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Minutes 08-08-77MINUTES OF THE BOARD OF ADJUSTmeNT ~ET!NG HELD AT CITY H~LL, BOYNTON BEACH, FLORIDA, MONDAY, AUGUST 8, 1977 AT 7:00 P. M. PRESENT Derle B. Bailey, Chairman Vernon Thompson, Jr., Vice Chairman ~s. Lillian Bond Foy Ward Carl Zimmerma~ Ben Adelman, Alternate Bert Keehr, Asst. Building Official Edgar E. Howell, Building Official ABSENT David W. Healy, Secretary Walter B. Rutter (Excused) V. Paul Scoggins, Alternate (Excused) Chairman Bailey called the meeting to order at 7:00 P. M. and introduced the members of the Board, ~-~. Keehr seated with the Bos~d andMr. Howell seated in the audience, and the Recording Secretary. He announced that the Board Secre- tary, ~. David Healy, was excused from being present tonight and requested M~. Zimmer~an to sit in as Secretary to read the correspondence and agenda for the meeting. Minutes of July 25~ 1977 ~. Adelman moved to accept the minutes as printed, seconded by M~. Zimmerman. Motion carried 6-0. Correspgndence ~o Zimmerm&u read the following memo from Mr. Gene Moore, City Attorney, dated July 27, 1977, addressed to ~. Derle Bailey: "This is to confirm my prior conversation with you to the effect that, in my opinion, the Board of Adjustment would be within it's legal prerogative to reconsider previous action taken by the Board, based upon newly discovered evidence which was not before the Board at the original hearing. Any such motion for reconsidera- tion should be made by a member of the Boar~ voting on the prevailing side and all notice requirements relative to rehearing should be complied with. Any such action fOr rehearing should be taken prior to expiration of the 30 day appeal period." M~. Ward questioned the 30 day period referred to and Mr. Zimmerman re~read the last sentence. Chairman Bailey clari- fied that he would interpret this as their action to rehear. Mth~ TES BOARD OF ADJUST~ENT PAGE TWO ~UGUST 8, 1977 Parcel #i - Lots t thru 6 inc. & E. 15.35 Ft. of Lot 7, Casa Loma Recorded in Plat Book 71, Page'3 Palm Beach County Records Request - Relief from 53 required parking spaces to 11 parking spaces, no land being available.for the additional parking. Address- 728 Casa Loma Blvd. Applicant - George W. Culver ~o Zimmerman read the above application. Chairman Bailey ascertained that the members had received a copy of the letter dated July 5 from the Building Official to the City Manager together with copies of the licenses issued to George W. or Laura Culver. He stated he thinks this is the basis for which the Board wanted to rehear this because they felt there was some new evidence that the Board should hear about. The Board is aware of a lot of the details about this, but it has not been forwarded to the public. It has only gone on public record through the Board's minutes. He suggests that possi- bly the Best thing to do would be to have the Assistant Building Official, ~. Bert Keehr, explain what the Building Department discovered the day after this variance was granted to ~ Culvero Mr. Keehr stated that on the date after the hearing, it was discovered there had been an error made in the license issued to ~. Culver in the number of the seats on the license. It was typed out with 150 seats, which Mr. Culver did have a copy of, but it was never approved by the Building Department for ~50 seats. In fact, it was disapproved by one of the inspectors making an on-si~e?inspection. Apparently in prior years, it had been approved for 50 seats. Mr. Culver had applied for 150 seats and it was denied, but somewhere along the line, it was typed as 150 and it went through. On the day after the meeting when this was discovered, ~. Howell called Mr. Culver into his office and he was also present at this meeting and it was explained to M~. Culver that the City would have to revoke the license for 150 seats and re-issue a license for 50 seats, which he is entitled to, and refund the overage of fees he had paid, which we did. As of this date, Mr. Culver has a license for that restau- rant for 50 seats. Chairman Bailey asked if any of the members h~d any questions of Mr. Keehr. Mr. Ward questioned the difference between the parking requested on the application for 150 seats versus the 50 seat license and Mr. Keehr informed him the difference would be that 150 seats requires one parking space fo~ every three seats or 50 parking spaces ~ud 50 seats would require 17 ps, king spaces plus whatever is required for the help. MINUTES BOARD OF ADJUSTmeNT PAGE THREE AUGUST 8, 1977 Mr. Ward asked what the request was at the time of the 150 seat license and added that they were interested in the park- ing rather than the license and M~. Eeehr informed him that the first variance request was for 150 seats which needed 56 parking spaces. Mr. Ward clarified that the variance was ranted for 56 parking spaces. Mr. Keehr clarified that he as 11, but needed 45 parking spaces. Ms. Ward asked what this application was asking for and Keehr informed him it was for 50 seats which would require ~7 parking spaces plus 6 or a total of a3. He has ~1 a~d is asking for a variance for 12. Chairman Bailey clarified that the license error was the basis on which the Board decided to rehear this. Since there wa~ an error, possibly the Board can be more enlightened by additional information and by having this public hearing, it allows everyone to give more information. At this time, he requested anyone in favor of this application to come footboard to the microphone. ~. George W. Culver appeared before the Board and stated that as the Board is aware, he has been back and forth be- fore this Board since October. He asked for a variance and was granted a variance. Then the question came up about the license and he did not know it was an illegal license cause his exwife was running the restaurant. He paid for the license since it was sent to him. His exwife had been re- quested to have the place available for the inspectors. His building plans for the future are to remodel the restaurant and build to the same size it is now. He referred to M~. Howell stating previously that the requirements could be met for ~50 seats. Actually, he doesn't Y~ow what the basis is for this rehearing, He had a 150 seat license when the var- iance was granted. He referred to?ihaving trouble regaining his property from his exwife, but as soon as he takes over, he wants to remodel it for 150 seats. If the variance is taken away, he will again ask for the variance which has al~ ready been given to him. M~. Culver then stated he would also like to bring out another point at this time. When the variance was granted for the first stage pertaining to the 25 ft. setback, it was stipu- lated that he had to pull a building per~t by June 12 and had 90 days for the first inspection to be made and the building p~rmit would not be renewed if the building was not ready for the first inspection. Since then, he started to tear down theold place to get ready for the contractor and his exwife took him to court and Circuit Judge Tom Johnson put a restraining order on him. He discussed this with ~*~. Eeehr and he said he thought it would be considered. He would like to br~ug before the Board that as of now, he is MINUTES BOARD OF ADJUSTMENT PAGE FOUR AUGUST 8, t977 going to court on August 22 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~.