Board of Adjustment
Special
Meeting
****************************************************************************************************
The Board of Adjustment of the Town of Melbourne Beach,
Florida met for a special session on
Present were Chairman Robert Schaefer, Vice-Chairman David
Wildman, Xochitl Ross, Lou Failla and Alternate Members Mike Rowe and John
Remark. Also in attendance were Town Attorney
Chairman Schaefer called the meeting to order. Chairman Schaefer declared that he had a
conflict of interest due to the effect this development would have on his
property, he recused himself, passed the gavel to Vice Chairman Wildman and
asked Alternate Member Rowe to step up to the dais.
Public Hearing
Vice Chairman Wildman read the Variance
Application 7-2007, he noted that this item
was continued from the
Variance
Application 7-2007 Town of Melbourne
The property is legally described as Lot 23 and the west 10
feet of Lot 24, Block 1, Graves Plat of Melbourne Beach, Lots 21 and 22 and the
east 26 feet of Lot 20, Block 1, Graves Plat of Melbourne Beach, and all of Lots
25 and 26 and the east 50 feet of Lot 24, Block 1, Graves Plat of Melbourne
Beach, as recorded in Plat Book 1, Page 38 of the Public Records of Brevard
County, Florida.
An application was submitted by Florida Property Investment
Partners, Inc. of 401 E. Las Olas Blvd,
Town Attorney Gougelman explained the rules with regard to
this quasi-judicial meeting. He stated
that the applicant has the burden of proof; the Board should refer to the
facts, that the staff makes no recommendations; they will make recommendations
should the Board approve the application.
Town Attorney Gougelman spoke about the Binding Development
Plan that was submitted by the applicant and the site plan for the project and
architectural renderings; that, if denied, the applicant can go to court, if approved;
the applicant goes before the Planning and Zoning Board for their
recommendation to be presented to the Town Commission for their site plan
approval.
Vice Chairman Wildman stated that since citizens have not
seen the plans, let the applicant go through the presentation.
Ms. Kimberly Rezanka of Dean Mead,
Ms. Rezanka introduced Scott Copeland of Florida Property Investment
Partners, David Verber, Melbourne District Manager for Walgreens and Todd Peetz
of Miller Legg.
Ms. Rezanka spoke about the Special Exception that was submitted
for the July 25, 2007 meeting, that they didn’t know about the loading zone at
that time; she reminded that the Chevron issue was resolved a couple of weeks
ago. She stated that they have met with Town
staff on
Ms. Rezanka stated that everyone agreed, at that time, that
the loading zone code was archaic. She said revisions were made on
Ms. Rezanka spoke about the Chevron variances not running
with the land; that Mr. Stelling is under contract with Florida Property
Investment Partners. She spoke about Walgreens reducing its size
from 12,538 square feet in
Ms. Rezanka presented exhibits:
A.
Future
land use map of the Town
B.
Excerpts
from the Town’s Comprehensive Plan – showing consistent with the Comp plan
(page 55, 60 & 61)
C.
Zoning
map from Comprehensive Plan
D.
Aerial
photographs showing Chevron Station concrete area and vacant lot and Special
Exception application site plans
E.
Traffic
Study by McMahon, Transportation Engineers & Planners
F.
Diebold,
Physical Security Group, decibel readings, audio system sound
specifications. She explained the indoor
human communication level is 60-70, and it will be behind landscaping and
masonry walls, from
G.
Aerial
identifying area
H.
Color
copy of sign showing
I.
Final
Order to Mr. Stelling for Variances for Chevron Station, Application 8-2006.
Ms. Rezanka commented on the Binding Development Plan,
referencing page four with regard to adult entertainment restriction of the
Town; page five, paragraph four, with regard to constructing a very big fence,
earth tone walls, and paragraph five with regard to the audio system decibel
level from 10:00 p.m. to 8:00 a.m. Monday through Saturday, and 10:00 p.m.
Saturday night and 9:00 a.m. Sunday morning, and 9:00 p.m. Sunday night and
8:00 a.m. Monday morning at a normal human conversational level. She advised that should there be two
complaints, Walgreens would work to solve those complaints. She advised that the delivery is limited to
one full-size truck, Monday through Friday,
Member Ross
stated that the traffic study reflected a reduction in traffic; she said she
didn’t believe that traffic would be reduced; she has driven by other stores
with drive- thrus. She then spoke about
the decibel level being blocked by landscaping and the hours of operation.
Ms. Rezanka
spoke about the traffic study, she then presented Mr. Todd Peetz.
