MINUTES MANATEE COUNTY BOARD OF ZONING ......1990/05/07 · gotten their consent decree out of a...

MINUTES

MANATEE COUNTY BOARD OF ZONING APPEALS

MANATEE COUNTY GOVERNMENT ADMINISTRATIVE CENTER

1112 MANATEE AVENUE WEST, SUITE 802

BRADENTON, FLORIDA

MAY 1, 1990 - 1:30 P.M.

The May 1, 1990 meeting of the Manatee County Board of Zoning

Appeals was held at 1:30 P.M. at the Manatee County Government

Administrative Center, 1112 Manatee Avenue West, 8th Floor, Suite

802, Bradenton.

The meeting was called to order at 1:30 P.M. by Vice Chairman

William Hedden, and opened with the Pledge of Allegiance to the

Flag.

Board Members present were: William Hedden, Vice Chairman;

Richard Breeze, Secretary; David Montgomery; and Albert Conyers.

Chairman John Sands was absent.

The Manatee County Planning Department was represented by Robert

Wright, Principal Planner; and Erika Barrett, Technician III.

The County Attorney's Office was represented by Jeffrey N.

Steinsnyder, Assistant County Attorney; the Public Works Depart¬

ment was represented by Dawn Wolfe; and the Development Manage¬

ment Department was represented by George Devenport, Acting

Building Official.

Assistant County Attorney Jeff Steinsnyder swore in all those who

wished to speak at this public hearing.

1. VA-90-07 - JAMES W. GLASSER

Request for approval of a variance from the requirements of

the Manatee County Floodplain Management Code to allow the

first floor elevation of a completed structure to remain at

twenty and seven-tenths feet (20.7') instead of the required

twenty-one and three-tenths feet (21.3') (Section 105.2.1

Ord. 89-10). Located at 2532 56th Avenue East. Present

Zoning: R-1A (Single Family Residential District, 4.4

du/acre) (0.21j_ acre).

Mr. Wright: Introduced George Devenport of Development Manage-

ment, who would present this case.

Mr. Devenport: This is very similar to the problem we had with a

previous variance with Mr. O'Neal. We had some errors in our

technical equipment. The same thing happened in this circum¬

stance. The information was not relayed to the contractor

through the permit papers in a manner in which he could act on

the proper information. Our knowledge wasn't up to speed enough

to know that the computer was causing the problem. Basically,

» I ^

E.Z.A. 05/07/90 - Minutes

this gentleman has met the older requirements. Apparently he was

acting in good faith. We need to give him this variance based on

the fact that we did not relate to him the proper information

that he needed to carry out this construction.

Mr. Hedden: I can see how it could easily happen, but since it's

happened twice, is something being done to prevent it?

Mr. Devenport; Yes, there has been put in place, and we are

acting and double checking to see that it is functioning at this

time.

Mr. Hedden: The permit will show what the one foot free board is,

not just the....

Mr. Devenport; Yes. Since June, 1989, when we came up with the

Floodplain Management Permit, the information was placed on that

particular permit, and it would be input as data into the comput¬

er system, and the computer, for some reason, wouldn't correlate

that information and transpose it when it was put on for a code

and permanent application, which is a separate document. So,

therefore, it was a loss in the computerized transition of those

numbers. That's the thing we didn't know it was doing, and when

we did find out at the time of Mr. O'Neal's variance action, then

we instituted the necessary corrections. As can be seen, this

permit was back in December, 1989, so this permit, I think, was

just after Mr. O'Neal's - within a couple months. They both came

to that point of construction where this information would be

required about the same point in time. I'm not sure, at this

point in time, what other permits that were issued were wrong.

Hopefully it's only a small amount or maybe none. But yes, the

corrections have been put into place and appear to be working

now.

Mr. Montgomery; I'd like to ask a question of staff. Did I

remember on Mr. O'Neal's application, we treated that as if there

had been no construction started, and his was granted based upon

health considerations. Are there any similar health considera¬

tions for the proposed occupants of this structure?

Mr. Devenport: None that I know of, Mr. Montgomery?

Mr. Montgomery; Is there any provision of the staff which gives

us a different set of standards to apply when there is a computer

error in the department, or has the Board of County Commissioners

added a waiver and estoppel to the basis for a variance request

under the ordinance?

Mr. Devenport: I'm not sure. Mr. Steinsnyder might correct me,

but I would assume the state law would come into play. If you as

a county or municipality generate firm information to a person

that is building something in the form of documents, and telling

him this is the required elevation, and then to later go back and

say, "I'm sorry. We've made a mistake. Now we are going to

B.Z.A. 05/07/90 - Minutes

require you to increase your constraints to meet your require¬

ments. "

Mr. Montgomery; Our advice from the Legal Department in the past

has been that a waiver estoppel was a matter which could be

addressed by authorities, but the Board of Zoning Appeals was not

that authority, according to that board. I'm just asking: has

that changed? Do we now have the power to grant variances based

upon a waiver and estoppel?

Mr. Steinsnyder: My office has not changed their recommendation.

No, this waiver and estoppel are equitable remedies which are not

within the purview of this board. Answering your earlier ques¬

tion: No, 89.9 and 89.10 have not been amended. I would point

out, however, the variance sought here is not a variance of the

base flood elevation. It's a variance of the extra foot.

Mr. Montgomery: In the past, when we've asked about the criteria

appliedtothe free board variance vs. PFE variances, we were

told they were the same standards. There was no different stan¬

dard for the added free board. Is that still correct?

Mr. Steinsnyder: That's still correct. There does not appear to

be a varying standard. The ordinance is silent about a different

standard for that extra foot.

Mr. Montgomery: To try to translate that into concrete reality is

thatTEwegrant this application, we probably won't get chas¬

tised by FEMA, but we probably also won't be observing

conformance with our own ordinance.

Mr. Steinsnyder: I can't really assure you on either one.

Mr. Devenport; To answer the question, I did review this under

Region 4, and he agrees that the variance that is sought is

probably the best manner in which to handle this particular case.

Mr. Montgomery: But he doesn't examine that request for fidelity

to our own ordinance?

Mr. Devenport; Yes, he does, because he has copies of our ordi-

nances that they keep on file, and compared between our ordinanc¬

es and 44 CFR, whenever they make a determination.

Mr. Montgomery; So you're saying you received input from FEMA

that we grant the variance on the basis that we made a mistake;

that's consistent with our ordinance?

Mr. Devenport: As far as I can tell. McBeth does review our

ordinanceswTth relevance to CFRs, and said that this would be

appropriate based on the problems that occurred.

Mr. Montgomery: Did he site to you a sentence or a paragraph from

our ordinance which says we have a right to grant the variance

when the department made the mistake?


Mr. Devenport; No, he did not.

Mr. Montgomery: Do you know of one?

Mr. Devenport; I would say not in our particular ordinance, no.

Mr. Breeze: I want to ask staff or legal, in the event that we

don't have any standards for a variance, I don't think we really

would be going contrary to our own regulations. That's the way I

feel about it, if we were to vote in favor of this variance.

Mr. Hedden; If the staff has made an error, like in this case,

the house is all done, could this be considered a hardship? It

seems to me it is.

Bill Mullins: I'm an attorney and I represent Mr. Glasser: I

really don't have anything to add. The facts, as presented by

staff, happen to be the case. The building permit did give a

finished floor elevation of 20.3 feet. My client built at 20.7.

Apparently they couldn't get the 1 foot of free board into the

permit. It was an honest mistake. My guy did in fact go beyond

what he had to do by 4/lOths foot, but it turns out he is 6/lOths

foot low. I met with Mr. LeDuc and everybody else. Everybody is

sympathetic to our plight, but we do have a real problem. This

is the only method by which we can rectify the thing.

Mr. Montgomery; Your last sentence is what I have the problem

with. As I understand it, if you have even a very clear cut case

of estoppel or waiver by the County that the method of obtaining

relief on that basis has been through court action in the past.

