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Agenda Item 8AAGENDA ITEM # 8A MAY 9, 2011 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. May 9, 2011 regular meeting AGENDA ITEM # 8A MAY 9, 2011 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 15 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 13 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 15 and March 15 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. May 9, 2011 regular meeting 2 AGENDA ITEM # 8A MAY 9, 2011 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 15 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 fi°om certain provisions) 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 May 9, 2011 regular meeting 3 AGENDA ITEM # 8A MAY 9, 2011 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: (a) Any permits issued prior to January 1987 will be honored. (b) Zoning of the area will be compatible with existing zoning, i.e., single- family/multi-family. (c) 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. May 9, 2011 regular meeting 4 AGENDA ITEM # 8A MAY 9, 2011 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 1 -STORY GARAGE 2 -STORY GARAGE 2 -STORY SF STANDARDS W/ APT -GH W /APT -GH RESIDENCE MAX V 15.0' V 25.0' V 24.5 HEIGHT FRONT V 20.0' V 20.0' ? 20.0' SETBACK V 5.0' d 10.0' 20.0' SETBACK 5.0' V 5.0' SIDE V 5.0' SETBACK (15.0'combined) (15.0 , combined) (15.0' combined) MIN ENCL N/A N/A 9 650 SQ FT (1sT) AREA 1000 SQ FT TTL MAX LOT V 600 SQ FT V 600 SQ FT N/A COVERAGE COMPLIANCE 5/5 5/5 4/5 • Structure is compact but ® Structure is compact, but ® Requires a minimum 2' does not maximize floor efficient and maximizes variance to meet min area floor area enclosed area ® One side of lot remains ® One side of lot remains ® Structure will extend open and useable for open and useable for across entire lot to meet green space and/or add'l green space and/or add'l min enclosed area, and parking without totally parking without totally will severely obstruct or obstructing or obstructing or interrupt flow of air and interrupting the flow of interrupting the flow of light to adjacent . SUMMARY air and light to adjacent air and light to adjacent properties to west properties to the west properties to the west ® Does not allow for add'l ® As a residential ® As a residential parking pad on side accessory, ancillary to the accessory, ancillary to the ® As a single - family principal residence on the principal residence on the residential principal oceanfront lot, any living oceanfront lot, living structure, such a unit may quarters in this unit quarters in this unit be legally rented long - cannot be legally rented cannot be legally rented term or even sold or sold separate of the sold separate of the separately of the main oceanfront lot. oceanfront lot oceanfront parcel TABLE ZVAR- 2011- 01A.1: LOT DEVELOPMENT AND LDR COMPLIANCE ANALYSIS May 9, 2011 regular meeting 5 AGENDA ITEM # 8A MAY 9, 2011 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 lave, and that the decision is sufficiently supported by substantial competent evidence. ATTACHMENTS: Exhibit A.1 Exhibit A.2 Exhibit B.1 Exhibit C.1 Exhibit C.2 Exhibit D.1 (Please contai BUDGET: None. Wolfson Letter of Appeal (April 12, 2011) Wolfson Supplemental Letter (April 13, 20 11) CDB Order Denying ZVAR- 2011 -01 CDB Minutes (March 15, 2011) CDB Minutes (February 15, 2011) ZVAR- 2011 -01 Document Index A staff to request digital access and /or hard copies) REVIEWED BY CITY MANAGER: -- - - May 9, 2011 regular meeting 6 AGENDA ITEM # 8A MAY 9, 2011 CITY OF ATLANTIC BEACH 800 SEMINOLE ROAD ATLANTIC BEACH, FL 32233 INSPECTION PHONE LINE 247 -5826 Application Number . . 11- 00100040 Date 4/12/11 Property Address . . 1726 BEACH AVE Application type description APPEALS Property Zoning . . . . . RES GEN 2F DISTRICT Application valuation . 0 Application desc ZVAR- 2011 -01 /REAR SB /APPEAL TO CC Owner Contractor ------------------ - - - - -- ------------------ - - - - -- OWNER ---------------------------------------------------------------------------- Permit . . . . . . APPEALS Additional desc Permit Fee . . . . 50.00 Plan Check Fee .00 Issue Date . . . . Valuation . . . . 0 Expiration Date . . 4/12/11 Special Notes and Comments APPROVED TO PROCESS CHECK ONLY Fee summary Charged Paid Credited Due Permit Fee Total Plait Check Total Grand Total City of Atlantic Beach I; #* CUSTOMER RECEIPT * ** Oper DSMI'H Type: OC DrarwI Date, 4/12/11 01 Receipt not 43722 Descripption Quantity Anunt Pp11 100040 BP BUILDING PERMITS €50, 00 Tender detail CK CHECK 5009 $50.00 Total tendered 150.00 Total paynent $50.00 Irr >> date: 4 /1E /11 Tine: 10:46:30 50.00 50.0.0 .00 .0.0 .00 .00 .00 .00 50.00 50.00 .00 .00 PERMIT IS APPROVED ONLY IN ACCORDANCE WITH ALL CITY OF ATLANTIC BEACH ORDINANCES AND THE FLORIDA BUILDING CODES. AGENDA ITEM # 8A MAY 9, 2011 Karen and Donald M. Wolfson 1725 Beach Avenue Atlantic Beach, FL 32233 904 - 394 -8190 donaldwolfson @cs.com VIA HAND DELIVERY April 12, 2011 Ms. Sonya Doerr, Community Development Director Community Development Department City of Atlantic Beach 800 Seminole Road Atlantic Beach, FL 32233 RE: ZVAR - 2011 -01 Dear Ms. Doerr: Per the email dated April 1, 2011 from Ms. Erika Hall, please accept this letter as our appeal of the decision of the Community Development Board issued Tuesday evening March 15` It was our intention to come before the City Commission on April 25` however, we had a scheduling conflict. Therefore, we request that our appeal be placed on the agenda for the next City Commission meeting on Monday, May 9` Enclosed you will find our amended letter dated April 2nd to you which I hope you find to be self - explanatory. Also, enclosed please find the Planning & Zoning Appeal fee of $50.00 as listed in Section 24 -69 (a)(1) and referred to in Ms. Hall's email of April 1 5 ` We hope that this request and payment is compliant with all of the provisions as set forth in 24- 49(b). Should you require anything else, please let us know at your earliest convenience. Sincerely, I Donald M. Wolfson Encls. APPL, 11- 601OW40 AGENDA ITEM # 8A MAY 9, 2011 Ms. Sonya Doerr April 12, 2011 Page two CC: Erika Hall, Principal Planner, City of Atlantic Beach Louis M. Borno, Mayor John L. Fletcher, City Commissioner Paul B. Parsons, City Commissioner Jonathan Daugherty, City Commissioner, Carolyn R. Woods, City Commissioner Alan Jensen, City Attorney, City of Atlantic Beach Howard L. Dale, Esq., Attorney -at -Law AA H- 001 AGENDA ITEM # 8A MAY 9, 2011 Karen and Donald M. Wolfson 1725 Beach Avenue Atlantic Beach, FL 32233 904 -394 -8190 donaldwolfson @cs.com VIA CERTIFIED MAIL— Amended April 2, 2011 Ms. Sonya Doerr, Community Development Director Community Development Department City of Atlantic Beach 800 Seminole. Road Atlantic Beach, FL 32233 RE: ZVAR- 2011 -01 Dear Ms. Doerr: Tuesday evening, March 1S the S -2 vote against the motion to approve our variance request denied the variance necessary for us to build a single family structure on our property beyond the permissible minimum set - backs. Presently, we are permitted to build a single family residence within the 10' x SS' footprint (i.e. SSO square feet) as depicted on the power point slide that was presented to members of the ABCDB. Section 24- 82(j)(1) and (2) specifically requires the following minimum floor area for single family residential dwelling units: 1. one (1) story: One thousand (1,000) square feet of enclosed living area. 2. Two (2) story: Six hundred fifty (6S0) square feet of enclosed coverage on the ground floor and not less than a total of one thousand (1,000) square feet of enclosed living area. Without a variance, building a single family structure within the permissible SSO square feet footprint does not allow compliance with either one of these requirements. Furthermore, a standard garage measures 20' deep by 10' wide per car thus making it impossible to include a garage capable of housing a broad range of vehicles including but not limited to: a MINI Cooper (12.13' long), a Honda Civic (14.78' long) a Chevrolet Suburban (18.67' long), etc. Without a variance, we cannot under any circumstances include a garage within a permissible structure having a 10' depth. The action of the ABCDB has placed a hardship upon us. Without the variance requested, or without a variance reducing the rear yard and /or the front yard setbacks, we cannot build a single family structure on this nonconforming lot of record. Any time the government, in this case the ABCDB, over - regulates a piece of property so that it no longer has any practical use, such action as the one taken