Planning & Zoning Board - Regular Meeting

Recording in progress

Everybody can stand and join me in a pledge of allegiance.

Board Member Lozada is absent. Board Member Murphy. Board Member Abramson. Board Member Abramson is on Zoom. Hi.

I'm here, guys. Sorry I couldn't make it in person.

Board Member Turbides. Vice Chair Gonzalez. Chair Shaw.

You have a quorum. You need to approve the minutes from the last meeting.

I get somebody to make a motion to approve minutes from the last meeting. I'm going to take a roll call.

Yeah, take a roll call.

Board Member Murphy?

Yes.

Vice Chair Gonzalez? Yes. Board Member Abramson? Yes. Board Member Turbides? Yes. Chair Schell?

Yes.

It passes.

Thank you very much. All right, so the items on the agenda.

I'm going to read the resolution title. Item 3A, a resolution of the Mayor and Commission of North Bay Village, Florida, providing with conditions or denying a variance application by Anthony Marlowe for property located at 1460 South Treasure Drive, folio number 2332. 09090270 to permit the installation of synthetic turf in a 100% of the plantable area in front of the front yard, where the ULDC restricts installation to no more than 20% of the front yard, providing for conditions, providing for violations, and providing for an effective date.

So...

Good evening, apologize. So I have, I'm getting over a cold and so my voice is a little raw, but this is a single family residential property and it is located on Treasure Island and has a lot area of 9,000 square feet. The home on this lot was built in 2016, and the property owner, current property owner, in December 2023 was cited for having installed synthetic turf on the property without the benefit of a permit. We have talked about the fact that apparently many people didn't realize that a permit was required for synthetic turf. This obviously would have been previously regulated by our original synthetic turf ordinance, which, as you know, was very recently amended, and you all had a substantial discussion about it and made a recommendation to the commission, which they adopted. So in the previous iteration of the synthetic turf, this circumstance would have been non-approvable, not approval at all, because the synthetic turf is on 100% of the plantable area of all the yards. And our previous iteration of the ordinance allowed 20% of the plantable area of any yard. So we advised the property owner that the only way that he could actually get a permit for this would be to get a variance. Otherwise, the turf would have to be removed. The other issue with the installation as it stands is that under the previous ordinance, the pile height, the maximum pile height was one inch 20, oh, let's see, maximum was 175, and the minimum was 175. I'm sorry. Yes, that's right. And the installed synthetic turf, the pile height is 1.25 inches. So that also is a deviation from what was in the code at the time. The property owner did submit a permit application in April of 2024 without the approved variance, allowing for consideration of a permit. For that reason, the violation then remained outstanding until now. the property owner has appeared before the special magistrate and it has been accruing fines on the property since April 18 of 2024. The variance could have been obtained at the time, but because we were in the process of addressing different issues with that ordinance and we knew that there were going to be changes, I think he decided to hold back until he knew what the outcome of that process was going to be. So At this time, basically the extent of the variances, what could have been under the previous code, has been reduced because in the current ordinance, you can have 100% of the plantable area of the side and rear yards be synthetic turf. But at the same time, we have removed the ability to have any synthetic turf in the front yard. so while he can he needs a permit still for all of it but uh he can keep a hundred percent of the side and rear yards as they are and he needs the variance to keep the 100 of the plantable area of the front yard as well the uh pile height issue has become because the new ordinance actually goes with the 1.25-inch pile height. So his installation would be in compliance with that. Now, the basis for this variance request is medical. Mr. Marlow, the property owner, has stated repeatedly that it's due to severe allergies to grass. And even though we cannot require medical record to be disclosed to us, obviously, they did provide a doctor's note together with the variance application. So when we went through the variance criteria, we took that into consideration. As a medical condition, it would be within the definition of a hardship, but not necessarily in the same way that we tend to look at hardship with respect to variances. So even though in the evaluation of the criteria of the code, we know that it doesn't necessarily meet strictly all of the criteria, we have been willing to take into consideration the medical hardship and recommend that this could be approved with the reduction of the scope of the variance as I have described. After having consulted with the village attorney, I can disclose and I heard today that it's actually even more confirmed than I thought that the property is for sale on the market and that the property owner actually is has just purchased a home in another community where, from what I read, he intends to make primary residence. And so I don't know, you know, for the purposes of my analysis, I kind of, you know, stand with the application as it is, but that may be a factor that you may wish to consider. So at this time... And based on the facts of the application, we are finding that even though not every criterion is met, we acknowledge that there is a condition that if the property owner remains in this home would make it less livable for his purposes and that we would be open to support a recommendation of approval of the variance on that basis with a number of conditions which are in the staff report. If you have any questions for me, I'd be happy to answer them.

Is there anyone online?

Well, I'm not in favor of having synthetic grass in the front yard. We've turned down other people that wanted to do that. So if he's allergic to synthetic grass... Board Member Murphy, if you could get closer to the mic.

