March 24, 2005 AGENDA ITEM Item 03 [ ] Ordinance [ ] Resolution [ ] Budget Resolution [ X ] Other

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1 March 24, 2005 AGENDA ITEM Item 03 [ ] Ordinance [ ] Resolution [ ] Budget Resolution [ X ] Other Department: Growth and Resource Management Division: Building and Zoning Subject: County Council determination as to whether the City of New Smyrna Beach has standing to file an appeal on variance case V Appeal of the PLDRC's decision to APPROVE the Variance case V Alex Ford, Attorney for Owner, Salomon Tivoli, Owner. Account Number(s): N/A Total Item Budget: N/A File Number: VC A Staff Contact(s): Mary Robinson, BuildingandZoning Director Phone: (386) ext Summary/Highlights: Time Certain: 9:05 a.m. APPLICANT/OWNER: Frank Roberts, City Manager, for the City of New Smyrna Beach, Florida REQUEST: To APPEAL the decision made by the Planning and Land Development Regulation Commission at its public hearing of January 11, 2005 regarding Variance Case V LOCATION: The property is located on the north side of State Road 44 at its intersection with Fran Dr. and is adjacent to the City of New Smyrna Beach Recommended Motion: Staff recommends, initially, that Council find the City of New Smyrna Beach lacks standing to appeal the PLDRC approval of Variance case V ; if Council determines that the City of New Smyrna Beach does have standing to appeal, staff's recommendation is that Council uphold the decision of the PLDRC approving Variance case V Montye Beamer Director Growth and Resource Management OMB Legal Matt Greeson County Manager's Office Mary Robinson Director Building and Zoning Approved as to Budget Requirements Approved as to Form and Legality Approved Agenda Item For: March 24, 2005 Council Action: Modification: [] Approved as Recommended [] Approved With Modifications [] Disapproved [] Continued Date:

2 Summary/Highlights Continued: municipal limits. LAND USE DESIGNATION: Commercial DISTRICT #: 3 PARCEL SIZE: ± 0.56 acres RULES OF PROCEDURE: The request for appeal was properly filed in accordance with Article X, Section of the Uniform Zoning Ordinance (80-8, as amended). The appeal of the decision of the PLDRC shall be on the record made before it. A copy of the minutes of the PLDRC public hearing are attached, as is a copy of the staff report submitted to the PLDRC. BACKGROUND/DISCUSSION: Prior to the County Council hearing the appeal on the variance approval, the County Council must determine that the City has standing to file an appeal (see attached memo from County Legal Dept.) Should the Council find that the City does have standing to file an appeal, the hearing for the variance case will proceed. The City is appealing the six variances granted to the property owner, Salomon Tivoli, by the Planning and Land Development Regulation Commission. The variances are necessary to redevelop the site as a commercial use (restaurant). The subject property is B-4C(General Commercial/Thoroughfare Overlay Zone)zoning classification. There is a structure on the property that was once used as a single family residence, and considered a nonconforming use. The dwelling has been vacant for more than six months, therefore the nonconforming use has been abandoned (Sec Abandonment of nonconforming use of premises). PLANNING and LAND DEVELOPMENT REGULATION COMMISSION DECISION: APPROVAL of this application as presented by staff by unanimous vote. Staff Recommendation: Approval of 5 of the 6 requested variances as follows: * Variance to Section , Minimum Yard Size, (42.5 feet in lieu of the required 75 feet); * Variance to Section , Landscape Buffer Requirements, (55 feet from the centerline of the State Road 44 in lieu of the required 70 feet); * Variance for an east side yard abutting commercial zoned property (9 feet in lieu of the required 10 feet); * Variance for a east side yard abutting residential zoned property (7 feet in lieu of the required 35 feet) for an existing building on B-4C (General Commercial/ Thoroughfare Overlay Zone) zoned property; * Variance to Section (f) Landscape Buffer Area, to allow a stormwater area in the required landscape buffer along the north and east property lines; * Variance to Section (a) Table I, Landscape Buffer Requirements, subsection 5c (29 foot in lieu of the required 30 feet) on the north property line; subject to the condition that the applicant shall comply with the non-residential design requirements of Section 827 of the Zoning Ordinance as amended, including the City of New Smyrna Beach s Corridor Overlay Zone requirements, which are not negated or modified by this variance approval. And Denial of a Variance to Section (a) Table I Landscape Buffer Requirements, subsection 5c (10 ft. in lieu of the required 30 ft.) on the east property line for a commercial development on B-4C (General Commercial/Thorougfare Overlay Zone) zoned property.