by the ABCDB, in my opinion, constitutes a "taking" through the denial of our variance request or at least grounds for relief under the Bert Harris Act. The action taken by the ABCDB eliminating the practical use of our AGENDA ITEM # 8A MAY 9, 20I I Ms. Sonya Doerr — Amended April 2, 2011 Page two property constitutes a taking of the most serious kind —the denial of the basic property rights of tax paying citizens. We respectfully invoke our right to appeal the legality of this decision before the City Commission and if necessary before a court of law. At your earliest convenience, please provide me with the necessary documents to apply for a hearing before the May 9 City Commission meeting. I request the detailed minutes of the last two meetings of the ABCDB before which our variance request was discussed as well as the complete list of names of those persons speaking before the Board on this matter. Enclosed please find our check #5009 in the amount of $50.00 for the Planning & Zoning Appeal fee. Sincerely, Donald M. Wolfson Encl. CC: Erika Hall, Principal Planner, City of Atlantic Beach Alan Jensen, City Attorney, City of Atlantic Beach Chris Lambertson, Community Development Board, Chairman Christopher "Blaine Adams, Community Development Board Kelly Elmore, Community Development Board Ellen Glasser, Community Development Board Brea Paul, Community Development Board Harleston Parkes, Community Development Board Kirk Hansen, Community Development Board Howard L. Dale, Esq., Attorney -at -Law WL, 1, , Do[(( W AGENDA ITEM # 8A MAY 9, 2011 Karen and Donald M. Wolfson 1725 Beach Avenue Atlantic Beach, FL 32233 904 - 3948190 donaldwolfson @cs.com VIA HAND DELIVERY - SUPPLEMENT TO NOTICE OF APPEAL LETTER OF APRIL 12, 2011 April 13, 2011 Ms. Sonya Doerr, Community Development Director Community Development Department City of Atlantic Beach 800 Seminole Road Atlantic Beach, FL 32233 RE: ZVAR- 2011 -01 Dear Ms. Doerr: Besides our request for the appeal of the decision of the Community Development Board dated April 12, 2011, please be advised that in addition to the concerns raised previously, specific grounds for the basis for our appeal to the City Commission Monday, May 9 th should include, but not be limited to the fact that there is not competent substantial evidence to support the decision rendered by the Community Development Board. I was not afforded due process in presenting our case as I was not allowed to present evidence to rebut the position the Board took as a result of its discussions. The Chairman closed the floor for rebuttal and the Board's action to deny our variance was in conflict with Section 24- 820)(1) and (2). Furthermore, the decision of the Board conflicts with all reasons for grounds for approval of a variance asset forth in 24- 64(d),(1 -6): (1) exceptional topographic conditions of or near the property. (2) surrounding conditions or circumstances impacting the property disparately from nearby properties. (3) exceptional circumstances preventing the reasonable use of the property as compared to other properties in the area. (4) onerous effect of regulations enacted after platting or after development of the property or after construction of improvements upon the property. Initial Effective Date: January 01, 2002 Last amended: March 08, 2010 by Ordinance 90- 10-212 26 AGENDA ITEM # 8A MAY 9, 2011 Ms. Sonya Doerr April 13, 2011 Page two (5) irregular shape of the property warranting special consideration. (6) substandard size of a Lot of Record warranting a Variance in order to provide for the reasonable Use of the property. Specifically, the Board found that our request did not comply with Section 24 -64 of the Zoning and Subdivision Regulations, which findings are set forth below and followed with our responses as duly noted and set forth in bold type: (1) The property is not of irregular shape warranting special conditions... NOTE: Our property IS irregular in shape warranting special conditions since the depth of the lot is 50', (2) The substandard size of the lot of record neither warrants a variance in order to provide for the reasonable use of the property nor are there other exceptional circumstances preventing the reasonable use of the property compared to other properties in the area... NOTE: Minimum front and rear yard setbacks are 20' each leaving a footprint depth of 10' and with the minimum side yard setback requirements being a combined 15'. Building a structure with a 10' depth Is not functional. Also, these setbacks would allow for a single family structure to have a maximum footprint of 550sf which is in conflict with the minimum floor area requirements, as stated above, for single family residential dwelling units as set forth in 24- 820)(1)(2), single family residential dwelling units being permissible on this lot in the City of Jacksonville prior to annexation of Seminole Beach by Atlantic Beach. Without granting the reduction of the rear yard setback from 20' to 10', a 50' deep lot is an exceptional circumstance preventing the reasonable use of the property compared to other 50' deep lots in the area granted historical variances that provided relief allowing for reasonable use of the property; (3) The granting of the variance will have a materially adverse impact on the light and air to adjacent properties, public safety, including risk of fire, traffic safety and general congestion of streets, the natural environment of the community and established property values... NOTE: The 10' variance requested is not one of height and therefore, there is no adverse impact on the light and air to adjacent properties vis a vis 24 -82(c) which is carefully addressed in the Code to which we intend to adhere. The height percentage reduction for non - conforming lots of record was established to address this concern and thus the Board Ignored this requirement failing to recognize that the parameters of 24- 82(c) are applicable to this request; AGENDA ITEM # 8A MAY 9, 2011 Ms. Sonya Doerr April 13, 2011 Page three There are no public safety issues, specifically risk of fire as there will be at the very least 30' between the rear wall planes of each adjacent structure and historically, this margin between structures has been determined to be safe and approved time and again in workshops attended by the COAB fire chief over a 14 year period; Traffic safety and general congestion of streets - the permitting of residences between 17 and 18` Streets along the west side of Beach Avenue has never been denied for this reason and in fact has been approved specifically addressing this concern; Adverse impact on the natural environment of the community — since the annexation of Seminole Beach in 1987 and through 2010,12 residential structures have been permitted and built nullifying this argument of the Board; Adverse,.impact on established property values — in 1991, our property value soared 2,400% immediately after the construction of 1778 Beach Avenue in 1989 and the property values along the west side of Beach Avenue have risen constantly with the construction of each single family residential unit again nullifying the argument by the Board to deny our variance based upon a materially adverse impact on established property values. (4) The granting of the variance will not be in harmony with the general intent and purpose of Chapter 24, City of Atlantic Beach Zoning and Subdivision Regulations... NOTE: Our answers address the concerns of the Board as set forth in the Order Denying Variance dated March 23, 2011. We believe that there is no substantiation relative to the variance not being in harmony with the general intent and purpose of Chapter 24 that was offered by the Board that validated the denial of our variance request. We sincerely appreciate you accepting this Supplemental Notice in addition to the letter of appeal that was hand delivered to your office Tuesday morning. We hope that this request and the payment that was submitted Tuesday is compliant with all of the provisions as set forth in 24- 49(b). Should you require anything else, please let us know at your earliest convenience. I hereby verify that the above statements are true and correct. Sincerely, C) &"% *Q Q M, W Donald M. Wolfson AGENDA ITEM # 8A MAY 9, 2011 Ms. Sonya Doerr April 13, 2011 Page four CC: Erika Hall, Principal Planner, City of Atlantic Beach Louis M. Borno, Mayor John L. Fletcher, City Commissioner Paul B. Parsons, City Commissioner Jonathan Daugherty, City Commissioner, Carolyn R. Woods, City Commissioner Alan Jensen, City Attorney, City of Atlantic Beach Christopher A. White, Esq., Attorney -at -Law AGENDA ITEM # 8A MAY 9, 2011 FILE COPY r , . l G i J Sir City of Atlantic Beach • 800 Seminole Road , Atlantic Beach Florida 32233 -544 Phone: (904) 247 -5800 - FAX (904) 247 -5845 - www.coab.us of the Community Development Board for the City of Atlantic Leach, Florida APPLICANT: Donald and Karen Wolfson 1725 Beach Avenue Atlantic Beach, Florida 32233 FILE NUMBER: ZVAR- 2011 -01 DATE OF HEARING: March 15, 2011 ORDER DENYING VARIANCE Pursuant to Section 24 -49 and Section 24 -64 of the City of Atlantic Beach Zoning and Subdivision Regulations, the above referenced applicant requested a variance from Section 24 -107 (e) (2), such application seeking to allow a reduction in a required rear yard to allow for the future construction of a residential structure on a non - conforming 70' wide x 50' deep lot of record located on the west side of the right -of -way at 1725 Beach Avenue, On March 15, 2011, said request was considered at public hearing by the Conuliutiity Development Board for the City of Atlantic Beach. Having considered the application and supporting documents and statements made by the Applicant, the Community Development Board found that the request did not comply with. Section 24 -49 and Section 24 -64 the City of Atlantic Beach Zoning and Subdivision Regulations, finding as follows:. The property is not of irregular shape warranting special conditions, neither are there exceptional topographic conditions of or near the property, nor are there surrounding conditions or circumstances impacting the property disparately from nearby properties; The substandard size of the lot of record neither warrants a variance in order to provide for the reasonable use of the property, nor are there other exceptional AGENDA ITEM # 8A MAY 9, 2011 Page 2 of 2 ZVAR- 2017 -01 Order iffarch 17, 2011 circumstances preventing the reasonable use of the property compared to other properties in the area; 3. The granting of the variance will have a materially adverse impact on the lig and air to adjacent properties, public safety, including risk of fire, traffic safety and general congestion of streets, the natural envirorunent of the conirnunity, and established property values; 4. The graining of the variance will not be in harmony with the general intent and purpose of Chapter 24, City of Atlantic Beach Zoning and Subdivision Regulations. NOW THEREFORE, based on the said findings, the Conuuunity Development Board hereby DENIES the request to allow a reduction in a required rear yard to allow for the future construction of a residential structure on a lion- conforming 70' wide x 50' deep lot of record located on the west side of the right-of-way at 1725 Beach Avenue. DATED THIS Z DAY OF f&re'�l , 2011. Cliristambertson, Chairman Conununity Development Board The undersigned certifies that the above Order of the Community Development Board is a true and correct rendition of the Order adopted by said Board as the same appears in the record of the Conununity Development Board minutes. i Community evelopment Director AGENDA ITEM # 8A MAY 9, 2011 Drafl Minutes of the March 15, 2011 regular meeting of the Community Development Board IL' O 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 r - � j `L'USil� MINUTES OF THE REGULAR COMMUNITY DEVELOP: Tuesday, March 1,`. F THE The regular meeting of the Community Developmf 15, 2011 in the City Hall Commission Chambers", attendance were Principal Planner Erika Hall, Ci Adams, Kelly Elmore, Ellen Glasser, Kirk Hansen, 1. CALL TO ORDER. Chairman 2. APPROVAL OF MINUTES OF THE FEBR called for a motion to approve the mmutes ;of the two corrections, as follows.'. (1) Page 1 of 4;`; Item 3, last, sentence n' recognized'the hard work and, dedication c, (2) Page 3 of 4, Paragraph 4, first sentence: seeking a variance to, construct, . something was convened at,d at 800 Seminole 'R tey Alan,'.. Jensen, ai mbe P pm on Tuesday, March in Atlantic Beach. In 3oard members Blaine ;s a Brea Paul. to order at 6:02 pm. 15, 2011,MEETING. Chairman Lambertson ary 15, 2011 meeting. Ellen Glasser requested Iemf er -Bl ain "e Ada Ellen Glasser then mity Development Director Sonya Doerr." iere Ms. Glasser asked if the applicant was oval use, or if it was for future disposal, to out future disposal, but the immediate plan MOTION: Ellen Glasser, moved to approve the minutes of the February 15, 2011 meeting, as noted. Blaine Adams offered a secona",,and the.motion carried unanimously, 7 -0. 3. RECOGNITION.OF VISITORS• Chairman Lambertson noted that City Attorney Alan Jensen was in attendance at the request of the Board. He then welcomed the audience, noting the presence of Commissioners John:; Fletcher and Paul Parsons, and thanked everyone for their interest and attendance. 4. OLD BUSINESS. a. ZVAR- 2011 -01, Donald and Karen Wolfson. Request for a Variance from Section 24- 107(e)(2) to reduce the required twenty (20) foot rear yard setback to seven (7) feet to allow for the future construction of a residential structure on a nonconforming lot of record at 1725 Beach Avenue. Mr. Lambertson disclosed that he had been contacted by the applicant prior to the meeting. Additionally, he said that he had been contacted by Board member Ellen Glasser who called to ask if it was permissible for her to have a conversation with the applicant regarding his request outside Page 1 of 10 AGENDA ITEM # 8A MAY 9, 20I 1 Draft Minutes of the March 15, 2011 regular meeting of the Community Development Board 44 of a noticed meeting. Ms. Glasser added that she did have a subsequent conversation with Mr. 45 Wolfson. 46 47 Mr. Elmore and Mr. Hansen also disclosed that the applicant had engaged each of them 48 independently in conversation regarding the current application. Mr. Adams and Mr. Parkes each 49 disclosed they had received voicemails from the applicant, but had not spoken directly with him 50 outside of the meeting. 51 52 Ms. Hall introduced this item as having been deferred by the Board at the previous meeting, with a 53 request for research and presentation of additional historic information by Staff and a revision to 54 the request by the applicant to address some of the, concerns that had been discussed at the same 55 meeting. The Board had also requested that the 'City Attorney, attend the meeting. Ms. Hall 56 explained that Staff had researched historic variance requests,,,, related to lots of similar 57 circumstances as the subject property, to determine if there had been a° precedence previously set. 58 In particular, the current applicant is requesting' a variance to reduce the required rear yard setback 59 from twenty (20) feet to seven (7) feet, to allow'for the future development'ofthe subject property, 60 which is a nonconforming lot of record of substandar&size, located on the ;West side of Beach 61 Avenue. Section 24 -85(b) states;that legally established 41onc6nforming lots of record may be used 62 for one single - family dwelling, provided,the minimum yard requirements for the residential zoning 63 district are maintained, or the owner ,obtauis,,.a variance from the Community Development Board 64 (CDB), in accordance with Section 242.64. 66 For the Board's ,consideration of the current application Staffs provided historical information 67 about previous applications meeting certaui (1)`:fron� owners of similar nonconforming 68 substandard s 'of record` located .in tlie� area previously k no lot wn as Seminole Beach 69 (particularly in the vicinity of Beach Avenue °previously known as Garage Approach Roadway) (3) 70 which was de- annexed `from the City of Jacksonville (COJ) and annexed into the City of Atlantic 71 Beach (COAB), . as the�zesult of Floridan legislative action and a referendum vote of by 72 affected resid "ents.`: The annexation was dpproved`in November of 1986, and became effective 73 January 1, 1987. At-, previous CDB 'meeting, the applicant suggested that prior to the 74 annexation, the COAB'had given such affected property owners assurance that COJ Zoning Code 75 and'Land, Development Regulations'(LDRs) in effect at the time, but different from those of 76 Atlantic hono Beach, would be red. Copies of supplementary documents are attached. 77 78 Ms. Hall noted.,tktat while found no formal agreement to this effect, she did find, and had 79 provided to both..the apphcaiit and the Board members, copies of a memo sent out to residents at 80 the time of annexation; stating in regards to zoning: 81 82 ® Any permits issued prior to January 1987 will be honored. 83 ® Zoning of the area will be compatible with existing zoning, i.e., single - 84 family, multi family. 