88 Ocean Boulevard 15-ZVAR-1035 CITY OF ATLANTIC BEACH
CITY COMMISSION MEETING
STAFF REPORT
AGENDA ITEM: Appeal of variance for relief from Sections 24-64 and 24-88(b),
granted July 21, 2015.
DATE: September 9, 2015
SUBMITTED BY: Dan Arlington, Building Official for Jeremy Hubsch, Building and
Zoning Director.
BACKGROUND: A variance was granted for relief from Section 24-88(b), allowing
one side of a two-unit townhouse building, 88 Ocean Boulevard,
to change the type of exterior wall covering. 88 Ocean now has a
different appearance than the adjoining townhouse, 90 Ocean
Boulevard. The neighbors in 90 Ocean Boulevard are appealing
that decision.
Section 24-88
(b) Adjoining two-family or townhouse dwellings units shall be constructed of
substantially the same architectural style,colors and materials.
BUDGET: N/A
RECOMMENDATIONS: Recommend hearing the appeal as soon as possible to allow the
unfinished building to be completed.
Attachments: Order Granting Variance, including Exhibit A.
Appeal letter.
REVIEWED BY CITY MANAGER
01-114/ City of Atlantic Beach
Building and Zoning Dept.
sc% 800 Seminole Road
44 \!''
Atlantic Beach, Florida 32233
"r Telephone(904)247-5826
J,31�'� Fax(904)247-5845
http://www.coab.us
Order of the Community Development Board
APPLICANT: Dr. David Doward
88 Ocean Boulevard
Atlantic Beach, Fl 32233
FILE NUMBER: 15-ZVAR-1035
DATE OF PUBLIC HEARING: July 21,2015
ORDER GRANTING VARIANCE
The above referenced applicant requested a zoning variance as permitted by Section 24-64 for relief
from the Section 24-88(b) requirement for adjoining townhouse dwelling units to be constructed of
substantially the same architectural style, colors and materials at Atlantic Beach Subdivision "A" South
half of Lot 6 Block 34(aka 88 Ocean Boulevard).
On July 21, 2015, a public hearing was held and said request was considered by the City of Atlantic
Beach Community Development Board. Having considered the application, supporting documents and
comments by staff, the applicant, and members of the public, the Community Development Board
GRANTED the variance with a condition, finding that the request is consistent with the provisions of
Section 24-64(d)of the Land Development Regulations establishing grounds for approval of a variance as
follows:
1. Exceptional circumstances preventing the reasonable use of the property as compared to other
properties in the area.
The condition is as follows:
1. That the completed construction be consistent with the attached drawing that is known as
Exhibit"A"and that was provided by the applicant to the board.
Appeal of a final decision of the Community Development Board may be made to the City Commission
by any adversely affected person(s). Such appeal shall be filed in writing with the City Clerk within thirty
(30) days after rendition of this Order. The appellant shall present to the City Clerk a petition duly
verified, setting forth that the decision being appealed is in conflict with or in violation of Chapter 24,
Zoning, Subdivision and Land Development Regulations for the City of Atlantic Beach, in whole or in
part, and specifying the grounds of the conflict or violation. The petition shall be presented to the City
Commission within thirty(30)days after the filing of the appeal with the City Clerk.
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 appears in the record of the Community
Development Board minutes.
DATED THIS 5TH DAY OF AUGUST 2015.
� 1 erem0lubsch
Building and Zoning Director
VERIFIED PETITION OF APPEAL FROM
ORDER GRANTING VARIANCE
VARIANCE APPLICANT: DAVID DOWARD
APPELLANT AND ADVERSELY AFFECT PERSONS: SASWATA AND ANJNA ROY
FILE NUMBER: 15-ZVAR-1035
DATE OF PUBLIC HEARING: JULY 21,2015
DATE OF ORDER GRANTING VARIANCE: AUGUST 5,2015
Appellant's and adversely affected persons, Saswata and Anjna Roy, pursuant to Section
24-49 of the Atlantic Beach Code of Ordinances hereby file this appeal of the Community
Development Board's Order Granting Variance and in support thereof state:
On July 21,2015,the Atlantic Beach Community Development Board("CDB")convened
to hear David Doward's ("Applicant") request for a zoning variance pursuant to Section 24-64 of
the Atlantic Beach Code of Ordinance. After considering the application; supporting documents;
comments by staff,the Applicant and members of the public, the CDB in a 3-2 ruling, granted the
variance citing 24-64(d) of the Land Development Regulations.
