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HomeMy WebLinkAboutMinutes 10-14-1996CITY OF CAPE CANAVERAL BOARD OF ADJUSTMENT MEETING MINUTES OCTOBER 14, 1996 A Meeting of the City of Cape Canaveral Board of Adjustment was held on October 14, 1996, at the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. Chairperson Thurm called_ the meeting to order at 7:30 P.M. The Secretary called the roll. MEMBERS PRESENT: Ann Thurm Chairperson Ronnie Farmer Vice Chairperson Robert Laws Ex- Officio Member Connie McKone City Attorney Earl McMillin Building Official Marilyn Rigerman 1 st Alternate Paula Collins 2nd Alternate OTHERS PRESENT: Burt Bruns Council Member Leo Nicholas Council Member Beatrice McNeely Ex- Officio Member Kohn Bennett City Attorney _ G. J. Moran Building Official Susan Chapman Secretary Motion by Mr. Laws, seconded by Mr. McMillin to approve the meeting minutes of September 16, 1996 as corrected. Motion carried unanimously. Mona Jason, Jovan Barzelatto, and Arthur Berger, citizens; Burt Green, attorney representing Mona Jason; and Whitey Moran, Building Official were sworn in by Kohn Bennett, City Attorney. NEW BUSINESS: 1. Special Exception Request No. 96 -14 to Allow an Existing Restaurant to Serve Beer & Wine (6615 (C) North Atlantic Avenue, Mona's) - Petitioner was Mona Jason, Acting Agent for Supra Color Enterprises, Property Owner. Mrs. Rigerman, 1st Alternate, stated for the record that she had been inside the establishment. BOARD OF ADJUSTMENT MEETING MINUTES OCT OBER 14, 1996 PAGE 2 Ms. Jason explained that she was trying to provide her customers with what they - -were requesting, which was to be able to have beer /wine with their meals. She explained that she had been in business for over one year at that location and received good response from the community. She explained that the restaurant owners were trying to make the restaurant an establishment that the community was proud of. Ms. Jason further explained, that the restaurant had opened as a vegetarian restaurant however, customers had requested seafood which had been added later to the menu. Their customers had also requested to have beer /wine available. She added that a petition had been presented previously to City Council with 400 names (140 were local residents) requesting that Mona's Cafe' be allowed to serve beer /wine. Attorney Burt Greene, representing Ms. Jason, addressed some concerns that the applicant had presented in the request packet specifically, the existing parking space deficiency. Mr. Greene had researched the leases of the establishments located at the same address. His research revealed that Mona's lease had been signed prior to the building being issued a certificate of occupancy, prior to the health and wellness center signing their lease, 25% of the total sq. ft. was leased by Mona, and no designation of assigned parking was evident. Mr. Greene voiced his legal opinion that based on his findings, Mona's Restaurant should be entitled to 8 or 9 parking spaces, 9 parking spaces were required ba on 25 restaurant seats and therefore, Mona's was in compliance with city code. Attorney Greene advised that the landlord had the power to assign parking spaces to any tenant however, he did not and was confident that if he brought this issue to court, he would prove that a tenant who leased 25% of the building would be entitled to 25% of the parking. Ms. Jason advised that her restaurant was the only business open at night, there were no complaints from customers regarding parking, and she was prepared to pay the assessed sewer impact fees for the additional seats required by city code. Mr. Moran, Building Official clarified that the parking requirements were based on the type of uses, not square footage. He advised that it was his job, as Building Official, to advise the Board of any deficiencies. Mr. Moran advised that the original site plan indicated that (1) parking space would be allocated for every 300 sq. ft. of the entire building, which had been calculated for commercial uses. He added that the City created the problem by allowing the restaurant and wellness (fitness) center which had created additional required parking spaces. BOARD OF ADJUSTMENT MEETING MINUTES OCTOBER 14, 1996 PAGE 3 Mr. Kohn Bennett pointed out that it appeared that the health and wellness center was causing the parking problem. Mr. Charles Foley, resident of Cape Shores Condominiums, located behind the subject property, voiced his concerns regarding patrons of the fitness center park on Cape Shores Drive, the