85 . Any permissible activity allowed by the City of Jacksonville will be 86 honored. 87 88 She also had provided the Board as well as the applicant with copies of side -by -side comparisons 89 of the Zoning Code and LDRs in effect for both Atlantic Beach and Jacksonville at the time, and a 90 section of the Official Atlantic Beach Zoning Map, as amended by the City Commission on 91 December 8, 1986, for the newly annexed area. Page 2 of 10 AGENDA ITEM # 8A MAY 9, 2011 Draft Minutes of the March 15, 2011 regular meeting of the Community Development Board 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 Specifically at issue for the current applicant, due to the reduced depth of the subject property, is the required rear yard setback, which had been a minimum of ten (10) feet in the COJ, but a minimum of twenty (20) feet in the COAB. Thus, Ms. Hall established an additional criterion focus her research, (4) those historic variance requests to reduce the required rear yard setback to the 1987 -COJ standard of ten (10) feet. During the years of 1987 through 1994, Ms. Hall found ten required rear yard setback on properties subject to the 1987 requests involved standard lots which were already well,irto t] utilizing the COJ setback at the time of annexation Of the involved substandard lots, five (5) were approved by the CDB; were eventually overturned by the City Commission, but tl Kredell appeal was granted were complex and unique to th (10) requests for variance to the annexation. Of those, three (3) to design / engineering phases and remaining seven (7) requests that ind two were denied. Both denials te circumstances upon which the property, whereas those of the Hawkes appeal were more consistent with .the five (5) approved requests. However, none of the variances exceeded or requested more thani ,the ten (10) foot reduction necessary to comply with the COJ standards. _. 108 109 Ms. Hall also reiterated that the 1734 Beach Avenue,46t& structure that Mr. Wolfson had presented 110 as an exemplar of his proposal,'vvas built to a seven (7)106t: setback, because it had been rebuilt in 111 the existing footprint of a 1974 structure' 'Because that,siructure had been built and presumably mation oii what the regulations might have been at that time, or 112 permitted by COJ, she had no infor 113 if a variance had been required or even obtained. She was ableto. locate historic correspondence, 114 dated just prior to annexation though; m:which a COT officialexplained to one of the affected 115 property owners (Moller) those COJ setback requlrements;(20'.front, 10' rear, combined 15' sides) 116 could be reduced 'jo 10' front, on either, side and 5' rear, liy execution of something called a 117 "Yard Modification ?; which regiJired approvdtand signature by all contiguous property owners. 118 However, she found no.�evidenceahat the COAB ever had such a process. 119 120 Ms. ,Hall concluded by sayuig that she had received numerous calls and inquiries requesting 121 explanation of concepts such as grand fathering, vesting, takings and precedence, and their 122 applicability to this variance request, as well as requests for specific historic information in an 123 effort to' determine if a `valid precedent did exist. While she felt that a precedent was set with the 124 early requests (1987 - 1994)' two factors' should be considered which suggest that precedent may no 125 longer exist These incude i 1) the passage of time since the action which invoked the 126 "grandfathermg ".Yof those properties, i.e., 24 years since annexation and rezoning of Seminole 127 Beach, and 2) the lack 9(a emorialized record of any agreement or provision guaranteeing a 128 reduced ten (10) foot rear yard setback, either at the time of annexation, or over the subsequent 129 fourteen (14) years leading up to the most recent full rewrite of the Zoning, Subdivision and Land 130 Development Regulations, which were adopted by Ordinance 90 -01 -172 on November 26, 2001 131 and made effective on January 1, 2002. However, she deferred to Mr. Jensen to provide legal 132 opinion and guidance to the Board regarding those matters. 133 134 Mr. Lambertson invited applicant Don Wolfson to address the Board. Mr. Wolfson stated that he 135 wanted to clarify a misinterpretation of his presentation at the February 15 meeting. The term 136 "hardship" had been used; this was not the basis of his request though. He said he was merely 137 requesting what had been historically communicated to the residents of former Seminole Beach as 138 a conveyance of the existing COJ ten (10) foot rear yard setback as part of the annexation 139 agreement. Additionally, though a petition had been circulated and signatures gathered from some Page 3 of 10 AGENDA ITEM # 8A MAY 9, 2011 Draft Minutes of the March 15, 2011 regular meeting ofthe Community Development Board 140 fifty (50) plus residents of the Ocean Grove area in opposition to his request, only three of those 141 parties owned property directly abutting his, being Jo Ann Ruggiero (1725 Ocean Grove Drive), 142 Barbara James (1727 Ocean Grove Drive) and John Laliberte (1729 Ocean Grove Drive). 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 Mr. Wolfson referred to his past service to the City as a member of the Community Development Board for approximately fourteen (14) years, the majority of which time he served as Chair, as well as time spent as Chair of the North Atlantic Beach Association, a group that had worked diligently to procure the annexation of Seminole Beach. He noted that the compilation of official City records provided to the Board for review did reflecteihis personal opposition to virtually the same request he was making, on numerous instances in the past. However, he explained that each variance was required to stand on its own merits, 'arid he:,, acted on guiding principles and established provisions of the time. Mr. Wolfson said he was particularly troubled „by variance, but he was personally opposed to: the prin the fifty (50) percent reduction in the minimum req appeal, noting that Mr. Hawkes had established tl which was considered a legal lot of record. He "t] letter from Mr. Hawkes to thenK (lty Manager Kim property rights impacted by the annexation ',.,_ the Board's denial; of the Townsend Hawkes iple of granting a variance that would result in iced lot size. He then summarized the Hawkes �a long time owner of the property, paragraph of the December 2, 1992 regarding the preservation of private It is my understanding that when the City ofAtlantic Beach agreed to take this North.�ltlant e 'Beach oceanfrontage and make it pait`o,Mtlantic Beach, one of the: agreements' "to this ti ansfer of property was, that Atlantic Beach would honor the con2itnients made fto`the residents of North Atlantic Beach, such ds ourse1 - v ; and one o) - important cominitments, to us, was that this 50'x 50 .lot could be, used to`erOct a garage apartment with living auai tees: -, but noiv the City ofA'tldntc Beieh our right to build such a Mr,`"Wolfson continued;�hoting that`then -City Planner George Worley stated "The proposed use of the building would be for, Mr. HdWkes' primary residence," in his staff report to the City Commission, dated February`l, 1993 aridl regarding Mr. Hawkes' appeal of the variance denial. He then readfroin, letter obtained February 8, 1993 by Hans Tanzler, Jr, attorney for Mr. Hawkes, from Claude E '�Bagwell, then -Chief of the City of Jacksonville Building & Zoning Inspection Division: This is to confirffl our conversation that the referenced property could have been a single family residence constructed under the City of Jacksonville's zoning code had the property not been annexed by Atlantic Beach. More specifically, the zoning code for the City of Jacksonville required a rear yard setback of ten (10) feet. Presently, residential zoning districts also require ten (10) foot rear yard setback. Mr. Wolfson then read fl•om the minutes of the February 8, 1993 City Commission meeting, at which Mr. Tanzler represented the Hawkes' variance appeal and City Attorney Alan Jensen advised the Commission to grant the variance: Page 4 of 10 AGENDA ITEM # 8A MAY 9, 2011 Draft Minutes of the March 15, 2011 regular meeting of the Community Development Board 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 Hans Tanzler, a lawyer° representing Mr Hawkes, reported that Townsend and Virginia Hawkes wished to supplement their income with the rental property. He explained property owners in the area, formerly known as Seminole Beach, were told prior to their agreeing to annexation that their right to develop property would