DEPARTMENT OF DEVELOPMENT SERVICES BOARD OF ADJUSTMENT BRIEFING For Meeting Scheduled for December 15, 2010 Agenda Item C2

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1 DEPARTMENT OF DEVELOPMENT SERVICES BOARD OF ADJUSTMENT BRIEFING For Meeting Scheduled for December 15, 2010 Agenda Item C2 REQUEST: Front setback and expansion of nonconforming structure to allow construction of a mansard on a flat roof for property within CN Neighborhood Commercial zoning district CASE #: Date of Briefing: December 1, 2010 Report Preparation Drafted: Daniel Connor, AICP, City Planner Reviewed by: Anthony Caravella, AICP, Director of Development Services Comments by: Steve Lewandowski, Utilities Owner/Agent: Project/Location: William D. Kabboord, Trustee, Owner/David Kabboord, Agent Ocean Realty Office/3201 North Atlantic Avenue Area: 36,600 square feet (0.84 acres) + Land Use/Zoning: General Commercial/CN Neighborhood Commercial zoning district Specific Request: Variance to City of Cocoa Beach Land Development Code Table 4.01A Minimum Yard Requirements to allow expansion of a nonconforming structure by changing a portion of the existing structure and roof which is located within a required front yard from a flat roof to a mansard roof, at an east front setback of 36.0 feet, (from edge of mansard/overhang), instead of the minimum required front setback of fifty (50) feet/47.5 feet to edge of mansard/overhang. A. Summary of Request The subject property ( Property ) is a corner lot located at the northwest corner of Manatee Lane and North Atlantic Avenue (SR A1A). The Property has a CN zoning district designation. A vicinity/location map is presented as Attachment A. A one story commercial building/structure, constructed in 1962, with accessory parking exists on the property. The primary structure encroaches approximately 10 feet into the required front yard (40.0 foot front setback vs. minimum 50.0 foot front yard setback), and the roof overhang extending from the primary structure encroaches 14.0 feet into the east front yard. Applicant recently filed request [Building Permit application # ] seeking to modify the roof over the structure by adding a mansard feature to the existing flat roof. This mansard feature would be located on that portion of the existing roof that encroaches into the required front yard. Given the new roof feature would increase the height and mass of a nonconforming structure, staff could not approve the permit application. K:\userdata\SHARED\Building Department\CASES\2011\2011November(2010)\ Variance Front Setback 3201 N Atlantic\BOA Staff Ocean Realty Variance ( ).docx

2 B. Roof Permit Review During review of the building permit application, staff determined that the existing structure, commonly known as the Ocean Realty building, encroaches into the required front yard. Drawings including the survey which illustrate this situation are presented in Attachments B and C. As written above, the Property lies in the CN zoning district. The existing structure is located approximately 15 feet from Manatee Lane, approximately 40 feet from North Atlantic Avenue, and approximately 15 feet from the North property line. (Please see the survey in Attachment C.) In this location and CN zoning district, the minimum yard requirements (from Land Development Code Table 4.01A) are: Front Yard abutting Manatee Lane 10 feet Front Yard abutting Atlantic Avenue 50 feet Side Yard abutting North property line 10 feet The applicable Land Development Code (LDC) citation, which relates to this request is Section 3-23A, Nonconforming structures, which reads, No such non- residential structure shall be enlarged, increased in size, or altered in a way which increases its nonconformity. Because the building (to which the mansard would be added) encroaches into the minimum required front yard, adding a mansard to the existing flat roof would increase an existing nonconformity. C. Findings of Fact for Review Prior to the Board approving any variance, the Board must find the application meets the following variance criteria, pursuant to Land Development Code (LDC) Section 5-52: 1. The board of adjustment is empowered, under the section of the land development regulations described in the application to grant the variance. The Applicant requests a variance to Land Development Code (LDC) Table 4.01A, which describes allowances for yards (front, rear, sides), and structure placement in any district, including the CN zoning district. Pursuant to LDC Section 1-42C2, the Board of Adjustment has the power to authorize upon appeal in specific cases such variance from the terms of these land development regulations. Therefore, the Board may hear the request. 2. Special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, structures or buildings in the same district. The Applicant s Narrative is presented as Attachment B to this briefing. The Applicant writes, My building was built in 1962, and complied with existing building codes at the time. Additionally, he writes, I am not increasing the square footage of my building. The Applicant has not identified any kind of hardship or special circumstance; however, the portion of the building where the modified roof is proposed was constructed prior to 1962, two years prior to the establishment of the City s zoning ordinance (Ordinance No. 194 adopted on November 12, 1964). The 50 foot setback (front yard) from North Atlantic Avenue was established, and changed from 25 feet, by adoption of Ordinance No. 660 on July 19, Avenue -2-

