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20080819_PC_mtg_min 1 PLANNING COMMISSION CITY MANAGER Libby Bacon Diane Schleicher Demery Bishop James P. Boyle PLANNING & ECONOMIC George Dausey DEVELOPMENT DIRECTOR John Major, Vice Chair Brannyn G. Allen Anne Miller David Postle Chuck Powell, Chair CITY ATTORNEY Whitley Reynolds Edward M. Hughes MINUTES Planning Commission Meeting August 19, 2008 – 7:00 p.m. Chuck Powell called the August 19, 2008, Planning Commission meeting to order. Other Commissioners present were: Demery Bishop, James Boyle, George Dausey, John Major, Anne Miller, David Postle, and Whitley Reynolds. Libby Bacon was absent. Chuck Powell asked for additions, corrections or a motion for the Minutes of the July 22, 2008, Planning Commission meeting. Anne Miller moved to approve. George Dausey seconded. The vote was unanimous. Chuck Powell asked if there were any Disclosures. Whitley Reynolds said that he would step out for item 2 and item 3. At Chuck Powell’s request, Brannyn Allen explained the actions taken by City Council on August 14, 2008, relative to Tybee’s Shore Protection Ordinance. Allen said that a motion was made to repeal the existing Ordinance and go with the State Shore Protection Act. She emphasized that it was not yet in effect; text would be drawn up repealing the current ordinance and including language referring to the State Shore Protection Act. She said that for the issues before the Planning Commission tonight, they were working under the existing ordinance. Chuck Powell opened the Public Hearing for a request from Michael Foran – Savannah Bar Pilots, Inc., for Zoning Variances (Section 5-090) from Section 3-090, Schedule of Development Regulations (setbacks), and from Section 5-010.J, Shore Protection with Variance Clause, for 1 Van Horn, PIN 4- 0003-10-009, Zone R-1. The request was for extension of a porch at an existing single-family dwelling. The proposed porch would encroach into one setback by 1.3-feet and into another setback by 0.4-feet. After summarizing the requests, Brannyn Allen said the Shore Protection issues had been permitted by the Department of Natural Resources. John Major asked how the Tybee line was drawn. Allen said that the line pulled off of a deck, which was interpreted as part of the dwelling to the north and it ran to an existing deck, and then turned south to a dwelling. David Postle asked if the deck expansion would take it further into the dunes. Allen said that a portion of it, the portion that needed a variance, would encroach beyond the Tybee line into the dunes. Demery Bishop asked about the encroachments. Allen said the 1.3-foot and the 0.4-foot encroachments were into the setbacks. Referring to “PROPOSED 2ND FLOOR WOODEN PORCH” written on the survey, Allen said that was the portion that encroached into the Tybee line. Major said that all but a small portion of the property was within the Shore Protection area of operation as defined by DNR and yet they permitted it. Allen said it was permitted in 2006. Major said that permit was good for five years. Allen agreed. Major asked what they had to do to get a permit. Allen said she assumed they went through the proper channels with DNR. She said that because 2 they are proposing to build beyond the Tybee line and encroaching into side setbacks, they needed to come before the Commission for a variance. Major asked if any dunes would be impacted or destroyed by the expansion. Allen said that she could not speak to whether the dunes would be destroyed or impacted. She said that according to the DNR, the dunes come within the area of operation. Powell opened the floor for the petitioner. J.B. Blackburn, Jr., Foran’s lawyer, said that the project was permitted by Tybee in 2002, and in February, 2003, the Tybee Zoning Administrator wrote to the DNR that what was proposed met all zoning ordinances. Blackburn said that Foran did part of the project and then it was decided that it was within the DNR’s jurisdiction so the project stopped. He said that Foran made application with DNR for a Shore Protection Permit and it took three years to obtain. Blackburn said that by the time Foran had obtained the Shore Protection Permit the building permit had expired so he again applied for a permit and that time Tybee denied it. Blackburn said that it was clearly an irregularly shaped lot; there were five sides, all of different lengths. He said that since the house was rectangular, the corners of the deck cross the setback line. Blackburn said that they believe that the Tybee line as drawn was incorrect; it did not go to the next dwelling on the beach – the line was drawn so that it crossed the street. After speaking of the Tybee line, the shape of the lot, the original plans, and the encroachments, Blackburn said that as part of the renovation Foran was restoring some of the dunes. He spoke of the DNR permit and then summarized his previous points. Major asked which of the dwellings on the south side was closer to Foran’s home. Blackburn said the next dwelling, but that was not the next dwelling along the shoreline. Major asked Allen to comment on whether the ordinance dealt with beachfront property. Allen said it was not specific; it said dwelling to dwelling. Major asked if the line was correctly drawn. Allen said yes. Major asked if construction was going to further impact the dunes. Blackburn said no. Postle, Blackburn and Allen discussed sand dunes and removal of a retaining wall. Blackburn gave final comments and asked that the variances be approved. Powell asked if there was any input from the public. Louise White said she lived across the street. She