Sorry.

So if he's allergic to the synthetic grass, I can appreciate his situation. However, if he's selling the house, then I would make it a requirement that if he sells it, to replace the synthetic grass with real grass in the front if he sells the house.

That's what I would do.

That's just me.

Yeah, I agree with Mr. Murphy. Is there a way that we can put in the language that since he has a medical situation and he gets the variance for the 100% grass in the front where in the selling document that the new owners have to follow the original code and bring it up to the 20% turf and 80% natural turf.

Thank you. The previous code, which was the 20%, or would you like to have it meet the current code, which is no synthetic turf in the front?

Current code. Yes. Okay. That's what I thought. So to address that question, we could limit the variance to this owner, and it ceases the moment he sells it.

But I would make him required to do the real grass in the front and not the person who buys the house.

To restore it to...

It could be part of a sale. It has to have a timetable within like 60 days of close.

Yeah, but he gives the dealer the credit. Or you could say, I mean... if if you have the variance cease expire uh upon sale of the land then it's it's almost like a condition of closing because they're they're the house will be uh in violation of our code yes as of the day of sale correct as of closing so it'll have to get done before before that so if you were disposed to do that it would you would be making a recommendation to the commission that they incorporate a condition that limits this variance to this owner.

OK.

I've got an observation, and I think this is a great solution for this one particular owner, Paul. I think that's a, and I would be in favor of that. But this is more on the legal side. To what extent, by allowing this, do you actually make allergies a hardship for any other applicant that might come that is not thinking about moving, that wants to stay there? And do you create a precedent that may be challengeable legally later on if you deny a variance based on equitable treatment, et cetera, right?

it's an excellent question uh so first of all just generally variances stand on their own the legal hardship criteria that is in your code and is commonly accepted has to do with the property does not have to do with the owner this a health issue has to do with the owner it is not a legal hardship and i think you heard that from from your staff uh so To the extent that you are applying the criteria faithfully, staff cannot support based on the legal hardship. I believe what staff has considered is more of an accommodation for his particular circumstances. It is not a precedent for the future for others.

So why would then that have to come in front of the P&Z board if it's just an accommodation and not really asking us to make a recommendation on a variance?

Well, he's seeking a variance. He has a right for a variance, yeah.

But we're saying that you can only get a variance if you can demonstrate hardship, and this is not a hardship.

Yes.

Correct? Yes. So by us getting involved quasi-legally here, aren't we setting a quasi-legal precedent?

You are highlighting an issue.

Absolutely. So if it's an accommodation, then why don't we let that be handled at staff level and not... We cannot handle...

There's no administrative variance remedy for this particular situation.

Okay. So then we would have to consider it as a hardship. You would have to consider it...

That's how it's been. You have to consider the application that's before you. So that's the question that's before you. And the hardship criteria that they have raised is not a facet of the property.

Correct. So then I circle back to my original concern. If we consider it as a hardship, now are we making allergies a hardship? Anybody can come and apply for, and then we would be subject to equitable treatment.

And that would certainly be a valid reason to not support.

Just want to clarify that.

So one other comment that I had here is that, Sylvia, correct me if I'm wrong, but this owner has been collecting fines on this property for one year now.

That's my understanding.

So it's my assumption that the only reason that this variance has even been applied for is because this property is for sale. So typically, in my limited real estate experience, all open permits and property violations would have to be taken care of. So I don't think that this is the owner genuinely wanting to nip this in the bud. I think this is going to be a condition that he has to sell this home. You know, so I don't know. Like, I kind of understand, you know, what the other board member was just saying. You know, like if if we're going to go down the hardship line, you know, like maybe if that were the case where the property wasn't on the market and this guy's allergic and he wants to spend, you know, I don't know, time enjoying his turf, then fine. But that's not the case here. So I'm inclined to have it go back to, you know, to code, bring it to code.

Again, you know. How do the fines work? Code enforcement here.

I know that Orlando was here. There he is.

Are they mitigated? Like if they're like $15,000 by the time it closes, does he come and mitigate it and then get it removed or he has to pay the whole 15 or how does that work?