Although the County Attorney's Office may not agree with me,

they've rolled over and played dead, and essentially the plain¬

tiffs have obtained a consent decree in those situations. But

unless the law has changed, the last case law that was reported

back to this Board of Zoning Appeals is that we have absolutely

no equitable jurisdiction whatsoever and waiver or estoppel is

not a basis for a variance under our ordinance. What concerns me

is the filing fee for this application - $350?

Mr. Mullins: You weren't even close. It's about $600.

Mr. Montgomery: $600 - Probably with that money they could have

gotten their consent decree out of a circuit judge with a great

deal more certainty than they have in approaching the Board of

Zoning Appeals. I'm concerned, as I see it, you folks have been

steered in the wrong direction, and it sounds to me when an

applicant comes up before the Board of Zoning Appeals, takes the

microphone, and complains about how they were misled by the

department in something verbally somebody said, immediately we

hammer the gavel and say, "we can't hear that; that's waiver or

estoppel". That's not the basis for a variance, and yet where

the County is willing to admit they made a mistake, now we're

supposed to re-write the ordinance and write into the ordinance a


waiver of estoppel argument. From everything that I hear, I

think you are certainly entitled to your relief, and I think you

are entitled to it from a court, not from the Board of Zoning

Appeals. If we're going to amend the ordinance, and put in

waiver of estoppel, that's fine. I have no objection to doing

that; I think we need to be prepared for a trial lease the way

they do in the courthouse where you have hours and hours devoted

to a single case, because those types of misuse typically take

forever to get all the facts before it. But if we're given that

authority, then I think we ought to assume that authority and

exercise it. We've not been given that authority, folks. Based

on my experiences on the board in the past and dealing with many

cases in past, as a board member, we just don't have the power to

do what we are being asked to do. I don't want to get started

doing something that we don't have the right to do, especially

when in the past we repeatedly admitted we don't have the right

and turn other applicants away where the County had not been so

certain of its own error.

Mr. Hedden; We need legal advice on whether we should hear this

or not.

Mr. Montgomery; I think my motion will encompass what I think

ought to happen, when we get to the point of making a motion, but

unless Mr. Mullins or Mr. Steinsnyder has authority dealing with

the issue of the equitable powers of the Board of Zoning Appeals,

my understanding from years ago is that we just don't have the

powe r.

Mr. Steinsnyder: If I may respond to one of the things that Mr.

Montgomery just said. I don't agree that this is the wrong forum

for this case. I'm fairly certain that had the applicant not

come to this board, the County would have pled "Failure to Ex¬

haust Administrative Remedies". There is an administrative

remedy. This board is it. You can't just proceed directly to

circuit court. So, as far as directing them in the wrong place,

I don't think they were directed in the wrong place. I can read

you the conditions for variance that are within 89-10 if you

would like. They haven't changed since the last time we've gone

through one of these.

Mr. Montgomery: Not for my purposes. I have dealt with them for

nine years now, or various versions over the nine years. I just

ask Mr. Steinsnyder where, under the ordinance, he finds adminis¬

trative error by the department as grounds for granting a vari¬

ance request?

Mr. Hedden: I don't want to put words in your mouth, but what you

are saying is, this is the proper forum for them to come to and

then for us to say that we can't do it. Then they would have the

right to appeal it in courts?

Mr. Mullins: I am from the county that's south of here. They

just had a case based on what Mr. Steinsnyder is saying. It went


all the way to Tampa; they tried the thing and it got to the llth

Circuit, and the llth Circuit said; "Why are you people here?

You didn't exhaust your remedies". It came back after about

$275,000 worth of attorney's fees to Sarasota County. It's my

understanding from reading the ordinance and Florida Statutes

that this is a zoning matter. You can call it FEMA or what you

want, but the floodplain maps all come under zoning. When you

have a zoning problem, your first place, I believe, is the Board

of Zoning Appeals. If you don't come here, you are in the wrong

forum. This is where we are starting, and I'm told by staff, and

I concur with them, this is where we start.

Mr. Montgomery: At the last extended hearing we dealt extensively

withexhausting administrative remedies. I don't disagree with

that. In my motion that I intend to make, and whatever else

happens in the hearing would encompass that, the problem I have

is that variances are for conditions which are unique to the

property. The condition which I see as being unique to this

property is the fact that they have built a structure on it at a

misleading elevation, and whether or not we can take that factor

into consideration in granting the variance when the reason that

the structure was built on the property at the wrong elevation

was not the fault of the applicant. Maybe that's what it boils

down to. We're writing equitable revenues right into the ordi¬

nance; I'm not so sure we want to do that in some cases but not

every case.

Mr. Mullins; On behalf of my client, I would like to ask this

boardthat anything you seek to do regarding restructuring of

this ordinance would happen subsequent to May 7, 1990. Start

tomorrow morning, not this afternoon.

Mr. Montgomery; My impression from being on the board for 8 or 9

yearsIsthat we have been rather consistent in observing the

limitation that we do not have equitable jurisdiction.

Mr. Hedden opened the public hearing to anyone who wished to

speak in favor or opposition to this request. No one spoke, and

Mr. Hedden closed the public comment portion of the hearing and

called for a motion.

MOTION

A motion was made by Mr. Breeze and seconded by Mr. Conyers:

Based upon the staff report, comments made at the public hearing,

the Standards for a variance contained in Sections 205H.5,

408B.4, 408B.5 and 408C of the Manatee County Comprehensive

Zoning and Land Development Code, I move to APPROVE Variance No.

VA-90-07.

DISCUSSION

Mr. Montgomery: If the motion fails, I intend to make the motion

that we deny it and ask for a refund to the applicant to pursue

what I understand to be the appropriate remedy.


Again, if Mr. Steinsnyder gave us an answer either today or if he

prefers, some other time, as to whether or not in an example such

as this - the fact that they completed or almost completed the

structure, built under these circumstances - is a condition of

the property which will be considered by the Board of Zoning

Appeals as a basis for a variance. To an extent, we've had

problems in the past where the variance has been based on a

condition or circumstance of the property, and at what point does

that apply? Is it applied at the time the permit was pulled, or

at the time it comes before the Board of Zoning Appeals? Does it

apply at the time it comes before the Board of Zoning Appeals,

and then do we have some equitable powers to allocate fault or

why things appear the way, or how, they got to this point or the

circumstances that they are today? Is it the County's fault?

Then if it's not a reason attributable to the applicant, but it

is a surveyor's fault, then it is a reason attributable to the

applicant, and the applicant doesn't get it in the second case

but does in the first. Mr. Barnebey, I remember, used to have

some pretty firm ideas about the condition of the property that

we could consider in granting a variance what constituted a

"circumstance" unique to the property.

Mr. Steinsnyder; I would prefer to give you something in writing

afterconsultation with Mr. Barnebey. He's got some ideas. The

only thing that I might be able to say would be: Though equitable

remedies I still believe do not apply to this proceeding, to some

degree they may be wrapped up into the various conditions of

"Hardship", for what that's worth, that because the County sup¬

plied bad information, that caused a hardship on the applicant.

But to fully answer your question, I prefer to get back to you on

this.

The motion carried 3-1 (Mr. Montgomery opposed, Mr. Sands ab¬

sent) .

2. VA-90-08 - STAR ENTERPRISE (TEXACO)

Request for approval of a variance from the requirements of

the Manatee County Comprehensive Zoning and Land Development

Code to reduce the minimum front yard setback from the

required twenty-five feet (25') to fifteen feet (15') (Table

C-l LDC) . Located at 2606 Cortez Road West. Present Zon¬

ing: C-l (General Commercial District) (.52j^ acre).

Ms. Barrett: This request is for a variance of the front yard

setback.The applicant has a 3-bay service station with a drive-

thru car wash facility located at the northwest corner of 26th

Street West and Cortez Road. They propose to renovate this

structure by transforming the existing service bays and cashier

area into a convenience mart and retaining the car wash facility.

In doing so, the existing roof of the canopy will be demolished

and replaced with a new flat roof. The interior will be remod¬

eled and no addition is proposed. The applicant requests a


variance to allow the canopy to remain at its existing setback.

They are going to tear it down and replace it, and if they re¬

place it as it stands, it will be 15 feet from the property line.

