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Board of Adjustment Special Meeting Minutes January 17, 2008

The Board of Adjustment of the Town of Melbourne Beach, Florida met for a special session on Thursday, January 17, 2008 in the Community Center, 509 Ocean Avenue beginning at 6:30 p.m. Present were Chairman Robert Schaefer, Vice Chairman David Wildman, Members Lou Failla, John Remark, Xochitl Ross and Alternate Member Mike Rowe. Alternate Member Neal Tompkins was absent. Also in attendance were Town Manager Jim Bursick, Town Attorney Paul Gougelman and Building Official Bill Whitelock. Chairman Schaefer called the meeting to order.

*** Approval of Minutes Vice Chairman Wildman requested a change to page 13 of the November 26, 2007 minutes to read: “Member Remark made a motion to continue the consideration of Variance 07-2007 on January 17, 2008” Vice Chairman Wildman made a motion to approve the minutes of the November 26, 2007 meeting, as amended, which was seconded by Member Failla. The motion carried unanimously. Chairman Schaefer recused himself from the hearings, due to the property of the project in relationship to his property and the affect it would have on his property value. Member Failla disclosed that he had contacted the traffic engineer for the applicant. Member Ross stated that she had a sign in her yard and received a letter from Susie Daley. Vice Chairman Wildman advised that he had also received a letter from Susie Daley. Alternate Member Rowe advised his wife had placed a sign in their yard and had received the same letter as the other Board members. Vice Chairman Wildman advised that the first item on the agenda was Variance Application 7-2007. Town Attorney Gougelman advised that this Variance Application was continued from the November 26, 2007 Special Meeting. He then read: Variance Application 7-2007 Town of Melbourne Beach Land Development Code, Section 7A-50 (D) Off Street Parking – Loading Requirements - Reducing the number of loading zones from four (4) to one (1) loading zone. 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, Suite 1000, Fort Lauderdale, FL., proposing a Walgreens. The subject properties have street addresses of 406 and 408 Ocean Avenue, and 904 Oak Street, Melbourne Beach, FL 32951.

Special Meeting January 17, 2008

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Town Attorney Gougelman advised that this Special Exception Application was continued from the November 26, 2007 Special Meeting. He then read: Special Exception Application 6-2007 Town of Melbourne Beach Land Development Code, Section 7A-38 (d) (1), Special Exception: Retail Stores. The property is legally described as Lot 23 and the west 10 feet of Lot 24, Block 1, Graves Plat of Melbourne Beach, and Lots 21 and 22 and the east 26 feet of Lot 20, Block 1, Graves Plat of Melbourne Beach, as recorded in Plat Book 1, Page 38 of the Public Records of Brevard County, Florida. 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, Suite 1000, Fort Lauderdale, FL., proposing a Walgreens. The subject properties are vacant lots immediately west of the Chevron Station having street addresses of 406 and 408 Ocean Avenue, Melbourne Beach, FL 32951. Town Manager Bursick commented on the request for a continuance until February 7th or the 21st, There was a discussion regarding a date for re-scheduling these hearings. Town Attorney Gougelman asked the applicant why there was an urgency to have the meeting on the 7th as previously requested. Ms. Rezanka advised that the applicant was closing on the property at the end of April. Therefore, the applicant did not need to have the hearing on February 7th as originally requested. Member Failla asked Mr. Gougelman what the Board’s options were for approving the continuance. Town Attorney Gougelman advised that the Board could hear it tonight or continue it. Member Ross made a motion to continue the hearings for the Variance and Special Exception applications to February 21, 2008, which was seconded by member Remark. It was requested that if the plans are available, to have them available to the public by February 8, 2008. The meeting was duly adjourned at 6:50 p.m. ___________________________ Robert Schaefer, Chairman ATTEST: ________________________________ Lenore R. Milan, CMC, Town Clerk

Board of Adjustment Regular Meeting Minutes January 24, 2008

The Board of Adjustment of the Town of Melbourne Beach, Florida met in regular session on Thursday, January 24, 2008 in the Community Center, 509 Ocean Avenue beginning at 6:30 p.m. Present were Chairman Robert Schaefer, Vice Chairman David Wildman, Members Lou Failla, John Remark and Alternate Member Neal Tompkins. Member Xochitl Ross and Alternate Member Mike Rowe were absent. Also in attendance were Town Manager Jim Bursick, Building Official Bill Whitelock and Deputy Town Clerk Marion Noe. Chairman Schaefer called the meeting to order.

*** The first item on the agenda: Special Exception Application 01-2007 Town of Melbourne Beach Land Development Code, Section 7A-36(d) (3), Special Exception: Eating and drinking establishments. The property is legally described as Lots 1 through 6, Exchwy R/W, Block 5, as recorded in Plat Book 1, Page 58 of the Public Records of Brevard County, Florida. This application was submitted by Djon Pepaj restaurant owner. The subject property is the former Boomerang Restaurant having a street address of 1009-1011 Atlantic Street, Melbourne Beach, FL 32951. Djon Pepaj submitted a letter on January 24, 2008 stating:

After reviewing the town attorney’s response dated January 14, /2008, at this time we feel we do not have the complete information required for this meeting. We ask that the Board of Adjustment of the Town of Melbourne Beach to continue the review of the 1005 Atlantic Street property for the March meeting.

Discussion was conducted by the Board regarding the continuance and the date for the hearing. Vice Chairman Wildman made a motion to continue the application to March 20, 2008, and that this is to be the last continuance granted, which was seconded by Member Failla. The motion carried unanimously. Vice Chairman Wildman made a motion to adjourn, which was seconded by Member Failla.

The meeting was duly adjourned at 6:38 p.m. ________________________ Robert Schaefer, Chairman ATTEST: ____________________________ Marion Noe, Deputy Town Clerk

Board of Adjustment Regular Meeting Minutes - Revised February 21, 2008

The Board of Adjustment of the Town of Melbourne Beach, Florida met for a regular meeting on Thursday, February 21, 2008 in the Community Center, 509 Ocean Avenue beginning at 6:30 p.m. Present were Chairman Robert Schaefer, Vice Chairman David Wildman, Members Lou Failla and John Remark and Alternate Members Mike Rowe and Neal Tompkins. Absent was Member Xochitl Ross. Also in attendance were Town Manager Jim Bursick, Town Attorney Paul Gougelman, Town Planner Dennis Ragsdale, Building Official Bill Whitelock and Town Clerk Lenore Milan. Chairman Schaefer called the meeting to order.

*** Chairman Schaefer stated the first item on the agenda was the approval of minutes. Approval of Minutes Member Failla made a motion to approve the November 8, 2007 minutes, which was seconded by Alternate Member Tompkins. The motion carried unanimously. Vice Chairman Wildman made a motion to approve the January 17, 2008 minutes, which was seconded by Member Failla. The motion carried unanimously. Vice Chairman Wildman made a motion to approve the July 26, 2007 minutes, which was seconded by Member Failla. The motion carried unanimously. Member Failla made a motion to approve the October 25, 2007 minutes, which was seconded by Vice Chairman Wildman. The motion carried unanimously. Due to a problem with the copies of the November 15, 2007 minutes, Member Failla made a motion that they be removed and placed on the next meeting’s agenda, which was seconded by Alternate Member Tompkins. The motion carried unanimously. Member Failla made a motion to approve the December 20, 2007 minutes, which was seconded by Vice Chairman Wildman. The motion carried unanimously. Member Failla made a motion to approve the January 24, 2008 minutes, which was seconded by Vice Chairman Wildman. The motion carried unanimously.

*** Chairman Schaefer stated that the next item on the agenda was the Public Hearing. Public Hearing Chairman Schaefer recused himself from the hearings, due to the location of the project in relationship to his property and the affect it would have on his property value. He advised the Board that he would be filling out another voting conflict form. Alternate Member Rowe stepped up to the dais. Mrs. Rezanka called a point of order, stating that Alternate Member Neal Tompkins was not here for all of the meetings and he had spoke at the November 26, 2007 meeting against Walgreens, which disqualifies him. She advised that she objected to him being seated.

Regular Meeting February 21, 2008

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Vice Chairman Wildman asked Member Tompkins if he felt he could be impartial. Alternate Member Tompkins stated that he felt he could be impartial. Town Attorney Gougelman asked Alternate Member Tompkins if he had the chance to review the files and records for this application and was fully versed with this application. He stated that the Board should ask the applicant if they still objected to Member Tompkins remaining on the dais. Alternate Member Tompkins stated that he was fully versed with this application. Mrs. Rezanka advised that she didn’t want Alternate Member Tompkins sitting on the Board for this issue. She stated that she remembered him speaking on this and objected to him being on the Board for this matter. Alternate Member Tompkins agreed to step down and asked if he would be able questions as a Board member. He was advised that he could not. Town Attorney Gougelman asked the Board if they were uncomfortable with four members. They advised they were not uncomfortable with only four members. Vice Chairman Wildman asked the applicant if they were fine with four members. Mrs. Rezanka advised that they were. Vice Chairman Wildman advised that the first item on the agenda was Variance Application 7-2007 and noted that it was continued from the January 17, 2008 Special Meeting. Variance Application 7-2007. Town of Melbourne Beach Land Development Code, Section 7A-50 (D) Off Street Parking – Loading Requirements - Reducing the number of loading zones from four (4) to one (1) loading zone. The application was from Florida Property Investment Partners, the developer for Walgreens, who have authorization and approval for development of the property of 904 Oak Street, zoned 7C, presently owned by Melbourne Beach Enterprises, Inc., and 406 and 408 Ocean Avenue, zoned 8B Residential-Business, presently owned by Islander Condominium Development of Melbourne Beach, LLC. Vice Chairman Wildman read the legal description of the property 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. Vice Chairman Wildman advised that Special Exception Application 6-2007 was continued from the January 17, 2008 Special Meeting. He then read: Special Exception Application 6-2007 Town of Melbourne Beach Land Development Code, Section 7A-38 (d) (1), Special Exception: Retail Stores. The property is legally described as Lot 23 and the west 10 feet of Lot 24, Block 1, Graves Plat of Melbourne Beach, and Lots 21 and 22 and the east 26 feet of Lot 20, Block 1, Graves Plat of Melbourne Beach, as recorded in Plat Book 1, Page 38 of the Public Records of Brevard County, Florida.