Don't touch it. Good afternoon. So what was the fines work? They've been running for... So this violation was issued December 2023. Um... the property began to accrue fines April 2024. Next Wednesday, it'll be a year exactly, next Thursday, pardon, 365 days that has been accruing fines and the property would be at approximately $91,000 in fines. So the way it works is, just like with any code case, we let it run as we can see the owner has been making strides to comply, which they have. Month after month, I was in communication with this gentleman's attorney, Ms. St. Laurent, and they were kind of in limbo with the ordinance. They were waiting to see what was going to happen. Because in their mind, they were like, you know, maybe when they review the ordinance, they're going to allow 100% front yard coverage and then we wouldn't have to apply for variance. So I understood that. So they kind of held back and waited. I didn't hear anything or know anything about them selling back then. Uh, it's been a while. Uh, so, um, I just found that I was being sold today. I didn't know that part either way. Um, so basically we, we, we run the fines usually up to this one by the one year mark. And then we, which as is typical with when cases reach this point where, okay, it's been a year. Let's, uh, What's customary to do is we ask the magistrates to, hey, your honor, this case has been going on for a year. We've reached the end point of this. We're going to allow this property owner their final 30 days to comply with this violation, however that is. If not, we will cap the fines and record a lien on the property. So that's what's done. And that lien, as you know, will remain as a blemish on that property for the next 20 years. So that's where they're at. They basically have one more hearing until we do that.

just just to um just to add to what orlando just said uh just a reminder from my staff report that i mentioned that um the property owner filed for a building permit for this last year and that permit has been in the system since then waiting for the outcome of the synthetic turf amendment process as well as the outcome of the variance which he didn't submit until just about the time when the synthetic turf ordinance was adopted.

But the $91,000, he has to pay it, or is there a mitigation process?

You can only mitigate fines when you're in compliance.

So after it's in compliance, he comes and mitigates it?

He sure can.

Which would happen on or before closing in this situation?

That's irrelevant to us.

What's been laid out or discussed?

Just to clarify, we can't speculate to what's in their contract and what the requirements are for closing.

They're probably... When did they apply for the permit?

I think it was April of last year.

How much does the front yard have?

A year ago? They're probably going to try to mitigate with the magistrate to take it back to their take it back to when they applied. If there's a variance passes, they're going to take it back and try to mitigate to when they applied for the permit.

How much of the front yard Orlando has synthetic grass? All of it.

All of it.

I know there's a driveway.

Yeah, there's pavers, there's the walkway. So it was in the packet. I don't know if that's printed out somewhere, but you can see the photos in the packet he presented. Yeah. It's very nice.

It's very nice. It's a big portion of the house covered with pavers. Yes. And stairs. The documentation was submitted with the application. Artificial turf is permitted between pavers. Yes, that's correct.

in a limited manner.

So anything that's paid, I don't know if that's turf or not, he wouldn't have to deal with that. Correct. He wouldn't have to remove that. Right. Correct. Only the two lateral of the leaves.

Perhaps, yeah, the size strips and stuff.

Not a huge portion of it from what I was able to see.

And what was unique about this home is I hadn't seen any other home in the village that's 100% artificial turf. I'm talking front to back sides.

there's not a drip of grass on this property so you don't have to replace it with grass you can do any type of landscaping you want you you don't uh have to replace it with grass in fact um i know that the um sustainability resilience task force is going to is working uh towards finding um potentially amending the code so that we actually encourage the use of alternatives to sod that would not be synthetic turf in the form of ground covers, native ground covers, for example. And there's lots of those that can be used instead of turf. You can use gravel, you can use mulch, you can use, you know, other materials as well.

look if if the my thought is and it probably is not going to be legal but it's um i like it i i should i i would think that we should make this you know say that one of these things that you just mentioned these new things it should just be replaced with that and then the fines go away and then it makes a sense of example of what we would like to see in the front yard other than sod and that and gravel is not allergic from the last time i checked

So are you suggesting to condition the granting of the variance to doing that? Or I'm not sure that I follow.

Well, it wouldn't be a variance. You're just being compliant.

Oh, so you're saying recommend disapproval or denial of the variance.

And then you replace it with one of your new things that you like. My new things. And then the fines go away.

Okay. I'm going to, yeah.

Yeah. So two things. Two things. What I believe you're proposing is to recommend denial of the variance at that point. how they comply, they just have to comply. They can figure out how they do it. In terms of the fine, the fine is not before you tonight. You guys don't have any jurisdiction over it. That's up to the special magistrate. So you could put a recommendation. It's not going to be worth a whole lot, but you could say it. It doesn't hurt to say it.

That's just my thoughts.

Does anyone want to make a motion?

I'm of the opinion that, although obviously we have no jurisdiction over the fine, that it looks like this owner has been diligent in trying to work with the city and apply for a permit and was waiting for ordinances to be introduced and passed and all that. So I don't think we should – the punishment part of the fines, I think, even though it's not our – my opinion is that that should be waived as long as he's compliant with – with i'm against i'm going to vote against the variance because i don't think particularly now that the house is for sale i think it pretty much makes it a new point but uh but in terms of uh recommending the fines be waived i would do that you guys have to make a motion or agree or add to it is there a motion on the table

No one's made a motion.

I make a motion to deny the variance. I'm sorry?

I make a motion to deny the variance. Thank you. Recommendation or denial? Yes, sir. Thank you. One second. One second.

Oh, roll call. Sorry.

Board Member Torbides? Here. Vice Chair, I'm sorry, Gonzalez?

Yes.