A historical overview regarding the two unit townhouse located at 88 Ocean Boulevard
and 90 Ocean Boulevard("Townhouses")is pertinent to consider prior to discussing how the CDB
ruling is violative of and in direct conflict with both Sections 24-64 and 24-88 of the Atlantic
Beach Code.
As addressed during the July 21, 2005 hearing, the townhouses were constructed in 2006
and made entirely from stucco. There were construction defects that resulted in litigation by both
owners of the Townhouses; said litigation was ultimately settled in or around November, 2014.
The Applicant was the junior purchaser of the townhouse located at 88 Ocean Boulevard and
made his purchase amidst of the litigation. Applicant was well aware that both units were
constructed from stucco and that litigation was pending at the time of his 2013 purchase. Applicant
is a prominent physician at Jacksonville Orthopedic Institute and possessed both the business
acumen and the financial resources to engage in the due diligence that is required when purchasing
a residential property embroiled in litigation. In fact, Applicant intervened in, and obtained a
sizeable settlement in late 2014 for the construction defects related to his property. As part of the
aforementioned litigation, Brett D. Newkirk, principal engineer at ALTA Engineering Company,
after independent inspection of both properties, authored a report ("ALTA report") detailing the
issues and the suggested construction materials to be utilized in any future renovation of the
Townhouses. That ALTA report concluded that the reapplication of stucco was the ultimate
cure to the structural defects on the Townhouses. The ALTA report was submitted by the
Applicant to the CDB and is available for the Atlantic Beach City Commission's review and
consideration.
Applicant hired Bosco Building Contractor to renovate his property. Consistent with his
vexatious nature, Applicant later fired Bosco Building Contractor and hired a new contractor.
Although his new contractor obtained an interior remodel permit, the new contractor failed to
obtain the necessary permitting for the siding to the exterior. When questioned about her failure
to obtain the necessary permitting, the contractor stated that she had spoken with the clerical staff
and attributed her negligence to a misunderstanding. It should be noted that the Applicant failed
to present any testimony about who the contractor spoke with and what was said. In response,
Atlantic Beach Building and Zoning Planner Derek Reeves ("Mr. Reeves") testified that the City
issues between 30-35 permits annually and that one-hundred percent of the applicants meet with
Verified Petition of Appeal From Order Granting Variance,Applicant: David Doward,File No.: 15-ZVAR-1035
Page 2 of 8
staff not clerical staff. The issuance of the variance by the City of Atlantic Beach based upon
Applicant's contractor's negligence has far reaching consequences for the City of Atlantic Beach
and sets a dangerous precedence. It is foreseeable that future variance applicants,armed with the
knowledge behind the issuance of the instant variance, can also represent that they too, had an
ambiguous and unsubstantiated conversation with City of Atlantic Beach clerical staff,
misunderstood the permitting requirements, and as a result commenced construction/renovation
without the proper permitting thereby shifting the onus from the contractor to be knowledgeable
about Atlantic Beach Code of Ordinance and the requisite permitting requirements to the City of
Atlantic Beach to issue a variance based upon an alleged misunderstanding between a contractor
and the City of Atlantic Beach clerical staff. The implications for the City of Atlantic Beach are
far-reaching and problematic.
Applicant next submitted detailed documents and testimony of his arduous plight resulting
from his renovation assigning new blame; this time it was not the City of Atlantic Beach clerical
staff, the new culprit in Applicant's construction conundrum was the villain and culprit stucco.
From the outset of the July 21, 2015 hearing, City of Atlantic Beach staff properly advised the
CDB that stucco is an accepted building material and should work when properly installed. The
Applicant's architect presented detailed testimony of an intricate drainage plane that Applicant's
team of experts had constructed to alleviate the water intrusion issues at 88 Ocean Boulevard. It
should be noted and Applicant admitted,that stucco was never applied to the newfangled drainage
plane.
Finally,the Applicant also presented the testimony of W. Ronald Woods, P.E. ("Woods"),
of Woods Engineering, who is a well known expert witness in construction litigation cases.
Verified Petition of Appeal From Order Granting Variance,Applicant: David Doward,File No.: 15-ZVAR-1035
Page 3 of 8
Without any independent inspection of the undersigned's townhouse located at 90 Ocean
Boulevard, Woods,began to testify to the CDB about the habitability and renovation of 90 Ocean
Boulevard.' This was Applicant's attempt at throwing out the proverbial"red herring"to the CDB.