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A Special Exception is required for a 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, Suite 1000, Fort Lauderdale, FL., proposing a Walgreens. The subject properties are vacant lots immediately west of the Chevron Station having street addresses of 406 and 408 Ocean Avenue, Melbourne Beach, FL 32951. Vice Chairman Wildman asked Town Clerk Milan if this Variance Application and Special Exception Application were complete, submitted timely, properly noticed and posted. Town Clerk Milan responded yes to each question asked. Vice Chairman Wildman asked the Board members if any member had any conflict, any ex parte communications since January 17, 2008. Vice Chairman Wildman advised that he had received several letters, had numerous e-mails with the Town Attorney regarding procedures, and a memorandum also regarding procedures, a letter from Town Manager Bursick dated February 8, 2008 and a letter from Melbourne Beach Awareness Committee dated February 12, 2008. Vice Chairman Wildman stated that the November 26, 2007 minutes reflected that the applicant continued the meeting; we now needed a motion to re-open and give the public the opportunity to speak. Member Failla made a motion to re-open the public hearing, which was seconded by Member Remark. Alternate Member Rowe asked if the Board was opening the hearing to new testimony or opinions. Vice Chairman Wildman stated that the residents would now have had an opportunity to review the Binding Development Plan and associated documents. Town Attorney Gougelman advised that the Board has the ability to open the proceedings, and to define how wide an opening they want to provide. Mrs. Rezanka stated that she has thoroughly researched Town Attorney Gougelman’s memorandum regarding Variance hearings; Section 7A-155, a re-hearing is not applicable here. Mrs. Rezanka advised that the Board could open up for new site plan, landscaping and Binding Development Plan on the record from October. She stated that in February 2007 the applicant went to the Town regarding Walgreens; she advised that she objected to this meeting being opened for all purposes. Mrs. Rezanka stated that if any new party wants to speak, it was to be only if they have heard the entire presentation and are fully prepared to address what is new today; not open to a public hearing. Town Attorney Gougelman stated that he appreciated what Mrs. Rezanka is saying, he said he disagreed; citing the re-hearing at the last meeting a motion was made to approve the Variance, a motion was made to reconsider that Variance at the next meeting. He advised that the Board members who are making the decision are the four here now.


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Town Attorney Gougelman advised that there was a new landscaping plan, revisions to the architectural drawings and extensive revisions to the Binding Development Plan; the people have a right to comment to that. He stated that those documents were at Town Hall for their review to see if they do want to be here to comment. Member Failla spoke about the traffic study, that he had the same issue with it. Vice Chairman Wildman stated that he would err on the side of opening to the public. The motion carried 4-0. Vice Chairman Wildman advised that he received a letter requesting a continuance. Town Attorney Gougelman advised that Mr. Mike Minot is representing the Melbourne Beach Awareness Committee; the group who originally requested the continuance, have now rescinded that request. They are here and ready to go if you are interested in hearing from them. Vice Chairman Wildman advised that this is a quasi-judicial meeting and asked that the Town Attorney give an overview, and bring everyone up-to-date. Town Attorney Gougelman spoke about this being a quasi-judicial proceeding, no personal opinions or desires should be given, this is to make decisions based on evidence. Each witness would be placed under oath. Town Attorney Gougelman stated to be up-to-date, the Board had a five and one-half hour meeting; it was an interesting meeting. He advised that first there was a motion to approve the Variance, that passed, and then there was a motion to reconsider the motion, which passed. He advised that a motion to approve the Variance is currently on the table. Town Attorney Gougelman advised that there has been no action taken with regard to the Special Exception; that was still open. Town Attorney Gougelman advised that the Board members were interested in seeing revisions to the landscape plan and architectural plan. He stated that the Board spent a tremendous amount of time with the Binding Development Plan, which would restrict the use of the property, which was voluntarily offered initially by the applicant; staff spent time with applicant to review and revise. He advised that the Board was requesting certain changes to the Binding Development Plan. Town Attorney Gougelman advised that the Board members have received the revised Binding Development Plan, dated February 12, 2008, in their meeting package, this most current version which has changes underscored and strikethroughs are from the last meeting. Town Attorney Gougelman stated that the other changes, should the Board decide to approve the Special Exception; are the staff recommendations. He stated that staff has gone back and revised the ten items listed and the revision is dated February 12, 2008. He advised that the applicant’s attorney was agreeable with them, except one point, the hours of operations of the store; the applicant has a concern about that. Town Attorney Gougelman advised that there is a revised condition for approval item #10, a one-page item, dated February 12, 2008, written as the applicant requested. This item would


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allow Walgreens to stay open until 10:00 P.M. during the first 365 days to evaluate whether this 10 P.M. closing is a nuisance or objectionable to the public. Town Attorney Gougelman stated that should the Board decide to grant the Variance and Special Exception, these conditions would apply, as well as the Binding Development Plan. Mr. Minot advised that he represented two different classes; general and specific interested parties; now opening new as to both the Variance and Special Exception. Mrs. Kim Rezanka, representing the applicant, introduced Scott Copeland of Florida Investment Properties, Todd Peetz of Miller Legg, qualified as an expert, Trent Ebersole of McMahon Transportation Engineers and Ed Stefano representing Walgreens. Member Failla advised that he spoke with the traffic engineer since November 26, 2007, he said that none of his questions were answered. Mrs. Rezanka asked Member Failla if he spoke with any other traffic engineers. Member Failla stated he did not. Mrs. Rezanka stated that since the November 26th meeting, the applicant submitted a new landscape plan, new rendering and new site plan. She advised that the applicant met with the Town Attorney, Town Planner, Town Manager and Building Official and received a few more suggestions with regard to siding, a metal roof and the architecture. Mrs. Rezanka stated that they have revised and revised it again; she believes the rendering is compatible to Town Hall and the Library, with Key West features. Mrs. Rezanka advised that since that time the Melbourne Beach Awareness Committee has been formed. She advised that she was objecting to Mr. Struttmann testifying, since he has no evidence to present. Mrs. Rezanka spoke about the February 8, 2008 letter, advising that the letter was submitting nothing new, and not for any person to thumb their nose at it. She stated that they have supplied everything required and were hoping to get a response from the Board tonight. Mrs. Rezanka presented, for the record, the following to the Town Clerk:

Exhibit J – Site Plan dated October 10, 2007, specific removal of two parking spaces by the sign, the removal of a parking space in the back was not done.

Exhibit K – Landscaping Plan, she advised that landscaping for commercial properties were not part of the Town’s code. Mrs. Rezanka stated that, as per Member Ross’ request, the applicant beefed up the area with landscaping by the sign. She also spoke about the 6’ masonry wall meeting the code.

Exhibit L – Rendering dated January 8, 2008, to include the siding as requested, the

detail of the roof, the different details with the blue-gray siding, stating that the applicant tried to keep the colors neutral.

Exhibit M – Last plan given dated October 12, 2007.

Member Failla stated that the walls for the building appear to be mainly stucco, with the clapboard siding only on the west side, to be compatible with the Library next door, from the


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prior rendering of October 12, 2007, arches are gone, more detail, change to the Photo area, and the elevations were reduced. Mrs. Rezanka advised that the clapboard siding is on the entire building except where the sign is. Exhibit N – Letter to Town Manager Bursick from Trent Ebersoll, a revised traffic study for a smaller building, with the trips being further reduced. Exhibit O – Letter to Town Manager Bursick from Dennis Ansay, Walgreens representative dated February 21, 2008. Mrs. Rezanka then read the letter into the record. Mrs. Rezanka stated regarding the Variance request, she said she did not want to re-address the case law. Mrs. Rezanka spoke about the Variance request, that four loading zones for one truck was unnecessary, no other retail store has four loading zones. Mrs. Rezanka advised that the Special Exception, Section 7A-152 (c)(2) a.-k. the eleven criteria to be considered have been addressed in detail last meeting. She said she believed they have met them all. Mrs. Rezanka spoke about the issue of lights on too late in the parking lot, and reducing the hours of operation; the code requires the lights to face down, Walgreens does not agree to limit the hours to 9:00 P.M., they want to be open until 10:00 P.M. for 365 days. She said there is a restaurant, right across the street here, open until 11:00 P.M. Mrs. Rezanka spoke about the Binding Development Plan, that Town Attorney Gougelman incorporated everything and included additional conditions over and above what the applicant already had. She stated that conditions in the Binding Development Plan and staff recommendation conditions are agreeable; the applicant is only asking for hours of operation for 365 days to have the closing at 10:00 P.M., a probationary period, if it causes a nuisance or is found to be objectionable to the community, it will be addressed. Vice Chairman Wildman stated that the Binding Development Plan revised February 12, 2008 has been accepted by the applicant and the Town. Mrs. Rezanka stated that the applicant was requesting the hours be changed to 10 P.M. for the closing time. Mr. Copeland advised that they have had many discussions with Town staff and Mrs. Ross’ concerns with regard to the trees, the delivery truck and canopy of some trees, shown on the previous plan; that the truck may tear up the trees; we have changed those trees to palm trees, many more trees were put in. He advised that they worked closely with the Town staff regarding, as Mrs. Ross called the sea of parking, and placed more landscaping at the monument sign. Member Failla asked if any regard was given to hedges, instead of palm trees, they would grow high and are easier to maintain. Mr. Copeland advised that he didn’t have any problem with the hedge feature. He stated that the two additional parking spaces were removed around monument sign.


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Mr. Todd Peetz of Miller Legg, 631 South Orlando Ave, Winter Park, spoke about the November 26, 2007 meeting. He stated that the scale of Walgreens has been reduced to 10,100 square feet, at the northwest corner where the Chevron Station is the Library at 14,891 square feet, across the street is the Bank of America at 8,700 square feet, and the Osceola Professional Building is over 12,000 square feet; basically, we are in scale, that the two sides are larger than Walgreens. Mr. Peetz discussed the loading zone issue, that four are required for Walgreens, but there is only one at the Supermarket. Mr. Peetz spoke about the Special Exception, a permitted use with conditions, he stated that the applicant, he believed, has done what was consistent with the Code; a six foot wall, north side enhanced landscaping with palm trees, a 25’ setback (actually 29’), lighting on site, that the Special Exception’s 12 requirements must be satisfied, he reviewed those requirements and they have been met. He stated that they have also worked with the Town regarding the hours of operation. Mr. Peetz advised that he believed it was compatible with the Comp Plan. Town Attorney Gougelman advised that Messrs. Copeland and Peetz were previously sworn-in, and that this was a continuation. Mr. Trent Ebersole of McMahon Transportation Engineers and Planners, was sworn-in. Mr. Ebersole stated his credentials; he is a registered Professional Engineer, specializing in traffic engineering studies, with 18 years of experience, testifying at 30 public hearings for Board of Adjustment and City Councils. He advised that he has a Bachelor’s Degree in Civil Engineering and a Masters in Environmental Engineering. The Board considered Mr. Ebersole an expert witness. Mr. Ebersole explained that the original traffic study was utilizing the 11,500 square foot Walgreens, comparing the number of trips with the proposed Walgreens, compared to the number of trips the gas station had. He said with the 10,100 square foot Walgreens the analysis is less than for the existing gas station. Member Failla advised that, as he had asked of Mr. Peetz, that the data collection and worksheets contradict each other. He spoke about page four, the study being conducted from 7:00 A.M. to 9:00 A.M. and 4 to 6 P.M., they were past tense. He asked that when he went over the worksheets, they differ, and asked if any consideration was taken regarding the school zone and the safety of our children. Mr. Ebersole explained as to why the dates were different because they collected the data and then put it into the model, which would read that date as the date performed; that is why the dates are different. He advised that it is talking about the analysis, not the date of collection, it is nationally accepted. Mr. Ebersole stated that they collect data for two hours, noting the worst fifteen minutes of that time; that the results are defined as average. Member Failla stated that the west property line is a school crossing zone. Mr. Ebersole stated that he was sure all the safety codes were met.