Mr. Todd
Peetz, of Miller, Legg, 631
Member
Failla asked how this could be a two-hour study, referencing the .25 on the
table. He inquired as to this being
factual.
Member Ross
advised that she had the same concern and spoke about business being conducted in
the yard setback.
Ms. Rezanka
advised that they met the setback requirement.
There was a
discussion about business being conducted in the setback, the overhang shutter,
hours of operation and hedge blocking vision of cars.
Ms. Rezanka
stated that what was being reviewed was a conceptual rendering of the
landscaping, not for site plan approval.
Member Ross
advised that it is used as a tool, that the picture and the fine print are not
consistent with each other.
Ms. Rezanka
spoke about their Variance 7-2007 request; when they first applied back in June
2007, at that time they didn’t know they needed a variance for a loading zone, she
read from the Town’s Code, 7A-50 (D) regarding the required size of the space,
that no other retail space in Town meets that requirement. She advised that she contacted other small
cities for their codes regarding their loading zone requirements, advising some
were left to their discretion as to what was needed for the building. She requested that this letter to Town
Attorney Gougelman dated
Ms. Rezanka
read other variances: Exhibit I was Mr.
Stelling’s Variances 08-2006.
Ms. Rezanka
stated that there has been no move by the Town to change the loading zone code
for four months. She spoke about Town
Planner Ragsdale’s memoranda of November 2nd and 18th, 2007.
Ms. Rezanka
advised that she believed that they have met their requirements; they were entitled
to the variance.
Mr. Peetz
spoke about the site plan and the sizes of other stores in Town. He said they have exceeded the Town’s requirements;
that the use of this site to include four loading zones would be obtrusive to
the community and would not be beneficial to the community. He then spoke about the five variance
requirements. He advised that they were
consistent, meeting the Town’s requirements for the Special Exception.
There was a
discussion regarding the review of the Special Exception, recommendations from
staff and expert testimony.
Ms. Rezanka
asked that Mr. Peetz’s testimony be considered expert testimony.
Town
Attorney Gougelman stated that it was at the Board’s discretion
Mr. Peetz
presented the Board with his credentials; he is a Certified Planner, with 19
years of Planning experience in
Mr. Scott
Copeland of Florida Investment Properties was sworn-in, he stated that he, as
the developer, and the Walgreens team was here to be a good neighbor, to be
involved in the community. He advised
that they have met all their requirements; they were not here to be adversarial,
they would improve the Town’s tax base, that they have several stores in large
and small cities.
Member
Failla spoke about the drawings, suggested they make changes from the original
to have a more
Mr.
Copeland stated that attempts were made to improve the
Member Ross
asked if the second floor was for storage.
Mr.
Copeland stated that the mezzanine on the west side would have some storage,
the front was just an illusion of height.
Town
Planner Ragsdale stated that he was a Certified Planner for approximately
thirty years.
Town
Attorney Gougelman asked the Board if they considered Mr. Ragsdale an expert
witness.
Town
Planner Ragsdale was accepted as an expert witness by the Board and sworn-in.
Town
Planner Ragsdale stated that the variance issues were in each of the memoranda he
wrote. He advised that he believed the
proper procedure would be to seek a code change rather than a variance; it
would not be addressed as a variance, it should be a code amendment, since it
would not be a unique condition, others would have the same issue. For reasons known to the applicant, they
looked at data for
Member Ross
asked could the loading zones be kept and the scale of the building be reduced.
Town
Planner Ragsdale advised that he didn’t think that was their intent. He said, with regard to the Special
Exception, his memorandum expressed that his major comment was the drive-thru
window and potential noise. He stated
that his
Ms. Rezanka
stated that, with regard to the code amendment, early on the developer thought
that the variance would be more expeditious.
Town
Attorney commented on Ms. Rezanka’s presentation, he explained that he has come
up with changes to the binding development plan. One change is with the hours of operation in the
facility that it shall not exceed 8-10 Monday through Saturday and 9 -9 on
Sunday. He said there was a
typographical error in section 8, “limits the size of trucks” the word exceed should be inserted.
Town
Attorney Gougleman explained that his position here as Town Attorney, he is not
here to support to oppose the application; he is here to assist the Board. He stated that with regard to the Binding
Development Plan, he would like to know if it is acceptable to the applicant.
Mr.
Copeland stated the truck going to the store would be once a week, with a
trailer length of twenty feet, that they are allowed to have a forty foot truck. He said the stock trailer will be once a
week, as for other delivery trucks for the newspapers and chips and other
vendors, who may be parking sometimes in the front, those other vendors they
cannot control.
Town
Attorney Gougelman asked the applicant if they agree to the Binding Development
Plan.