They say that the 25-foot setback imposes a severe hardship on

their modernization plan. Without approval of this variance,

they will be unable to provide all of the proposed improvements,

which include upgrading the fuel dispensers, and converting the

existing structure to a convenience store. In addition, the ^

applicant states: If this request is denied, the storage tank

must be relocated, which would impose a tighter turn radius for

tanker trucks then they deem safe and efficient.

In our initial review, we believed the canopy was originally

built in conformance with the Code, and then widening of 26th

Street caused it to be nonconforming. As we did more research,

we found the Property Appraiser's records indicated the canopy

was built in 1972. At no time could it have been built in

conformance with the ordinance. The ordinance in effect at the

time, in 1972, required a 25-foot setback. We have been unable

to turn up any proof of a variance being issued at that time. We

have asked the applicant to provide any documentation of a vari¬

ance, and they have been unable to do so also. We do have, in

our records, two "A" numbers, which is how variances were num¬

bered years ago, under the name of J.W. Rue, who is the property

owner, as trustee of this property, but we have no documentation

as to what those were for. We feel that it was probably built

either without a permit, or with a permit that was issued errone¬

ously, not meeting the required setbacks. We also have some

comments from our Transportation Department, and Dawn Wolfe will

give you those comments.

Ms. Wolfe; During our review of the proposed variance, we found

that there is insufficient right-of-way to provide for a sidewalk

along there - the frontage on 26th Street West. This would

provide a health and safety hazard, and since after it is submit¬

ted we would not be seeing it as a Final Site Plan, we would not

be able to gain any additional right-of-way to provide for side¬

walk.

Our Utilities Department has a comment regarding a Final Site

Plan provision regarding the solid waste. This indicated: "As

proposed, their industrial location is insufficient as inadequate

turning radius would be provided", but since we won't be seeing

this as a Final Site Plan, and we will not have the opportunity

to ask for that revision.

The site, as shown, will not work as designed, and it would not

afford the County the right to set forth any of the requirements

of the LDC, such as providing for a sidewalk along 26th Street.

We aren't getting any right-of-way to provide for that sidewalk.

Ms. Barrett; In conclusion, the applicant says that they seek

this variance to upgrade the property and better serve the prop¬

erty. We feel that this can be done without approval of a vari-


ance request. The intent of the Code, as it relates to this

request and based on Section 111.D.3, appears to be clear. When

a nonconforming structure is reconstructed or approved beyond 50

percent of its existing market value, it must conform with ordi¬

nance requirements which include minimum setbacks.

Mr. Montgomery; Isn't the proposed renovation going to increase

the value for this by 50 percent?

Ms. Barrett; Yes.

Mr. Montgomery; So I don't understand the comment. Would they

have to go through the full development gamut then, including

Final Site Plan approvals?

Ms. Barrett; No. Final Site Plan approval would only be neces-

sary if they were increasing the square footage of the building

by 500 square feet or more. What they are proposing is interior

renovation only. They are not proposing any expansion to the

structure.

Mr. Montgomery: The 50 percent valuation rule, doesn't that

invokeothercurrent requirements, even outside the structure

itself?

Ms. Barrett: There are requirements we could place upon our

review of the building permit, but it does not invoke the re¬

quirement for Final Site Plan Review.

Mr. Montgomery: Since this is interior remodeling and if it

exceeds the 50 percent value, they don't have to worry about

buffers? Onsite rainwater run-off and all those things?

Ms. Barrett: Those are all existing. They're not going to be

increasingthe impervious surface or adding to the stormwater

runoff.

Mr. Montgomery; What about landscape buffers?

Ms. Barrett: Landscape buffers are typically not required to be

upgraded unless you are increasing your off-street parking spaces

by a certain percentage, which then requires you to upgrade all

your parking and circulation facilities.

Mr. Montgomery; I presume that sidewalks and right-of-way for

sidewalks are also something that is not triggered by the 50

percent rule. And if it's not triggered, there is nothing we can

do to assist in that process.

Ms. Barrett: Correct. The 50 percent rule does require it to

conformEothe ordinance, so some of the ordinance requirements

would apply. Those that we can review with the building permit,

but no, the sidewalks is not something that we typically review

with building permits.


Joe Hadlow, represented Star Enterprise in the real estate side

of their business: As a matter of clarification, I brought with

me some photographs that I think might show somewhat where we

were and what we are trying to do. I have sufficient photographs

to demonstrate what we would like to do.

MOTION

A motion was made by Mr. Breeze and seconded by Mr. Conyers: I

move the pictures presented by Mr. Hadlow be entered into the

record as Exhibit "A".

Mr. Steinsnyder: The first photo that you passed out is not of

the Cortez Road site, is it?

Mr. Hadlow; No sir. It's illustrative of what would be our

intention.

The motion carried 4-0.

Mr. Hadlow: We initially brought our plans into the building

department and were advised of what would be required in the way

of a variance. Consequently we began preparing for this meeting.

Regrettably we can't find evidence how or why we built at the 15

foot, but we will have to assume that, since we were given a

certificate of occupancy, what we did was done with some degree

of inspection and was approved. The problem before us is we have

a difference in viewpoint on just where the canopy's leading edge

would be allowed. When we come back to the 25 feet, this takes

an island from us. We use a computerized system to help us

project what our economics will be at the site. When we loose an

isle, the consequences to the economics of the store are dramat¬

ic.

The sidewalk that we are talking about is from 44th Avenue to

43rd Avenue. It doesn't go beyond that. If you want a sidewalk

there, we'll put a sidewalk in, only it's going to go right down

our aprons.

There was some remark made about our waste removal, but we are

going to comply with what's allowable. We can't move the build¬

ing back. We have no way to enter the carwash. That's the trash

receptacle area.

We're tied to a piece of property that doesn't allow us the

opportunity to do what we would really like to do - a full tear

down, rebuild, remodelization of the property. We can't afford

that. On the other hand, we would be willing to concede whatever

you would like in the way of sidewalk, landscape, trash contain¬

ment. Anything to try to resolve a compromise to a situation

that is just blocking our effort to rehabilitate our property.


Mr. Montgomery: Let me assure the speaker that, as far as this

board is concerned, we can't help the county with dumpsters,

sidewalks and things of that sort in this request. I am con¬

cerned, however, as communities change and standards and desires

for land utilization change, there are some properties which are

permitted as an existing use only because they cannot change, and

that is a condition unique to the property. At some point your

investment in the original structure - in your original canopy -

has been amortized out, and you have in essence received the

benefit of your investment. At what point then does this piece

of property come up to modern standards of land utilization if

not now? It sounds like it's become somewhat obsolete in the way

it was constructed back in the early 70s, and isn't it time now

for this piece of property to come up to modern standards, even

if it means, perhaps, a land use change? Aren't we now deferring

the point for another 20 or 30 years, at which time this corner

will come up to modern standards?

Mr. Hadlow: Yes and no. Yes, we've expensed the improvements and

profit. The no part of it is: We cannot put on the property the

type of improvement that we would like within the boundaries of

the property.

We've got a piece of property that we're locked into but we are

trying to do the very best that we can to bring it up to the

customer image we would like to have.

Mr. Hedden opened the public comment portion of the hearing and

calledfor anyone speaking in favor or opposition to this vari¬

ance. No one spoke in favor of the request.

OPPOSITION

Bruce Reiner: I am aware of what the gentleman brought forth. We

faced that 7 years ago. When we changed our signage, it was

necessary that we pull back to that 25 foot piece. There is a

gentleman right in the back who owns the other piece that the

sidewalk is in front of, and it was necessary that he pull back.

Pulling back that sign where it was not visible definitely did

have an economic impact. If we are going to base the variances

on who has the greatest economic impact, we are all going to come

here and make great big economic impacts. He now is blocking

other signage on the way down on 26th Street. I don't really see

an overriding need to make that piece of property more valuable

to them. When we looked into it, it looked like it was built to

begin with - I don't know if I want to say "without permit", but

somehow it mysteriously appeared there, and now it's asking to

continue it and build it in. I'm sure you could go to everybody

up and down that strip, and they would love to do that. We'll

all just file for variances and build right out into the road,

saying it's an economic impact.