Board member Murphy.

What did you say?

Well, I feel bad for the guy, but I'll agree with the motion.

Yes. Board member Abramson.

Sorry, it takes me a second to unmute. Yes. Chair Shaw.

Yes.

Motion passes. The recommendation to deny the variance fails.

Yes.

Wait, I'm sorry. Was it not the motion was to deny the variance and just ask him to use any of the others, right?

No, it was just a plain deny. Oh, OK. Next item, 3B.

Item 3B, a resolution of the Mayor and Commissioner of North Bay Village, Florida, approving, approving what conditions were denied in a variance application by Denise Aliangor-Frodriguez for the property located at 7821 Beachview Drive, folio number 2332090080230, to allow a five-foot side setback where section 8.10 of the ULDC requires a minimum of 10 feet. Providing for conditions, providing for violations, and providing for an effective date.

Okay. You guys got lucky. Two variances on tonight's agenda. This one is a little different. It's a single-family residential property in North Bay Island with a land area of 9,200 square feet. um the existing home was built in 1954 remodeled in 1975 and the current property owner is seeking to demolish that structure and replace it with a new single family home in order to do that as miss chang read the the resolution title, the applicant is requesting approval of barbarians to provide a setback of five feet on the north side of the property in spite of the construction of the proposed new single-family residential structure where the code today requires a 10-foot setback for properties in this district. Now, this is a waterfront lot. It abuts the vegetated buffer and the boundary wall of North Bay Island that in turn abuts the public sidewalk of eastbound 79th Street. So there's only two lots in North Bay Island that have the same condition, this one and the one on the other extreme on the west side. Let's see. From our review of this variance application relative to the variance criteria, we found that the rationale offered for the variance request does not meet all of the criteria as is required by the code. And so our recommendation is of denial of the request. If the Planning and Zoning Board determines in favor of recommending approval to the Village Commission, then we have a series of conditions in our report that we would recommend that you include as well. If you have any specific questions about our analysis, I'm happy to answer them.

Is there anyone else in the Village that has a five-foot variance on their property?

No.

I'll make a motion right now.

I've got a couple of questions. Who can speak to the encroachment and everything that was submitted with the application? There are some existing encroachments, yes. And in the process... If that's approved to demolish that?

To demolish that, those encroachments will have to be removed and the property will have to come into compliance. other than if the planning and zoning board recommends approval and the commission approves the variance the existing encroachments go well beyond what is being requested so those would not be those would not be a part of the approval and they would have to be removed yeah um the current um the current layout of this property um shows that there is a deck and on the north side of the property and also part of the driveway that encroach uh beyond the property line um and so those encroachments will have to be removed uh i i don't have a clear sense of how those ended up there um there is uh part of the the applicant's rationale was that when the um when the plotting occurred on North Bay Island and the land dedication for 79th Street, that there was land deeded for that, but I can't find evidence that that's the case for these lots, frankly. In other words, that I cannot find evidence that in fact, land was taken from those lots there were already encroachments. These encroachments do not look old enough to go back to the time when that land was deeded. They're non-conforming. If they were permitted, I'm not sure exactly how that happened, but in the demolition, the process of demolishing the existing house and demolishing all the accessories that go with it, and building a new house with a new driveway, with new pathways, et cetera, those would have to be in compliance.

So those encroachments would technically go away?

They would disappear, yes. They would have to disappear.

Okay, and the variance that they're asking for an additional five feet, that's on the north side, which is that?

Which is the side where the encroachments are.

Okay, that's not abutting any neighbor, in other words. No. So that's just on the crossway side, right?

Correct.

Okay. And the reason why they're asking for that variance is because, if I read it correctly, it's because they want to shelter some equipment. It's not for living. It's not to make the house bigger for living area, but to – I don't know. That wasn't clear to me. Yeah.

The letter of intent indicates that the reasoning is to provide – shelter for that equipment on the north side and to create sort of a niche.

Do we know what kind of equipment it is that they're trying to shelter?

Mr. Shaw, you may want to hear from the applicant.

The applicant is going to provide it. But before they come up, I do want to make it clear that the equipment is in a niche that is created by the extension of the walls. where actually the living area, both for the ground floor and the upper floor, are extended by the same extent that we are considering this variance for. In other words, it stands five feet. So there's a gym, there's a bathroom, there's part of a closet that would go into that setback variance.

I got you. If you want to come up and state your name and your address.

yeah then mr jesus no no microphone right here and actually before you do that can you swear everybody in who is if there's anyone who wants to speak tonight just uh stand up and hold your right hand up do you affirm to tell the truth the whole truth and nothing but the truth yes thank you with your right hand yes

Okay, the reason for the bearance is like, as you were saying, we want to put the, you know, the pool equipment and storage for the trash cans. And basically, that's what it is. It's not going to be under AEC. I mean, based on what she was saying, we're going to use a pool bathroom, which is going to be on the back. Basically, that's what we're looking for, you know, using that. Like right now, we have those equipment right there now. I mean, when we build the brand new house, it's going to be basically, we will have to place those equipment somewhere there. So that's the reason why we're trying to get that. And I mean, we had those 10 feet set back plus another 15 and thinking a special assessment of the CD, which is not gonna be right in the class space. But I mean.

