Board of Adjustment

Special Meeting

July 25, 2007

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The Board of Adjustment of the Town of Melbourne Beach, Florida met in special session on Wednesday, July 25, 2007 in the Community Center, 509 Ocean Avenue, beginning at 6:30 p.m.

Present were Chairman Robert Schaefer, Vice-Chairman David Wildman, Members Xochitl Ross, Charles Tennant and Lou Failla. Alternate Members John Remark and Mike Rowe were in the audience. Also in attendance were Planning Official Dennis Ragsdale, Town Attorney Gary Sack and Town Clerk Lenore Milan.

Chairman Schaefer called the meeting to order.

Public Hearing

Chairman Schaefer read the Special Exception Application 3-2006 for consideration.

Special Exception 03-2006 Consideration of changes to the conditions associated with the Special Exception Use granted in August 2006 for the eating and drinking establishment known as Burrito Beach, located at 315 Ocean Avenue. The property is legally described as Lot 5, Block 3, as recorded in Plat Book 1, Page 58 of the Public Records of Brevard County, Florida.

This request was submitted by Robb Boykin, restaurant owner. The subject property has a street address of 315 Ocean Avenue, Melbourne Beach, FL 32951.

Mr. Richard Torpy, 202 N. Harbor City Blvd, representing Mrs. and Mrs. Boykin of Burrito Beach, inquired if the Board had received his package. He was advised that they did.

There was a discussion regarding this Special Exception meeting the Town’s regulations, that there is a one-year timeframe, and that there is one resident who has raised concern over this business.

Mr. Torpy spoke about the present hours of operations, that this was a restaurant not a bar with the typical bar crowd. He was asking for his client to be treated like any other business in Melbourne Beach.

Mr. Terry Williamson, 316 1^st Ave, was sworn-in, he stated that it was agreed to watch this business for a year, and that he did file complaints. He referred to his letter with attachments; he spoke about exhibit four regarding the exhaust fans, it states there will be no cooking on the premises. He stated they have deliveries on public property, and have taken away the handicap parking space in front, and there is noise from 8 to 8:30 a night.

Mr. Anderson was sworn-in, he stated he lived next door to Burrito Beach, he advised that there was no smell from the restaurant, no noise from the restaurant, that he helps take out the garbage no later than 6:00 p.m. at night. He said there was more noise from the apartments next door.

Mr. Bruce Black, 405 Ave A, was sworn-in, stated that he operates a small business in Melbourne Beach. He spoke about the deliveries, how it takes up the spaces; but they are made before the restaurant opens. He then said they were not allowed to be opened on Sunday, one of the busiest days; they should follow the same rules for every other business in Town. They have proved in the previous year they do a good business, they have invested a great deal of money, and they may not be allowed to be in business next year, some restrictions should be removed, it is an undue hardship for the owners.

Ms. Maureen Kirsch, was sworn-in, she advised she was the nanny for George and Elaine Alderman, 407 Anchor Key, that she represented them and H. Francis Nealson, 419 Ocean Ave, she had their statements and was asked to use them as a substitute for their absence from the meeting.

Ms. Kirsch read Ms. Nealson’s letter, in which she stated that this small business has 13 restrictions, that a tiny majority hold Burrito Beach hostage, she asked that the restaurant be allowed to be open on Sunday and let them stay open past 8 P.M. She requested that these restrictions be lifted immediately, so they may operate as freely as other businesses in Town.

Ms. Kirsch then read the letter from the Alderman’s, in which they advised that they traveled, but wanted to advise the Board they were satisfied customers of Burrito Beach, that it was friendly and had a welcoming décor.

Ms. Donna Lee Crawford, a resident spoke about a large bird cage, large enough to house a petting zoo, that the birds are always squawking, there are barking dogs and there are two sheds, she asked could these be possible violations. She then said the 13 restrictions should be removed.

Ms. Crawford stated that Member Ross should recuse herself; that she was too close to this issue to vote objectively.

Mr. Rob Glenn, 853 Aquamarine Blvd, a new resident to the Town, stated he enjoyed the experience eating at Burrito Beach, they were nice folks, told us all about the Town. They should be able to open on Sundays and stay open later, not a problem.

A resident on Avenue A stated he grew up in Melbourne Beach, that the Boykins are the nicest people, very creative with their food; what the gentleman brought up doesn’t hold up, they should be able to open until 9 and on Sundays. He said all 13 restrictions should be lifted and they should not have to go before the Board year after year.

Mr. Mark Emerson, 512 Ocean Ave, was sworn-in, stated that you buy your home with commercial property in your backyard already there; he said he was baffled that one person who doesn’t like it making complaints. He asked if there have been any legitimate complaints to the Police Department or Code Enforcement.

It was closed to the public.

Member Ross stated she would like to clarify how this restaurant began, they specified no outdoor speakers, no cooking, it was to be a sandwich shop.

Mr. Torpy stated that there really wasn’t 13 restrictions, 3,4,5, and 6 comply with the Code.

Vice Chairman Wildman advised that originally the refuse was a problem, now not a problem.

There was a discussion regarding outside seating, moving indoor tables and chairs from inside to outside, complying with the Code.

Member Ross stated that originally dining in the back was an issue, not in front.

There was a discussion regarding the Special Exception being with the Boykins or the land. They discussed the electric smoker, that it has a vent, of which a Town permit was required.

Member Ross spoke about them presenting to the Board that they were not going to cook; the Board didn’t have a problem with them cooking.

Member Failla stated that cooking was an issue.

Vice Chairman Wildman made a motion to amend the conditions in the following manner:

Item 1 was to be removed; Item 2 delete Sunday and change hours of operation to 10-10;

Item 3,4, and 5 to be removed; Item 6 no change leave it in; Item 7 no food or drinks allowed in rear of building, front only; Item 8, change one week to one month; Item 9 stays in; Item 10 to be removed; Item 11 the Town Attorney will research, make a decision, Board will go by legal decision. Item 12 to be removed; Item 13 amended to August 2008, which was seconded by Member Ross.

Member Tennant spoke about item 13; that next year is a hardship on the restaurant owner, people support this restaurant, and it is a good idea to remove this condition.

Mr. Torpy stated that was what was said last year, you didn’t know them, if they violate the conditions, the Special Exception can be revoked.

Chairman Schaefer advised that it should be extended for another year, you are making changes to the restrictions; item #13 should be August 2008, or within 90 days of expiration date.

Mr. Torpy stated that item #13 doesn’t have anything to do with a review or if a complaint comes through, if a violation occurs, the Special Exception is removed. The applicant has a chance to make sure changes work.

Member Ross spoke about item #7, no consumption of alcohol outdoors; applicant has no objection to that. On item #9, outside speakers, allowed for a one-time deal, parade or event, one-time with a permit from the Town.

The motion carried by unanimously.

The meeting duly adjourned at 8:31 P.M.

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Robert Schaefer, Chairman

ATTEST:

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Lenore R. Milan, Town Clerk