3 If a special circumstance exists, it may be the existence of the structure constructed compliant with the required setbacks at the time of construction. In addition, the Applicant does not propose any additional encroachment into the required front yard the need for the variance is to allow a new roof line with an increase in height on the existing nonconforming structure. If the Board decides that this is a special circumstance, then the Board may decide that this criterion is satisfied. 3. The literal interpretation of the provisions of the land development regulations would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of the land development regulations. The Applicant did not address this criterion; thus, without additional evidence, the Board may decide that the Applicant has not satisfied this criterion. The Applicant did identify that there would be no further encroachment into the required yard, and therefore the requested improvement is an upgrade to a modern design which is a typical improvement for commercial facilities in the City. After review, the Board may decide that the proposed improvement is a typical upgrade for this type of commercial facility, and so a literal interpretation of the regulations would deprive the Applicant of commonly enjoyed rights. 4. The special conditions and circumstances do not result from the actions of the applicant. The building construction was compliant with front yard requirements from Atlantic Avenue until 1981, at which time the minimum required front yard from North Atlantic Avenue was changed from 25 feet to 50 feet. Further, the Applicant does not propose additional encroachment into the required front yard, and the proposed improvement is minimal. As explained in paragraph 2, above, if the Board believes that a special condition exists, then the Board may decide that the Applicant has satisfied this criterion. 5. Granting the variance will not confer on the applicant any special privilege that is denied by the land development regulations to other lands, structures, or buildings in the same district. The Applicant has not addressed this criterion and has not identified any kind of hardship or special circumstance. It appears, therefore, that granting the variance may confer a special privilege upon the Applicant. However, as written in paragraph 3, above, the Applicant did identify that there would be no further encroachment into the required yard, and therefore the requested improvement is to upgrade and modernize the roof design which is a typical improvement for many commercial buildings in the City. Also, if the Board decides that a special circumstance exist because the front yard requirements were modified approximately 20 years after construction of the building, then the Board may decide that granting the variance will not confer a special privilege and the criterion is satisfied. Avenue -3-

4 6. The reasons set forth in the application justify granting the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building, or structure. In this situation, the Applicant does not propose any additional encroachment into the required front yard, and the need for the variance is to allow a new and modified roof design with a minimal increase in height on the existing nonconforming structure. Therefore, this is a minimum variance because there is no proposed additional encroachment into the required front yard. After review, the Board may decide that this criterion is satisfied. 7. Granting of the variance will be in harmony with the general purpose and intent of the land development regulations and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare. The Applicant s evidence does not address this aspect of the criteria. It will be up to the Board to determine if the act of changing the roof design - by adding a mansard to the existing flat roof - is such that it will not harm the neighbors or be out of character with the other properties in the neighborhood. As written above, the proposed improvement is typical for these types of commercial facilities. No additional encroachment into the front yard is proposed. D. Public Comment As of the date of this staff report, this office has not received public comment: E. Summary and Staff Recommendation For variances, staff does not recommend approval or denial, only identifies if the application has addressed the required criteria for granting a variance. The Board must consider and find that any variance approval will be the minimum variance, will be in harmony with the general purpose and intent of the development regulations, and would not harm the neighborhood. The Applicant s application and narrative did not address all of the variance criteria. The Applicant has not identified a special circumstance or problem with the land, but the existing location of the structure (within the required front yard) is a special circumstance that may be considered by the Board. The variance petition application does not address the minimum variance. However, the Applicant does not propose any additional encroachment into the required front yard, and the need for the variance is only to allow a modified roof design with a minimal increase in height on the existing nonconforming structure. In this case, and despite lack of a complete narrative, the Board may decide that a special circumstance exists because the structure with encroachment existed zoning compliant at the time of building construction. In addition, the 50 foot setback (front yard) required from North Atlantic Avenue was established, and changed from 25 feet, by adoption of Ordinance No. 660 on July 19, 1981, approximately 20 years after construction of the building. The Board may decide that granting the variance will not confer a special privilege, and will be in harmony with the general purpose and intent of the development regulations, and not harmful to the neighborhood. In this case, the Board may decide that it is possible to grant the Applicant s request. Avenue -4-