~ to the members. ~. ~_delman referred to his remark that M~. Howell said it could meet the 150 seat requirements ~ud 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 he w~s aske~ i£. the variance stood as it wa~ in the fut~e if he put ~%~t~ ~ the building, would ! be ob- liged to issue a v~ an~ if that variance stood I would be bound by the va~i~uc~. ~@. Howell then referred to Mr. Keehr's statement that the Variance would be for t7 spaces plus 6 and clarified that the ordinance requires t7 spaces and Mr~ Culver has ~ and this variance would be for 6 plus whatever is needed for the help. ~ ~@s. Bond clarified that ~. Culver ca~e before this Board ~to apply for a variance for 150 seats originally, but now it has been called to the Board,s attention that the li- cense granted is for 50 seats. ~. Culver replied that at that time, he had the license for 150 seats. M~s~ Bond continued that evidently a mistake was made and Mr. Culver replied that he did not know and had the license since Se~- tembero ~s. Bond questioned the capacity of the original license and M~. Culver informed her that years ago, it was for 50 seats~but it was upgraded to ~50. ~s. Bond asked if this was done with or without a mistake and Mr. Culver replied that he did not know there was a mistake. Mr. Thompson clarified that a variance was requested on the present site without changing dimensions. The parP~ng came up because the parking as required was not there. The ap~ plication was to reconstruct ths building on the sam~ 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. ~t that time, M~~. Culver had a license for ~50 ~eats issued by the City. He thinks the question is that the original license was for 50 seats, but who made the application for ~50 seat~ and was it granted? Mr. Culver r~plied that it was~issued before he came before the Board. Mro Thompson stated that his vote was based on nothing being changed and the license being for 150 seats as presented. Mr. Culver further explained that Mr. Howell and ~. 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 P~GE FIi~E AUGUST 8, 1977 Mr. Thompson asked if there was a copy of the application for the 150 seats and ~. Culver showed him the copies he had of~the information. Mr. Thompson noted that on Septem- ber 2, 1976, the license was issued for 150 seats. Chairman Bailey clarified that when the variance was granted in December, 1976, to reconstruct the building, ~. Culver had the license for 150 seats and that is what the variance request was based on and ~. Culver agreed. Mr. Culver con- tinued that he was then informed by the City Planner since he was going to build a new building, he would have to come before the Board of Adjustment and ask for another variance for the parking spaces. If he left it the way it was, it was under the grandfather clause, but a new building re- quires that the requirements be met. Chairman Bailey asked what the first date was when he was aware he had been issued a 150 seat license in error and Mr. Culver replied that it was two days after the hearing when he was called into the Building Department. Chairman Bailey asked if he personally made the application for t50 seats in 1976 and M~. Culver replied that he made it because the li- cense is in his name, but he has not been in the place for a couple years. His exwife has been running it and he has been trying to get her out, but is>~having legal problems. ~. Thompson stated that if a license was issued in 1976 for 150 seats and he has been operating under it for the past year, how come the records did not show there were not 150 seats a~d M~. Howell replied that it has been awhile since he looked at the license and also, he is not sure of the issue date of the license. Chairman Bailey referred to it being noted that it was refused on June 16, 1977. Mr. Howell questioned the issue date on the 150 seat license and Chairman Bailey replied that it was September 1, 1976. ~. Howell stated that at that time, the department was not under his jurisdiction. He then questioned the date of the application and Chairman Bailey informed him it was Septem- ber 19, 1975. M~. Howell questioned the date of the denial and ~. Adelman informed him it was noted as December 14, 1976. }~. Howell explained how they did not have any way to dete~ne the actual date the license was paid for. Chairman Bailey clarified that in September, 1975, Mr. Culver applied for 150 seats. In September, ~976, he was issued a license for 150 seats. On December 14, 1976, he was denied that license. On June 16, the license was re- turned to the Building Department, who had taken over the License Department, and a new license was re-issued for 50 seats. When the interdepartmental memo denied it on Decem- ber 14, 1976, was it a carry-over of the September, 1976, original request and Mr. Howell replied that he would have MINUTES BOARD OF ADJUST~NT PAGE SIX AUGUST 8, 1977 to think it was. Chairman Bailey clarified that the license in September, 1976, was issued in error and ~. Howell re- plied that he thinks it was issued after SeHtember, t976. He referred to the renewal date being September 30 and ex- plained how they operated with all licenses being dated September no matter when they applied. He added that it did not give an accurate record and this procedure has been changed. ~. Thompson stated that if it is the policy of the department to do that, he cannot hold the applicant responsible for the department's mistakes. He would hs~¢e to take his word about the license issued being back dated several months. If a license is granted and when it expires, if a person applies for the same type of license~ does the department'have the right to deny it if the business is established and operating and ~. Howell replied that in this case, he would because he felt it was never approved and felt an error was made. Chairman