HomeMy WebLinkAboutMinutes 02-25-2009
St. Lucie County Board of Adjustment
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St. Lucie County Administration Building Commission Chambers
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February 25, 2009
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9:30 a.m.
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A compact disc recording of this meeting, in its entirety, can be obtained from the
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Growth Management Department along with these Minutes. A fee is charged. In
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the event of a conflict between the written minutes and the compact disc, the
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compact disc shall control.
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CALL TO ORDER
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Chairman Mr. Ron Harris called the meeting to order at about 9:30 A.M.
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ROLL CALL
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Ron Harris .................................. Chairman
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Diane Andrews ............................ Board Member
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Buddy Emerson ........................... Board Member
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Richard Pancoast ........................ Board Member
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MEMBERS ABSENT:
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Bob Bangert................................. Vice Chairman
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OTHERS PRESENT
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Jeffrey Johnson ........................... Senior Planner
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Heather Young ............................ Assistant County Attorney
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Dawn Milone ................................ Senior Staff Assistant
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ANNOUNCEMENTS
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Assistant County Attorney Heather Young stated that the County Attorney’s Office is
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here to represent the Board of Adjustment. Staff will be making a presentation, but the
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County Attorney’s responsibility is to answer any questions the Board may have or
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provide any direction they request.
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Agenda Item #1 – Minutes
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Approval of the Minutes of Regular Meeting of January 28, 2009.
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Mrs. Andrews motioned approval of the minutes; Mr. Pancoast seconded.
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The motion carried 4-0.
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Page 1 of 6
Public Hearing Edward J. Harrington, Jr.
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February 25, 2009 BA-1120081539
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Agenda Item #2 – Edward J. Harrington
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Jeffrey Johnson through his presentation explained the request of Edward Harrington to
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allow the construction of a 144 square foot wood deck to encroach five feet into the
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minimum five foot rear yard setback for a variance from the provisions of section
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7.10.16(Q) of the St. Lucie County Land Development Code.
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Mr. Johnson said the petitioner explained on his application that the purpose of this
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deck is to protect the building foundation from further damage by a storm surge.
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Mr. Johnson explained that there are underground utilities that lie below the pavers; and
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the homeowners association will not allow the area to be paved in order to allow the sea
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wall to expand and contract.
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Mr. Johnson added that staff recommends denial of the variance. He said the variance
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sought arises from conditions that are not unique to the property, the particular physical
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surroundings that would not result in unnecessary hardship; the condition is created by
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the intentions of the property owner to construct a deck that would encroach into the
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entire rear yard setback.
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Mr. Johnson said the HIRD Zoning District does not have minimum open space
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requirements for individual lots, and it is the professional opinion of staff that the
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minimum setbacks be preserved so as not to reduce the integrity and character of this
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residential community.
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Mr. Johnson said responses from the mail notice sent to adjacent property owners
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showed 12 opposed, 3 in support, and 1 with no objection to the petition.
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Mrs. Andrews asked if slabs used to be allowed in the old LDC; Mr. Johnson responded
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not to his knowledge.
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Edward Harrington, the petitioner, said he needed the protection against the
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undermining of the foundation of the property. He said some of the houses were
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cracked in half during Hurricanes Frances and Jeanne, because of the unprotected
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areas homeowners on the inter-coastal have.
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Mr. Harrington said he stayed in the house during hurricane Jeanne, and took video of
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the damage that was done during the storm.
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Mr. Harrington said a secure deck would save him from the erosion of the foundation,
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since the foundations of those houses in Nettles Island are only three feet into the sand.
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Page 2 of 6
Mr. Harrington showed the Board a four minute video depicting the aftermath of
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Hurricanes Frances and Jeanne. He then showed photos of other decks that his
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neighbors on the same south wall have put up.
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At the conclusion of his presentation, Mr. Harrington described how the deck would be
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constructed, and reiterated that his primary purpose is to protect his home.
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Mr. Harris returned to the Board for questions of the applicant.
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Mrs. Andrews said it appears on the survey that there is another two feet between the
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property line and the inside of the concrete cap on the sea wall, and there appears to be
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pavers in that area. Mr. Harrington said that is where the old sea wall was, and they
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have since repaved it after it collapsed; he added the deck would not infringe on the sea
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wall.
