Three-judge panel hears arguments Oct. 21

By Jennifer Nessmith

Staff writer

MELBOURNE - After more than four years of battle, representatives from the city of Melbourne and soup kitchen Daily Bread finally had their day in court.

The two groups are at odds over a zoning decision made by Cindy Dittmer, Melbourne's director of planning and economic development.

At a special meeting May 14, Melbourne's Zoning Board of Adjustment upheld a decision Ms. Dittmer made denying a request made by Daily Bread for a zoning change so the nonprofit could a build an administrative building adjacent to its soup kitchen, located at 815 E. Fee Ave., Melbourne.

Daily Bread officials claim that their two properties, located at 815 E. Fee Ave. and 805 E. Fee Ave., although adjacent, are actually two separate lots with two separate zoning designations.

Daily Bread's soup kitchen resides on lot 815, which is zoned C2, a designation allowing soup kitchens. Last year, the nonprofit asked the Melbourne City Council to approving a zoning change at 805, the lot adjacent, which is zoned C1, or light commercial, so that the organization could build a new facility spanning both lots, containing the soup kitchen, a multi-purpose area, showers, administrative offices and a mail facility, among other things.

The council denied that request.

Roughly a year later, Daily Bread officials returned with a plan to expand and rehabilitate the soup kitchen building on the site zoned C2 and to construct a new administration building containing the above-mentioned resources, minus the soup kitchen, on the lot zoned C1.

Ms. Dittmer rejected that plan, saying that the reason Daily Bread could not build a new building was because it was simply going to be an accessory use to the soup kitchen, or, in essence, an expansion of the facility, which had been rejected.

Essentially, what Ms. Dittmer was saying was that the administrative building would not exist without the soup kitchen, and therefore, it is an accessory to the soup kitchen.

Daily Bread continues to argue that the two lots are separate, with two separate zoning designations.

However, Paul Gougelman, Melbourne city attorney, when arguing the city's position to the Board of Adjustment, referred to a legal concept, adopted in other states, called the doctrine of merger, which states that as far as the definition of a lot for zoning purposes, the lot expands to whatever the building site is - in this case, C2, which is the only zoning designation that allows for soup kitchens. Therefore, Ms. Dittmer's decision was made based on her interpretation that the new administration building would act as an accessory to, or expansion of, the soup kitchen. In this case, the lot would expand as a C2, not a C1.

The Zoning Board of Adjustment sided with Daily Bread, voting 4-3 to overturn Ms. Dittmer's decision. However, in order to overrule the decision, the city requires a supermajority vote, which would have been 5-2.

On June 19, the soup kitchen filed a civil suit against the city with the Brevard County Clerk of Courts, asking a judge to review the matter.

A three-judge panel of the Circuit Court of the 18th Judicial Circuit, with Judge David Dugan presiding, heard arguments from the opposing parties Oct. 21. Judges Charlie Crawford and John Harris also sat on the bench.

The court allowed each side only 10 minutes to present their arguments.

"We believe the city applied the incorrect law in determining the definition of a lot," said Kim Rezenka, attorney for Daily Bread.

Assistant city attorney for Melbourne, Allison Dawley, argued the city's position that the administration building would not exist without the soup kitchen.

"When you have people going back and forth between these two buildings, they're waiting for services," she said. "They're creating a campus-like environment."

Judge Harris said it appears the city's code is a bit confusing.

"If I look at the city of Melbourne's code for the definition of a lot, it's hard to determine because there are five or six definitions," he said.

"We can only review the whole package," Ms. Dawley replied, adding that Daily Bread was asking the court to make a decision that would negatively impact residential neighbors' property rights and values.

Ms. Rezenka rebutted by saying the site plan indicates two separate properties.

"The site plan shows two buildings with their own parking a fence between them," she said.

At the end of the 20-minute session, the panel adjourned. They will render a decision within the next 30-60 days.

John Farrell, executive director of Daily Bread, said he feels the organization presented a strong case.

"I think it went very well," he said.