3 ATTACHMENTS: 1. Zoning Maps 2. Appeal Request 3. Rendition Letter 4. Zoning Staff Report 5. Original Request and Site Plan 6. Revised Comments from New Smyrna Beach 7. January 11, 2005 PLDRC Minutes 8. County Legal Department Memo 9. Notice of Public Hearing

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9 CASE NO. V APPLICANT: REQUEST: Lisa Bosch, Attorney for Owner Salomon Tivoli, Owner A Variance to Section , Minimum Yard Size, (42.5 feet in lieu of the required 75 feet); a Variance to Section , Landscape Buffer Requirements, (55 feet from the centerline of the State Road 44 in lieu of the required 70 feet); a Variance for an east side yard abutting commercial zoned property (9 feet in lieu of the required 10 feet); a Variance for the east side yard abutting residential zoned property (7 feet in lieu of the required 35 feet) for an existing building; a Variance to Section (f) Landscape Buffer Area, to allow a stormwater area in the required landscape buffer along the north and east property lines; a Variance to Section (a) Table I, Landscape Buffer Requirements, subsection 5c (29 feet in lieu of the required 35 feet) on the north property line; and a Variance to Section (a) Table I, Landscape Buffer Requirements, subsection 5c (10 feet in lieu of the required 35 feet) on the east property line for a commercial development on B-4C (General Commercial/ Thoroughfare Overlay Zone) zoned property. CURRENT ZONING: B-4C. The purpose and intent of the B-4C General Commercial / Thoroughfare Overlay Zone, classification is to encourage the development of intensive commercial areas providing a wide range of goods and services, and locate adjoining at least one major collector or arterial road. The B-4 classification is intended to be applied to existing or developing strip retail areas which, because of the nature of existing development, are not appropriate for inclusion in the B-3 Shopping Center classification. COMPREHENSIVE PLAN DESIGNATION: Commercial PARCEL NUMBER: PARCEL CHARACTERISTICS: ± 0.56 acres parcel containing a single-family dwelling. G:\ADMIN\2005\Final Cases\V Bosch.Tivoli.doc Page 1 of 5 January 11, 2005, PLDRC Mtg. (Nagle)

10 LOCATION: The property is located at on the north side of SR 44 at its intersection with Fran Dr., adjacent to the City of New Smyrna Beach. SURROUNDING ZONING AND LAND USE: North R-4. Single-Family dwellings. East B-2C and R-4. Restaurant and Single-Family dwelling; further east is a motorcycle dealership. South New Smyrna Beach State Road 44 then an incorporated area developed with B-3 and B-5. a shopping center and restaurant. West B-4C. Fran Drive then a mixed commercial/residential building. BACKGROUND: At the December 14, 2004, Planning Land Development and Regulations Commission (PLDRC) meeting, the PLDRC granted a rehearing of this variance request to reconsider information relevant to the case. The PLDRC denied the original variance request presented by Mr. Tivoli at their October 12, 2004 meeting. In response to the granting of the rehearing request, the applicant, Lisa Bosch, submitted additional enclosed information and changed one original variance request. The applicant is now requesting a Variance to Section (a) Table I, Landscape Buffer Requirements, subsection 5c (29 feet in lieu of the required 30 feet) on the north property line. The applicant is also requesting approval of the six other previously requested variances. To implement her changed variance, the applicant is proposing to reduce the number of restaurant seats from 24 to 20 seats, to reduce the number of proposed parking spaces from 14 to 10 spaces and to increase the width of the landscape buffer along the north property line from 10 feet to 29 feet in lieu of the required 30 feet. On December 16, 2004, the County Council adopted Ordinance This ordinance made numerous changes to the Zoning Ordinance (Ordinance 80-8 as amended) including reducing the required width of landscape buffers (from 35 feet to 30 feet) between B-4 (General Commercial) and R-4 (Urban Single-Family Residential) zoned properties. The adopted landscape buffer change applies to the subject property. The adoption of Ordinance enables the applicant, to take advantage of new buffer requirements. Along the north and east property lines, adjacent to R-4 zoned property, buffer width requirements are now reduced from 35 feet to 30 feet. G:\ADMIN\2005\Final Cases\V Bosch.Tivoli.doc Page 2 of 5 January 11, 2005, PLDRC Mtg. (Nagle)

11 ANALYSIS: The applicant is requesting seven zoning variances to permit a single-family dwelling to be renovated into a restaurant. A restaurant is a permitted principal use in the B-4C zoning classification. According to the applicant s information, the proposed restaurant will consist of a total gross floor area of 1468 square feet (1240 sq. feet existing and a 228 square foot addition) and provide 20 seats. The proposed addition is located to the rear-center part of the building (see enclosed plan). The proposed renovations also include converting a carport, utility room and Florida room to restaurant use. These areas are proposed to be enclosed without increasing the overall building footprint. According to the Property Appraiser s Parcel Records, the existing dwelling was built in 1955, before the adoption of County zoning regulations. The existing structure is nonconforming with regards to current commercial building setbacks. The two variances proposed to Section 821, Thoroughfare Overlay zone requirements, address the nonconforming status of the property due to the imposition of the required 75-foot building setback and 35-foot landscape buffer regulations. These two variances are not related to the owner s planned restaurant use. The existing building is set back 42.5 feet from the south lot line abutting SR 44. The front yard setback and landscape buffer requirement of the Thoroughfare Overlay Zone will apply to the property regardless of its use. The net effect of granting the landscape buffer variance is to reduce the width of the buffer from 50 feet to 35 feet along SR 44. The building cannot be altered to comply with the landscape buffer requirements along SR 44. If the right-of-way of SR 44 were 140 feet (or more) in width in front of the property, only a 35-foot wide landscape buffer would be required. The building has non-conforming east side yard setbacks. The requested east side yard variances abutting commercial zoned property (9 foot in lieu of the required 10 feet) and abutting the residential zoned property (7 feet in lieu of the 35 feet required) are also needed due to the building s placement on the property. Moving or altering the building to comply with the east side yard setback requirements is impractical. The remaining landscape buffer variances are being requested by the applicant to assist with the conversion of the dwelling to a restaurant. The applicant s plan shows a stormwater area within 10 feet of the east and north property lines as well as one offstreet parking space, in the north buffer. Section (f) of the Zoning Ordinance does not permit stormwater areas to be located in any buffer area. Section (a) does not allow any encroachment into a buffer except for a driveway. The recently amended zoning ordinance requires thirty (30) foot wide landscape buffers along the north property line and that part of the east property line (northerly 75 feet), that abuts residential zoned property. The requested variance to Section (f) Landscape Buffer Area is needed to permit the stormwater area to be located in landscape buffers along the north and east property lines. G:\ADMIN\2005\Final Cases\V Bosch.Tivoli.doc Page 3 of 5 January 11, 2005, PLDRC Mtg. (Nagle)