Do we have the utility lines that currently run there? Because what I worry is that we get the five foot and utility lines have to be built and either we tear down the North Bay Village wall or have to go into his property to-

The variance is only for the private portion, right? So if there were road work or right-of-way work, that would be on the outside of the property line. Is that what you're referring to?

Well, are there any utilities that cross across the property? Is there an easement?

Yeah. Let me confirm that. i'm not sure if i can on the spot here because i'm going to look at the survey and see if it shows any easement which from memory i there's no there's no easement depicted on the survey so yeah i that's what i'm going to look at just give me a second of course now my computer decides to take a break and a question for the residents is the cover that you're going to use for the equipment is it

concrete and block, or is it something that's easily removable if needed to be removed for someone? That would be concrete.

Yeah, it would be part of the design.

Can you speak into the mic? Can you come to the microphone and say your name and address for the record?

Yeah. My name is Milanes Gonzalez. What is the order that I have to provide? Your house address. My house, 2341 South Way, 128 core, Miami, Florida, 33175. yeah the the main reason is to integrate in the design all of the equipment because uh a lot of uh property has it but outside and when you see the new house uh is is you know it's known uh and i stand there now that we have all of that equipment outside of the new brand property uh in the second floor we will have living area And based on what she mentioned about the zoning, maybe we can do some exchange in the driveway that doesn't have that portion of the five feet. But in the house, we would like to have that to maintain the standards of design of now. That's what the main reason is to have the five feet. But we can rearrange the driveway maybe and don't go to the five feet maybe in the driveway area.

or do some someone another solution on that area too is this is this is this home for you it's for him or you're just building it and so she's she's she's the agent for that i wanted to uh point out i just put the um the plan the site plan on the screen i also checked the boundary this boundary survey does not show any easements on the property for utilities or otherwise so this This is the area that they're talking about. But as you can see, there are other spaces of the house that are, you know, aligned with that niche. Right. And if we go to the second floor, this is it. So there it is. You can see it more clearly here. This is the pool equipment, electrical room, storage, but there's a cabana bath there. This is all on the ground floor. And then when we go to the second floor, we have a master walking closet, master bath, shower, parts of the master bathroom. So this is all aligned. yes so it's it's not just the mechanical equipment that is going into that he's building on top of it he's building he's building you know along and on top right so um yeah just wanted to put it on the screen this is going to be easier for you to do staff also have concern about the second floor or only the first floor both both what's the what's the setback on the on the south side On the south side, it is in compliance, which is the same 10 feet. Interior side setbacks for this zoning are 10 feet required.

If the variant would be granted, would they still be in compliance as far as percentage of drainage that is required by code?

Yes.

The drainage would not be impacted?

Well, drainage, do you mean lot coverage requirements and all of that? Right. They would have to meet stormwater management.

Correct. They wouldn't be in violation. I mean, by granting the variance, they wouldn't have a negative impact on any of them.

Oh, and I'm sorry, just to finish that. There's this portion of the parking area as well and the driveway that would also be within the variance area.

So driveway and the garage.

Right. So essentially this entire.

So the whole north side of the house. The whole. Is basically being asked to be extended five feet.

Yes. Which is not necessarily clear from the application.

Right. So if you give them the five feet and you measure from the five feet out towards the causeway, how much would that still, how many feet would still be green?

Well, the entire area beyond the property line would still be green, right?

Do we have a measurement on that? Just to get a 15 feet between the wall and the sidewalk? Yeah, before you get to the, whatever concrete structure comes before the causeway.

Yes, I think that's... And you can see the encroachments right now on this. But this is almost nine feet at this point. So it's probably about, well, maybe 10 feet. And then at this point, because the wall kind of curves up. So, yeah.

But that's not part of the property.

That's not. So the blue line that you see there, that's the property line. Anything beyond that is... right away, and it's green until it hits the sidewalk.

And who maintains that property? The village, or are they? The city. You maintain it.

No, he's saying he maintains it. Inside of my house, yeah.

No, not inside of your house. No, no, no. The city part of it.

City. City.

It's inside of the house, yeah. I mean, landscaping is like that?

Yeah, landscaping, anything that needs to be done.

I mean, it's inside the house. I mean,

sorry sir can you please come to the microphone yeah i'm talking about the city stuff it's the city yeah it looks like anything between your property line and the sidewalk the site i'm the one doing the landscaping there i mean not i mean not outside the fence inside the fence

No, no. My question earlier was after your property line ends, right? It's supposed to be 10 feet. You want five.