Mr. Steinsnyder; I don't want to preclude anybody from saying

whatever they want, but we've noted to this board, that listed

under "Improper Grounds for Issuing a Variance" under the Land


Development Code is "Conditions Personal to the Applicant, and

any conditions including financial, occupational, or ability,

which are personal to the applicant as applied to the property

involved in the application except for physical or mental handi¬

caps or disability may be considered relative to the request. I

pointed out, because there has been now both the applicant and

the next gentleman who got up that talked about economics, and

that shouldn't be something that you consider in this request.

Ms. Barrett: We did receive a letter in opposition to this re¬

quest from Weeks Oil Company, which is the Cortez Exxon across

the street from this facility. They are in opposition based on

the fact that they were required to meet the County codes when

they reconstructed their service station.

(Mr. Sands arrived. Mr. Hedden turned the gavel over to him.)

Bob Cates; I own the property just north of Texaco. I had to

move everything back 25 feet.

Mr. Sands closed the public comment portion of the public hearing

and called for a motion.

MOTION

A motion was made by Mr. Montgomery and seconded by Mr. Hedden: I

move to DENY Variance No. VA-90-08 on the basis that there is a

reasonable use to which the property may be put which is current¬

ly in conformance and is permitted under the existing Plan and

that is existing structures and existing uses.

DISCUSSION

Mr. Montgomery: I made the motion very reluctantly because I

think the last thing we want is - at a historical designation or

district, I think every chance we can to upgrade and improve, we

ought to foster and encourage, but the second thing we don't want

is another closed gas station on that corner. However, I think

the purpose of the 50 percent rule is to put an end date for

certain types of grandfathering conditions. I see this as a

basically a grandfathered condition. If this corner is going to

be brought into modern land utilization standards, 1990 is just a

good time, and perhaps a better time than 20 or 30 years from now

when perhaps the same considerations could be advanced in favor

of a further variance at that time as some other changes in the

Land Development Code. The existing structure and existing use

has fulfilled its purpose for the last approximately 20 years.

It's time to retire that structure and bring this corner into

full compliance with the 1990 version of the plan.

The motion carried 4-0 (Mr. Sands abstained from voting because

of his absence).

B.Z.A. 05/07/90 - M-inutes

3. VA-90-05 - HOWARD & GEORGIA WILLIAMS

Reconsideration of request for approval of a variance from

the requirements of the Manatee County Comprehensive Zoning

and Land Development Code to reduce the minimum side yard

setback from eight feetT8') to three and three-tenths feet

(3.3') (Table R-2 LDC) . Located at 4814 20th Street West.

Present Zoning: R-2 (One and Two Family Residential Dis¬

trict, 8.5 du/acre) (0.18^ acre).

Mr. Wright: The staff report remained the same as the original

request of April 2nd. On April 16th Mrs. Williams did provide

additional information, which was in your packet regarding the

health of Mr. Williams.

Alan Prather, attorney for the applicant: There seems to be a

littlemisunderstanding. The applicant, Georgia and Howard

Williams, certainly didn't ask for this reconsideration, since

the board granted our variance at your previous meeting. But

since I've moved faster than whoever may be the applicant for

this reconsideration, I would like to interpose, at least for the

record, our objection to these proceedings. No. 1, it is my

understanding that the very fundamental and basic issues in not

approaching or violating the rule of ex parte communication may

be involved in this particular application since it is my under¬

standing from the record that one of the members of the board was

contacted out of these proceedings by neighbors and raised the

issue, and then sought a reconsideration by other members of the

board. I submit to you that it is fundamentally unfair and

violates due process, at least within the understanding that we

have in Florida of quasi-judicial administrative proceeding.

Certainly, if there are people who are affected parties to the

original variance request, they may submit in the proper time a

written petition or motion to this board for the purpose of

considering action, such as a reconsideration. But I find that

it's fundamentally unfair and violative of the standards that

this board should hold to have members of the public call, un¬

known to anyone else; this is what types of pressure they may

apply to a board member, seek from that board member then sua

sponte or spontaneous request to the board to reconsider some¬

thing at a later date. To add to that, we would also object

because, apparently from the record, there is no basis for a

reconsideration. There appears there is no new evidence of a

nature that was not available, and in fact could have been sub¬

mitted by the objectors at that time that would warrant a recon¬

sideration. So, on those basis we would entertain or at least

submit to you our objections to these proceedings. But since we

are not the applicant, I have no earthly idea of who the appli¬

cant is, I would suggest that we will lay in wait and respond as

appropriate, depending on what matters within your convenience

that are relevant.

Mr. Steinsnyder: Mr. Prather is aware, the traditional rules of

ex parte communication apply to the final decision maker, and


though at some point in time, especially with applicant's attor¬

neys, staff, I'm sure would like to preclude individual members

from being lobbied. There is no rule that an individual cannot

contact another individual of this board. If this were a hearing

officer situation, where it was one final decision maker, yes, I

would agree that the rules of ex parte would apply. I don't

believe that the rules of ex parte communication apply when one

board member is contacted, for what that is worth.

Mr. Montgomery; Mr. Prather, I believe it was at our last meeting

the board member who did receive some information outside of the

hearing immediately at the next hearing brought it to the full

board's attention as to what he heard, how, and when he heard it.

You're not saying that it was any other communication to any

other board member other than that one bit of communication, or

that board member acted in any way improperly in bringing it to

the board's attention, are you?

Mr. Prather: I have no earthly idea. That's part of the basis.

We are unaware of what, if any, communication was given to that

individual and by whom, since it's not submitted in writing,

wasn't part of the petition requesting a reconsideration.

Mr. Montgomery; Well that board member reported it to the board

at the very next meeting.

Mr. Prather; That may or may not be true. I don't know. That's

my point. I can only tell you the individual actions and the

assaults that my client has received from apparent objectors.

But I have no earthly idea, and again that's one of the reasons

for the objection, as to what any or one of you may have received

from these objectors. Little do I know that this entire board

may have been contacted by them separately and evidence given,

matters brought to that so-called attention of the board, inde¬

pendent of which we have no knowledge.

Mr. Montgomery; I can assure you the only correspondence I re-

ceived, other than through my packet, was your client's letter.

Mr. Hedden; I don't exactly understand what Mr. Prather meant by

"he doesn't know whether it's true or not". It's a matter of

record that I at the last meeting did say that a member of the

community contacted me and told me that Mr. Williams was observed

mowing his lawn, and I at the next meeting repeated that and

said, "maybe if what they are saying is true, maybe if we had had

that as testimony at the first meeting, the outcome of the case

might have been different". That's the whole thing, and as a

matter of fact, when I was contacted, I made it abundantly clear.

I said, "look, it is possible to reconsider cases, and on the

basis of what you told me, it seems to me that maybe it ought to

be reconsidered, and I'm willing to bring it up before the

board." And then I said, "but I'm going to tell you right now,

that just because I make the motion to reconsider, does not mean

that I am going to vote against this thing. I don't know how I'm

going to vote".


Mr. Sands called for anyone wishing to speak in favor of this

request.

FAVOR

Josephine L. Eresten: I just want to ask a question. If a person

is really disabled disabled, does that mean he can't cut grass?

He's not dead. And the facilities that he has back there, he

really needs. My husband is disabled too, but every once in

awhile he tries to get out there and cut the grass, so I think

that's not a fair question, or whatever it was that "they caught

him cutting grass". He's trying. He has a wife that works, so

he's trying to help out. They shouldn't hold that against him.

He still is alive anyway, and he's trying to stay alive.

Mr. Prather: I have formally interposed to the board an objec¬

tion. Certainly if the board is going to vote against that

objection and continue on with the proceedings, then we are put

in a posture of having to redo the entire variance, we will

present evidence. But my objection is that it is an improper

reconsideration, and I need, for the record, some either affirma¬

tion or denial of that fact so that we then know what to do.

