Local Planning Agency - Regular Meeting

I'm going to call this meeting to order. Welcome, everybody. Roll call.

Chair Peterson. Here. Vice Chair Ouellette. Here. Board Member Grosso. Board Member Palmieri. Here. Board Member Scherer.

Here.

And Board Member Vogel.

Let's say the Pledge of Allegiance. I guess our first item is, do we have a motion to approve the agenda? Do we have a second?

Second.

All in favor? Aye. Do we have any public comments? Non-agenda? Oh, approve the minutes. I'm sorry. Thank you. public comments on the approval of the agenda. Okay, do we have a, anybody have a motion to approve the minutes?

So moved.

Second.

All in favor?

Aye.

Now do we have any comments from the public?

I have no public comment.

Okay. Any comments by board members?

The trees look really nice downtown. So pretty, those purple trees.

Oh, I'll get there. Okay. Action items. Our first action item is the final order of variance approval, 1678 Southeast 10th Street, petition number 103, variance petition from section 6.09.02.C.1 and section 6.09.02.E of the City of Stewart Land Development Code to allow an accessory dwelling unit one-half foot, .6 from the side property line. The required setback is five feet. Um. Do the board members have any ex parte communications to disclose? Any communications outside of the meeting regarding the matter under consideration?

I do. I drove by the property in question. I did not get out of the car. I just looked to see if I could tell how close it was to the fence. And the other item is I called to see if, in fact, this original surveyor was on probation. They said, yes, he is, but he is still allowed to do surveys.

Okay. Any other ex parte communications?

Yes. So I discussed the topic with Commissioner Rich and Mr. Baggett sitting at the end of the table here.

Okay. I also drove by the property just to again take a, have a visual versus just something on paper to check it out.

Anything else? Okay.

So all those giving testimony are going to rise, raise your right hand, and be sworn in. And I think Mr. Baggett will help with that.

We affirm that the evidence and testimony you're about to provide be the truth, the whole truth, and nothing but the truth. So help you God. All right, you may be seated.

And then we have the staff report.

Good afternoon, Chair and members of the board. For the record, my name is Michelle Arbizow, Planner 2 with the Development Department. I am presenting item agenda number two for a variance request from the owner of the property who's seeking a variance from section 6.09.02.C.1 and section 6.09.02.E of the city's land development code to allow an accessory dwelling unit, one half, that's 0.6 feet, from the side property line. According with the land development code, the required setback in the zoning designation is five feet. Pursuant to the Land Development Code public notice requirements, on May 22nd, 2026, the applicant mail notices to all adjacent property owners within 300 feet of the subject parcel to provide details of the requested development and the date and time of today's public hearing. Additionally, one sign was posted on the property with the same information. The subject property in red is located at 1678 Southeast 10th Street. The structure is a single family residence constructed in 1974 in accordance with the property appraiser's website. The subject parcel is zoned single family general, which is R1, with the adjacent properties with the same designation. The current feature land use designation is low density residential, which is the same for the adjacent properties. Please note that this property is not within the CRA. The property owners submitted and obtained a building permit to construct a detached accessory dwelling unit. The site plan as well as the survey submitted complied with the city's land development code. The side and rear setback met the five feet requirement as well as the separation between the main house. In the variance application supplement, the applicant stated that they reached out to know it now. That was their original survey known as kin surveyors. The surveyor they retained to survey the property originally to provide the final survey work. For the city city's final inspection, that's when they found out they were no longer in business. As a result, the applicant retained RL Vought and associates to perform the final survey work and it was discovered then that the previous survey were in error misstating the location of the property line. The image on the screen shows the survey of the side setback the oval circle in blue as point six feet away from the property line. The property owner is requesting a variance from Section 6.09.02.C.1 and 6.09.02.E.2 of the City's Land Development Code to allow an accessory dwelling unit one-half feet from the side property line. Uh, which is representing a four point four feet deviation from the required five feet setback from the side property line. Please note that this the permit was obtained. They built the structures already built. In regards to the standards of review, which is outlined in section 8.05.02 of the city's land development code, the local planning agency may grant variances to the city of Stewart's land development code when strict enforcement would create unnecessary hardship due to special circumstances. Any variance must still uphold the intent of the code, protect public safety and welfare, and ensure fairness. Such variances can only be approved if the LPA makes specific findings that justify the hardship. The limitations on granting a variance will not authorize any use of the property that is not allowed as a permitted use or a use allowed by conditional use in the district in which the property is located. The petitioner explained in the request that denial of the variance request would require demolishing the accessory dwelling unit, which would create financial hardship and unjust penalty to the property owner. The variance of granted will not allow a density or intensity of use that exceeds the maximum density or intensity that is permitted in the district in which the property is located. Granting the requested variance will not allow density or intensity of use that is permitted in the district. The variance of granted will not result in a verifiable reduction of property values of any adjacent or nearby properties. granting the requested variance will not cause a potential reduction in property values of any adjacent properties according with the petitioner there is an existing six foot high wood fence that blocks the view of the accessory dwelling unit the variance of granted will not cause a detrimental effect in the supply of light and air to adjacent properties the effect in the supply of light and air on adjacent properties is not detrimental The variance of granted will not harm a detrimental effect concerning drainage of the subject property as well as adjacent properties. Granting their requested variance, the applicant should be required to demonstrate all stormwater management requirements by the LDC section 6.03.00. In accordance with the impervious surface coverage calculation with the submitted permit, the property has a total of 35.85% impervious coverage. According to that zoning designation, which is the R1, that zoning district allow 50% maximum. The variance, if granted, will not cause an increase of traffic on adjacent or nearby roads to levels that are not unusual for the type of uses in the neighborhood. Granting the requested variance will not impact or increase any traffic on adjacent or nearby roads to levels that are not unusual for types of uses in the neighborhood. The variance, if granted, will not cause any threat to public safety in any manner whatsoever granting the requested variance will not cause any threat to public safety in any manner whatsoever. The variance of granted will not cause any threat to the health and general welfare of the inhabitants of the city, and granting the requested variance does not cause any of those. A staff do not support the petitioner request for the variance as it does not comply with the setback requirements in the land development code that we are authorized to regulate and look to the board for direction. This ends staff presentation. Staff and the applicant's representatives are here to answer any questions the board may have. The letters of no objection are part of your package. I do have a map that the petitioner provided that shows the property owners who wrote those letters if the board wanted up on the screen.

