08/22/1991
DEVELOPMENT CODE ADJUSTMENT BOARD
August 22, 1991
Members present:
Thomas J. Graham, Chairman
Otto Gans, Vice-Chairman
John W. Homer
Emma C. Whitney
Absent:
Alex Plisko, excused
Also present:
Miles Lance, Assistant City Attorney
Sandy Glatthorn, Senior Planner
Mary K. Diana, Assistant City Clerk
Gwen J. Legters, Staff Assistant II
The meeting was called to order by the Chairman at 1:05 p.m. in the Commission Chambers of City Hall. He outlined the procedures and advised that anyone adversely affected by any decision
of the Development Code Adjustment Board may appeal the decision to an Appeal Hearing Officer within two weeks. He noted Florida law requires any applicant appealing a decision of this
Board to have a record of the proceedings to support the appeal.
In order to provide continuity, the items will be listed in agenda order although not necessarily discussed in that order.
I. Time Extensions
1. Don Curtis Pierson (continued from 7/11/91) - first request for six months time extension to 1/13/92 for variances of 1) 1,753 sq ft to allow construction of a triplex on a 8,247
sq ft lot; 2) 5 ft to allow construction of a triplex on a lot 95 ft wide; and 3) 13 ft to permit construction of a triplex on a lot 87 ft deep, at 7 Heilwood St, Revised Map of Clearwater
Beach, Blk 6, Lot 3 and part of Lot 2 zoned, RM-20 per RM-12 (multiple family residential). V 91-40
This item had been continued in order to obtain additional background.
Discussion ensued regarding previous variances granted and/or denied for the subject property.
George Greer, attorney representing the applicant, gave a brief history of the subject property stating in April 1990, the Board approved variances for minimum lot requirements to allow
the construction of a triplex. The Board's decision was appealed by a neighbor but was upheld by a Hearing Officer. Mr. Greer indicated the application does not affect the density;
it is a customary time extension request to allow for the repair of the damage caused by the storm on April 25, 1991.
In response to questions, Mr. Greer indicated partition walls could be used to convert the existing duplex into a triplex and Mr. Pierson is seeking to "legitimize" the lot for a proposed
triplex.
Discussion ensued in regard to the granting of this request not causing the footprint of the building to be changed.
Based upon the information furnished by the applicant, Ms. Whitney moved to grant a six month time extension to January 13, 1992 as requested. The motion was duly seconded and upon
the vote being taken, Ms. Whitney, Messrs. Homer and Graham voted "aye"; Mr. Gans voted "nay". Motion carried. Request granted.
II. Public Hearings
1. Don Curtis Pierson for variances of (1) 18 ft to permit construction of triplex 7 ft from a street right-of-way; (2) 2 ft to permit construction of a triplex 6 ft from a side property
line; and (3) 6 ft to permit (triplex) height of 31 ft at 7 Heilwood St, Clwr Beach Rev, Blk 6, Lot 3 and part of Lot 2, zoned RM 20 (multiple family residential). V 91-54
Senior Planner Glatthorn explained the application in detail stating the subject property has a history of variance applications. In 1983 the Board of Adjustment and Appeals (BAA) approved
variances to allow the construction of a duplex which was subsequently built. On April 12, 1990, variances were granted to allow for the conversion from a duplex to a triplex but setback
variances were denied.
George Greer, attorney representing the applicant, stated a height variance is not needed and withdrew variance #3. He gave a brief history of the property stating Mr. Pierson received
approval from the State to cross the Coastal Construction Control Line (CCCL). On May 26, 1983, variances for height and front and rear setbacks were granted by the BAA. The decision
was appealed by a neighbor and the Board's decision was overturned by a Hearing Officer; however, the Hearing Officer said the lot met all other requirements for a triplex. Mr. Greer
further stated the applicant has been denied reasonable use of his land due to the CCCL prohibiting construction on about 81 percent of the property, many of the neighbors have built
closer than the applicant to the street, traffic is using his front setback as a turn-around and bringing the front setback in conformance with others in the area would inhibit the public
from using it as part of the street.