Mr. Montgomery;

MOTION

A motion was made by Mr. Montgomery and seconded by Mr. Hedden: I

move that we proceed to the reconsideration on the merits of the

rehearing request of the matter in rehearing. The motion carried

3-2 (Messrs. Breeze and Sands opposed).

Mr. Prather; Based on that, if I am to understand the process, we

now must proceed for the variance. Our so-called objectors are

not required to come forth in any basis for the apparent necessi¬

ty of having this reconsideration, but based upon your own rules

and apparently your determination, we will now try and address

this objection that has been rendered to the board. It has now

necessitated this reconsideration. We would move for inclusion

within the record of this proceeding, since every member of the

board is still the same as they were at that time, and the evi¬

dence as previously been submitted and as well as been handed to

the clerk that the record from that proceeding be incorporated

within these proceedings for whatever purpose at a later date may

be used. We ask for a motion to that effect.

MOTION

A motion was made by Mr. Montgomery and seconded by Mr. Breeze: I

move that we incorporate into the minutes of these meetings the

minutes of previous meeting, previously at which this request was

first acted upon, and (I don't know how we make our personal

recollection a part of the record, but we will, in our own

minds), listen to what we have heard today and listen to what we

heard back then. The motion carried 5-0.


Mr. Prather; This is a unique experience, but I will try, from

the best information that has been given to me by my client, to

anticipate what it is that is going to be the basis of this

objection. I would submit to you a couple of matters, some

affidavits, and have some people give you additional testimony,

since it is my understanding that the time apparently deals with

the physical condition, or the lack thereof, of my client.

Within that nature, I also understand that there is potentially

an issue being raised relative to the time and existence of that

screened porch, as to when it was allegedly built. If that turns

out not to be true, then so be it.

To that end, I submit to you an affidavit by Mr. Samuel L.

Williams, Jr. that reads as follows: "I Samuel L. Williams do

swear and affirm that the screen room at 4814 20th Street West,

Bradenton, Florida was erected prior to Howard and Georgia

Williams occupying said residence." That is notarized and I ask

that you accept it into the record.

Apparently there was expressed at a meeting of this homeowner's

association the allegation that my client had helped build the

sidewalk on his property, and in anticipation that that issue

would come up, we have an affidavit from Mr. Fred E. Barkey, who

is with Singeltary Concrete, and brought the concrete to the

location: "Before me this day personally appeared Fred E. Barkey,

who being duly sworn, deposes and say that he delivered concrete

to 4814 - 20th Street West, Bradenton, Florida on the 17th day of

April, 1990, and that Mr. Williams did not help to spread said

concrete. There was a young man that did the work and Mrs.

Williams helped."

To that same thing, we have an affidavit by Lowell R. Bowling:

"Before me this day personally appeared Lowell R. Bowling, who

being duly sworn, deposed and say that I personally watch Bill

Ward, my neighbor, do the concrete work for Mr. and Mrs. Williams

on April 17, 1990. Mr. Williams did not assist or help Bill in

any way."

For that matter, we would also like submitted into the record as

well a very detailed record of the health situation - physical

disabilities - of Mr. Williams. It is a photostat of the Florida

Retirement System Physicians' Report.

Mr. Steinsnyder; Mr. Prather, is that different from the one that

was submitted to staff?

Mr. Prather: I do not know. Assuming it was, that this is a very

detailedFeport by Dr. Blackwood as to my client's condition and

establishes, certainly by creditable professional testimony, the

health situation of my client.


MOTION

A motion was made by Mr. Breeze and seconded by Mr. Hedden: I

move to enter these documents into the record as Exhibits "A",

"B", "C" and "D".

Mr. Wright; All of the items of the last exhibit are the same

that are provided in your packet.

Mr. Steinsnyder; I think staff's point is that you have them in

your packet and have had a chance to review them.

The motion carried 5-0.

Mr. Prather: At this time we have testimony that will be present-

ed by two individuals. One is by Ms. Kirn Mills, who is the next-

door neighbor.

Kimberly Mills: I am the neighbor directly behind the Williams,

and I have lived in the area since October, 1988, and ever since

I have lived there, there has been the porch on the back, and I

don't find it a hindrance myself. As a matter of fact, it

screens for the privacy between my kitchen window and directly in

the back there. I also went out to talk to Mr. Williams as Mr.

Ward was putting the cement down for the area. He was not help¬

ing one bit.

Mr. Prather; Have you ever seen Mr. Williams undertake any stren-

uousphysical activity? Doing work of that nature since you

lived there?

Ms. Mills: No sir, absolutely not.

Mr. Prather: The other is Mr. Ward. Mr. Ward, did you put the

concrete sidewalk in that we were talking to, and the affidavits

identified?

Bill Ward: Yes sir.

Mr. Prather: Did Mr. Williams help you do that?

Mr. Ward: No.

Mr. Prather: You are a tenant, or lessee, of the Williams, is

that correct? Three years?

Mr. Ward; Yes, I am.

Mr. Prather; This is a duplex, is that right? In the time that

you lived next door to them, have you seen Mr. Williams undertake

any strenuous physical activity of the nature of putting in

sidewalks or working in the yard?

Mr. Ward: No.


Mr. Montgomery: Mr. Ward, were you the tenant that installed the

street area?

Mr. Ward; No.

Mr. Sands: Mr. Ward, have you ever seen Mr. Williams mow the

lawn?

Mr. Ward; No sir, I haven't. I take out his garbage every now

and then.

Mr. Hedden; Mr. Prather, I think it would be extremely helpful

for this board if you not only indicated or proved that Mr.

Williams is disabled totally, but what the relevance is to the

porch. I don't have any question in my mind that the man is

disabled. Why does he have to have a porch? At the previous

meeting that we heard the case, I got the impression from Mrs.

Williams that he needed this to sustain life - to breathe.

That's what I think this is all about.

Mr. Prather; No. 1, I disagree that there was any testimony that

the porch sustains life. Obviously, if he needed it to breathe,

that's a benefit that porches have unknowingly produced for

years. And I'm not trying to be facetious. The testimony was

very simple. It gives a very close proximity to the driveway for

Mr. Williams to leave from his car and be able to go inside to be

protected from the elements of the weather, and to have or gain

access without having to take long walks.

No. 2, the porch is a very minimal intrusion into the area of a

very simplistic manner of a pre-existing slab. It was erected on

the slab, and not requiring previous setback problems. That

variance is of a minimal nature, and one of the items within the

area of variances dealt with the physical necessities and bene¬

fits of it. That was the whole purpose. And I think Mr. Sands

and Mr. Breeze, and yourself made comments to that fact. Appar¬

ently, after that time, information came forth to challenge the

issue of my client's physical handicap, which in my opinion, has

nothing whatsoever to do with your reconsideration. The fact was

that the evidence could have been brought out at that time. It's

not new evidence. It's not like something has happened - as an

example, my client has gone to the doctor and found out that he

is miraculously cured, and therefore, those benefits aren't

accruing anymore for him to need the porch. Allegedly, these

things were all in existence at the time the hearing was held,

and for whatever reasons there may have been, these neighbors

chose not to bring it up. Then they come back on that very same

issue. I submit to you there is not a basis for reconsideration

on that. It's not new evidence.

Mr. Wright; Mr. Prather, was there a reason on this medical

evidence that was submitted originally, and then again as addi¬

tional information, that it wasn't more current? Most of it goes

back 5 or 6 years, and the most recent was just a list of pre¬

scriptions?


Mr. Prather: If you would look at the final summation by the

doctor, you will find that he has reached maximum medical im¬

provements. That there can be no improvement, and I see no

purpose in having a doctor state to you that it's the same or

worse, since that was his opinion previously, but if that seems

to be of interest to the board, then I guess we can go get a 1990

statement.

Mr. Sands: Heart disease is heart disease. Is there anyone else

who wishes to speak in favor?

Alex Eresten: I spoke previously for Mr. Williams. There seems

to be something going on here that people are not aware of.

After we left this hearing the last time we were here, I was

ridiculed all the way down the street with laughter and childish

behavior. I was called a liar here before I left the courtroom.

I will testify for Mr. Williams anytime.

