Board of Adjustment

Special Meeting

November 8, 2007

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The Board of Adjustment of the Town of Melbourne Beach, Florida met for a special session on Thursday, November 8, 2007 in the Community Center, 509 Ocean Avenue, beginning at 6:30 p.m.

Present were Chairman Robert Schaefer, Vice-Chairman David Wildman, Xochitl Ross, Lou Failla and Alternate Member Mike Rowe. Absent were: Member Charles Tennant and Alternate Member John Remark. Also in attendance were Town Attorney Paul Gougelman, Building Official Bill Whitelock, Town Clerk Lenore Milan and Deputy Town Clerk Marion Noe.

Chairman Schaefer called the meeting to order.

Public Hearing

Chairman Schaefer read the Variance Application 8-2007.

Variance Application 8-2007 Town of Melbourne Beach Land Development Code,

Section 7A-57 Accessory structures - (e) – Swimming pools. To allow construction of

swimming pool in the front yard and forward of the front building line, but behind the front

yard 25’ set back line, and Section 7A-53 Fences and walls to allow for construction of

visual screen and (Traffic) sound reduction wall height increase from allowable 4’ high to

8’ high and 12’ at courtyard entry at street-side of front yard. The property is legally

described as Beaujeans, Replat of Blocks 1, 3 Plat of Melbourne, Lot 3 & N 50 feet of Lot 4 Block 1, Plat Book/Page 0010/017A, of the Public Records of Brevard County, Florida.

This application was submitted by Delaware Trust Company, NA Trustee. The subject property has a street address of 105 Oak Street, Melbourne Beach, FL 32951.

Chairman Schaefer stated that there were two issues; a swimming pool and a fence and they will be discussed separately.

Mr. Lawrence Maxwell of Space Coast Architects, P.A., 333 Fifth Ave, Indialantic, Florida, was sworn-in. He stated that he was representing Delaware Trust Company for this Variance.

Chairman Schaefer read the questions and answers on the application.

Mr. Maxwell distributed illustrations to the Board Members; he also had poster board illustrations to show the staff and members of the audience. He described the lap pool which would be placed in the front yard, he said it would be 4’ deep and 8’ wide and would be placed so that the owner would still have use of his front yard.

Mr. Maxwell stated that the lap pool would be 30’ behind the A1A property line (25’ from the property line), the berm would remain and the pool would be invisible from the street. He stated that a 4’ high wall would be constructed and there would be a screen enclosure over this pool, that there would be native landscaping; that the owner did not want to obstruct the view of A1A. He explained how the specifics for the wall; that at one point it would be 12’ high due to the noise on A1A.

Vice Chairman Wildman asked why it was not being placed closer to the house and as such, it would not require a variance. Vice Chairman Wildman advised the applicant to attach it to the house.

Member Ross stated that there was no doubt that what they were wanting to do would be tasteful, but she was concerned

Alternate Member Rowe stated that the Board had a similar issue with a swimming pool several years ago.

Chairman Schaefer stated that this is a lap pool.

Mr. Maxwell stated that this would be architecturally attractive.

Chairman Schaefer continued reading the questions and answers. He then asked if the variance will be in harmony and he was advised that it would meet all requirements.

Chairman Schaefer then opened the meeting to the public.

Mr. Jose Hixon, 103 Oak St., was sworn-in. he advised that he agreed it would be architecturally a really great job, but questioned the common ownership of two other properties to the South, he then spoke about this being a unique situation.

Mr. Arthur Belafonte, 305 Oak St., was sworn-in. he stated that the Town has codes and Ordinances put into effect to maintain a distinct character of the Town. He advised that he was particularly concerned about the 12’ wall. He stated that noise has increased drastically, with more traffic on A1A. He said, what would stop him from coming in to put in the same request, he stated he would like to put up a wall as a noise barrier.

The meeting was closed to the public.

Alternate Member Rowe made a motion to deny the variance for the lap pool, which was seconded by Vice Chairman Wildman.

There was a discussion regarding this being far beyond the scope of a variance.

Chairman Schaefer stated that it is a variance, a lap pool and he didn’t have a problem with it.

A discussion then ensued regarding the hardship being the placement of the house

The motion carried unanimously.

Alternate Member Rowe made a motion to deny the variance for the wall, which was seconded by Vice Chairman Wildman, with his stating that the sound affects everyone on A1A.

The motion carried unanimously.

Chairman Schaefer advised the next item was an Appeal of Administrative Decision from Mrs. Kristen Saunders, an interpretation of the Code and there will be no input from the general public.

Appeal of Administrative Decision Application 9-2007 Mrs. Kristen M. Saunders of 301 Ocean Avenue, is appealing the decision of the Town of Melbourne Beach determination that there shall be a non-solid masonry wall built between the subject property and the neighboring residential property, as per Section 7A-53.