Rather than focusing on the issue of the reapplication of stucco, Woods successfully diverted the
CDB's attention to the alleged habitability and alleged issues of 90 Ocean Boulevard and also
vilified the lack of licensure among subcontractors who apply stucco. Fortunately, for the
undersigned,however, Woods did concede,approximately five(5)times that the"code allows for
stucco"2; "details for construction [with stucco] need to be specific they have to tell the
subcontractor how to do this waterproofing interface or it does not work. Then they [contractor]
have to follow it"3; "Drainage plane has to be essentially perfect [with stucco application]; it has
to protect the wood and allow water to come in and slide down the plane and come back out and
if it is done properly, that can be done. But it requires a lot of effort and it usually requires
somebody looking at the subcontractor saying`no you are not doing that correctly,you have to do
it this way;"4 "if it [stucco] is done well, and it is done properly, it lasts for many years but the
difficulty is getting it done properly"5; "As long as it [stucco] is done properly with the divisions
of the fore lines correctly then it can be done."6 To reiterate again, the CDB was presented
'On July 7,2014,and again on August 10,2015 the undersigned retained House Authority Inspection Service,LLC
who concluded that there was no mold contamination present. On August 10,2015,air samples were taken from the
3rd level bedroom and from the 2"d level family room. The air sample results concluded that"the air sample did
not detect the presence of indoor mold growth in the tested area at the time of the sampling". Furthermore,the
inspector utilized his IR Camera and Moisture Meters in concluding that there was no evidence of moisture
present.
2 Atlantic Beach Community Development Board. (2015,July 21). Meeting of the Community Development
Board:Zoning Variance Rehearing,File No.: 15-ZVAR-1035. Testimony of W.Ronald Woods at 30:10.
31d at 30:40.
°1d. at 32:54.
51d. at 34:24.
61d at 37:14.
Verified Petition of Appeal From Order Granting Variance,Applicant: David Doward,File No.: 15-ZVAR-1035
Page 4 of 8
with the express and uncontroverted testimony of the Applicant's own expert who testified
that "if it [stucco] is done well, and it is done properly, it lasts for many years but the
difficulty is getting it done properly."'
The Applicant successfully argued to the CDB citing Section 24-64(d) that "Exceptional
circumstances preventing the reasonable use of the property as compared to other properties in the
area." The CDB, puzzlingly, used the testimony of the Applicant's negligent architect and his
expert witness who conceded that "if it [stucco] is done well, and it is done properly, it lasts
for many years but the difficulty is getting it done properly.s8 Further, the CDB also had the
benefit of the aforementioned ALTA report which ultimately concluded that the reapplication of
stucco would remedy the construction defects. Again the CDB, instead of focusing on the
aforementioned, Section 24-88(b) which expressly requires the use of the same "materials" in a
townhouse, chose instead to focus on the trials and tribulations that the Applicant had endured
with his renovation process and erroneously shifted its focus to 90 Ocean Boulevard. Application
15-ZVAR-1035 deals not with the alleged issues at 90 Ocean Boulevard, but the request for a
variance at 88 Ocean Boulevard. Considering the testimony and the comments of the CDB
members an onlooker could easily draw the opposite conclusion. The CDB's ruling conflicted
with and violated 24-88(b);furthermore,the basis for the CDB's rationale in granting the variance
was unsound. Section 24-64(d) of the Land Development Regulations states that "exceptional
circumstances prevented the reasonable use of the property as compared to other properties in the
area." The only exceptional circumstance presented to the CDB regarding the use of stucco versus
'Id. at 34:24.
81d.
Verified Petition of Appeal From Order Granting Variance,Applicant: David Doward,File No.: 15-ZVAR-1035
Page 5 of 8
siding was the amount of management and oversight required by the contractor when monitoring
the subcontractor who is installing the stucco. A contractor supervising his subcontractors and
building site to ensure quality control should hardly be considered an"exceptional circumstance."
CDB Chair Brea Paul aptly pointed out that the installation of stucco is "part of the contractor's
job to know the code and to ensure the proper installation of construction components", and that
the "precedence of this ruling will open the floodgates for one townhouse owner to come in and
say `my stucco is failing,and I want something else.'
The vote of three CDB members expressly violated and directly conflicted with both
Sections 24-64 and 24-88 of the Atlantic Beach Code. Section 24-64 specifically prevents the
CDB from granting variances for, "personal comfort or convenience, for relief from financial
circumstances or from relief from situations created by the property owner." The Applicant's
created his own situation for which he is now seeking relief. Furthermore, Applicant failed to
demonstrate that "exceptional circumstances preventing [prevented] the reasonable use of the
property as compared to other properties in the area"as reflected in the testimony presented by his
own expert W. Ronald Woods who again testified that"if it [stucco] is done well,and it is done
properly,it lasts for many years but the difficulty is getting it done properly,"9 and the ALTA
report authored by engineer Brett Newkirk. There was no legitimate evidence that the Applicant
presented to the CDB that warrant the use of siding over the use of stucco.
