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Minutes 07-11-77MINUTES OF THE BOARD OF ADJUST~NT ~KETtNG HELD AT CITY HALL, BOYNTON BEACH, FLORIDA, MONDAY', JULY 11, 1977 AT 7:00 P. M. PRESENT Derle B. Bailey, Chairman David Wo Healy, Secretary Mrs. Lillian Bond Walter B. Rutter Foy Ward Carl Zimmerman Ben Adelman, Alternate Bert Keehr, Asst. Bldg. Official ABSENT V. Paul Scoggins, Alternate (Excused) Vernon Thompson, Jr., Vice Chairman (Excused) Chairman Bailey called the meeting to order at 7:00 P. M. and introduced the members of the Board, Assistmnt Building Official, and Recording Secretary. ~inutes of June 27~ 1977 Chairman Bailey referred to ~. Scoggins being noted as being absent and advised that it should be marked as an excused ab- sence which was his error. Mr. Rutter made a motion to accept the minutes as read, seconded by Mrs. Bond. Motion carried 7-0. CORRESPONDENCE Mr. Healy read the attached memorandum to Mr. Gene Moore, City Attorney, from Chairman Bailey dated June 28, 1977, and ~. Moore's reply dated July 1, 1977, regarding.a legal opi- nion on voting. Mr. Ward stated that actually they did not have to recess the entire meeting in the case of a tie vote, but it would only be necessary to postpone the one particular case and Mr. Rutter agreed and added that it could be tabled. Mr. Ward continued that Mr. Moore's reply was still evasive, but admits it takes four to approve and four to deny. Chair- man Bailey suggested they take the remainder of the me~ting to give this thought and at the end of the meeting go into this further and the members agreed. ~ Healy then read a letter from Mr. Frank Kohl, City Mana- ger, to Chairman Bailey dated July 5, 1977, and M~. Howell's attached letter dated July 5, 1977, to ~. Kohl regarding the decision on the George Culver application. Chairman Bailey again requested the members to hold their comments until the end. Mr. W~d suggested that the reading of correspondence be held 'also, so it is fresh in their minds and Chairman Bailey replied that he brought it up because Correspondence is MINU~S BOARD OF ADJUST~ENT P2~GE T%~O JULY 11, 1977 listed on the agenda first. Mr. Ward made a motion that if comments are to be held, the correspondence should also be held, seconded by Fir. Rutter. Under discussion, Mr. Zimmerman clarified that they~ would have more time to discuss it and M~. Wa_rd agreed unless it is correspondence pertinent to a case. As requested, ~s. Eruse took a roll call vote on the motion as follows: Mr. Rutter - Aye Mrs. Bond - Aye Mr. Ward - Aye Mr. Adelman - Aye Mr. Zimmerman - Aye ~. Healy ~ Aye Mr. Bailey - Aye Motion carried 7-0. PUBLIC HEARING Parcel #1 - Lot 18, Block 24, Golfview Harbour, 2nd Section Recorded in Plat Book 27, Page 46 & 47 Palm Beach County Records Request - Relief from 25 ft. rear yard setback requirement to 20 ft. 7 in. rear yard setback to construct a screen enclo- sure on existing slab. Address - 1241S. W. 26th Avenue Applicant - Charles J. Jackson Mr. Healy read the above application and the members reviewed the site plan. Mr. Charles J. Jackson, 1241S. Wo 26th Avenue, appeared be- fore the Board. Mr. Adelman asked if the proposed screen enclosure would be the same size as the slab there now and ~. Jackson replied: yes. ~. Ward asked how much property would be left and ~ir. Jackson replied 20 ft. 7 in. Chairman Bailey asked if anyone in the audience wished to speak in favor of this petition and received no response. He then asked i~ anyone in the audience wished to speak in opposition to this ordinance and received no response. He added that no correspondence had been received. Mr. Adelman moved to grant the variance, seconded by Rutter. Under discussion, Mr. Ward reminded them that a reason must be given and Mm. Adelman stated that he looked at the property and it would be hardly visible from the street. The slab is there already and there is no r~ason to keep the man from doing it. As requested, Mrs. Kruse took a roll call vote on the motion as follows: MINUTES BOARD OF ADJUSTmeNT P~GE THREE JULY 11, 1977 Mr. Rutter Mrs. Bond Mr. Ward Mr. Edelman Mr. Zimmerman Mr. Healy Mr. Bailey - Aye - No, because there is nothing stated about any hard- ship and that is what we are operating ,iuder. - Aye - No, he does not believe there is a hardship. - No, because he cannot see any hardship proven. - Aye Motion carried 4-3. ¥2s. Jackson appeared before the Board and asked just what they considered to be a hardship and in reply, Mr. Ward sug- gested that the Secretary read the ordinance regarding a hardship. Mr. Healy stated that he believed it was up to the applicant to prove a hardship. He referred to the answer of Question 5 on the application stating "to be permitted to construct a screen room large enough for its use" and asked if this was a hardship? Mrs. Jackson replied that the con- crete slab has been in for several years and they never got to screen it in. Chairman Bailey called for a point of order and announced that the variance has been granted. He referred to Mrs. Jackson and ~. Healy getting into discussion about something which should have been discussed before the variance was granted and suggested explaining to Mrs. Jackson what is considered as a hardship. He added that he believed each member may have a different opinion of what it is and also a different interpretation of What the law says. They will be glad to furnish her a copy of the law, but everybody inter- prets the words differently. He explained that as a group, they must all come to a meeting of the minds to tell what a hardship is. Mrs. Jackson informed the~Board that to them it was a hard- ship to have a concrete slab and not be able to sit out in the evenings with the bugs. ~. Ward asked if the slab was put there originally and ~s. Jackson reolied: yes, when the house was built. Mr. Ward referred to s~tuations in th~area where the builder told the buyers they could get a variance for a screen room. Mrs. Jackson informed him that the slab was put in for a screen room. Chairman Bailey referred to the variance having been granted a~d suggested furnishing Mrs. Jackson with a copy of the ordinance. He added that if they are going to get back into this discussion, they will have to reconsider the motion. ~s. Jackson again asked just