Bailey referred to the statement of it being back- dated ~_ud Mr. Howell clarified that he was not sure, but feels it was because that is the way the department was operating. Chairman Bailey asked i~ the interdepartmental memo was the one the license was issued on and ~. Howell replied that it should have been. Chairman Bailey clarified that what he was saying is whomever issued the license over- looked the portion marked denied and Mr. Howell replied that i~ what could have happened as he knows at that time, there was new personnel and he does not know who typed the license. Also, on that application, it is noted as previously issued. That application is for 150 seats and he can see where a girl could have taken that as 150 seats previously issued. He does not have any idea how it happened. M~. Culver referred to all licenses being due in Septe~£oer and stated that this one was sent in the mail to him and he paid it. He was given a license for 150 seats in September, but it was denied in Dece~oer and he had the license for three months. After the Board of Adjustment granted the variance, his exwife went to the City Manager and told him something was wrong because she did not have a ~50 seat license. She did not have it because he did not give it to her. She also knew she did not have 150 seats because she had not met the inspectors. There was some foulup in the change of the license departments or something. It was denied in December, but not known in June. Chairman Bailey clarified that the City mailed the license to him and M~. Culver replied that he came in September ~nd paid $150. Chairman Bailey asked if he picked up the license then and ~. Gulver replied that he did in September. ~. Ward referred to asking previously if the license was posted on the property and ~. Culver replied that it was on the property. He added that his exwife has been operating MINUTES BOARD OF ADJUSTI~NT PAGE SEVEN AUGUST 8, ~977 the restaurant with approximately 150 seats for the last couple years and it is still operating that w~ today with a 50 seat license. Chairman Bailey clarified that it was a 50 sea~t 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 ~50 seats when he applied in December ~975. 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 this application. He is not saying the application was deliberately falsified, but there is the statement of a orevious license. ~. Culver clarified that he had a 50 seat ~icense, but when he installed the thatched roof area~ he applied for 150 seats. He stated again that he has not been in the restaurant for the past couple years and his e~ife has been operating the restaurant. M~ Ward clarified that t~~.~cation applied for ~50 seats, maximum capa- but the building ~nspect~~ ~that 96 was the _ city and denied the appl~¥h on December 14, 1976. ~ Howell explained that ~hen there is an application for a license, a memo is sent from the City Clerk to the Building Department. ~ building inspection is made to be sure the code requirements are met. Mr. Ward agreed and referred to the inspector's notes on the application dated December 14, ~976. Mr. Cuiver referred to the vari~uce requirement to pull the permit and have an inspection and questioned their interpre- tation of how this applied with the judge's restraining-order. Chairman Bailey replied that he thought probably the only thing they could do is give an opinion individually. Under normal circumstances once a decision is made by the Board of Adjustment ~uless it is appealed within the proper time, it stands. His personal~opinion is to check with the City Attor- ney about it. He does not see where the Board could do any- thing without some type of request. M~. 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 ~@. ~eehr 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 Bosa~d 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 make a decision. M~. Ward suggested t~t Mr. 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 ~NU~S BO~RD OF ADJUST~'~ENT PAGE EIGHT AUCUST 8, I977 answer by the next meeting. M~. Culver stated that he did get started as stipulated, but did not expect this restrain- ing order to be placed and will have his attorney contact Moore. M~. Adelman stated that at the meeting when the 25 ft. vari= sauce was granted, it was only for the setback and M~. Culver agreed. M~. Adelman questioned how that variance could be grmuted without taking into consideration the parking and Mr. Culver informed him that he was planning to rebuild in two stages. Parking was brought up, but it was ruled by the Chairman that parking was not included in that variance. He got per, ts and approval from the Boards and then 'the City Planner suggested that he apply for a variance for the park= lng before starting on the second phase. He asked for a variance on the parking and it was granted. b~. Zimmerman stated that it seemed to him if there was addi- tional time needed, it would be logical to apply for the time as an additional variance. ~. Howell clarified that when the original variance was grated, he thinks l~. Bailey was on the Board and did try to get the parking clarified, but the Board decided >~. Uulver should come back. He could not issue a permit until the parking was clarified. These were the instructions per the minutes and also the minutes stated that the permit could not be renewed. If there was any problem, l~. Culver had to come back before this Board~ Chairman Bailey then asked if anyone else in the audience wished to speak in favor of this application and received no response. He then asked if anyone in the audience wished to speak in opposition to this~variance and the following ap- pe~ed before the Board. Mrs. Kelly Kirton informed the Board'*~at she and her husband were the bus~uess managers for the Coastal Tower Apartments. There are a couple of people present tonight from Coastal Towers, but the majority of the people are out of residence during August. She requested those in opposition to stand. She continued that between 250 to 300 people are living at Coastal Towers. They are of the opinion that two wrongs do not make a right and it sounds in listening to this tonight that due to a typographical error many problems have been created. They think it would be more embarrassing if this were granted. Many restaurants have opened recently in Boynton Beach and she doesn't believe any have asked for variances on parking. She doesn't believe you can park a couple Hondas in the parking area at this restaurant much less some cars. The reason they are opposing this is be- cause they have a par~ng lot at the entrance of Casa