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Mrs. Rezanka advised that Mr. DeStafano of Walgreens was present to ask any questions. She then reminded that not one lot but three lots would be developed, the traffic should not be an issue. Member Failla stated that he believed there would be increased traffic, he didn’t believe the process and results; the experts should have to substantiate what they submit to the Board. Mrs. Rezanka advised that the applicant was complete. Vice Chairman Wildman asked if the Town staff had any questions. Town Attorney Gougelman advised that he would like to ask Town Planner Ragsdale a question. He spoke about the point Mrs. Rezanka made that the architecture standard for Special Exception uses will be reasonably compatible with surrounding uses and its function, is it appropriate to consider architecture as part of that compatibility analysis. Town Planner Ragsdale stated that it was appropriate to consider if the architecture is consistent with the Town’s emerging theme. A goal is being implemented, with Town Hall, the Library and South Beach Realty. He stated that we do have a Key West theme being created, and if the proposed renovations are keeping with the Key West style theme in the commercial district, you can consider it as a compatible design. Vice Chairman Wildman asked the Town Planner if he had an opinion. Town Planner Ragsdale stated that there are some designs that are consistent; the overall look is not consistent. This look is a Walgreens; the façade of the building is not consistent with other buildings. He advised that Walgreens stated that it was not practical for them to comply with some of the Town’s request, of the theme we have emerging, they do not blend architecturally, other than some materials proposed. Mrs. Rezanka asked to cross-examine. She asked how long has this emerging theme been in the Town? Town Planner Ragsdale stated that the Town Hall, Library were completed a number of years ago, and during the visioning process, the last couple of years this was high on the residents’ list of priorities. He stated there has been talking for several years about the Ocean Drive plan. He stated that there are buildings already proposed for renovation; Sand on the Beach, The Plaza, where the Supermarket is coming up. Mrs. Rezanka asked if the review of a specific look of a building is part of a site plan process. Town Planner Ragsdale stated not necessarily, but in the course of the discussions, we talked about changes for the sign and the look of the structure a number of times. Town Attorney Gougelman advised that he objected, not the Town Planner’s job to plan the development. Mrs. Rezanka asked where in the Special Exception 7A-152 where it states that aesthetics are part of the exception. Town Planner Ragsdale stated that we were talking about compatibility, not necessarily aesthetics.


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Member Rowe stated that it was this Board that made the request for the Walgreens building to look like the Town Hall and Library, those were his words. We asked for Key West touches, be compatible with Town Hall. The architecture is exactly what he saw before. Member Failla stated that from the first architectural rendering to the second rendering, the applicant added Photo and Pharmacy Signs to it, extended the windows 8 to 10 feet; the Board asked for new renderings, but still didn’t receive them. He said it still doesn’t look like Town Hall or the Library. Town Attorney Gougelman stated that he read to the Board a section of the Special Exception standards regarding compatibility and asked the expert planner whether it was part of a planner’s analysis to review the architecture. He answered yes. Vice Chairman Wildman asked if anyone else wanted to be heard as a party. Mr. Minot, Esq., 319 Riveredge Blvd., Cocoa, representing the concerned citizens of Melbourne Beach, those dressed in red shirts. He advised that he has 23 years of Real Estate and Land Use Law. He stated that there was a general and a specific party, interested in presenting expert testimony. He then spoke about Town Attorney Gougelman’s memorandum. Mr. Minot distributed a map, marked #1, denoting the 700’ radius of the residents in that area, with names identified of where those residents are within that radius. He presented eight folders marked #2-#9, of residents and their deeds who would be affected by Walgreens, which he gave to the Clerk for the record. Vice Chairman Wildman asked Mr. Minot if he represented these residents, that they live and own the noted properties. Mr. Minot advised yes. He advised that these residents would be affected by the noise of the outdoor box at the drive-thru, and the change of character of the Town. Mr. Ed Struttmann #6, 802 Pine St., was sworn-in. He stated that he lived north one-half block to the west. He advised that he and his family ride their bicycles in the area and the traffic, should the Walgreens be developed, would increase. Mr. Goldenberg #1, 507 Ave A, was sworn-in, advised that he lived 550’ from the proposed Walgreens site; that the outside speakers, noise, lighting and children on the street was a concern. Mrs. Rezanka stated that no evidence was given. Mr. Goldenberg spoke about the noise when the gas station is torn down, that he was an expert with acoustics, the gas station is presently a barrier for the noise, when it is gone; the noise level will increase. Mr. Charles Alberga #3, 406 Ave A, was sworn-in, advising that he lives 200’ from proposed Walgreens site and had the same concerns. Mrs. Jean Allan #2, 424 Ave A, was sworn-in, advising that traffic is already congested, that the lighting will be bright, and spoke about the large red Walgreens sign. Mr. Minot asked that the four presented be granted to be the Standing Party.


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There was a discussion regarding Lizardi #4 at 415 Ave A and Wallace #5 at 419 Ave A. Mrs. Rezanka asked that Neidlinger #7 and Guilbeau #8 not be accepted as a party to this action. Vice Chairman Wildman advised that Lizardi and Wallace be considered a party. Member Remark made a motion that Lizardi and Wallace be a party, which was seconded by Member Failla. The motion carried 4-0. Member Remark moved that Mr. Minot have a standing party to comprise of the four residents: Goldenberg #1, Allen #2, Alberga #3 and Struttmann #6 families, which was seconded by Member Failla. The motion carried 4-0. Vice Chairman Wildman stated that the applicant had no objection to that recommendation. Mr. Minot introduced Mr. Tom Myers. Mr. Tom Myers, Planner, 1300 So. Florida Ave, Rockledge, was sworn-in. He stated that he has been a land use planner for 25 years, he worked for Brevard County for ten years, working with Board of Adjustment and the Planning and Zoning Board, and was called by Mrs. Rezanka for a case, also stated that Mr. Peetz was once his business partner. Mrs. Rezanka asked Mr. Myers if he was Certified by the Planning Organization, if he has testified in State or Federal Court. Member Failla asked Mrs. Rezanka about November 26, 2007 Tom Peetz was acknowledged as an expert, did he submit his resume. Mrs. Rezanka stated that she didn’t ask if he had a degree, just if he was certified. Member Failla made a motion to approve Mr. Myers as an expert witness, which was seconded by Member Remark. The motion carried 4-0. Mr. Minot placed Mr. Myers’ resume in the record. Mr. Minot asked Mr. Myers if he has reviewed the Town’s Land Development Code, Special Exception criteria and the Town’s Comprehensive Plan, including policies for future planning. He asked Mr. Myers if he had reviewed the applications with regard to the traffic study, elevation, and site plan. Mr. Myers stated that he had. Mr. Minot asked Mr. Myers if he has rendered an opinion on the Special Exception criteria. Mr. Myers stated that the approval for a Special Exception is very broad. He advised that he didn’t feel the Walgreens building was compatible in the small scale residential area; that this Town is not a chain store kind of town. Mr. Myers spoke about the negative effects chain stores have on small towns like Melbourne Beach; they lose a sense of community, a sense of place, give up the character of the Town. He stated that this Town is very unique, that U.S. World Report wrote about its uniqueness, its character.


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Mr. Myers stated that this Town has the Key West look, with businesses with a personal touch. Town Attorney Gougelman advised of rules of evidence. Mr. Minot spoke about the Special Exception; that this structure was not in scale with surroundings; drive thru not in character with the Town. Mr. Myers stated that the applicant has not shown any specific uniqueness, no special circumstances or conditions; they are three plain buildable lots. He said there is valid reasons why four loading zones are required for a structure this size. Mrs. Rezanka asked Mr. Myers when did he review these documents. Mr. Myers stated these last two weeks for about five hours. Mr. Peetz asked if he reviewed the Town’s Code and Variance requirements regarding loading zones. Mr. Minot spoke about Town Planner Ragsdale’s memoranda. Vice Chairman Wildman called a ten-minute recess.

*** The meeting was called back to order. Mr. Dennis Ragsdale, of Ragsdale Planning Group, Inc., 1426 Lotus Ave, Lakeland, Florida, stating that he is the Town’s Planning Official and Zoning Manager. He spoke about his November 2, 2007 memorandum. When asked by Mr. Minot if he thought the proposed Walgreens building was consistent with the desired development plan, Mr. Ragsdale stated no. Mrs. Rezanka asked Town Planner Ragsdale if he thought it was out of scale. Town Planner Ragsdale stated the height and bulk of the building; criteria of compatibility. ?? Mrs. Rezanka asked about the emerging development pattern. Town Planner Ragsdale stated that it was discussed during the visioning meetings with Town residents. Town Manager Bursick spoke about the renovation to the Plaza East Building. Town Planner Ragsdale advised that he did not have a problem with the landscape buffering; but the signage was out of proportion. Town Attorney Gougelman asked Town Planner Ragsdale if he considered a change in character of a neighborhood to be a factor. Town Planner Ragsdale stated yes, he did; he said the building style size and height is a change in the character of the Town.