what they considered a hardship and Chairman Bailey explained how it could possibly take a long period of time to reach a conclusion and suggested that MINUTES BOARD OF ADJUSTMENT PAGE FOUR JULY 11, 1977 she interpret the law herself. Mr. Healy clarified that he voted no because he is not satisfied with the answer given for a hardship. M~. Zimmerma~ added that what might be a hardship for one person might not be for another and it wo~d he hard to define. He explained how circumstances would have to be instigated to prove a hardship. -~ Mrs. Jackson stated that it still puzzled her that there must be a hardship and if a hardship cannot be proven, a permit will not be issued. Chairman Bailey referred to it being according to each in- dividual's interpretation of the law and stated that evidently four members interpretted the law differently than the other three. He then requested that a copy of the~law be sent to Mrs. Jackson. Parcel #2 - Beginning at a point in the Western Boundary line of Lot 2, Section 15, Twp. 45 S, Range 43 E, 300 ft. N of the SW corner of said Lot 2; thence run- ning W'ly & parallel to the S boundary line of the W½ of the NW~ of Section 15, aforesaid, to the E line of the R-OW of the Jacksonville, St. Augustine, & Indian River Railway Co. (now the Florida East Coast Railway Co.); thence SW'ly along the E line of said ROW to the S line of the W½ of ~$ of said Section 15; thence E along & following the course of the said S line of the said W½ of R~$ & along the S line of said Lot 2, to the Waters of Lake Worth; thence N'~ly fellow- lng the Waters of Lake Worth to a point directly opposite or E of the Point of beginning; thence W'ly & parallel with the S line of said Lot 2, to the Point of Beginning, and being part of said lot 2, and part of the W½ of ~ of said Section 15, together with all riparian rights. Less the W 94.0 ft. thereof, as measured at right angles to the said railroad right of way, for the ROW of U.S. Highway No. 1, (State Road No. 5), Situate, lying & being in Palm Beach County, Florida. Together with: Lots 122, 123 & I24, Lakeside Gardens. Recorded in Plat Book 8, Page 57 Palm Beach County Records Request - Relief from 30 ft. side yard setback requirement to 10 ft. side yard setback to construct a storage building needed to protect maintenance equipment. Address - 2424 North Federal Highway Applicant - Inlet Harbor Club, Inc. M~. Healy read the above application. Chairman Bailey asked if a~yone was present representing Inlet Harbor Club and~.~ Dick Romberg, 2424 North Federal Highway, Apartment #113, appeared before the Board. He informed, the BOAgD OF ; DJUSTMENT PAGE FIVE JULY 11, 1977 Board that the problem is when the developer built the build- ing~ he eliminated one thing, which is the storage building for lawnmowers, vacuums, etc. Right now, this equipment is stored in Apartment 107 and it was sold about slx months ago and the people want to move in. The equipment would have to be put in the common area and he is sure it would be stolen. The building will be stucco and will have the same roof as the existing building. It will be located between the tennis courts and tall trees. ~o Healy announced that a letter had been received from F~. James Fox, Vice President, authorizing Mr. Romberg to appear as their representative. The men,bors then reviewed the plan. ~. Zimmerman asked if the land was leased that the condomin- ium stands on and Mr. Romberg informed him it was owned by the owners at Inlet Harbor Club~ Chairman Bailey asked if this was the only feasible location for the building and ~. Romberg replied: yes, as there is no other place they could put it. He referred to researching this and they believe this is a logical location as it will not be viewable by anyone except the people living there. He added that it was an unbelievable oversight by the developer. M~. Healy re- ferred to it being used for the storage cf~maintenance equip- ment and ~. Romberg clarified that it would be for storage of greens mowers, brooms, vacuums, sweepers, etc. and what is necessary to take care of six acres of land. ~. Zimmerman referred to the agency assignment and asked why it referred to the setback being from 20 ft. to 7 ft. and ~. Romberg replied that they were dealing with a man in Chicago and showed the drawing for clarification. Mr. Zimmerman stated that it bothered him that this agency is set up for the sole purpose of requesting a hardship vari- ance from the existing code from 20 ft. to 7 ft. which does not agree with the application. Mr. Romberg informed him that the company does not have any>legal representation here ~ud as a resident, he is just trying to get this moving. He added that he was just appointed for this act to represent them. Mr. Ward pointed out that the application states from 30 ft. to 10 ft. and M~. Healy read the paragraph again from the lette~ stating reducing the side yard setback from 20 ft. to 7 ft. Pk. Romberg clarified that there was an error in the correspondence and they only need 10 ft. Mr. Healy asked if the association of Inlet Harbor Club had any reason to deny this or approve it and ~. Romberg infornmd him that the association has not taken over as yet as 30% only have been sold. Chairman Bailey asked if anyone in the audience wished to speak in favor of this variance and received no response. He then asked if anyone wished to speak in opposition to this variance and received no response. He added that no correspondence had been received. M~TES BOARD OF ADJUST~NT PAGE S iX JULY 11, 1977 Mr. Rutter made a motion that the variance be granted because of the appearance of the whole condominium setup, he can see why they want to maintain a nice appearance and they should have a place to keep the equipment. Mrs. Bond seconded the motion and suggested that it be clearly stated that it will be reduced to 10 ft. and not 7 ft. Under discussion, Chair- man Bailey stated that the application will take precedence and it will be l0 ft. As requested, Mrs. Kruse took a roll call vote on the motion as follows: Mr. Rutter - Aye Mrs. Bond - Aye Mr. Ward - No Mr. Adelman - Aye Mr. Zimmerman - ~ye Me. Healy - Aye ~. Bailey - Aye Motion carried 6-1. Parcel #3 - Lots 68 & 69, Lakes~ide Gardens Recorded in Plat Book 8, Page 57 Palm Beach County