Ms. Rezanka
stated that they did.
Town
Attorney Gougelman asked the applicant if they voluntarily prepared the Binding
Development Plan.
Ms. Rezanka
stated yes.
Town
Attorney Gougelman asked if the Town staff recommendations are also acceptable.
Ms. Rezanka
stated yes.
Ms. Rezanka
spoke about any peeling or staining of paint, that reasonable notice be
issued.
Town
Attorney Gougelman added to the last sentence in section four, provided that before enforcement sanctions
are levied, notice must be given and an opportunity to cure any condition
inconsistent with the Town’s code, as provided in the Binding Development Plan.
Town
Attorney Gougleman asked if this was acceptable.
Ms. Rezanka
stated yes.
Vice
Chairman Wildman spoke about paragraph four regarding height of the wall, is it
as per our code? He was advised, yes.
Vice
Chairman Wildman spoke about the monument signage.
Mr.
Copeland stated that the code allows directional signage, in and out, there
will be one monument sign on the corner of the property.
Member
Remark asked about what remedy did the Town have should they decide to not do something they are
supposed to do.
Town
Attorney Gougelman advised that the Town has two different ways: First, paragraph 17 of the agreement regarding
violations. He stated that if the Board
adopts the conditions and adopts the site plan and Binding Development Plan,
any violation would be subject to code enforcement action or legal proceeding.
There was a
discussion regarding the process.
Town
Attorney Gougelman explained that under the contract, the Town would
prevail. He stated that the Land Development Code was placed in the
record.
Town
Attorney Gougelman stated that Mr. Peetz described the other buildings in Town,
it is this Board to determine if it is compatible. He said the building is in the 8B zoning
district. There was a meeting with the Town Manager, Town Planner,
Building Official and myself regarding Section 7A-50 of the Town’s Code;
discussions where everybody agreed that this section was archaic, but it is not
relevant, it is a piece of legislature, only one who could say would be the
Town Commission.
Town
Attorney Gougelman advised that with regard to the loading zones, which was
argued earlier, the issue is the requirement you have per the Town’s code, is
not relevant given the fact that the Binding Development Plan is limiting
deliveries; he said, the flip side is there are no limitations on the number of
smaller trucks from outside vendors. He
stated that it is not really clear what a hardship is, it is hard to define. A hardship may not be found unless no
reasonable use could be found for the property; a hardship exists when it is
unique to that particular property. He
then stated that other facilities in Town have only one loading zone.
Town
Attorney Gougelman advised that everybody who is similarly situated should be
similarly treated, this is different from a gas station with a gas delivery,
Walgreens has a number of different vendors.
He stated that the Board should judge this variance application based on
if they meet the criteria,
Town
Attorney Gougelman stated that the variance should be granted, it would be for
a condition that is common throughout the zoning district, and it is not unique. Thus, the variance request may not meet the
requirements for a variance.
Town
Attorney Gougelman commented that the applicant made an eloquent argument. He said Mr. Copeland’s mention that this
presentation is so official everyone was intently listening. He advised to decide is it good for
Vice
Chairman Wildman asked what the process was to amend the code.
Town
Attorney Gougelman provided an example utilizing the Breezeway Ordinance, he
advised how complicated the amendment is, the Planning and Zoning Board took
four months to discuss, hearing by that Board, then when recommended to the
Town Commission it takes two readings.
Mr.
Copeland advised that there were no plans to sell beer, wine or liquor, which
was different in opinion at the August meeting of how we would go forward,
staff concurred that moving forward was the best choice. These lots should be 40% lot coverage, would
allow a building triple the size, but not enough parking spaces, we plan a much
smaller building by 5-6,000 square feet.
Ms. Rezanka
gave a rebuttal, she spoke about August 27, 2007, the group decision that this
was the way to go, that this Ordinance needed to be changed limiting size of
retail space in this corridor, go forward with this variance because it made
more sense; she advised, the Town has not made a move to change the code.
Ms. Rezanka
spoke about the Binding Development Plan regarding the signage, that it was
unfair to judge the canopy picture when verbiage is different; there the
landscaping is for esthetics, wall for buffering. She advised that they were trying to work
with the Town, that the variance was not unreasonable.
Vice
Chairman Wildman asked about what type of testimony the Board could hear.
Town
Attorney Gougelman stated that testimony that does not fly would be personal
opinions, this is a proceeding in which expert evidence is given.
Vice
Chairman Wildman opened the meeting to the public.
Mr.
Mr. Black
stated that this size building doesn’t fit in our Comp Plan, not for the 3,400
residents in
alone
should way heavily on the Special Exception use.
