Order Affirming Decision of CDB on Wolfson appeal - signed BEFORE THE CITY COMMISSION
OF THE CITY OF ATLANTIC BEACH, FLORIDA
IN RE:
Donald M. and Karen Wolfson Appeal of Order Denying Variance
entered by the Community Development Board
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ORDER AFFIRMING DECISION OF
COMMUNITY DEVELOPMENT BOARD
Donald M. and Karen Wolfson ( "Wolfson ") initiated a request for a variance from
the rear yard setback requirements to allow for future construction of a single family
residence on a nonconforming lot of record of substandard size located on the west side
of the right -of -way at 1725 Beach Avenue. The variance request was heard by the
Community Development Board ( "CDB ") at meetings held on February 15, 2011, and
March 15, 2011, resulting in an Order Denying Variance dated March 23, 2011. Wolfson
timely filed an appeal to the City Commission pursuant to Sec. 24 -46 of the Atlantic
Beach Code of Ordinance, which appeal was heard by the City Commission on May 9,
2011.
At said appeal hearing, the City Commission heard presentations by city staff and
by Christopher A. White, Esquire, attorney for Wolfson, conducted a public hearing and
heard from several members of the public, and then heard both rebuttal and closing
arguments from city staff and Attorney White. Based upon the foregoing, the City
Commission makes the following findings of fact and conclusions of law:
A. Wolfson's appeal is based upon letters dated April 12, 2011, and April 13,
2011, claiming, as grounds for the appeal, hardship, challenging the legality of the CDB's
decision, that there was no competent substantial evidence to support the CDB's decision,
and that Wolfson was not afforded due process.
B. The City Commission is limited in its review of the action taken by the
CDB to the record established before the board at its hearings held on February 15, 2011,
and March 15, 2011, and to the consideration of the following questions:
(1) Whether procedural due process was afforded;
(2) Whether the CDB applied the correct law; and
(3) Whether the findings of the CDB are supported by competent
substantial evidence.
C. WHETHER PROCEDURAL DUE PROCESS WAS AFFORDED: The
Wolfson request for a variance was heard by the CDB at two (2) meetings held on
February 15, 2011, and March 15, 2011, for a combined total of approximately four (4)
hours. The minutes of both meetings reflect a substantial amount of dialogue between
Wolfson and board members during his presentations to the board and after the public
hearings were closed and the matter was taken up by the board.
Both meetings before the CDB were properly noticed as public hearings, and
Wolfson was allowed to present any and all evidence, testimony, and the like, to the
CDB. Wolfson was not limited or restricted in any fashion in regard to presentation of
his case to the CDB. Wolfson also had notice of both meetings, attended both meetings,
and received a fair hearing before the CDB.
Wolfson complains he was not allowed to respond to certain information staff
provided to the CDB at the March 15, 2011, hearing when staff was asked by a board
member to explain precisely what options were available to Wolfson without a variance.
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Staff then presented drawings reflecting one -story and two -story garages that could be
built without a variance, and the set back requirements for each. This was information
contained in Chapter 24 of the Atlantic Beach Code of Ordinances, with which Wolfson
either was or should have been familiar, especially in light of his reference in the minutes
to his past service to the City as a member of the CDB for approximately 14 years, the
majority of which time he served as the chair.
Procedural due process was afforded to Wolfson and he received a fair hearing
before the CDB.
D. WHETHER THE CDB APPLIED THE CORRECT LAW: The minutes
from both meetings held before the CDB on February 15, 2011, and March 15, 2011,
reflect discussions of the criteria contained in Sec. 24 -64 of the Atlantic Beach Code of
Ordinances, which the CDB must consider in either approval or denial of a variance
request. Various members of the CDB discussed specific sections of Sec. 24 -64
regarding approval or denial of the variance at the March 15, 2011, meeting, and their
applicability to the Woflson property and request.
These provisions in Sec. 24 -64, together with other applicable sections in Chapter
24 of the Atlantic Beach Code of Ordinances, discussed by the CDB at the meetings, are
the correct law to be applied to Wolfson in either approval or denial of his variance
request.
E. WHETHER THE FINDINGS OF THE CDB ARE SUPPORTED BY
COMPETENT SUBSTANTIAL EVIDENCE: The findings of the CDB are set forth in
the ORDER DENYING VARIANCE signed March 23, 2011. The evidence received by
the CDB at both hearings it held is legally sufficient to support these findings.
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These findings are as follows:
"1. 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 CDB received copies of a survey of the property showing a 50' x 70' rectangular lot,
and a history of the property and nearby properties from both Wolfson and city staff.
"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;"
The CDB was presented with information and a power point presentation indicating that
Wolfson could build a one -story 600 sq.ft. garage within five (5) feet of the rear lot line,
or a two -story 1200 sq.ft. garage with guest quarters (600 sq.ft per story) within ten (10)
feet of the rear lot line, and that neither structure required a variance. Wolfson was
therefore not prevented from reasonable use of his property despite its substandard size.
"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 the streets, the
natural environment of the community, and established property
values;"
Many people who spoke during the public hearing portion of the CDB meetings on
February 15, 2011, and March 15, 2011, discussed adverse impact on their light and air
from the east and the already congested area along Beach Avenue where the Wolfson lot
is located. The variance would allow a higher structure closer to the property line. The
evidence is sufficient to substantiate this finding.
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"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."
Much discussion was heard by the CDB at its meetings regarding the use of properties,
such as the Wolfson property, on the west side of Beach Avenue, and that they were
intended to be used for parking purposes associated with the oceanfront properties.
Construction by Wolfson of a single family residence on this substandard lot would not
be in keeping with the general intent of Chapter 24 of the Atlantic Beach Code of
Ordinances, which intent is set forth in Sec. 24 -2, as follows:
"The purpose of this chapter, the zoning districts and regulations set forth
herein is to provide for orderly growth; to encourage the most appropriate
use of land; to protect the natural environment; to protect and conserve the
value of property; to prevent the overcrowding of land; to promote, protect
and improve health, safety, comfort, good order, appearance, convenience,
and general welfare of the public; and to help accomplish the goals and
objectives of the comprehensive plan."
Accordingly, it is
ORDERED as follows:
1. The appeal filed by Donald M. and Karen Wolfson regarding the Order
Denying Variance dated March 23, 2011, is denied.
2. The decision of the Community Development Board is upheld and the
Order Denying Variance dated March 23, 2011, is affirmed.
DONE AND ORDERED this 23.4 day of May, 2011.
ATTEST:
DONNA BARTLE LOUIS BORNO, JR.
City Clerk Mayor, Presiding Officer
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