Records Request - Relief from 75 ft. lot frontage require- ment to 54 ft. lot frontage Relief from 15,000 sq. ft. lot area re- quirement to 3, 640 sq. ft. lot area Relief from 20 ft. front yard setback requirement to 15 ft. front yard set- back to construct a commercial building Address - 2602 North Federal Highway Applicant - Conrad Pickel ~. Healy read the above application. He then referred to the Board discussing previously how they were going to deal with anything other than the presentation of the deed and referred to a photostatic copy of the tax bill being sub- mitted with this application. He asked the Board if they were going to approve this as proof of ownership in answer to Question 9 on the application. Chairman Bailey referred to the last meeting when they decided to leave the applica- tion the way it is and under Section 9 it asks for proof of ownership such as deed or purchase contract and he thinks they decided not to confine it to a deed or purchase con- tract but anything giving proof of ownership. Mr. Healy re- plied that he belie~ed~i~ he mentioned that anything different, the Board should give approval. Chairman Bailey replied that he thinks they ~cided to leave it as it is and Mr. Healy agreed. ~s. Conrad Pickel appeared before the Board and informed them that she does have title insurance and also a contract from the previous owner which is siE~ed and if they ~are to MINUTES BOARD OF ADJUSTmeNT PAGE SEVEN JULY 11, 1977 see it, she has it with her. Mr. Zi~merman asked how long she had owned the property and Mrs. Pickel replied at least five to six years. Mr. Zimmerman referred to the tax receipt being for 1976 and since it is very recent, he doesn't believe we have any right to question it. Mrs. Pickel informed them that she also has the tax receipts at home for previous years. Chairman Bailey stated if she could locate the date she pur- chased the property, it would be important and Mrs. Pickel checked her papers and informed them it was April 16, 1970. Mr. Healy stated that in the future any tax receipts presented will suffice for proof of ownership and Chairman Bailey agreed on the basis of how it is stated in the application. Mr. Ward asked if this property was granted a variance about six to seven years ago and M~s. Pickel replied that it was and she has the variance granted at that time and read from the minutes of January 29, I970, when it was granted. Ward asked if there was any set period of time and M~s. Pickel replied that she didn't think there was. M~. Keehr clarified that at this particular time a variance was re- quested on this particular piece of property £or the builder to build to the rear lot line and what was approved was a variance from 25 ft. to 15 ft. front setback. By granting a lesser front setback, the zero rear setback was not needed. It was rather confusing and under the present ordinance, all three variances listed on the application are required. Mr. Ward referred to the possibility of this being grandfathered since there was no stipulation and Mr. Eeehr replied that per- haps the front setback could be grandfathered, but not the others. Chairman Bailey referred to it being previously zoned C-1 and rezoned to C-3 in 1975 ~nd asked if this would invalidate any variance previously granted and ~. Ward replied that he thought this would require a legal opinion. Mr. Zimmerman asked if the property was the same size as it is now er if the highway reduced the size and M~o Keehr informed him that the property is identical to the size it was at that time. Mr. Howell added that he did not think the rezoning affected anything unless a time limit had been ~tipulated. Mr. Zimmer- man asked if she owned the property when the highway was widened and ¥~s. Pickel replied that the highway had not been wide,ed since she purchased the property as nothing has ~ee~ done within the past seven years. She added that it is a hardship because she has not been able to sell it because of the size. The neighbor's garage is also a couple inches en her property. She explained how she planned to build a small studio which would not entail a lot of traffic, etc. Mr. Ward asked if it was her intention to build it herself and M~s. Pickel replied: yes. Mr. Ward clarified that she was not asking for a variance to sell the property and Mrs. MINUTES BO_~D OF ADJUST~NT PAGE EIGHT JULY 11, 1977 Pickel agreed. Mrs. Bond asked how soon she planned to build and Mrs. Pickel replied within a~month or two' ¥~. Healy referred to her statement that it would be difficult to sell this property and stated that she bought it in this situation and Mrs. Pickel replied that she did not know at the time and had planned to build a small studio there to begin with. She told how they liked this little corner on the highway and planned to Build a studio. ~. HealY re- ferred to the provisio~ in applying for a variance to pre- ~ent a hardship and stated that she actually created the hardship and Mrs. Pickel agreed that she did, but without realizing it and they originally did get a variance with plans!i~to build the building and non the Building code has Been increased and does create a hardship. Mr. Healy clari- fied that the changing of the zoning from C-1 to C-3 created a further hardship and ~s. ~ckel agreed. Mr. Zimmerman questioned the use of the property directly to the east and asked if it would be for sale and ~s. Pickel informed him that she has tried to buy the property, but the owner has been very uncooperative. Chairman Bailey asked if anyone in the audience wanted to speak in favor of this variance and received no response. He asked if anyone wanted to speak in opposition and re- ceived no response. Mr. Healy asked what the previous requirements were in the C-1 zone and Chairman Bailey read from the old code for clarification. Mr. Healy questioned the lot area require- ment and Chairman Bailey informed him there were no building site area regulations. Mr. Healy clarified that the largest variance was the request for relief from 15,000 square feet lot area to 3,640 sq. feet, which was taken away from the area in the last zoning from C-1 to C-3. Mr. Rutter then referred to the use of this building and they discussed the category it would be included in. Mr. Zimmerman stated the only way he could see this land being used as a commercial lot would be to combine it with another lot and the only one available is to the east and that seems impossible to secure at the present time. Mr. Keehr informed them that at the time the variance was grouted in January, 1970, it appears the lot fulfilled all the requirements except for the one variance given and it did meet the requirements of C-1 at that time. ~. Rutter asked why it came before the Board again now and M~. Keehr replied that the previous!.Variance granted was confusing s~d explained how it was given for the front yard when the rear yard was requested. They discussed this situation further. MINUTES BOiRD OF ADJUSTMENT JULY 11, 1977 Mr. Rutter made a motion that the reliance be approved pro- viding they carry out the plans to build a studio according to the plans.