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Home My WebLink About31164 - MINUTES - City Commission �z C LARKE WALD77N -"i ATTOIiNP.V AT l.AW t DA-NIA,FLOR IDA � `? ROBERT E. DUBOW i '- January 16 1966 s. Honorable Richard Marant Mayor-Commissioner City of Dania �^ 0 ; Dania, Florida �aF F Dear Mayor Marant: Lois Ann Card recently requested a variance permit concerning 0 the operation of a busine ss which may be described as that of operating a residence home, or homes, for girls or women. She then withdrew the ?g.' request before any action was taken by the city. You have since requested an opinion from me concerning certain phases of the subject. r y,0 It is my understanding that the business is conducted in three 1 ru houses in the Shelter Islands subdivision. One of the houses (at 1405 N. W. loth Street) is on a parcel consisting of two lots which are presently zoned B-1 zoning classification. The other two houses (at 1331-1333 N. W. 10th Street) are on lots zoned R-1 classification. The two R-1 lots are adjacent 0 to each other and, when considered together, constitute one parcel located at the corner of N. W. 14th Avenue and N. W. loth Street. The two B-1 lots are on the opposite corner and on the same side of the street. It is my further understanding that all of the lots where the three houses are located were zoned B-1 classification when Mrs. Card started 0 her business. However, within recent years, the two houses at 1331�'_1333 N. W. loth Street were rezoned to R-1 classification. I am told that the business, insofar as its direct contact with the public is concerned, is operated from the house presently zoned B-1 and that the records, etc. are maintained at such house. If my understanding is correct, I would 0 describe the present business as a complex involving three houses with the location of two of the houses separated from the third house by a public street. Mrs. Card evidently boards the guests at the houses under some 0 type of arrangement with the county welfare department. It is my opinion that a business of this type is permitted under a B-1 classification. For example, a B-1 classification permits the operation of a boarding house, a rooming house, a hospital, a clinic, a guest house, group housing, vo- cational schools, etc. Clearly, the business of Mrs. Card could be fitted 0 into one of such classifications. With respect to the two houses ales on the lots which are presently zoned R-1, it is my opinion (assuming that my facts are correct) that Mrs. Card should be allowed to continue her business, notwithstanding the change of zoning to R-1, if the business was never abandoned on the two lots after 0 the change of zoning. This is based on the theory of an "existing, non-con- forming use" which simply means that a person operating a business in a proper zoning cannot be zoned out of business through a change of zoning to a new category which prohibits the business. The theory of an existing non conforming use is well recognized in the general zoning laws. • -COO Ci T.A R.Rli NVA 1,DBN Page Two 49 The burden of establishing the existing non conforming use of the property should be on Mrs. Card. I suggest that she should furnish detailed, sworn affidavits to the city showing when she established the use in question, the exact name of the owner of the lots, the exact name of the business, the relationship between the owner and the operator if these ® are different, records as to the number of persons boarded in the houses before and after the change of zoning, etc. The affidavits should be available for public inspection and an opportunity, should be furnished to opponents to furnish counter affidavits if any facts are in dispute. ® In my opinion, the establishing of a non conforming use is an administrative function. No hearing or determination is required by the city commission. I recommend that the matter be referred to the building inspector and to the city manager and that they should obtain all relevant affidavits. The final decision should be made by the city manager and the building inspector. I understand that Attorney A. J. Ryan, Jr., or Mr. Moriarity from his office, will represent Mrs. Card and that Mr. Charles Paoli will repre- sent the opposing neighbors. I suggest that the city officials should contact these attorneys and request that they submit affidavits in support of any po- A sitions they take. Please understand that I have no actual;,khawledge of any facts and that I do not know of the accuracy of the hypothetical facts on which this letter is predicated. Therefore, I suggest the affidavits of proof. A Also, I have not discussed whether the operation constitutes a nuisance. If the business is a private nuisance, the neighbors have civil remedies available. If the business is a public nuisance, the neighbors can call upon the county solicitor for assistance. • Further, I have not reviewed any deed restrictions as the city has no responsibility to take notice of deed restrictions which may, or may not, permit the operation of the business in question. Yours very truly, Clarke Walden • CW/b 51 1b9273 C & H CUi1 iTrtUCTION, IIlC, to RE'C:.22J1 PAu 506 ®I Tilt'; PUBLIC D1,CL111ATION OF RLSTRICTIUNS Id17aCTING 6111MER ISLIMS THIRD ADDITION ACC0RDING TO THE PLAT '1'Iii:tUL: AS RECURDF.D 114 PLAT BOOK 55, AT PAGE 16 OF THE PUBLIC itcA;0RW URJ�W CUUIITY, hoOICIDA. ®! OF 11i {iMQUi LS, the said C & 11 OOIIST10CTION, I11C, desires that all of the above , property be subject to like rontrictions and reservations for the mutual bruefit and protection of itself and persons, both material and corporato, ,rho may horcafter purchase and acquire any intorent in said property, or any portion thereof, ii(IYI, TH&U-. 'uliE) in consideration of the prominos, C & H •i Mio RUCTIOi+, INC. does hereby declare said properties to be subject to the following restrictions, reservations and conditions, and binding upon said i C & 11 CUJ,;TrJUC'i'ION# INC., and upon each and every person and corporation who or which ,shall horeaftor become the owners of said proporty, or rany portion I thereof, their heirs, successors and assigns, to-wig: 1. UJt'=j. No lot or lots embraced in the aforesaid subdivision shall • be used for other than single family residence purposes, except Lot 9 in said subdivision which can be used as two family residence. There shall not exist on any lot at any time more than one residence, except as aforesaid. Ito temporary residence, out building or guest house shall be constructed. No garage nhall be constructed except as an integral part of the residence it , is intended to serve.No residence shall be used for any o s whatsoever. • 2, SET-BACK LMS. No building, including garages and porches shall be erected on any lot closer than 20 feet to the front line or closer than I ,St 5 foot to either side lot line and shall be at least •RO feet from the lot line abutting upon the watorway. 22. ®! S. No ono-story residence shall be erected containing a floor area of less than 1,000 square feet, exclusive of porches, breeze-ways, car porton i or garages. j 4. Docks, piers or mooring posts shall not be constructed so as to Cr extend a distance of 5 feet from lot line. m 5. NUISANCES. Nothing shall be done on any lot or any waterway which may be or become an annoyance or.nuisance, to the neighborhood. 6, MISTENCE AND DURATION OF RESTRICTIONS, The foregoing covenants, ; j rustrictions and servitudes shall be considered and construed as covenants i running with the land, and said covenants, restrictions and servitudes shall • remain and continue in full force and effect until the first day of January, 1975. Ill 0ITN46S i4U;i wFv the said Corpora tion has caused these presents to be signed in its name by its President, and its corporate -seal to be affixed., attested by its Secretary, this 15th day of Novombor, 1061, O ,—• C & H Construction, Inc ) (Corporate Seal)// Attests ,U' : ;.c_ Searotary President imod Sealed and Delivered in Our Presence: 74 • `' TlTLE 'WLRENCB. "',rigs Corporation to C & H Construction Inc. • October 26, 1961, Recorded O/R.:Dook VHS Page 413