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Minutes 08-22-77MIS~JTES OF THE BOARD OF ADJUSTMENT MEETING HELD AT CiTY HALL, BOYNTON BEACH, FLORIDA, MONDAY, AUGUST 22, 1977 AT 7:00 P. M. PRESENT Derle B. Bailey, Chairman Vernon Thompson, Jr., Vice Chairman Lillian Bond Foy Ward Carl Zimmerman Ben Adelma~, Alternate Bert Keehr, Assistant Bldg. Official ABSENT David Healy, Secretary (Excused)~ Walter B. Rutter (Excused) V. Paul Scoggins, Alternate Chairman Bailey called the meeting to order at 7:05 P. M. and introduced the members of the Board, Assistant Building Official and Recording Secretary. He requested Mr. Zimmerman to act as the Secretary in Mr. Healy's absence. ~inu~tes of .August 8~ 1977 Mr. Adelman referred to the last page, second paragraph, and the statement made by Mrs. Kirton questioning the integrity of this Board and stated he did not think the members lacked integrity just because of the decision made. He thi~d~s this statement should be §tricken from the minutes or Mrs. Kirton ~hould make an apology to the Board. Chairman Bailey replied that he didn't believe we could take it out of the minutes, but can make a note in these minutes tomight that this did come up. Ne thinks in the approval of the minutes, it is to correct something which was misquoted, but Mrs. Kirton defi- nitely did make this statement. The Board can go on record as opposing that type of comment. Mr. Ward made a motion to include the statement ~hat we are strenuously opposed t® the accusations made, seconded by Mr. Adelman. Under discussion, Mr. Thompson suggested to keep this from happening again, he thinks it should be pointed out that this Board does not dis- criminate against anyone nor should we be discriminated against and Mr. Ward agreed. Motion carried 6-0. ~. Keehr informed the members that there were a couple of corrections submitted by Mr. Howell. Mr. Zimmerman read the'~attached memorandum dated August 12, 1977, from Mr. Howell. Mr. Adelman moved to adopt the minutes as corrected, seconded by Mrs. Bond. Motion carried 6-0. Correspondence Mr. Zimmerman read a letter from Mr. David Healy requesting to be excused from the Board of Adjustment meeting on August 22 and further meetings mntil September 15. MINUTES B~RD 0F ADJUSTMENT PAGE TWO AUGUST 22 , 1977 Chairman Bailey ad~ed that Mr. Zimmerma~ had requested to be excused through the month of September. Parcel #1 - Lot 12, Block 16, Golf View Harbour, 2nd Addition Recorded in Plat Book 27, Pages 46 & 47 Palm Beach County Records Request - Relief from 25 ft. rear yard setback requirement to 21 ft. 6 in. rear yard setback~ Relief from 8 ft. rear setback requirement for screen enclosure for swimming pool to 5 ft. rear setback. To construct new home with screen en- closed swimming pool.~ Address - 1184 S. W. 24th Avenue Applicant - William C. & Hazel B. Quimette Mr. Zimmerman read the above applicatiom. showed the plan to the members. Chairma~u Bailey Chairman Bailey then asked if anyone was present to represent William C. and Hazel B. Quinette. Mr. William C. Quinette, 257~ S. W. 14th Street, appeared before the Board. He referred to the plan and advised that he thought there was an error in the figuring and pointed out that?it should have beem 20 ft. 6 in. instead of 21 ft. 6 in. Mr. Adelman asked how long the house on the east had been there and ~m. Quinette replied that he did not know, but be- lieves it was built several years ago. Mr. Adelman asked if the zoning was changed after that house was built and Mr. Quinette replied that he did not know. Mrs. Bend questioned the hardship and Mr. Quinette replie~ that the house to the east would obstruct their view of the canal. ~s. Bond asked in what way and ~. Quinette informed her that the house to the east has an enclosure 3 ft. from the property line. M~s. Bond referred to his property being on the canal and asked if he planned to build a seawall an~ ~. Quinette replied that from the property line, there is a 30 ft. right-of-way to the canal. Mr. Thompson asked how long he had owned the proper~y and Mr. Quinette informed him that he purchased it in January or Feb- ruary. Mr. Thompson asked if it was ~ standard home or a special design and Mr. Quinette informed him that it was de- signed for thisbe?particular lot.. Mr. Adelman stated that he looked at the property yesterday and the property to the east does come withi~ 2½ ft. of the stake. If Mr. Quimette must build his house according to the regulatioms, his house m~st set way back aud his view will be absolutely limited. He can understand him wanting to build the same as the neighbor's and he would call this a hardship. MINUTES BOARD OF ADJUSTMENT PAGE THREE AUGUST 22, 1977 ~. Zimmerman asked if this house to the east was granted a ~ariance a~d Mr. Quinette replied that he did not k~ow and added that he thought since the other houses were buil,~ that way that he could too. ~rs. Bond referred to his intentions for building ~ when he purchased the lot and asked if he checked the zoning regulations and Mr. Quinette replied that he was under the impression that since the other houses were buil~ that way, he could also. Mrs. Bond clarified that he believed he could build anything he wanted and ~. Quinette disagreed and stated he realized there were setbacks, but since there was a 30 ft. right-of-way from the canal, he thought he would not have any problem since the others were being built that way. Mrs. Bond asked if he checked with th~ realtor and Mr. Quinette replied that it was his understand- ing there would not be any problems. Mr. Thompson asked ~. Keehr if he knew if there was a viola- tion on the property next door and Mro Keehr replied that he did not