~submitted to the Building Department and not for benefit o£ selling the>property. Mrs. Bend seconded the motion. Mr. Healy amended the motion with the stipulation efa one year time limit and the ~ariance to be given~ to the present owner only and not to any future owner. Mr. Ward seconded the amendment. Under discussion, Mrs, Bond referred to Pickel stating they planned to build within a month or two and questioned why it should be extended to one year and Mr. Healy replied that he did not hear that statement. Mr. Ward referred to giving another applicant one year to build a porch addition and the applicant did not ask for it. ~mendment carried 7-0. Under discussion of the original motion, Mr. Healyreferred to questioning the hardship on all variances and stated he believes in this case the hardship was presented when the City rezoned from C-1 to C-3 and definitely made this pro- perty a hardship to the present owners. As requested, Mrs. Kruse thentook a roll call vote on the original motion as follows: Mr. Rutter - Aye Mrs. Bond - Aye Mr. Ward - Aye Mr. idelman - Aye Mr. Zimmerman - Mr. Healy - Aye Mr. Bailey - Aye Motion carried 7-0. Mr. Ward asked how the parking would be taken care of for this applicant and Mr. Howell informed him that the present ordinance on parking must be applied since this has only granted a setback variance. Mr. Ward stated that if the parking comes up, it must come back and ~. Howell replied definitely if there is any question. OTHER BUS I~SS Chairman Bailey announced that Mr. Rutter had requested to be excused ~til the September meeting. Chairman Bailey gave the plans from tonight's applications to Mrs. Kruse to be returned to the City Clerk,s office. Mr. Healy then asked if the letter from ~. Moore had been understood by the members and Mr. Ward replied that as far as he was concerned, it was all right, but does not answer MINUTES BOARD OF ADJUSTmeNT PAGE TEN JULY 11, 1977 the question. After discussion, M~. Healy suggested having the letter copied for each member for discussion at the next meeting.. He then made a motion to table this letter until the next meeting, seconded by M~s. Bond. As requested, ~s. Kruse took a roll call vote on the motion as follows: Mr. Rutter - Aye Mrs. Bond - Aye Mr. Ward - Aye Mr. Adelman - Aye ~. Zimmerman - Aye ~. Healy - ~. Bailey - Aye Motion carried 7-0. Chairman Bailey thenrequested that a copy of this letter be attached to the minutes sent to each member. Chairman Bailey declared a three minute recess at 8:15 P. M. and called the meeting back to order at 8:18 Po M. Mx. Zimmerman suggested discussing the other letter received in regards to the George Culver situation. Chairman Bailey asked if the Bosm~d felt the letter had to be re-read and ~. Rutter replied that he got the understanding there was an error in the license issued from 150 to 50 seats. M~. Ward referred to the building inspector stating he found an error on June 15 and Mr. Culver was before the Board on June 27 and stated he had a 150 seat license. Mr. Healy read the para- graph pertaining to this again. M~. Howell cls~ified that the meeting was on J~e 13~and it came to his attention two days after the meeting. Chairman Bailey asked if the members felt the meeting should be open for comments from the public on this situation and after discussion, it was agreed they shouldl hear from the public. ~. Ward requested the letter to be read in its~ entirety and Mr. Healy complied. Mr. Ward then questioned just what needed to be corrected and Mr. Howell replied that it was his~i~understanding from the minutes of the meeting that a variance was granted to ~. Culver on parking from 56 spaces to 11 spaces. Chairman Bailey agreed. Mr. Howell continued that it was embarrassing for this Board and the City, but under the circumstances where a varis~ce has been granted, he believes the Board would have to say ~. Culver can do this without parking or he cannot. If there is any correct- ing to do, the question is not from 56 to 11 spaces, but from 13 on the basis of 50 seating capacity. M~. Ward re- plied that he did not believe it was an embarrassment to MINUTES BOARD OF ADJUSTMENT PAGE ELEVEN JULY 11, 1977 this Board as they acted on the evidence presented. ~s. Bond stated that Mr. Culver presented 150 seats and knew it was only 50 and Mr. Howell clarified that Mr. Culver did have a license at that time for 150 seats. Mr. Ward stated he did not think there was anything for this Board to clear up. Chairman Bailey questioned what the controversy was which Mr. Howell referred to in his letter and ~. Howell informed him it was the 150 seats. Chairman Bailey asked if that had been taken care of and Mr. Howell replied: yes, as far as he is concerned. Chairman Bailey asked how it affected this Board and ~. Howell informed him that Mr. Kohl felt it im- portant enough to let the Board know so there was not any misconception because Mr. Culver was talking about 150 seats before the Board. Chairman Bailey stated that at that time, Mr. Culver did have a license which would have permitted him 150 seats if he had been using it from September and Mr. Howell replied that it was not legal as any restaurant license must be approved by the Health Dept. and Building Dept. as far as exits, space for seating, etc. and this license was not. In his opinion, it was not legal then. Chairman Bailey referred to the license having to be approved by the Health Dept., Building