Loma Boulevard and there is stiff resistance from the Coastal MINUTES BOARD OF ADJUSTMENT PAGE NINE AUGUST 8, 1977 Towers people of having the restaurant patrons use their parking, if there is no land available, where are these people going to park? They cannot see how possibly this could be granted. She believes there is an ordinance quiring a certain number of parking spaces. It could only create more problems and open up a can of worms for the City. They cannot see how anybody would want to go ahead and build a new building with 150 seats without having any place for their g~ests to park. it does not make sense. They believe it would be in the best interest of the City if this request were denied. Mr. Thompson. asked if the only way to come into this place was to come in directly across the front of the shopping center and Mrs. Kirton agreed and stated this was Casa Loma Blvd. Mr. Thompson pointed out that they were talk- ing about 500 ft. from the Coastal Towers and ~s. Kirton replied that she did not believe this was the case because the majority of their parking facilities are on the west side of Coastal Towers. She can assure them that the deve- loper did not build the parking area with extra spaces and when the residents come back, there will not be spare park- ing in their lot. Mr. Thompson stated that it w~ over 500 ft. away and ~. Culver agreed and stated he had to run a water line in over 600 ft. ~s. Kirton stated that there are parking facilities around the various towers, but the majority are in the back of the west tower, which is not far from the restaurant. The logical thing would be to park in a space ~£nich would be available. She does not see why this should set a precedent since a lot of new restau- rants have opened on South Federal and all had to cmnply with the parking requirements. She cannot see the logic for even considering this. It was unfortunate there was a typing error, but granting this would just be m~ing another error. They request the Board to deny it. Mr. Charlie Rodriguez~ 720 Ocean Avenue, Coastal Towers, appeared before the Board. He stated that it seems the Board has the chance to resolve the problems with a couple approaches. He would like to know where the 11 legal park- ing spaces are available to ~. Culver and if they are in the City street and Chairman Bailey replied that he could not answer that because he did not have any plan. Mr. Rodriguez continued that since Mr. Culver has the setback variance, the only pavement serving the area seems to be the bed of the City street and he is curious to know if that is where the 11 spaces are located. Mr. Keehr informed him there were ~3 parking spaces just west of the ticket sales office right now on ~. Culver's property. Mr. Rodriguez asked if they were inside the ownership line and Mr. Keehr replied: yes. ~. Rodriguez asked where he got the additional 6 spaces and Chairman Bailey informed him MI~gTES BOARD OF ADJ~JST~NT PAGE TEN AUGUST 8, !977 that in order to operate, a total of 23 parking spaces are needed for the 50 seating capacity. With the ones he has, he needs an adjustment for 12. He already has an adjustment for 45 which is under reconsideration at this time. ME. Rodriguez asked if the reconsideration was being given be- conase of the discrepancy involved in the 50 seats and I50 seats and Chairman Bailey replied that he believes this is the reason this Board decided to rehear this case. ~M. Rodriguez then stated that the 150 seat problem could be corrected simply by limiting the number of the variance to the 50 seat structure.. The Board could carry this out by granting the mmount to equal a 50 seat permit.. Chairman Bailey agreed this was a possibility. ~. Rodriguez added that if the idea was not for ~. Culver to have 150 seats, but 50 seats is rea- sonable, it would certainly seem more advantageous Eor the town and everyone concerned for the Board to grant this. Mrs. Bond referred to the amount of parking spaces on the pro- perty and asked if they were for the two businesses, the marina as well as the restaurant and Chairm~u Bailey replied that the variance was granted for an additional 45 parking spaces. ~s. Bond stated that these were only for the restaurant. ~. Howell referred to 11 existing and questioned I~. Keehr's statement of there being 13 and ~M. Eeehr clarified that two were being used where the storage building is being constructed, so cannot be counted. M~. Howell clarified that there were actually 1~ and 17 are required for a 50 seat restaurant plus employees. If there are two businesses operating, we are not talking about it, but are strictly talking about the restau- rant. Chairman Bailey disagreed and stated they were talking about the entire building because that is what the variance was~granted on. Mr. Culver stated that the parlming involved was for the restaurant. ~@s. Bond referred to there being so~e parking space west of the ticket office and Mr. Keehr clarified that it was out in front of the marina mud they are not taking in account the parking spaces required for t~ marina, but only for the restaurant. ~. Howell added that there were 2 for the ticket office and ~. Keehr agreed. M~. Rodriguez asked for a plot plan to see what this looked like. ?~. Adelman questioned why six spaces were needed for three employees and ~. Keehr replied that the six was taken from the statement that there were 56 before. Actually it should read ]7 spaces plus the required spaces for the help. N~. Rodriguez pointed out that it did not appear to have the footage noted from the ticket booth to the property line and Chairman Bailey agreed smd stated they would have to take the word of the Building Official in this case. Mr. Rodriguez pointed out that possibly ~1 cars could park straight in, but it was out on the street and Mr. Keehr disagreed and stated it was N~o Culver's property. ~. Rodriguez asked where the MINUTES BOARD OF ADJUSTMENT PAGE ELEVEN AUGUST 8, 1977 parking for the marina was and Chairman Bailey informed him that there are 13 there now and 2 are required for the marina. M~. Keehr stated that two were required for the storage area. Chairmsm Bailey asked if there was the required number for the marina bud M~. Keehr informed him there was parking across the street on City property, but it is not in question now. ~4r. Rodriguez clarified that in the bed of the City street lies some of the parking spaces for the operation of the boat and marina, plus 11 spaces for a 50 seat restaurant and there is no additional parking for 150 seats. This en- tire thing does not fit together.