kuow and has not seen the property. Mr. Adelma~ stated that the next door screen enclosure comes within 2½ ft. of the stake o~ this lot. ~. Thompso~ agreed there would_only be about 5 ft. between the screens. Mr. Quinette added that it was 5 ft. to the property line. Mr. Adelman added that the view of the canal would be nil with the way the other house is buil~ if they conform to the regu- lations. Chairman Bailey asked if anyone wanted to speak i~ favor of this variance and received ~o response. He then asked if anyone wished to speak in opposition to this variance and received no response. Mr. Keehr informed the Board that it was his understanding since this particular petition was advertised with a 21 ft. 6 in. reef setback, in order to change that dimension it would have to be re-advertised. The fact the plan does show it actually to be 20 ft. 6 in. does not alter that fact. Chairman Bailey cl~rified that he was confirming the fact there has been a 12 in. error and Mr. Keehr agreed, a 12 in. typographical error. Mrs. Bond asked if this was made on the~part of the Building Official and Mr. Keehr replied that it could have bee~ anyone's part, but the plan definitely shows 20 ft. 6 in. If a variance is granted, it would only Be 21 ft. 6 in. as far as the law goes. Mr. Adelman asked if it meant the Board could not act on this application with- out it being re-advertised and Chairman Bailey replied that was Mr. Keehr's opinion. Mr. Adelman stated he did not think it was fair to penalize the applicant for something which was not his fault. The plan shows 20 ft. 6 in. He believes the Board.shomld take action on it. Chairman ~Bailey stated that there is the possibility it would have to be re-advertised, but nobody is present to speak so possibly there was no in- terest in the surrounding neighborhood. ~ir. Ward stated in his opinion, he believed the City ~ttorney shomld make a MI~JTES BOARD OF ADJUSTmeNT PAGE FOUR AUGUST 22, 1977 ruling on this. Mrs. Bond asked if the 30 ft. easement m~.e any difference in the decision and Mr. Ward clarified that he was not speaking for or agaimst the variance, but as it stands now if it istturned down, it must be re-advertised. Mr. Adelman suggested acting on it based on getting an opinion £rom~the City Attorney. Mr. Adelman made a motion to grant the variance with the pro- vision to contact the City Attorney. ~. Keehr pointed out that there was another item included and a variance was re- quested for the location of the swimming pool as the ~eol~_Or~i- ~a~ requires 8 ft. from the property line and this is a re- quest ~or 5 ~t.~ Mr. Adelman stated that his motion included oth items. Chairman Bailey clarified that the motio~,~,was to grant the variance with written approval from the City Attor- ney acting on the 12 in. error. Mr. Zimmerman clarified that the motion covered the request at 20 ft. 6 in. instead of 21 ft. 6 in. as written. Mr. Zimmerman then seconded the motion. Under discussion, Mr. Thompson stated that i~ look- ing at this, he could not see a hardship. If a hardship is there, maybe comsideratio~ should be given to purchasing another lot if the view is blocked. He does not think~this is a hardship. He does not think this creates a hardship on this !and with just being blocked by screen. As requested, Mrs. Kruse then took a roll call vote on the motion as follows: Mrs. Bond - Yes Mr. Thompsom - No Mr. Ward - Yes M~. Zimmerman - Yes M~. Adelman - Yes Mr. Bailey - Yes Motion carried 5-1. Mr. Adelman clarified that the variance was granted with the supposition of an okay from the City ,Attorney. Parcel #2 - Warren George, Applicant Chairman Bailey referred to three members of the Board being absent and having only six members. At the last meeting, we voted on a subject and it was a tie vote 3-3 and we tabled it for this week so we would have a 7 member Board, but we still only have 6 members. This action was taken in refer- ence to M~. Culver'$ applicatiom, but on the other hand, Mr. George's petition was in front of the Board and it was a 3-3 vote and the variance was denied~ After speaking with the City Attorney, he suggested that we tell the petitioner he could have a rehearing and to be sure to have enough mem- bers here not to have a tie vote. Mr. George's property is in his neighborhood and he must abstain because he has an MINUTES BOARD OF ADJUSTMENT PAGE FIVE AUGUST 22, 1 977 interest in it. This would leave only five members to hear the case. Under the new City ruling, it takes five~firma- tive votes to grant a variance. Mrs. Bond asked if this could be tabled and Mr. Ward replied that it would automa- tically be tabled. Chairman Bailey clarified that it would not be automatically tabled, but it can be heard to the dis- cretion of this Board, both cases or either case. Mrs. Bond suggested tabling Mr. George's petition until seven members are present since their previous decision was ques- tionable. Chairman Bailey clarified that Mr. George was de- nied a variance a couple months ago because there were only six voting members and there was a tie vote~ At that time, there was ~ question whether the variance was denied and Mr. Moore said it was denied, but also advised that in a situation where there is a tie vote, it should be tabled until a seven member Board can hear the case. Mr. George has been granted another hearing toni~t, but only five mem- Bers are present to hear the case and five affirmative votes are required. Mr. Thompson added that it was not a question whether the Board could hear this as they can hear it, but all five members must vote in favor in order to grant it. He does not know if the applicant ~ould want this. He thinks the applicant should