Dept., etc. and asked if it was feasible that R~. Culver was not aware of these requirements and Mr. Howell replied that it was possible. Chairman Bailey stated that until the error was found, there was no reason for this Board to believe that it was a license issued in error and he does not believe this Board has acted in error. Mr. Howell clarified that he felt this Boar~d should know that there was an error and it was his responsibility to let the Board know through Mr. Kohl. Mm. Ward referred to asking Mw. Culver at the meeting if the license was posted and the reply was that it was. ~r. Culver added at' this time that he has the license with him. ~. Rutter asked what thisBoard should do to rectify this error? Mr. Healy questioned why Mr. Kohl's letter referred to permits and licensing and }~. HOwell's letter referred to the Board of Adjustment action taken and Mr. Howell replied that he referred to that because at the December 13 meeting, he tried to get this clarified. He said it would be grand- fathered with the Board allowing a non-conforming building to be rebuilt and at that time, Chairman Aranow informed him that parking would not be grandfathered. It was his opinion from that, that Mr. Culver was required to come back for the parking variance at no fee and he was in error for charging ~uother $50.00 since it was stated the parking would be enter- tained on the original motion. Chairman Bailey clarified that he was saying the Board should rectify about the $50.00 charge and application ~ud M~. Howell replied: yes. Mr. Ward referred to mentioning this at a later meeting and Mm. Healy agreed he brought it up at the June t3 meeting. ?~. Howell clarified that according to the December 13 minutes, he did not have any MINUTES BOARD OF ADJUST}~ENT PAGE TWELVE JULY 11, 1977 choice but to bring Mr. Culver before the Board again be- cause the Chairman said the Board wanted to look at it again. Mr. Healy referred to the period of time between the meetings and clarified that Mr. Culver paid for another application and M~. Howell agreed and explained how it had been in error and the second case should have been on the original application according to the minutes of that meet- ing. Chairman Bailey stated that Mr. Howell could actually make a recommendation to refund the money and didn't neces- sarily need the approval of the Board of Adjustment and Mr. Howell agreed and stated he wanted the Board a~are of the mistake made and the issuance of the license. Mr. Zimmerman stated in the light of having this clarified on the license and in order to find out whether the Board wants to take further consideration of the case, he moves we take a vote en reconsideration of the case since there are a number of people involved k~re in the audience. Mr. Adelman seconded the motion. Under discussion, NE. Rutter questioned the purpose and Chairman Bailey informed him it was for discus- sion to consider the motion to reconsider. ~. Rutter asked what they were reconsidering and Chairman Bailey replied that it all depends on the motion and the only way we can open or re-hear this case is for a majority of the Board to vote in favor to rehear the case. Personally he does not think the case needs to be reheard. ~. Healy stated he didn't believe this should be a decision of the Board of Adjustment as a decision was made for the 150 seats on the evidence presented and he believes the question of reconsidering should not even be taken up in view of the fact that we are a quasi-judicial Board. He does not believe we have the right to reconsider this particulsr case or any case we have acted on. Mr. Ward stated he thought we probably would in light of the fact that M~. Culver wants to retract the 150 seat license and go back to 50. Mr. Howell replied that this had been taken care of. The Board discussed further what they could and then Chairman Bailey clarified that right now, M~. Culver has a variance permitting him to have in essence 56 parking spaces and with 56 parking spaces, he could possibly get approval from the Hotel & Restaurant Commission and the other Boards and get a license for 150 seats. Mr. Adelman asked where the 56 park- ing spaces were and ~hairman Bailey replied that the variance is for 43 parking spaces which he does not have ~ad provided M~. Culver goes through the Boards and passes, he can get a 150 seat license. ~s. Bond referred to granting the vari- ance on the assumption of a license for 150 seats and stated that actually Mr. Howell was present asking the Board to re- scind it and ~ Howell clarified that he was just bringing it to the Board's attention. Chairman Bailey referred to the facts submitted and suggested they get advice from the City Attorney. M~. Ward stated that since this variance was granted on the basis of 150 seats and M~. Culver could take advantage of it and he thinks this case should~ heard again. MINUTES BO~RD OF ADJUSTMENT PAGE THIRTEEN JULY I1, 1977 Mr. Howell stated that in his opinion, the variance states Mr. Culver has 56 spaces. Mm~. Rutter replied that it was based on facts and misrepresentation and Mr. Culver stated that there was no misrepresentation because at the time, he had a license for 150 seats. Chairman Bailey clarified that it was an error made, but not by this Board. He referred to the case being heard to the Board's ability and also being heard fo~ times and stated if they vote to remepen and re- hear this, theyi~ight be in violation of the law. He thinks they should get legal advice on this and find out exactly how to handle this, As requested, Mrs. Kruse then took a roll call vote on the motion as follows: Mr. Rutter - Aye Mrs. Bond - Aye ~. Ward - Aye M~. Adelman - Aye ~. Zimmerman - Aye ~. Mealy - No Mr. Bailey - No Motion carried 5-2. M~. Ward made a motion to table this until a later date, seconded by Mr. Healy. Motion carried 7-0. Mr. Ward made a motion to get legal advice on this, seconded by Mrs. Bond. Motion carried 7-0. Chairman Bailey announced that the people present could be heard. M~. George Culver appeared before the Board and stated he would like to msd~e one comment and the Board's ruling is very important to him, but what is more important to him is that he has always done business that his word is his bond. There seems to be some discussion. The