~ Essentially what Mr. Culver is relying on is~parking in the City street which could be legally changed. What he is offering for the fish~ lng activity and restaurant is 1t parking spaces° It lies within the purvue of this Board to deal with that problem. Chairman Bailey then~.requested that the correspondence be read pertaining to this application. Mm~. Zimmerman read a letter dated July 22, ~977, from M~. William G. Lenzi, 760 E. Ocean Avenue, in objection to granting this variance. He then read a letter from Mr. C. A. Kean, President of the Coastal Towers Condominium Apartments, recommending that the petition be turned down and the building permit cancelled based on the parking being inadequate and being a danger to public safety. Chairman Bailey announced that they have heard the pros and cons ~nd correspondence and he thinks the time has come for the Board to make a decision. Mr. Culver referred to the Board mostly understanding this and requested to speak to the ladies and gentlemen from Coastal Towers. He explained how there was a distance of at least 650 ft. from his property to the Coastal Towers. Also~ 25 ft. of his property was given to the City free and the adjacent property owner also gave 30 ft. to make the road there. There have been no problems with parLuing and there has always been parking space available. He does not think there would be problems with people parking in their parking lot with them having to walk 800 ft. to the restau- ramt. This is not a new restaurant, but hs~ been here for over 25 years. He has not had any proble~ms in the past and does not foresee any in the future. Mm. Rodriguez asked if this restaurant was Smokey~s place previously and ~. Culver replied that there was a restau- rant there previously and Smokey's also leased the restau- rant from him. Mr. Rodriguez questioned the seating capa- city of Smokey's and Mr. Culver replied that he believed it was 50. }Ar. Rodriguez stated that he remen~bers when it was Smokey~s and before expansion of the thatched roof. Develop- ments not provided for turn out to be proble~ms in the fut~re. This is an increase of what was there in the past° MII~ITES BOARD OF ADJUSTI~NT PAGE ~ELVE AUC~iUST 8, 1 977 Mr. Thompson asked if people were notified within the dis- tance of 500 ft. from point to point and ~. Howell informed him that notifications were sent~within 400 ft. from the nearest point on a circle basis. Chairman Bailey announced that this Board voted to reconsider this and it has now come to the time to have a motion to affirm this Board's decision, reject the decision, or amend the decision. Mr. Zimmerman referred to obtaining more formation for the next meeting and Chairman Bailey informed him that the information pertained to extending the time limit. Mm. Thompson stated that if the Board ~ecides a mistake was made somewhere and tne~ must correct it back to a 50 seat capacity restaurant~ they must amend their previous motion. Chairman Bailey replied it was sntirely the Board's decision. When the variance was granted to reconstruct the building, Mr. Culver had in his possession a license for 150 seats. When he came before the Board, he said he was not going to change the size of the building and was going to use it as he was using it. Unfortunately as he was using it at ~~h~ ~ time, it was with 150 seats which was issued in error. The variance in December did not deal with psm~king, in June, when we did deal with the parking, we dealt with the license in his possession which was for 150 seats. At the following meeting, we then found out that evidence had come forward that a mistake was made and he assumes it was made in Sep- tender, 1976, when the license was issued for 150 seats. He contends that the seating caPacity had an effect on their action. ~. Adelman referred %o the application filed asking for 150 seats with the statement that he had a previous license and he would assume it was for 150 seats. He does not think we shouldbe held to the action taken as the information given was incorrect. He thinks an error could have been easily made based on the information stated on the application. ~h~. Thompson clarified that an error was made, but Mr. Culver did not illegally file an application for 150 seats. Adelman clarified that it was based on information given in- correctly. ~. Zi~merman added that it was incomplete. ~. Adelman pointed out that the statement on the application was deceiving and there has been an error for two years. The application was signed by George Culver in t975. He knows what parking problems are with a restaurant from his own experience. He thinks this was done by a mistake and doesn't think the error should be compounded further. ~. Thompson stated that the purpose of this Board is to~.act on hardships. A hardship was placed on M~. Culver because there was no record of the mist~ke made. In fairness to both parties, he cannot agree with either one. However, it MI~3 TES BOARD OF ADJUST~ENT PAGE THIRTEEN AUGUST 8~ 1977 was brought before this Board that a 150 seat license was issued. There is no room to expand and he did not ask for expansion.. There is no ample parking space in this area. This is an old struct~e. This is a very pertinent decim sion we have to make mhd should be made based on the purpose of this Board - a hardship. The applicant was given 90 days to sts~t and he started. To bring it up again, he thinks it is unfair to Mr. Culver and everyone else. They must t~e all this into consideration. His decision will not be in- fluenced in any way, but he will consider the fact that this mistake can either ruin the applicant or rid the City of an eyesore already there. Mrs. Bond referred to the Board relieving hardships and asked if this would create a hardship for the other res- i~nts and Mr. Thompson replied: no~and added if illegal parking was done on their property, it was the business of the Police Department to handle. M~. Ward stated that they must consider whether this is a selfcreated hardship ~ud ~. Thompson replied that ~. Culver did not change the dimensions of the building and the build- ing as it is, is an eyesore. Mr. Ward stated that he thought the first variance was wrong as he does not think we had the right to grant a variance to completely rebuild a non-conform- ing building. Mr. Ward again asked if this would have to be considered a self-created hardship an~ M~. Thompson replied that he did not think it Was a self~c~eated hardship b&cause there is no other property available and this is landlocked. Mr. Zimmerman asked if the decision was reversed, could Culver rebuild any part of the restaurant and Mr. Howell plied that he