not be more restrictive under Atlantic Beach than it was under Jacksonville. The rear setback would have been only 10 feet when the property was part of Jacksonville and the structure could have been constructed. Alan Jensen, City Attorney, advised that because of -the promise that was m hade prior to annexation, and the fact t, at other property owners in that area had been granted variances based o f similar logic, a, denial of this request would not be defensible in court., Mr. Wolfson then responded to Donald Wastall's (1723 February 15 CDB meeting that motivation for securing tb this was not true. He then countered the claim by James; professionals had presented to them that., vegetated lots ab' not be developed, saying that no seal estate agent had theta not be developed. In support of the that the Wolfson pointed to the_ 1996 installation of watef -and property owners wQrei required to pay Finally, Mr. Wolfson said he and purchase the`lot, and in received an offer froni4hem. he offered to emend his requ to a;.ten'_(10) fbU;reductiori 1990s. He closed'by'statim of years prior to aniie)s the tune of annexation. ;an Grove Drive) statement at the - iance was strictly financial, saying giero and Wanstall that real estate theirs were substandard and could ity to promise that those lots would would one day be developed, Mr. lines by the COAB, noting that t' "and west sides of Beach Avenue. , gested to+the adjacent property owners that they go in together it as a buffer to their properties. However, since he had not lined that'wasnot an option. Still, in the spirit of compromise, :thnteen (13)foot,reduction in the required rear yard setback tent with thos Variances granted in the late 1980s and early J. and his wife had been owners of the property since a number ey only wanted to exercise those rights guaranteed to them at 221 Mr. Lambertson opened the) floor to public comment, and recognized Atlantic Beach City 222 Commissioner Tohn Fletcher, (1740 Live Oak Lane) as the first speaker. Mr. Fletcher said he was 223 there to address ih& as; a resident rather than as an elected official. As a property owner in 224 the vicinity, he said he�`had,received calls fi a number of his neighbors, and like them, he was 225 concerned about the repercussions, no matter the final outcome. He cautioned the Board that there 226 were a number of issues complicating the matter, and asked them to carefully examine the 227 evidence in light of the specific grounds for approval and grounds for denial of a variance, as 228 delineated in Section 24 -64. He added that he found it ironic that Mr. Wolfson had been so 229 adamantly opposed to the identical requests during his tenure on the CDB, but was standing before 230 the same body making the same request today, on the same grounds which he opposed then. He 231 reminded the Board that it was Mr. Wolfson and then -Board member Dezmond Waters who 232 repeatedly referred to the original covenants and restrictions, which reportedly stated that the 233 substandard lots on the west side of Beach Avenue were to serve as supplementary parking 234 accommodations for the oceanfront lots. However, in the absence of those covenants and 235 restrictions, he was uncertain as to the original purpose and intent of those lots, or if that even Page 5 of 10 AGENDA ITEM # 8A MAY 9, 2011 Draft Minutes of the Match 15, 2011 regular meeting of the Community Development Board 236 mattered, given the extended passage of time and change in jurisdiction. Further, he said he 237 wondered if the City's intention was to honor the COJ ten (10) foot rear yard setback in perpetuity, 238 if at all, given the absence of any historic document specifically stating such. Mr. Fletcher thanked 239 the Board for their thoughtful deliberation and excused himself from the meeting. 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 Donald Wanstall (1723 Ocean Grove Drive) thanked the Board for the opportunity to speak again, and apologized if he sounded angry at the February 15 meeting. He said he felt somewhat blindsided when Mr. Wolfson attempted to engage him in conversation about the request just two days before the meeting, even though the application had beenafiled with the City some thirty -three (33) days before, on January 11, 2011. He asked that the.Board carefully consider the grounds for denial of a variance as listed in Section 24- 64(c), and" n'A'64, instructions: "No variance shall be granted if the Community Development Board, in, its discretion,determines that the granting of the requested variance shall have a materially adverse impact upon ore or more of the following." He then spoke to the potential impact to each condlton, but specifically'(1) light and air to adjacent properties, (2) congestion of streets, (4) established property values; ani t (7) the general health, welfare or beauty of the community. He noted in the denialof ZVAR -2003 10 on June 17, 2003, then -CDB member Wolfson argued that neighbors -have a sight to privacy, andhe certainly agreed with that position. Further, he noted,the Board had directedahe applicant to attempt to reach some sort of compromise with the adjaceht'�property own ,ers prior to tonight's meeting. Mr. Wanstall said that his wife had suggested she° w6 be amenabha to the variance if the structure were limited in height to one - story, but Nii Wolfson replied that he would be amenable to reducing his request by a foot, possibly. Greg Kelly (1733;06 subject property,,th ,g Jo Ann Ruggiero (17'� foremost;Ahere=yvouk The ` destruction! of t; privacy, and in turn, l forslranting the varia: grantmg,this variance beach eoiiimunity. conseaueriaes of the r Drive) 5' Ocean Grove Drive) sai&that she had three (3) main objections. First and be a.de'.trlmentaJ _effect onler investment, and that of her three neighbors. 'ees ands.natural vegetative °buffers would mean less natural beauty, less awes property values. "Second, besides failing to meeting any of the criteria ice;; it seemed this request met all the criteria for denying a variance. Third, would lead to. the ,.further erosion of a peaceful, eclectic neighborhood of the She recommendetj the Board look beyond this one application, to the recedenf,they would be setting. y is not directly adjacent to the a negative effect on everyone. Barbara James °(125 Ocean,,Grove Drive) said she was in accord with the residents who had signed the petition m opposition to the Wolfsons' request. She said she had been approached by Mr. Wolfson the pri6rrSunday and asked if she would write a letter in support of his application. When she replied that she would not, she said Mr. Wolfson responded that he would report to the Board that she had "no objection ". Thus, she felt it was her duty to attend and ensure the record correctly reflected her opposition. Wayne Parrish (68 17 Street) said that he lived on the southwest corner of 17 and Beach, and over the last five years he has observed continuous construction on the lots on the north side of 17 and he was opposed to further increasing the density of the area. Mr. Lambertson asked if there were others wishing to speak for or against the application, and with no further comment, he closed the public hearing and opened the floor to Board members. Page 6 of 10 AGENDA ITEM # 8A MAY 9, 20l l Draft Minutes of the March 15, 2011 regular meeting of the Community Development Board 284 285 Ms. Glasser thanked Ms. Hall for her diligence in providing the Board with a thorough summary 286 of previous actions and supporting documents. She then asked Mr. Wolfson how he reconciled his 287 past opposition to such variances with his current position. Mr. Wolfson responded that 288 circumstances were different then. At the time of the Kredell application, Beach Avenue supported 289 two -way traffic, whereas it is now one -way, and a number of the properties had not been 290 developed at that point. Additionally, the City Commission and the City Attorney had determined 291 that the CDB had not taken the correct position and, in several instances, he had been wrong. 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 Ms. Glasser asked why Mr. Wolfson had voted to deny the' Hawkes' variance, to which he replied he had a philosophical problem with development of a lot which was only fifty (50) percent of the required minimum area of a standard lot. Ms. Glasser_then noted, Mr. Wolfson as giving "a lengthy history of the area, with particular reference to A]* original deed' restrictions" and stating "that Garage Approach was uniquely designed;, "fot additional parking facilities and not for living spaces ", according to the CDB minutes ofApril 18, 1989. She requested clarification on the use of the term "hardship" in requesting a variance While this., was historically a valid reason for granting a variance, such is no longer the case. Now them-were very specific,grounds for approval and grounds for denial spelled out ,,.Ms. Glasser then confirmed that Mr. Wolfson did not need to state a hardship for this request.