said that the porch would add to the attractiveness of the property. Powell closed the Public Hearing and called for a motion. Whitley Reynolds moved to approve the variance from the Shore Protection Ordinance. Anne Miller seconded. Postle asked what the Staff Recommendation was. Allen said the recommendation was denial based only upon the strict interpretation of 5-090.A. The motion to approve the Shore Protection Variance passed unanimously. James Boyle motioned to approve the setback variance. Reynolds seconded. The motion to approve the setback variance passed unanimously. Powell said that the petition would be before City Council on September 11. Chuck Powell stated that Libby Bacon was excused from the meeting. Anne Miller asked Chuck Powell to not announce the votes. She said that for both votes, David Postle waited until Powell had said how many had voted. Postle said that he would like to know what the vote was. He said that he normally gets his arm up much more rapidly than he had so far tonight but when you get up in years, things slow down. Chuck Powell opened the Public Hearing for a request from Richard Fitzer for a Zoning Variance (Section 5-090) from Section 3-090, Schedule of Development Regulations (setbacks), for 20 Taylor Street, PIN 4-0001-02-004, Zone R-1. The request was for a 10-foot variance from the required 20-foot front setback requirement for a new single-family structure. Whitley Reynolds recused himself. After summarizing the request, Brannyn Allen said this was currently a single-family lot and would be subdivided to accommodate a second structure. She said the DNR had reviewed the subdivision and site plan, and issued their approval in the form of a permit. She said the petition was in conformance with the DNR permit. Powell asked if they were being asked to approve the setback variance for lot A, not the entire site plan. Allen said that was correct. John Major said that part of the requirements to get a DNR permit was a letter from the local government saying that the property met the requirements of the 3 local ordinances. He said there was already a DNR permit and they had not looked at it yet. Allen said that when the petitioner first came, the project was not in violation of any of the City’s zoning ordinances, however, after the establishment of the DNR line, and the DNR giving them a smaller footprint, Fitzer now needed a variance in order to build what he had planned. Major asked if Fitzer had to go back to DNR. Allen said no. Fitzer said he represented the owner of the property, Catherine Fitzer, his wife. He said the property was unique in that the initial construction was done in 1898, there was some construction done in 1936, and more in 1958. He said they purchased the property in 2007 with the understanding that the subdivision had been granted preliminary approval. Fitzer said they were doing some renovations to correct drainage problems when they were alerted by the DNR that the dune line was not where it had been shown by the previous owner, Mr. Turner. After further explanation of the variance request, Fitzer said the request met the definition of a hardship. David Postle asked how many square feet would be left to build the home within the required setbacks. Fitzer said about 1,000 square feet. He said it was not so much the square footage as the depth; it was almost impossible to design a quality structure with a depth of 17 feet. Postle asked if Fitzer was proposing one living floor. Fitzer said it would be two levels above parking. Postle confirmed it would be a 2,000 square foot home. He asked if the initial proposal was 2,500 square feet. Fitzer said it was a 2,500 square foot footprint, yielding a 5,000 square foot home. Postle referred to builders and homes on Tybee that used the land they had to create attractive homes. Fitzer said he had built thousands of homes and was well versed in home design and construction. He said an oceanfront lot that only allowed a 2,000 square foot home would not be very marketable. Postle asked if it was an economic issue. Fitzer said it was an aesthetic and economic issue. He said that front setbacks on property are designed to ensure the safety of vehicular traffic and to provide access for fire fighting. Fitzer said there was no road so they were not creating a traffic hazard and the variance would not impact anyone in the community in a negative way. Powell asked if anyone from the public wished to speak. Ed Cawley, 14 Pulaski Street, said that he owned lot C, the lot that Fitzer wanted to build 10 feet closer to. Cawley said that Fitzer was proposing destruction of a significant portion of Battery Fenwick and it could negatively affect the structural integrity of the remaining portion, would negatively affect the neighbors’ property, and Tybee could lose Fort Screven’s National Historic District designation. Cawley asked if the subdivision plan had been approved by City Council. Allen said that it was a minor subdivision that would not come before City Council. Cawley asked if it had been approved. Allen said that the plat had not been recorded. Cawley said that he did not think it should be approved. He asked about the setbacks and he said that the subdivision would make the existing piece of property a nonconforming use, and he did not see a buildable lot. Cawley spoke of the proposal devaluing his property rights and he said that he had a reasonable expectation that the visual and physical separation of property, which exists according to City ordinances, be maintained by City officials. Referring to the removal of a section of Battery Fenwick, Cawley said