So it's going to be 45.

After that five feet, there's also a green area, which I heard is between 10 and 15 feet. That belongs to the city. That belongs to the city. You currently maintain that. Yeah. That's my question.

Well. Personally, I would hate to make a recommendation to approve this because it would be a precedent for the island. It would be a precedent for the island that anybody building a new house out there could ask for going into a five-foot setback. I mean, wouldn't that be a precedent or not?

Again, each property stands on its own.

Yeah, it stands on its own.

But you would be concerned about the message that you're sending. Yeah.

I mean, if one person gets it, then any house on the island would be capable of asking for Yeah, that's just clear.

Anyone can ask for a variance sure under the regulations of the code so that that is that is that is a relief that is available to anyone sure right so so right so granting the variance does not does not preclude anyone else or denying the variance and not preclude anyone else from coming. I just want to make that clear. I understand what your concern is. I absolutely do. But I just want to make it clear that it's not the granting or denial of the variance that makes it possible for somebody to ask for the variance. But you're saying that it's possible for someone else to get the variance.

Yes, and if someone has already gotten the variance, then that serves as an example of what the city will do if you request it. It would put you in an awkward position to deny it.

It doesn't for me because I am recommending denial. I am recommending denial to you because this request does not meet all of the criteria for a variance as is required by the code.

Well, I agree with that. Okay.

I knew we were in agreement.

One of the questions I was asked early on, I think, over at the end was, if anything, like, you know, how many homes does this one impact? I think you said basically there are two, one on each end.

There's two. One, yeah, two lots that have the same condition. Correct. and this because of that condition where it's sort of tucked up you know in the these corners um these lots only about two property owners in accordance with our definition one across the street and one to the side if if the variance is being asked on the south side uh obviously that would mean you're encroaching into your neighbor You're not encroaching, well, you would be five feet closer to your neighbor. You're not encroaching into your neighbor's property.

Right, but typically, you know, these two homes, 10 on one side, 10 on the other side. So you would actually need your neighbor's... I mean, your neighbor should have an input as to whether you are granted that or not. Yes.

And part of the requirements of a variance is that adjacent property owners have to be notified.

But in this case, that doesn't apply because there's no neighbor. Well... Right. Right. But he's maintaining the property.

Right. But with that said, the neighbors across the street and to the south were notified that there's a variance request, just so you understand.

Was there any... I'm sorry. No feedback. No feedback.

We did not, right?

We did not receive. I think... Look, we haven't had too many variances here. And we have. It's maybe been on docks and stuff. We've been favorable. But in this situation, as Paul said... you know, this property to the north, it really doesn't matter. So it really should be go partner up with the guy on the other side and it should be a zoning change for anything that doesn't have a neighbor. But since, because it's going to make a presence for everybody else that is a neighbor that has houses on each side to come in and say, I want a five foot variance and that's going to shrink the setbacks in between houses. These two properties should be an exception, but it should go through the zoning process, not the variance process.

Can you clarify what you mean by going through the zoning process?

The two lots, it should come in as a zoning change somehow if they want to spend the money and time to do that and see if we approve it, but it shouldn't be a variance like this.

If I may, a text amendment. A text amendment is what you're talking about.

I don't know if it would be... I mean, wouldn't that be like a spot zoning for those two?

There's nobody on the other side. It doesn't matter. But as it stands right now, we shouldn't do this as a variance for all the reasons Paul said.

I am recommending to you to deny it if that's what you choose to do.

You know, we're in agreement. Do we have to do a public comment? Yes. Any public comments?

I want to, before, and I understand what public comment, you guys, I thought, public comment?

Public comment closed.

Okay. I want to understand, clarify a little bit more what the attorney was saying that, in terms of, I mean, we're all talking about precedent setting, precedent setting, precedent. And if each property is evaluated in and of itself and criteria of why we should or should deny a variance is on a per property basis i think i don't know how much weight we should put to the to the to the to the precedent issue because as a clerk was saying that doesn't prevent anybody to come and ask for the same thing um so we're going to have to look at each case every time that it that it comes up so if we're if we if we want to i mean and i'm not saying that the the applicant is compliant on every I know you're recommending denial. But what I'm a little bit concerned about is if we say, okay, let's deny this because we don't want to set a precedent. I don't know if that's valid grounds for denial. That's why I need clarification.

Can I say that my recommendation to you is not to deny it on the basis of precedent. You will never see me evaluate and come to you with an analysis that says, well, you should grant this variance because in the past you have done so in these other circumstances. As the attorney said, I go through the evaluation of how this individual application meets or does not meet the criteria, right? In this case, we find that it doesn't meet the criteria. And we're recommending to you that on the basis of not meeting the criteria, that you should recommend denial to the commission on the basis of not meeting the criteria.