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Mrs. Rezanka asked Mr. Ebersole if he heard Mr. Myers’ testimony regarding the drive thru of the bank to Walgreens. Mr. Ebersole stated he did, and the bank would generate much more traffic than the Walgreens. The hearing was opened to the public. Mr. Bruce Black, 405 Ave A, was sworn-in, he spoke about the traffic study being on national plan trips, and it doesn’t have anything to do with the Town of Melbourne Beach. Mr. Black spoke about the Comprehensive Plan, Section 7A-86, envisioned size does not constitute a hardship. Mr. Frank Kelly, 1403 Pine St., spoke about the social aspects of the Walgreens; he stated the Town almost had a 7-11 with 16 pumps; that the Rydsons built a beautiful Bed and Breakfast, we have Saver Drugs and grocery store. Mr. Neal Tompkins, 2004 Neptune Dr., was sworn-in, he stated that the Town’s Land Development Code regarding signage, requires one per business establishment, this looks like they have six; architecturally it looks like a Walgreens, he stated, if you were to look at the Walgreens in Brookline, they have gone much further to meet the local needs. Mr. Tompkins advised that bulk and architecture specifically stated in Comp Plan. Mr. Burt Goldenberg 505 Magnolia Ave, stated that the site plan shows nine parking spaces just inside, more traffic on Oak, see it as a potential block; he asked who is going to pay for a right turn lane, if needed in the future. Mr. Goldenberg advised that he worked on transportation problems in Honolulu; with the proposed Walgreens, we would need to add a lane. Mr. Charles Alberga, 406 Ave A, stated the emerging theme, only s few buildings were mentioned, he said the Dentist office has character, the apartment building, Ryckman House, and there are a lot more than the few mentioned. Mr. Dennis Scott, 209 First Ave, was sworn-in, spoke about Walgreens’ 2006 and 2007 Annual Report. Mrs. Rezanka objected. Mr. Scott stated if we thought it was right for us, right for the community, but this community does not think it is right for us. Mr. Brad Betten, 538 Sunset Blvd, was sworn-in, stated he served this community for a number of years, he said he worked for two years on a visioning process of what the Town hope to see and stay, he said that this proposed Walgreens was contrary to everything it was wanted to see in this Town; the feel of a bedroom community, you go into a store in Melbourne Beach you can meet the owner. Mr. Betten stated that the Town would like to keep that feel, the Town Hall and Library, size and scope, scale to match what they heard from this meeting, work that was done though not completed.


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The meeting was closed to the public. Final Statements Mrs. Rezanka stated she would again argue that the Town’s code as it stands with Special Exceptions deals with the use, no written use for emerging trends, she advised that the applicant met with the Town numerous times, that the scale was reduced to 10,100 square feet with a six foot wall, 29’ setback, landscaping. She spoke about the four loading zones. Mrs. Rezanka stated that the traffic report was the only expert testimony written. She spoke about the site plan approval process, that all Town codes have to be met. She said look at the gas station and vacant lot, three entrances and a concrete jungle, this would clean up that corner. Mrs. Rezanka asked the Board to approve the Variance and the Special Exception. Mr. Minot stated that this application challenges the Town of Melbourne Beach’s character, it could be the first in a domino effect. Mr. Minot advised that there was no unique hardship, he then distributed a two-page case law. Mr. Minot asked that the Board deny the Variance and stated the Special Exception does not keep with the character of the Town. Mrs. Rezanka advised that with regard to the Variance, if it affects the safety, health and welfare. Vice Chairman Wildman congratulated both attorneys and the citizens. He advised that the Board must render decisions on both applications. Town Attorney Gougelman advised that as per State Law, if the Board determines to deny, they would have to give the applicant a reason, it could be that it did not meet the compatibility, for the Variance, this is not a unique condition, not a special condition, it does not mean that these are or are not reasons. Vice Chairman Wildman read Variance 7-2007, four loading zones to only one loading zone. He advised that the motion at the November 15, 2007 meeting was a motion by Member Rowe and a second by Member Failla. Member Remark stated that he tended to agree with scale being an issue. Vice Chairman Wildman spoke about the requirement for the four loading zones, the Town Commission should change it, outside the scope of this Board. Member Failla made a motion to deny because it doesn’t meet the code, which was seconded by Member Remark. Vice Chairman Wildman stated that this doesn’t appear to be an exceptional situation; lots could be built on, the Town changed the code, it isn’t a hardship for this. The motion carried 4-0 to deny.


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Member Remark stated that there has been a lot of conversation about the Comprehensive Plan. Member Rowe stated that the applicant was asked to come back with something that looks like our Town Hall and Library; he said, by stating that the Board gave them something to work with. Member Failla stated that there was no way to convince him that there will be less traffic. Vice Chairman Wildman spoke about the vision of what the Town hopes to be, he thought we were getting closer, something compatible, he said, the applicant was not seeing the same vision as we see, it doesn’t appear to be architecturally compatible. It was stated that architecture reasonable use for criteria, it is for the Town of Melbourne Beach. Member Rowe made a motion to deny based on incompatibility, which was seconded by Member Failla. The motion carried 4-0. Mrs. Rezanka made a point of order, requesting a copy of all written findings. The meeting was duly adjourned at 11:16 p.m. ___________________________ Robert Schaefer, Chairman ATTEST: ________________________________ Lenore R. Milan, CMC, Town Clerk

Board of Adjustment Regular Meeting Minutes March 20, 2008

The Board of Adjustment of the Town of Melbourne Beach, Florida met for a regular meeting on Thursday, March 20, 2008 in the Community Center, 509 Ocean Avenue beginning at 6:30 p.m. Present were Chairman Robert Schaefer, Vice Chairman David Wildman, Members Lou Failla and John Remark. Absent were Member Xochitl Ross and Alternate Members Mike Rowe and Neal Tompkins. Also in attendance were Town Manager Jim Bursick, Town Attorney Paul Gougelman, Building Official Bill Whitelock and Town Clerk Lenore Milan. Chairman Schaefer called the meeting to order.

*** Chairman Schaefer stated the first item on the agenda was the approval of minutes. Approval of Minutes Vice Chairman Wildman made a motion to approve the November 15, 2007 minutes, which was seconded by Member Failla. The motion carried unanimously by those members present. Chairman Schaefer amended the minutes of February 21, 2008, correcting the spelling of his last name. Vice Chairman Wildman made a minor change. Vice Chairman Wildman made a motion to approve the February 21, 2008 minutes, as amended, which was seconded by Member Failla. The motion carried unanimously by those members present.

*** Chairman Schaefer stated that the next item on the agenda was the discussion and possible action regarding approval of the Final Order relative to Special Exception 6-2007 and Variance 7-2007. Chairman Schaefer recused himself from the hearings, due to the location of the project in relationship to his property and the affect it would have on his property value. He advised the Board that he would be filling out another voting conflict form. Vice Chairman Wildman made a motion to approve the Final Order, which was seconded by Member Failla. The motion carried 3-0. This Final Order would be signed by Vice Chairman Wildman at the end of this meeting. Chairman Schaefer stated that the next item on the agenda was the Public Hearing. Public Hearing Chairman Schaefer advised that the first item Special Exception Application 1-2007 for Sand on the Beach, which was continued from the January 24, 2008 meeting, He informed the Board that this application has been withdrawn by the applicant. Special Exception Application 1-2007 Town of Melbourne Beach Land Development Code, Section 7A-36(d)(3), Special Exceptions: Eating and drinking establishments. The property is legally described as Lots 1 through 6, Exchwy R/W, Block 5, as recorded in Plat Book 1, Page 58 of the Public Records of Brevard County, Florida. This application was submitted by Djon Pepaj restaurant owner. The subject property has a street address of 1009-1011 Atlantic Street, Melbourne Beach, FL 32951.

***

Regular Meeting March 20, 2008

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Chairman Schaefer advised that the next item on the agenda was Variance Application 1-2008. Variance Application 1-2008 Town of Melbourne Beach Land Development Code, Section 7A-57 (a)(1) Accessory Structures. The property is legally described as Lot 10, Block K, River Colony, West Section, as recorded in Plat Book 17, Page 55 of the Public Records of Brevard County, Florida. This application was submitted by Jack B. Spira owner. The subject property has a street address of 402 Riverside Drive, Melbourne Beach, FL 32951. Chairman Schaefer read the application; the construction of a single-story two-car garage in front of the house. Mr. Jack Spira, owner of 402 Riverside Drive, advised that the house was constructed in 1970, he purchased it in 2002. He presented pictures of his property to the Board, explaining why he needed to place the garage in the front. There was a discussion regarding other possibilities for this garage, the proposed garage door backing up to each other and whether the applicant could attach the garage to the house. Mr. Spira advised that he has very valuable antique cars he wants to place in this garage to keep them close to his house. Mr. Spira explained the reasons why he could not place the garage on either side of his house due to a well head, two large Oak trees, his fireplace stack, and slopes for drainage. Vice Chairman Wildman asked the Building Official if the Code states that no accessory structure, did that include attached. Building Official Whitelock advised that if he attached any structure to the primary structure it would be permissible. Vice Chairman Wildman asked if it was possible to attach the garage. He stated that it was not a matter that he didn’t have a garage, there is a garage, this is not a hardship. Mr. Spira spoke about a covered walkway to the garage, that the property is unique, that if he constructed a garage in front of a garage it would have a negative impact. Vice Chairman Wildman stated that no height was listed. Building Official Whitelock advised that he reviewed the height during the building permit review process, that the plans do not depict a starting elevation or a total height elevation of the proposed garage. Chairman Schaefer asked the Board if they wished to continue with this application. Vice Chairman Wildman made a motion to continue this application until the April 17, 2008 meeting. Town Attorney Gougelman advised that the Board’s rule of having documents submitted fifteen days prior to the meeting in order to review.


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Vice Chairman Wildman amended motion to continue until April 17, 2008, and waive the rule that documents must be submitted within fifteen days prior, which was seconded by Member Failla. The motion carried unanimously by those members present.

***

Chairman Schafer advised that the next item on the agenda was Coastal Construction Variance 2-2008. Coastal Construction Variance Application 2-2008 Town of Melbourne Beach Land Development Code, Section 5A-4(a) No major structures shall be constructed seaward of the coastal setback line. Section 5A-4(b) No minor structures which are not pile supported and elevated to a height sufficient to permit maintenance of dune-stabilizing vegetation growing beneath the minor structures shall be constructed seaward of the coastal setback line, and Section 5A-4 (c) All excavations, including the removal or alteration of soil, sand, or vegetation by digging, dredging, filling, drilling, cutting, scooping or hollowing out shall be prohibited seaward of the coastal setback line. The property is legally described as the South 100 feet of the North 300 feet as measured along Highway A1A of Lands described in Official Records Book 1400, Page 264, of the Public Records of Brevard County, Florida, more particularly described as follows: The North 100 feet of the South 590 feet of Government Lot 3, in Section 8 Township 28 South, Range 38 East, Brevard County, Florida, as measured along the Easterly right-of-way, the North line of which lies 186.66 feet South of, as measured perpendicularly, the South line of Wilcox Plat of Melbourne Beach as recorded in Plat Book 1, Page 58, of the Public Records of Brevard County, Florida. This application was submitted by Oceans Eleven, LLC. The subject property has a street address of 1611 Hwy A1A, Melbourne Beach, FL 32951. Chairman Schaefer read the Coastal Construction Variance Application 2-2008. Town Attorney Gougelman provided background on the Coastal Construction Variance, explaining that this type of Variance has two standards to be met to grant this Variance, and read those standards. Town Attorney Gougelman advised that back in 1985 the Coastal Control setback, that line was in effect for a short time. The State of Florida came in and set a much more restricted line in Melbourne Beach. He said, in mid 1980’s the Town intended to adopt it, but never got around to doing that. In the 1990’s, the Town thought they had adopted the new State line effective in 1986 on the west side of A1A. Town Attorney Gougelman stated that this property is wholly seaward of the State line. The Town Commission, as of last night, adopted the more restrictive State line, west of A1A. This means that the Board would be granting a variance of 210.42 feet seaward of the Coastal Construction Control Line, with exception of dune cross-over, as shown on R.N. Packard 2-07-08 D-07-65 Plans, sheet three. He advised that the State will evaluate the development based on the new line. Vice Chairman Wildman stated that nothing could be built on the beach without a variance. Town Attorney Gougelman explained that the State line limits the amount of construction seaward, it controls construction on beaches, especially virgin beaches.