Joe Alexander, representing the neighbor to the east, referred to past variance requests indicating Mr. Pierson is looking to add what has been historically denied. He expressed concern
the proposed construction would obstruct the view of the Gulf, be materially detrimental and affect the supply of light and ventilation to the surrounding area.
Two citizens spoke in opposition to the application indicating the applicant wishes to increase his rental income at the expense of his neighbors. The subject property is not being
used by the public as there is a public beach walkway and a steel cable has been placed across the driveway. It was stated the parking problems are caused by tenants' cars blocking
access to the beach and the street is wide enough for a car turn-around. The surrounding neighborhood is primarily residential and it was felt this property detracts from the quality
of the neighborhood.
Photographs of the subject property were submitted for the record.
A petition with eight names was submitted in opposition to the application.
Mr. Greer stated Mr. Pierson has owned the subject property for 29 years, the CCCL restricts reasonable use of the property and this property meets the parking code requirements.
Discussion ensued regarding the long-standing dispute between Mr. Pierson and his neighbor, the impact of the CCCL on the subject property, the area being zoned for rental properties
and the impact on the neighbors' view of the Gulf if the setback variance is decreased.
The meeting recessed from 2:20 p.m. to 2:25 p.m.
There was also discussion regarding this property being located in an income producing area and being judged as an RM 12 in an RM 20 zoning district.
In response to a question, it was indicated the two existing units total approximately 2,000 square feet.
The Chairman noted for the record there were no supporters, therefore, no rebuttal from the opposition was necessary.
Based upon the information furnished by the applicant, Ms. Whitney moved to grant variance #1 for 15 feet to permit construction of a triplex 10 feet from a street right-of-way and variance
#2 as requested because the applicant has substantially met all of the standards for approval as listed in Section 137.012(d) of the Land Development Code more specifically because,
the variances arise from a condition which is unique to the property and not caused by the applicant, the CCCL restricts the use of two-thirds of the property, allowing only 19 percent
use; the particular physical surroundings, shape, or topographical conditions of the property involved and the strict application of the provisions of this development code would result
in an unnecessary hardship upon the applicant and the variances are the minimum necessary to overcome the hardship created by the minimal use of the property subject to the requisite
building permit being obtained within six months from the date of this public hearing. The motion was duly seconded and upon the vote being taken, Ms. Whitney, Messrs. Homer and Graham
voted "aye"; Mr. Gans voted "nay". Motion carried. Request granted.
2. Hans Frederic Heye for variances of (1) 5 ft to permit lot width of 95 ft; and (2) 14.1 ft to permit second floor addition 0.9 ft from a side property line at 800 W Druid Rd, Harbor
Oaks, part of Lot B, zoned RS 2 (single family residential). V 91-55
Ms. Glatthorn explained the application in detail stating the applicant wishes to construct a second-floor addition over an existing garage in the Harbor Oaks National Register Historic
District.
Richard Churchill, architect representing the applicant, presented a drawing of the proposed construction stating due to the irregular configuration of the lot, room for expansion is
limited. He indicated the new owners wish to add a playroom and additional bedrooms for their family. The integrity of the original house will be maintained and the existing garages
will remain in their present location.
Based upon the information furnished by the applicant, Mr. Gans moved to grant the variances as requested because the applicant has substantially met all of the standards for approval
as listed in Section 137.012(d) of the Land Development Code more specifically because, the variances arise from a condition which is unique to the property and not caused by the owner
or applicant; the particular physical surroundings or shape of the property involved and the strict application of the provisions of this development code would result in an unnecessary
hardship upon the applicant subject to the following conditions: 1) the applicant shall submit elevation drawings to the Planning and Development Staff for review to determine consistency
with the architectural design of the existing structure and 2) the applicant shall obtain the requisite building permit within six (6) months from the date of this public hearing. The
motion was duly seconded and carried unanimously. Request granted.