Sure.

Okay. And this ends my presentation.

So can you tell me which, I'm sorry, I'm losing sight of which house is theirs then. So the house is on either side and the one closest to the accessory dwelling unit, both have written letters saying they're not concerned? Correct. Okay, and the one directly behind them. Okay. Does the applicant have a presentation or anything else that they'd like to say?

Good evening, board. Tyson Waters from the law firm of Fox McCluskey here on behalf of the Olsons, the property owners. I want to thank staff for working with us through this process and the staff report and that presentation that I think gave a very nice overview of the project and of the request. And I do think just going briefly over the history is important just to understand kind of how we ended up in this situation The Olsen's purchased the property in 2020 and as part of their purchase They retained know it now surveying company in order to survey their property and like what you typically would do when you purchase a home Everything looked fine with that survey. So they purchased a home and moved forward about three or four years later. I They wanted to do this accessory dwelling unit, so they reached back out to that original surveying company who came out, worked with the Olson's to lay down exactly where this accessory dwelling structure was going to go to make sure it was outside of the setbacks. I think hopefully you saw that in the packet where with the permit application was a survey that showed the structure outside of the setbacks. Fast forward now, the Olsens are completing the construction of the accessory dwelling unit, and they need that as-built survey in order to get the final inspections and close out the permit. The structure's already created. The structure is up there and ready to go. Reached out for know-it-now surveying, and that's when they first learned that the company was out of business, and the surveyor had some issues with the regulated agency. So they were stuck. So they reached out to RL Vault Survey, a very reputable survey company here locally that's done a lot of work all over the place. They came out there and did the as-built. And for the first time is when the Olsons realized their original survey company was wrong. And all of the markers that they went by were not there. RL Vault had to set new markers. And as a result, you'll see here that the structure is actually 0.6 feet off the property line instead of the five feet originally planned. Immediately reached out to staff, figure out what to do, and this variance application was the process to do it. So they also immediately reached out to their neighbors to make sure that they understood what happened and what was going on. Because unfortunately, the odds are it's not just their property lines that are skewed, but a number of other lots within the same kind of strip of land are also skewed. reached out to the neighbors and as far as this variance application made certain that as many neighbors as they could find signed letters of no objection most notably those four that were directly affected by this structure being so close to the property line and as you can see with this chart all four of those adjacent neighbors that potentially could be affected signed letters of no objection that they have no problems with this variance I also would like to, you know, and staff report, they go over the criteria to determine whether or not we meet the standards for a variance. And I would agree with staff that all of those findings are in the affirmative, that we should qualify and do qualify for a variance. And with that, that's my presentation. I would like to ask the Olsens to come up here. They do want to say a few words just to introduce themselves to you.

Thank you guys. My name is Braden Olson. This is my wife, Kylie Olson, and little Stevie here, our daughter. Appreciate you guys meeting with us. I know this is a lot to take off time away from your friends and family on a weeknight, but Kylie's better at talking than me, so I'm going to let her explain the situation.

Thank you. I think you understand the situation, but we did just want to put some personal context with it. So like Tyson explained, we bought our home in 2020. We use know it now because he was highly recommended by our mortgage lender. And our next door neighbors, the ones that the ADU is closest to, they also use the same survey a few months before. So their survey is also incorrect. And so not only did we do our due diligence before building this ADU to confirm that we were within the required setbacks, but we also compared surveys with our neighbors and went the extra mile. And we also just wanted to make it known that we don't have the financial bandwidth to hire builders for something like this. We did this ourselves. While we were digging the form boards, I was throwing up, found out I was pregnant. We built this whole thing ourselves. And it was just a big, obviously, financial sacrifice, but also time away from our two baby girls. And then also just the reason like we're not some big investors like we built this because this is our forever home that we've been in for over six years now and this past couple years we've seen our parents care for both of our grandmas with dementia and we just really wanted something long term on our properties that we could care for them so we just wanted to make all that known and then just ask that you would put yourself in our shoes and consider that we are doing the honest thing that we know how to do and we are victims of this surveyor

So I think that last part was the most relevant part here. They did everything they were supposed to do. They hired the professional surveyor. They relied on that professional to make sure they put this structure in the right spot. It was that professional that failed them that forced them to be here tonight. So with that, we're here for any questions you may have, and we'd ask for your support with this variance. Thank you very much.

Thank you. Do the board members have any questions? I do.

Okay. My first question is your letters from your neighbors. I noticed that the contiguous corner neighbor to your bottom right did not sign a letter, yet you have three letters from people in a whole other street. Can you tell me why?

I think they approached those people that they knew and had a relationship with, so that's why you don't see it all over the place. But certainly they went to those neighbors that were closest to the shed and then reached out to other people that they knew in the neighborhood.

the two houses that you can see from our driveway that would also be able to see the adu one of them has been arrested for something very inappropriate and so we don't speak to them and then the other one he's a pilot and he's just never home and he airbnbs the property so that's why we don't have those two and then the back corner we could definitely knock on that door we just got the four that were touching our property as recommended and then the random three are just friends because we figured

The random three was a bit confusing, but okay. Is the fence right on the property line?

No, so we built that fence with our neighbors. We're friendly with them. We bought our houses at the same time, and we compared surveys, and at the time, that was where the believed property line was. So when we spoke to our neighbors about our findings, we asked if they would like us to remove the fence and put it right up against the house. Um, also, I don't know if this was stated, but you can see from the aerial. All the houses are within the square of the property lines, except our house and the house on the dead end. So that's why I believe it's crooked. If you see from the overhead, the back of our is the closest to the six inches as you go towards the street to the north. we're further and further so we spoke to our neighbors they could move their hedges five feet and we would gain five feet in the front we could move our fence five feet in the back and they said please be all done with the construction we're so tired of it what are we going to do with five feet so this just to be clear your fence is actually

not it's actually more so in the back it's more in right adjacent to the to the structure that we're talking about yeah if you move the fence would it be closer to the structure or farther closer to the structure so so technically the structure is even less than 0.6 inches away from the no it's 0.6 inches from the property line okay it's still on our property the fence is basically in the

Their property.