be given a choice. Chairmam Bailey added that any petitioner could request his application to be tabled. Mr. Clarence Clark, representing Mr. Warren George, appeared before the Board and requested the application to be tabled. He referred to Mr. Zimmerman going to be away and asked how long it would take to get a seve~ member Board. Chairmsm Bailey informed him that they must request the City Co~cil to appoint members to the Board to fill in to be sure we will have a seven member Board to hear ~he case. The law requires at least five. Mr. Clark asked if it would be re- advertised again and Chairman Bailey replied that he did not think they would have to re-advertise if it was tabled. ~t must be re-heard at a regular or special meeting ~nd the next regular meetings are scheduled on the second and fourth Mondays in September dependling on receipt of applications. M~. Clark asked if ~s. Padgett would contact him and Chair- man Bailey informed him that if it is tabled, the Board will Set the date tonight so all interested parties will know. Mrs. Bond moved to table this ~ntil we have a full quorum, seconded by Mr. Thompson. No discussion. As requested, Mrs~ Kruse took a roll call vote on the m~tion as follows: Mrs. Bond - Yes ~. Thompson - Yes Mr. Ward - Yes ~. Zimmerman - No Mr. Adelman - Yes Mr. Bailey - Yes Motion carried 5-1. MINUTES BO~RD OF ADJUST~NT PAGE SIX AUGUST 22, 1977 Chairman Bailey referred to setting a date to hear this case and this was discussed. Chairman Bailey stressed that i~ was important to get a sufficient number of members to serve on the Board. Mr. Ward referred to the law being ch~uged requir- ing five members to vote for or against a petition. Mr. Thompson referred to Mr. Zimmerman being away for the month of September and after further discussion, Mr. Thompson moved to schedule this hearing for the fo~th Monday in September, seconded by Mrs. Bond.~ No discussion. As requested, ~s. Kruse took a roll call vote on the motion as follows: ~s. Bond - Yes ~. Thompson - Yes Mr. Ward - Ye~ Mr. Zimmerma~ - Yes Mr. Adelman - Yes Mr. Bailey - Yes Motion carried 6-0. Chairman Bailey announced that ¥~. Warren George's petition would be heard on Monday, SeptemBer 26, at 7:00 P. M. Mr. J~hn Jameson, 649 Les Palmas, appeared before the Board and referred to this case being before the Board previously and being voted on and now it is being tabled. He clarified that they were asking for seven mbmers to be present five weeks from today and Chairman Bailey agreed they had discussed when they could have seven members present to hear this case. Mr. Jameson asked how many members of the Board they wanted ~itting and Chairman Bailey replied: seven, not including him. He added that an alternate would be sitting in for him. Ward added that it was a nine member Board. ~s. Bond added that the City Attorney had sent a memo~ stating the Board must have five affirmative votes. Mr. Jameson replied that he was fully aware of this. There will be seven members and only six will vote. There will be an alternate to substitute for the Chairman and tonight, there is not an alternate pre- sent. Chairman Bailey clarified that ~. Adelman was an al- ternate member and there is~an absent alternate member and two absent regular members tonight. OLD BUS I~SS George W. Culver, Applicant Mr. Thompson moved that this matter be taken from the table for discussion, seconded by Mr. Ward. Motion carried 6-0. Chairman Bailey referred to a motion being made at the last meeting to rescind the variance, but there was a 3-3 vote and this matter was tabled. They are now i~ the same position. MINUTES BO~D OF ADJUST~NT PAGE SEVEN AUGUST 22, 1977 tonight. If the members feel it would be advantageous to go ahead with this, We will go ahead. He asked for any further comments. Mr. Ward stated he did not want to put anyone in jeopardy. If the ~pposition or those in favor want to table this, the memb, ers ca~u consider that. Mr. Zimmerman clarified that there were two items involved, one is the tabled motion and the other is the request for an extension of time on the first inspection to continue the building permit. Chairmmn Bailey agreed this was true, but added that the request for an extension of time must be taken care of as Board action and not as a public hearing. Mr. Thompson referred to having the same members present as the last time and stated he did not want to see this matter go through a vote. If possible, he would like to have a member present who has not had a chmnce to vote on this. N~. Adelman added that he thinks the vote tonight will not be five either way, hut he thinks the people who want to Say something should be given the right to speak. Chairman Bailey asked if anyone in the audience wished to speak. Mr. Charlie Rodriguez appeared before the Board stated if the hearing is held aud the matter is not going to be decided ~on in positive form and will be carried for- ward until the other members are present, the~ they are in a position of h~vimg members voting who have not heard the dis- cussion. His intent is to try to make his point with all the members who would be called upon to vote. If they express themsevles tonight and then another member is called upon to vote, they will be put in the position of having te go through this all over again and being told ~'~hey have had their chance to present their argument. He referred to the people having to come again and again to defend their posi- tion and stated it didn't seem fulfilling to try to make a presentation with the person not here who may cast the de- ciding vote. M~. Ward referred to most of the members being familiar with this case since it has been before the Board