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Mrs. Andrews asked Mr. Harrington why he used the term “non-permanent deck”. Mr.
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Harrington said in the event the utility companies need to get in there, they designed a
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way to have the deck removed by putting four by four footings in PVC.
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Mr. Harris asked if the deck was designed by a structural engineer. Mr. Harrington said
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he got the schematics from the Home Depot website and submitted them. Mr. Harris
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said the Building Department requires the plans to be signed and sealed by a licensed
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engineer. Mr. Harrington said he is prepared to do so.
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Chief Emerson pointed out that one of the three stipulations in the approval letter from
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the homeowner’s association was that the deck plans have to be engineered, stamped
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drawings submitted to and approved by St. Lucie County.
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Mr. Harris asked the applicant if he needs to go before the association with the sealed
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plans for their final approval. Mr. Harrington said he does not.
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Having no further questions of the applicant, Mr. Harris opened the public hearing.
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Chris Draper, an attorney representing Nettles Island Condominium Association, said
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that the five foot setback is an easement area, and in the recorded restrictions there is
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nothing allowed to be built or planted there. Mr. Draper said neither he nor the
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Association has seen the approval letter submitted by Mr. Harrington, and it was not
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approved by the Board. He said they have not approved any decks in the setback area.
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Mr. Draper said if this Board grants the variance, it does not constitute a variance
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against the Association’s recorded restrictions, and the Association will take action in
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Circuit Court to get an injunction against the construction of the deck.
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Mr. Draper said the sea wall had to be reconstructed, and the Association spent over
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$400,000.00 a year maintaining it, and they need the five feet open for maintenance
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without obstruction. Mr. Draper said the dock on the water side of the sea wall was
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approved, but Mr. Harrington never got approval for the deck. Mr. Draper submitted
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Page 3 of 6
Exhibit 1
, the Amended And Restated Declaration of Condominium of Nettles Island,
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Inc., a Condominium. Mr. Draper tabbed the areas of the document pertinent to the five
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foot easement that provides for maintenance access and utilities, and that it cannot be
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permanently covered.
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Mr. Draper said the Association does not and cannot approve the installation of
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anything permanent. He addressed the petitioner’s position that the deck will not be
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permanent, and said if manpower can remove the deck, what could prevent category
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four hurricane winds from getting underneath it and lifting it?
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Mr. Johnson said the survey submitted does not show the easement. Mr. Johnson said
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the County does not allow encroachments into any easement unless they get
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authorization from any interested party, so that is another reason for staff
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recommendation of denial.
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Mr. Draper brought petitions signed by approximately 124 residents, and said if they
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had more notice they would have gotten more than that. He said when Mr. Harrington
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purchased his unit it was pursuant to the recorded Declaration of Condominium that
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states the easement is for the association and utilities, so they are requesting the
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variance be denied.
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Mrs. Andrews asked if the Association was taking civil action against all of those with
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decks in the condominium. Mr. Draper stated they were going against all of them; he
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said none of them were permitted. Mr. Draper said when the Association first became
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aware of Mr. Harrington’s request Mr. Lepine went around and identified where there
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was some sort of structure in the five foot easement. He said they will send an initial
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demand letter and if the structure is not removed in 30 days, he will file a lawsuit.
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Bill Cates, president of the Association said they cannot allow someone to hinder the
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inspections and maintenance of the sea wall, which is their main defense against the
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elements. Mr. Cates explained an alternate way to protect the house. He said some
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people on the sea wall have put hydraulic jacks and pilings deep into the soil as a
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footing for the house.
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Chief Emerson asked who Harry McCubbin is. Mr. Cates said Mr. McCubbin was the
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former president of the Association, but was removed for other reasons.
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Chief Emerson asked if Mr. Cates had seen the letter submitted by Mr. Harrington that
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is on Nettles Island Condominium letterhead. Mr. Cates stated he had never seen nor
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heard anything about it.
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Mr. Harris asked Mr. Cates if the president of the Association has authority to grant
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such a variance if their Board approved it. Mr. Cates said no, any action taken is by the
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Board, the president does not have that authority.