12 In addition, the applicant is proposing the construction of one parking space, traffic circulation improvements, and a concrete storm water spillway within the required landscape buffer along the north property line. (See enclosed plan) As proposed by the applicant these improvements start 29 feet from the north property line. Sections and of the Zoning Ordinance set minimum off-street parking requirements. Sit-down restaurants require one parking space for each two seats. The applicant is proposing a 20-seat restaurant with 10 parking spaces. Based on a 20-seat restaurant, a minimum of 10 parking spaces is required. However, if the property were being developed for a general office or retail sales use only 5 to 7 parking spaces would be required. Due to the relatively small size of the property and applicable building setback and landscape buffer requirements, commercial property development is difficult without approval of zoning variances or relocating the existing building on the property. Both the non-residential design standards of Section 827 of the Zoning Ordinance and the adopted municipal gateway corridor standards of the City of New Smyrna Beach s Corridor Overlay Zone (COZ), Section , apply to the property. A 65-foot wide landscape buffer along the SR 44 property frontage will apply. Along the other property perimeters, minimum 25-foot wide landscape buffers are required by City COZ regulations. City COZ requirements also prohibit direct driveway property access to SR 44. Property owners, owning property located within New Smyrna Beach, may apply for City zoning variances from the City Board of Adjustment. The review criteria and grounds for approval and denial of City and County zoning applications are similar. DETERMINATION OF HARDSHIP: Section 1003 of the Zoning Ordinance includes the criteria for review of zoning variance applications. Staff finds that due to site and building location constraints special circumstances and conditions exist that are unique to this property. The existing principal structure was built in 1955 before County zoning regulations applied. The property and building have non-conforming building setbacks and landscape buffers. Meeting these current requirements is impractical and would cause a hardship on the applicant. Approval of some of the applicant s requested variances would resolve the existing nonconforming building and landscape buffer setbacks. For these reasons, Zoning staff supports approval of the applicant s requested variances to Section 821 of the Zoning Ordinance and to the side yard requirements of the B-4 zoning classification. The applicant is proposing construction of a stormwater area that encroaches within the currently required 30-foot wide landscape buffers along the north and east property lines. Due to site constraints and the relatively small size of the property, moving the proposed stormwater area out of the buffers would require the site to be redesigned and reduce the number of parking spaces. Staff supports approval of the variance to Section (f), which will permit site design flexibility. G:\ADMIN\2005\Final Cases\V Bosch.Tivoli.doc Page 4 of 5 January 11, 2005, PLDRC Mtg. (Nagle)

13 Staff finds the proposed variance to Section (a), Table I Landscape Buffer Requirements, subsection 5c to allow a 29 foot wide landscape buffer (in lieu of the required 30 feet) along the north property line is justified given existing property and site development constraints. The applicant has also changed the site design plans to minimize proposed encroachments into the north landscape buffer. Staff finds the proposed variance to Section (a), Table I Landscape Buffer Requirements, subsection 5c to allow a 10-foot wide landscape buffer (in lieu of the required 30 feet) along the east property line is inconsistent with the Comprehensive Plan and the purpose or intent of the Zoning Ordinance. Granting the proposed variance would reduce required buffering needed for the protection and enjoyment of abutting and nearby residential property owners to the east. RECOMMENDATIONS: APPROVAL for a Variance to Section , Minimum Yard Size, (42.5 feet in lieu of the required 75 feet); Variance to Section , Landscape Buffer Requirements, (55 feet from the centerline of the State Road 44 in lieu of the required 70 feet); Variance for an east side yard abutting commercial zoned property (9 feet in lieu of the required 10 feet); a Variance for a east side yard abutting residential zoned property (7 feet in lieu of the required 35 feet) for an existing building on B-4C (General Commercial/ Thoroughfare Overlay Zone) zoned property; Variance to Section (f) Landscape Buffer Area, to allow a stormwater area in the required landscape buffer along the north and east property lines; Variance to Section (a) Table I, Landscape Buffer Requirements, subsection 5c (29 foot in lieu of the required 30 feet) on the north property line; for a commercial development on B-4C (General Commercial/ Thoroughfare Overlay Zone) zoned property subject to the following condition: The applicant shall comply with the non-residential design requirements of Section 827 of the Zoning Ordinance as amended, including the City of New Smyrna Beach s Corridor Overlay Zone requirements, which are not negated or modified by this variance approval. DENIAL of a Variance to Section (a) Table I, Landscape Buffer Requirements, subsection 5c (10 feet in lieu of the required 30 feet) on the east property line for a commercial development on B-4C (General Commercial/ Thoroughfare Overlay Zone) zoned property. PURSUANT TO SECTION , APPEALS, OF THE ZONING ORDINANCE, ANY PERSON CLAIMING TO BE AGGRIEVED BY A DETERMINATION OF THE PLDRC OR ZONING ENFORCEMENT OFFICIAL MAY FILE A WRITTEN APPEAL WITHIN TEN (10) WORKING DAYS AFTER RENDITION OF THE ORDER, REQUIREMENT, DECISION, OR DETERMINATION. CN: ys Revised December 30, 2004 G:\ADMIN\2005\Final Cases\V Bosch.Tivoli.doc Page 5 of 5 January 11, 2005, PLDRC Mtg. (Nagle)