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Chairman Schaefer read the question and response to number one on the application. Chairman Schaefer read Building Official Whitelock’s site plan review. Mr. Roy Alterman, Attorney and Owner of the property was sworn-in, his address is Oceans Eleven, LLC, 2115 Palm Bay Road, NE, 1E. He advised that they have met the first requirement, with regard to the beach erosion. He informed that the engineer who wrote the answer to question number one, is represented, should anyone have any questions. Vice Chairman Wildman asked if the engineer was licensed with the State. Mr. Eli Kachaylo, 220 11th Court, Vero Beach, of T2 Engineering, stated he did not have his engineering degree as yet; he was in his junior year of his structural engineering degree. He advised that he was representing his firm and that the information provided was prepared by a licensed engineer. Vice Chairman Wildman spoke about the applicant providing the Board with a signed, attested statement verifying the response to question number one on the application. Mr. Alterman stated that he would provide the Board with that attested statement. Chairman Schaefer read question and response to number two. He advised that he didn’t have a problem with the applicant’s response. Vice Chairman Wildman asked if there has been an application to the State of Florida, Department of Environmental Protection. Mr. Alterman stated that he felt they had met the two criteria. The meeting was opened to the public. Ms. Amy Adams, 220 Surf Rd, was sworn-in, she advised that there residents and owners of the easement abutting to the south side of the property; she was one of the 77 owners of the easement there. She stated that first the criteria go to the Local Planning Agency for the approval of the Variance to build seaward. Ms. Adams stated that there have been three beach re-nourishments, that the dune cross-over was washed away, taking two football fields worth of sand. She spoke about cut-backs in funding. Ms. Adams advised that there was continued erosion, and the residents have to pay, she said, as a taxpayer she is concerned. She stated that she was not saying not to develop the property. She informed that beach re-nourishment is on a schedule, why do we have these pristine beaches. She stated that this is a site plan to sell the lot. Mr. Andrew Cotter, 1700 Atlantic St., was sworn-in, stated that he lived in the Beach Chateau Condominiums across the street, that their only line of defense is the dunes. The dunes act as a buffer, that for twenty years the residents there have used and maintained that beach access, the stairs were rebuilt by Surf Road residents. Mr. Cotter spoke about Loggerhead Park and the two homes that were recently built there. He said the Ordinance adopted last night now runs into the parking lots. He asked the Board to safeguard their dune and line of defense.


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Mr. James McMullen, 1700 Atlantic St., was sworn-in and stated that he was in agreement with his two neighbors; that the dune is the last line of defense. Mr. Curtis Byrd, 306 Surf Rd., was sworn-in, and also stated that he was in agreement with his neighbors. He said he was requesting reasonable construction; that since 1987 there has been a lot of erosion. He advised that the Florida Department of Environmental Protection is not even allowing pools on beachside residences. Mr. Charles Lipz, 1704 Atlantic St., was sworn-in, and advised that there has been a lot of erosion after the 2004 Hurricanes, that the dunes protected their houses. He said to place such a structure on the dune is dangerous to those across the street. The houses previously built are 2,700 square feet, different from the proposed 6,000 square feet house with a pool; that it would be more appropriate in keeping with the properties directly in this area. Mr. Bob Strozier, 1603 Atlantic St., was sworn-in advised that the two houses built the last two years north of this property have reasonable setbacks. Mr. Sean Marks, 6520 Florida Ave., was sworn-in, spoke about his building pools east of the coastal line; that the size of the house originally submitted in 1992 was smaller, but the value of land was less compared to now. He said they had to build a home that is significant in order to justify the price. He advised that the dune cross-overs have a five foot clearance, none were at that. He reminded that the DEP has to give their approval. Ms. Adams stated that there were two structures falling into the water because we are building on the dunes, that this proposed house is a 7,000 square foot house. Mr. Alterman stated that he has heard comments from residents, that he too was a tax payer concerned about erosion, that dune erosions are caused by storms, if you were to look down the beach, the dune erodes equally. He advised that everything being planned is west of the dune, the dune is a concern, vegetation on the dune is a concern. The meeting was closed to the public. Chairman Schaefer stated that the applicant meets their two requirements, the Coastal Construction Control line on the west side of A1A; that it is now at the discretion of this Board. Vice Chairman Wildman advised that no building could be built there with out a variance. Chairman Schaefer stated that the requirement was for undeveloped land, to stop development; that was the State’s intent. Vice Chairman Wildman made a motion to approve Coastal Construction Variance 2-2008, subject to the following conditions: A) Receipt by the Town Building Official of a certification under engineer’s seal of a licensed Florida Professional Engineer certifying that the erosion of the subject property is less than the 25 feet since September 1972, in accordance with Section 5A-6(1)(d)(1), Appendix A, Melbourne Beach Town Code of Ordinances; B) Obtaining all necessary permits and certifications from the Florida Department of Environmental Protection prior to commencement of construction; C) Site plan is subject to all subsequent approvals as required by the Town of Melbourne Beach.


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D) Construction shall commence within a two (2) years (one year=365 days) from the date of rendition of this Final Order granting the CCCL Variance; and E) The residence and swimming pool and deck shall be staked out and the location thereof as being consistent with this variance and all applicable DEP permits and certifications must be verified by the Town Building Official prior to the commencement of construction.

*** Vice Chairman Wildman approved the motion, as amended, which was seconded by Member Remark. The motion carried unanimously by those members present.

***

Vice Chairman Wildman made a motion to adjourn, which was seconded by Member Failla. The meeting was duly adjourned at 8:15 p.m. ___________________________ Robert Schaefer, Chairman ATTEST: ________________________________ Lenore R. Milan, CMC, Town Clerk

Board of Adjustment Regular Meeting Minutes April 17, 2008

The Board of Adjustment of the Town of Melbourne Beach, Florida met for a regular meeting on Thursday, April 17, 2008 in the Community Center, 509 Ocean Avenue beginning at 6:30 p.m. Present were Chairman Robert Schaefer, Members Lou Failla, Xochitl Ross and John Remark, and Alternate Member Neal Tompkins. Absent were Vice Chairman David Wildman and Alternate Member Mike Rowe. Also in attendance were Town Manager Jim Bursick, Town Attorney Paul Gougelman, and Town Clerk Lenore Milan. Chairman Schaefer called the meeting to order.

*** Chairman Schaefer stated the first item on the agenda was the approval of minutes. Approval of Minutes Member Failla made a motion to approve the March 20, 2008 minutes, which was seconded by Alternate Member Tompkins. The motion carried unanimously.

*** Chairman Schaefer stated that the next item on the agenda was the Public Hearing. Public Hearing Chairman Schaefer advised that Variance Application 1-2008 for Jack Spira was continued from the March 20, 2008 meeting. Variance Application 1-2008 Town of Melbourne Beach Land Development Code, Section 7A-57 (a)(1) Accessory Structures. The property is legally described as Lot 10, Block K, River Colony, West Section, as recorded in Plat Book 17, Page 55 of the Public Records of Brevard County, Florida. This application was submitted by Jack B. Spira owner. The subject property has a street address of 402 Riverside Drive, Melbourne Beach, FL 32951. Chairman Schaefer advised that he had already gone over the application questions and answers at the first public hearing held on March 20, 2008, and that it was not necessary to do it again. Chairman Schaefer stated that this Board had asked the applicant to go back to speak with his architect to see how the new garage would look if placed in front of the existing garage. Mr. Jack Spira, owner of 402 Riverside Drive, advised that the house was constructed in 1970, he purchased it in 2002. He presented pictures of his property to the Board, explaining why he needed to place the garage in the front. He reviewed his proposal for Member Ross, who was not present at the March 20, 2008 meeting. Mr. Spira explained that he took the drawing of the new garage and placed it in front of the existing garage to see how it would look. He spoke about a drainage problem with that portion of the property, and a problem with garage doors opening and maneuvering the cars in and out of the garage. He advised that placing the new garage in front of the existing one just does not work. There was a discussion regarding other possibilities for this garage, and the fact that Mr. Spira already has a garage.

Regular Meeting April 17, 2008

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Member Ross stated that the landscape was transitory. The meeting was opened to the general public. There being no discussion, it was closed to the general public. Member Ross made a motion to deny the application for an accessory building in front of the house, which was seconded by Member Failla. Member Remark spoke about the rules and that the owner took great care in the design of the walls of the house and the landscaping, that he could possibly attach the garage on the west side of the property. Chairman Schaefer stated that Mr. Spira has done a great job on the home; but this Board has to review the application to ascertain if there is a hardship. While Mr. Spira came up with an alternate plan to try to extend the garage out, to make it part of the structure, there has to be a party wall and there wasn’t one. He said he did not see a hardship; that there has to be a party wall connection. There was discussion regarding the party wall connecting to the garage and Mr. Spira’s options. Member Ross said the wall would have to share a side of the house. Chairman Schaefer stated that there has to be a party wall, has to be continuous, no trellis, the new garage has to stand with the original building, get its strength from it. The motion carried 5-0 to deny.

*** Member Failla made a motion to adjourn, which was seconded by Member Ross. The meeting was duly adjourned at 6:52 p.m. ___________________________ Robert Schaefer, Chairman ATTEST: ________________________________ Lenore R. Milan, CMC, Town Clerk

Board of Adjustment Regular Meeting Minutes May 15, 2008

The Board of Adjustment of the Town of Melbourne Beach, Florida met for a regular meeting on Thursday, May 15, 2008 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 and John Remark, and Alternate Members Mike Rowe and Neal Tompkins (in the audience). Absent was Member Lou Failla. Also in attendance were Town Manager Jim Bursick, Town Attorney Paul Gougelman, Building Official Bill Whitelock and Town Clerk Lenore Milan. Chairman Schaefer called the meeting to order.