Mr. Frank
Cariou,
A resident
from
Mr. Neal
Tompkins, 2004 Neptune Dr, was sworn-in, he stated that the interpretation of
the number of loading zones, he attributes, the intent to be to ensure
diversity, the scale of one enterprise retail space, the code was to provide
for smaller scale stores.
Mr.
Tompkins advised that he did some research on the web for examples of
Walgreens, the proposed store here is modest, it is reasonable to ask for as
much as we deem to fit in the community, a step in the right direction.
Ms. Alice
Graham,
Ms. Jan
Futch Gulbough, 806 Oak St, was sworn-in, stated she lived around the corner
from this property; the lights will be in her yard, she has a vested interest
in the Town, did not think this store fits with our community, with our one
little street of businesses, this is the only way to get this Town to have any
kind of character. She stated that we
need to see their numbers, how many customers it will take to go in the door,
need assurance that they will not go belly up.
Mr. Steve
Walters, 416 6th Ave, was sworn-in, and stated that he was confused,
we went over a year of turmoil, the Town spent $15,000-$20,000, sued Board,
bent over backwards to grant variances, this applicant has an agreement with
Mr. Stelling and Ms. Murray for over a year. That applicant was granted the
variances, using that as a legal argument, the Town doesn’t have a copy of this
agreement. He advised when the Town went
to set something up, Mr. Stelling postponed the meeting himself.
Mr. Thijs
Stelling, Chevron Gas Station owner, 904 Oak St., was sworn-in, stated that he
has had an agreement with Walgreens for more than a year, but didn’t commit
until his variances were held back, he advised, that up to today, he doesn’t
have his variances. He stated that this is the best solution at this time, than
when he first applied last year, now the building costs have gone up. He said the Board should look at the
application, Walgreens has done whatever they could for the Town. He mentioned he might consider building in
the future.
Vice
Chairman Wildman stated that Mr. Stelling signed back on
Town Attorney Gougelman advised that all the paperwork for
Mr. Stelling’s variance has been signed-off, waiting on court to approve, there
is no reason that the court will not approve.
Ms. Wendy Murray, owner of 406 and
Closed to the public.
As a rebuttal from the applicant, Mr. Peetz referenced the
Comp Plan, stating that they were not taking down any residential buildings,
that it will be at the main intersection of Town, a prime location, that they
are maintaining the scale of the property, it will be smaller than the three
adjourning properties, the store is going to be smaller than the grocery store.
Ms. Rezanka stated that Mr. Black, Ms. Futch and other
speakers are concerned about compatibility, the zoning powers can not be used. She advised that the landscaping has been
addressed, that we are not in a site plan stage, we are willing to work with
the
Vice Chairman Wildman stated that the Chair acknowledges
receiving numerous letters, not under oath, no experts. He then closed the meeting, brought it back
to the Board for deliberations on Variance 07-2007 Loading Zone from four to
one.
Town Attorney Gougelman advised the Board they had several
issues; if the Board denies any of those permits, they have to state why; if their
Special Exception is approved, there are recommendations by the staff.
Member
Remark stated that the deficiencies in the code, staff is blaming us, it is
Walgreens that decided to build here; he said he appreciated the length they
decided to go.
There was a
discussion regarding the fault in the code, the length it took to address this
and that there were two sides, it is our code, it goes hand in hand with the
Comp Plan.
Vice
Chairman Wildman asked if the Board felt they showed a hardship for the
variance, there was a discussion
Member Rowe made a motion to grant
the variance, which was seconded by Member Failla. The motion carried 4-1, with Member Ross
voting nay. Variance 07-2007 was
granted.
Vice
Chairman Wildman stated that the next item on the agenda was the Special
Exception Application 06-2007, which was continued from the
Special Exception
Application 6-2007 Town of
A special exception is required for business wishing to
locate in the 8-B, Residential-Business Zoning District, as designated by the
Town of Melbourne Beach.
An application was submitted by Florida Property Investment
Partners, Inc. of 401 E. Las Olas Blvd,
Member Ross
spoke about this district being a low-key business district, a historical
residential business district, drawing into the residential area. She then read the Special Exception
definition.
Member Ross
stated how many drug stores do we need.
There was a
discussion regarding scale and compatibility and that the Special Exception is
for a retail store.
Member
Remark asked if the monument sign will be internally lit There
was a discussion regarding the parking lot lighting, hours of operation, and
that external illumination will be used only during operational hours.