Vada Boulware; I helped Mr. and Mrs. Williams move into the

residence where they now live. The porch was present at that

time. It was already there when they moved in.

Mr. Wright: The porch that was there - wasn't it also true that

it was constructed when the Williams owned the residence? The

Williams owned the residence at the time it was constructed even

though they didn't live there.

Ms. Boulware; Yes, they did own it.

OPPOSITION

John Peel, 2009 47th Avenue Drive West, Second Addition, Holiday

Heights:I am going to have to go a little off the script here to

deal with matters raised by Mr. Prather. This board has been

informed that communication passed between Mr. Gene Leasure and

Mr. Hedden. Neither Mr. Leasure nor I was present at this

board's initial hearing. Upon hearing from Mr. Pierce and Mr.

dark Waite, who were present to speak in opposition to this

variance, certain statements that purportedly were made by the

petitioner at that time, Mr. Leasure and others said that cannot

be true. We have direct contradictory evidence to a material

fact.

Now, on the ex parte thing, I happened to be in one of the County

Commissioner's chambers the other day - Mr. Kent Chetlain's,

having had lunch with him - when he received a call from Mrs.

Georgia Williams. The commissioner shared the call with me

through his speaker phone. She wanted the commissioner to ap¬

proach Mr. Hedden to tell him that her husband was sick. I am

simply mentioning it in rebuttal to Mr. Prather's charge that it

is an unfair practice to lobby outside. I assure you Mr. Leasure

did not lobby Mr. Hedden because I was present in Mr. Leasure's

home when he called Mr. Hedden. He said, "Mr. Hedden I have

direct contradictory evidence, when it was presented. I would


request that you, having voted among the majority, ask for a

reconsideration".

Now I come to the points at issue here. I am going to try to put

some form and context into the testimony you are about to hear.

I am going to ask this board to reconsider and to rescind its

prior majority approval on the basis that said prior approval was

obtained through the petitioner's misrepresentations of material

fact. As a fundamental example of this misrepresentation, I ask

each member of this board to recall the petitioner's sworn state¬

ment that (1) petitioners did not reside in the subject premises

at the time this nonconforming structure was built without due

special permitting process, and (2) that a tenant had this struc¬

ture built without the knowledge or permission of the petition¬

ers. In a few minutes this board will hear sworn testimony that

will directly contradict the petitioner's earlier sworn statement

on this pivotal point of fact. That direct contradiction will

indicate a deliberate and purposeful false testimony on the part

of one party or the other, and that will introduce the serious

criminal matter of perjury - a fact that lies beyond the purview

of this board and must lie with Earl Moreland's office, our State

Attorney. Yet, this board must examine the civil aspect of this

conflict and judge certain questions in the light of reason. Is

it reasonable to believe that a tenant would undertake extensive

and expensive alterations to demised premises with neither the

consent nor the knowledge, nor any agreement or financial adjust¬

ment with the landlords who would enjoy the exclusive capital

benefit of such an expenditure? Finally, let the board recall

the petitioner's emotional pleas for variance on the basis of

imperative health needs.

Their failure to follow due process for relief, via Special Per¬

mit, indicates that considerations other than health motivated

them. If health concerns mandated a breach of code, then via

Special Permit a temporary minimal structure may have been ap¬

proved which would not continue, nor convey in the event of death

or of alienation of the property.

If in fact the petitioners have not materially mistaken the facts

on either the origin of this nonconforming structure, nor its

vital role, in the light of petitioner, then surely this gross

violation of code need not be continued in order to now permit

petitioner to now remove this nonconforming structure and to seek

Special Permit under reasonable stipulations of minimal size and

temporary nature. There are two categories of health and safety

considerations. Personal and public. Petitioner has sought this

variance on the basis of personal health needs. Again, you shall

hear testimony which may bring that matter into question. But

the public health and safety issue is manifest and undoubtable.

Fire and police and other emergency services must have access to

all properties at all times. We cannot choose the nature nor the

times of disasters. The subject nonconformity, in conjunction

with the fence near the property line, directly west of the

subject screened enclosure, acts as a limit to access by emergen-


cy personnel &nd as an absolute bar to emergency vehicles. The

setback rules on interior lines may act to enhance the appearance

of our neighborhood, but they serve a vital function as well, in

any event, that requires ready-access by emergency crews and

equipment. I have known him to be in the blazing sun for consid¬

erable lengths of time - 15, 20 minutes, a half hour, an hour.

Mr. Breeze; I have been outside all day long. I thought it was

kind of nice out.

Mr. Peel; Yes sir, it was. I will agree with you there. The day

that I witnessed the petitioner supervising the installation of a

concrete approximately 10 feet by 10 feet - it was one of the

hottest days you would ever want. The temperature was in the

90s. At that time I'm not certain of petitioner's identifica¬

tion. I stopped by Mr. Leasure's air conditioned home. I said,

"Would you come out for a minute. Gene, and look across the

street and tell me if that gentleman standing in that blazing sun

is the gentleman who is dying of a heart condition". He said,

"that is the man".

Mr. Sands: Can you explain why you weren't at the very first

meeting.

Mr. Peel: Sir, I was otherwise occupied and so was Mr. Leasure,

and frankly, never having appeared before this board before, I

thought this was a nonpermitted structure in gross violation.

Mr. Sands; Some of the things you have referred to - are you an

attorney?

Mr. Peel: No, not in this case.

Eugene L. Leasure, 4915 - 20th Street West: I am not a doctor;

I'm no judge of physical beings; but I do know I have seen this

man perform duties normal to anyone else in the neighborhood -

the cutting of grass, the washing of a car, the sale of a car -

I've never seen the man in any condition other than anyone else

in the neighborhood who has gone through heart surgery. The

reason I couldn't attend last time was because my wife is on

oxygen 24 hours a day and I couldn't attend this meeting. When I

heard the testimony that had been given, I just couldn't believe

it. So therefore, I am Holiday Heights representative in the

federation of Manatee County. I am also an officer in the asso¬

ciation of Holiday Heights. I did contact Mr. Hedden, and Mr.

Hedden - as he explained - said, "Gene, I'll try. We are having

a special meeting. I'll make a request, and based on the infor¬

mation.." Well that very day, Mr. Williams was out cutting the

grass. The testimony you heard I don't believe was made as the

truth. I think it was made from the heart when you heard it,

other than what I'm saying.

Insofar as that screened-in porch, I can't say as a certain that

they lived there at the time it was constructed, but I can swear

1/07/90 - Minutes

on any Bible anywhere that Mr. Williams supervised it. He stood

there and watched the 2-1/2 days that it took to construct that

porch. They say that a tenant constructed it. Would a man spend

hundreds of dollars constructing something like that, that even¬

tually winds up being a necessary item for the health of this

individual? We have numerous people in Holiday Heights that have

heart problems - have very bad physical problems - which does not

permit them a variance or to build without a permit.

He may be disabled, but he does do duties that are certainly in

compliance with what the normal duties of anyone that owns a home

there.

Clack Waite, 5116 - 18th Street West, Holiday Heights: I was here

at the last meeting, and one of the reasons I can get back up and

say anything about what had been said before is because I consid¬

ered that anybody that had been sworn in here that I better keep

quiet and not turn them in. I knew there were some statements

that were untrue, but I didn't think that I had the right to do

that, because I'm pretty green at this business. I agree with

Mr. Leasure, and anything that he has said, as far as I'm con¬

cerned is the truth. I saw Mr. Williams there at the time the

porch was being constructed. Also, in talking about having a

convenient way to get into his car from the porch, the front door

is almost exactly the same number of feet from the driveway - his

front door is closer than the back door to the car to the house.

Mr. Montgomery: Are you the one who is going to be able to tell

us, as a matter of fact, that Mr. and Mrs. Williams did not live

in this structure at the time the screen was built?

Mr. Waite; I'm not going to be able to tell you that they didn't

live there. I can tell you that they were there and happened to

be involved. Whether they lived there or not, I know they owned

it, and I know they were on the property when it was being built.