As pointed out by Atlantic Beach Building and Zoning Planner Mr. Reeves, the CDB in
considering the Applicant's request for a variance,was also required to provide a safety net for the
adjacent unit(occupied by the undersigned)and the continuity of design. The CDB's commentary
9M..
11 Verified Petition of Appeal From Order Granting Variance,Applicant: David Doward,File No.: 15-ZVAR-1035
Page 6 of 8
and subsequent ruling did precisely the opposite. One particular CDB member negligently and
recklessly attacked and alleged that the Applicant's neighbor's to the North, the adjacent unit
(occupied by the undersigned),will have problems. This is completely without merit as there was
no independent inspection conducted by the CDB member;furthermore,a contemporaneous Mold
Assessment Report conducted by the House Authority Inspection Service, LLC at the behest of
the undersigned demonstrates that there is no presence of indoor mold growth at 90 Ocean
Boulevard. Furthermore, the inspector utilized his IR Camera and Moisture Meters in his
inspection of the North wall concluding that there was no evidence of moisture present and that
the readings were normal. The report's findings are consistent with the current Land Development
Regulation which continues to recognize stucco as an accepted building material.
In closing, the CDB's ruling expressly violated and directly conflicted with both Sections
24-64 and 24-88 of the Atlantic Beach Code. The CDB's sole purpose is to apply the current law,
not to interpret the law as it would be in the future. Three CDB member's ruled based upon their
opinions about the evolution of the law, not the law as it is currently written. Based upon the
foregoing, Appellant's and adversely affected persons, Saswata and Anjna Roy, respectfully
request that the City Commission overturn the Atlantic Beach Community Development Board's
decision granting the variance at 88 Ocean Boulevard.
CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
STATE OF FLORIDA
COUNTY OF DUVAL
I understand that I am swearing or affirming under oath to the truthfulness of the claims made in
Verified Petition of Appeal From Order Granting Variance,Applicant: David Doward,File No.: 15-ZVAR-1035
Page 7 of 8
this document and that the punishment for knowingly making a false statement includes fines/and
or imprisonment.
This document was acknowledged before me on this '21-"of August, 2015 by ANJNA ROY.
/ re
ANJNA ROY
/ W
(Signature of Notarial Officer) KELLY LULU
i Notary Public,State of Florida
Notary Public for the State of Florida r s Commission,FF 100524
My comm.o oirss May 17,2018
My •i• i i s'•i�pire_s:�J��
I
CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
STATE OF FLORIDA
COUNTY OF DUVAL
I understand that I am swearing or affirming under oath to the truthfulness of the claims made in
this document and that the punishment for knowingly making a false statement includes
fines/and or imprisonment.
This document was acknowledged before me on this s. I of Augus ►15 by SASWATA
ROY.
9
�
auk SASWATA ROY
•
v it LLY LULU
� � c�tary Public,Sate of Fh;rida
(Signature of Notarial Officer) Commission:!FF 100524
My camrn.expires May 17,^018'
Notary Public for the State of Florida
My commission expires: ,1, ( 7
Verified Petition of Appeal From Order Granting Variance,Applicant: David Doward,File No.: 15-ZVAR-1035
Page 8 of 8
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FRANSON, ISELEY RENDZIO, P.A.
Albert T.Fransont ATTORNEYS AT LAW t Florida Bar Board Certified
afranson@fi-law.com Construction Law
1400 Prudential Drive,Suite 5 * Also Member of
Christopher J.Iseleyt Jacksonville,Florida 32207 District of Columbia Bar
ciseley@fi-law.com Telephone:904-396-1800 • Florida Supreme Court
Bryan R.Rendziot*• Facsimile:904-396-1804 Certified Circuit Civil
brendzio@fi-law.com
September 2,2015
VIA OVERNIGHT DELIVERY
Jeremy Hubsch, Bldg. & •
Zoning Director
City of Atlantic Beach
Building and Zoning Dept.
800 Seminole Road
Atlantic Beach, FL 32233
(904)247-5826
Re: Applicant/My Client: Dr. David Doward
88 Ocean Blvd.
Atlantic Beach,FL 32233
File Number: 15-AVAR-1035
Date of Public Hearing: July 21,2015
Untimely Appeal Filed By Anja and Saswata Roy
Dear Mr. Hubsch:
This firm represents Dr.David Doward,who obtained a variance concerning the referenced
property. I have recently been informed that Anja and Saswata-Roy have submitted a Verified
Petition of Appeal From Order Granting Variance ("Appeal"). The Appeal was not verified by
the Roys until August 21,2015 and therefore could not have been filed with the City Clerk before
such date.
