CCSR2011_05-09_rev2_elh
CITY OF ATLANTIC BEACH
CITY COMMISSION
STAFF REPORT
AGENDA ITEM: Appeal of Community Development Board Order denying 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.
SUBMITTED BY: Erika Hall,
Principal Planner
DATE: April 21, 2011
BACKGROUND: On March 18, 2011, Staff received notice of intended appeal of the Community Development Board’s denial of the above-referenced variance request, ZVAR-2011-01. The official
appeal was received on April 12, 2011, thereby meeting the filing requirements of Section 24-49(b) of the Zoning, Subdivision and Land Development Regulations.
Public hearings by local governments to decide land use and zoning applications are quasi-judicial in nature, and consideration of appeal of quasi-judicial decisions by local governments
are subject to the “strict scrutiny” standard of review, meaning those bodies are limited to review of the record made during the proceedings, and particularly addressing the following
questions:
Whether procedural due process was afforded;
Whether the administrative body applied the correct law; and,
Whether findings are supported by substantial competent evidence.
This staff report addresses the Wolfsons’ charges within the framework of these questions.
I. HISTORY OF THE SUBJECT PROPERTY
Donald and Karen Wolfson own an oceanfront lot at 1725 Beach Avenue, as well as a 70’ wide by 50’ deep lot located on the west side of Beach Avenue right-of-way. Such lots of substandard
size located west side of Beach Avenue right-of-way, previously known as Garage Approach Roadway, are not individually platted. Rather, they are remnants of Government Lots 3, 4 and
7, and collectively make up a 50’ deep strip of land which was conveyed to the Neptune Beach Terrace, Inc by R-C-B-S Corporation, on May 2, 1936. Directly abutting the eastern boundaries
of Ocean Grove Unit No. 2 (recorded July 18, 1947) and Beachside (recorded July 17, 1986), these lots were then sold as accessory lots to the corresponding oceanfront lots east of the
right-of-way.
The Wolfsons acquired the above-described property on June 3, 1981. At that time, the area was known as Seminole Beach, was located within the City of Jacksonville, and was subject
to the zoning, land use and development regulations of the City of Jacksonville. However, Seminole Beach was annexed into the City of Atlantic Beach, effective January 1, 1987.
II. DECISION OF COMMUNITY DEVELOPMENT BOARD REGARDING APPLICATION FOR VARIANCE, ZVAR-2011-01
On January 24, 2011, the Wolfsons submitted an application “requesting a variance of rear yard setback allowing for reasonable use of the property” due to the “substandard size of a
lot of record”. The subject property is vacant, and no known documents indicate it has been previously constructed.
A. Procedural Due Process
The application for variance was processed and scheduled for public hearing according to the provisions of Section 24-64, and sufficient notice as required by Section 24-51 was given
prior to each meeting at which the application was considered. The record of each meeting reflects the opportunities afforded to the Wolfsons to address the Board regarding this request.
Staff presentations, public comments, and Board discussions and disclosures of ex parte communications are also documented. Further, the City Attorney was present at the March 15th
meeting and provided procedural guidance to the Board.
However, Mr. Wolfson alleges there has been a denial of procedural due process, stating in his April 13th supplemental letter that he “was not allowed to present evidence to rebut the
position the Board took as a result of its discussions”. Yet the record shows that, in addition to the unlimited time allotted to the applicant to present his case at both the February
15th and March 15th meetings, dialogue with the applicant continued throughout the Board’s discussion phase, as members asked for additional details or point of clarification on a number
of issues. If the applicant failed to present a vital piece of evidence during the presentation of his case, it is not by any error of the Board.
