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HomeMy WebLinkAboutMinutes 08-05-1991CITY OF CAPE CANAVERAL ZONING BOARD OF ADJUSTMENT AUGUST 5. 1991 A Meeting of the City of Cape Canaveral Zonina Board of Adjustment was held on Auaust 5, 1991 at the City Hall Annex, 111 Polk Avenue, Cape Canaveral, Florida. Chairman Lloyd called the meetina to order at 7:30 P.M. The Secretary called the roll. MEMBERS PRESENT: Russell Lloyd Marilyn Riaerman Robert Laws Ronnie Farmer Robert Hoog John Rutte Chairman Vice Chairman Alternate Alternate MEMBERS ABSENT: Patrick Lee OTHERS PRESENT: Joy Salamone Edward Spenik James Morgan Thomas Klevina Evelyn Hutcherson Dwight Severs Scott Spooner James Sloan Deborah Morris Mayor City Manager Buildina Official B11ildina Inspector Code Enforcement Officer Attorney Representing the City City Engineer P.E. for City Engineer Secretary Ms. Riaerman moved to approve the minutes of July 1. 1991 as written. Mr. Laws seconded the motion. Motion carried unanimously. UNFINISHED BUSINESS 1. Administrative Appeal Request No. 91 -4 on Buildina Official's Decision _Regardin De nial . of _Buildina Permit Application to R_eoair_Fire__Damae.. Se c._23, Tw .__24S Rge _37 1. _Bloch 72, Avo By Th_e- Sea Ridgewood_ Avenue) - Nationwide Mutual Fir In Company for John and Ivy B Chairman Lloyd summarized that this case was a continuation from the previous meetina reaardina denial of a buildina permit to repair fire damage at the Bolanowski residence located at 6920 Ridgewood Avenue. Attorney Fannin, representing Nationwide Mutual Fire Insurance Company, briefed the Board members on the request. He stated that Nationwide Mutual Fire Insurance Company had fully covered the property with fire insurance. He advised that Nationwide was the aggrieved party in this case because the property had been converted to a complete loss under the insurance policy and the Florida Valued Policy Statute. Attorney Fannin read a portion of Section 645.19 of the Cape Canaveral Zonina P.eaulations. He summarized that on March 27, 1991, the Buildina Official had rejected a buildina permit application to repair fire damaae. Zonina Board of Adjustment Auaust 5. 1991 Page 1 of 7 Attorney Fannin requested that for the record, any documents or evidence that post dated March 27. 1991 be stricken from the record. Attorney Fannin entered the exhibits from the previous meeting (Exhibit 1). Attorney Fannin requested a brief testimony from James Morgan, Building Official. Mr. Morgan was sworn in by the stenographer. Mr. Morgan testified that he had rejected the building permit application to repair fire damage; he was the Buildina Official for the City of Cape Canaveral from April, 1987 to present; he lived immediately east of the Bolanowski property; he had built his house in 1983 or 1984; his lot size was 50' by 125'; his home was 32' wide; his structure was in conformance with current codes. He reviewed a photograph of the structure (Exhibit 2) and testified that the house in the photograph was owned by John and Ivy Bolanowski. He reviewed a photograph of the east side of the house (Exhibit 3) and the north side of the house (Exhibit 4) . After viewing the three photographs, he testified that he could see smoke damaae on the facia boards and depicted other damage to the structure. His interpretation of Section 643.05(b) of the Cape Canaveral Zoning Regulations was as follows: If a non - conforming residential structure was damaged more than 50% percent of its fair market value, it could not be repaired or rebuilt unless it conformed to all of the existing set backs and other code requirements. He explained the method he used to determine that the Bolanowski residence was damaaed more than 50% of its fair market value. He noted that he had received a letter from the Bolanowskis agreeing to the method he had used to make his determination. He further testified that there were no previous fire damage cases to single family residences brought before the Board of Adjustment; he had rejected the building permit application to repair fire damage on March 27, 1991; he had never seen a copy of the insurance policy and coverage on the Bolanowski residence; he was not a licensed rea'1 estate appraiser. Attorney Fannin read a letter addressed to Mr. Morgan from Mr. Bolanowski dated March 27, 1991. Discussion followed. Attorney Fannin entered a Sketch of Survey for 6920 Ridgewood Avenue (Exhibit 5). He advised that the yellow highlighted areas included an existing shed and a one story frame residence that existed and the orange highlighted areas were the setback lines. It was noted that the rear setback was 15', not 25' as outlined on that Sketch of Survey. Discussion followed. Attorney Fannin entered a letter from Hunt & Associates Construction, Inc., dated October 31, 1991, advisina Mr. Morgan that they had chanaed their estimate to repair the fire damage to comply with City specifications (Exhibit 6) . Mr. Morgan stated that his determination of the fair market value without any depreciation or destruction was between $38,000 to 542,000. Attorney Fannin entered the 1990 Brevard County Tax Assessment for 6920 Ridgewood Avenue (Exhibit 7). Discussion followed. Attorney Fannin entered a copy of a lawsuit regarding All Shores Construction Supply Company, Plaintiff vs. John Bolanowski, Defendant, which included the following: Complaint filed by All Shores Construction and Supply Company; Answer, Affirmative