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26 Inter-Office Memorandum To: Volusia County Council C: Cynthia Coto, County Manager Dan Eckert, County Attorney From: Mary Brennan, Asst. County Attorney File No. Date: March 7, 2005 Re: New Smyrna Beach Appeal from PLDRC O V E R V I E W On January 11, 2005, the PLDRC approved minimum yard size and landscape buffer requirement variances in Case V , for a commercially-zoned parcel of property on SR 44. The City of New Smyrna Beach ( City ) appeared before the PLDRC to object to approval of those variances, and appealed their issuance to the County Council. Sec of the Zoning Ordinance provides that "appeals may be taken by any person aggrieved or by any [officer or entity] of county government adversely affected by any... variance... decision... of the [PLDRC]. Sec. 201 of the Zoning Ordinance defines "person aggrieved" as follows: A person aggrieved is one whose legal right is invaded by a decision complained of, or whose pecuniary interest is directly affected by a decision. The person's interest must be specific and personal, not common to all members of the community... Upon conducting research at the request of the County's Director of Building & Zoning, Mary Robinson, the County Attorney's Office concluded that the City is not a "person aggrieved" for purposes of appealing the PLDRC's variance decision and that

27 March 9, 2005 the Zoning Ordinance does not give City a right to appeal the PLDRC's variance decision. Ms. Robinson thereafter made the determination that the City does not have standing to appeal and advised City of same. The City filed an appeal of Ms. Robinson's no-standing determination, and after discussion the parties agreed that the Robinson appeal would be withdrawn and the issue of the City's standing to appeal the PLDRC's decision would be decided by Council at a public hearing. If Council rules that the City does have standing to appeal, it will proceed to hear the appeal itself. If it decides that the City does not have such standing, the City's appeal of the PLDRC's variance approval is moot and will not be heard. Therefore, before hearing the appeal Council must make an initial determination of the standing issue. WHETHER CITY HAS STANDING TO APPEAL The City advances several grounds in support of its position that it has standing, contending that it is a "person aggrieved" by the PLDRC's decision because the subject parcel is "across SR 44 and this is the entrance to the city's jurisdiction," that it was a "party before the PLDRC", that it "is impacted fiscally as the adjacent general purpose government," and that it has a right to appeal pursuant to the SR 44 Thoroughfare Overlay Zone section of the Zoning Ordinance. Each of these grounds is addressed separately below. 1. Proximity of subject parcel to City boundaries We were unable to locate any authority for the proposition that incorporated entities within Volusia County gain standing to appeal PLDRC decisions, or are able to exercise any form of control, over PLDRC decisions solely by virtue of their proximity to parcels under consideration. Upon inquiry I learned that, historically, the County does not attempt to exercise control over municipal zoning authority decisions regarding parcels located within incorporated entities, regardless of the proximity of such parcels to unincorporated county lands, solely by virtue of proximity. 2. Whether City was a "party" before the PLDRC The complained-of action of the PLDRC was initiated upon the application of property owner Tivoli for variances to County requirements. Because the Tivoli parcel was within a quarter mile of city, county staff advised City of the variance request. City took the position that, although the property has commercial zoning allowing restaurants, that particular use is inappropriate for the site. Staff advised the PLDRC of the City's opposition, and City appeared before the PLDRC to oppose the variances. I find no legal authority for the proposition that any of these events gave the City the status of a "party" in the County's variance process. 2