B. Application of the Correct Law
The Wolfsons’ petition is in response to denial of a request for a zoning variance, on a parcel that was annexed into the City of Atlantic Beach, effective January 1, 1987. The Wolfsons
claim that assurances were made to owners of annexed properties that future development of the area would be allowed to comply with City of Jacksonville regulations, rather than those
of the City of Atlantic Beach, subsequent to the annexation. City of Atlantic Beach Ordinance No. 90-86-112, adopted on December 8, 1986, and made effective concurrent with annexation
on January 1, 1987, reads as follows:
The zoning atlas of the City of Atlantic Beach, Florida is hereby amended to extend its boundaries to include the area known as Seminole Beach and Oceanwalk, and to provide for the rezoning
of those areas as indicated on the map attached hereto and made a part hereof, and further providing for the extension thereto of all the required setbacks and height limitations as
currently provided for in Chapter 24 of the Atlantic Beach comprehensive zoning ordinance.
Thus, Chapter 24, Zoning, Subdivision and Land Development Regulations, provides the correct and applicable context for consideration of this request. Specifically, the Wolfsons requested
a reduction in the required rear yard setback from twenty (20) feet to seven (7) feet – verbally amended to ten (10) feet at the March 15th meeting – for a nonconforming lot of record,
located in the Residential, Two-Family Zoning District, on the west side of the right-of-way at 1725 Beach Avenue.
As a lot of substandard size, the subject parcel does not meet the minimum lot area or dimensional criteria required for the construction of a single-family dwelling. However, existence
of the lot predates the zoning code (adopted July 26, 1982) in effect at the time of annexation. The provisions of Section 24-85, Nonconforming Lots, Uses and Structures, are also
applicable, and state, in part:
It is the intent of this Section to recognize the legal rights entitled to property owners of existing nonconforming lots, uses and structures and to permit such non-conformities to
continue in accordance with such rights, but not to otherwise encourage their continued survival. Furthermore, the presence of any nonconforming characteristic shall not be considered
as justification for the granting of variances, and any nonconforming structure or use, which is made conforming, shall not be permitted to revert to any nonconforming structure or
use.
When a lot or parcel of land has a lot area or frontage that does not conform with the requirements of the zoning district in which it is located, but was a legally established and documented
lot of record prior to the adoption of this code or previous codes and applicable Atlantic Beach ordinances, such lot or parcel of land may be used for one single-family dwelling in
any residential zoning district, provided the minimum yard requirements for that residential zoning district are maintained, or provided that the owner of said lot has obtained a variance
from the Community Development Board, in accordance with the requirements of Section 24-64 of this Chapter.
Section 24-17, Definitions, defines a zoning variance as:
…a relief granted from certain terms of this Chapter. The relief granted shall be only to the extent as expressly allowed by this Chapter and may be either an allowable exemption from
certain provision(s) or a relaxation of the strict, literal interpretation of certain provision(s). Any relief granted shall be in accordance with the provisions as set forth in Section
24-64 of this Chapter, and such relief may be subject to conditions as set forth by the City of Atlantic Beach.
C. Substantial Competent Evidence
The Community Development Board’s denial of the Wolfson variance request is not arbitrary and the decision is supported, in the record, by evidence that is both legally competent and
quantifiably substantial. The provisions of Section 24-64 were diligently applied to this
request, and the evidence as put for by Staff, the Wolfsons, and adjacent property owners was weighed against those standards. The final decision hinges upon two factors:
(1) The applicability of the City of Jacksonville Zoning Code.
The Wolfsons seek a reduction from the required rear yard setback of twenty (20) feet to ten (10) feet, which is consistent with the City of Jacksonville’s required rear yard setback
for the Seminole Beach area at the time annexation. However, they have offered no documentation establishing an official agreement between the City of Atlantic Beach and property owners,
that would grant those owners a perpetual right to invoke Jacksonville land development regulations. Neither has Staff been able to locate such documentation. Staff did find Ordinance
No. 90-86-112, referenced above, and a Staff Memo issued to Atlantic Beach and Seminole Beach residents at the time of annexation, on the subject of “Vital Statistics and General Information”,
which included the following item regarding zoning:
Any permits issued prior to January 1987 will be honored.
Zoning of the area will be compatible with existing zoning, i.e., single-family/multi-family.
Any permissible activity allowed by the City of Jacksonville will be honored.
Consideration of these two documents clearly establishes the jurisdictional authority over and applicability of the City of Atlantic Beach Land Development Regulations to the subject
property.