Board made a ruling on what was presented before them that night and the question was whether he had a 150 seat license which he did have mn his possession. Unfortunately this restaurant has been operating not under his jurisdiction, but under'his ex-wife and also a technicality in the courts has been holding him up on this building. The license was sent to him by the City. He did not know until after the license was cancelled and advised by Mr. Keehr and Mr. Howell that his ex-wife had not complied with the Boards for the 150 seat capacity. Numerous appoint- ments had been made to investigate the 150 seats, but she did not keep the appointments. He was honest when he was before this Board. The Board ruled on what they had before them. He could only tell the Board what he knew at that time. it is important to him whether they rule for him or against him, but he does not wa~t a~yone to think h~ is a liar. Mrs. Bond asked if he applied for ~50 seats or 50 seats and Mr. Culver informed her that his ex-wife applied for 150 seats Mt~UJTE$ BOARD OF ADJUSTmeNT PAGE FOURTEEN JULY 11, 1977 and the Hotel & Restaurant Commission approved it. Mrs. Bond asked why the City stated there was an error and ~. Culver replied that the City made appointments with hie wife, but she would not be there and they could not make inspections. Mr. Ward stated that the City turned it down, but it was approved by the Hotel & Restaurant Commission and M~. Culver replied that the City turned it down and he understands the Hotel & Restaurant Commission tentatively approved it and granted an exception for the parking sDaces. However, the City is limiting it to 50 seats aud he is put- ting up a new building and intends to apply for 150 seats and meet all requirements. If the Beard goss back again, he must come back and ask for another variance. He re- ferred to his time being valuable and questioned just what they were trying to accomplish and Chairman Bailey informed him that the Board wanted to hear what he had to say. Mr. Culver stated that it was important to bring out that he did not lie when he appeared before them on June 73 and two days after the meeting, there was not a 150 seat license. Chair- man Bailey stated that he must have k~ownsomething was~going on since he was present. The Board will listen to both sides. Evidently the error must be taken into consideration. M~. Zimmerman referred to the building he was contemplating and asked if it would be large enough for more than 50 seats ~u~d ~. Culver informed him it would have the same square footage as the present building and right now, there are approximately 150 seats there. Mr. Zimmerman asked how many seats the new restaurant would have and ~. Culver re- plied that if he could get 150 seats approved, it will have ~50 seats like it has today. Chairman Bailey clarified that the varis, nce granted allows 150 seats. Mr. Culver added that when the license was revoked, nobody came in and took 100 seats out. Mr. Howell informed the Board that he reviewed this~or~Ehly and the application was submitted for 150 seats approximately one year before it was inspected. He told about the inspec- tion procedure and how it was denied because there were 96 seats. ~. Healy added that the inspection sheet was dated ~2/2/76. M~. Howell continued with explaining how the appro- vals are noted on the back of the application and advised that it was signed by the Hotel & Restaurant Commission, but the Health Dept. and Building Dept. did not sign it. He explained how this was~probably how the error occurred with the clerk noting the 150 seats. Mr. Healy questioned the procedure for processing an appli- cation and Mr. Howell explained how it was submitted to the Building Dept. and inspectors are sent out. Mr. Healy re- ferred to the Hotel & Restaur~ut Commission and asked when MINUTES BOARD OF ADJUST~NT PAGE FIFTEEN JULY 11, 1977 it came to them and ~r. Howell informed him that before com- ing to the City, it is approved by the Hotel & Restaurant Commission. Mr. Healy clarified that when the applicar~t re- ceived the license, he naturally assumed every department approved it for 150 seats. Mr. Howell stated that in his opinion, Mr. Culver has the authority from this Board to rebnild the building, but only to rebuild the building and nothing having to do with the licenses and what it will be used for is still up to the Building Dept. M~. Healy questioned the procedure for licensing and ~. Howell explained how the various City inspectors made in- spections when an application was received. ~. Healy asked about the County and M~. Howell informed him they did not come in until after the City approves it. Also, as far as the liquor license, it will not be ~ssue~ by the State until approved by the Building Dept. Chairman Bailey then asked if anyone else desired to address the Board. Mrs. Janet Hall, Sea Mist Marina, appeared before the Board and advised that she owns the property to the north and east of the property in question. She referred to statements at the Board's hearing mentioning that the purpose is to prevent a h~rdship on property owners. This request was £or a 150 seat license and it was mentioned that it was a hardship; however, the license was not issned legally and it was denied. She told about having difficulty obtaining information from the Building Dept. There is not room in that area for a 150 seat business with the parking it requires. ~ vari~uce was granted on the grounds of a hardship. The hardship ~O~ld not exist if attempts were not made to upgrade this restauraut from a carry-out operation from 20 seats, 50 seats, and~now to 150 seats. This is a quasi-judicial body and as of tomor- row or the next day, the'~time limit will expire when they reverse their decision. She respectfully asks this Board to reverse their whole decision on this question from the other night and let it be brought up in the proper w~y with the proper building, seating arrangements, etc. Chairman Bailey ~eferred to the time limit mentioned and Mrs. Hall replied that she discussed this with the City Attorney. ~s. Hall continued that she made the statement at the previ- ous meeting that the license was for 50 seats because it was verified by ~s. Culver and she was not aware that a 150 seat