Defenses and Counterclaim filed by John Bolanowski; and the Order of Dismissal, dated April 3, 1991 (Exhibit 8) . He advised that the lawsuit was dismissed for lack of action only five (5) days after the building permit application was rejected by Mr. Morgan. Mr. Morgan explained that the City Manaaer had requested that he consider beina a witness in this Administrative Appeal Request since he may have a conflict of interest. Mr. Morgan explained that he had instructed Evelyn Hutcherson, Code Enforcement: Officer and Thomas Klevinq, Building Inspector, to represent the City in this case. Zonina Board of Adjustment August 5, 1991 Paae 2 of 7 Chairman Lloyd explained that the Building Official was normally a consulting advisor to the Board and that Mr. Morgan had voluntarily stepped down at the request of the City Manager because of the lawsuit. He called a ten minute recess at 8:40 P.M. The meeting was reconvened at 8:50 P.M. Mr. Morgan explained that the non conformity in this case was as follows: The structure encroached approximately four feet into the east property line and approximately 23' into west property setback line. The stenographer swore in Mr. David Bryant, P.E. and Florida Certified Contractor. Mr. Bryant testified that he had made an inspection of the structure and that he did not see any structural damage. His inspection had revealed fire damage to the kitchen, dining room walls, cabinets, appliances, tongue and groove ceiling. He agreed that Hunt & Associates Construction, Inc. had been willing to repair the fire damaged home for $27,715.33. A letter from Mr. Bryant regarding his inspection was entered (Exhibit 9). The stenographer swore in Mr. Jack Woodley, Independent Claims Adjuster for CJW & Associates. Mr. Woodley testified that he had been a claims adjuster for more than 20 years; he was appointed the appraiser by Nationwide Mutual Fire Insurance Company to meet with the appraiser appointed by the Bolanowskis under the appraisal provision of the Bolanowskis insurance policy to only agree on the loss and damage to the building and its contents; Mr. Walter Bowman was the appraiser for the Bolanowskis; Mr. Morgan had indicated to him verbally that if the dwelling was brought up to current codes, the repairs would be approved if performed within a specified time frame; Mr. Morgan did not indicate to him that the residence could not be repaired; both appraisers had agreed to an appraisal to repair the fire damaged building in the amount of 537,721.00; a building permit application had been-submitted and then rejected; Mr. Bowman would not sign the appraisal because the application had been rejected. Ms. Evelyn Hutcherson, Code Enforcement Officer, reported that Mr. Morgan had discussed the Bolanowski residence with Thomas Kleving, Building Inspector and herself prior to making a decision that the building be dismantled; the City had been unsuccessful in getting responses from the insurance agent and owner as to properly securing the building; the building was further damaged by vandals and vermin; an inspection was made by Thomas Kleving, Building Inspector, David Sargeant, Fire Chief for the Cape Canaveral Volunteer Fire Department, and herself. She explained that the inspection revealed the following: The building was not tied down; water damage to the roof deck; rot in wood, soffit, and facia on the north side of the building; eaves were water damaged; 5 foot space in ply board in rear of building; termite infestation on the south side of building five feet above grade; soffit had critters, soffit dry rotted and water damage; frame on front door dry rotted and infested with termites; frame pulled away from door; termites in door frame at kitchen entrance; evidence of rats and mice in electrical panel box; ceiling boards not nailed securely; interior frame dry rotted; electrical panel box without protective closer; wood missing on south side of house; and some areas of felt painted the same color as the house. She showed a video of that inspection and advised that the Building Official's determination had not been strictly fire damage. His determination was based on the condition of the residence as a result of the aforementioned inspection. After the Board members and audience viewed the video, Ms. Hutcherson further testified that research had revealed the following: the property had been placed on the Brevard County Tax Rolls in 1962; a permit was issued on May 26, 1964 for a carport to the previous property owner (s) by Mr. Morgan, Building Official; the carport had been enclosed at a later date without a permit; according to the information on the tax rolls, the original house Zoning Board of Adjustment August 5, 1991 Page 3 of 7 had consisted of 892 square feet; there was more than one step in the residence and to the best of her knowledge, there was not one room close to 17 feet wide in that residence. She stated that the Building Department and Mr. Morgan had not contended, believed, or conveyed" that the structure had been damaged more that 50% by fire. It was their contention that the building through infestation, vandalism, and fire at the time the building permit was denied, was more than 50% damaged and the structure could not be re -built according to current standards. It was her opinion that the Bolanowskis could have a nicer, more liveable area in a floor plan that would meet current standards. The stenographer