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03-25-19 Special Called MeetingMINUTES �.' Special Called Meeting of the City Commission Monday, March 25, 2019 e 5:30 PM Commission Chamber PLEDGE TO THE FLAG ATTENDANCE: Present: Candace Kelly, Commissioner - Seat 4 Blythe Waters, Mayor Pro Tem / Commissioner - Seat 3 Ellen Glasser, Mayor - Seat 1 Brittany Norris, Commissioner - Seat 5 Cindy Anderson, Commissioner - Seat 2 Also Present: Joe Gerrity, City Manager (CM) Brenna Durden, City Attorney (CA) Donna Bartle, City Clerk (CC) Lori Diaz, Records Clerk 1. CALL TO ORDER Mayor Glasser called the meeting to order at 5:30 PM. Commissioner Waters arrived at 5:33 PM. 2. APPEAL OF THE COMMUNITY DEVELOPMENT BOARD'S DENIAL OF VARIANCE APPLICATION ZVAR19-0002 SUBMITTED BY GREGORY CARR, 574 N. NAUTICAL BOULEVARD. A. City Attorney Procedural Reminders CA Durden explained that the appellant, Mr. Carr, requested the start time of this meeting be changed from 4:30 PM to 5:30 PM, which changes the total procedural time frame to 55 minutes for this meeting. CA Durden recommended changing the time frame for City staff overview and documentation from 20 minutes to 10 minutes in total. CA Durden stated the same change will apply to the appellant, Mr. Carr, who will be allowed 10 minutes in total. It was explained that the total time allowed for both staff and the appellant includes presentation and rebuttal combined. The appellant, Mr. Carr, has also requested to allow the public to speak. CA Durden stated that past practice in these types of hearings is not to allow any new testimony per the City Code. CA Durden stated that if the Commission wishes to grant Mr. Carr's request it is mandatory that Mr. Carr be sworn -in and state on the record that he is requesting the public be allowed to speak, whether they are for or against the appeal. The public comments will be considered by both the Commission and staff in their deliberation. Special Called Meeting of the City Commission March 25, 2019 Page 1 of 9 CA Durden stated her advice to the Commission, should they allow Mr. Carr's request, is that it would still meet due process requirements. This is not an obligation on the part of the Commission but it will require a consensus from the Commission to allow the request. There was a brief discussion to clarify the appellant's request, public notice procedures for this hearing, and time limitations for the hearing. Mayor Glasser asked Mr. Carr if he was going to request to allow the public to speak. Mr. Carr responded that he is requesting the public be allowed to speak. Gregory Carr, the appellant, took the floor and City Clerk Bartle administered the Oath to the appellant. CA Durden questioned Mr. Carr, for the record, if he is requesting the public be allowed to speak at this hearing, whether they are for or against the appeal. Mr. Carr responded 'Yes'. CA Durden questioned Mr. Carr, for the record, if he is requesting the Commission to consider any public comments made in their deliberations of his appeal, and consent to those comments being considered by the Commission. Mr. Carr responded 'Yes'. CA Durden questioned Mr. Carr, for the record, if he consents to allow City staff to rebut/respond to any public comments provided. Mr. Carr responded 'Yes'. Mayor Glasser asked how the Commission wanted to proceed. MOTION. To allow for public comment. Motion: Cindy Anderson ,Second: Brittany Norris Brittany Norris (Seconded By) For Cindy Anderson (Moved By) For Candace Kelly Against Blythe Waters For Ellen Glasser For Motion passed 4 to 1. B. Disclosure of Ea Parte Communications, if any Commissioner Norris stated she met with Mr. Carr last Friday at his property and this will not influence her vote. The decision will be made based on the evidence heard during this hearing. Special Called Meeting of the City Commission March 25, 2019 Page 2 of 9 Commissioner Anderson stated she met with Mr. Carr last Friday at his property and will base her decision upon the evidence heard at this hearing. City Clerk Bartle administered the Oath to all persons who stood signifying they will provide testimony. D. City Staff Overview, Documentation and Presentation/Testimony Planner Brian Broedell addressed the Commission. Mr. Broedell provided slides explaining and showing that the variance request was to increase the maximum structural projection permitted into required rear yards from 4 feet to 7 feet to allow an open porch in the rear yard. As detailed in the agenda packet, Mr. Broedell reviewed Sec. 24-83, the site context and detail, the proposed plan, the need for variance, analysis and concerns, and grounds for decision. The applicant states the reason for the variance request for a porch is