Rosenbloom, 1417 Beach Avenue, spoke against the variance request, asking what they are actually voting on tonight. He asked if they are voting on giving Mr. Wolfson a waiver or is everybody on Beach Avenue who has a non-complying lot going to get a waiver. He asked, if that is the case, what does that do to the character of Beach Avenue that Mr. Wolfson protected so often while on the Community Development Board and as the Mayor of the City. He further stated these substandard lots are all taxed at about $700-800/front foot but if you have a complying lot on Beach Avenue it is taxed at $5,000/front foot and believes, since now they want to change, it is economically unfair to those who have paid the taxes on those complying lots all these years. He asked, as they start giving these variances, where does it end? Steve Milo, 417 Ocean Blvd., stated we have a Community Development Board for a reason and they have been researching this subject carefully. He asked that the Commission continue to support them. Barbara James, 1727 Ocean Grove Drive, referred to intangible taking of property and asked that the Commission honor the 5-2 decision of the Community Development Board against the variance. Mary Ann Dyal, 1765 Seminole Road, asked the Commission to use common sense and look at the size of that lot and know that it is not suitable for a house to be built on and further crowd Beach Avenue,which already is extremely congested. Bob Castro, 412 Ocean Blvd., slated he believes the congestion on Beach Avenue is sufficient. He stated those lots were never designed to be built on; they were carriage/parking lots. He stated he believes we are going in the wrong direction and the individual involved, because of his background and being a former Mayor, is going to push it and he doesn't like the idea of being pushed around. He stated he believes Mr. Wolfson should respect the rights of other people in the area. Lindley Tolbert, 465 Beach Avenue, implored the Commission to uphold the laws and regulations for the land and zoning codes for Atlantic Beach and not get bullied by the threats of lawsuits because there is no dollar amount they can put on the character or our neighborhood and the preservation of it. No one else from the audience spoke, so Mayor Bomo closed the Public Hearing. May 9.2011 REGULAR COMMISSION MEETING Pane 8 Motion: Approve the decision of the Community Development Board denying ZVAR-2011-01, finding that no error was made in procedural due process or application of law, and that the decision is sufficiently supported by substantial competent evidence. Moved by Parsons, Seconded by Borno. Commissioner Daugherty asked Erika Hall about the Hawkes variance. Mayor Borno cautioned him that he must stick with the three questions, whether procedural due process was afforded, whether the administrative body applied the correct law and whether the findings were supported by substantial competent evidence, not on the exchanges that took place tonight. Commissioner Daugherty asked several questions regarding due law as related to prior variances given, which Ms. Hall answered. Commissioner Fletcher asked Ms. Hall how many times the Land Development Regulations have been rewritten since 1987. Ms. Hall stated there have been two major rewrites, but there have been 113 revisions since the annexation. Commissioner Fletcher asked if there was evidence in the record of a setback variance granted under the current Land Development Regulations. Ms. Hall stated the only variance given on Beach Avenue for a substandard lot was for a single story garage to be set back 5 feet from the rear property line, but with revisions to the Code last March a variance is no longer required for that. Commissioner Parsons stated he attended the second meeting of the Community Development Board and there was plenty of due process, they followed the law and did everything correctly. He stated he believes the Board voted the way they should have. Commissioner Fletcher responded to Mr. White's comment about the Hawkes' variance and asked City Attorney Jensen how this variance is different from the Hawkes' variance. Mr. Jensen explained there are two very key differences, first, when the Hawkes requested their variance you had to get a variance to build anything on a nonconforming lot of record. He stated, secondly, we have had a substantial rewrite and changes to our Ordinances since 1993 when that variance was approved by the Commission. He stated there was some type of informal agreement when the property was annexed that they could develop with that 10 foot setback which was previously allowed by the City of Jacksonville and a couple of properties came under that, of which Mr. Hawkes' property was one, . He stated since that time, those two substantial changes make a big difference and at the meeting of March 15 when he was asked that question, he advised the Board that if they followed our current Ordinance Code,whether the request was approved or denied, either would be defensible. Commissioner Woods read excerpts from the staff report stating she believes there is a conflict with the Ordinance. She stated she believes, if this is not corrected, we will continue to have this disagreement in the community over these lots because, as the City Attorney stated, there was an agreement and variances were given because of that agreement and things were promised. She stated she is not sure there is an arbitrary expiration date on promises. She believes the record shows the people at Seminole Beach had the right to expect that their properties would have the same value and use after annexation as before. She stated the City memo said that they would honor all permissible activity and Jacksonville's Building and Zoning Department said that