3. John G and Marlene M Deery for variances of (1) 7 parking spaces to provide 23 parking spaces; and (2) 15 ft to permit building 10 ft from a street (Gulf-to-Bay) right-of-way at
1467 Gulf-to-Bay Blvd, Boulevard Heights Sub, Blk J, Lots 1, 2, and part of Lots 3, 25, & 26, zoned CG (general commercial) and RM 12 (multiple family residential). V 91-56
Ms. Glatthorn explained the application in detail stating the applicant wishes to convert the 5,000 square foot structure from a restaurant to retail use, the size of the structure requires
it to have a loading zone, the property has an irregular boundary, is located in two different zoning districts and the proposed use appears intense for the lot size.
Harry Cline, attorney representing the applicant, stated only 2,000 square feet of the structure will be for retail use with one-third of the property zoned RM 12. He said a paint
store is one of the least traffic-oriented of any retail applications. The lot is almost 100 percent paved and in an older neighborhood, this is a minimum variance with no adverse
impacts to the area and much of the property in the neighborhood is built out to the street. He said this is a difficult site due to the mixed zoning.
Concerns were expressed regarding the Traffic Engineering Department's comments that a new project on a vacant lot should not receive a parking variance, that a hardship does not exist
and with the proposed new building and change of use it was not believed the Florida Department of Transportation (DOT) would approve the access to Gulf-to-Bay Boulevard. Concerns were
also expressed regarding lack of green space, short handicapped parking spaces and access from De Leon Street.
Discussion ensued regarding parking spaces being lost due to landscaping, the requirement for a loading zone and the dumpster location. It was felt use as a paint store, although intense,
did not require a lot of parking spaces.
In response to a question, it was indicated rezoning of the property could take up to a year.
Concern was expressed in regard to the lot coverage calculations due to the combination zoning and granting a variance on something that could be changed.
Based upon the information furnished by the applicant, Mr. Gans moved to grant the variances as requested because the applicant has substantially met all of the standards for approval
as listed in Section 137.012(d) of the Land Development Code more specifically because, the variances arise from a condition which is unique to the property and not caused by the applicant,
primarily due to the combination zoning of CG (general commercial) and RM 12 (multi-family residential) and the complications this combination zoning creates subject to the following
conditions: 1) this variance is applicable only for use as a paint store because of the anticipated less intense requirement for parking; 2) the applicant shall meet all of the other
land development code requirements and 3) the requisite building permit shall be obtained within one (1) year from the date of this public hearing. The motion was duly seconded and
upon the vote being taken, Ms. Whitney, Messrs. Homer and Gans voted "aye"; Mr. Graham voted "nay". Motion carried. Request granted.
Discussion ensued in regard to the proposed structure being a standard prototype free-standing building for the Southwest and this type facility having a large storage requirement.
4. Bruce A and Jacqueline D Capra for removal of condition placed on previously approved variance of 11.5 ft to permit house 36.5 ft above grade that limits use of the roof surface
to maintenance and repair of roof and mechanical equipment at 810 Eldorado Ave, Mandalay Sub, Blk 5, Lot 4, zoned RS 8 (single family residential). V 91-57
Ms. Glatthorn explained the request in detail stating a variance was approved May 10, 1991, to permit construction of a house subject to the condition the roof surface shall not be used
as a recreational deck, but only for maintenance and repair of the roof and mechanical equipment. Plans were permitted which included a spa and barbecue on the roof.
Discussion ensued regarding whether or not the standards for approval should apply to conditions imposed on variances.
William Kimpton, attorney representing the applicant, stated the standards for approval were met in granting the variance. He said recreational roof decks are not prohibited by Code
and felt the condition imposed was unfair and unreasonable. He indicated the roof deck provides a safe area for personal belongings as theft is a problem due to being located on the
beach front. He submitted a diagram and a letter from an audio professional stating sound from a roof travels up and away and would not be a nuisance to neighbors or beachgoers.
Discussion ensued regarding the height of the structure and it was stated the variance was granted to allow the applicant to have high ceilings and for aesthetics. A condition was imposed
that the roof not be used for recreation due to concern for noise problems encountered from other structures on the beach that had recreational areas on the roof.