to provide cover from rain. E. Carr Documentation and Presentation/Testimony Gregory Carr took the floor to address the Commission and reviewed his variance request made on February 19, 2019 at the Community Development Board (CDB) meeting. Mr. Carr stated that his application only took eleven minutes and there was never a reason given for denial. He referred to the slide 'Grounds for Decision' for approval or denial. Mr. Carr stated the hardship is that his house was built approximately 6 to 10 feet further back than the other houses in the neighborhood. He stated he likes to cook outside on his grill and smoker and wants a covered patio, to be out of the rain and sun, just like his neighbors. Public Comment City Clerk Bartle stated there are six speaker cards. Mayor Glasser stated two minutes will be allowed for each speaker. Glenn Yeakel, 598 Clippership Ln. - stated Mr. Carr has been a great neighbor for thirty years, credits him for following the required process, this is a reasonable request and he is in favor of this request. Ronalder Solomon, 550 Nautical Blvd. N. - credited Mr. Carr for going through the proper process and stated the addition of the covered patio will be an increase of value to Mr. Carr's property as well as the neighborhood. Elizabeth Westbury, 592 Nautical Blvd. N. - stated Mr. Carr has been a great neighbor, spoke in favor of approving the covered patio, and commended him for going through the correct process. Special Called Meeting of the City Commission March 25, 2019 Page 3 of 9 Don Ford, 338 6th Street - stated he is a retired Building Official, Planning and Zoning, for 33 years and attended the meeting. He stated he was amazed at how fast this case was reviewed and also that the CDB did not provide a reason for the denial. He suggested perhaps more training is required. Mr. Ford disclosed he works with Ferguson Builders and they are the proposed builders for the project. Julie Beard, 586 Nautical Blvd. N. - concurs Mr. Carr is a great neighbor, this (covered patio) would be an improvement, and would like to see the variance approved. City Clerk Bartle reported there is one speaker form left and her understanding is that unless this person voices their comments under oath, the comments cannot go on the record. CCDurden agreed. Mayor Glasser extended the offer, but the person declined and agreed to withdraw her speaker card. F. Closing Comments by Staff and Carr Brian Broedell - no further comments. Gregory Carr - referred to a comment made at the CDB meeting, a Board member stated that the 3 -foot overhang provided enough cover to use the grill and/or smoker underneath. Mr. Carr stated he has T1-11 wood siding and confirmed with a local Fire Department if 3 feet was adequate space/distance to use a grill and/or smoker. Their response was 'No' and that he needed at least 10 feet away from his house. Mr. Carr thanked Commissioners Norris and Anderson for meeting him at his property. Questions: Commissioner Morris - inquired when Mr. Carr purchased the house. Mr. Carr responded May 1980, he was the second owner. Commissioner Norris stated the CDB minutes do not provide an explicit reason for denying Mr. Carr's request. The second variance request was approved, based on three conditions listed in Sec. 24-64(d). Commissioner Norris inquired of Mr. Broedell if the minutes were correct and if Mr. Broedell knew why Mr. Carr's variance was denied. Mr. Broedell responded that the minutes are correct, the grounds for denial was not given. Commissioner Norris inquired about Mr. Carr's house being setback further than other houses and if the current setback regulations were absent at the time of construction. Mr. Broedell responded his reference only goes back to 1982 when the Zoning Code was written. The house was built in 1976. Commissioner Anderson - inquired of Mr. Broedell if the City had a recommendation about approving or denying the variance. Special Called Meeting of the City Commission March 25, 2019 Page 4 of 9 Mr. Broedell responded'No'. Commissioner Anderson inquired if there was history of similar variances in this neighborhood. Mr. Broedell responded that, in his two years, he was not familiar with other variances in the neighborhood. Commissioner Felly - inquired of Mr. Broedell if there have been any previous variances given to this property. Mr. Broedell responded'No'. Commissioner Waters - stated satellite view of this neighborhood shows swimming pools and she inquired of Mr. Broedell if code allows pools not to meet the setback requirements because they are at ground level. Mr. Broedell responded 'Yes' and that pools are subject to different setbacks. Commissioner Waters - inquired of Mr. Carr why the neighbor directly