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05/12/1995 - 1:00 PM PUBLIC HEARING BEFORE A HEARING OFFICER May 12, 1995 - 1:00 p.m. Valentinos Koumoulidis Hearing Officer: J. Lawrence Johnston Also Present: Miles A. Lance, Esquire, Assistant City Attorney John Richter, Senior Planner Patricia O. Sullivan, Board Reporter Issue: Petitioner contests the decision of the Development Code Adjustment Board to deny a variance of 1) 83 feet to permit a lot width of 67 feet at the setback line and 2) 20 percent to permit 0 percent of clear space where 20- percent is required at 606 Bayway Boulevard, Bayside Sub No. 5, Blk A, Lot 7, zoned CR 28 (Resort Commercial). V 95-09 Appearances: John G. Fatolitis, Esquire, Attorney for Appellant Robert E. Gregg, Esquire, Attorney for Appellant Valentinos Koumoulidis, Appellant Appellant Exhibits: A. Composite of photographs of subject property and adjacent property City Exhibits: 1. Record of proceeding as required by Section 36.065(5)(c) of the Code 2. Two letters in support of the application Hearing Officer Johnston opened the meeting at 1:02 p.m. and explained the rules governing the procedures. He requested the record reflect that this hearing was properly noticed and all parties have had the opportunity to be properly noticed regarding this hearing. The issue was whether to grant the appeal of Valentinos Koumoulidis from the Development Code Adjustment Board's (DCAB) denial of his application for variances from the requirement of a minimum lot width of 150 feet at the setback line and from the requirement of a minimum of 20% clear space. Mr. Gregg indicated the appellant was denied variances on several occasions. The property originally was constructed as a six-unit motel with head-in parking. After ending operation of the small motel, the appellant remodeled the upper level into a single family residence for his family. The first floor was planned as a single commercial unit. Mr. Gregg said the building stood vacant almost three years while building permits were obtained. He reported the appellant previously had been granted variances for front yard open space, lot width, and a landscape buffer and noted none of these requirements existed when the building was constructed. Mr. Gregg said a clear space variance was needed because planned changes to the parking lot required parking in the clear space. The building is six feet from the side property lines. He suggested the clear space requirement could be met by counting the property on both sides. He said eight feet of the building would have to be bulldozed to meet the clear space requirement and noted the lot's size is substandard for a single family residence. He referred to photographs of nearby properties and pointed out no structure has met the clear space and width requirements. He noted only two properties have rear green space. Mr. Gregg said the City has not provided Mr. Koumoulidis the opportunity to remodel his building within the limits of the law. He explained the applicant wishes to extend the rear of the existing building's second floor by 900 square feet. Mr. Lance agreed variance applications for the property were submitted beginning in 1991 and said the City is not at fault for the slow process. He said staff had questioned the accuracy of Mr. Koumoulidis' plans, etc. He said the applicant's duty is to submit correct applications. To provide the applicant a reasonable use of his property, Mr. Lance reported variances for front yard open space, lot width, clear space requirements and side yard landscape buffer were granted in 1992. Mr. Gregg said those variances resulted in no construction or changes to the building. Mr. Lance reported DCAB denied variances in February 1995 for: 1) 83 feet to permit a lot width of 67 feet at the setback line and 2) 20% to permit 0% of clear space where 20% is required. DCAB granted variances for 1) 28.75% to permit 21.25% of front yard open space where 50% is required and 2) 3.5 feet to permit 1.5 feet of perimeter landscape buffer where 5 feet is required to legalize existing parking. DCAB felt the second floor expansion is not necessary for reasonable use of the property. Mr. Gregg said unless the building is extended, variances are not required. He felt the green space requirement was only for parking. In 1992, he said the variances permitted the parking lot to be reconfigured from head-in parking and the downstairs to be made more functional by addressing ADA requirements. He said the City did not approve an additional parking space even though the landscape buffering requirement would have been reduced only 10 inches. He said the building lost two parking spaces when the lot was reconfigured. Mr. Gregg said the applicant then turned in a set of plans redesigning building features but the City turned them down because of changes made to original permit drawings. He said the parking lot was not built according to the original plans. Mr. Gregg said no other features deem the proposed second floor addition non-complying and noted the allowable Floor Area Ratio has not been exceeded. He felt parking is the controlling factor. The application submitted in October 1994 included a 300 square foot addition on the ground floor to accommodate handicapped bathrooms and a storage facility plus the second floor expansion. He noted the staff report recommended approval. He felt DCAB predetermined not to pass anything. Mr. Gregg said deletion of the added space on the first floor were made at staff's request. Senior Planner John Richter reviewed the property's history of variance requests. He reported a larger parking request had been denied and withdrawn. In