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05-15-18 CDB Meeting MinutesMinutes of the Regular Meeting of the COMMUNITY DEVELOPMENT BOARD May 15,2018 1. CALL TO ORDER AND ROLL CALL The meeting was called to order at 6:01p.m. by Chair Lanier. Mr. Mandelbaum and alternate Mr. Tingen were absent from the meeting. Ms. Simmons, Mr. Elmore, Mr. Hansen, Mr. Major and Ms. Paul were all present. Also present were Director Shane Corbin, Planner Derek Reeves, Planner Brian Broedell, Board Secretary Valerie Jones and the City Attorney, Brenna Durden representing the firm Lewis, Longman and Walker. 2. APPROVAL OF MINUTES A. Minutes of the April 17, 2018 Regular Meeting of the Community Development Board. Ms. Simmons questioned the format ofthe minutes since Ms. Paul acted as Chair after Ms. Lanier was voted in as Chair. Chair Lanier asked Ms. Durden if it was okay as written and she replied it was fine. Ms. Simmons motioned to approve the minutes. Mr. Hansen seconded the motion. The motion carried unanimously. 3. OLD BUSINESS Chair Lanier asked if the Board would mind coming back to this after the public _ hearing portion of the meeting. The Board agreed. 4. NEW BUSINESS A. ZVAR18-0009 PUBLIC HEARING (Karl and Dorothy Klein) Request for a variance as permitted by Section 24-64, to increase the allowable fence height in rear yards from 4 feet as required by Section lll(D)(4) of the Selva Marina Unit 12-A PUD to 6 feet at Selva Marina Unit 12-A Lot 10 (aka 1918 Oak Circle). Staff Report Planner Reeves explained that the variance requested is to increase the fence height at 1918 Oak Circle in Selva Marina. The property is zoned PUD specifically Selva Marina Unit 12-A. He said the plan is replace an existing 6 foot wood fence with a new 6 foot wood fence. The fence has already been constructed. It was damaged in Hurricane Matthew two years ago. The owner proceeded to do what he thought was repairs at that time. The repairs would have actually constituted the need for a permit. The City received a complaint on it so Staff went and saw the work being done. At that point the repairs were stopped. Since a process has been established in regard to the PUD's, this variance has been brought back up to be taken care of in regards to the height of the fence. The PUD allows for a Page 1 of 7 Applicant Comment maximum fence height of 4 feet. The 6 foot fence exceeds this and that is why there is a need for a variance. This plat was approved in 1978. The Covenants and Restrictions are the governing documents for the PUD. Those were submitted to the City at the same time that the plat was approved. He reiterated that 6 foot fences are allowed in the rear yard everywhere else in the City except for in the PUD's. Planner Reeves added that the property has a lot of topography and pointed out some of the high and low points of the fence. He said that the code does allow for there to be a consistent line across the top of the fence as long as each end meets the code requirements. Even though there are parts of the fence that are taller it is consistent with the normal zoning code if that were to be applied. Mr. Major asked why the applicant was required to pull a permit while doing repairs. Planner Reeves explained that most offence was replaced with only a few of the original posts remaining. The design changed from having lattice on it to the existing shadow box style. Mr. Major asked what the complaint was for. Planner Reeves couldn't remember exactly but thought it might have been working without a permit. Ms. Simmons asked if the complaint was from the neighbor on the other side of the fence. Planner Reeves said that the property spans two properties and one of those was the complainant. Mr. Hansen brought up the fact that there have been several requests for a variance for fences in PUD's in this area and wanted to know ifthis was the same PUD. Planner Reeves said that it was the same developer but a different PUD. He said that it appears that the PUD's were not enforced for a period oftime until the City recognized them and started enforcing them fully approximately two years ago. That is when the City discovered that they are responsible for the enforcement of them. Typically, a municipality is not responsible for the enforcement of covenants and restrictions, which might have been the source of confusion over the years. It turns out that the City is specifically defined with the responsibility of the enforcement in the covenants. Mr. Hansen asked if the Board had denied any requests for a six foot fence in the PUD area. Planner Reeves said they had not (since they have started requiring variances for them). Ms. Simmons asked how many PUD's are in that area. Planner Reeves said he thought there were 12 and they are all very similar with a few having some different requirements. Karl Klein of 1918 Oak Circle introduced himself as the applicant. Mr. Klein said that Staff had done a great job of spelling out the facts of the case. He addressed the "Grounds for Decision" to grant or deny the variance. Mr. Klein said that it should be granted due to exceptional topical conditions and the surrounding conditions impacting the property compared to neighboring properties. He Page 2 of7 Public Comment Board Discussion Motion pointed out that it is only a violation because of where it is in Atlantic Beach. Mr. Klein said that the rules of the PUD have been ignored more than observed. Chair Lanier opened the floor to public comment. Joanna Houser of 1975 Brista De Mar Circle introduced herself as a neighbor who lives behind the applicant. She said that her and her husband complained when the fence was being built because they wanted it to comply with the Atlantic Beach codes and they were not aware of the PUD. Ms. Houser said that the fence is well over 6 feet for most of the 67 feet that it spans, except for 18 feet that is in compliance with the 6 foot code. She said that the applicant used 8 foot and 6 foot planks. She believes that the applicant is not in