owner's of Cape Shores were misled to believe that Mona's was supposed to be a soft drink /coffee shop with health food, the restaurant had grown to include music, and now they were requesting beer /wine, the restaurant was located within 100 ft. of Cape Shores residences, music could be heard at night, flood lights overflowed onto the Cape Shores property, a barrier of bushes were supposed to be planted to act as a buffer which was not done, a/c units ran 24 hours per day which could be heard by the residents. The Secretary advised that no written correspondences had been received regarding Mona's request. Ms. Jason advised that Tues. - Thurs. dinner was served until 8:30 P.M., Friday and Saturday until 10:00 P.M., she had no plans to change her business hours, she was unaware of any problems, and classical music was the only music played. Chairperson Thurm suggested that Mr. Foley file a complaint with the city regarding his concerns. Ms. Rigerman advised that the request packet did not provide a drawing of the floor plan showing the 25 seats. Ms. Jason responded that she had 25 seats existing and she would provide the required drawing. Motion by Mr. McMillin, seconded by Mr. Laws to approve Special Exception Request No. 96 -14 to allow Mona's Cafe' to serve beer and wine as follows: Findings of Fact: Mona Jason was the designated agent of the real property described in the Petition. The property was located in the C -1 zoning classification and was subject to the Land Development Regulations pertaining to said district. The granting of this special exception request would not adversely affect the public interest. This special exception request was consistent with the goals, objectives and policies of the Comprehensive Plan; is consistent with the intent of the C -1 zoning district; this request would not create any adverse impacts to adjacent property through the creation of noise, light, vibration, traffic, utility requirements, or stormwater runoff that would not have been created had the property been developed for a principal use permitted in the C -1 zoning district; no unusual police, fire or emergency services would be required; all the requirements of the zoning district were met with the special exception. BOARD OF ADJUSTMENT MEETING MINUTES OCTOBER 14, 1996 PAGE 4 Conclusion of Law: That the Board of Adjustment had lawful power and authority to grant special exceptions under special conditions and circumstances as set forth in Section 110 -171 (2)(C) of the Cape Canaveral Code of Ordinances. The petitioner had met the minimum requirements for the requested special exception and has demonstrated entitlement to the special exception which would not adversely affect the public interest. Order: Mona Jason was granted the special exception subject to all applicable limitations, restrictions and conditions: All applicable impact fees, permits, state and local licenses that may be required, shall be obtained prior to use of this special exception. Said special exception shall run concurrently with the property identified in the petition. Should there be a violation to any part of this order, said special exception would be subject to revocation according to city code. The Secretary called the roll. Vote on the motion, as amended, carried unanimously. 2. Variance Reque No. 96 -15 to Allow an Existinq Nan- Conforminq Garaae that Encroaches 4 ft. into the Required Side Yard Setback to Extend an Additional 6 ft. 8 in. at (416 Lincoln Avenue) - Petitioner was Dorothy A. Treverton, Property Owner. Mr. Moran submitted additional information pertaining to the request. Mr. Jovan Barzelatto, acting agent for Mrs. Treverton property owner, explained that the garage side wall was located 4 ft. from the side property line; homes on the same street and of similar design, were located off to one side of the lots; and therefore, when the city amended the code to require 8 ft. setbacks, they made all these homes non - conforming. He added that Mrs. Treverton purchased the home in 1993, she remodeled the interior of the home in the same year, the code that required the 8 ft. setback was adopted prior to 1993 and had not been amended since that time. He further explained, that the code did not allow property owners to increase their non- conforming structures and therefore, creating a hardship for the property owners. Mrs. Rigerman questioned if Mrs. Treverton had been parking her car outside since she bought the house. Mr. Barzelatto responded that Mrs. Treverton parked her car outside since she bought the