(2) The definition of “reasonable use”.
“Reasonable use” is a legal concept articulated by federal and state courts in regulatory takings cases. Within the context of those cases, and for the general purpose of land development
regulations, “reasonable use” means any use allowed by the local code. Section 24-107, Residential Two-Family (RG) Zoning District, permits single-family, two-family and accessory
residential uses, in compliance with the specified residential development standards which are also consistent with the residential densities defined by the Comprehensive Plan.
Given these determinations and the findings of fact based upon the expert testimonies of Staff and affected adjacent property owners offering verifiable evidence, and absent refutable
evidence to the contrary, the Community Development Board concluded that use of the subject property for the construction of a residential accessory such as a detached garage with living
quarters subordinate and incidental to the principal structure on the oceanfront parcel, is a reasonable use.
A single story garage may be built to a maximum height of fifteen (15) feet and a maximum lot coverage area of six hundred (600) square feet, and may be located five (5) feet from rear
and side property lines; while a two story garage may be built to a maximum height of twenty-five (25) feet and a maximum lot coverage area of six hundred (600) square feet, and may
be located ten (10) feet from the rear property line.
Contrasting these parameters for a residential accessory to the current limitations for the construction of a single family residential structure on the subject lot indicates that this
is not only a reasonable use of the property, but also the best and most efficient use of the property. The table below summarizes the development potential of the lot according to
three possible scenarios.
DEVELOPMENT STANDARDS
1-STORY GARAGE
W/ APT-GH
2-STORY GARAGE
W/APT-GH
2-STORY SF
RESIDENCE
MAX
HEIGHT
✔ 15.0’
✔ 25.0’
✔ 24.5
FRONT
SETBACK
✔ 20.0’
✔ 20.0’
? 20.0’
REAR
SETBACK
✔ 5.0’
✔ 10.0’
? 20.0’
SIDE
SETBACK
✔ 5.0’
(15.0’combined)
✔ 5.0’
(15.0’combined)
✔ 5.0’
(15.0’combined)
MIN ENCL
AREA
N/A
N/A
✘ 650 SQ FT (1ST)
1000 SQ FT TTL
MAX LOT
COVERAGE
✔ 600 SQ FT
✔ 600 SQ FT
N/A
COMPLIANCE
5/5
5/5
4/5
SUMMARY
Structure is compact but does not maximize floor area
One side of lot remains open and useable for green space and/or add’l parking without totally obstructing or interrupting the flow of air and light to adjacent properties to the west
As a residential accessory, ancillary to the principal residence on the oceanfront lot, any living quarters in this unit cannot be legally rented or sold separate of the oceanfront lot.
Structure is compact, but efficient and maximizes floor area
One side of lot remains open and useable for green space and/or add’l parking without totally obstructing or interrupting the flow of air and light to adjacent properties to the west
As a residential accessory, ancillary to the principal residence on the oceanfront lot, living quarters in this unit cannot be legally rented sold separate of the oceanfront lot
Requires a minimum 2’ variance to meet min enclosed area
Structure will extend across entire lot to meet min enclosed area, and will severely obstruct or interrupt flow of air and light to adjacent properties to west
Does not allow for add’l parking pad on side
As a single-family residential principal structure, such a unit may be legally rented long-term or even sold separately of the main oceanfront parcel
TABLE ZVAR-2011-01A.1: LOT DEVELOPMENT AND LDR COMPLIANCE ANALYSIS
RECOMMENDATION: Uphold 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.
ATTACHMENTS: Exhibit A.1 Wolfson Letter of Appeal (April 12, 2011)
Exhibit A.2 Wolfson Supplemental Letter (April 13, 2011)
Exhibit B.1 CDB Order Denying ZVAR-2011-01
Exhibit C.1 CDB Minutes (March 15, 2011)
Exhibit C.2 CDB Minutes (February 15, 2011)
Exhibit D.1 ZVAR-2011-01 Document Index
(Please contact staff to request digital access and/or hard copies)
BUDGET: None.
REVIEWED BY CITY MANAGER: ____________