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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 4111111"lillir"""1""m"I*P*Po-•---a--- .. Cr •••• --. . . . . , . . ••■••■• . , , 1 • pi ' 1 -;, I. , II "" . —f— ',,, / ',1 //46t..........- • k•• ...T.-,,,.. -1-1..4:.114,- ---,4-11N1117/kinarlargiErnartriP70.1/11), c. I 1 ...;..„ .4-et\"*" - •./.. 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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 J5) Telephone(904)247-5826 ��i��,• Fax(904)247-5845 http://www.coab.us 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