And that's it. Yes. So she summarized it. Great. What you guys are evaluating is whether they meet the criteria or not. So precedent, formal legal precedent is not being established by the decision that you made. Okay? Only as to this property. Now, depending on the direction that you go, whichever decision you make, you are sending a message to other property owners that this is how you view these properties. But you would still have to evaluate any potential application on its own merits, on the basis of the criteria that's before you, which are the seven criteria that Ms. Vargas has set out.

Okay, I understood. And as far as the criteria, is there any way we could know which ones are not in compliance or are they all? Absolutely.

Yeah, I'd be happy to go over those and let you know that we find that this request does not meet criteria. One, which is that there are special circumstances and conditions which are peculiar to the land structure or building involved and which are not generally applicable to other land structures or buildings in the zoning industry. The reason why We don't find that there are unique circumstances inherent to the land. And I'm going to forego the building because it's going to be demolished. But in this case, pretty much all the lots in North Bay Island are standard to this same size and shape. You know, except when you have a double lot or, you know, something like that. But, you know, in particular, in this part of the island and the surrounding lots to this property owner, they're all of the same size and shape and they meet the setbacks.

Wouldn't the location of the lot, given that there's only two lots that meet that location, make those unique?

And yet all the other lots that are of the same size and shape, regardless of their location, meet the setback. So that's what I'm saying. There's nothing unique about the size, the shape of the lot, the topography of the lot that make it. In fact, if anything, being in those two locations make it feel like their yard is much greater and not smaller. So my assessment of that particular criterion is that it doesn't meet it. The second criterion doesn't meet either because it's that the special circumstances and conditions were not self, well, I mean, doesn't meet it in the sense that, you know, they're making a design decision. They could have designed a house that They're building a new house. This is not something that happens because the house that is there doesn't meet the setback and there's no way that they can move the house. They're knocking down the house and they're designing a new house that by choice is not going to meet that setback, the reason for the variance. Those circumstances are self-created to that extent. Therefore, the request does not meet that criteria. The strict application of the provision of this chapter, this is number three, would deprive the applicant of the reasonable use of the land, structure, or building and would involve unnecessary hardship. We find that there's no hardship because there are design choices that they could make in order to avoid pursuing a variance and also that would allow them to use the land in a in a reasonable manner so number three they also do not meet uh granting the various requests that will not confirm the applicant any special privilege that is denied by the uldc to other land structures or buildings um as i mentioned when when i was responding to mr murphy The ability to seek a variance from dimensional requirements is available to anyone. So that's not a special privilege. However, if you confer this particular variance, you would be granting a special privilege that others of the same size and shape in the island do not have. The variance granted is the minimum variance that will make it possible for the reasonable use of the land. It doesn't really meet that criterion either because the variance is not really necessary at all. Number six, the granting of the variance will be in harmony with the general intent and purpose of this chapter, and the variance will not be injurious to the neighborhood or otherwise detrimental to public We believe that they meet this criteria. There will be no harm, no injury to or no detriment to public welfare or their neighbors, as you all reiterated from the north side. So that one they do meet. And the variance request is not based exclusively upon a desire to reduce the cost. We believe that they meet that criterion because that's really not the basis for it. But are dictates that you have to meet all seven of these criteria and they only meet two.

Okay. So if I'm hearing correctly, the criteria that's now influencing mostly your decision to deny is that the uniqueness of it. In other words, that other, you know, and again, I go back to the question of presence, that other people can come in, other owners might come in and request the same variance. Okay. But according to what I'm hearing from legal counsel is that they can do that anyway. That's not something that we're working with a former legal president. So I don't know how much weight I would put into that criteria. As far as the first criteria that you said, as far as the uniqueness of the home, I still think that one question, the structure that's there right now, is it encroaching into that five feet or no? What's currently before the demolition, what's currently there now?

It is not.

No.

Okay, so it would be five feet beyond what is there now? Yes. What they're requesting. Okay. There's also plenty of green area on the other side. So I'm thinking more of... Am I really causing a hardship to anyone else by granting this variance to this applicant or only to him? And the way I'm seeing it, by the way it's being described, is that no one else, even the neighbors that were contacted and asked to speak on, nobody even submitted anything, correct? There's only two homes right now that this could be applicable to. And since we're looking at each case by case, we can always argue the merits of each case anytime that someone comes up and presents something. So based on that, I'm inclined to approve it because I don't see the harm. In terms of drainage, you say it's fine. That would be something that we would be concerned with as a village. If it floods and there isn't enough green area to absorb, that's not the case either. And there's no easement, right?

Not that this survey shows.

Okay. Well, that would be a game changer for me. I mean, if there's an easement, obviously, they can't be built on top of an easement. So we would have to determine if that's the case.

I'm going to assume that there may not be because the current home on that side is paved over on that entire area.

