*** Member Failla disclosed that he had contacted the traffic engineer for the applicant.

Transcription

1 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 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 Town Attorney Gougelman advised that this Variance Application was continued from the November 26, 2007 Special Meeting. He then read: Variance Application 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

2 Special Meeting January 17, 2008 Town Attorney Gougelman advised that this Special Exception Application was continued from the November 26, 2007 Special Meeting. He then read: Special Exception Application 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 Town Manager Bursick commented on the request for a continuance until February 7 th or the 21 st, 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 7 th 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 7 th 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, The meeting was duly adjourned at 6:50 p.m. ATTEST: Robert Schaefer, Chairman Lenore R. Milan, CMC, Town Clerk 2

3 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 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 Atlantic Street, Melbourne Beach, FL 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. ATTEST: Robert Schaefer, Chairman Marion Noe, Deputy Town Clerk

4 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.

5 Regular Meeting February 21, 2008 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 and noted that it was continued from the January 17, 2008 Special Meeting. Variance Application 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 was continued from the January 17, 2008 Special Meeting. He then read: Special Exception Application 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. 2

6 Regular Meeting February 21, 2008 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 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, Vice Chairman Wildman advised that he had received several letters, had numerous s 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, 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. 3

7 Regular Meeting February 21, 2008 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, 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 4

8 Regular Meeting February 21, 2008 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 26 th 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, 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 5

9 Regular Meeting February 21, 2008 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, 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. 6

10 Regular Meeting February 21, 2008 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. 7

11 Regular Meeting February 21, 2008 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. 8

12 Regular Meeting February 21, 2008 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. 9

13 Regular Meeting February 21, 2008 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. 10

14 Regular Meeting February 21, 2008 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. 11

15 Regular Meeting February 21, 2008 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. 12

16 Regular Meeting February 21, 2008 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 , 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. 13

17 Regular Meeting February 21, 2008 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. ATTEST: Robert Schaefer, Chairman Lenore R. Milan, CMC, Town Clerk 14

18 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 and Variance 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 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 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 Atlantic Street, Melbourne Beach, FL ***

19 Regular Meeting March 20, 2008 Chairman Schaefer advised that the next item on the agenda was Variance Application Variance Application 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 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 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. 2

20 Regular Meeting March 20, 2008 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 Coastal Construction Variance Application 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 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 Chairman Schaefer read the Coastal Construction Variance Application 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 feet seaward of the Coastal Construction Control Line, with exception of dune cross-over, as shown on R.N. Packard D 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. 3