compliance since it is well over 6 feet in most places. Philip Kane of 1969 Brista De Mar Circle introduced himself as another neighbor of the applicant. He said that due to the topography of the area it is difficult when building a fence. Mr. Kane explained that some of the damage to the previous fence came from a tree on his property that fell during Hurricane Matthew, so he helped contribute to the cost of the fence. He said he is comfortable with the look of the fence. Joanna Houser returned to the podium to add that she understands the topography lends a challenge to installing a fence but many homeowners do a tiered installation and that is what the previous fence was. Ms. Simmons asked Staff what the requirements would have been to build the fence if they were meeting the standard building code instead of a PUD. Planner Reeves said that ifthe applicant had applied for a permit and this wasn't a PUD it would have been approved. Ms. Simmons asked if it would have been approved with sections over 10 feet. Planner Reeves said he would debate the 10 feet because he went out there himself and took the pictures in the presentation. He pointed out the patio and said it was a little over a foot above grade and it was lower on the other side. In another picture he said the fence was a little over 7 feet from the patio. There was lengthy discussion of the fences height at different places with the changing topography and some areas were below 6 feet. Mr. Hansen said that the code allows uneven topography to allow a consistent fence line as long as it terminates with the fence height as required in the code. Chair Lanier asked Planner Reeves if that was the case and he said it was. Chair Lanier reminded the Board that Ms. Durden had suggested they use one or more of the numbered reasons from the "Grounds for Decision" guidelines. Mr. Page 3 of7 5. REPORTS Staff Report Hansen motioned to approve ZVAR18-0009 based on item four (onerous effect). Ms. Simmons seconded the motion. The motion carried unanimously. A. Sign Code Update Planner Corbin said that the City Manager has asked that Staff move forward with the updating the sign regulations. He told the Board about a case called "Reed vs. Gilbert" that went before the Supreme Court. It ruled against the city for its sign regulations. Planner Corbin explained that there was a church that didn't have a permanent home so they would go from place to place and they were using temporary signs to help anyone who wanted to attend find them. Someone complained to the city, the code administrator went after the church and the church fought back. Once they dug into the details of the code, they found it was content based. Depending what was in the code would determine how big your sign could be or how long your sign could be out. The majority opinion was that the city's code was content based, it allowed some temporary directional signs if it was a qualifying event and therefore the qualifying event was content based. It also allowed an unlimited proliferation of larger ideological signs without restriction on number. The Court found that to be unconstitutional. They said that sign regulations must be content neutral. This means that the things you can regulate are size and location standards, lighting, whether it's a fixed versus changing sign, commercial versus residential, on premise or off premise. So typically, temporary signs are being allowed, but you are not allowed to put your sign on someone else's property or on public right of way. It has to be on your property. You can have time limits for how long a sign can be out if it's temporary. Government speech signs are fine. Time, place and manner restrictions must be narrowly tailored to serve the governments legitimate content neutral interests. Staff has started looking at a variety of other codes that have already done this. Planner Corbin said that he hopes to have something to turn around in a month, depending on work load and how complicated it gets. He said he hopes to provide the Board with a list of those with a couple of weeks so that they can go through them and see what they look like. They will be used as a guide or a model. Planner Corbin said that the Board will get a draft that will have the sections that are content based red-lined with the new language added. Chair Lanier asked Staff if they could give the Board some direction on what they can look at in the community to start thinking about for the next month. Director Corbin said that the City is not currently enforcing parts of the sign code. He suggested they look at commercial areas and gas stations with signage plastered outside and in the windows. He gave an example of a mattress store that is using a mattress for a sign. Ms. Paul asked ifthere could be enforcement on weekends. She said that many businesses take advantage of it knowing there won't be any enforcement. Ms. Paul said the same goes for the building department because you won't catch the guy illegally renovating his home during the week. Chair Lanier Page 4 of7 added that the same goes for cutting down trees. Director Corbin said that Code Enforcement is getting ready to transition from part-time to full-time and maybe some hours could be staggered for the future. 