since last October. Mr. Rodriguez stated that the only time they spoke on their position was at the last meeting and the same members are present tonight. Somebody would have to sit on the Board whowas not here the last time. It is not highly desirable to put them in the position to say it is time to hear this case when a decision is not going to be made. Chairman Bailey informed him t~at all the members receive minutes whether they attend or not. Mr. Rodriguez replied that at the Chair- man's invitatiom, he read the minntes back to October last year and the Boynton Code and also talked to the Building MINUTES BOARD OF ADJUSTmeNT PAGE EIGHT AUGUST 22, 1 977 Official and City Planner and this is not reassuring one way or another. Chairman Bailey replied that Mr. Rodriguez only Became familiar with this case since the last meeting, but the members have been familiar with it since the first of the year and some were members~of the Board last year. He referred to the same Board members being present as were here two week~ ago and asked if he a~d his group wanted to go through this again and end up with a 3-3 vote? ¥~. Rodriguez replied that he believed they should accept the decision which was made on the prior case. He d~oes not think they should present their case tonight because the Board is not going to vote tonight. He believes they would rather come back when the members are pres~ent who are going to vote. The other petition was tabled in essence for the same reasons applying to this situation. The only ~ifference is that a suggestion was made that they make their presentation toni~t, if the voting members are not here for one item, it would apply the same to this item. Mr. Vincent Molle, 739 East Ocean Avenue, appeared before the Board and stated that possibly he misunderstood the City At- torney's decision that they must have five votes for, but not have to have five votes against because it was mentioned that they must have five votes either for or against. Chairman Bailey informed him that this ordinance pertained to a vari- ance and not an administrative problem and he explained. He stressed that five votes were needed in f~vor to grant a var- iance. Mr. Ward disagreed and stated he thought five votes wets needed to deny. Mr. George Culver appeared before the Board and stated he agreed with his opposition. It was a 3-3 vote before and he does not think it will Be changed tonight. He requests it to be ta~le~, but requests a~vote on the administrative decision on the extension. Chairma~ Bailey informed him that the extensio~ request would be decided immediately after this case. Mr. Adelma~ made a motion to table this application mntil the fourth Monday in September, September 26, seconded by Mr. Thompson. No discussion. As requested, ~s. Kruse took a roll call vote on the motion as follows: Mrs. Bond - Yes Mr. Thompson - Yes Mr. Ward - Yes Mr. Zimmerman - Yes Mr. Adelman - Yes Mr. Bailey - Yes Motion carried 6-0. MINUTES BOARD ~ ADJUSTMENT PAGE NINE AUGUST 22, 1 977 OTHER BUSINESS Mr. Zimmerman read a memo from the City Clerk regarding Mr. Culver's request for an extension of the inspection deadline. Mr. Vincent Molle appeared before the Board and referred to Mr. Culver blaming everything on the restraining order and stating he had no control and clarified that Mr. Culver di- rectly brought this order about by having a big pair of wire clippers and discontinuing service to the restaurant. Mr. Culver caused this situation. In reply, Chairman Bailey gave him a copy of the extension of inspection deadline re- quest and stop construction order from the circuit court. Mm. Ward then asked why the time needed to be extended for the building permit for inspections as long as he is not doing amy construction and Chairman Bailey replied that there was a stipulation that 90 days after the permit was issued, the first inspection must be made or the permit would be void and not renewable. If there was anything to prevent this, Mr. Culver must come back before the Board to request an ex- tension. Mr. Ward stated it was his belief that this Board does not have the power to grant an extension for inspection, but it is a matter for the Building Department. Chairman Bailey informed him that when the variance was granted, ~. Culver was told by the Chairman and he believes it was in the motion and the Board agreed if there was any reason he was delayed, he would have to come back before the Board. He asked if Mr. Culver wanted to comment further. ~h". George Culver stated that he tried to meet the require- ments and served notice on his former wife that she had a certain time to shut down the operation, as he had to shut off the water and electricy to start construction. She did not and he requested the City to shut off the water and he had Florida Power & Light Co. cut the power. An emergency hearing was called before Judge Johnsen~and the following day the restraining order was issued and M~s. Culver got the electric and water back on. He was stopped from starting construction. The Board stated he must call for inspection within 90 days ~uud the judge says he cannot do amything. It was brought up at a previous meeting if there was some reason he could not meet the requirements, he should come back before the Board and that is what he is doing. Mr. Molle stated that on theoriginal permit, Mm. Culver was a day late in applying and Mrs. Bond replied that the original variance was granted December 13 and ~. Culver waited six months. MINUTES BOARD OF ADJUSTMENT PAGE TEN AUGUST 22, 1977 Chairman Bailey clarified that the stipulation was that M~. Culver must get an inspection every 90 days in order for the permit to be valid