thinks this Board gave him permission to re- build the building. The only reason it was brought back was because of the minutes pertaining to the parking. In his opinion, they have already given permission to rebuild the building no matter what happens.i~with the parking. ~s. Bond referred to the building being for 50 seats and M~. Howell informed her that as far as the code requirements, this building could have 93 seats as stated on the building inspector,s memo. If there is enough area for a ~50 seat restaurant with ~5 sq. ft. of floor space for each person and a parking variance is given~ it would be allowed. Chair~ man Bailey referred to a previous discussion when ~. Howell stated that if it was passed by the various Boards and govern- ment agencies and had a variance for parking, ~50 seats would be allowed. Mr. Howell added that he believed the building did have the room for ~50 seats~ P~o Rodriguez asked if they were counting the space in the thatched roof area as this is a leanto~j Actually there are two different type structures, the old structure which was walled in with doors, etc. and the addition of a leanto with M I~rclTES ~O,&RD OF ADJUST~ET PAGE FOURTEEN AUGUST 8, 1977 a bar and seats. It is too much to call this leanto a per- manent building and can the two qualify for 150 seats? ~ne permanent structure here does not compare as a structure to the thatched roof area, but it is being computed in the space. Mmr. Howell replied that as far as the licensing law, there is nothing saying he could not have 100 of the seats for patio dining. ~. Cu!ver added that without taking into consideration the area of the thatched roof, the building is more than 2,000 sq. feet. The same building will be .put up, but it will be laid out differently to eliminate wasted space. The permit for the thatched roof area was processed through the departments as a permanent structure. Chairman Bailey stated his feeling is when ~. Culver first cam~ to this Board asking for permission to rebuild the struc- ture, he was questioned about the use and he stated he would be using it the same as he is now, which was back in the latter part of 1976. At that time, the question of seating capacity did not come up. From the information on the license when he came before the Board, he had a license for 150 seats dated September 2, 1976 which would expire September 30, ~977. When the variance was granted in june after the application was tabled a couple times, he had with him a license for t50 seats and it was the opinion of the Board at that time that he was going to use the facilities no differently than he had in the past. He was always under the assumption ~. Culver had 150 seats from September 2, 1976, amd that is what he based his judgement on. Mr. Culver asked for the right to rebuild the structure and continue operating and also requested a parking variance to continue his operation. He realizes a mistake was made in the licensing, hut he doesn't see~any reason to say Mr. Culver was aware of the mistake until it was investigated. In his opinion, the Board has granted the right to rebuild the building like it was in the past and granted the right for the additional parlcing and use the building as he had in the past. He feels he would be doing Mr. Culver an injustice to deny him the right to do as he has in the past. P~. Ward clarified that it was the Chairman's opinion that it has always been 150 seats, but he believes ~. Culver stated it was 150 seats and nobody had taken out 100 seats. Chairman Bailey replied that it was based on the evidence presented from the application dated September 2, 1976. Chairman Bailey announced the Board was here to affirm their decision, reject it or amend it. A decision must be made. [~. Zi~merman referred to an amendment and asked how it coul~ be amended to get the results that one of the gentlemam~ sug- gested that might be satisfactory to both parties in reducing this to a 50 seat restaurant where not as much parking would MINUTES BOARD OF ADJUSTMENT PAGE FIFTEEN AU~ST 8, 1977 be required and Chairman Bailey replied that his opinion was regardless of the decision made, it will not be satisfactory to both parties. M~. Ward added that it also would not affect the par~uing as there are only 11 spaces ~3~d that is that. Chairman Bailey' announced they were still under reconsidera- tion and have to do something. The parties are tied up wait- ing for a decision. They must make a decision because they decided to reconsider this. ~. Thompson made a motion to affirm the Board's decision on the grounds that no hardship has been created to any person within the 400 ft. area arid the error was not made by the applicant and the building should be completed under the pre- sent conditions. He voted in good faith and will vote again to operate on the same conditions to improve the structure. Chairman Baily ascertained there was no second for the motion and it died for lack of a second. ~. Zimmerman requested the Building Officials to help out on what would be necessary in the way of a motion to amend their previous action to cut this to a 50 seat restaurant and pro- vide the proper parking through a variance. Mr. Ward replied that he believed this would be a legal opinion and should be obtained from the attorney. Chairman Bailey agreed. Chairman Bailey stated he thought the question to be asked was how many parking spaces would have to be granted under the variance in order to have a 50 seating capacity. Mrs. Bond stated it would only be necessary to amend part of the past variance gr~uted to amend it hack to 50 seats. Chair~ man Bailey agreed it could be amended. ~. Thompson questioned the date the vari~ace was granted and Chairman Bailey informed him it was June 13, 1977. M~. Thomp- son questioned the grace period to change the decision and Chairman Bailey referred to the 30 day period mentioned in Mr. Moore's letter and advised that the motion was made to reconsider within that time period. At the meeting on July 11, a motion was made to reconsider and was passed, so it was the opinion of the City Attorney that the motion covering the rehearing procedure was covered within the 30 day appeal period. t~s. Bond stated that since new evidence has been brought before the Board, she believes their previous motion should be amended to correct the variance from 150 to 50 seating capacity in the restaurant. Chairman Bailey agreed there had been plenty of clarification on the license. Mr. Adelman clarified that the license now stands~at 50. Mr. Ward stated he thought the license part had been cleared up and they were only considering