Mr. Montgomery: Just to satisfy my curiosity, do you know any¬

thing about any laughing in the elevator and as you were walking

away from the building?

Mr. Waite; We could have laughed. Yes, we probably thought it

was kind of funny - that anybody would get up and tell things

like that after they had been sworn.

Duane Pierce: I live on 20th Street, just about two blocks away

from Mrs. Williams. We are on the same street, and I pass that

corner anywhere from 6 to 8 times a day, and being on a corner of

course I obviously can see everything around. I see Mr. Williams

out there - like last weekend, on a very hot day, standing there

watering the lawn. I went to the grocery store, came back and he

was still standing there hand-watering the place - over 90 de¬

grees I know. I see him there washing his car. Aside from that,

I don't know about any construction, but I do know he's there. I

did not witness this construction at any time.

B.^. ..'CT5/07/90 - Minutes

Mr. Montgomery: Mr. Pierce, are you the witness who is going to

be able to tell us, as a matter of fact, that Mr. and Mrs.

Williams lived in that house at the time the screened structure

was built?

Mr. Pierce; I can't tell you that, no.

Tom Water, 5120 - 20th Street West: I don't have anything against

Mr. and Mrs. Williams whatsoever. To me, I think they got the

cart before the horse. I think the important issue here is the

zoning and the permit. If you're going to do something, you are

supposed to do it right. I'm not saying he doesn't have bad

health, but I think the premises could infringe on my privacy and

that's just too close for the zoning. I've been up and down the

street a lot and I've observed Mr. Williams cutting grass; he's

always out there washing his Cadillac and waxing it.

Mr. Montgomery: Are any of the witnesses going to tell us Mr. and

Mrs. Williams were living in that structure at the screening was

put on?

Mr. Water: I don't understand what that has to do with it.

Mr. Montgomery: I don't either. We were just promised a witness

who was going to tell us she is a liar. We haven't seen that

witness yet.

Mr. Leasure: To the best of my knowledge, prior to this screened-

in area being built, they were definitely living in the place.

They were there nights. They may have another place to begin

with, but I know they were spending nights there. I'm the one

who will verify the fact that they were there when it was built.

Mr. Montgomery: It is your testimony, under oath, that during the

2 or 3 days that this screen took to build that Mr. and Mrs.

Williams were living there as their principal place of occupancy?

Mr. Leasure; That I can't be certain of, but they were staying

overnight. I could tell by the cars that were left there.

Mr. Montgomery: Do you know if anybody else was living there -

like a tenant?

Mr. Leasure; Well, I hardly think they would be staying overnight

with a tenant.

Mr. Montgomery: The reason I ask is, all Mrs. Williams said to

us,in her letter, was: "The last tenant owed us back rent and we

resolved it by allowing them to install the screen enclosure".

She didn't say it was installed without her knowledge or permis¬

sion. She just said it was installed by a tenant. Now, we were

promised that a witness was going to come up here and tell us

that Mrs. Williams was a liar, and that was where she was living

at the time it was installed. Now this character assassination

s.^^^^Wz B.Z.A. Ub/U 1/90 - Minutes ? A,

has got to be backed up with facts. I'm getting upset with the

way this is being handled. It's unfortunate that we can't re¬

solve some of these things in a different manner. I'm still

waiting to hear from that witness who we were promised was going

to prove to us Mrs. Williams is a liar.

Mr. Leasure; Who promised you this?

Mr. Montgomery; Mr. Peel. \

Mr. Peel: We were going on the report that they had made that

this was done by a tenant without their knowledge and permission,

and Mr. Leasure has stated that from day one, delivery of materi¬

al through the construction period he witnessed Mr. Williams at

the site, which would certainly indicate knowledge that the

structure was being built.

Mr. Montgomery; I don't want to blow this out of proportion, but

whenIhearthe words "perjury" and the name "Earl Moreland"

mentioned, I would like to get...

Mr. Peel; Well, Mr. Montgomery, that was on the assumption. I

said"one party or another" - if you hear the direct contradic¬

tion. You are saying now that the contradiction is muted by the

fact that the tenant had said that this work would be done; that

this structure would be made in lieu of payment of back rent, if

I understood your reading from the text correctly.

Mr. Montgomery; I read the letter exactly as it is written, and

everybody can interpret what I said their own way.

Mr. Peel; I understood you to say that they had agreed with the

tenant that this structure would be done in lieu of the payment.

Is that incorrect?

Mr. Montgomery; I read the letter exactly as it is written.

Mr. Peel; I said, if there is that direct contradiction - if the

original statement is not on record - is not given in testimony

here - and the contradiction that Mr. Williams was seen by Mr.

Leasure on the site during construction, which would imply knowl¬

edge that something was going on, something was being built - if

that does not exist, there is no question for the State Attorney.

Mr. Montgomery: It seems I must disagree with you on the inter-

pretation of your remarks as well, because I remember you saying

that we were going to hear evidence, we were going to hear wit¬

nesses testify that she was living on this property at the time

the screen was built. Now, we're beating a dead horse, and that

is naming the horse that's drawing this carriage. A lot of

people's feelings that get involved in these hearings, and we are

bringing them in unnecessarily and hurt them and kick them around

unnecessarily.


Mr. Peel; I agree with you. Sir. My statement exactly was that

in a few minutes this board will hear sworn testimony that will

directly contradict the petitioner's earlier sworn testimony on

this pivotal point of fact.

Mr. Montgomery; And I'm still waiting to hear that direct...

Mr. Peel; That direct contradiction will indicate a deliberate

andpurposeful false testimony on the part of one or the other

party.

Mr. Sands; Thank you. Is there anyone else who would like to

speakHT opposition to VA-90-05? No other opposition? Mr.

Prather?

Mr. Prather; I don't know if the original of these were in the

staff report to you or not. My client has given me the original

letters from Dr. Baity (dated April 17, 1990) and Dr. Blackwood

(dated April 11, 1990) relating to my client's condition. I

think it is important, and I'll give these to the reception of

record as the basis for rebuttal for the present physical condi¬

tion of my client, but I think it is important - the letter of

April 11, 1990, Howard L. Williams, to Whom It May Concern, this

is from Dr. Robert E. Blackwood (read from letter). The final

thing before I render any comments that we're entitled to, we

have dated March 1, 1990, which I assume is in the record, since

it is a governmental response, a letter from the Cedar Hammock

Fire Control District relative to VA-90-05, says this department

has no objection to the variance, and signed by the fire marshal

and the fire inspector, for your record. I think it's relative

to an issue raised as to the so-called great "public safety"

issue that's involved in this screened room, which I think is

absolutely ridiculous, and as now summation of our position or

argument, I think the whole thing was ridiculous, to be very

bluntly. I think what we have here is a classic example of

people who are upset, who did not have a position that they

advocated upheld, and who have vindictively again tried to ad¬

dress and reaffirm that. There has been no evidence submitted

from this board to reconsider that variance, as you have done,

but much less to deny that variance. Regardless of your vote

originally, I think you now face a manifest requirement to uphold

your decision based on the fact that this board is being used as

an instrument of chastisement, disagreement, vindictiveness,

whatever term you want to use, for people who can't get along.

You made a decision. That decision is a matter of record. There

has been nothing to make you change that decision, and for the

integrity of this board, you should stay with that. I know for a

fact that you guys are not the most popular people in the world.

I understand that there are boards out to eliminate you, and that

you have been sued by your own friends across the hall, but I say

that to you from the standpoint that it's not an easy job. I

understand that you may not be with us in a couple of months.

But my point is that it's a serious job, and you do what you

think is right. I'm not saying that if you vote against my

411 ^

B.Z.A. Q5/C7/90 - Minutes Paqe 26

client that I will be happy. I will not be, obviously, but I

think it's a very simple premise before you now. You made the

decision, the evidence supported that excision; they did nothing

to raise a doubt to that point, and this was just bad. This was

wrong.