behind him did not come to speak. Mr. Carr responded that he did not know that neighbor, it is a rental property, and there is a six foot fence behind his house, along with trees behind that. Mr. Carr commented about the CDB meeting and that his case took only 11 minutes. He stated the second case lasted 38 minutes, and it was approved for a fence for a junk yard. Mayor Glasser - reviewed the house was built in 1976, the Building Code was written in 1982, and Mr. Broedell cannot confirm whether or not the setbacks were enforced when this house was built. Mayor Glasser inquired if staff was aware of other cases that have come before the CDB of variances granted or not required because the code was not in place at the time the property was built. PCD Shane Corbin clarified, for example, that if the new code makes something non- conforming, a variance could be required to make it conforming, then relief from the new code is given. PCD Corbin stated he is not aware of other cases that would fall under that example. Discussion ensued about the Selva Marina area, the PVDs, and variances from the PUDs. Mayor Glasser inquired is it typical for staff to not have a recommendation to the CDB. Mr. Broedell responded 'Yes', no recommendations are given. Special Called Meeting of the City Commission March 25, 2019 Page 5 of 9 G. Commission Deliberation and Action Commissioner Anderson spoke in favor of granting the variance for reasons as follows: ® It's a small amount and simply to give Mr. Carr a roof/cover ® there's a big fence, behind the fence there are trees, and the rear neighbor will not see ® other neighbors testified in favor, no objections raised ® no reason given by the CDB for denying variance ® #2 and #3 qualify as reasons for Approval (Grounds for Decision) ® the house is setback further than other houses Commissioner Kelly spoke in opposition for reasons as follows: ® the fence and trees are temporary ® the neighbors are also temporary ® what is done permanently to the house last longer than neighbors and fences Commissioner Waters stated the only reason for Denial would be #1 (Grounds for Decision). She spoke about the neighbor behind this property and that it may not always be a rental property. Commissioner Waters stated if approval is going to be considered then amendments should be added that no sides can be built on the structure, and/or in the event there is an addition to the front we ask for additional setbacks, and that people need to have a better understanding of the Code when buying property with existing structures. MOTION. To reverse the decision of the CDB and approve ZVAR19-0002, based on primarily #3 (Grounds for Decision - Approval) Exceptional circumstances preventing the reasonable use of the property as compared to other properties in the area. Commissioner Norris described the exceptional circumstances, explaining for some unknown reason by the builder, his house wasn't properly placed on the lot compared to surrounding properties: the owner purchased this house several years after construction: and we are inhibiting him from enjoying the outdoor use of the property. Motion: Brittany Norris Second: Cindy Anderson Commissioner Felly - stated the lot has been in existence for the past 50 years, that 3 feet doesn't seem like a lot, agrees with the CDB decision to deny because there were not enough extenuating circumstances. Commissioner Norris - stated her reason for approval is because it did not meet any of the reasons for denial (Grounds for Decision) and she reviewed each of the 7 reasons listed for denial. The potential for setting a precedence is not on either of the lists for approval or denial. Commissioner Waters - spoke about reasonable use of the property when considering outdoor space and stated there is significant outdoor space in the front yard. She spoke about determining what is permanent and not permanent as far as structure, fences, and trees, etc. Commissioner Special Called Meeting of the City Commission March 25, 2019 Page 6 of 9 Waters stated that #1 is reasonable grounds for denial - adverse impact on light and air to adjacent properties. Commissioner Anderson - stated she is bothered that the CDB did not give a reason for denial. When looking at the property, and the roof line, Commissioner Anderson stated the extension of the roof will be lower than the existing 6 foot fence and the 30 foot trees behind the property. Three feet is all that is being asked for, which will ensure that he is the required 10 feet from the house for grilling/smoking purposes and safety. It was also noted there was no testimony presented at the CDB meeting or at this meeting from anyone who objects to this request. Mayor Glasser - stated