Mr. David
Verber, Melbourne District Manager for Walgreens was sworn-in, he explained
that the store closes at
A
discussion ensured as to the time needed for the lights to be on before opening
and after closing, with an occasion for the lights to be on longer should
someone stay late.
It was
decided to change the hours of operation to
Member Ross
spoke about the compatibility not being addressed, this plan presents a lot of
pavement, not a lot of green, not harmonious with the Historical district.
Vice
Chairman Wildman stated the Board had three choices: make conditions; that the rendering would be
harmonious to the community before approving; or contingent upon the rendering being
submitted to be harmonious.
Member
Failla stated that he didn’t see any improvement with this new rendering.
Member Ross
stated that Walgreens should come up with a plan that is really harmonious.
Town
Attorney Gougelman advised that the Board is going down the right path:
1. That it is up to the Board to have
that discussion directly with the applicant
2. .Staff had this discussion with the
applicant; Manager and Planner went over, in great length, what you see is what
you Walgreens came up with, their best good faith effort that meets their
budget.
3. The size of the store, staff had
extensive talks; this being their breaking point, their normal store is 14,000,
they reduced this one to 10,400.
Town
Attorney Gougelman asked if the Board was where they needed to see a revised
drawing, to continue the whole thing until you see the revised site plan. He said, if it goes to court, the variance is
the key. He advised the Board to speak
with the applicant.
Mr.
Copeland advised that the siding issue was not a problem, he said, he was willing
to work with the Town as long as it was reasonable, that some things are cost
prohibitive; the size of the building not going to work, landscaping, he said
they far exceeded the Town’s requirements. He advised that they wanted to do
what the Town wants, that they have even exceeded what the code requires.
Member Rowe
stated they were looking for a real clear vision.
Mr.
Copeland advised that it is a typical Walgreens, stucco building with 10’ high
windows.
Member Rowe
suggested more green spaces, possible to give up three parking spaces.
Town Attorney
Gougelman stated that the best time to work this out is now rather than at the
site plan stage, standards for granting the Special Exception is the use
reasonably compatible. He advised that
this Town will never have more control than it does tonight.
Member Ross
said that the Board should rescind the variance until certain the site plan is
compatible.
Town
Attorney Gougelman stated that the Board could continue this and give the
applicant more detail as to what they want to see.
Mr.
Copeland spoke about there being two separate times for the lights, one for
customers and one for employees.
Member Rowe
stated the Board would grant the Special Exception contingent upon the site
plan.
Member Remark
stated that the northwest corner of A1A is the least harmonious in the parking
lot, it needs to be greener.
Member
Failla advised that the style of the building, improvements to make it more
Member Ross
stated that it was a large parcel in a light district.
Town
Planner Ragsdale suggested at the corner where the sign is, taking two parking spaces
and add 40’ of landscaping along
Mr.
Copeland stated that he was fine with siding and three less parking spaces, as
for the roof, there is a conflict with the drive-thru and setback, the roof
could be compatible with Town Hall and Library, that they tried to depict on
plan.
Mr.
Copeland stated that he preferred not to go out make changes and have this
continue.
Ms. Rezanka
advised that they want to do what the Board wants them to do, that they have
agreed to shutters, tin roof, landscaping, three less parking spaces, for the
Board to specify everything that they wanted.
Vice Chairman
Wildman advised the applicant to look at Town Hall and Library, make it in
harmony with those two buildings, it may not be a new design for
Walgreens. He said they should come back
with a site plan, that Town Planner Ragsdale gave them some ideas; greenery,
lose three spaces, look at what you have that the Board would feel is
compatible, continue the meeting until you have the opportunity to submit
another site plan.
Mr.
Copeland stated that he felt they have met every single requirement, and would
like assurance.
Vice
Chairman Wildman asked if they wanted the opportunity to have this continued.
Mr.
Copeland stated that he did not want a continuance, he would like to do this
with the Special Exception in hand.
Member Rowe made a motion that the
Board approves this Special Exception with a contingency. The motion died due to the lack of a
second.
Member Remark made a motion to
continue until
Mr.
Copeland stated that he didn’t agree to this continuance, no architect, no
engineer could do this in that turnaround time.
Member
Remark stated that the Board needed to know what is going on
Mr.
Copeland asked if the Special Exception could be outside scope of the
Board.
Member Failla made a motion to
reconsider the approval of Variance 07-2007, which was seconded by Member
Remark. The motion carried 4-1, with
Member Rowe voting nay.
Member Remark made a motion to continue the consideration of
Variance 07-2007 on
The meeting
duly adjourned at
_________________________
Robert
Schaefer, Chairman
ATTEST:
____________________
Lenore R.
Milan, CMC
Town Clerk