license ever existed~ She went to the License Department to find out and found out the license had been issued~ but the application on the back showed it was never approved. MINUTES BOARD OF ADJUST~NT ~GE S IXT~N JULY 11, 1977 Chairman Bailey referred again to the time limit and the Board's decision and Mrs. Hall informed him that she checked with the City Attorney and was informed that this Board should immediately rescind their action because nobody can reverse a decision this Board has made and they only have 30 days to verse a decision. They can get out of it by tabling it, but there has been a serious infringement with considering this case as a hardship. Also, Mr. Moore mentioned that this Board was used in that respect. It would seem since there is obvi- ously considerable discrepancies, the Board may consider nulli- fying their action at this time with the intention if it is brought up in the proper manner to act on it with the true facts. Chairman Bailey replied that he thinks the circum- stances being as they are and since the Board was misinformed and an error was made and it was only brought out now, i~ could possibly have some bearing on the time limit. He thinks she can rest assured that at their earliest convenience, they will find out something about this. If tomorrow is the last day and they have to make a move to protect the time limit, he is sure it will be made. This Board has agreed to rehear it, table it and seek some legal advice. Since time is of the essence and if it is necessary to call an immediate~meeting~ to resolve it, he is sure it will be handled that way. ~s. Hall referred to the Board protecting the surrounding property owners and advised that she represents two and feels they have presented their case with the facts as now presented. She feels this should come up for another hearing to give them opportunity to again present their case. M~. Ward stated he thinks the Board's actions regarding the time limit Could be extended since they have agreed to rehear the case. It pro- bably would not hurt to check into it and find out. Chair- man Bailey then passed a paper around and requested everyone's phone number so he could advise them after checking with the City Attorney. Mr. Howell stated that he wanted to personally apologize to Mrs. Hall. He referred to her difficulty obtaining the re- cords and advised that he checked into this and when she came for the records, he was at a meeting in West Palm Beach and some new employees were not aware that the records are available to the public. Mr~ Rutter suggested that the correspondence submitted to the Board members be available to the public and F~. Howell replied that all the letters were in Central F±le. Mr. Healy added thatthe Board passed a motion previously to have all letters from this Board become public property in Central File. Mr. Vincent Molle, owner of Sm~key's Wharf, appeared before the Board and stated that he wanted to be sure the time li~mit would not close them out and they would have recourse. He has some certified copies signed by ~. Howell that were MI~YjTES BOARD OF ADJUSTMENT P~GE SEVENTEEN JULY 11, 1977 requested by his attorney and he assumed they were all there, but they are not. He will request the others which are miss- ing. He tried to apprise the Board at the beginning of the meetings that there was something wrong, but he didn't know how to do it and wants to be sure the time limit does not close them out. Mr. Rutter replied that he belieVed the time limit was protected with the motion to table smd rehaar. Mr. Molle continued that there are discrepancies and he mainly wanted the time limit not to close them out, so they could n~t appeal it. I~. Zimmerman referred tothis being up to the Building Dept. and asked if a permit would be issued under the present con- ditions and ~. Howell informed him that a permit has been issued. ~. Molle asked if the 50 seat permit was legal and Chairman Bailey replied that they probably did not have to be concerned with that now. Mr. Molle clarified that it was the assumption that the 150 seat capacity is not legal, but he would like to k~ow about the 50 and Chairman Bailey informed him that the members have agreed to research this further. He again requested those present to put their names and phone numbers on the list and advised them that if there is a meeting, they will be notified. ~. Healy requested that copies of the letters be made and sent to the members of the Board. Chairman Bailey stated that if a meeting mus~t be called for tomorrow, he will see that copies are made and available right away. He will talk to the City Attorney in the morning and if a decision is made that the Board must meet right away, he will make sure each one gets a copy or will mail one to them.. ~. Rutter added that he believed it would be interest~for the City Attorney to show a situation where a decision has been reversed. Chairman Bailey suggested thatthey also request the City Attorney to be present at the meeting and the~members agreed. ADJOURN~NT Mr. Rutter made a motion to adjourn, seconded by Mrs. Bond. Motion carried 7-0 and the meeting was properly adjourned at 9:25 P. M. Respectfully submitted, ~$uz~nne M. Kruse Recording Secretary (Three Tapes) 'M E M 0 R A N D U M TO: FROM: Gene Moore Attorney PP. Derte B. ~ 'lev Chairman, Board of Adjustment June 28, 1977 Per the attached minutes from our Board of Adjustment meeting of June 27, ~977, Pages ~, 2, and 3, you can see the mePf~ers had. quite a dis6ussion whether it was necessary to have four votes for either approval or denial of a variance. A motion was made requesting that you please forward your written opinion whevher it sakes four votes to approve, which you have acknow!edged~ or four votesto deny - four votes either way? A!so~ in the event of a tie, who will break the vote? July 1, 1977 The only matters that may properly come before the Board of Adjustment for adjudication are requests for variance, special e~ceptions or an appeal from a decision of the building official. In order to' grant relief to the applicant in any of the above situations, it is necessary that he obtains a concurring vote of 4 members of the board. If less than 4 concurring votes are cast in favor of the application the result is that