` Mr. Parkes asked Mr. Jensen to verif .the.time of aririexation, the only difference between Atlantic Beach and Jacksonville was''the rear yard; setback, and other development standards were the same. Mr 7enseri said that was< correct,. however, smce:;tlie annexation, the Zoning Code and LDRs have changed substantially. - Parkes said.he - wanted to be sure that there was no other historicalwrequirement that needed to lie honored. Mr. Jensen said he did not recall there having been any such documentation, and reminded the Board that the subject property has been under the jurisdiction' o£ the "COAB,for twenty' =four (24) years, and is therefore subject to the Mr ''Elmore said'he took the position that'th& Wolfsons' had purchased the property prior to annexation, and therefore their property rights should be preserved. However, he was sympathetic to tfie neighbors also. �Mh Parkes replied that he was a property rights advocate as well, but the Zoning Code that is applicable to this property has changed substantially over the years, in an effort to balance the rights of the individual with those of the community. And, there appears to be no agreement that.,countermands the LDRs. Ms. Glasser referred tithe, Kredell and Hawkes denials, both of which were eventually overturned by the City Commission sand asked about Mr. Jensen's February 8, 1993 statement that denial of the (Hawkes) variance was not defensible in court. Mr. Jensen explained a number of factors were considered, including the timing of the request relative to the annexation, consistency of the request with other variances that had been approved, as well as the language of the LDRs in effect at the time, and the weak findings upon which the CDB based their denial. Mr. Elmore asked Mr. Jensen if this Board were to deny the request before them, would Mr. Wolfson be able to successfully challenge the denial. Mr. Jensen reiterated that it has been over eighteen (18) years since the Hawkes appeal. In the interim, there have been several complete rewrites of the LDRs as well as numerous amendments, all requiring public notices, community workshops and /or public hearings at which affected parties could have requested provisions to specifically address the circumstances of these lots. However, no such provisions have been incorporated into the LDRs, Page 7 of 10 AGENDA ITEM # 8A MAY 9, 2011 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 Draft Minutes of the March 15, 2011 regular meeting of the Community Development Board and no additional variances meeting the same circumstances have been considered in the mean time. Mr. Jensen then reminded the Board that variances are to be considered on a case -by -case basis, and that they may be approved only upon findings of fact that they are consistent with the definition of a variance and consistent with the provisions of Section 24 -64. If this Board were to follow these directions of the ordinance in effect today and carefully review the request in light of the grounds for approval and grounds for denial, as currently required, then their decision would be defensible. Board members concurred, and Ms. Glasser repeated Mr.: preceding variances to reduce the required rear yard sdtbaci then inquired as to the conditions of the construction on>thf north of the subject property at 1733 Beach Avenue, acid M< in the existing footprint of a 1974 structure which was demo of the lot. Thus, the structure was completely legal and no Volfson's earlier statement that the all stood on their own merits. She substandard Pennington lot, located Ha11 replied that structure was built 'heck just prior to the redevelopment iriance was required. As a point of clarification, Mr. Lambertson noted that;. both through coordination With Staff and during the meeting, Mr. Wolfson was amenable to a verbal,, amendment to his request, decreasing it from a thirteen (13) foot reduction to a ten (10) foot reduction m the required rear yard{`setback, consistent with the other variances that ha&been granted in th&' ast' y ,,:� MOTION: Ellen Glasser moved t&apploye the applicant earlier in this meeting, froln'Sectlori 24- rear yard setback to _ ten (10) feet to allow for is nonconforming lot of r'ecor'd. on the west side of t Avenue. Brea Paul secoad - a44 the motion isc Ms. Glasser note&,it °wa his opposition to the: s dedicated service, to the reversal in position as surrounding properties;.., variance precluded Mr.' a takln6 -equested�,variance, as verbally amended by the 07(e)(2)A6;reduce the required twenty (20) foot ie,construction. of a residential structure on a �-ri�ht: -of waved rectly across from 1725 Beach ate that Mr, .Wolfson had left such a long and detailed record of lce,he now requested, but she wished to thank him for his %:over,'. many years. And while she was troubled by his complete the potential `adverse impacts this variance might have on )re struckby.�"Mr. Elmore's earlier observation that denial of this )'m the reasonable use of his property, which was tantamount to Mr. Elmore: reviewed the grounds for denial and said while it was arguable that the granting of this variance mightt have materially adverse impact on congestion of streets ( #2), public safety ( #3), established property values ( #4), the aesthetic environment ( #5), and the general health, welfare and beauty of the eomnini'ty ( 0), such a variance would have the greatest impact on light and air to adjacent properties', - ,'VI) and the natural environment of the community, specifically loss of protected trees and wildlife habitat ( #6). Ms. Paul agreed, but reminded the Board that the applicant could potentially clear the lot without mitigation if there were no plans to develop it within the next year, thus making the tree argument a moot point. Mr. Parkes said that the degree of impact on light and air to adjacent properties was relative to the scale of the structure. He then reviewed the grounds for approval. There was consensus that neither irregular shape of the property warranting special conditions ( #5), nor exceptional topographic conditions of or near the property ( #1), existed; neither did surrounding conditions or circumstances impact the property disparately from nearby properties ( #2), nor did exceptional circumstances prevent the reasonable use of the property compared to other properties in the area Page 8 of 10 AGENDA ITEM # 8A MAY 9, 2011 Draft Minutes of the March 15, 2011 regular meeting of the Community Development Board 380 ( 0). Likewise, there was no onerous effect of regulations enacted after platting or after 381 development of the property or after construction of improvements upon the property ( #4), because 382 the narrow strip of land from which the garage lots had been carved had never been platted as 383 individual lots, and no documentation had been provided to show that the subject property itself 384 had ever been developed or constructed upon. However, there was concern as to whether the 385 substandard size of a lot of record warranting a variance in order to provide for the reasonable use 386 of the property ( #6), applied. The question came back to what was considered "reasonable use" of 387 the lot. 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 Mr. Parkes asked Ms. Hall if she could explain pleeiselyoywhat options were available to Mr. Wolfson without a variance. Ms. Hall presented, A series 'f scaled drawings showing several scenarios in which the lot could be developed as,an accessory one. -story or two -story garage, with guest quarters. Additionally, she illustrated they lot coverage of a single family dwelling constructed according to the applicant's oxiglnal request (I` rear yard), as well as one constructed according to the amended req4 est(70' rear yard), and one constructed according to the required yard setbacks (20' rear yard). Mr. Parkes summarized that a tw without a variance, and that such of the original garage lot cove defended in the past. Further, it could be constructed without a v, intrusive variance .IN& Elmore with the environment' and adjace the front yard rather . than the "rea was not part of this request, and 1 ask that it be deferred..