throughout construction of the project. Also included in the stipulation was that ~. Culver was not allowed to renew the permit if he went over the 90 day dead- line. Mr. Culver's position now is that he has been stopped by the court. He ca,not get an inspection within 90 days and the permit will expire. When the permit expires, he will not be re-issued a permit without having to come before this Board. Mrs. Bond asked if the permit had anything to do with the license and ¥2. Culver informed her that this extension was for the first phase and has nothing to do with the other application before the Board tonight. Mr. Adelman asked he if filed for the permit before June 14 and Mr. Culver informed him that he did come in ~md paid for the permit three to four days before June 14, but the con- tractor did not pick up the permit until June 14. He paid for the permit on June 10. Mr. Eeehr clarified that actually the permit was issued to Mr. Culver the day after this Boar~ gr~uted him a variance on the par~king for the 150 seat res- taurant. Mr. Culver added that Mr. Howell held up the issu- ance of the permit based on the granting of the second vari- ance. Mr. Ward clarified that a permit is filled out. but is not validated until the contractor signs the permit and Mr. Keehr agreed. Mr. Rodriguez commented that each thread leads to another thread. The point has now come up that the actual issuance of the ~permit revolved around the granting of the secon~ variance. Either it is clear cut that the setback variance has no relationship with the exemption from the parking spaces or is not clear cut. ~. Culver has represented no ~elationship and that is fine. However, it seems the permit · ~suance was based on the granting of the second variance and they must be absolutely certain that the Board members are under no misconception. Chairman Bailey asked if the interpretation was given in the December 13 minutes and Mr. Rodriguez replied that the Decem- ber 13 minutes did not come up with regards to the parking. At that meeting, R~. Howell did attempt to raise parking as a related issue, but the Board chose ~ot to discuss parking and M~. Culver got a variance on the setback requirements at that time. The construction he was going to do related to the setback variance. They must not get these mixed up. There are two separate items before the Board. Mr. Ward re- plied that he thought it is quite clear. The Board is now discussing the permit situation and parking has no part of this. MINUTES BOARD OF ADJUSTMENT P~&GE ELEVEN AUGUST 22, 1977 Mr. Thompson referred to the dating of a permit and questioned how thim was ascertained and Mr. Keehr informed him that an application for a permit is dated, but he believes the minutes read that the permit must be pulled and in order to pull a permit, it must be signed by the contractor. Mr. Ward added that only a contractor can take out a permit. Mr. Culver stated that he wanted to point out that it was brought up by the Building Official, ~. Howell, unknown to him that he was not going to give him a permit ~til the parking was straightened out. No matter if the contractor had gone in the same day, he would not have received a per- mit. This City Official was holding up the permit. Chairman Bailey referred to the June meeting and it being mentioned that a permit had been secured and Mro Culver agreed and this is the permit he has now. Chairman Bailey clarified that the one regarding parkLug is still in limbo and Mr. Culver replied that he was granted a variance for a ~50 seat restaurant and that is what he has ~o~ until another ~ote is take~ and he understands they are going to cut it down to a 50 seat restaurant~ Chairman Bailey replied that he did not know what the Hoard was going to do. Mr. Thompson stated he~!just could not see how the court would not allow him to move on and this is beyond his control. Mr. Ward added that he ~could not understand why when the judge issued the order, he did not take this whole thing into con- sideration. Mr. Thompson continued that there were two dif- ferent things with considering the parking and building and the judge stepped the building. Mr. Ward clarified that the judge has stoppe~ ~. Culver from operating under the permit and everything was stopped relative to that permit including the inspections. The Board instructed him to proceed with construction, but the judge ruled against it. However, he still does not believe this Board can extend any time for the permit. Mr. Thompson pointed out that the Board set the stipulation. Mr. Adelman questioned the status of the court order and M~. Culver informed him that right now, there is a court date of August 29, but it keeps continuing one way or the other the same a~ thi~ Board. Mr. Adelman stated that if an extension is granted, he doesn,t know if he could go to work and Culver replied that if it is settled o~ August 29, possibly he won't need this extension. ~. Thompson asked if this could be tabled along~with the other part and Chairman Bailey replied that the time is going to expire on SeptemBer 14 and this Board is not meet- ing until SeptemBer 26. However, if the Board wants to table it, they may, He has heard many times that the only way of reversing a decision of the Board of Adjustment is MINUTES BOARD OF ADJUSTMENT PAGE TWELVE AUGUST 22, 1977 through the circuit court. In December, Mr. Culver was granted a variance with certain stipulations and maybe the law and common sense did give the impressio~ that if the court is stopping him from working, it should stop all proceedings, but this Board having the Dower it does makes him feel that only the circuit court can change our decision. When