Appeal - Application #13-00002165 •
RUMRELL, BA'T'E, MCLEOD & BROCK, P.A.
• A PROFESSIONAL ASSOCIATION
ATTORNEYS AT LAW
24 Cathedral Place
Suite 504 Received
St.Augustine,Florida 32084
TELEPHONE: 904-829-3300 AUG 1 5 2013
FACSIMILE: 904-825-0287
WEBSITE: wtiwv.rurnrelllaw.con:r
EMAIL: eremiah @rumrelllaw_com
� L Office of City Clerk
August 14,2013
City of Atlantic Beach
Community Development Board
800 Seminole Rd.
Atlantic Beach,FL 32233
Attn: City Clerk
Re:' 298 Pine Street/Application Number 13-00002165
APPEAL
Dear City Clerk:
This is an appeal taken from the Community Development Board's,July 16,2013 decision
to deny the Application for a Variance made by Karen&Frank Bernstein, owners of the property
located at 298 Pine Street, in Atlantic Beach. The Applicants made application for a variance for •
a fence located on their property that had previously been permitted by the City of Atlantic Beach
pursuant to Section 6-18 of the Code of Ordinances of the City of Atlantic Beach (hereafter
"Code")(see Exhibit"A"copy of Fence Permit issued March 5,2013).
Upon Receipt of the Fence Permit, the Applicant's contractor erected the fence in
accordance with the plans submitted with the permit application. The fence abutted the sidewalk,
and was 6 feet in height. The fence is closer than 10 feet from the side of the road.
Subsequently the Applicants received notice that the fence failed to comply with Section
24-157-C of the Code.
Section 24-157(c)specifically states:
Corner lots. Fences, walls, similar structures and landscaping on corner lots
may create obstacles to clear vehicular, bicycle and pedestrian sight visibility
resulting in a public safety hazard.Notwithstanding the following provisions,
clear sight visibility for fences,walls, landscaping or any structure proposed
along the street side of any corner lot shall be verified by the designated public
safety official prior to Issuance of the permit required to construct, place ar
replace any such feature. Sight triangles as defined within section 24-1.7 shall
remain free of visual obstruction.
(1) For corner lots located on rights-of-way that are fifty (50) feet or less in
width, no fence, wall or landscaping exceeding four (4) feet in height, shall be
allowed within ten(10) feet of any lot line which abuts a street.
(2) For corner lots located on rights-of-way that are wider than fifty (50) feet,
fences may be constructed within the side yard adjacent to the street at a maximum
height of six(6)feet provided that the fence is on the private property and shall not
be located closer than fifteen(15)feet from the edge of the street pavement or closer
than five(5)feet to any sidewalk or bike path.
(3) Similarly, hedges and landscaping on corner lots shall be maintained at a
height that does not interfere with clear vehicular, pedestrian or bicycle sight
visibility or use of the public sidewalk or bike path.
Emphasis is added to the preamble to demonstrate the basis of the Ordinance relating to
fences on corner lots. It should be specifically noted that the Applicants fence is located on the
side yard running along the sidewalk,starting at the lot line (where interestingly there is a 6 foot
fence in the same position on neighboring lot) and ending over almost 50 feet before the
intersection of Pine and Seaspray. Meaning there isn't a reasonable possibility that this fence
violates the purpose of ordinance restricting fences_
The subsequent notice that the fence didn't comply with the fence ordinance obviously
created some confusion based on the Applicants already possessing a valid permit under the City's
Code. Rather than litigate the issue at this point, the Applicant, upon the suggestion of City staff
applied for a variance to Section 24-157.
On July 16,2013,the Development Review Board conducted a hearing,and at that hearing
the Board did deny the Variance Application. They did so, even though a clear reading of Section
24-64 of the Code contemplates allowing Variances in just such a case. The Development Review
Board did not make findings under 24-64(c) that the variance should be denied based on one of
the listed factors, rather the Board failed to approve the variance because they would not make a
finding for a ground for approval.The code states that:
Grounds for approval of a variance. A variance may be granted, at the
discretion of the community development board, for the following reasons:
(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.
(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.
The only evidence submitted at the hearing was that the Applicants resided approximately
a block and a half from Atlantic Beach Elementary School. At the beginning and end of each
school day the road on the side of their residence, Seaspray Avenue, is inundated with children
and parents. The sides of the roads are turned into parking lots, and the sidewalks are busy with
students coming and going. Seaspray Avenue is uniquely burdened in this regard, as it is a major
thorough fare for school traffic.A large number of the properties located on this street have fencing
that violates section 24-157, in that the properties have 6 foot fencing located closer than 10 feet
from the road. The uncontested evidence at the hearing was that property was commonly used as
a"playground"for children that would jump and play on the exposed flower beds.The Applicants
testified that they felt the fence helped solve what they perceived as a safety and liability issue:
After installing the fence as permitted,but before receiving notification that the fence was
no longer allowed,the Applicants purchased a large dog.This purchase was predicated on the City
permitting the fence as currently constructed,and the Applicants relied on the permit in this regard.
The Applicant, pursuant to Section 24-49 of the Code, Appeals the decision of the
Development Review Board on the above stated grounds, as more definitively described as:
1. The Variance should be approved because there is a conflict in the City code based on
the Applicants obtaining a valid permit for a fence that is later said to violate another
part of the City's Code.
2. The decision of the Development Review Board runs contrary to the facts and evidence
and represents an abuse of discretion.
3. The Applicants have relied on the actions of the City, and a reversal of the City's
previous decisions violates the vested rights of the Applicants.
Wherefore, we ask the City Commission to grant the overturn the Development Review
Board and grant the Variance.
Dated this\ clay of August,2013.
RUMRELL,BATE,MCLEOD&BROCK,P.A.
By:
-re 'ah S. Mulligan
Flo r da Bar No. 12393
24 Cathedral Place, Suite 504
St. Augustine, FL 32084
Tel.(904)829-3300
Fax(904)825-0287
Primary: jeremiah @rumrelllaw.com
Secondary: stacey@runirelllaw.com
•
VERIFICATION
STATE OF FLORIDA
COUNTY OF 4>V,.Vc
Karen Bernstein, being first duly sworn upon his oath, deposes and states:
That he has read the foregoing appeal;that the allegations stated therein are true to the best
of his knowledge, except as those statements made upon information and belief, and as to those,
he believes them to be true.
8'�/6-h3 .1 / kedat_a.
Date Karen ernstein
Subscribed and sworn to before me this 15 day of S k 2013.
%--401111Y■ * ' c--(1 cry S
Notary Public
My Commission Expires c� a 911 tit
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My Commission Expires 02l28/201S ,.
Commission No.1332370
VERIFICATION
STATE OF FLORIDA
COUNTY OF 0A.VG
Frank Bernstein,being first duly sworn upon his oath, deposes and states:
That he has read the foregoing appeal;that the allegations stated therein are true to the best
of his knowledge, except as those statements made upon information and belief, and as to those,
he believes them to be true.
Date Frank Bernstein
Subscribed and sworn to before me this 1✓ day of , S t ,2013.
e-CSCrY%S
Notary Public
My Commission Expires q?4 1 (p
Parsons
;" Mate of'Florida
My Commission Expires 02►29W201S .
Commission No.1332370
•
-"KAREN RAPPORT BERNSTEIN 380
FRANK LEE BERNSTEIN
298 PINE STREET 63-751/631 11026
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ATLANTIC BEACH,FL 32233 1010241677731
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