she agrees with many of the statements made and added that variances are not a guarantee. A reason for denial could be based on #1 (Grounds for Decision - Denial). Mayor Glasser referred to Sec. 24-64 where it states 'variances shall not be granted solely for personal comfort or convenience' and this request seems to fall under this criteria. She noted three feet is not a lot but it exceeds the required setback. Mayor Glasser expressed her respect for the work the CDB does and going forward there needs to be clarity for the basis of their actions. Commissioner Norris - agrees that variances should not be granted for personal comfort or convenience but her argument is for reasonable use of the property. She does not think there are privacy concerns for the neighbor behind this property regarding the roof line extension, the fence, and the trees. Commissioner Waters - spoke about interpretation of 'reasonable', the expectation of conforming to Code, use of property and outdoor space, room for a grill and smoker with or without cover, and approval should have contingencies for additional setbacks as well as for not allowing side walls to be built on the structure. Commissioner Anderson - stated she agrees with Commissioner Norris' comments. Commissioner Felly - agrees that variances shall not be granted solely for personal comfort or convenience, or for relief from situations created by the property owner, which is not on the list but is the basis of the text. Mayor Glasser - no additional comments. Roll Call Votes: Brittany Norris (Moved By) Cindy Anderson (seconded By) Candace Kelly Blythe Waters Ellen Glasser Motion to reverse the CDB decision failed 2 to 3. For For Against Against Against Special Called Meeting of the City Commission March 25, 2019 Page 7 of 9 MOTION: To deny the request for variance ZVAiZ19-0002 on grounds that it can adversely affect light and air to adjacent properties, and that the request is made on the grounds of personal comfort. Mayor Glasser clarified this affirms the decision of the CDB, and denies the appeal based on the conditions stated in the motion. Commissioner Dorris inquired of CA Durden if this motion will lead to potential litigation since originally the CDB did not provide a reason and now the Commission has provided a reason. CA Durden responded that it's hard to say whether or not the CDB had a reason for denying, that it may not be reflected in the minutes but could be cited in the video. The applicant has the duty to provide a transcript of the meeting and in this case it was not provided. CA Durden explained that any decision that the Commission makes is subject to challenge in court, whether it is a decision to affirm the decision of the CDB and deny the appeal, or a determination to reverse the decision. CA Durden stated she has heard from both sides what she believes to be valid basis for approval or denial. In these circumstances when there is discussion and a basis for either one, CA Durden stated her experience has been that the decision that is made will be upheld. Commissioner Waters stated shelter can be provided in the 7 feet that is granted and there is still reasonable use allowed within the limits of the Code. This does not meet the level of exceptional circumstances. The permanent addition that would encroach on the 20 -foot setback would permanently effect the adjacent neighbor. Commissioner Anderson to clarify, CA Durden has heard grounds for approval and for denial but 99% of the time the City does not appeal a decision by the City Commission, only the applicant would make an appeal or litigate. CA Durden responded she is not familiar with any time that the City would appeal its own decision. Commissioner Kelly - no further comments. Commissioner Norris - no further comments. Mayor Glasser agreed with Commissioner Waters comments. In the final round of discussion, Commissioner Norris reiterated there were two reasons found for approval and a single reason found for denial. There were no other comments from Commissioners. Special Called Meeting of the City Commission March 25, 2019 Page 8 of 9 Roll Call Votes-. Candace Felly (Seconded By) For Blythe Waters (Moved day) For Ellen Glasser For Brittany Norris Against Cindy Anderson Against Motion to affirm the decision of the CDB for reasons stated passed 3 to 2. The appeal is denied. CA Durden stated the next step will be for PCD Director to prepare a draft order for review, then it will be issued. 3e ADJOURNMENT There being no further discussion, Mayor Glasser declared the meeting adjourned at 6:41 PM. Attest: Donna L. Bartle, City Clerk Ellen Glasser, Mayor Approval Date: 1/0//17 Special Called Meeting of the City Commission March 25, 2019 Page 9 of 9