28 March 9, Whether fiscal impact to City makes it a "person aggrieved" By Zoning Ordinance definition, Sec. 201, a "person aggrieved" includes one whose pecuniary interest is directly affected by a decision." Leaving aside whether the City's pecuniary interest is directly affected by the PLDRC's approval, the definition of "person aggrieved" specifically excludes those whose pecuniary injury is shared by the community in general. If a municipality necessarily advances the interests of its citizen community, then the aesthetic interests advanced by City in opposing the variances is necessarily common to all members of the community and so, by definition, not a pecuniary interest sufficient to confer standing to appeal. 4. Whether Corridor Zone provisions confer standing on City Sec. 201 also defines a "person aggrieved" as "one whose legal right is invaded by a decision complained of (sic)." The "legal right" urged by City as a basis for standing, is its claimed right under its thoroughfare regulations, which it incorrectly states were incorporated into the County s land development regulations. In January, 2004, Volusia County adopted Sec. 827 of the Zoning Ordinance. Sec. 827 doesn t "incorporate" City standards into the County code, but it provides that for new development or alteration increasing existing floor area by more than 25% -- neither of which are involved in the Tivoli parcel -- both the County design standards and the City s municipal gateway (thoroughfare) design standards are applicable. Presumably that provision is the genesis of City's reliance upon Sec I find nothing within Sec. 827, however, which grants City standing with regard to -- or the right to impede -- the County's enforcement of, or variance to, its own standards and land use requirements. THE CITY'S APPEAL OF PLDRC VARIANCE APPROVAL In the event that Council determines the City to be an "aggrieved person" or to otherwise have standing to appeal the PLDRC decision, Council will hold a public hearing on the City's appeal. Decisions on variances made by the PLDRC constitute final action, subject only to appeal to Council. No new evidence may be presented at the time of Council's public hearing on the appeal, so the City is confined to the record made before the PLDRC. The PLDRC's variance hearings are quasi-judicial in nature, so its decision must be based on substantial, competent evidence, which is evidence a reasonable mind would accept to support a conclusion. Council's task on a variance appeal from the PLDRC is to determine whether that body's approval of the Tivoli variances was supported by substantial, competent evidence. 3

29 March 9, 2005 The City alleges, as grounds for its appeal, that the variances approved by the PLDRC are contrary to its thoroughfare regulations and that the PLDRC's decision is not based upon substantial, competent evidence. The inapplicability of the City's thoroughfare regulations to the PLDRC's variance decision is set forth above. With regard to allegations of insufficiency of evidence before, City argues specifically that the record before the PLDRC was lacking in substantial, competent evidence regarding the criteria that must be met in granting a variance. At its hearing, the PLDRC had before it various staff reports addressing the variances requested, the lay testimony of applicant, his counsel, and neighborhood property owners (regarding the inappropriateness of SR 44 frontage for residential use), as well as the expert testimony of Planner II Christian Nagle. Florida case law provides that staff reports constitute -- to a certainty -- sufficient substantial, competent evidence to support a finding in a quasi-judicial hearing, unless based upon an erroneous legal assumption by staff. No erroneous legal assumption by staff is alleged by City in this appeal. The staff report contains the following evidence, uncontradicted at the PLDRC hearing and supported by lay testimony there: Section 1003 of the Zoning Ordinance includes the criteria for review of zoning variance applications. Staff finds that due to site and building location constraints, special circumstances and conditions exist that are unique to this property. The existing principal structure was built in 1955 before County zoning regulations applied. The property and building have nonconforming building setbacks and landscape buffers. Meeting these current requirements is impractical and would cause a hardship on the applicant. Approval of some of the applicant's requested variances would resolve the existing non-conforming building and landscape buffer setbacks. The City bases much of its argument upon the conclusion that the action of the PLDRC in approving certain variances for the Tivoli parcel constitutes a "conversion" of the parcel's use from residential to non-residential. Uncontradicted evidence before the PLDRC was that parcel was already zoned B-4C -- and the non-conforming residential use had already been abandoned -- when the variance application was made and indeed before Tivoli acquired the parcel. "Abandonment" is defined as "a voluntary act on the part of the property owner that shows an intent to abandon the non-conforming use." I am unable to find any authority for the proposition that the County, acting through the PLDRC or otherwise, can prevent a property owner's abandonment of nonconforming use. 4

30 MINUTES Planning and Land Development Regulation Commission January 11, 2005 V Application of Lisa Bosch, Attorney for Owner, Salomon Tivoli, Owner, requesting Variance to Section , Minimum Yard Size, (42.5 feet in lieu of the required 75 feet); Variance to Section , Landscape Buffer Requirements, (55 feet from the centerline of the State Road 44 in lieu of the required 70 feet); Variance for an east side yard abutting commercial zoned property (9 feet in lieu of the required 10 feet); and a Variance for a east side yard abutting residential zoned property (7 feet in lieu of the required 35 feet) for an existing building; and a Variance to Section (f) Landscape Buffer Area, to allow a storm water area in the required landscape buffer along the north and east property lines; Variance to Section (a) Table I, Landscape Buffer Requirements, subsection 5c (29 foot in lieu of the required 30 feet) on the north property line; and a Variance to Section (a) Table I, Landscape Buffer Requirements, subsection 5c (10 feet in lieu of the required 30 feet) on the east property line for a commercial development on B-4C(General Commercial/Thoroughfare Overlay Zone) zoned property. The property is located on the north side of SR 44, at its intersection with Fran Dr., adjacent to the City of New Smyrna Beach; ± 0.56 acres Alex Ford, Attorney, Landis Graham and French, 145 East Rich Avenue, DeLand, FL was present representing Mr. Tivoli. Christian Nagle, Planner II, presented the Staff Report as prepared for the Agenda package. Mr. Nagle explained this is a rehearing granted by the PLDRC at their December meeting. Mr. Nagle explained this case differs from the original request in that the applicant has changed one of the requested variances, and at this time, the request is more acceptable. Most of the variance requests are directly related to the placement of the existing structure built in It has several nonconforming setbacks, which have limited the applicant in developing the property for commercial use. Staff finds that it would be a burden for the applicant to comply with current Zoning Ordinance requirements and staff supports the first six variances. However, the request to reduce the landscape buffer to 10 feet along the east property line in not acceptable. An additional buffer is required to protect the G:\ADMIN\2005\PLDRC\MINUTES\Case Minutes\V doc Page 1 of 9