swore in Ms. Evelyn Hutcherson. tls. Hutcherson stated that the facts she had previously given were the truth to the best of her knowledge and belief. She further testified that she had no knowledge of Mrs. Bolanowski's medical history; the Bolanowskis were never cited for non - permittinq repairs; from her observation, some structural work would need to be replaced due to infestation of termites; and that it had been determined that the rodents and vandalism had further deteriorated the building after the fire. An assessment of the fire damage made by Mr. James Sloan, P.E., for Briley, Wild & Associates, dated June 4, 1991, was entered (Exhibit D) . The stenographer swore in Mr. Sloan. He testified that there had been heat damage and structural damage from the fire; wall panels and wall covering were heat damaged; the wood roof beam was severely damaged; there was significant termite infestation in the wood studded walls; it was possible that the floor and roof framing may have been damaged. He suggested that the wood roof beam be tested and/or replaced. It was his opinion that the appraised value of the 1260 square foot house prior to the fire would be valued not more than S30.00 per square foot and that the fair market value of the house would have been $37,800. The stenographer swore in Mr. Walter Bowman, P.E. and the Bolanowski's Engineer. Mr. Bowman read a report he wrote dated November 6, 1990 regarding the Bolanowski residence (Exhibit. E). It was his opinion that the cost of repair would very likely exceed $50,000 dollars; the construction and configuration of a dwelling unit that age would not justify reconstruction; the circumstances and strain which were placed on the roofs were beyond the normal conditions for which that type of roof was designed; the repairs which would need to be made to the structure, its finishes, and all of the utilities extending to reconnecting the roof joists and sheathing, were exceeded only by the difficulty of adequately removing the pervasive odors from all of the materials that would remain in the structure. He suggested that serious consideration be given to the reconstruction of a new residence for the owner within the foreseeable future. He advised that the damage exceeded more that 50% percent of its fair market value. Chairman Lloyd called a 15 minute recess at 10:13 P.M. to allow the stenographer to install new paper into her machine. The meeting reconvened at 10:26 P.M. Ms. Hutcherson submitted the complete package along with the application for this Administrative Appeal Request (Exhibit F). Mr. Fannin reviewed the exhibit and obiected to all documents contained in the exhibit dated after March 29, 1991. Ms. Hutcherson read a letter signed by Mr. Bolanowski. dated April 22, 1991,(Exhibit G), advising the City of the events that had developed because of the physical condition since the fire. The letter stated that the Bolanowskis had hoped to rebuild their home. However, since the City had rejected the application for a permit to do so, their emotional response was one of great Zoning Board of Adjustment August 5, 1991 Page 4 of 7 disappointment si that the buildina they should take demolition of the ice they had lived there for 25 years and knowina was too unsafe to rebuild, they had realized that the position of the City and comply with the building. Ms. Hutcherson advised that the City had hired Geiaer, Geiger & Associates, to ascertain another appraisal of the property (Exhibit H). She testified that Mr. Geiger's appraisal had advised that as per Mr. Morgan, estimates had been received to build new, to code, a 1,200 + /- square foot structure similar to the subject; the estimates had ranaed from $32,500 to $40,000 which included removal of the existing structure; per Mr. Morgan, the structure was currently over 50% destroyed and could not be rebuilt; current zonina required the footprint of the structure to be setback further into the site; estimates had been received to rebuild the existing structure to code; the estimates had ranaed from $28,000 to $40,000; due to the fact that it would cost the same to repair the building as it would to remove and replace it with one of equal utility, and that the structure was uninhabitable and unsafe, it was his conclusion that the "as is" value of the improvements were $0; many of the site improvements would become useless with the removal of the present building; the contributory value of the site improvement "as is" was estimated to be less than prior to the fire. Attorney Fannin objected to Exhibit H. Ms. Hutcherson summarized the City's opinion as follows: The City's concern of the Bolanowski residence was not solely based on the damage by the fire; the City's concern was the condition of the building caused by termite infestation, vandals, and other items; it was clearly evident by the appraisals that Mr. Fannin had objected to, that Mr. Morgan was correct in his decision not to issue the permit to repair the fire damaae since his determination had been upheld by other competent appraisers. Chairman Lloyd asked if anyone in the audience had any comments for discussion. Being none, Attorney Fannin nave his closing statement. Attorney Fannin questioned whether the Building Official, under the City Ordinances and Zonina Reaulations, had the authority to order a residence demolished upon a finding that the cost to repair it would be in access of 50% of its fair