that if it was built in the 1930’s it was part of Battery Fenwick for over 70 years and was constructed while Fort Screven was an active military installation. He spoke of the structure of the section, removal negatively affecting the dunes and existing property owners, and it being a significant, hard barrier to storm surges. Cawley concluded by saying that the only hardship he saw was Fitzer’s failure to complete due diligence. Ruth Kaplan, 15 Pulaski Street, said that it would not be good for the resale of the house because it was going to put down the value of the houses in the neighborhood. As for the DNR giving approval, she said she was not given the opportunity to oppose that; all of the other neighbors got a letter in the mail. She spoke of Fitzer’s plan being in his best interest but not in the neighbors’ best interest or the historical best interest of the City of Tybee Island. David Paddison, owner of lot B, said that when they purchased their lot it was common knowledge that there was not enough room to put a structure within the existing setbacks. He spoke of the location of the DNR line and then said that the only way Fitzer’s plan would work was if they changed the boundaries. He said that when he purchased his lot he had to make his house fit within the boundaries. He said the price that he paid for the lot was based on knowing that the setbacks associated with Fitzer’s property would be upheld. Paddison said that the value of his lot was 4 derived from the fact that there would be no further encroachment on the other side. He said the project was out of character for the neighborhood and all of the people that enjoy that area would face a hardship if the setback deviation were approved. Paddison said it would basically put a new residence right in their yards, the views would be cut, and it would be a lot higher density than the area was designed to hold. Fitzer said that he and his wife were very committed to protecting the original 1898 structure; the majority of the piece they were proposing to remove was a concrete block swimming pool constructed in 1958, which was such a problem that his insurance company would not renew his policy because of it, and it does not hold water. Fitzer said they have gone to great efforts to preserve the structure and have reclaimed the entire Battery with the exception of the piece they would like to remove. He said they have retained an expert skilled in doing non-destructive demolition. Fitzer said that when he informed Cawley that he was going to subdivide the property, Cawley’s response was that a house would block his view. Speaking to character and density, Fitzer spoke of a 6-unit PUD to the south of his property. He said that his project would be an upgrade for the neighborhood as it would be a nice cottage-sized bungalow on the beach that would allow him to develop his property within the limits of the law. Fitzer requested that the Planning Commission grant the variance. Powell closed the Public Hearing. Anne Miller moved to approve. Jim Boyle seconded. Voting in favor of the motion were Boyle and Miller. Voting against the motion to approve were Demery Bishop, George Dausey, Major, and Postle. Reynolds had recused himself. The motion to approve failed. Powell told the petitioner that he had the right to appear before City Council on September 11. Chuck Powell opened the Public Hearing for a request from James McLeroy for a Zoning Variance (Section 5-090) from Section 3-090, Schedule of Development Regulations (setbacks), for 1405 Fifth Avenue, PIN 4-0011-06-011, Zone R-2. The request was for side setback variances of 5.9-feet on the north and 5.8-feet on the south for a front deck addition at an existing single-family dwelling. Whitley Reynolds recused himself. After summarizing the request, Brannyn Allen said that there was a building permit issued for construction of the porch. She said that the permit kept the porch within the setbacks. John Major asked about the revised survey. Allen said that the petitioner chose to revise the site plan to show everything that was being constructed. She explained the parts included in the building permit and the parts being requested by the variance petition. Tim Fuller said that he was acting as a consultant in terms of design. He explained that the house was a duplex, was built in 1970, McLeroy was converting it to a single-family dwelling, and that the house was above the flood plain. Fuller said they are trying to enhance the curb-appeal and the ingress/egress. After giving details of the project, Fuller said that the request was all about squaring the house. Major spoke of the deck being in balance without the expansions on each side. Fuller spoke of the left side of the deck, as permitted, ending in the middle of a window. Fuller then spoke of the right side of the deck being squared to the front with the stairs. This was not shown on the submitted drawing. Powell asked that it be more professionally drawn. Allen said she would like clarification and would work with Fuller on that. Demery Bishop said that in order to make a decision they needed to know what they were looking at. Fuller said that he would modify the presentation before the City Council meeting. Powell asked if anyone from the public wished to speak for or against the petition. Fuller summarized and then Powell called for a motion. James Boyle motioned for approval with proper, revised prints to be presented to Council. There was no second. Bishop motioned to not approve. Major seconded. Voting in favor of the motion to deny were Bishop, Major, Anne Miller, and David Postle. Voting against