the parking. ~. Adelmsm stated that the license is for 50 seats and why should they consider ps, king MINUTES BOARD OF ADJUST~NT! PAGE SIXTEEN AUCUST 8, 1977 for a 150 seat restaurant? Chairman Bailey stated that ~. Culver was under the impression he had 150 seats when he applied for the variance. Howevers he thinks now everyone understands that the 150 seat license was issued in error. M~ Adelman replied that he thinks ~. Culver should have known that and Mr. Culver informed him that the City sent him a license for 150 seats. M~. Adelman pointed out that he previously only had a license for 50 seats. Chairman Bailey stated that a license for 150 seats was issued in September, 1975. ~. Adelmau stated that this license was given in error. ~s. Bond clarified that the license is now for 50 seats and the motion to grant the variance was for 150 seats. Chairman Bailey corrected her that the variance was granted for 46 additional Parking spaces. M~s. Bond agreed and added that it provided for 150 seats. She continued that it was brought to their attention that there was a mistake about the 150 seats. Since it has come back to parking spaces for a 50 seat restaurant, they should work on that. ~. Thompson replied that he was not under the assumption it has come back. We have not ruled out there was an error. ~. Culver asked for a vsa~iance for 150 seats and it was granted. To correct the parking, we cs~u throw out the 150 seats and go back to 50, but this must be decided. ~ Adelman cls~ified that a license was issued for 50~seats since the 150 seat license was revoked. M~. Thompson stated that the variance was for 150 seats. ~so Bond stated that they must amend their motion because a variance was issued for 150 seats and the license i~ for 50 seats. ~. Zimmerman stated that the number of parking spaces must be included that the variance is for. Mr. Thompson stated that the Bos~rd could be liable for suit since permission was granted for ~50, but the Building De- partment changed their decision to 50. ~. Adelman replied that the Board had no right to change a license issued by the Building Department. Mr. Thompson stated it was illegal because this Board voted on 150. ~@. Zimmerman stated he was reluctant to ch~age the action of a previous Board of AdjUst- ment taken last year. Mr. Thompson referred to the Building Department making a decision for the Board and stated that we grsnuted a variance for 150 seats, but since that time the Building Department has changed the license to 50 seats, but the Building Department cannot change a decision made by this Board. Chairman Bailey clarified that this Board did not grant a variance for 150 seats~ but based on the fact that ~50 people could be seated~ ~@. Zimmerman stated that this was the only thing which should be amended. ~s. Bond asked if he was stating we were illegally doing this and M~. Thompson clarified.that he did not think the Building Depart- ment should make a decision~ He thinks the first step in order is to change the t50 back to 50. Mr. Adelman clarified that the Board voted on parking and not the seating capacity° Mi~UJ~S BO~_RD OF ADJUSTMENT PAGE S~ E~ ~EE~. AUGUST 8, 1977 Mr. Howell informed the Board that he thought they were get- ting seats confused with parking spaces. The variance was given on parking. If they want to amend their decision~ they must do it on the par~ng. The seating and license has been corrected° Chairman Bailey stated that when the variance was gram~ted, the evidence presented showed operation for a 150 seat res- taurant. The Board acted in good faith on the evidence pre- sented. Now the Board is being faced with an error made on someone e!se's part which affects ~. Culver's rights. ~*~ Howell informed the Board that before he revoked the license, he did have legal advice from the City Attorney. Mr. Thompson replied that the decision was still made by this Board. The City Attorney c~n give an opinion, but he does not make a decision for this Board. Mr. Howell clari- fied that it was brought to the Board's attention in case the Board was interested and wanted to correct it~ but this Board is the only one to correct it. Chairman Bailey added that a written memo has been received from the City Attorney stating that in his opinion, the Board of Adjustment would be within it's legal prerogative to reconsider previous ac- tion taken by the Bosmd based upon newly discovered evidence which was not before the Board at the original hearing. Mm. Ward clarified that the evidence would be the license. However, the Chairman gave three alternatives and ~. Moore is only~mentioning one. Chairman Bailey clarified that it was his opinion that they have three routes to go with either affirming their decision, rejecting it or amending it. They must m~e a decision. Mr. Adelman made a motion to grant the variance from the re- quired 20 to 1! par-king spaces that he has, which means the variance is for 9 spaces. Mr. Zimmerman seconded the motion. Under discussion, Chairman Bailey requested him to el!aborate on the motion and ~. Adelman replied that it was his conten- tion that there is a 50 seat restaurant and they must figure the parking on that. M~. Zimmerman added that it looked like this would relieve the part of the hardship so Cu!ver can rebuild to the capacity of 50 seats without any difficulty. ~. Thompson stated they could not h~z~e a motion until they have corrected what they have done previously. ~. Adetman requested that his motion be held and Mr. Zimmerman withdrew his second. ~. Ade!man made a motion to rescind the action taken on June 13, 1977, seconded by Mrs. Bond. No discussion. As requested, ~rs. Kruse took a roll call vote on the motion as follows: MINUTES BOARD OF ADJUST~?T PAGE EIGHTEEN AUGUST 8, 1977 l~s. Bond I~Mo Thompson .~. W~d Mr. Zimmerman ~[r. Adelman ~@. Bailey Yes No No Aye Yes. No The motion tied 3-3. ~. Thompson moved to table this discussion until seven members are present to break the tie, seconded by M~. Ward. As requested, ~so Eruse took a roll call vote on the motion as follows Mrs. Bond M~. Thompson M_~. Ward ~h~. Zimmerman Mr'. Adelman i~. Bailey No Yes Yes Yes Abstain Yes Motion carried 4-1 with one abstention. Mr. Ward referred to the requirement of five votes to carry a motion and Chairman Bailey replied that he did not believe so as this motion does not pertain to an application for a varimuce ~ut a tabling motion which should carry with a majority vote. Mr. Thompson added that it was stated when there is a tie vote, it must be tabled until the number is present to break the tie. Mr. Ward replied that they still did not have the five votes to carry it. Chairman Bailey announced that this application would be brought upi~.on August 22, two weeks from tonight. He then announced if there was anyone else who would like to say any- thing before adjournment to~)~.please come forward. Mr. Clarence A. Kean, President of Coastal Towers, appeared before the Board. He stated he wished to contradict Culver about the parking situation. Last season, their parking lot was used no matter what the distance is. The patrons littered the place, burned rubber going onto mid- night aud they had plenty of trouble. He does not care whether ?