market value. Attorney Fannin read and commented on Section 643.01 (b) (c) and Section 643.05 (b) (d) of the Cape Canaveral Zonina Regulations. He advised that the non - conforming structure had been arand fathered. He stated that Nationwide Mutual Fire Insurance Company did not believe that the residence needed to be razed and reconstructed; the residence was not anywhere near being a total loss within the meaning of the law; there was a conflict in facts about whether or not the residence could be repaired; and that Nationwide Mutual Fire Insurance Company did not believe that the City ordinances empowered the Building Official to declare that the Bolanowski residence must adhere to current setback requirements. Attorney Fannin advised that if the Board ruled that the house was more than 50% percent damaged within the meanina of the City Ordinances, Nationwide was prepared to scrape -off and rebuild the house for the Bolanowskis in the existina configuration, which in his opinion, was what the Bolanowskis wanted. He disputed whether Mr. Morgan went about the situation in the proper way. Attorney Fannin briefed the Board reaardina a recent case from the First District Court of Appeals, before Judge Zeamer, Irbine vs. Duval County Planning Commission. Attorney Fannin requested that the Board rule that homeowners of 6920 Ridgewood Avenue had the right to repair or reconstruct their single family residence structure on the same foundation foot print as existed immediately before the fire of October 17, 1990 in accordance with Section 643.05(d) of the Cape Canaveral Zoning Regulations; that the Building Official did not support his Zoning Board of Adjustment August 5, 1991 Page 5 of 7 findings with sufficient facts in his order denying the permit application to repair the fire damage because the application was not detailed and factual enough to comply with the requirements of law in accordance with the decision by Judge Zeamer; that the structure be repaired and the permit should be issued forthwith. He further requested that if the Board ordered that the structure be demolished, the Section 643.05 (d) of the Cape Canaveral Zoii i iig Regulations applied to grand fathering the home owner so that he could build his house back the way it was on the same footprint. Attorney Fannin advised that Nationwide Mutual Fire Insurance Company had attributed approximately $23,000 dollars to the fire damage. It was Mr. Laws opinion that Section 643.05 of the Cape Canaveral Zoning Regulations was faulty. Discussion followed. It was his opinion that the Building Official's decision to deny the permit application to repair the fire damage, with the guidelines he had to follow was proper. The Board members discussed Sections 635.01 and 643.05 of the Cape Canaveral Zoning Regulations. Mr. Rutte reviewed that Nationwide Mutual Fire Insurance Company was prepared to scape -off and rebuild the house. It was his opinion that if the Bolanowski's had a new house built with greater square footage in compliance with City codes, then every one would be better off. Attorney Severs advised the Board of the history and crave his interpretation of Section 643.01 (a)(b) and (c) of the Cape Canaveral Zoning Regulations. He advised that the regulation had been amended by Ordinance 18 -83. He noted that the amendments did not involve setbacks in an R -3 Zone. Discussion followed. Chairman Lloyd advised that if the City had intended to bring their structures into compliance with current codes, and if the Board used the interpretation of Section 643.05 (d) of the Cape Canaveral. Zoning Regulations to rule in this case, then the City had excluded single family residences from bringing all structures into compliance. Discussion followed. The Board members reviewed a letter from Mr. Lamar Russell, Chairman of the Planning and Zoning Board, which explained that it was the Planning & Zoning Board's intent when they formulated Section 643.05 (b) of the Cape Canaveral Zoning Regulations, that any structure destroyed more than 50% percent of its fair market value at time of destruction, shall not be rebuilt except according to present codes. The Board members discussed the possibility of granting a Variance and waiving the fees for a Variance in this case. They concurred that a hardship did exist. Chairman Lloyd granted a five minute recess to allow Attorney Fannin to consult with his clients and Mr. Bowman. After the recess, Attorney Fannin advised that Nationwide Mutual Fire Insurance Company did not agree with Mr. Bowman on behalf of the Bolanowskis. They agreed to meet again within ten days to try and make an agreement based on an application for a Variance as the Board suggested. Attorney Fannin advised that if they could not agree to the above, then they would request that the Board reconvene and carry out whatever decision(s) they wished to make. Ms. Rigerman moved to continue Request No. 91 -4 to an undetermined date and time. Mr. Laws seconded the motion. Notion carried unanimously. Zoning Board of Adjustment August 5, 1991 Page 6 of 7 There being no further business the meeting was adjourned at 12:15 P.M. Approved this day of 1991. Chairman Secretary Zoning Board of Adjustment August 5, 1991 Page 7 of 7 0 There being no further business the meeting was adjourned at 12 : 15 P .M. Approved this Z day of }Q , 1991 . 444-1--e-e Chairman Secretary Zoning Board of Adjustment August 5, 1991 Page 7 of 7