The fence is on where you thought your property line was. So the fence is five feet away, but your structure to your property line, not the fence, is 0.6.

But it looks like the structure is closer than five feet to the fence.

So that is the property line. That's not the fence.

See the difference between the red and the... Yeah, so what's the difference? Right.

Okay.

So it's approximately five feet away from the fence, which they thought was the property line, but it's not. That's by causing the problem. Okay.

And we would absolutely rebuild it if that is required, but our neighbors, when we spoke to them and got the letter, they said, please don't take it down. They have dogs.

Did you explore having it picked up and moved at all? Did you explore that?

The house?

Oh, the house?

No, no, the little structure, yeah.

We, our LVOT said we could look into that. So our understanding, we spoke to a couple people just roughly that we know that work in demolition and things.

You can't do it with this lab. Yeah.

with the with all the plumbing underneath this lab right you talk to people and this survey was well i know the survey is wrong but but visually i mean visually you normally would be able to see the difference between five foot and point six feet well when we built the fence um okay so actually the fence is a few feet in our yard you know what we thought yeah um

So we got the fence permitted with the city. It was all approved. We used our original survey. Right. The fence was where we thought the property line was. Right. Then we...

But in fact, it's actually...

It's actually on our neighbor's... On your neighbor's property. Yeah.

Okay. Well, those are my questions. Thank you.

Anybody else? I was curious if this is a plan to have short-term rental?

no our plan if it gets approved for the next couple months my sister's best friend just got married and she's between leases we're gonna let them stay in it and then the long-term plan is office space we both work from home and we have a three-bedroom house with kids um and also we're planning on growing our family um we just think it would you know be extra space to use down the line And like we stated with both of our grandmas having dementia and both of our parents not having the bandwidth to have them in the home or do assisted living, we thought now seemed like the time while we both work from home and while we both are healthy to build.

So the fence, which is on your neighbor's property, do you have any written permission to keep it there?

We've talked to them. They said they don't care. They like where it is now. They planted all their plants against it. I'd be fine to move it if they want us to.

And if you moved it, it would actually be closer to the structure?

Yes.

How much closer? Like five feet? It would go into the structure, right?

No, ma'am. It would be six inches. Where the dark line is.

Okay. Thanks.

Any other questions?

Yes, I have a few. Thanks. I'm thinking about the fence again following my colleague's question. So I guess in 2020 when you purchased it, you got the original survey. I want to make sure I understand the sequence and how it went. So I guess you used that survey to put the fence in.

Correct.

Is permitting required for a fence? Does that go through the city?

Yeah.

And so I guess that was approved. And then, and I guess for the last six years, due to the, I guess the allegedly erroneous survey, the west side of your fence is actually almost five feet into your property as opposed to, so your neighbor's I guess been using your five feet on the west side. But on the east side, you've been using, I guess, about five feet of the other neighbor's property. Coming back to that, I just wonder if the longer term with the fence being there and the neighbor, are they happy to give you that five feet of their property for use? Because I would think there would need to be some kind of documentation for that.

We believe we could easily get written consent from them because we had an in-person conversation about it.

I guess I'm wondering, though, if the fence is really not in question, it's the building. Correct. I mean, you have a permit for the fence.

Based on an erroneous survey.

But they still are permitted, and it's not our agenda item today. Yeah, yeah, I got you. So that's where I'm saying, like, I don't know that what they and their attorney and their representatives believe or the city needs to be done about the fence is outside our –

So the fence is fully permanent, and there is now a locational issue, but I think to the long-term point, sure, there might be discussions. I think they've been focused on this as opposed to the long-term, what do we do about the fence.

Sure, sure.

But we could do a license agreement to allow it while it continues to exist. There's ways to kind of paper it to make sure that... You know, it's it's it's legally addressed to give the fence the right to stay there long term But right now again, the focus has just been addressing this variance because this is the pressing issue where again It's a they're waiting for final inspection to to close out the permit and get everything approved So it's just kind of lingering out there and then I think the fence again They've got a cordial good relationship with the neighbor. So it hasn't really been an issue but certainly if you think five ten years and

Yeah, I guess what I was thinking is I'm playing it out. Let's just say the neighbor said, yeah, it'd be great if you move the fence. And I don't know enough about our codes, but if you move the fence over, you're six inches off the side of the building. So is that going to open up a whole nother can of worms? Let's just say you got the variance. Then is there like, I don't know, egress or emergency because the fence is right up next to the building? I don't know all that. So I'm just trying to avoid all that.

No, there's no egress right now on the side fence. To the extent you maybe fence the entire yard, then you might have a, you need a point of egress and ingress, but it would just be, if they have to relocate it, it would just be a very identical fence just moved right on, and again, right on the property line, so you'd still have that half foot.

What do you think, what gives you faith that the second surveyor is correct?

One, for me personally, I know that company, and they're very reputable, and I think they've checked their work and double-checked their work, and I think that's what it is. There wasn't a third surveyor hired to inform us that.

I guess the reason I'm asking these questions is because the last thing that we like to do is give variances, because there's rules and codes for a reason, right? And so as soon as you start doing a few variances, then you don't have any codes anymore. And I'm super sympathetic to the applicant. I mean, this is a horrendous situation. But I'm just trying to think about ways to satisfy all of this as best we can. If a third survey was conducted and it came out with a third indication, what then do we do?

Well, I mean, I think if it came up with something different and it was, I mean, there's not a whole lot of variations left to this property. So if it becomes, there's a third survey and it shows that it's actually over the property line, well, variance isn't going to fix that. So, I mean, I think this offers the protection because I would imagine this is almost the most conservative, as close as you can get to the property. And again, with a very reputable survey company that's been here for decades. And again, this surveyor signed and sealed and put his professional license on the line for this survey, like the other one did, but there were different circumstances with the other survey company. This is a survey that he certified it, and he put his signature and seal on that survey. So I think we should be able to rely on that, and I think you should be able to rely on that signature as well.