the motion to deny were Boyle and George Dausey. Reynolds had recused himself. The motion to deny passed. Powell told Fuller that he had the right to appear before City Council on September 11. Fuller spoke with Powell and Allen about the drawings and the Planning Commission’s decision. The next item was Ordinance 24-2008, Flood Damage Prevention. Adoption would amend Land Development Code Section 8, Flood Damage Control, and Section 5-100, Standards for Variance from 5 the Flood Damage Control Regulations. Brannyn Allen said that the ordinance was prepared by FEMA. She said the most important change was to bring the City into compliance with the new Flood Plain Maps. Whitley Reynolds asked what was different. Allen said references to the Flood Plain Maps and a reference to recreational vehicles and their strapping. Allen said that there was superfluous information that did not necessarily apply, related to streams, rivers, brooks, but the feedback from FEMA was to keep it as it was. Reynolds asked if the ordinance allowed additions below flood level. Allen said that it would depend upon the percentage of the improvement; if it was not more than 50% of the total square footage of the structure or exceeded 50% of the value of the structure. After further discussion, John Major asked if there was a Staff Recommendation. Allen said that Staff recommended approval. She said that according to FEMA they needed to have it in place by September 27. Demery Bishop asked if there was any undue hardship. Allen said no, not in her review. Bishop asked if the City Attorney reviewed it as well. Allen said he had. Bishop asked if there would be undue costs and hardships. Allen said no. Chuck Powell asked if anyone from the public wished to comment. David Postle moved to approve. Bishop seconded. The motion to approve passed unanimously. Powell said that the item would be passed on to City Council on September 11. Ordinance 25-2008, Memorial Park Development, was discussed next. Adoption would amend Land Development Code Section 4-050.I, District Use Regulations, PC public parks-conservation district. Brannyn Allen said it was intended to limit or restrict further development within Memorial Park. After Allen read a portion of the proposed ordinance and referred to the exhibit attached to it, Anne Miller and Allen discussed the area on the exhibit marked as the ballpark being the location of the Veterans Memorial. John Major asked why they were doing this. Allen said the intent was to try to protect and preserve the greenspace in Memorial Park. Major asked if the non-greenspace was no longer in Memorial Park; were they redefining Memorial Park. Allen said no, not to her knowledge. She said that it was limiting the expansion of, as Major described it, the non-greenspace. Allen said that the line was drawn so that in the event City Hall or the Library would need to be expanded, that could be done. She said that the YMCA and Gym were also excluded. David Postle said that the boundaries of what would become the new, shrunk Memorial Park excluded all of the buildings currently surrounding Memorial Park. He said the Councilman that made the motion to shrink the size of the Park stated that if the motion passed, the next battle would be over the old school and the erection of a public safety building. Postle said that the size of the Park was dramatically lessened; all of the buildings were removed for a very specific purpose. Chuck Powell asked if anyone from the public wished to speak. Sandy Postle said that the proposed ordinance was premature because the public review period of the Memorial Park Plan had not been completed. She said that because of the way the map was drawn it seemed to redefine the official boundaries of the Park and left a question as to the future of the public safety building. She said the boundaries of Memorial Park should remain at this time. Powell called for a motion. Postle moved to table as it was premature. He said he consulted with a person in the field of law and was advised that the 90-day public hearing period did not allow any activity changing the circumstances of the property in question during that 90-day period, therefore, the motion passed by the Council should have been ruled out of order by the Mayor and/or the City Attorney. He said the placement of the Veterans Memorial where the Dog Park used to be was also out of order; it occurred during the 90-day period. Powell said there was a motion to table. Major seconded. Demery Bishop asked if they were currently in a public comment period concerning change of the geographic dimensions of Memorial Park. Allen said no, it was a public comment period based on the plan that was prepared by the ad hoc committee but it was not a formal public hearing period. Bishop asked if actions could be taken during a public comment period. Allen said yes, because it was not a formal hearing. Powell called for a vote. Voting in favor of the motion to table were Bishop, Major, and Postle, and then James Boyle, George Dausey, Anne Miller, and Whitley Reynolds voted against the motion. Powell called for another motion. Reynolds moved to approve and Boyle seconded. Voting in favor of the motion to approve were Boyle, Dausey, Miller, and 6 Reynolds. Voting against the motion to approve were Bishop, Major, and Postle. The motion to approve passed. Chuck Powell said that the final agenda item, Ordinance __-2008, North End Cultural Overlay, was not completed in time so it was removed from the agenda. Chuck Powell gave the dates of upcoming City Council and Planning Commission meetings. Chuck Powell adjourned the meeting.