Melbourne Village Board of Adjustment continues variance hearing for 756 Acacia Ave after procedural challenge

The Town of Melbourne Village Board of Adjustment opened a quasi‑judicial hearing on May 26, 2025, on a variance request for 756 Acacia Ave, Lot 418, but agreed to continue the proceeding after a procedural dispute over the proper legal vehicle for relief.

Chairperson Christine Kretz opened the meeting and read the six requirements for a variance under §23‑25(b) of the Town of Melbourne Village Ordinances, and Town Attorney John Cary reminded the Board that, as a quasi‑judicial hearing, its decision must be based on evidence presented in the record rather than on public opinion. Applicants Gus and Dorothy Rathgeber were present and represented by attorney Joseph Colombo of Mommers and Colombo.

In an opening statement, Colombo told the Board the permit history and technical submissions that underlie the applicants’ case: a building permit was issued on 2024‑03‑21 based on hand‑drawn plans and an agreement to provide engineering drawings; an engineering drawing was later submitted on 2024‑06‑17 showing a building height of 24'6"; and construction began on 2024‑07‑01. Colombo said the applicants would argue that demolition would be the only practical remedy and invoked equity and the Doctrine of Waste as reasons to avoid that outcome. He also asserted the applicants had been cooperative and that the Town had not followed up after the engineering plan was filed.

Board member John Daly asked to be heard and questioned counsel about whether the case should proceed as an appeal under §23‑25(a) rather than as a variance under §23‑25(b), saying neither the application packet nor Colombo’s opening identified a condition that would justify a variance and that the filings appeared to challenge Town officials’ actions. Colombo responded that he had recently been retained and that the original application was filed pro se by Mr. Rathgeber; the attorney asked for time to review the ordinance and confirm how to proceed.

The Board recessed briefly to allow counsel to consult. After resuming, the Board granted a continuance; Colombo agreed the hearing must continue within 30 days, declined to set a time certain, and agreed the applicants would pay the costs of re‑noticing and advertising the continued hearing. No final ruling on the variance was made.

Votes at a glance

- Approval of minutes (Sept. 25, 2024; Feb. 27, 2025): Motion by Bob Murphy, second by Tom Kjerulff — motion carried with no Nays. - Designation of non‑voting alternate: Motion by Bob Murphy, second by Tom Kjerulff to designate Dan Carelli a non‑voting alternate — the motion passed on voice vote (dissent noted). - Continuance of variance hearing for 756 Acacia Ave: Granted; applicant attorney agreed to pay re‑noticing/advertising costs and to return within 30 days.

Key details and next steps

The Board emphasized the quasi‑judicial nature of the proceeding and that any decision must rest on evidence in the record, not solely on resident comments. Attorney Colombo signaled he would refine the procedural posture of the filing before the continued hearing. The Board did not set a specific date; the continuation must occur within 30 days and will require additional noticing paid by the applicants.

Clarifying details from the record: the building permit was issued on 2024‑03‑21; an engineering drawing showing a 24'6" height was submitted on 2024‑06‑17; construction began 2024‑07‑01; the applicants agreed to pay costs for re‑noticing and advertising the continued hearing.