And I guess I'm going to assume that we don't normally ask for multiple surveys anyway, so we have to always trust it's a licensed, you know. I mean, I know in this case one was wrong, but, I mean, it's not like we normally get two or three opinions on surveys, correct?

I would agree. I think that's why they're licensed, they're insured, there's a professional regulatory body that says that this is what you have to do in order to put your name on that. And, you know, we then put our faith in that signature. And, again, very reputable survey company.

Well, you bring up a good point that they're licensed and insured. I wonder if the original surveyor has insurance that would cover this issue, because he also has been in business for decades.

I think if they have to tear it down, maybe, but the company's out of business.

And so I don't know if there's... Well, the company might be, but the surveyor is still out there doing surveys.

Yeah, and I mean the other thing too, I'm not a litigation attorney, but I know there are statute of limitations too, and typically I believe with a professional malpractice, I guess is what you'd call it, I believe there's a two-year statutory limitation, so they would have missed it by a year since the guy's last work. There's a lot of legal questions about potential remedies. Should they go that way? This is by far the most reasonable and easiest for them to say, look, we're moving forward. We've got this variance. We can live another day to address some of these other issues.

I just wanted to hear a little more from the staff about why, since it so solidly qualifies for a variance, why the recommendation is to not grant it.

Yeah, because it says it meets all the qualifications of a hardship, but then it says staff does not recommend. So why, if it meets all the qualifications of a hardship, do we not have a recommendation from staff to approve the variance?

Because we are authorized by the Land Development Code and our authority is to have that, when we're reviewing is to, our setback is five feet. I mean, that's why the variances would come before the board because we're not authorized to go beyond that.

So you never make a staff recommendation to approve a variance?

Most variances, no, we do not because it's going against what we're authorized to enforce.

So it's not just the circumstances are just over. I wondered that too. Sorry, can I step in on you?

Oh, no, no, you're good.

Well, ability to have a variance, you know, and just have strict code, but we don't. There's actually a pathway for situations like this to approve variances. So, I mean, I want to recommend that we approve the variance to the commission.

Do we have any other comments by staff or the presenters?

This will not go before the Commission. This is the Governing Board over variances.

Okay, then I recommend we approve the variance.

So, does anybody else offer anything or are we ready for a motion?

Let's follow the chart.

Yeah, that's well, I'm sorry.

Do the board members have any questions? Staff, any response? And does the petitioner have anything else?

Nothing further, no, thank you.

Okay. And then... Paragraph six. Yeah, deliberate in public, ask them to cite the facts being considered, and then state their position and formulate a motion.

So just state that you're closing the...

I'm closing the meeting at this point, barring any other comments. And then the board can deliberate in public and state their position and formulate a motion if they so desire.

Yeah, I'm sympathetic with the applicant. I think that it does meet, to me, it's a tremendous hardship. I just, and maybe it's not the purpose of the board, but I worry about it in the future. I mean, if any sale, and then you get title insurance, it's not gonna happen, because it's gonna be, it's not gonna meet code, but that's not our problem. But I do see reason to support a variance.

Anybody have a motion? I want a motion to approve the variance. Do we have a second?

Second.

And do we do a roll call? Public comment. Oh, public comment? I have Mr. Stephen Bowers.

Hey, everybody. I'll be brief. I'm a neighbor. I was one of those infamous three.

Can you state your name and your address? Oh, sorry.

Yes, Stephen Bowers. I'm at 925 Southeast Flamingo. It was one of the three random red dots. I'm across the street, but I have a direct line of sight to the property. Great family. I would totally support a variance. No negative impact on the neighborhood. Thank you.

Thank you. Any others? No more. Okay.

So then do we do a roll call? A roll call. Mm-hmm. Board Member Scherer?

Yay.

Chair Peterson? Yes. Vice Chair Ouellette?

Yes.

And Board Member Palmieri?

Yes.

Motion passes 4-0.

Thank you. Thank you very much. okay so our next item is final order of variance approval 700 southwest st lucie crescent petition number var-26-2 variance petition from section 5.06.02.b.2 of the city of stuart land development code to allow the installation of the fence within the required 25 feet shoreline protection zone setback from the mean high water line Board members, do we have any ex parte communication?

Yes. So I drove by the property, the site, to take a look. I also had conversations with City Commissioner Rich and with Mr. Baggett at the end of the dice.

I also drove past the property to take a look and see what we were dealing with and the location of the park, et cetera. I drove past the property as well. All right. All those giving testimony, please stand, raise your right hand, and be sworn in.

You affirm that the testimony that you're about to provide will be the truth, the whole truth, and nothing but the truth. So help you God. You may be seated.

Thank you. And now staff, do you please present your testimony, including any evidence and your recommendations regarding this case.

Thank you, Chair, Board members. For the record, I'm Michelle Arbzow, Planner 2 with the Development Department. I am presenting Agenda Item Number 3. It's a variance request from the owner of the property who is seeking variance from Section 5.06.02.B.2 of the City's Land Development Code to allow the installation of a fence within the 25 feet shoreline protection zone. setback from the mean high water line. The mean high water line is reflected on the survey that I will show by a licensed and professional surveyor and seawall are defined as structures located at the mean high water line. The mean high water line you will see on the survey as MHW is the average level of high tides over a specific period. Usually defined by the national tidal datum epoch, this line is legally recognized as the boundary between public and private property for navigable coastal waters. In Stewart, Florida, the MHW is very significant. Pursuant to the Land Development Code, public notice requirements were done on May 22nd, 2026. The applicant mailed notices to all adjacent property owners within 300 feet of the subject parcel to provide the details of the requested development and the date and time of today's public hearing. Additionally, there is a sign that was posted on a property with the same information. The subject property in red is located at 700 Southwest St. Lucie Crescent. The structure is a single family residence constructed in 2005 in accordance with the property appraiser website. The subject parcel is on single family of states are one a with the surrounding properties reflecting single family general are one and residential multifamily office are three. The parcel shown as green is on public adjacent to the subject part property this area is an improved right of way with green space and a park bench facing the water it's considered a passive passive park. The current future land use designation is low density residential, which is the same for some of the surrounding properties shown in yellow. The other properties have office residential as well as multifamily residential land use designation. And this property is not within the CRA.

Sorry, did you say not or is not okay. Thanks.