*** Chairman Schaefer stated the first item on the agenda was the approval of minutes. Approval of Minutes Member Ross made a motion to approve the April 17, 2008 minutes, which was seconded by Member Remark. The motion carried unanimously.

*** Chairman Schaefer stated that the next item on the agenda was the Public Hearing. Public Hearing Chairman Schaefer advised that Special Exception Application 3-2008 for Djon Pepaj, restaurant owner.

Special Exception Application 03-2008 Town of Melbourne Beach Land Development Code, Section 7A-36(d)(3), Special Exception: Eating and drinking establishments.

The property is legally described as Lots 1 through 6, Block 5, Wilcox Plat of Melbourne Beach, as recorded in Plat Book 1, Page 58 of the Public Records of Brevard County, Florida.

This application was submitted by Djon Pepaj restaurant owner. The subject property has a street address of 1007 Atlantic Street, Melbourne Beach, FL 32951.

Mr. Cliff Repperger, 1800 W. Hibiscus, of Gray Robinson, P.A., representing Mr. Pepaj, stated that the applicant was requesting to renovate the current restaurant on this property. Chairman Schaefer read the questions and answers on the application for this Special Exception. Member Ross spoke about the plans. Building Official Whitelock explained that she should refer to the site plans; which did not change from the previous document; but the parking did change. There was a discussion regarding there being no indication of the elevation and was advised that none was necessary, the building was being renovated. Mr. Repperger advised that the applicant has reduced the hours of operation for the restaurant to 7 a.m. to Midnight, seven days a week, the bar lounge 5 p.m. to Midnight, Monday through Friday, Saturday 11 to 1:30 a.m., Sunday 11 to 10 p.m., the retail office 7 a.m. to 5 p.m.

Regular Meeting May 15, 2008

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Member Ross asked about the loading zone. Mr. Repperger advised that the dumpster location on the site plan is the existing structure shown on the site plan now, it is immediately to the southeast of the structure off of First Ave, right past the loading zone area, which is indicated on the survey. There was a discussion regarding the loading zone being in front of the building, blocking parking spaces 10, 11 and 12, and the matter of someone going to the professional building, they would be parking in those particular spaces. Building Official Whitelock advised that there were plenty of room to maneuver. Chairman Schaefer continued with the questions and answers on the application. Vice Chairman Wildman requested that the rendering presented to the Board be placed on the record. Mr. Repperger advised that the waste pick up would be every other day off of First Avenue and asked that it be granted by the Board. Building Official Whitelock advised that the sealed plans show the dumpster’s location. Mr. Repperger advised that the DEP has no problem with the dumpster location; he received verbal confirmation from Christine Stellar of DEP. Vice Chairman Wildman read from the Town staff’s comments with regard to the concern of odor, that it may be an issue and inquired about the use of odor control technology by the beach access. Mr. Repperger advised that it would be the same as the method used at the present restaurant down the block, which has not been an issue. Mr. Pepaj advised that possibly ten years ago it would have been a problem, the bags used now are very strong, will not break, the trash is wrapped and sealed, they will be using bleach to clean up. He stated that his dumpster is presently located five feet from the restaurant, and it is not offensive, he assured the Board it would not be an issue. Chairman Schaefer asked the applicant if he had a problem with making that a condition. Vice Chairman Wildman spoke about his concern of a glare from the lights on the beach for surrounding properties and the sea turtles. Mr. Repperger stated that the bar area is not a particularly brightly lit area. Building Official Whitelock advised that it would be handled during the review process. Member Ross spoke about an additional porch on the plans. Mr. Pepaj advised that the existing north area walk through had an awning before, now they are putting a sturdier awning. He stated that no one would sit there, it is just for esthetics. He was not increasing the footprint. Building Official Whitelock explained that they will have to go through DEP. He said he was sure that he is not going to increase the size of the footprint.


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There was a discussion regarding the height of the building. Member Ross stated that she recalled that when the third floor was built, it was deemed for personal use. Building Official Whitelock advised that the applicant could use it for his personal office space; that he could not find past permits pertaining to that construction. Building Official Whitelock stated that the third floor has been in existence and been in use. There are no documents, ordering it to be torn down, and no permits to build it. He said it was up to the discretion of the Board. A discussion ensued regarding the use of the third floor. Mr. Repperger advised that the Special Exception was for an eating and drinking establishment, the third floor may be office space for the restaurant. Chairman Schaefer advised that issue would be dealt with during the permitting process. Town Attorney Gougelman advised the Board to be careful wording the conditions for approval; the Town has had a history, with this particular site. Chairman Schaefer advised that the Board was accepting the drawings for the Key West style. Building Official Whitelock advised that the Board accept the rendering as a style for the permitting process. A discussion ensued regarding the start date of this project. Building Official Whitelock advised 180 days, not to run past that to start; he said the Board spoke before about this, but never came up with a finish date. Chairman Schaefer stated that there was no problem with the completion date, that the permit is under the Florida Building Code; requiring 180 days after last inspection. With regard to the Comprehensive Plan, Mr. Repperger stated that he believed the applicant was compatible. The meeting was opened to the general public. There being no discussion, it was closed to the general public.

*** Vice Chairman Wildman made a motion to approve Special Exception 03-2008, with the following conditions:

(a) The one page 45º Parking Layout Plan with 16 Feet Wide One-Way Driving Isle, prepared by James Morris Smith, Jr., Palm Bay, Florida, on Sheet CV-1, Project No. 07-0204, dated 2-13-07 with latest date of revision being 2-28-08;

(b) The two-page first floor and second and third floor plans for the Sands Restaurant prepared by MAI Architecture Engineering Construction on Sheets A-101 and A-102 dated 4/17/08 without revision;


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(c) The one-page Exterior Elevations – Front and Rear for the Restaurant prepared by MAI Architecture Engineering Construction on Sheet A-201 dated 11/28/07 without revision; and (d) The one page architectural rendering signed by the applicant, Djon Pepaj, and dated May 15, 2008. The applicant’s President, Djon Pepaj, has testified at this public hearing that the rendering was prepared by Design Pool. 5. The architectural rendering is specifically approved for compatibility purposes as a concept drawing to demonstrate the Key West-style of architecture, and the development shall be substantially consistent with the rendering; provided, that the additions on the extreme North and South ends of the structures are in error and not to be included in the construction as being in conflict with the layout of buildings shown in the drawings described in ¶4.(a) and (b) of the Final Order. If there is a conflict in architectural style between the drawings described in ¶4.(b) and (c) of the Final Order and the architectural rendering described in ¶4.(d) of the Final Order, the architectural rendering described in ¶4.(d) shall prevail as to architectural style only. 6. The special exception shall only be effective upon compliance with the Site Plan approval requirements of Section 7A-51, Appendix A, Town Code of Melbourne Beach, Florida, and approval of the Site Plan by the Town Commission. 7. The Applicant agrees to maintain the "Key West" style shutters and other features depicted in the architectural renderings submitted with the Site Plan. 8. The hours of operation of the Eating and Drinking Establishment or any portion of it, during which the patrons may purchase food or beverage shall be as follows: (a) For the Restaurant - not earlier than 7 a.m. Monday through Friday, nor later than Midnight Monday through Friday, and not earlier than 7 a.m. Saturday and Sunday, nor later than Midnight Saturday and Sunday; (b) For the Bar/Lounge - not earlier than 5 p.m. Monday through Thursday, nor later than Midnight Monday through Thursday; not earlier than 11 a.m. Friday and Saturday, nor later than 1:30 a.m. on Sunday morning; not earlier than 11 a.m. Sunday, nor later than 10:00 p.m. on Sunday evening; and (c) For the facilities in the Northernmost and Westernmost buildings - not earlier than 7 a.m. Monday through Friday, nor later than 5 p.m. Monday through Friday; and not on Saturday and Sunday. 9. Project buildings are limited to the building footprint existing as of the date of the Final Order. 10. Odor. Odor control measures shall be used to control and eliminate any smell of garbage from the dumpster or kitchen areas of the Project Property. No offensive odors, as determined by any reasonable person, shall emanate from the Project Property onto adjacent properties, the beach, or any public highway. 11. Glare. No lighting on the Property shall create any condition of glare or spillover lighting onto the beach area, any public roadway, or any adjacent property.

12. Building construction must commence within 180 days of the date of the Final

Order issued by the Town Commission approving the Site Plan.


5

13. Noise. No noise, music, or amplified sound shall emanate from the Project

Property so as to be audible on adjacent properties, the beach, or any public highway before 9:00 A.M. or after 9:00 P.M. on any night. No noise, music, or amplified sound shall emanate from the Project Property so as to be audible on adjacent properties, the beach, or any public highway after 9:00 A.M. or before 9:00 P.M. on any night, except for special events, such as a grand opening celebration or special celebration occurring not less often than once every ninety (90) days and only by issuance of a special permit issued by the Town. Failure to comply with this condition 16. shall provide a basis for the Board of Adjustment to rescind the conditional use permit approval for an Eating and Drinking Establishment on the Property.

Member Remark seconded this motion. The Board decided that the Final Order would be drawn up and presented to them at their next regular meeting on June 19, 2008. Vice Chairman Wildman asked Building Official Whitelock if the Board had given him the tools he needed to proceed. Building Official Whitelock stated he believed bringing back the conceptual order was a great idea and advised that he has been given the required tools necessary. Member Ross spoke about one more condition, that there be no commercial use of the beach, such as a volley ball tournament. Mr. Pepaj asked as to where that was coming from. Building Official Whitelock stated that no permit for any event on the beach would be issued. Mr. Repperger advised that he was uncomfortable with that, he said he didn’t think the owner was going to say that this facility will use the beach for any activity. Chairman Schaefer advised that these were State beaches and it would be unfair. Member Ross stated that our Ordinances state that permits are required for something like that. Chairman Schaefer advised that this was a Code item that has to be put in place. The motion carried 4-1, with Member Ross voting nay. Chairman Schaefer advised that the next item on the agenda was Variance Application 4-2008, Djon Pepaj, restaurant owner.

Variance Application 4-2008 Town of Melbourne Beach Land Development Code, Section 7A-50(b)(3), Variance: Off-Street Parking. The applicant is requesting utilization of five (5) off-street parking spaces immediately abutting First Avenue. The property is legally described as Lots 1 through 6, Block 5, Wilcox Plat of Melbourne Beach, as recorded in Plat Book 1, Page 58 of the Public Records of Brevard County, Florida.