~. Culver has 50 or ~50 seats, but wants the park- ing situation considered which was supposed to come up night. ~r. Joseph Conway, 720 East Ocean Avenue, appeared before the Board and asked if the parking variance given had been rescinded before the vote to table was taken smd Chairman Bailey replied: no. ~r. Conw~y asked what ~.~r. Culver was going to do if 75 cars came down there? There is no reason for this. ~. Thompson suggested that they call the Police Department for illegally parked cars. M~. Conway replied that they were starting off illegal with granting something M~. Culver does not have the room for. Chairman Bailey informed him that Culver was before the Board, so it won't be illegal, MiATUTES BOARD OF ~ZD'JUST~NT PAGE NIh~E TEEN AUGUST 8, 1977 ~. Rodriguez referred to the question asked whether M~. Culver has a parking exemption and the reply was yes. However, the Board voted to reconsider that variance and they cannot go both ways. This Board is unbelievable.. Chairman Bailey replied they could only inform the people what has been told to.them by the City Attorney. Mr. Culver was granted a vs~iance on June ~3 ~ud after that time, the Board voted to reconsider and that does not void the vari- ance. Mr. Rodriguez replied that according to~0berts RU~le's of Order, they in effect suspended th~ action taken earlier. Chairman Bailey replied that they were operating by the legal advice given the Board. Mr. Zimmerman stated he thought this discussion was irrelevant as a motion has been made to rescind the previous action. Chairman Bailey clarified that since there was a tie vote, it has been tabled and there was not a yes or no vote. He added that the motion to rescind was tabled and the motion to reconsider was passed but did not effect the variance. Mr. Rodriguez replied that it could go to litigation. ~s. Kirton stated that if this went through they might be subject to litigation and also if parking spaces are granted where there is no land, she is sure it will go to litigation° She cannot believe what she hears. M~. Thompson informed her that this Board has the right to grant anything it feels and the only recourse is through the courts. Mrs~ Kirton clari- fied that she was not questioning the power, but the integrity. ~. Thompson stated he also questioned why Coastal Towers has five stories. Chairman Bailey requested this discussion to end and ~s. Kirton agreed. A~ournment ~k~. Zimmerman made a motion to adjourn, seconded by M~. Adelman. Motion carried 6-0 and the meeting was properly adjourned at 9:25 P.M. · Respectfully submitted, Suzanne M. Kruse Recording Secretary (One Tape - tape recorder broke down.) 'Mr._ Derle Bailey Board of Ad justmeni ' Chairman City Hall Boynton Beach, Florida 33435 !FROM GENE MOORE Lawyer 640 EAST OCEAN AVENUE, SUITE 18 P. Q. BOX 910 BOYNTON BEACH, FLORIDA 33435 Phone: ,(305} ?34-2424 DATE July 27, 1977 ~UBJECT: FOLD ~ Dear Mr. Bailey: This is to confirm my prior conversation with you to the effect thai, in my opinion, the Board of Adjustment would be within it's legal prerogative to reconsider previous action taken by the Board, based upon newly discovered evidence which was not before the Board at the original hearing. Any such motion for reconsideration should be made by a member of the Board voting on lhe prevailing side and all notice requirements relative to rehearing should be complied with. Any such action for rehearing should be taken prior to exp!i,.ration of the 30 day appeal period. 1 ~ yGENE MOORE GM/jg PRINTED BY GRAYARC CO,, INC.. BROOKLYN, N. Y. 1 1232 SIGNED NOTICE OF PUBLIC .HEARING BEFORE THE BOARD OF ADJUSTMENT CITY OF BOYNTON BEACH George.W. Culver has requested variance as follows: Relief from 53 required parking spaces to il-parking spaces, no land being availablefor the additional parking. Lots 1 through 6 inc. and E. 15.35 ft. of I~t CASA LOMA 'Recorded in Plat'Book 11, Page 3 Palm Beach .County Records Address: 728 Casa Loma Blvd. HEARING, WHICH WILL BE A REHEARING, WILL BE HELD IN THE COUNCIL CHAMBERS, BOYNTON BEACH CITY HALL, MONDAY AUGUST 8, 1977~ at 7:00 P.M. Legal advertisements will appear in the July 21 and 28th. issues of the BOYNTON BEACH NEWS JOURNAL. Notice of a requested variance is sent to property owners within 400 ft. of the applicant's property to give you a chance to. voice your.opinion on the subject. Objections may be heard in person at the meeting or filed in writing prior, to hearing date. If further information' is desired, please Call 732-8114, City Clerk's Office. CITY OF BOYNTON BEACH TEREESA PADGETT, CITY CLERK July 20, 1977 Coastal TouJers Condominium Apts., Inc. P.O. Box 1116 Boynton Beach, Florida 33435 July 27, 1977 Board of Adjustment City of Boynton Beach Boynton Beach, Fla. 33435 Gentlemen: Re: Culver request at 728 Casa Loma Blv. d. As President of the Coastal Towers Condominium Apts, Inc. located directly across the street from Mr. Culver I want this letter on file as a matter of public record. There are 125 apartments in our complex with 2 or more people living:. in each apartment, many of whom are away during the summer months. We are not competitors of Mr. Culver but neighbors who are bothered by the clientele of Mr. Culver and also the marina. There are not enough parking facilities now much less asking~t 53 required spaces be reduced to a mere 11o There is no additional land available because he has used all the parking spaces for buildings and has none except on city streets. We couldn't do that here at Coastal Towers. We are at a loss to understand why Mr. Culver was issued a permit for a restaurant to seat 50 to 150 people without adequate parking, especially where no land is available~ At present, parking in this area is restricting ambulance, and fire trucks which is against public safety. What would happen if there was a grease fire in the restaurant? How could a fire truck and ambulance function properly? We definitely recommend that this petition be turned down and the building permit cancelled. Very truly your~ CAK: kk