31 residential property to the east. Therefore, staff recommends DENIAL of the seventh request. Member Gove stated the residential building to the east appears to be under renovation. He asked if the staff knew what were the plans for that building. Mr. Nagle stated he did not know of the renovation occurring place next door, but stated that the property is zoned residential. Member Gove asked if staff was approving the stormwater retention within the buffers, and is landscaping or a wall along the east line required. He also asked if they could put landscape materials in that area. Mr. Nagle stated yes. Mr. Gove asked when the property was zoned commercial. Mr. Nagle stated before Member Cornett asked if there was an update from the City of New Smyrna Beach. Mr. Nagle said yes, they are still opposed. Member Summers, referring to the site plan, noted number marker 12, and asked about the property line. He asked Mr. Nagle if the owner would have to demolish part of the building in order to be able to provide the 30-foot buffer along the east property. Mr. Nagle said the building would remain as it sits. Mr. Nagle then used the site plan to show the 12-foot jog in the property line that abuts the R-4 zoned property. G:\ADMIN\2005\PLDRC\MINUTES\Case Minutes\V doc Page 2 of 9

32 Mr. Nagle clarified that the staff s recommendation of denial of the 10-foot buffer is not a factor in the development of the property; the requirements can be met without granting the requested variance. Mark Rakowski stated that the City of New Smyrna Beach is against the requested variances for several reasons. He began by stating that this property is in a mixed-use area with commercial to the east and residential to the west. The New Smyrna Beach staff feels that the request is not appropriate. He explained that the City of New Smyrna Beach is trying to get property owners to combine smaller commercial properties, such as this, in order to permit development that is more appropriate. He stated the number of variances requested indicates that the property is not appropriate for commercial development. Until the property can be combined with additional properties, the City of New Smyrna Beach is suggesting that commercial development be held off. Mr. Rakowski expressed sympathy for Mr. Tivoli in that he was perhaps not aware of the parameters that must be met in order to develop a commercial property. Though the commercial zoning is in place, Mr. Rakowski expressed his doubt that the applicant can meet all the other parameters required for commercial development. These parameters include building codes, setback requirements, buffer requirements, and stormwater retention requirements. The basis for the City s position is that it is premature to have this property developed as a commercial piece of property. According to Mr. Rakowski, granting the requested variances would be in opposition to the City s goals of reducing the curb cuts on SR 44, providing appropriate buffers, and adequate parking. He referred to the City s efforts over that last 15 years of trying to clean up areas that were developed in the 1950 s along U.S. Highway 1. Singlefamily dwellings were allowed to be converted into commercial development, creating too many curb cuts and insufficient parking. Mr. Rakowski stated it was impractical to think that a restaurant with only 20 seats and 10 parking spaces is going to succeed without having an impact on the adjacent neighborhood. It appears that employees would take up half of the parking spaces leaving patrons to park on the street and this will generate complaints. Mr. Rakowski explained permitting this sort of development would set a precedent. Several similar homes along State Road 44 frontage are all zoned commercial and if these variances are granted, future requests will be granted. This will create commercial parcels G:\ADMIN\2005\PLDRC\MINUTES\Case Minutes\V doc Page 3 of 9

33 ranging from ¼ to ½ acre each. He stated that the Thoroughfare Overlay Zone was not meant to create this type of development. He further stated that the City would like to see these properties combined and there may be properties to the north that the City will have to add to when the time comes to create an adequately sized piece of property for development. Mr. Rakowski went through the five criteria for granting a variance. They are as follows: 1. Special conditions and circumstances exist which are peculiar to the land, structure, sign, or building involved which are not applicable to other land structures, signs, or buildings in the same zoning classification. He said there are at least five homes to the west of the property that meet these same criteria. Therefore, the circumstances are not unique to this property. 2. Special conditions and circumstances did not result from actions of the applicant. The City is contending that there are no special conditions or circumstances. Most of the zoning requirements were developed after Mr. Rakowski asked if this implies that everyone should be able to use this as a basis for a hardship and be granted a variance. 3. Literal interpretation of the provisions of the ordinance would deprive the applicant of rights commonly enjoyed by the properties in the same zoning classification under the terms of the ordinance and would work an unnecessary and undo hardship on the applicant. Mr. Rakowski stated that this home could be used as a residence, as can other homes to the west along State Road 44. Therefore, the City does not feel the applicant suffers any deprivation of right. Mr. Tivoli still has the ability to use his property. G:\ADMIN\2005\PLDRC\MINUTES\Case Minutes\V doc Page 4 of 9