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With no further public comment, Mr. Harris called the petitioner back to the podium.
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Page 4 of 6
Mr. Harrington said the County permits these structures to be built up to a certain
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square footage within the five foot setback. He said Nettles Island approves every one
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of them.
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Mr. Harrington addressed the argument Mr. Draper made about he plastic sleeves with
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an alternative. He said the other way to do it would be to mount stainless steel brackets
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in the concrete and through-bolt it, he thought the plastic sleeve would be easier.
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Mr. Harrington said the barrier of the deck would protect the sea wall from erosion. He
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said it would be better for them, and much less expensive for him, so he thinks it is a
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better way to go about it.
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Mr. Harrington stated he did not know there would be this much resistance, and he
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doesn’t know if he can bring counsel to a meeting at a future date. He said he feels like
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he is overmatched when it comes to legalities, and he does not want to be victimized by
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not having the right people here for him.
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Mr. Harris asked if the applicant was requesting a continuance, to which Mr. Harrington
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said yes. Mr. Harris turned to Ms. Young for her to advise him on the issue. Ms. Young
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stated it would be up to the Board, but it would need to be continued to a date certain.
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Mr. Harris returned to the Board for discussion. Mr. Pancoast said he does not believe
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an attorney could change his mind on this; in particular the comment from staff that we
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would not issue a permit to build in a setback; and the comments from the Association.
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He said he does not believe any deck could be protection to the home. Mr. Pancoast
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stated if other Board members are inclined to go along with a continuation for the right
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of due process, he would go along with the Board.
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Chief Emerson asked what the purpose of the request for continuation was. Mr.
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Harrington said there were statements made that he doesn’t know are true; and he said
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the County does approve homeowners building in the five foot setback all the time.
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Mr. Johnson clarified that decks are permitted accessory structures, but they are
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required to meet applicable setbacks for each zoning district. Mr. Johnson showed the
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picture of the petitioner’s landing and staircase; he said the landing cannot exceed 16
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square feet, or 4 by 4, and the stairway itself can occupy no more than 10 percent of the
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rear yard. Mr. Johnson stated when they come in for building permit, that is carefully
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analyzed by the Building Department officials before a permit is either issued or denied.
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Mr. Harris asked Mr. Draper where the property line is in respect to the seawall. Mr.
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Draper responded the five foot area is from the building line to the sea wall.
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Mr. Harrington said the five foot area is his property. Mr. Harris said if an easement
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exists, the County does not allow structures in easements without utility sign offs.
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Page 5 of 6
Mrs. Andrews asked if the Declaration allows for variances. Mr. Draper said no, and it
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specifically states in the recorded restrictions that no permanent structures, trees, or
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shrubs may be placed in the easement.
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Mrs. Andrews asked what the percentage is to amend the Declaration, to which Mr.
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Draper replied 51 percent to amend it, but to alter an element or vacate an easement, it
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would be 100 percent.
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Mrs. Andrews asked if the Declaration can be more restrictive, but not less restrictive
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than County code; Mr. Draper said yes, and many of the associations he represents are
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grossly more restrictive than the County code.
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The Board did not offer support for the continuance of the petition.
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Mr. Harris returned to the Board for a motion.
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Ms. Young said for clarification to the audience that the Board members are presented
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with two form motions granting or denying with blanks for their reasons.
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Chief Emerson made the motion:
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After considering the testimony presented during the public hearing, including staff
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comments, and the standards of review as set forth in section 10.01.00 of the St. Lucie
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County Land Development Code, I hereby move that the Board of Adjustment deny the
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Edward j. Harrington, Jr.
petition of for a variance from the provisions of section
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7.10.16(Q) of the St. Lucie County Land Development Code to permit the construction of
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a wood deck to encroach five (5) feet into the required five (5) foot rear yard building
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setback from the property line because of the reasons set forth by staff in their report.
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Mrs. Andrews amended instead of “setback” say “easement”. Mr. Pancoast seconded.
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The motion carried unanimously.
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Having no further business, the meeting adjourned at about 10:25 a.m.
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