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Palm Bay board split after homeowner seeks 3.5-foot rear-setback variance for finished addition
Summary
A Planning and Zoning Board vote on a variance for a rear-yard encroachment at 299 Bougainvillea St. NW failed after a 2-3 vote; staff had recommended denial because the hardship appeared self-imposed.
The Palm Bay Planning and Zoning Board failed to recommend approval for a variance that would legalize a roughly 3.5-foot rear-yard encroachment at 299 Bougainvillea Street NW, a property owner told the board on Feb. 5. The motion to recommend approval failed on a 2-3 roll call vote.
City planner Christina Hall told the board the owners, Marshley and Francois Jean, had submitted a building permit for a 579-square-foot rear addition and later submitted a final survey showing the finished addition encroached about 3.47 feet into the 25-foot rear setback. Hall said staff considered the request under table 173-4 (dimensional standards) and section 172.025 (variances) of the land development code and cited Florida law allowing owner-builders (chapter 489 of the Florida Statutes). Hall said staff could not recommend approval because, “the hardship was self imposed.”
The case matters because variances set precedents for neighborhood setbacks and enforcement. Hall summarized why the variance failed the staff test: the code requires applicants to show an unnecessary hardship not caused by the owner’s actions, and the record shows the homeowners acted as the owner-builder and accepted responsibility for oversight.
At the public hearing, property owner Marshall Jean apologized and described hiring a contractor to build the addition and discovering the discrepancy only at final survey: "I would like to say sorry for that thing happen... We just, hired someone to do the job for us." Jean told the board he pulled the permit and had inspections but said the final survey revealed the built dimensions differed from the approved plan.
Board members divided along enforcement and hardship lines. Board member Goode moved to recommend approval, saying the encroachment was small, the structure was already built, and removal would be costly. Board member McLeod and others opposed, stressing accountability and the obligation to follow approved plans. As board member Carafa noted, the issue was whether the situation resulted from inexperience or from a failure to follow the approved permit and plans.
On the motion to recommend approval, the roll call recorded two yes votes and three no votes, and the motion failed. The chair then confirmed the board would move the case forward to city council for final disposition; no formal board recommendation to deny was recorded in the transcript.
The board heard no written comments in the file and no amendments were made. The staff report and the failed recommendation are on record for city council review.
Clarifying details provided at the meeting include: the lot size (about 0.23 acres), the addition size (about 579 square feet), the measured encroachment (approximately 3.47 feet, reducing the setback from about 25 feet to roughly 21.5 feet), and staff references to the land development code sections noted above. The board emphasized the distinction between errors apparently caused by owner oversight and hardships that are not self-imposed.
The Planning and Zoning Board forwarded the case materials and the record to the City Council for its decision.