34 4. The granting of the variance is the minimum variance that will make possible the reasonable use of the land, building, structures, or sign. Mr. Rakowski stated that until this property is combined with other properties to make an adequate sized parcel for commercial use, it could be used for residential use. 5. The granting of the variance will be in general harmony with the general intent and purposes of the ordinance in Volusia County Comprehensive Plan, Ordinance as amended, and such variance will not be injurious to the area involved. Mr. Rakowski stated that the City does not feel that it is in harmony with the general intent and purpose of the above policies. The intent of the variance process is to give relief to someone who has a certain specific circumstance with their property. The intent is not to grant six variances with such extensive requirements. Mr. Rakowski summarized his presentation by asking the Commission not to undermine the Thoroughfare Overlay Zone by granting all of these variances. He again emphasized the importance of not repeating the same mistakes of the 1950 s, 1960 s, and 1970 s where small lots were permitted to be developed for commercial purposes creating too many curb cuts and inadequate parking. Mr. Rakowski stated that the City of New Smyrna Beach does not feel that Mr. Tivoli can meet the above-mentioned criteria for being granted the requested variances. Debra Johnson-Neighboring Property Owner Ms. Debra Johnson stated she owns the property to the east of the subject property. She is planning to redevelop her property into a spa or a bed and breakfast. Ms. Johnson stated she did not object to the development of the property, but she did bring to light some issues that had not yet been addressed. The issues include: the unknown pathway of the proposed sewer line, the need for hedges or a wall to reduce the sound, and controlling the mosquito larva generated by the proposed stormwater retention area. G:\ADMIN\2005\PLDRC\MINUTES\Case Minutes\V doc Page 5 of 9

35 David Simmons, 2218 Doster Drive, New Smyrna Beach, FL Mr. Simmons stated he has no objection to Mr. Tivoli s project. He stated that he has the same concerns as Ms. Johnson. Chairman Rudolph called upon Alex Ford when the public comments had been concluded. Mr. Ford responded to several comments. His responses were as follows: To Mr. Gove, he related that the property has been owned by Mr. Tivoli for more than two years and has not been used as a residence during that time. Mr. Ford states that the City of New Smyrna Beach is saying that the property can be used as a residence but the single-family dwelling is a nonconforming use and the use has been abandoned. Testimony made by Ms. Johnson stating that there is a need to provide a hedge or wall to reduce noise clearly indicates that noise is a problem. Mr. Ford further stated that this location is unsuitable for residential use due to the noise and activity of the surrounding commercial uses. Mr. Ford stated that he is uncertain if it can be used as a residence because if you abandon the non-conforming use you then lose the right to revert to the nonconforming use. Therefore, there is a question as to whether the subject property can revert to a residence. Thus, without granting the variance, the property owner has no use of the property. To Mr. Summers, regarding the denial of the seventh variance, Mr. Ford stated that he had the same concern about the variance recommended for denial as Mr. Summers had expressed. Mr. Ford stated that Mr. Nagle s explanation satisfied the applicant s concerns and he is satisfied. He is in agreement with the staff recommendation for granting the requested variances. With regards to the City of New Smyrna Beach, Mr. Ford stated that the City is suggesting that the property be used for a purpose that is not permitted under the zoning ordinance. Secondly, there is a possibility the non-conforming use has been lost. This structure was G:\ADMIN\2005\PLDRC\MINUTES\Case Minutes\V doc Page 6 of 9

36 built in 1955 and most of the variances are required due to the location of the improvements on the property. Those requirements are going to apply as long as the structure is there and the applicant will still be in violation of them. Mr. Ford pointed out that a number of the variances required are only required because of the location of the existing structure, and it is clearly a hardship having to move an existing structure. Secondly, some of the variances are needed because of the Thoroughfare Overlay Zone being adopted subsequent to the initial zoning. The change in the zoning is what led to the site being a non-conforming use. That was clearly not the fault of the applicant or his predecessors. To Ms. Johnson and Mr. Simmons, Mr. Ford stated that the proposed sewer line is a development issue, not a variance issue. Addressing the question about the hedge, Mr. Ford stated that they have not asked for relief from the types of material required by the County, so the applicant would comply with the County requirements. Member Summers commented that his understanding is that the denial recommended by staff will not affect the applicant. Mr. Ford stated that as it was explained to him, they would be able to combine the stormwater retention within the buffer area. With that interpretation, it should not affect the applicant. Member Huttman asked about the parking issue. With the number of employees etc., he wanted to know if the parking over flow issue would be addressed. Mr. Ford stated that there are a certain amount of variances needed just to get use of the site. The number of parking spaces is as large as it can be and still comply with other requirements. If people encroach and park in the residential area, it becomes an enforcement issue. He further stated that he did not know the applicant s plans for G:\ADMIN\2005\PLDRC\MINUTES\Case Minutes\V doc Page 7 of 9