Sep- tember 14 comes along, the applicant will lose all rights granted him because he did not get inspection within 90 days of securing his permit. Mro Ward replied that only the cir- cuit court can overrule a decision of this Board, but a judge has done this. Apparently this judge should go before the circuit court. Chairman Bailey clarified that it was his understanding that a decision of this Board could only be changed by the circuit court or by the Board. This Board has not been involved with the circuit court yet and he does not see how the circuit court could extend the time by stopping construction. Mr. Zimmerman replied that the matter of per- mits and time involved is not before the judge and the order does not include any mention of the permits and that is this Board's problem. ~s. Bond referred to No. 5 not saying any- thing about building. Mr. Thompson suggested that a 90 day period be granted for the inspection once the decision is lifted by the court. He added that if ~. Culver does not evict N~s. Culvsr, he cannot start construction. Chairman Bailey suggested 30 days so it would get d~ne. Mr. Adelman then made a motion that Mr. Culver be gr~ted an extension of tim~ for 30 days from when the judge grants the final decision, seconded byMr. Thompson. Under discus- sion, Mrs. Bond referred to the hearing being postponed for a couple months and Chairman Bailey replied that if it was postponed for one year, etc., the final decision is made and then there are 30 days left in order for ~. Culver to do something. ~. Zimmerma~ suggested clarifying the meaning of final decision and referred to the possibility of it going on for years. He suggests tying the time limit down as to the release of the restraining order. Mr. Thompson then amended the motion to state that ~. Culver be given 30 days extension after the judge releases the re- straining order, seconded by ~. Adelman. Under discussion, Mrs. Bond referred to this still extending the time forever and Chairman Bailey clarified that it was until 30 days after the release of the restraining order.. M~s. Bond stated that if it takes five years, they would be giving 30 days more. Mr. Thompson agreed this was a good point and suggested plac- ing a time limit on it. It was then requested that the question be called on the amendment and Chairman Bailey requested Mrs. Kruse to take a roll call vote on calling the question on the amendment. The votes were as follows: Mz-NJ$ TES BOARD OF ADJUSTMENT PAGE THIRTEEN AUGUST 22, 1 977 Mrs. Bond - Ne Mr. Thompson - No Mr. Ward -No Mr. Zimmerman - Yes Nm. Adelman - Yes Mr. Bailey - No Chairman Bailey announced that discuS~n was still open under the amendment. ~s. Bend referred to the possibility of Mr. Culver obtaining a decision on August 29 in reference to the restraining order. Chairman Bailey ascertained there was no further discussion on the amendment and requested a vote on calling the question to wote °nthe amendment. ~s. Kruse called the roll as follows: ~&rs. Bond - No Mr. Thompson - NO Mr. Ward - No Mr. Zimmerman - Yes ~. Adelman - Yes Mr. Bailey - Yes Chairman Bailey announced the discussiom on the amendment would be re-opened. ~. Thompson stated he would like te withdraw the amendment in view of this tie vote and Mr. Adelman replie~ that he saw no reason to as it was lost. Chairman Bailey then opened the discussion on the original motioa. Mrs. Bond stated she believed there should be a definite time limit. Mr. Zimmerman requested the Recording Secretary to re-read the motion and Mrs. Kruse re-read the original motion. Mr. Thompson stated that if it is the wish of the Board, possibly we should discuss time.. Chairman Bailey stated he thought they should t~G~e a vote on whether to call the question or keep the discussion ope~. Mr. Zimmerman replied that he believed the Chairman could call for a vote without consulting the members of the Board. Chairman Bailey replied that he absolutely must consult them. He requested a roll call vote on calling the ques- tion and ~s. Kruse called the roll as follows: Mr. Bailey Mrs. Bond - No Mr. Thompson - No Mr. Ward - No Mr. Zimmerman - Yes Mr. Adelman - Yes, as the Chairman has asked for discussion and nothing has been brought up and this is just wasting time. - No Chairman Bailey announced that discussion was open on the motion made a~d a decision mast be made. The Board must get MINUTES BOARD OF ADJUSTMENT PAGE FOURTEEN AUGUST 22, 1977 together somewhere. Obviously someone feels something and it should be stated. Mr. Thompson stated he was in favor of mak- ing an amendment with a time limit, which he thinks would be the ~uswer to the problem. Mrs. Bond stated she would second this~as a motion and Mr. Adelman replied that no time limit was set. Chairman Bailey clarified they were still discussing the motion on the floor. Mr. Ward questioned the deadline and M~. Thompson replied that it would be for the court ruling. Mr. Zimmerman stated that 30 days would be a deadline in it- self. Mr. Thompson stated that it just pertained to the restraining order being lifted. He feels within six months the judge should make a decision and if not, ~ir. Culver cannot do it. He suggests voting on six months and if not lifted, Mr. Culver must come back before the Board. Chairman Bailey explained how he thought Mr. Culver was in a situation where he could press the issue. Mr. Adelman stated he could not see what the amendment was going to gain and Mrs. Bond re- plied that this case could go on and on. Mr. Adelman ques- tioned what the amendment was doing and ~s. Bond replied that many time limits have been set on variances.