A little background, the property owner submitted and obtained a building permit to install a fence along the side property lines into the shoreline protection zone. The permit was approved with the condition that the fence cannot be installed within the shoreline protection zone for section 50602 of the land development code. And the term shoreline protection zone means the land adjacent to the shoreline, including the shoreline of the St. Lucie River, which is the subject property, Poppleton Creek, Fraser Creek, Haney Creek, Kruger Creek, and Willoughby Creek. This is the view from the public park looking at the subject property, looking into the subject property. and this is the view from the park towards the st lucie river the petitioner is requesting a variance to allow the installation of a fence within the required 25 feet setback shoreline protection zone in accordance with section 5.06.02 no development shall be permitted within the shoreline protection zone section 06.02.B.4 goes on to list like development types that shall be permitted, which are like docks, marina, interpretive walk permitted by the state of Florida, stormwater retention areas, landscaping, bulkheads and seawalls, which function to protect existing development and are located landward or riverine wetlands and their ecotones, riprap and unpaved stabilized parking. The section of the code goes on to state that construction activities proposed are subject to the permitting and technical requirements and shall have a valid permit from the South Florida water management district or the Florida dp. The pictures that the petitioners submitted are included in the board packet. Here are some of those this is from the subject property looking to the passive part. The last picture is from the property owner's side on the beach area looking to the park. In the variance application supplement, the petitioner stated that without the fence to the water, it is difficult to maintain a safe and clear defined boundary, which raises ongoing safety and liability concerns about children or pets unintentionally accessing the yard, pool, dock, and waterfront. The fence will create property security, community safety, mitigate liability concerns for the property owner and the City of Stewart's residents. In regards to the standard of review, which is identified or outlined in Section 8.05.02 of the City's Land Development Code, the local planning agency may grant variances to the City of Stewart's Land Development Code when strict enforcement would create unnecessary hardship due to special circumstances. Any variance must still uphold the intent of the code, protect public safety and welfare, and ensure fairness. Such variances can only be approved if the LPA makes specific findings that justify the hardship. The limitations on granting a variance will not authorize any use of the property that is not allowed as a permitted use or reuse allowed by conditional use in the district in which the property is located. A fence is allowed in the r1 a zoning district, however, per the lec not within the shoreline protection zone and any construction activity shall have a valid permit from the South Florida water management district or to Florida department of environmental protection. The variants of granted. will not allow density or intensity of use that is permitted in the district. granting the requested variance will not cause a potential reduction in the property values of any adjacent properties according with the petitioner there is an existing six foot that's not for this one sorry uh the effect in the supply of air and light and air on adjacent property is not detrimental And granting the variance will not cause drainage concerns of the subject property or adjacent properties. Granting the requested variance will not impact or increase any traffic or adjacent or nearby roads to levels that are not unusual for types of uses in the neighborhood. Granting the requested variance will not cause any threat to public safety in any manner whatsoever. And granting the requested variance does not cause any threat to health and general welfare of the inhabitants of the city. Staff do not support the petitioner request for the variance as it does not comply with the setback requirements of the city's land development code. And again, we look to the board for a direction.

Thank you so much, Michelle. Does the petitioner may now give testimony and call any witnesses?

variance the reason for the request is stated thank you Michelle but for general safety and liability we're new to the property new to Stewart new to waterfront as well so the plan that we submitted would be ideal for to cover some of those reasons. In the short time that I've been in the home, we've experienced some trespassing on the seawall, on the dock, along the shoreline. So that's children, adults, pets. So given the nature of the location of the home, between this park and then also on the other side, there's a home that is used as an Airbnb. I'm here to request your consideration.

Thank you.

Do we have anything else? If I may, if the board may like, staff can go through the pictures that the petitioner submitted and have the petitioner explain what is being shown.

Sure. Yeah, I'd love to see like how far or close to the water this fence is and what this fence is going to look like and some of those questions.

Thank you. Is it okay if I go over there? Absolutely. Okay. Take the microphone.

Oh, sorry. The whole thing? Yeah. Okay.

The pictures here are the park down the way it's about a i'd say about a quarter mile um down the way from from my lot so this is just another example of um you know of some some fencing um you know that's why i said learning experience you know you see a lot of these fences down to where the proposed fence uh goes so that's uh i don't know if that even has a name but that's just an example

So do we know if that fence received a variance?

I could not find a variance. A lot of these fences were done way before. Some of them are like when I went and visited the site. Right next door on the other side of the park, it's like embedded into the wall that was there, the wooden fence. And there's like a chain link as well. So I don't have fence permits.

Just examples of some of the signage that I saw as well. for your question or you know what you're interested in all i had this day forgive me was the stainless steel hose to draw a line so the uh the property line is fairly is as close as i could get it to where it's gonna run from that white pipe maybe a little bit closer this way um i would say right about There. So it's very close to where that is. I was using that to put up this temporary fence while we're doing some renovations at the home. But that line there is a good representation of where the fence would go. Another view from the yard. Obviously the pool is a concern for access to the back patio as well as the waterfront. So there's a fairly, there's a pretty clear path. Right now when I'm at the house, people, that's kind of a stop with dog walking or bike rides, just coming down to take a look. I'm a, you know, it's my style. I'm a friendly neighbor. I wave hi. Somebody was fishing out back, caught a snook yesterday. So the request is a formal barrier. Because right now there's nothing. That's how it was when we bought the home. There was no fencing. So... As you can see, there's other examples of fencing along with landscaping. But the fence is being requested. I'm here today just because of the liability, insurance, safety, and liability.

Can I ask a question?

Sure.

Michelle, can you go back two or three photos? I guess the key part I'm interested in is that, as the applicant pointed out, like the end of the fence where they propose it to be. So, and that kind of makes sense to me where they're proposing it, but I want to know how far, how much further out is that than what would be within code?

Yeah, it will be right along the shoreline protection zone. They could go straight adjacent, you know, right along that line.

Along the line, I get that part, but maybe wet, like how far west? So they're going to the, almost to the seawall, thank you, almost to the corner. But if they didn't need a variance, how far back would that point be?

Yeah, so the seawall, is it at the farthest point?

Yes, that is the property line.