•again;'so attempted to "" t ative plan was -story garage accessorywith guest quarters, could be constructed structure seemed 'm keeping with the reputed purpose and intent 4fitst and°,restrictions, "v?hich Mr. Wolfson had so vigorously ippeare&that a simple, long and narrow single - family residence lance; scale ah&mass could' be adjusted so as to require a less oncurred that the , , structure needed to be coherently articulated t properties He the, applicant would consider reducing to whichFMr Lambertson replied that reduction of the front yard make it so, the applicant would have to withdraw this request or . [lat he could prepare an alternative plan and so that due notice sided this. was.precisely what the Board had asked the applicant ferred last 'monih Yet there was no indication that the applicant romise with his neighbors, and nothing new, by way of an Mr. Lambertson stated that even as ' verbally amended by the applicant earlier this evening, the variance request accounts fora fifty (50) percent reduction in the standard. He continued, saying that he could not. support suchl a request that would allow development of a substandard lot to the detriment of surrounding properties. However, Ms. Glasser said she was still conflicted. The Board had confirmed tlie<'subject property was a legal nonconforming lot of record, and according to the LDRs, such lots may be used for a single- family dwelling. Ms. Hall added that the caveat of Section 24- 85(b)(1), to which Ms. Glasser was referring was that nonconforming lots of record could be used for single- family residences in any residential zoning district provided that the minimum yard requirements for the particular zoning district were met, or provided that the property owner obtained a variance from the CDB, in accordance with the requirements of Section 24 -64. Mr. Parkes reiterated that a substantial accessory building could be constructed without a variance, and a single- family dwelling, compatible with the scale of the lot and surrounding structures could be constructed with lesser variances than even the amended request. Mr. Hansen questioned the lack of a conceptual plan in the submittal, explaining that the uncertainty of what would be done with this seemingly disproportionate request made him apprehensive. Ms. Paul responded that it was not always feasible to expect the applicant to go to Page 9 of 10 AGENDA ITEM # 8A MAY 9, 2011 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 Draft Minutes of the March 15, 2011 regular meeting of the Community Development Board the trouble or expense to have something designed before a variance was granted. Ms. Hall added that variance application submittals are required to submit a survey or lot diagram showing setbacks, with existing and proposed structures. She reminded the Board that they had received copies of a property survey as well as a very simple sketch of the lot with standard setbacks, along with the other application materials in their February packets. Additionally, she noted that Mr. Wolfson had presented photos of the recently constructed garage on the Pennington property, and proposed to do something similar. Mr. Lambertson cautioned the Board that what might ",.be apf necessarily be appealing to another, and should the property,tran Mr. Lambertson then noted that Mr. Wolfson had been asked' a property was to be developed for personal use 4r 4f' it were!i'j Wolfson had replied though he could not rule outs future dispi development. Mr. Lambertson asked. Mr. Wolfson if this was s currently for sale, meaning was it listed and /or posted for sale. property was currently listed but there is no sign posted onsite. Mr. Lambertson asked if Mr. V Mr. Wolfson said no. Mr Lamt on the floor to approve the am required twenty (20) foot rear residential structure on a nonco across from 1725 ";Be6ch'Avem Elmore, Glasser; N0 " "'Adams, a 6. VA could appeal the decision of the Community n thirty (30) days of this decision. 1. None. meeting at 7:57 pm. Attest ealing to one person would not act, they could not legislate taste. the February 15 meeting if the or future disposal, to which Mr. isal,,.,the immediate plan was for kill the" case — if the property was Mr. Vdlfson responded that the on desired to'furth&r amend his request ml� ny way, to which in`then restated that there was currently a motion and a second 'd, variance requested. from Section 24- 107(e)(2) to reduce the 3.'setbaekj6 .ten (10)`feet .to allow for the construction of a mim,,lot of record on the wear side of the right -of -way directly He called,.' .vote, 6 the motion failed, 2 -5. [YES: Page 10 of 10 Mr. Lambert son advised Mn =;Wolfson that;he AGENDA ITEM # 8A MAY 9, 2011 Draft Minutes of the Fehruany 15, 2011 regular meeting of the Community Development Board (revision 1) T ,S'�11y�� y MINUTES OF THE REGULAR MEETING OF THE COMMUNITY DEVELOPMENT BOARD Tuesday, February 15, 2011 The regular meeting of the Community Development Board was convened at 6:03 pm on Tuesday, February 15, 2011 in the City Hall Commission Chambers, located at 800 Seminole Road in Atlantic Beach. In attendance were Principal Planner Erika Hall and Community Development Board members Blaine Adams, Kelly Elmore, Ellen Glasser, Kirk Hansen, Chris Lambertson Harley Parkes and.Brea Paul. 1. CALL TO ORDER. Chairman Chris Lambertson called the meeting to order at 6:03 pm. 2. APPROVAL OF MINUTES OF THE NOVEMBER 16, 2010 MEETING MOTION: Ellen Glasser moved to approve the minutes of the November 16, 2010 meeting, as written. Kirk Hansen offered a second, and the motion carried unanimously, 7 -0. 3. RECOGNITION OF VISITORS. Chairman Lambertson introduced and welcomed new Board members Kelly Elmore and Brea Paul. He also expressed gratitude for the service of former Board members Joshua Putterman (4 years) and Lynn Drysdale (8 years). Board member R'^i ; - P 4 49 Ellen Glasser then recognized the hard work and dedication of Community Development Director Sonya Doerr. 4. ELECTION OF OFFICERS. MOTION: Kirk Hansen moved to elect Chris Lambertson as Chair and Ellen Glasser as Vice -Chair of the Community Development Board for calendar year 2011. Harley Parkes second the motion and it passed unanimously, 7 -0. 5. OLD BUSINESS. None. 6. NEW BUSINESS. a. ZVAR- 2011 -01. Request from Donald and Karen Wolfson for a Variance from Section 24- 106(e)(2) to reduce the required twenty (20) foot rear yard setback to seven (7) to allow for the construction of a residential structure on a non - conforming lot of record at 1725 Beach Avenue. Page 1 of 4 AGENDA ITEM # 8A MAY 9, 2011 Draft Minutes ofthe February 15, 2011 regular meeting of the Community Development Board (revision 1) Ms. Hall introduced this item and explained that the subject parcel was a legal nonconforming lot of record with fifty (50) feet of depth and seventy (70) feet of frontage on the western side of what was once called Garage Approach Roadway, now known as the northern extent of Beach Avenue. Though never officially platted, this. area was historically sold off to the oceanfront property owners for for the construction of garages and/or guest quarters or surface parking. Chairman Lambertson invited applicant Donald Wolfson to address the Board regarding his request. Mr. Wolfson provided Board members with a historical timeline of development on and around the subject property, and explained the significance of the 1986/7 annexation of the area previously known as Seminole Beach to the City of Atlantic Beach (COAB) jurisdiction. Prior to that event, the parcel was located within the City of Jacksonville (COJ), and such substandard parcels were allowed to be developed according to COJ regulations, particularly, a ten (10) foot rear yard setback as opposed to the COAB required twenty (20) foot rear yard setback. Mr. Wolfson noted that numerous owners of similar nonconforming lots have been granted variances and allowed to construct residential structures over the years. As the owner of the subject parcel since 1981, he expressed his desire for the same allowances, and noted that without a variance, a structure built according to current COAB regulations could be no more than ten (10') feet deep. Mr. Wolfson also provided Board members with photos of a recently constructed garage apartment on the parcel addressed as 1734 Beach Avenue, and explained that he wished to build a similar structure. Ms. Hall noted though the 1734 Beach structure was located seven (7) feet from the rear property line, no variance had been required because the new structure was built in the footprint of a previously permitted, legal garage apartment. Ms. Glasser