~ Mr. Culver asked for a variance in December and this is August and he is asking for a contin~ce which could be continued forever. She think~ 90 days and 30 days after would be time enough for a decision. Mrs. Bond then amend~~ the motion stating that ¥~. Culver has 90 days for the judge's decision and 30 days thereafter to get an inspection. She added that ~. C~lver goes before the judge on August 29 and in the event there is a postpone- ment, he has 90 days to get the. injunction lifted and 30 days thereafter to get inspection. The amendment died for a lack of a second. Mr. Adelman requested that the question be called on the ori- ginal motion and Mrs. Kruse called the roll as follows: Mrs. Bond - No M~. Thompson - Yes M~. Ward - No Mr. Zimmerman - No Mr. ~delmam - Yes Mr. Bailey - Yes Tied vote 3-3 - motion lost. Chairman Bailey ~o~ced that a decision must be made or this request tabled, but the next meeting will be September 26, ten days after the time limit expires. Mr. Thompson made a motion that ~. Culver be grante~ six months from this date for the judge to make a decision and if the judge makes the decision to release the restraining order, he be given 30 days for the first inspection. The motion died for lack of a second. MINUTES BOARD OF ~&DJUSTMENT PAGE FIFTEEN AUGUST 22, 1977 Mr. Zimmerman stated that this motion sounded like we were ordering the judge to do something and we cannot tell a judge what to do. Mr. Thompson clarified that his intent was to give time so the judge could make a ruling in six months and if the order is released, Mr. Culver would have 30 days thereafter for inspection. He was asking for six months to be given which he thinks is more ample than 90 days. His reason is that many things come before judges and he was asking for six months and trying to be fair to all parties. Chairman Bailey requested another motion and received no re- sponse. He asked for further discussion and Mr. Thompson stated he did not think it was fair for us to make a deci- sion that will actually wipe out everything done to this point. Possibly the Board could meet before September 74 and if the judge has not made a decision, we can consider it then~ He believes we may be denying something we have granted. Chairman Bailey announced if a time limit was not settled, Mr. Culver will have to apply for another variance. Mr. Adelman made a motion to grant ~ro Culver the extension of time he is asking for with a limit of 30 days after the judge lifts the injection against him. He added that he thinks it canproBably be settled on August 29. Mr. Thompson seconded the motion. Under discussion, Mr. Thompson stated he felt no litigation would set on a judge's desk for years. Probably it will be settled on August 29. We made our deci- sion and it would be taking back all of what we voted on. Mr. Zi~erman re~rked that this sounded like the original motion made with granting 30 days from the time of the re- leas~ of the injunction. Chairman Bailey then asked if there was any objection to calling the question and received no response. As requested, ~s. Kruse took a roll call vote on the-motion as follows: ~s. Bond - No ~. Thompson - Yes Mr. Ward - Ne Mr. Zimmerman - Yes ~. Adelman - Ye~ Mr. Bailey - Yes Motion carrie~ 4-2. Chairman Bailey requested that the City Clerk send Mr. Culver a memo notify~ug him of this decision. Mr. Adelman referred to the motion Being lost and Chairman Bailey replied that the five vote only applied to a variance request and this is ~m administrative~procedure. ~. Ward referred to have this information in writing and Chairman Bailey replied this was his interpretation. Mr. Zimmerman MINUTES BOARD OF ADJUSTMENT PAGE SIXTEEN AUGUST 22, 1977 asked the Building Official if this was a variance requested or not and ~4r. Ward replied that it was. ~M. Keehr replied that he did not think he should get involved in this. Mr. Ward clarified that it was a variance to administrative or- ders and Chairman Bailey replied they could not get involved in the legality. Mr. Zimmerman stated he thought ~M. Moore would be the rightful person and would have the final author- ity s_nd Chairman Bailey replied that Mr. Moore has submitted two opinions. ADJOURNMENT Mr.Zimmerman made a motion to adjourn, seconded by Mrs. Bond. Motion carried 6-0 and the meeting was properly adjourned at 9:15 P. M. Respectfully submitted, Suzanne Mo Eruse Recording Secretary (Two Tapes) MEMORANDUM FROM Suzanne M. Kruse Recording Secretary Edgar E. Howell Building Official August 12, 1977 FILE su.J~cT Correction in Minutes of Board of Adjustment Meeting of August 8, 1977 In reading the minutes of the Board of Adjustment meeting of August 8, 1977, I wish the following changes be made: Page 4, Paragraph 2, last sentence should read: "Mr. Howell clarified that he believed he was asked if the variance stood as it was in the future if he put 150 seats in the building, would I be obliged to issue a license and if that variance stood I would be boundby the variance." Page 7, Paragraph 3, first s~ntence should read: "Mr. Howell explained that at that tin~ the procedure was, when there is an application for a license, a memo is sent from the City Clerk to the Building Department." I recon~nend that the minutes be corrected to reflect~these/;c~nges. d~ar E~ Ho~we~/~, ild~g fi~ial mz MINUTES PAGE FOUR BOARD OF ADJUSTMENT AUGUST 8, 1977 · going to court on August 2~ and would like the first variance taken into consideration because he does not know if he can meet the restrictions because of the restraining order from the judge. He showed the order:c,i to the members. ~o~ Adelman referred to his remark that-Mr. Howell said it could meet ~the:~i50 sear'requirements and stated that he never heard this'-statement. Mr~ CulVer replied that he be- lieved it was stated at the last meeting in response to a question asked by ~. Ward' ~ Howell clarified that he be- lieved h=. was asked if the variance stood as it was in the lige'd~_-to iSsue=~v~=~ia~ce ~an~'~-tha~variance' stoo-d!