same is denied. The ordinance further provides' that no action shall be taken unless 5 members are present and voting. Therefore, the only instance in which a tie could result would be in the case where 6 members are present and voting, in which event the requisite 4 votes would not be obtained and a denial would result. In the case which precipitated the inq~iry_ ~ the only suggestion I would make would be for the Board to rec_~q~ until such time as an~ alternate member could be present and participate in the votin~ to replace the member which had abstained because 'of personal interest. GENE MOORE~ City Attorney MEMORANDUM To: Frar~c Kohl, City Manager July 5, 1977 From: Edgar E. Howell, Building Official Re: George Culver and/or Laura Culver - Permits, Licenses and Board of Adjustment action taken December 13, 1976 I understand that there is some controversy regarding the above, and I hereby submit the following information to help the Board of Adjustment to clarify ~e action taken on this item at their meeting of December 13, 1976. There was a license issued September 2, 1976, License No. A1027 for 150 seats (evidently an error). This had come before the Building Department for inspection and was turned down--denied for 150 seats. However, when t~he girl typed the license, she obviously looked at the application under references where she saw a notation: "previously licensed" thereby taking this to mean 150 seats. It is true t~hat they were previously licensed, but only for 50 seats. At any rate, the license was inadvertently typed for 150 seats. This was brought to my attention on approximately June 15, 1977, at which time I instructed ~4iss Lil Bonner to void the license for 150 seats and issue a corrective license for 50 seats. A copy is attached of the original incorrect License No. A1027, which has been voided and a copy of the corrective License No. 2931, which replaced same. I then requested M~. George Culver to come into mv office and I explained the typographical error to him and personally handed him the corrective license, plus a check in the amount of $100, representing t~he refund due to ~he difference in license fees. [~i~. Bert Keehr, my assistant, was present in my office at the time of this transaction. My personal opinion, for Whatever it is worth, is that the Board of Adjustment, at their meeting of December 13, 1976, acted within ~heir judicial rights. They do have the power to grant a setback variance, and in my opinion, this is what they did at that meeting. A copy of t~ue minutes of that meeting are attached for your reference. In allow~ug Mr. Culver to rebuild a nonconforming building, it would have to include present parking, as I stated at that meeting (see page 7 of the minutes). However, as you can see (see page 8 of the minutes), Chairman Aranow disagreed and stated that Mr. Culver should present an application as an amendment to the original, and the Beard would act on it. Through normal procedure, the Building Dep~nt did require Mr. Culver to make another application pertaining to the parking and collected another fee of $50. We evidently were in error in doing this, since it conflicts with Mr. Ar~ow's statement in the minutes (see page 8 of the minutes). It is unfortunate that the Board of Adjustment thought that they were acting on a restuarant with 150 seats, in lieu of the actual 50 seats. As you can see, this makes quite a difference as far as parking requirements are concerned. I might also add that tdue Building Deparbrenut would never approve a license for 150 seats, unless all codes pertainJmg to that license were met. At the time this error was made, we were not responsible for the license being issued. I don't mean tx) say that a mistake will not occur by any depazi,~ent occasionally, however, they will be kept to a minimum the way we now have this operation set up. Hopefully, this letter will assist the Board of Adjustment to correct their minutes accordingly. xc: Central Files · ' NA . - · ,- ' ' " ". ' ..,../ .: .... '-7-...-'--..~.,/-.:.-.."1 _ / I: I'". IM ~ -,r,I . ~^,D . "7"/.'-::' ":. -~ '-'. ! ~-~ ~ ~=~ ~-= ".. '--...: . .A~bUNT i.~:n~.~ ~ ~ ;\..-. ~ .:,!.:.--;--,' <:::.:', :- . /- '::?'::::'"~;':--." . .'-' -, ' .' .' .. ..... ' .. ' "/'Z-,."~."',..'-. ':, ~:.:- ~--:.C'.,~'.~ ,T.~' ' .-: '. DATF · g~'~-~ ~1 1~76 .. "':--:'.L~:' 5~'-'- ~-;:::. ' '.: ' '.-'. .... . ..-C.-~-. a'"'"e ;-"~n '~'B'~e~s b~ O~:~padon.. of Class~Gcar~on~. . 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':.L '._.::-- ' .- -_ .:.:- C.:::.-.: . : ;. ,-..... -...- -. .:-;..., , .^~ OF.~$,.~$~ A 2931See L' TWO GEORGES HARBOR HUT A'MOUNT PAID N/C ' ~AI] Direct Payment Requisition dated 6/16/77 sho~s refund of:S100.00. ~^-rr . 6/16/77 I~ h,r~b¥ Licensed to Engage in Busine~ or Occupation of Cla~,ification Restaurant - 50 seats LOCAT]C~N - I Two Geo. rges, Casa Lo~;Blvd.' GeorgeiW. or-Labra Culver.- dba '-,''"- -. TWO GEORGES' HARBOR HUT ..': .. Casa Lo,ha.Blvd. -- ' : Boynton Beach,'-F.l..33435'."- ' ' ' '' "' -.: I"~"F THI~ LICDSE IN t CONSPICUOU~ C0. RRECTED COPY · '}"'C)RTH[PERIOD CONIM]~CIN~ 10/1/76 J AND 13~DINI~ qlqn/77 NOTICE: T'his license becomes ~ and VC ow.,~ip or addrt~ is ~g~d unle~ ]ic~t 3 to ~e Li~ ~m~ foz Com~on~ / / LICENSE INSPE ~ - ;- . . ..,. - ..: . .? ~ .: . . - . .. ... ...~~ ,.-/~__' :..:- -; ?....:,.., .: ...,-.: - .. - i'~" : .'-" ' '..'. '-: .' .,:'". DIRECT PAYMENT REQUISITION ~' ~ . . ' ' '':""._'-'.L'. , ~ ~ -': '-- - ; '-' '-::- .... --; ~---::.--.'-:., --'" '. '.~~.-'~.~__:..~~. ~ -. : TWO GEORGES HARBOR HUT .' ,-:-' - -;-':-.':": -:'-"-':- . .... ..... . ,_ For: Overpayment.. on license ~" A1027 dar--ed' Septe.robe , --'F~ -~ CONTROL ~ DETAIL ~ AMOUNT .' . -.- ..... :_. .-.-.-.-..? '.'_.: .: · .001 :'. 034: .... I ;- Finance Dept. i'T~O GEORGEg$: HARBOR Boynton [GNED. CITY of BOYNTON BEACH P. O. BOX 310 120 N.E. 2ND AVENUE BOYNTON BEACH, FLOEIDA 33435 Office of the City Manager July 5, 1977 Mr. Derle B. Bailey Chairman Board of Adjustment Boynton Beach, FL 33435 Re: George Culver and/or Laura Culver Permits and Licenses Dear Mr. Bailey: We attach hereto .information from our Building Official, Mr. E. E. Howell, which may assist you in the above matter. Yours very truly, CITY OF BOYNTON BEACH FK/db Attachments F~ a K hl City Manager