The property is legally described as the west half of Lot 22 and all of Lot 23 Block 3, Wilcox Plat of Melbourne Beach, Brevard County, Florida, Plat Book 1 Page 58.

An application was submitted by Mrs. Kristen M. Saunders. The subject properties have street address of 320 First Avenue, Melbourne Beach, FL 32951.

Mr. Henry Saunders, Father of Kristen Saunders was sworn-in. Mr. Saunders advised that this property was commercial property in the 6-B zoning district; that he submitted site plans for an apartment building. He advised that the current plans were to open small offices.

Mr. Saunders advised that he submitted an Occupational License application in March, but didn’t hear anything from the Town. He stated that he has begun work to make the building ADA Accessible, changed the doors, put in a ramp

Mr. Saunders stated that the Building Official advised that a block wall was required by the Town, that this was something that was passed since they put their application in, that it would cost $20,000 for the wall.

Building Official Whitelock advised that prior to this change of August 14, 2007, the Town’s Code 7A-53, paragraph four, he then read the code.

He advised that this Ordinance was cleaned up to better interpret. He stated that he couldn’t get in contact with Ms. Saunders, but spoke to Mr. Rob George. He stated that there was a permit for an ADA accessible bathroom in August 2, 2007.

Chairman Schaefer stated that the Code reads that between residential and commercial, a wall is needed.

Ms. Saunders stated that she purchased the property in February, put in for an Occupational License in March, waiting for something back from the Town, didn’t receive the license, did receive a notice to renew. She advised that they just wanted to put a fence up; a concrete wall will cost $20,000.

Chairman Schaefer advised that he didn’t know if she could get a variance or go to the Town Commission.

Town Attorney Gougelman stated that if they turned down the appeal, the Saunders had options: 1- could go to Circuit Court; 2- seek a variance; 3- get with the Building Official and Town Manager to further amend code to clarify for this type of circumstances.

Chairman Schaefer advised that they should meet with Building Official.

Vice Chairman Wildman advised that the arguments they have given are variance arguments, he made a motion to deny appeal, which was seconded by Member Failla. The motion carried unanimously.

Chairman Schaefer advised that the next item on the agenda was the Appeal of the Administrative Decision by M. Barry Construction.

Appeal of Administrative Decision Application 10-2007 M. Barry Construction, Inc. of 1100 Atlantic Street, is appealing the decision of the Town of Melbourne Beach determination that the current use of the property is a 2,000 square foot single family story duplex. The structure is situated on the lot with a 3’4” setback to the south and a 9’6” setback to the north. These setbacks constitute a non-conforming structure on the property. The new building proposed will be a two-story 8,352 (5,200 square feet net or occupiable space) square foot duplex constructed on the existing foot print. The determination is that the new structure will expand and extend the non conformity, and is therefore, not an allowable use, as per Article V Nonconforming Uses, Section 7A-80 Intent.

The property is legally described as Lot 7 & N 44 Feet of Lot 8, Block 7, Wilcox Plat of Melbourne Beach, Brevard County, Florida, Plat Book 1 Page 58.

An application was submitted by Mr. Michael Barry of M. Barry Construction, Inc. The subject properties have street addresses of 1100 Atlantic Street and 1102 Atlantic Street, Melbourne Beach, FL 32951.

Mr. Michael Barry, 1100 Atlantic St., was sworn-in.

Member Ross stated that this property is within 500’ of her property, in conflict, looking at this the same for Vice Chairman Wildman, also from his property.

Mr. Barry advised that this process goes back to 2004, he stated that he met with Town Hall before he purchased this property, was directed at the time to go ahead with drawings for four houses, he said he was told he could only build two houses, this has been a two-year process.

Mr. Barry stated that he did everything the Town asked him to do, submitted drawings, new drawings comply with height elevation, he said he would raise the ground level 18”, for the problem with flooding. He advised he was building onto the existing building hoping to keep existing footprint from 1954, which is non-conforming.

Chairman Schaefer advised that the Town’s code is very straight-forward, that his only way to go would be a variance.

Vice Chairman Wildman asked Mr. Barry why he felt the Building Official was wrong.

Mr. Barry stated that the building’s new addition is non-conforming.

Chairman Schaefer stated that they were addressing Building Official Whitelock’s decision, asked if there was anything he could do to fix it, that he should go to the Building Official and work with the Town.

Vice Chairman Wildman made a motion to deny the appeal, which was seconded by Alternate Member Rowe. The motion carried unanimously.

The meeting duly adjourned at 8:10 P.M.

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Robert Schaefer, Chairman

ATTEST:

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Lenore R. Milan, CMC, Town Clerk