This application was submitted by Djon Pepaj restaurant owner. The subject property has a street address of 1007 Atlantic Street, Melbourne Beach, FL 32951


6

Mr. Repperger advised that the seating and square footage may not match the staff report, it had been revised. He stated that the Building Official had reviewed the changes. Chairman Schaefer stated that the change is in the application. Mr. Repperger advised that the staff report spelled everything out very well. He said it was a necessary part of the variance application, the right to utilize First Avenue for trash pick-up. Building Official Whitelock stated that the applicant needed this variance to have access to those spaces. Chairman Schaefer opened the meeting was opened to the general public. There being no discussion, it was closed to the general public. Vice Chairman made a motion to approve Variance 04-2008, the spaces as depicted as 43,44,45,46 & 47 as noted on the plan by James Morris Smith, Jr. He said it was a reasonable method and he agreed with it totally. Vice Chairman Wildman stated that the applicant worked well with the Town and this project will be fantastic for our Town. He advised that this variance was clearly worthwhile, it was a unique hardship; no other property will have this problem. Member Rowe seconded that motion. Member Ross spoke about the First Avenue access parking and was advised that there would be no effect on the public parking; that the benefits far outweighed this request. Chairman Schaefer advised that he agreed and this has been a hard fought battle. The motion carried unanimously. Mr. Repperger advised the Board that he appreciated all the Board’s efforts. Member Ross made a motion to adjourn, which was seconded by Member Remark. The meeting was duly adjourned at 8:20 p.m. ___________________________ Robert Schaefer, Chairman ATTEST: ________________________________ Christina Hoffkins, Town Clerk

TOWN OF MELBOURNE BEACH

BOARD OF ADJUSTMENT

Regular Meeting

Thursday, June 19, 2008 – 6:30 p.m.

Community Center – 509 Ocean Avenue

MINUTES

I. Call to order

II. Approval of Minutes – May 15, 2008 Regular Meeting

Moves by Board Member Wildman, seconded by Board Member Ross to approve the

Minutes of the May 15, 2008 Regular Meeting. Question called; motion carried, 4-0.

III. Approval of Final Order Approval of Final Order for Sand on the Beach, as discussed at May 15, 2008 Board

of Adjustment Meeting.

Town Attorney Gougelman requested that the Board continue this item to the next

Regular Meeting of July 24, 2008, as the applicant has discovered issues that need

additional clarifications.

Moved by Board Member Failla, seconded by Board Member Wildman to continue

the Final Order for Sand on the Beach to the July 24, 2008 Regular Meeting.

Question called; motion carried, 4-0.

IV. Public Hearing

1. Special Exception Application 5-2008 Town of Melbourne Beach Land Development

Code, Section 7A-38 (d) (10) - 8-B Residential – Business Zone - Special Exceptions:

Bed and Breakfast Inns. The property is legally described as Lot 22, Block 3. Whitings

Plat of Melbourne Beach, as recorded in Plat Book 1, Page 57 of the Public Records of

Brevard County, Florida.

This application was submitted by Richard and Jeanne Beaudoin, owner. The subject

property has a street address of 514 Ocean Ave, Melbourne Beach, FL 32951. The

owners want to operate existing structure as a Bed and Breakfast Inn and add two

additional structures on the property located in an 8-B zoning district.

Chairman Schaeffer asked the applicant if he wished to have the option of a full Board, as

at this time they were missing a Board Member.

The applicant, Mr. Richard Beaudoin, stated that he is satisfied with only the four present

members.

Mr. Beaudoin was sworn in by Board Member Wildman, he stated that he is speaking as

the representative and president of Salex Corporation.

Chairman Schaeffer reviewed the application by item requesting comments as they

proceeded.

Item A. Ingress/Egress

Chairman Schaeffer requested comments from the board. No comments or

questions were presented for this item.

Item B.Parking

Board Member Wildman asked how many parking spaces were required for this

project.

Building Official Whitelock stated that ten (10) total are required. The applicant

has planned for five (5); however, the additional five (5) could be acquired by a

parking agreement with another property owner in the area, such as the Town of

Melbourne Beach. He also explained that currently the business owned by Mr.

Pepaj, rents a vacant parcel next to the establishment and uses it as a parking lot.

Town Manager Bursick explained “municipal parking agreements” as agreements

to reserve parking spaces between property owned by a Municipality and a private

entity. He explained that there are other municipalities that enter into parking

agreements with business owners. He gave an example of a pending agreement

with Djon’s restaurant.

Town Attorney Gougelman explained that at the time Djon’s Restaurant was

being built, the previous Town Manager inspected the business and found that

there was, in fact, insufficient parking. An informal ‘binding lot agreement’ was

intended; however, the business decided to rent private property for parking

before the agreement was finalized.

Board Member Wildman asked if the Town of Melbourne Beach could legally

rent parking spots.

Town Manager Gougelman explained that other municipalities do, he gave the

example of the Town of Indialantic.

There was discussion regarding concerns over renting parking spaces that are

designed to benefit the residents and individuals that utilize the park and pier.

Town Manager Bursick explained that Mr. Beaudoin could find another party in

the area to “rent” spaces from in order to conform to code requirements.

Item C.Refuse



Item D. Utilities

Mr. Beaudoin explained that the utilities are being run underground for safety, as

well as, aesthetics.

Item E. Screening/Buffering

Mr. Beaudoin explained that he is keeping the current landscaping and adding

more. He also explained that he will be upgrading the fences on the property.

Item F. Lighting/Signs

Mr. Beaudoin stated that there will only be one sign for the business and he will

be adding additional landscaping lights.

Item G. Yards

Board Member Failla asked if the pool and spa area is new construction.

Mr. Beaudoin answered yes, and explained that the pool and spa will not be large

and will be within the setback.

Item H. Height

Mr. Beaudoin stated that the building height will be within code and keep with the

appearance of the Town.

Item I. Landscaping

Mr. Beaudoin stated that he will be keeping most of the trees and adding several

more.

Item J. Renewal/Termination

Mr. Beaudoin stated that construction should take a maximum of 18 month to

complete.

Item K. Setbacks



Item L. Comprehensive Plan



Board Members expressed their concerns with seeing the site elevations before they

proceeded with approval of the Special Exception.

Chairman Schaeffer called for public comments at this time.

Mr. Mike Rydson, 1301 Pine Street, was sworn in and stated that he is in favor of

allowing another Bed and Breakfast into the area. He explained that it is good for

business to have more than one. However, he expressed his concerns about the Board

ensuring the code is followed.

Kathy Emerson, 512 Ocean Ave, was sworn in and stated that she thinks this is a great

idea and addition to the look and feel of the Town.

Seeing no more public comments, Chairman Schaeffer closed the public hearing.

Moved by Board Member Wildman, seconded by Board Member Ross to continue this

item until the applicant supplies the site elevations and complies with all Code

requirements at the July 24, 2008 Regular Meeting.

Chairman Schaeffer explained that he is concerned about the parking issue and would

like to see it resolved prior to returning before the Board.

Board Member Ross stated that the applicant should have all variance applications

submitted along with the Special exception so that the Board can review everything at

once.


V. Adjournment

Chairman Schaeffer adjourned the meeting at 7:10 pm.

Attest:

____________________________________ ________________________________

Town Clerk Hoffkins Chairman Schaeffer

(Town Seal)


BOARD OF ADJUSTMENT

Regular Meeting

Thursday, July 24, 2008 – 6:30 p.m.


MINUTES

I. Call to order – Robert Schaefer, Chairman

II. Approval of Minutes – June 19, 2008

Moved by Board Member Failla, seconded by Board Member Remark to approve

minutes of June 19, 2008. Question called, motion carried; 4-0.

III. Approval of Final Order

Approval of Final Order for Sand on the Beach, continued from June 19, 2008 Board

of Adjustment Meeting as suggested by Town Attorney Gougelman.

The board discussed the redundancy of the hours of operation as stated in the

application.

Board Chairman Schaeffer explained that the Board is not changing the Final Order;

he explained that it is only for final approval by the Board.

Board Chairman Schaeffer stated that the Final Order stands as submitted to the

Board for the Regular Meeting of July 24, 2008.

IV. Public Hearing

1. Special Exception Application 5-2008 Town of Melbourne Beach Land

Development Code, Section 7A-38 (d) (10) - 8-B Residential – Business Zone -

Special Exceptions: Bed and Breakfast Inns. The property is legally described as

Lot 22, Block 3. Whitings Plat of Melbourne Beach, as recorded in Plat Book 1,

Page 57 of the Public Records of Brevard County, Florida.

This application was submitted by Richard and Jeanne Beaudoin, owner. The

subject property has a street address of 514 Ocean Ave, Melbourne Beach, FL

32951. The owners want to operate existing structure as a Bed and Breakfast Inn

and add two additional structures on the property located in an 8-B zoning

district.

Clerk’s Note: This item was continued at the previous BOA Meeting of June 19,

2008.

Clerk’s Note: The applicants would like this item continued until the next BOA

Meeting of August 21, 2008.

Moved by Vice Chairman Wildman, seconded by Board member Remark to

continue this item to the next regularly scheduled Board of Adjustment meeting.

2. Coastal Construction Variance Application 6-2008 Town of Melbourne Beach

Land Development Code, Section 5A-4(a) No major structures shall be

constructed seaward of the coastal setback line. Section 5A-4(b) No minor

structures which are not pile supported and elevated to a height sufficient to

permit maintenance of dune-stabilizing vegetation growing beneath the minor

structures shall be constructed seaward of the coastal setback line, and Section

5A-4 (c) All excavations, including the removal or alteration of soil, sand, or

vegetation by digging, dredging, filling, drilling, cutting, scooping or hollowing

out shall be prohibited seaward of the coastal setback line.

This application was submitted by Carol C. Killingsworth, The subject property

has a street address of 901 Atlantic Street, Melbourne Beach, FL 32951. The

owners want to construct a 408 sq. ft. attached addition forward of the existing

building line.

This item was pulled from the agenda by the applicant.










This application was submitted by Consolidated Environmental Engineering, LLC

for property owned by Michael F. Lesser, with a street address of 405 Atlantic

Street, Melbourne Beach, FL 32951. The owner wants to modify the existing

dune crossover located at his residence.

Mr. Dan Métier, of Consolidated Environmental, 245 East Drive, Melbourne, FL,

was sworn in by Board Member Wildman.

Chairman Schaeffer read Building Official Whitelock’s recommendation

approving the project and the Variance application details.

Board Member Ross expressed her concern with the lateral dune crossover

construction.

Mr. Métier explained that the lateral design was created to not disturb beach

dunes.