Mr. Kimpton stated the roof and structural components meet code, the house is
in a velocity zone making the ground area unsuitable for a recreation area, Mrs. Capra has back problems which are helped by the theraputic spa on the roof, the house is designed to
minimize nuisances to the neighbors by not having windows on the sides facing adjacent properties and the neighbors are in favor of granting the request. He submitted photographs of
the subject property and houses with roof decks in the surrounding area.
It was stated Mrs. Capra and the builder were present when the condition restricting roof recreation was imposed.
Bruce Capra, owner and applicant, stated he relocated his family and business from New York two years ago, is very community-minded and has brought over two million dollars worth of
business into the area. He indicated he was not aware of the condition restricting roof use when the plans were submitted for approval. He noted the small fireplace on the roof is
not a barbecue. He feels it is unfair for other home owners to use roof decks when he is restricted from the same use.
It was indicated the sketches presented to the Board when the height variance came before the Board contained detail of each of the floors, but not of the roof. Concern was expressed
the final plans were significantly different than what was previously presented to the Board.
Jacqueline Capra, owner and applicant, stated they would not have proceeded with construction without receiving a height variance.
Randy Laird, builder, stated it was never their intention to deceive the Board; however, he did not recall the Board discussing roof use. He questioned why the restriction was imposed
and found it to be unreasonable.
Twenty-three letters were presented in support of the application.
It was indicated the Board took action based upon the information provided and if there had been discussion of using the roof area for recreation, the height variance may not have been
granted. It was felt the attorney representing the applicant on May 10th was aware of the condition imposed.
Mr. Kimpton indicated at the time of the previous hearing the plans were in the early stages and did not include roof facilities. He said it was unreasonable to restrict the use of
the roof especially in the velocity zone because a height variance was given. He then read a legal memorandum stating why he felt the condition should be removed.
Discussion ensued regarding whether the applicant received adequate notice of the condition imposed in the granting of his variance and whether the Board should remove this condition.
There was some concern expressed regarding the handrail on the roof.
Based upon the information furnished by the applicant, Mr. Gans moved to grant the request for removal of the condition placed on the previously approved variance as requested because
the applicant has substantially met all the standards for approval as listed in Section 137.012(d) of the Land Development Code, more specifically because, the notification to the applicant
by the City was inadequate and did not specify the imposition of this condition, this decision is not to be interpreted as a precedent, it is unique and is based strictly upon the actions
of this Board in connection with notification to the applicant, the condition was established based on the endeavor of this board to protect the general welfare of the community and
was originally established with the feeling it would violate the general spirit and intent of Land Development Code as expressed in Sections 131.005 and 131.006. There was no second.
Discussion continued in regard to the removal of the condition. It was felt the City did provide adequate notice to the applicant, that the Board did take appropriate action in placing
the condition on the variance and it is in the Board's jurisdiction to decide whether or not to remove the condition.
Based upon the information furnished by the applicant, Mr. Homer moved to approve the removal of a condition on a previously approved variance because the applicant has substantially
met all the standards for approval as listed in Section 137.012(d) of the Land Development Code. The motion was duly seconded and carried unanimously. Request granted.
There was discussion regarding granting variances subject to certain conditions and the Assistant City Attorney indicated there is no problem with placing reasonable conditions on variances.
III. Review: "Rules of Procedure and Policies"
Mr. Homer moved to continue this item to the meeting of September 12, 1991. The motion was duly seconded and carried unanimously.
IV. Board and Staff Discussion
The Development Code Adjustment Board reviewed the Issue/Response Schedule dated August 22, 1991. Staff was requested to research the City's regulations regarding building height, using
roof areas for recreation and the procedures for notifying an applicant in writing of the Board's decision on a variance request.
V. Approval of Minutes of July 25, and August 8, 1991
Mr. Gans moved to continue approval of the minutes to the meeting of September 12, 1991. The motion was duly seconded and carried unanimously.
VI. Adjournment
The meeting adjourned at 6:00 p.m.
Chairman
ATTEST:
Assistant City Clerk