So that is the property line, but where is the high water line or whatever?

Oh, the main high water line is normally right on the property. So the surveyor from that line, from the end of that property, that's where the waves go in and out, 25 feet from that property line into the property.

Oh, I see.

So 25 back from the seawall. Yes, and into the property.

Yeah, yeah, yeah. Okay, now I understand.

So what would have to happen if they don't get a fence along either side? What do they need to do with their pool? Because their pool is just exposed.

So there is a requirement, and the fence permit for the pool might have been part of this, or could be. Normally, with a pool permit, there is a requirement to fence it in. If there's no fence along the property line, there is a pool barrier. That's required per the building code.

Okay.

So that's potential then to just fence in the pool. And I guess why, could we not just explore Fogan Villa and heavier occlusia and shrubbery to create like a multi-level, make it really thick so that nobody can come through? And can they do landscape right to the- Sure, you're correct.

You're correct. Landscaping can go as high as you want, as dense. Okay.

From what I saw when I visited, it appears the applicant is on the south side of the park. The neighbor to the north side of the park has a fence going all the way to the seawall.

Correct.

Which is essentially the same as the applicant is requesting. Now, it's all landscape. They have lots of hedge and all that on the fence, but yeah.

Okay.

Well, I do have a question. Unfortunately, I'm not great with aerial pictures and all that, but Is there a way to build a fence within the allowed area? In other words, he's trying to go into the 25-foot buffer zone, right? Correct. Is there a way to not go into the buffer zone and just do it on your own property? It is his property. There is his property that's going in. I'm sorry, outside the buffer zone.

Until it's what you're saying, which is the same thing you were asking. Yes.

Is there a possibility just to put the fence up to the allowable portion of the property?

You could put that up there with the way that the park is situated along that property line. It would probably leave, I don't know, 15 feet of access to the shoreline. And that's one of the main reasons I'm here today is because that access and that trespassing happens often. I purchased the home in November, and people do frequent the park.

You didn't realize that when you bought it, there would be people in the park?

No, no, no. But I did not think that, one, I thought having a fence would be a good idea just for the safety and liability. I like the idea of the park. I made that decision prior to purchasing the home. However, I don't like the idea of someone walking down my seawall and walking down my dock. So there is a way to fence this yard, protect the pool. However, there's not a way to run a fence to protect the waterfront and the dock. And it is a safety for my family. concern and a liability concern when it comes to me as a property owner and I believe the city of Stuart as well.

I guess one of my questions would be, again, since this is what our rules are and not handing out variances willy-nilly, I guess in my mind I'd get a big concrete planter and put a bougainvillea on it and sit it on the end of my seawall and then plant a really heavy hedge along there that's all allowed and maybe some thorny bougainvilleas in that hedge as well and call it a day and not put a fence where fencing is not allowed by the code. Yeah, and also when you got, I guess one of my questions would be when you got the survey, back to surveys again, are important today, did it show you where the mean water line is and where your property line is? I mean, was that, you must have had some sort of with the dock and everything else, some sort of Somebody looking at the dock the seawall what's allowable?

I mean, that's kind of your due diligence when you're purchasing a home Sure upon purchasing the home the survey that we received, you know did not clearly mark a shoreline protection zone however, if you're on the water in Stewart the amount of examples of this is very So you were seeing it happen so assumed you could do it to some degree Then when we submitted a permit for fencing We we asked for clarity or the shoreline protection zone to be on there. So we got an updated survey paid for that to get a better understanding so And that's the reason for the variance or application.

This is a sticky one for me because I see so much construction and development impacting the ecosystem. And there are real threats to the riverbed and the wildlife and the plants. And I just don't see a hardship here for you to landscape, which is actually good for shore. Those root systems are very good for shoreline protection. That would be a positive to the ecosystem. I don't hear a case that not putting the fence in, not getting the variance is gonna create a hardship for your family. I understand that there's a security concern and there's a trespassing concern, but I also see clear ways for you to do that within city code.

Can I further comment or should I wait until we get into the- I think we're there unless there, I think we're there.

I think, I don't disagree with what was just stated. I'm certainly- Before we get to that, can we just close out the public hearing?

Sure. If we're gonna start deliberating.

Yeah, just make sure everybody- Do we have any other from the staff or from the petitioner? Any other comments or presentation?

So we're going to close the hearing. There are some neighbors that are here to support this that might be able to shed a little bit more.

Yeah, there are evidence and witnesses, so they need to come before we close the hearing.

Okay.

So why don't you call your first witness?

Okay. I would call my first witness, Dean.

Lucky number one.

Feels very formal, right?

I'm Dean Watson. We own the property to the north with the fence going down to the water. I want to explain that first. The house was built originally in 1955 along with the sea wall, a concrete sea wall that was put in, and two little abutments coming up the side. Actually, the fence is embedded in the sea wall. It was all done at once in 1955. That's why we didn't have to go through a process. We bought it eight years ago. We lived in Martin County about 26 years. Again, we love the parks, too. We have two pocket parks, and then the whole northern part of our neighborhood butts up to Shepherd Park, which is boat ramps and water access and everything. And I kind of understand or very much understand the security issues. I would need more than my three minutes to explain all the things that have happened in the park over the years. You know, the police have been called a number of times, and they finally had to put a light in there. They put a light in there, and that helped a lot. That got a lot of it. a lot of it out of there, but there has been a lot of security issues over the years. And the only other problem with the shrubbery we're talking about, which is great, but there's also, if you look at those pictures, there's a mangrove right next to his property line. And if you start putting a big fountain, I mean, I've had bougainvilleas before, and they get beautiful and they get real restrictive, and that's great, but they're going to grow into that existing mangrove stand and there are some people in their neighborhood that come down and use that little section down there to launch like a kayak or a new kids or whatever so they use that little section right there if you put a big fountain you know bougainvillea there it's going to not stay on its property it's going to run over into the mangroves it's going to completely cut off access to that little open area down there so that was my only other comment and i'm glad to answer questions i can't you've covered everything but if you have any questions for me at all

I have one. If he builds the bougainvillea, it doesn't have to take over the mangrove. Can he prune it so it doesn't?

Yeah, have you ever owned a bougainvillea, though?