Moved by Board Member Failla, seconded by Vice Chairman Wildman to

approve the Variance application for Crossover reconstruction, as submitted by

the applicant.

Board Member Ross expressed her concerns over the excess construction that

may disturb the dune.


IV. Adjournment

Moved by Board Member Ross, seconded by Board Member Remark to adjourn the

meeting. Question called; motion carried, 4-0.

__________________________________

Chairman Schaeffer

_____________________________________ _______________________________ Town Clerk Hoffkins Date

(Town Seal)


BOARD OF ADJUSTMENT

Regular Meeting

Thursday, August 21, 2008 – 6:30 p.m.


MINUTES


II. Approval of Minutes


IV. Public Hearing


Development Code, Section 7A-38(d)(10) - 8-B Residential – Business Zone -








district.

Clerk’s Note: This item was continued at the previous BOA Meetings of June 19,

2008 and July 24, 2008.

Clerk’s Note: Staff is currently expecting this item to be continued to a future

BOA Meeting- not date specific.

IV. New Business

Special Board of Adjustment Meeting has been called for Thursday, August 28, 2008 at

6:30 p.m.

IV. Adjournment

_____________________________________

Chairman Schaefer

_________________________________________ _________________

Town Clerk Hoffkins Date Approved

Town Seal


BOARD OF ADJUSTMENT

Special Call Meeting

Thursday, August 28, 2008 – 6:30 p.m.


MINUTES


II. Approval of Minutes – July 24, 2008

Moved by Board Member Failla, seconded by Board Member Wildman to approve

the minutes of July 24, 2008. Approved, 5-0.


IV. Public Hearing










The property is legally described as Lots 1 and 2, Block G. Revision Blocks A, F,

and G of Graves Plat of Melbourne Beach, according to the plat thereof, as

recorded in Plat Book 7, Page 5A, Public Records of Brevard County, Florida.

Parcel ID 28-38-08-FX00006.0-0001.00


has a street address of 901 Atlantic Street, Melbourne Beach, FL 32951.

Town Attorney Gougelman explained that Mrs. Killingsworth is requesting to

renovate a garage in the front of her home. He stated that it would be sixty-nine

(69) feet from the CCCL.

Chairman Schaefer read the application details to the board. He opened the

public hearing for this item.

No comments from the public or additional comments from the applicants were

made.

Moved by Board Member Failla, seconded by Vice Chairman Wildman to

approve CCCL Variance request 8-2008. Approved, 5-0.

Side Setback Variance Request Application 9-2008 Requesting relief from the

Town of Melbourne Beach Land Development Code, Section 7A-31 (7)(b) Side

Interior Setback, 15 feet from lot line.

The property is legally described as Lots 1 and 2, Block G. Revision Blocks A, F,

and G of Graves Plat of Melbourne Beach, according to the plat thereof, as

recorded in Plat Book 7, Page 5A, Public Records of Brevard County, Florida.

Parcel ID 28-38-08-FX00006.0-0001.00


has a street address of 901 Atlantic Street, Melbourne Beach, FL 32951.

Board Member Ross stated that she would prefer if the site plan and variance

were approved together.

Vice Chairman Wildman explained that the variance will have little impact on the

site plan.

Chairman Schaefer read the details of the application to the board. He opened the

public hearing.

No comments from the public or additional comments from the applicants were

made.

Moved by Vice Chairman Wildman, seconded by Board Member Failla to

approve the 0.3 ft variance. Approved, 5-0.

2. Appeal of Administrative Decision Application 1-2008 Mr. Jack Spira of 402

Riverside Drive, is appealing the decision of the Town of Melbourne Beach

determination of the Town of Melbourne Beach Land Development Code,

Section 7A-57 (a)(1) Accessory Structures.

The property is legally described as Lot 10, Block K, River Colony, West

Section, as recorded in Plat Book 17, Page 55 of the Public Records of Brevard

County, Florida.

This application was submitted by Jack B. Spira, owner. The subject property has

a street address of 402 Riverside Drive, Melbourne Beach, FL 32951.

Chairman Schaefer explained to the Board that the original application was for a

462 sq. ft. garage addition. He stated that it was denied based on lack of hardship

in April. He also stated that Mr. Spira resubmitted plans to the Building Official

and was denied by Mr. Whitelock based on failure to meet requirements.

Mr. Jack Spira, 402 Riverside Drive, stated that he is appealing the decision of

the Building Official based on Mr. Whitelock’s approval of other structures that

Mr. Spira feels his project resembles. He cited the two properties as 709

Riverside Dr. and 105 Oak Street, and stated that they were approved after his

original denial. He requested that the Board and Building Official explain the

differences between those referenced properties and his project, as he feels his

project meets the same requirements. He submitted the following list of exhibits:

Exhibit 1: Rendering of garage elevation

Exhibit 2: Aerial view map

Exhibit 3: Site Plan review from Mr. Whitelock

Exhibit 4: Space Coast Architects letter dated 11-13-07 in reference to

105 Oak St.

Exhibit 5: Permit Application of 105 Oak Street

Exhibit 6- 11: Photographs of cited properties at 105 Oak St. and 709

Riverside Dr.

Mr. Spira again asked how those properties met the requirements and his does

not. He stated that he believes leniency was given to Space Coast Architects

clients as they are a consultant for the Town.

Vice Chairman Wildman stated that in order for the Board to overturn the

decision of the Building Official they must determine that the Building Official,

in this case Mr. Whitelock, made a mistake in denying the project. Vice

Chairman Wildman stated that he does not believe the Mr. Spira has proven that,

nor does he believe that there is clear and concise evidence to support the claim.

Mr. Spira requested that he have a meeting with Mr. Whitelock in order to outline

the specific reasons his project was denied.

Building Official Whitelock stated that he would meet with Mr. Spira.

Moved by Vice Chairman Wildman, seconded by Board Member Ross to

continue this item until the BOA meeting on September 19, 2008, after Mr. Spira

meets with the Building Official. Approved, 5-0.


Development Code, Section 7A-38(d)(10) - 8-B Residential – Business Zone -








district.


2008 and July 24, 2008.

Clerk’s Note: The owners request that this item be continued to a future BOA

Meeting- not date specific.


continue application 5-2008 to the regularly scheduled BOA meeting of October

16, 2008. Approved, 5-0.

IV. Adjournment

Moved by Vice Chairman Wildman, seconded by Board Member Ross to adjourn.

Approved, 5-0.

_____________________________________

Chairman Schaefer

_________________________________________ _________________


Town Seal


BOARD OF ADJUSTMENT

Regular Meeting

Thursday, October 16, 2008 – 6:30 p.m.


MINUTES


II. Approval of Minutes – None

III. Approval of Final Order(s)- None

IV. Public Hearing

1. Request for renewal of Special Exception- 11-2008 Boykin/Burrito Beach-

Renewal of Special Exception Use granted in August 2007 for the eating and

drinking establishment formerly 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. Robb Boykin was sworn-in and agreed to review of his application by a three

(3) member Board.

Chairman Schaefer stated that he will not allow public comments on this

application during this public hearing as he feels all complaints should have been

brought before the Board prior to this review.

Moved by Vice Chairman Wildman to allow public comments at this time.

Motion failed due to lack of a second.

Moved by Chairman Schaefer, seconded by Board Member Failla to approve the

renewal of Special Exception 11-2008 and allow it and the conditions to stand for

the life of the establishment without annual renewal. Question called; motion

carried, 3-0.

2A.Special Exception Application 5-2008 Town of Melbourne Beach Land

Development Code, Section 7A-38(d)(10) – 8-B Residential – Business Zone –


Lot 22, Block 3.Whitings Plat of Melbourne Beach, as recorded in Plat Book 1,




32951. The owners want to operate existing structure as a Bed and Breakfast Inn,

and add two additional structures on the property located in an 8-B zoning district.

Clerk’s Note: This item was continued at the previos BOA Meetings of June 19,

2008, July 24, 2008 and August 28, 2008.

Clerk’s Note: The owners request that this item be continued to the November 20,

2008 Meeting.


approve the owner’s request for a continuance until the Regular Meeting of

November 20, 2008. Question called; motion carried, 3-0.

2B.Variance Application 10-2008 – Town of Melbourne Beach Land

Development Code, Section 7A-50 (b)(3), Variance: Off-street Parking. The

applicant is requesting utilization of five (5) off-street parking spaces immediately

abutting First Avenue. The property is legally described as Lot 22, Block 3,

Whitings Plat of Melbourne Beach, as recorded in Plat Book 1, Page 57 of the

Pubic Records of Brevard County, Florida.

This application was submitted by Richard Beaudoin, property owner. The subject


Clerk’s Note: The owners request that this item be continued to the November 20,

2008 Meeting.


approve the owner’s request for a continuance until the Regular Meeting of

November 20, 2008. Question called; motion carried, 3-0.

IV. Adjournment


adjourn the meeting. Question called; motion carried, 3-0.

_____________________________________

Chairman Schaefer

_________________________________________ _________________


Town Seal


BOARD OF ADJUSTMENT

Regular Meeting

Thursday, November 20, 2008 – 6:30 p.m.


MINUTES


II. Approval of Minutes – October 16, 2008

III. Approval of Final Order(s)- None

IV. Public Hearing

1A.Special Exception Application 5-2008 Town of Melbourne Beach Land

Development Code, Section 7A-38(d)(10) – 8-B Residential – Business Zone –


Lot 22, Block 3.Whitings Plat of Melbourne Beach, as recorded in Plat Book 1,




32951. The owners want to operate existing structure as a Bed and Breakfast Inn,

and add two additional structures on the property located in an 8-B zoning district.


2008, July 24, 2008, August 28, 2008 and October 16, 2008.

1B.Variance Application 10-2008 – Town of Melbourne Beach Land

Development Code, Section 7A-50 (b)(3), Variance: Off-street Parking. The

applicant is requesting utilization of five (5) off-street parking spaces immediately

abutting First Avenue. The property is legally described as Lot 22, Block 3,

Whitings Plat of Melbourne Beach, as recorded in Plat Book 1, Page 57 of the

Pubic Records of Brevard County, Florida.

This application was submitted by Richard Beaudoin, property owner. The subject


Clerk’s Note: This item was continued at the previous BOA Meeting of October 16,

2008.

2. Site Plan Revision #07-099 The Applicant LDP, LLC hereby requests a revision

to the Site Plan approved on July 19, 2008 by the Board of Adjustment, #07-0204.

This request was submitted by LDP, LLC, property owner. The subject property has

a street address of 1005 Atlantic Street, Melbourne Beach, FL 32951.

IV. Adjournment

_____________________________________

Chairman Schaefer

_________________________________________ _________________


Town Seal

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