Mr. Montgomery; Mr. Prather, I understand your point about wheth¬

ero"rnotwe must have a nakedly finding of newly discovered

evidence, as a judge in granting a retrial has to stay the

grounds for granting the motion for retrial. So notwithstanding

your objection for your position on that, on the merits of the

original application, that probably comes as no secret or sur¬

prise to you I voted with the minority last time, I voted to

deny, and I did so because (and I'm looking back at my notes) we

had a 12 foot wide screened porch which would then be reduced by

4.7 feet, leaving a screened porch of 7.3 feet in width with the

door, as I recall - the door for getting in and out of the house

to the car through the door into the house - would be in the part

that was left over, and that the 7.3 was still a usable screened-

in area. Now that's why I voted in the minority last time

against the application. Do you have any information that my

figures are wrong or I misunderstand the circumstance, and if we

could turn back the clock and this was still that hearing, that

should persuade me to vote in favor of the application if it were

coming up for the first time?

Mr. Prather: Mr. Montgomery, I do not disagree with your calcula-

tions.Obviously you added and subtracted. I disagree with your

conclusion that a 7 foot tunnel is a usable and effective

screened porch relative to the issues that were raised, no. 1,

and no. 2, I think your point was that the screen porch that was

there was the minimal amount that was necessary. I think that

when you look at a variance from side or rear yard setbacks, the

term "minimal" that's necessary is one relative to the issue that

you are asking for. Is this the minimal necessary setback to

accomplish the request that the applicant is asking? And if the

applicant has first come in here without the slab pre-existing

and had asked to obtain a variance for a usable screened porch,

they would not have asked for 7 feet of a tunnel, ok? I'm saying

that is my position. What we have here though is the existing

structure and the variance, which is a little bit the horse

behind the cart type thing, but that's my only point to you. I

guess someone could argue, if it's wide enough for a physical

person to move down through it, that's sufficient. Well, that's

not usable, and it's not attractive and it's not beneficial. I

think we submitted that matter at the time and the board appar¬

ently agreed to agree with it. I've got a grievous concern now

with what's going on. And it may be hard to articulate, but

there is just something that's as fundamental as the right to be

here, but you also have the right not to abuse the process, and

that's what bothers me today. And that's certainly something

that has to be considered.

'-——.

W L-N \^L


Mr. Sands; Mr. Prather, there was a question brought up during

thishearing in reference to living there cr not living there.

Is it known where their formal homestead was at that time?

Mr. Prather: The testimony by Ms. Williams, to ir.y recollection,

wasthat she and her husband did not live there, and in fact they

did move there because the screened porch was there and was going

to be used by them and beneficial to him as far as being able to

sit outside. Ms. Williams is here if you wish to reopen that

whole area, but I will tell you that the Williams' were not

living in that unit at the time that the tenant constructed it,

and that the tenant's name was not Williams. The tenant who

constructed the screened porch was someone named Maynard, if I

remember the testimony from the last time.

Mr. Steinsnyder: Something Mr. Prather has continually gone back

to, and I feel it's necessary to inform the board, this board is

controlled for reconsideration by provision 401K of the Land

Development Code. It does not require new facts. Inherent in

this text is that if something comes up, as Board of County

Commissioner's rules delineate, which makes this board feel there

was an error, whether there was factual mis-statements, whether

new information has been provided, something that makes this

board doubt its decision. I felt, last time, that it was well

within this board's prerogative to reconsider the decision or I

would have informed you at that point in time that I didn't think

that this was a proper reconsideration. Having said that, that

has no bearing on what your decision is today. I don't get

involved with the facts; I'm just advising you on law. I think

the reconsideration vote that gets you here today was perfectly

legal.

Mr. Sands declared the public comment portion of VA-90-05 closed

and called for the pleasure of the board.

MOTION

A motion was made by Mr. Breeze and seconded by Mr. Hedden: I

move to enter into the record: a letter from Dr. Blackwood as

Exhibit "E"; a letter from Dr. Robert Baity as Exhibit "F"; and a

letter from the fire control district as Exhibit "G". The motion

carried 5-0.

MOTION

A motion was made by Mr. Montgomery and seconded by Mr. Conyers:

I move that we resolve that it is our policy that before we rule

on the merits of any rehearing request that we make express

finding of newly discovered evidence.

DISCUSSION

Mr. Hedden: I thought that our attorney just got done saying that

you don't have to have new evidence in order to rehear.

,. T".


Mr. Montgomery; My understanding is that the ordinance does not

require us to do that.

Mr. Fedden; Will that take effect before we make a motion on this

case"?

Mr. Mont^omer^; I would expect that I would be guided by it, yes.

The motion carried 3-1 (Mr. Hedden opposed).

Mr. Steinsnyder: I'm not sure that you can apply it retroactive¬

ly^I agree with what your intent was for previous cases, if the

policy decision of this board is that on reconsideration one of

your grounds would be newly discovered evidence, and that's well

within the prerogative of this board, but this board has already

granted reconsideration. You've gone through the public hearing,

and I would have to advise you that you need to vote on that

reconsideration in the public hearing that you just upheld.

Mr. Sands; My feeling is that Mr. Montgomery has made a motion

that carries from May 7th at 3:58 p.m.

Mr. Montgomery; The point is, if the board had not voted 3-2 on

April 2, 1990 and this was the first time we were considering it,

my vote would stay the same. But on the other hand, unless we

are going to interpret every hearing as encompassing at least 1

and 1/2 months and in usual pace, 3 months, then I think we need

to decide from among ourselves for purposes of our own guidance

what it is we are going to expect to see before we overturn

something that was done in all good faith and with not one bit of

different information that I know of. On April 2, 1990 we knew

there was disagreement as to whether or not the disability was

relevant to the request. I argued it was not relevant. Three of

my brothers on the board disagreed with me.

MOTIOH

A motion was made by Mr. Breeze and seconded by Mr. Montgomery:

I move that we uphold our previous decision of April 2, 1990 to

grant Variance VA-90-05.

DISCUSSION

Mr. Hedden; If we are going to abide by Dave's motion, then we

should decide whether or not any new evidence has been submitted,

not make a motion to stand by our previous decision, which is

saying the same...

Mr. Montgomery; How I intended my motion to apply would be,

beforewewould vote to reverse something we have previously

done, that we make an express finding. If we are going to vote

to approve it, that does not require an express finding, if we

are going to going to affirm what we previously had done. I

'-_^

_K ,„ -p.

P.Z.A. 05/07/90 - Minutes

intend to vote in favor of the motion, not because I now agree

with the board where I disagreed with the board on April 2nd, I

continue to disagree with the board as to its decision on the

relevancy of the disability to the requested variance; however, I

think that we need to give the previous action of the board due

deference, and we do so by passing this motion.

Mr. Steinsnyder: Just to clarify. What you are asking to do is

have the same vote cast once again.

Mr. Montgomery; I'm just explaining my thinking.

Mr. Sands: We are voting to reaffirm what we did here last month.

The motion carried 4-1 (Mr. Hedden opposed).

Mr. Steinsnyder: In all likelihood at the next month's meeting my

officewillnot be representing you. There is a resolution

pending before the Board of County Commissioners, due to the

conflict which was presented in the Board of County Commissioners

suing you, that our office would no longer represent the Board of

Zoning Appeals or the Construction Code Board of Appeals. At

this point it's not clear whether I will still be appearing here

representing staff, whether you will be hired outside counsel,

I'm not sure, but we'll come forward at your next meeting and

explain what's happened. I just wanted to make you aware of what

was happening.

The meeting adjourned at 4:05 P.M.

MANATEE COUNTY BOARD OF ZONING APPEALS

,,.^T^'

ATTEST ^•''"''^

BY: M

•V'^CLERK OF''C^C.UIT COURT

^^^A-^g^j,, ,... ^ :

-3 ..Depu^'Gler^

•<• •y. - •>'." -''^.•

-.<; '• Vf. '." •' ''•'•>•

-^ '••'/^^•\.--'^

-•• „**'

^-x/.^f-'111

MINUTES MANATEE COUNTY BOARD OF ZONING ......1990/05/07 · gotten their consent decree out of a...

Documents

Transcript of MINUTES MANATEE COUNTY BOARD OF ZONING ......1990/05/07 · gotten their consent decree out of a...