OK, so assuming that there's no easement, that's that's an assumption. It's an assumption we would have to verify that. my opinion based on on those arguments i would say i would vote to approve uh this this uh this variance um also the other thing we mentioned is that uh the encroachments were permitted not permitted you don't know i have no idea right and they're willing when when they demolish that from what i heard from the applicants is that they're willing to remove those encroachments i'm not saying that they're willing to remove they would have to remove them regardless of the variance

If this house was redesigned in a way that meets the setback, when they demolish the house, those encroachments will have to be removed regardless.

Okay. Are there any concessions that the village would exchange for that? No? No. We would think that may be applicable to the...

i'm not sure i understand what well if there's anything else that the village would say listen if we grant this variance you would have to meet these other criteria i have conditions in my staff report that i would recommend that if you as a board do go forward with a recommendation of approval to the commission that you include they're not concessions they're actually conditions okay right um But yeah, I'm not sure what kinds of concessions.

Well, maybe I meant conditions, yeah.

One of the conditions is that they remove the encroachments, but that's not necessarily sort of, it makes it sound like there's an exchange. We'll give you the variance if you remove it. That's not what that is. It's a condition of the approval of a building permit that they will remove those encroachments.

Okay, I got you. Now, I have a question. You said that the property that is the blue line yes, so everything left of the blue line is a village property is encouraging yes, yeah.

And that's what we would require to have removed regardless of the variance with the demolition.

And the plans here is the current.

This is that this is a current this is the survey that you see on the screen. Any questions?

Do we have a motion?

I'll make a motion to deny the variance.

Wait, was there already a motion?

No, there was no motion. I'll make a motion to deny the variance. Somebody has to second.

I want to make a motion to approve it.

I'll second the motion to approve. What does that mean? Hang on, hang on. There was a motion on the table. There was a motion. There was a motion on the table. Was there a second? No. I think it died for lack of a second. It died for lack of a second. Okay, now.

She just made a motion to approve and I second.

It makes the motion to approve it. So as part of that approval, you have to make an affirmative finding that the seven criteria have been met.

That's got to be part of it. I second the motion to deny.

There was time. That's why he asked.

Right now, there is a motion. A motion has been made to approve. The question to the maker of the motion is, does that include an affirmative finding that seven criteria have been met?

I'm not the maker of the motion. Let's ask Ms. Abramson.

Sherry?

Yeah, I don't want to, you know, like, I don't want to disagree with Sylvia, but I do think that the first criteria that this is unique, I do find that, you know, this lot does not have a residential neighbor to the north. So I think that there is the exception there.

I don't know. The additional, you're asking her to, with her motion, to have the additional criteria that you want.

No, the conditions will go with that, yes. But just, I don't want to argue with Sherry, and I know you said you don't want to disagree with me, but you do. No, but there are other lots that have conditions where they don't have neighbors. Obviously, there are corners, the southern corners of North Bay Island. They also don't have neighbors, right? Well, the northern corners, too.

The northern corners, too.

Yeah. And they can come and talk about that any time. Sorry.

Because they share a lot line with a residential neighbor. This one does not.

The main question, Ms. Abramson, is does your motion include a finding that the seven criteria have been met? And if it does, then you can move forward with the motion to approve.

I could find reason for all seven, so I'm going to say yes.

Okay. So the motion on the table is that there's an affirmative finding that the seven criteria are met, and you're recommending approval to the Village Commission with conditions.

Correct. With whatever Sylvia's conditions are, yes. That is correct.

Okay, got it. Is there a second to that motion? I second that motion. All right, Mr. Gonzalez seconds it. All right, roll call.

Board Member Abramson. yes vice chair gonzalez yes board member murphy no or member torbides no chair shaw no motion fails two three is another motion no no that was it that's it would you like to consider a motion

Well, the question has been asked whether they need it. You do not have to make another motion. If you want to make an affirmative motion to recommend denial, you can do that.

I don't think it's necessary.

No. Okay.

Next item.

So it would go with no recommendation in that sense. Do you want to make a recommendation? Could you explain, elaborate a little bit on that? Yeah.

Because the motion failed.

Yeah, the motion failed. That's all it was. A question was asked. It failed. So there's no recommendation at this time. make a recommendation to deny the very so it's a motion to recommend denial of the variance is there a second to that a second motion okay there's a second roll call for member murphy yes remember to be this yes remember abramson no vice chair gonzalez no chair shaw yes

Motion passes 3-2. Motion to deny the variance. Motion to deny, yes. Just to clarify, the motion 3-2 to deny the variance.

Deny the variance, yes. Great. You can easily get all that square footage and read inside. I guarantee you.

Well, this is not final. Let's remember that this goes to the commission. They could make a different decision that you did. You still have another chance.

Next week. We have a meeting next week, right? Correct. Thank you.

That's it. That's all we got tonight.

Any comments, questions? Meeting adjourned.

Good night, everybody. Thank you.