~ I~_~ou'I~.~ b~~bound~-b~'the~v~,~.~ .~ ~ . ~_~'_ . - c _~ ~ . Mr~Howe~7~.th~~. ~-'}. ~a--&ment~hab.~.the~ ~iance.wo~d~ B~'~~space~ ~I~ 6 ~d-cl~ified that ' tH~o.rdi~c~- re~Tr~? ~' spac~S~.'.~d~- ~;_, ~er has-TI '- and' this vari~ce"- woutdrb~-fo~ 6:-pl~-~atev~r-is- needed-` for- ~he- ---..,.' .... .' ,::~-:,... :.:-:;-. .': ?.~ ]:.?<:: .~:.~:::~..: .- ... : _:' .[ .-:. ~, :..7<:.~_ ..._. .... ..' . - .- .... - ..: ... ~s Bo~j C~r~f~'~. ' ' ~b~t >~,- cuiv~r Came before ~ais BO~d ~to' appLy~ ~=: ~.~'~i~ce for:~ ~O. seats o~igin~y,, bu~ now ~.- - it has.. ~een. c~e~:~:~:the~Bo~Tk, a~.ten~ion ~h~t- the~.Ii,~. ~< cerise granted ~-'for-50' seats,- M~ .CulVer replied that at" that time,~ he had' the license for".~'50 Seats. ~,~s. Bond continued that evidently a mistake .was made and Mr..Culver replied that ha-did-..not_'~ow_ ~ud..~had_..tka_ ~cen~e since Se.~- tembe~. P~s.-'B0nd questione~ the capaci%y'-of the original license and.'M~_-.C~ver-' informed ~-.that.'ye~s ago, it was for 50 seat..but'it was~-upgraded to~' ]~17 M~s. Bond asked if_ th~. was done-:.wi.t~,or without a ~'st~e. ~nd M~. Culver reD. ed bhAt''he d~..not .~Ow-th&re .was a ~st~e. Mr. Thompson clarified that a variance was requested on'the present site without changing dimensions. The parking came up because the·parking as required was not there. The ap- plication was to'reconstruct the bUilding on the same land, the same size as the present building. The old building was going to be torn down and a new one put up in the same place. At that time, Mm'. Culver had a license for 150 seats issued by the City. He thinks the question is that the original license was for 50 seats, but who made the application for 150 seats and was it granted?· Mr. Culver replied that it was:~.issued before he came before the Board. 1~. Thompson stated that his vote was based on nothing being changed and the license being for ~50 seats as presented. Mr. Culver further explained that Mr. Howell and Mr. Annun- ziato considered this being a new building; therefore, it was required to meet the new codes. It was suggested that he appeal for the variance on the parking since he had a 150 seat license. MINUTES BOARD OF ADJUSTMENT PAGE SEVEN AUGUST 8, 1977 the restaurant with approximately 150 seats for the last couple years and it is still operating that way today with a 50 seat license. Chairman Bailey clarified that it was a 50 seat license and it was operating with 150 seats. Mr. Adelman clarified that it had been operating with a 50 seat license until he applied for a 150 seat license last year. When he completed the application, he requested 150 seats. when he applied in December I975.~ It was stated that' he held a previous license but it was for 50 seats and he asked for 150 seats. There was a mistake made on ~hi~.~ application. He is not saying the application was deliberate~y falsified, but there is the statement of a previous license. Mr~ Culver ~ clarified that~he had~a 50 seat license,' but when he i~nstalled ~ ~he~thatched~roof2area,:he appli~d~ for ~t50~ seats. He otated · -~-~n.~ t_h_a.~__~h~ ha..__~:.no:tTt...hee~in~., th~.-.Lr_.est, au~,ant, for the:-' past' . . · ~u~ ~ea~s.. an'a'kis~'-exw'~fe~:h~s~.~een--operating the'restaurant.~ W~i~:d cla~i£~e~::tEat::- t~e:,' aoozic~t.ioh: apoiied f-0ri'~5o? se~tsi; l_:' ~' ':".'i'-b'ut the building-inspecto~_-no~d 'that 96 w~s the maxim~um- capa_~ ' :. ¢ity..'~md .~"en~e.d:.: th~: a~Dlica, ti~on'~_ o..n ~Oe~.m..her 14,/t 976 .~.' -. - '" _ i i - .... /~..-~ n.uwe:_~ .exp&a ~_~..ea:,~,r~.~~_cat~- ~r ~ ..:..-_.~ ,_ -LIcense a m~ ~ ' ' ~-~- :- - ' ~ ' ~ - . --~ - '" . , . o zs-~nt-from the City: Clerk ..to the Building. ' - Dep~ar~m~nt~ A. bui!d~ng, znspec~tlon...ls ·made to be sure the ----:- .... --~c~me.requm.~er.~?nts~_ ..a~e.~ me-t;.. ~-~iMamd::.agreed and referred to ~ne mnspec~or.s notes on the application dated December ·1'4, 1976. - _ - .. .. ~ir. Culv-er_.referred-to the vari'anc$-'reqUirement to' pull the permit and have'an inspection and. questioned their interpre; ~- ration: of ho~ 'this applied.- with:-the~ judge, s restraining:order~ Chair~an Bailey replied t ~ - -- .. ha.~ he thought probably-the only ~fng they'-could~- d-a2~is._, give anLopinion -individually-. - Under normal Circumstances-once a .decision is made by the Board of A'djustment unless it is appealed within the prooer time, it stands. His personal'~opinion is to check with %he City Attor- .ney about it. He does not see where the Board could do any- thing without some type of request, 'Mm. Culver informed him that his attorney said it would be taken into consideration by the Building Department, but the Building Department was given orders by .the Board of Adjustment. He asked Mr'. Eeehr about this earlier this month and he thought some leeway could be allowed. He called Mr. Howell this afternoon and he suggested that it be brought before this Board because of the instructions stipulated by this Board. Chairman Bailey replied that if he felt it is pretty much on the Board's shoulders to determine that, possibly by the next meeting, we will come up with an answer. The Board will meet again on August 22. He thinks we could have an answer then, but cannot mad~e a decision. Mr. Ward suggested that ~.. Culver have his attorney contact the City Attorney for a ruling. Chairman Bailey stated he believed the Board should contact the City Attorney to have him prepared and possibly have an