37 employee parking, but that it was in the applicant s best interest to have sufficient parking for his customers to encourage them to continue to visit his restaurant. Chairman Rudolph asked staff to confirm that the parking is based on the number of seats in the restaurant. Mr. Nagle explained that there must be one parking space for every two seats in the restaurant. If the applicant adds seats, then he must add parking. Chairman Rudolph asked staff to comment on the possibility of abandonment of a nonconforming use. Mr. Nagle told Commissioners that the property was non-conforming when it was used as a residence. Based on staff information, the residential use of the property has been abandoned for longer than six months. Therefore, the applicant cannot reestablish residential use on the property. If he wanted to use the property for residential purposes, he would need to have a Comprehensive Plan amendment and a rezoning request approved by the County Council. Member Sixma commented that it appears that the applicant has a piece of property that cannot be used. Mr. Rakowski requested an opportunity for rebuttal. Mr. Rakowski questioned the staff on the interpretation of the abandonment of use. He asked the County Attorney for the interpretation for the abandonment of use. He asked the Commission to refer to the five criteria required to grant a variance. He asked the Commissioners not to grant something that will create a problem, such as with the parking. The Assistant County Attorney, Mary Brennan, concurred with Mr. Ford on the abandonment of use. G:\ADMIN\2005\PLDRC\MINUTES\Case Minutes\V doc Page 8 of 9

38 Mr. Ford reminded the Commission that the residential properties Mr. Rakowski referred to are also zoned commercial, so their future use is to be commercial. He also pointed out that it is not possible to combine this property with others due to an intervening road. Mr. Ford again stated that if the applicant can comply with the requirements of the zoning ordinance with regard to parking, and then if the parking becomes a problem, it is an enforcement issue. Member Summers MOVED to APPROVE case V as recommended by staff. Member Sixma SECONDED the motion. The motion was CARRIED by a vote of 5 to 2. Chairman Rudolph and members Sixma, Gove, Huttmann, and Summers in favor of the motion. Members Cornett and Mellor against the motion. G:\ADMIN\2005\PLDRC\MINUTES\Case Minutes\V doc Page 9 of 9

39 NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN THAT the County Council of Volusia County, Florida, will hold a Public Hearing on Thursday, March 24, 2005, commencing at 9:05 a.m. in the County Council Meeting Room of the Thomas C. Kelly Administration Center, 123 W. Indiana Avenue, DeLand, Florida, for the purpose of hearing and deciding the following applications for Appeals from the Zoning Ordinance of Volusia County, Florida, to wit: A Application of Frank Roberts, City Manager, City of New Smyrna Beach, requesting an Appeal of the Planning Land Development and Regulation Commission's decision of APPROVAL of Variance case V heard at the January 11, 2005 PLDRC public hearing. Variance to Section , Minimum Yard Size, (42.5 feet in lieu of the required 75 feet); Variance to Section , Landscape Buffer Requirements, (55 feet from the centerline of the State Road 44 in lieu of the required 70 feet); Variance for an east side yard abutting commercial zoned property (9 feet in lieu of the required 10 feet); and a Variance for a east side yard abutting residential zoned property (7 feet in lieu of the required 35 feet) for an existing building; and a Variance to Section (f) Landscape Buffer Area, to allow a stormwater area in the required landscape buffer along the north and east property lines; Variance to Section (a) Table I, Landscape Buffer Requirements, subsection 5c (29 foot in lieu of the required 35 feet) on the north property line; and a Variance to Section (a) Table I, Landscape Buffer Requirements, subsection 5c (10 feet in lieu of the required 35 feet) on the east property line for a commercial development on B-4C(General Commercial/Thoroughfare Overlay Zone) zoned property, to wit: LOTS 1 2 & LOT 3 W OF DRAINAGE DITCH BEING FT MEAS ON R/W ST RD 44 BLK B ELLISON ACRES 2 MB 8 PG 249 PER OR 3966 PG 0001 & PER PROBATE OR 4931 PG 4086 Parcel No.: The property is located on the north side of SR 44, at its intersection with Fran Dr., adjacent to the City of New Smyrna Beach; ± 0.56 acres These proposed applications may be inspected by the public at the VOLUSIA COUNTY BUILDING AND ZONING DIVISION, 2nd FLOOR, THOMAS C. KELLY ADMINISTRATION CENTER, 123 WEST INDIANA AVENUE, DELAND, FLORIDA. Interested parties may appear at the meeting and be heard with respect to the proposed special exception applications. This hearing may be continued to one or more dates. The dates, times, and places of any continuation of the above scheduled public hearing will be announced at said public hearing and no further notice regarding said continuation is required to be published. If anyone decides to appeal any decision made by the Volusia County Council with respect to any matter considered at this hearing, he or she will need a record of the proceedings, including all testimony and evidence, upon which the appeal is to be based. To that end, such person will want to ensure that verbatim record of the proceedings is made. COUNTY COUNCIL VOLUSIA COUNTY, FLORIDA BY Cynthia A. Coto CYNTHIA A. COTO COUNTY MANAGER G:\ADMIN\2005\LEGALS\COUNTY COUNCIL\ DOC Page 7 of 7

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