In part,the Atlantic Beach Ordinance provides:
Sec. 14-24.-Appeals.
Appeals from decisions of the community development board may be taken by any
person or persons,jointly or separately, or any taxpayer or any officer of the city.
Such appeals shall be taken within thirty(30)days after the decision of the board
on which the appeal is based. The appeal shall be filed with the community
development director on behalf of the community development board and with the
city manager for forwarding to the city commission. The appeal shall state the
grounds thereof and relief sought(emphasis added).
Based upon the clear language of the Ordinance,any appeal of the variance granted to my
client was required to be filed within thirty (30) days after the decision of the board, which was
rendered on July 21, 2015. Accordingly,the Roys had until August 20,2015 to file their appeal,
t•
Jeremy Hubsch, Bldg. & Zoning Director
•
September 2, 2015
Page 2
which they failed to do. Therefore, Mr. and Mrs. Roy's appeal is untimely on its face and should
be dismissed.
Thank you in advance for your attention to this matter and for dismissing the Roy's appeal
for failing to comply with the requirements of the Ordinance. In the unlikely event the appeal is
to be presented to the City Commission, it would be appreciated if you would contact me.
Very truly ours,
•
Christopher J. Iseley
CJI/at
cc: Dr. David Doward(via email)
Catherine Duncan(via email)
11
STOP WORK
CITY OF ATLANTIC BEACH
BUILDING AND ZONING DEPARTMENT (904)247-5826
NOTICE
This building has been inspected and:
General Construction S t 17z)t ❑ Mechanical
Concrete and Masonry ❑ Electrical
- Plumbing ❑ Gas Piping
IS NOT ACCEPTED
CORRECT AS NOTED BELOW, BEFORE ANY FURTHER WORK
p Lt.. 00 .4(..-- \lvR v.. 0.4
I • • {o. •• a
ADDRESS: 8 8 O t3 D •
DO NOT REMOVE THIS NOTICE
Inspector:1> , - �L�.-r 4 Date: a/Z. A v 5
Failure to respond to this Notice within 10 days will result in this violation bei
forwarded to the
CODE ENFORCEMENT BOARD.
The posting of this Placard by its contents shall serve as due notice.
City of Atlantic Beach
,;,
Building and Zoning Dept.
800 Seminole Road
• " r Atlantic Beach, Florida 32233
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Order of the Community Development Board
APPLICANT: Dr. David Doward
88 Ocean Boulevard
Atlantic Beach, F132233
FILE NUMBER: 15-ZVAR-1035
DATE OF PUBLIC HEARING: July 21, 2015
ORDER GRANTING VARIANCE
The above referenced applicant requested a zoning variance as permitted by Section 24-64 for relief
from the Section 24-88(b) requirement for adjoining townhouse dwelling units to be constructed of
substantially the same architectural style, colors and materials at Atlantic Beach Subdivision "A" South
half of Lot 6 Block 34 (aka 88 Ocean Boulevard).
On July 21, 2015, a public hearing was held and said request was considered by the City of Atlantic
Beach Community Development Board. Having considered the application, supporting documents and
comments by staff, the applicant, and members of the public, the Community Development Board
GRANTED the variance with a condition, finding that the request is consistent with the provisions of
Section 24-64(d) of the Land Development Regulations establishing grounds for approval of a variance as
follows:
1. Exceptional circumstances preventing the reasonable use of the property as compared to other
properties in the area.
The condition is as follows:
1. That the completed construction be consistent with the attached drawing that is known as
Exhibit "A" and that was provided by the applicant to the board.
Appeal of a final decision of the Community Development Board may be made to the City Commission
by any adversely affected person(s). Such appeal shall be filed in writing with the City Clerk within thirty
(30) days after rendition of this Order. The appellant shall present to the City Clerk a petition duly
verified, setting forth that the decision being appealed is in conflict with or in violation of Chapter 24,
Zoning, Subdivision and Land Development Regulations for the City of Atlantic Beach, in whole or in
part, and specifying the grounds of the conflict or violation. The petition shall be presented to the City
Commission within thirty (30)days after the filing of the appeal with the City Clerk.
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 appears in the record of the Community
Development Board minutes.
DATED THIS 5TH DAY OF AUGUST 2015.
$4-(12
eremubsch
Building and Zoning Director