October 1992, DCAB approved modification of the building's interior and a parking lot to replace back-out parking. On October 13, 1994, DCAB denied variance requests for 300 square feet on the first floor plus 900 square feet on the second floor. On February 3, 1995, DCAB denied variances for the upstairs addition because the request did not meet the standards for approval, the denial would not deprive the applicant of a reasonable use of the land or buildings, and no special circumstances exist. Mr. Richter said DCAB had not approved any expansion to the existing building. Mr. Richter estimated the second floor area at 1,600 square feet. It was noted that figure includes unenclosed balconies. The Hearing Officer questioned staff's recommendation regarding this application. Mr. Richter said staff had recommended denial. In October 1994, however, staff had recommended approval of the additional space on the first and second floor and parking. He said that request also would have required lot width and clear space variances. Mr. Richter agreed the October 1994, and February 1995, variance requests were almost identical. Mr. Fatolitis noted how staff's positive analysis of the October 1994 request differed considerably from staff's analysis of the February 1995 request and questioned why the analysis had changed so drastically. Mr. Richter said staff wrote a report before the October 1993 DCAB hearing where the board indicated they had granted variances for a reasonable use of the property two years previously and felt these four variances were more than what is required for a reasonable use. Staff agreed with DCAB's assessment and changed their position accordingly. Mr. Fatolitis questioned why staff's consideration of identical special circumstances had changed. Mr. Richter said the pivotal condition relates to reasonable use of the property. Mr. Fatolitis noted the special circumstances had not disappeared. Mr. Richter felt staff's October 1994 recommendation was flawed. He indicated staff had been unaware the space was used as a living quarters because the interior was substantially gutted when they viewed it in preparation for their report. Mr. Fatolitis expressed concern the City did not consider the family's need for additional space. Mr. Lance said DCAB and staff determined a reasonable use of the property was 1,600 square feet of living space on the second floor. Mr. Richter said DCAB has the right and responsibility to deny unreasonable variance requests. Mr. Richter read the clear space requirement included in Section 41.131, paragraph 6 and indicated it was to allow parking spaces within the 20% corridor. When the application was revised to include building construction within the clear space, the space was viewed differently. The Hearing Officer noted those variances are tied to the intended use and do not carry forward to other kinds of uses. He noted earlier variances do not address this request. Mr. Gregg questioned where the original variances allowing parking was written. The Hearing Office noted variances are tied to plans presented with the application. Mr. Richter reported the parking lot's size was increased from six to seven spaces. In answer to a question regarding the property being grandfathered, Mr. Richter said the code recognizes some City lots do not meet current requirements. The City allows those properties to be developed and redeveloped as long as all other code requirements are met. In this case, Mr. Richter said the development did not comport with all other dimensional requirements, specifically clear space. Property needing a clear space variance also requires a lot width variance. The clear space requirement affects second floor development. Mr. Richter said the current structure is located in the clear space and a variance would be required for expansion. Proposed construction does not affect the rear setback. Mr. Richter said the purpose of the clear space is to provide a view from the public street to the water. The proposed addition would affect the clear space because additional building space would be located on property. Mr. Fatolitis questioned how a second floor addition could affect the view of someone at ground level. Mr. Richter said clear space is three-dimensional and an aesthetic, open space and view consideration. Mr. Gregg noted the variance approved for parking interrupts the clear space. Mr. Gregg said few island properties can comply with clear space requirements. He presented photographs of the subject and neighboring properties and reported the owner also owns property to the East. He pointed out code requires 20 feet, but only 6 feet of clear space now exists. He expressed concern the owner can only develop 40% of his property and said the proposed construction would not block the water view any more than currently. He did not feel the requested expansion is unreasonable. Noel D. Woods, President Emeritus of the Bayway Shores Condominium Association, said Bayway Boulevard is upscale and unique with neighbors who exhibit pride of ownership. They felt the proposed changes will enhance the applicant's property value and the neighborhood. Mr. Woods said his board supports the request. He expressed concern the home was not large enough to entertain the applicant's family members and said family should come first. Mr. Gregg said the requested 900 square foot addition is not totally enclosed and includes 350 square feet of open deck area. Hearing Officer Johnston requested the parties file proposed final orders within ten days. He said he would issue a formal order within 30 days. Proceedings were concluded at 2:53 p.m. by Hearing Officer Johnston.