noted Staff had determined that the height of any structure would be limited to twenty - four- and -one -half (24 ' / 2)` feet. She asked what effect a variance might have on the height, to which Mr. Wolfson replied none, explaining that the height was proportional to the total lot area. Mr. Lambertson opened the public hearing and invited comments. Donald Wanstall (1723 Ocean Grove Drive), whose property abuts the southwest corner of the subject property spoke in opposition to the requested variance and stated that he had also submitted his opinion via email. He called attention to the standards for approving and denying a variance, in particular that "nonconforming' conditions of adjacent properties shall not be considered" and a variance "shall not be [granted] for personal comfort, welfare ". Jo Ann Ruggiero (1725 Ocean Grove Drive), whose property directly abuts the western side of the subject property, also spoke in opposition to the requested variance and stated she had been told the lots were substandard and therefore were undevelopable, and thus construction would never occur on them. Barbara James (1727 Ocean Grove Drive), whose property directly abuts the western side of the subject property submitted a letter in opposition to the requested variance to Ms. Ruggiero, who read the letter to Board members and submitted a copy for the file. Page 2 of 4 AGENDA ITEM # 8A MAY 9, 2011 Draft Minutes of the Februm y 15, 2011 regular meeting of the Community Development Board (revision 1) John Laliberte (1729 Ocean Grove Drive), whose property directly abuts the northwest corner of the subject property submitted a letter in opposition to the requested variance to Board members via email, and Ms. Hall noted that it too had been added to the file. Mr. Wolfson informed Mr. Lambertson that he had two letters in support of his application, the first being from Ms. Helen Lane (1721 Beach Avenue) and the second being from Robert & Forrest Parrish (1731 Beach Avenue). Mr. Wolfson read each letter and copies were provided for the file. Mr. Lambertson asked if there were others wishing to speak for or against the application, and with no further comment, he closed the public hearing and opened the floor to Board members. Ms. Glasser asked, with respect to property taxes, if the substandard lot subject to this request was billed separately, or together with the Wolfsons' oceanfront lot. Mr. Wolfson replied that the two are currently tied together and billed as a single tax parcel, but upon the advice of the COJ Property Appraiser's Office, he is in the process of separating them. Ms. Hall confirmed that the Wolfson property is the only one which has the western nonconforming lot tied to the eastern oceanfront lot, and that there is a law stating lots separated by a right -of -way are to be taxed separately. Mr. Elmore said that the annexation essentially resulted in a "taking" because the "nonconforming" status was applied after the property owner had closed on that property. At the time of purchase, the property owner had certain rights and expectations as to what could be done with the property and due to the annexation and imposition of COAB regulations, those rights were lost. Mr. Lambertson pointed `out that zoning codes and land development regulations evolve, noting that when the current code became effective in 2002, it was acceptable to divide a one hundred (100) foot lot into two fifty (50)`foot lots, but that was not the case now. Mr. Parkes noted from some perspectives, all zoning could be viewed as takings. Ms. Glasser acknowledged the property owner's_ right to "reasonable use" of the property, and noted that without a variance, an accessory structure, occupying up to six hundred (600) square feet of lot area and built to a maximum height of fifteen (15) feet could be constructed. Mr. Hansen voiced empathy for both sides and questioned whether "reasonable use" without a variance was amenable to all parties. Mr. ElmoreMs. Glasser asked if the applicant was seeking a variance to construct something for personal use, or if was for future disposal, to which Mr. Wolfson replied he could not rule out future disposal, but the immediate plan was development. He told the Board that the required separation into a separate tax parcel would result in significantly higher taxes, and also added that he had been required to tie the lot into the City's water & sewer lines at a considerable cost. Mr. Wolfson emphasized the impact annexation had on such nonconforming lots, and Ms. Glasser asked if there were specific examples the Board could review. Mr. Wolfson referred to other such nonconforming lots to the north of his. Mr. Elmore asked if Mr. Wolfson had considered moving the structure forward, asking for a reduction of the front yard setback, and stated that he would entertain reducing the front yard to get more separation in the back. Mr. Lambertson reminded the Board that they could approve a lesser variance, but a shift or change in location of the requested variance would require due notice, preventing the Board from acting on such a revision at tonight's meeting. Mr. Parkes added that he would be in favor of such a revised application, noting that a garage typically requires a minimum depth of twenty -three (23) feet. However, Mr. Adams expressed concerns for safety with a Page 3 of 4 AGENDA ITEM # 8A MAY 9, 2011 Draft Minutes of the February 15, 2011 regular meeting of the Community Development Board (revision 1) diminished front yard, and Mr. Lambertson agreed. Mr. Elmore pointed out that there is typically four (4) to seven (7) feet of unpaved right of way between pavement and private lots in this vicinity, and Mr. Parkes noted that the subject lot is seventy (70) feet wide, providing sufficient space for surface parking next to a structure, rather than directly in front of it. Mr. Lambertson called for a motion. Blaine Adams moved that the Board approve the applicants' requested variance from Section 24- 1,06(e)(2), reducing the required twenty (20) foot rear yard setback to seven (7) feet, finding that the subject property met the grounds for approval of a variance according to Section 24- 64(d)(4) and (6). Kelly Elmore seconded the motion, and Mr. Lambertson called for discussion. Ms. Glasser said she felt the Board required additional information regarding the variances granted to, and the development of similar nonconforming lots also subject to the annexation, and other Board members agreed. Mr. Elmore withdrew his second and Mr. Adams amended his motion as follows. MOTION: Blaine Adams moved that the Board defer consideration of ZVAR- 2011 -01 until the March 15, 2011, so that Staff could research and provide additional historical information and /or the applicants could amend their application in the spirit of compromise with adjacent property owners. Harley Parkes seconded the motion and it passed unanimously, 7 -0. Chairman Lambertson asked Staff to request City Attorney Alan Jensen's attendance at the March 15, 2011 meeting. 7. OTHER BUSINESS NOT REQUIRING ACTION. 8. ADJOURNMENT. Mr. Lambertson adjourned the meeting at 7:55 pm. Chris Lambertson, Chairman` Attest Page 4 of 4 AGENDA ITEM # 8A MAY 9, 2011 XHIEIT D.1 ZVAR- 2011 -01 DOCUMENT INDEX REGARDING PT GOVT LOT 7 RECD 0/R BOOK 5349 -1108, HAVING DIMENSIONS OF 70'X S0, LYING WEST OF GARAGE APPROACH ROADWAY R /W, DIRECTLYACROSS FROM 1725 BEACH AVE (A) 2011 FEB 02 APPLICATION FOR VARIANCE (WOLFSON) (B) 2011 FEB 03 CDB STAFF REPORT (DOERR) (C) 2011 FEB 15 APPLICANT'S PRESENTATION (WOLFSON) (D) 2011 FEB 15 LETTERS OF SUPPORT (LANE, PARRISH) (E) 2011 FEB 15 LETTERS OF OPPOSITION (JAMES, LALIBERTE, WANSTALL) (F) 2011 FEB 15 CDB MEETING MINUTES (HALL) (G) 2011 MAR 08 CDB STAFF REPORT (HALL) (1) EXCERPTS FROM HISTORIC CDB MINUTES (2) CDBSR ATTACHMENTA - KREDELL VARIANCE HISTORY (3) CDBSR ATTACHMENT B - HAWKES VARIANCE HISTORY (H) 2011 MAR 09 EXCERPTS FROM SEMINOLE BEACH ANNEXATION FILES (HALL) (1) MEMO TO AB /SB CITIZENS - VITAL STATISTICS AND GENERAL INFORMATION (2) COJ /COAB ZONING COMPARISON (1987) (3) ORDINANCE 90 -86 -112 - EXTENSION OF ZONING TO SEMINOLE BEACH (4) CC MEETING MINUTES (DEC 8, 1986) (5) NEWSPAPER CLIPPINGS (1) 2011 MAR 15 PETITION IN OPPOSITION (OCEAN GROVE, NORTH ATLANTIC BEACH RESIDENTS) (J) 2011 MAR 15 LETTERS IN OPPOSITION (WANSTALL) (K) 2011 MAR 15 CDB MEETING MINUTES (HALL) (L) 2011 APR MISC ITEMS REQUESTED (1) COPY 1733 -1734 EXISTING PRE -2008 SURVEY (WOLFSON) (2) WATER /SEWER ASSESSMENTS (STAFF) (3) COPY DEED BOOK 719 -201 (STAFF) (4) OVERVIEW OF TAKINGS FROM HALL (CDB) (5) COPY FS 2007 - 70.001, BERT HARRIS ACT (CDB)