I mean, you know, a shoreline property that you buy means you're a steward of the shoreline.

And I get that. Believe me, I planted probably 200 lemongrass instead of having grass grass so I don't have to fertilize my yard. I'm all about that. Plus the soil retention, my whole back is done that way. I've done what I can do to not have to dump any chemicals at all into the water. Thank you. But a fence is a post in the ground in probably three places each side, and it's going to be landscaped next to it. He's going to put landscape to hide the fence and keep the fence from being. So it's kind of a win-win. You have the barrier, which makes for the insurance company that's not going to walk away from you if something happens in your pool. Those pool fences around, I've got one too, around the pool are nice, but they do blow down, and they do get loose in there. And you can, you know, a child can pull them up. So they're not 100% either.

Well, there's different varieties of pools.

Well, yeah, you could put an aluminum or something like that. I get that.

And if it blows down, you can put it back up.

Well, you can if you catch it in time. Yeah, that's true.

I think there's also other plants besides bougainvillea.

Well, yeah, like a bamboo, but a bamboo grows 30 or 40 feet, and a lot of people sit there and look at the view, and if you have something tall, it's going to block all that. Anyway, that was my only comment.

Thank you. Thank you. Any other witnesses?

Good evening. My name is Rick Zurich, and my wife and I are here. We're residents and neighbor, too. We live one house away from Brian. Could I ask you to do me a favor? Could you bring up what is permitted in the Shoreline Protection Zone? You had that on earlier. I understand and I am very much in favor of protecting the shoreline, but if you'll look at what structures are allowed in the shoreline protection zone, they're talking about landscaping, retention areas, bulkheads and seawalls, riprap, unpaved stabilized parking. I would venture to say that any one of those things is much more detrimental to the shoreline protection zone than a simple fence with a couple of... fence posts in there to protect brian's liability and we've lived in our home for over seven years and i can tell you there's a lot of people that come in that park and once they hit the shoreline they think it's their right to walk right across all those shorelines i've had them go down fishing on my dock and i'm one house away i mean they've got to go across brian's property across our neighbor's property and across our property get to my doctor You're down fishing. And it's uncomfortable to have to go out and ask people to leave your property. And I don't believe, as much as I've known the shoreline, I've lived in Martin County, my wife and I have lived in Martin County since 1971, on the water all that time. And I don't believe I've ever seen where fences do any damage to the shoreline. Matter of fact, I would venture to say that it would reduce the traffic along the shoreline because people wouldn't be walking right on the sensitive area of the shoreline where mangroves are trying to grow and seedlings and all that.

Well, I don't think we're going to, like... grant a variance because you don't agree with the code. The code is what it is.

I'm not disagreeing with the code. I'm just pointing out that...

I disagree. I think those things are all shoreline protective measures.

Okay. And I have a question for you. You state that the people walk across the shoreline. Don't they have the legal right to do so up until the mean high tide line?

Oh, yes.

Okay, so it's not like they're encroaching, they're trespassing. No, they're not on the shoreline.

They're legally allowed. Right, but they're not in the water. They're on the property above the shoreline.

Up to the mean high tide line. That means they can be on the land as well. Up to the mean high tide line. That is the law.

Can anybody verify that, Michelle?

I would probably agree with her. I think what they're saying is they have docks and they're going on the docks. They shouldn't be on the docks.

But they can be on the sand. I believe that's the law.

They walk up one of the of the mean high water line to get there and then they go out on the dock or ground water

I feel, you know, I feel for you. I don't know how I'd feel if there were people walking through my backyard looking in my window and using my dock to check out the water. I also think that, you know, you live on the shoreline in a city, you know, and is it signage? Is it landscaping? You just can't, in my opinion, I don't see a case made that I guess maybe we shouldn't deliberate yet.

Oh, I have more witnesses. My bad.

Thank you.

Thank you.

My name is Bill Clark. My wife and I live two doors down from Brian, and we have no objection to the fence. I think it's a good idea. This little park is at the end of a dead-end street, and a lot of teenagers or young adults use it for smoking and vaping and drinking beer, and I think that a fence would be a really good idea.

Thank you. Any other, anything else that you'd like to add before we close this portion of the meeting?

Yes, the only thing that I'd like to request, the fence, the type of fence has not been a topic. The fence, it provides that formal barrier that is recognized by an insurance company. or by a lawyer. I understand landscaping. I think it's a great idea. I've had ideas about how to make the fence look better on the park side where it is permitted and where we're talking about as well. A passion fruit vine was suggested to me. So I guess the last point or the last request that I'd like to make is if there is a version of a fence that extends that extra, I think really what we're talking about is maybe 12 feet. that takes it to this point where that white post was or nearby would allow for that formal barrier to the park. I would make it look nice, I promise. But if it's four feet high, something for the pool, I would like to respectfully request that consideration.

Thank you. Any other witnesses or any other comments or are we going to close this?

Hold on. Are you a witness for the petitioner? We're going to have a point. We're going to, hold on a minute. They're going to deliberate and then it's going to be open to public comment and you'll be able to come up. Okay. Before anybody votes, there'll be public comment. You'll be able to join up and speak then.

Yep.

Okay, so are we gonna close the hearing at this point? And we're gonna deliberate as a board and then we'll open it to public comment. Okay, who wants to start?

I'd be happy to start. Okay. So given all the information, I really find this to be a very minor request of variation, variance, excuse me, considering the situation. I think our role is to sort of apply the spirit of the code. The code can't be written for everything. If you think about it, with the fencing and the 25-foot, I won't call it a setback, but... Thank you. If this was a residential neighbor next to a residential neighbor, it might be a different discussion. But this is a resident here in Stewart who is next to a public park. To me, that brings additional... issues as the applicant has brought up about access or safety and risk and all this. So I'm sympathetic to the applicant. And if you think about the property on the north side is secure. It has basically the situation that the applicant is looking for. Sorry, the property owner on the north, not the applicant. They're just looking to...

But you're looking to fence both sides, correct? Yeah.

Yeah.

Not just the park side.

Hmm. Yeah, I guess vegetation helps. But I do see the with the pool and I do see the importance of securing that.

Any other are you?

I'm content.

Okay, so I'd like to say something. Okay.