6. PUBLIC COMMENT None. OLD BUSINESS (revisited) Board Discussion Chair Lanier said that she and Mayor Glasser did talk about the process of the City Commission overturning the decision of the Community Development Board when there is an appeal. The Mayor suggested that a Board member attend these appeals and make a public comment explaining the basis for the Board's decision. She said that the Commission does read the minutes of the CDB but this is the process, where the people can appeal and the Commission can overturn the Board's decision. Mr. Hansen said that he thinks it should be mandatory for a member of the Board to go to a Commission meeting where one of their decisions is being appealed. Chair Lanier asked Staff to help the Board with a mechanism to do this. Ms. Simmons asked if they could be notified in advance and Director Corbin said that can be done. There was a discussion about alternate members. Chair Lanier expressed her frustration in regards to alternate members who are not fully up to speed. The Mayor suggested a model where alternate members sit at the table and participate in discussion but do not vote. She believes that an alternate that is involved in the process, ever though they are not voting, would be more likely to be more committed and stay up to speed on how decisions get made. Ms. Paul reminded the Board that they still have a vacant alternate position which they have not been able to fill. With this Chair Lanier brought the discussion around to member Steve Mandelbaum, who started as an alternate and then took a vacant spot, and has now missed three meetings. She said that with the Board's approval it is time to ask Staff to approach the Board Member Review Committee. Ms. Paul said that she thinks it would start with the City Commission since this Board serves at the pleasure of the City Commission. Chair Lanier asked Staff who would start the process. Director Corbin said that he would check with the City Manager and get back to the Board. Chair Lanier pointed out, and confirmed with Ms. Paul, that there has only been one time in nine years that the Board didn't have a quorum. Ms. Durden reminded the Board that in Chapter 14, it states that "any member of the Community Development Board may be removed for cause by the City Commission upon written charges and after public hearing. Any member who fails to attend 3 consecutive meetings without cause, shall have his office declared vacant unless the member's absence is excused by a majority of the Board members and the Page 5 of7 Motion Board Discussion City Commission shall promptly fill such vacancy." She said that at the last meeting there were only 2 consecutive unexcused meetings. Ms. Durden said that since there have been 3 consecutive meetings then they need to vote and ask the Commission to take action to replace Mr. Mandelbaum. Director Corbin confirmed that based on what Ms. Durden read it is time to move forward. Mr. Hansen asked if anyone had any idea why Mr. Mandelbaum hasn't been in attendance at the last three meetings. Director Corbin said that he asked Mr. Mandelbaum via email if he would be at the meeting and Mr. Mandelbaum said he would not be in attendance but he did not offer any other information. Mr. Hansen motioned to recommend to the City Commission that Mr. Mandelbaum be removed from the Community Development Board after being absent the last three meetings. Ms. Simmons seconded the motion. The passed unanimously. Ms. Simmons wanted to know if the alternates received an agenda pack. Planner Reeves confirmed that the alternates receive the same information as the other Board Members. She asked if an alternate shows up for a meeting are they able to speak by coming to the podium. Ms. Durden said that an alternate cannot make comments as a citizen. She explained that in the past an alternate wanted to speak and said that they were a citizen and should be able to. But in quasi-judicial proceedings, in the event that that item might come back up in the future due to being deferred or delayed and the alternate might then be up on the dais, then that person might be declared disqualified to vote on it because they had taken a stand as a citizen and then they are coming up to vote. She said that from a legal perspective it would be different if the alternate was always up on the dais, even if they are not voting. Chair Lanier said that she hesitates about having an alternate because the Board has seven members which lends itself to a lot of opinions, questions and conversations. She was concerned that the addition of two more could become cumbersome. Mr. Hansen said that he doesn't see where the Board would gain anything by having alternates. Ms. Durden she thinks alternates create more problems from a legal perspective due to the quasi-judicial neutral Board perspective. But if there are going to be alternates then have them participate so they do become more productive. She said that this is the only City that she knows has alternates on any of their Boards and she was surprised to see them. Mr. Hansen asked if the Board wanted to make any kind of a recommendation to the City Commission to not have alternates. Ms. Simmons said that if it is in the code then the Board needs to take that step. Ms. Paul said that that whole section of the code is so loosely worded. She said that an alternate could spend their whole two years sitting in the audience and not even be able to speak. Page 6 of7 Motion Board Discussion Mr. Hansen motioned to recommend to the City Commission that alternates be dropped from the Community Development Board. Ms. Simmons seconded the motion. Mr. Major asked what other reasons there were for having alternates. Ms. Paul said that the City Commission was worried that the Board wouldn't have enough members to make a quorum. She added that she can only think of one time in nine years where that has happened. In that case, everything was tabled until the next meeting. Chair Lanier asked if the Board wanted to vote. The motion passed unanimously. Director Corbin told the Board that they have chosen a consultant to work on the code rewrite. He said that the work will begin soon and will take about 16 months with a total of 16 meetings of which 4 will be specific to the Community Development Board. Director Corbin invited the Board to start giving Staff input on changes and corrections that they would like to see. He said they can call, come in or email him. Mr. Elmore asked if the Commission would follow this process as it goes or is it handed to them at the end to vote on. Director Corbin said they will follow it as it goes. 7. ADJOURNMENT Mr. Hansen motioned to adjourn the meeting at 7:02p.m. Ms. Paul seconded the motion. The motion carried unanimously. Attest Page 7 of7