5 If the Board decides to approve the variance, staff offers the following conditions for consideration: 1. Variance to allow expansion of a nonconforming structure, which lies at an east front setback of 36 feet, to permit a roof line modification identified in building permit application # , is APPROVED. 2. Applicant must obtain building permit within two years of the date of this Decision, or the variance will expire. 3. This variance approval does not grant the Applicant an undeniable right to obtain a building permit. All other Federal, State and Local regulations remain in full force and effect. Legal Description A portion (not including leased area to Trombley s Furniture) of the East 50 Feet of Lot 9 and all of Lots 10, 11, and 12, Block 55, COCOA OCEAN BEACH SUBDIVISION, according to the Plat thereof as recorded in Plat Book 10, Page 16, Public Records of Brevard County, Florida. Total Parcel Area: 36,600 square feet +; Parcel ID #: CI Attachments A. Vicinity/Property Location Map & Aerial of Property B. Application Documents C. Excerpts of Survey and Location of Proposed Roof Modification D. Staff Comments E. Sample Motion Forms Copies David Kabboord 3201 North Atlantic Avenue Cocoa Beach, FL (dwkabboord@cfrl.rr.com) Avenue -5-

6 N ATLANTIC AVENUE SUBJECT PROPERTY Parcel ID # CI Properties located at 3201 North Atlantic Avenue Note: Map not to scale North ATTACHMENT A (1 of 2) Vicinity/Property Location Map

7 AREA OF BUILDING SUBJECT TO VARIANCE Source: Brevard County Property Appraiser photograph circa January 2010 ATTACHMENT A (2 of 2) Aerial of Property

8 ATTACHMENT B (1 of 6) Application Documents

9 ATTACHMENT B (2 of 6) Application Documents

10 ATTACHMENT B (3 of 6) Application Documents

11 ATTACHMENT B (4 of 6) Application Documents

12 ATTACHMENT B (5 of 6) Application Documents

13 ATTACHMENT B (6 of 6) Application Documents

14 LOCATION OF PROPOSED ROOF MODIFICATION ADD MANSARD TO FLAT 40 +/- Area (Highlighted) of Roof Line Modification ATTACHMENT C (1 of 1) Excerpt of Survey & Area of Roof Line Modification

15 From: Sent: To: Subject: Steven Lewandowski Wednesday, December 01, :37 AM Tony Caravella RE: Variance Application for 3201 North Atlantic Avenue Tony Plan approved as sufficient with no additional conditions required. Does not effect any utilities (sewer and reclaimed water) If you have any questions or concerns, please feel free to contact me at Sincerely, Steve Lewandowski Utilities Inspector ATTACHMENT D (1 of 1) Staff Comments (Water Reclamation Utilities)

16 APPROVAL: In Case No , based on the testimony presented and evidence of record, I move that the Board find that the Board has jurisdiction to grant or deny this application and find that the application for front yard setback and expansion of a nonconforming structure in CN Neighborhood Commercial zoning district at 3201 North Atlantic Avenue, has demonstrated that all standards required by Land Development Code Section 5-52 to grant a variance have been met; and approve the request for a variance to Land Development Code Table 4.01A, to allow expansion of a nonconforming structure by changing a portion of the existing structure and roof which is located within a required front yard from a flat roof to a mansard roof, at an east front setback of 36.0 feet, (from edge of mansard/overhang), instead of the minimum required front setback of fifty (50) feet/47.5 feet to edge of mansard/overhang, subject to the conditions on Page 5 of the staff report. DENIAL: In Case No , based on the testimony presented and evidence of record, I move that the Board find that the Board has jurisdiction to grant or deny this application and find that the application for front yard setback and expansion of a nonconforming structure in CN Neighborhood Commercial zoning district at 3201 North Atlantic Avenue, has not satisfactorily demonstrated that all standards required by Land Development Code Section 5-52 to grant a variance have been met and hereby deny the request. The specific variance standard(s) that has (have) not been met is (are): Standard #, because. Standard #, because. Standard #, because. ATTACHMENT E (1 of 1) Sample Motion Forms