So first of all, the pool fence isn't on issue. Many people have fences right around the pool. Second of all, I have a rental property in River Pines. At the end of Cove Road is a park. Lots of people go there. Adjacent to that is our River Pines property. There is so much wildlife there that, you know, is there, like, I'm there at all hours of the day. I keep my kayak there. And you can't imagine the amount of wildlife that goes through there when people aren't really looking. The fact of the matter is, is that... I feel, sorry, you should have known what you were buying. You should have known the rules. The fact is that the people do have the right to walk up behind their property, but not on the dock. And I think the buffer zone is there for a reason. It's unlikely, but the water could come wash the whole fence away, depending on what happens during a hurricane. It's a buffer zone. It protects what's behind it. That's what it's for. It protects its nature. Nature can walk through there. And I don't like the idea of it being fenced away. It's just my personal opinion.

Yeah, I mean, I think the code is built for protecting the shoreline. I think it's an erosion issue. It's like wildlife protection, sea turtles, just human impact on shoreline. I would say that it's appropriate to grant a variance. Again, if there's some kind of a hardship, I understand it sounds expensive. And I also think that it's expensive to protect our waterways. And it's a private property. Yeah. I also think there's probably some way for you to I mean in terms of like what kind of offense works like I feel like there are ways to do that yeah yeah can I add to that idea when discussing with fence contractors

The guidance wasn't there, and I'll go back to my earlier point of you see it so often elsewhere. There was mention of a 25-foot zone. There was mention of, all right, from here on, you can go four feet. You can't do this. You can't put it up this high. Not once in any conversation trying to do your due diligence. Obviously, it's an investment for me and my family. It wasn't mentioned you can't have it next. So the idea of a four-foot fence that would give a layer of protection for the pool that would allow me to have a formal barrier that would allow me to put a no trespassing sign just to my seawall that would not impede the access that's in the water where that mean water line is with ideas to make it look nice for the park.

Well, you know, you can put a no trespassing sign up anyway.

I did.

Okay. And I thought they were debating whether it'll look nice or not. I don't think that's the issue at all. I know that you would like it to look nice if you put it up on your side. But that's not even the point here for us, at least, for me, at least.

I guess my feeling on this is I don't see a hardship. I do see a way around to meet the code and the variance. I live in City Stewart, obviously, because I'm here. I have one of these. We call it a micro park. We have more than one in our neighborhood. I'm right off of Ocean. I'm probably like three houses from Ocean Boulevard. We have people ride and bike through ours all the time. I use my micropark because I'm not on the water and go down there. I've never seen anybody trespassing behind the houses that are there. I mean, your situation may be different, but I think if I bought next to a park, I would expect... public to be next to my house and I do think that there are ways to achieve what you're looking for without a hardship without violating the rules that obviously were established for a reason so that would be my if there are not any other board comments I guess oh do we open it to the public now do we have any we need to ask for a motion do we have a motion

I move not to grant the variance.

I second. Okay, and now public comment. Can you come up and state your name and your address, please? Thank you.

My name is Kathy Wyckoff. I'm at 644 Southwest Bryan Avenue, probably a couple blocks over, so I'm not within 300 feet, but I use the park all the time because, and I wanted to show this because Mr. Scott took this picture. That's why people go to this park. Sure. It's absolutely gorgeous, and we kayak. Another neighbor, she is within 300 feet, and so... absolutely you know putting a fence that area but you know before the people that were there before they never had a fence but they had vegetation that was like this thick and a lot of it is actually within the 40 foot that is the park so i was hoping that maybe the city could get us the actual boundaries of the park because it's much shorter i think maybe neighbors a long time ago they planted shrubberies Which could stay I'm not saying that I'm just saying that the park lines are like he said his properties from the 50s And you know, they did things differently in the 50s, but Creed I'm hoping that they're gonna invest in this park a little bit more We've been cleaning it up as the neighbors that we can get safely down with our kayaks So we can kayak out but taking pictures from that park is The sun is towards his property, not towards the other neighbor's property. So, you know, the sun, as it goes by, it goes this way. So we're always down there snapping pictures. I have pictures in my phone, but I think you guys are probably ready for this to end. But I do have a lot of waterfront. And the high water line has to be, like you probably heard, now you have to get with the DEP in southwest Florida. They, within 90 days of a survey to do a fence, they will determine the mean high water line because it changes. pretty big time. So you don't even know where it's going to end up. And the actual property line is a couple feet in on the actual seawall. And there is a bunch of riprap. And there is a child that was Because he cleaned it up. We loved it in the park. Because before, you couldn't see anything. And then they cleaned up all that stuff. And of course, he's going to plant. And there was a child. And he was trotting along in there. His mother has already sat him down and slapped him around. No, she didn't slap him. And he's already been schooled. He cannot go on that property. But, of course, he can do a fence all the way down. And then you can do those bushes that I swear with a machete and a chainsaw you can't get through. And they can go as high as you want. We're asking you nicely as your neighbor. Please don't put them up for you. Just kidding. But, you know, he can go all the way down with shrubbery that you can't get through. But these kids can go down. They can go on that shoreline. And I don't see that you're going to fence along the water. Are you going to fence along the water too? They're going to come around or come in, and they're going to hop in your pool. I'm just kidding. We're going to keep the kids on it. We don't have very many kids there. But, you know, my time's up. Thank you. Thank you so much. So, but anyway, I didn't mind if you had a fence, but I wanted .

Do we have any other public comment? Okay, so we have a motion.

Could I just ask Lee for clarity? So if a motion is kind of a, if it's a negative, in other words, a non-approval, just wanna make sure we get the yeas and the nays correct.

Yeah. Right, typically you don't do a motion in negative. If you're not gonna vote for it, you just don't do a motion. Oh, my bad.

How about this? I'm learning, I'm learning. If the motioner will retract, I'll provide a different motion.

Okay, I retract my motion. Okay.

I would move that we grant the variance for the applicant.

Do we have a second? Failing a second, the motion dies? Correct. Okay, thank you so much. Thank you, Clay.

We'll be saying nay and yay.

Wait, what?

Chair, did you adjourn the meeting? I'm sorry.

Meeting's adjourned.