car which was too big to fit in the garage. Mr. McMillin voiced his opinion that Mrs. Treverton built the garage and then bought a. car too big to park in it and now, she was requesting to expand the garage. BOARD OF ADJUSTMENT MEETING MINUTES OCTOBER 14, 1996 PAGE 5 Mrs. Rigerman pointed out that a variance could only be granted if the city had imposed the hardship on the applicant. She voiced her opinion that the city did not impose Mrs. Treverton's hardship. Mr. Barzelatto and Mr. Berger (co- worker) disagreed. Discussion followed. City Attorney Bennett advised that if Mr. Barzelatto argument was true, then every non- conforming structure in the City would have a hardship. Mr. Bennett read a portion of Section 110-62 (1)(a) of the city code of ordinances which stated that "special conditions and circumstances must exist which are peculiar to the property and are not applicable to the other lands or buildings in - the same district." He advised the Board that in order to grant a variance, the Board would make a finding that Mrs. Treverton's circumstances were not created by the applicant. Mr. Moran testified that Mr. Barzelatto had asked him to make an inspection to ascertain that this was a very small garage that was too small for Mrs. Treverton's car. Mr. Moran had reviewed the property records available in the Building Department which had revealed that the previous property owner had constructed a family room, and in 1993, Mrs. Treverton had remodeled it into the existing garage and therefore, it was his opinion that Mrs. Treverton created the hardship. The Board members reviewed the drawing submitted by the applicant. Discussion followed. Mr. Barzelatto disagreed with Mr. Moran's determination. Discussion followed. Mr. Moran provided a copy of the previous owner(s) plan which had been submitted not to remodel, but to construct a new family room. He pointed out that the Building Department records revealed that Mrs. Treverton had clearly remodeled the family room into the existing garage in 1993. Discussion continued. Mr. Dwyer, citizen /neighbor, 417 Lincoln Avenue, cautioned that the code needed to be enforced equally. He advised that if Mrs. Treverton's request was granted, his family would be applying for a variance to extend their existing non - conforming structure. An ensuing discussion was held with Mr. Barzelatto and Mr. Berger regarding the code pertaining to non - conforming structures. City Attorney Bennett suggested that they petition City Council for consideration to amend the ordinance pertaining to non- conforming structures. Motion by Mr. McMillin, seconded by Mr. Laws to deny Variance Request No. 96 -15 as follows: BOARD OF ADJUSTMENT MEETING MINUTES OCTOBER 14, 1996 PAGE 6 Findings of Fact: Dorothy A. Treverton was the owner of the real property described in the . Petition. The property was located in the R -3 zoning classification and was subject to the Land Development Regulations pertaining to said district. The granting of this variance would adversely affect the public interest. This variance request was inconsistent with the goals, objectives and policies of the Comprehensive Plan; special conditions did not exist which were peculiar to the land, structure or building involved in which were not applicable to other lands, buildings or structures in the same district. Literal interpretation of City Code Section 110-62 would not deprive the applicant of rights enjoyed by other properties in the same district. The special conditions and circumstances referred to above, result in part, from the actions of the applicant. In that, the applicant bought a home with a family room and constructed the existing garage which she now sought to change. Granting the variance request would confer on the applicant a special privilege that was denied by City Code Section 110-62 to other lands, structures or dwellings in the same district. Conclusion of Law: That the Board of Adjustment had lawful power and authority to grant /deny variances under special conditions and circumstances as set forth in Section 110 -6 2 of the Cape Canaveral Code of Ordinances. The petitioner had not met the minimum requirements for the requested variance and had not demonstrated entitlement to the variance which would have adversely affected the public interest. Order: Dorothy A. Treverton was not granted the variance. Vote on the motion carried unanimously. There being no further business the meeting was adjourned at 8:45 P.M. Approved this ayth day of m , 199 . 8ts�, C it erson Susan Chapman, ecretary