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 $50.
We evidently were in error in doing this, since it conflicts with Mr. Ar~ow's
statement in the minutes (see page 8 of the minutes).
It is unfortunate that the Board of Adjustment thought that they were acting
on a restuarant with 150 seats, in lieu of the actual 50 seats. As you can see,
this makes quite a difference as far as parking requirements are concerned.
I might also add that tdue Building Deparbrenut would never approve a license for
150 seats, unless all codes pertainJmg to that license were met. At the time
this error was made, we were not responsible for the license being issued. I
don't mean tx) say that a mistake will not occur by any depazi,~ent occasionally,
however, they will be kept to a minimum the way we now have this operation set up.
Hopefully, this letter will assist the Board of Adjustment to correct their
minutes accordingly.
xc: Central Files
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, .^~ OF.~$,.~$~ A 2931See L'
TWO GEORGES HARBOR HUT A'MOUNT PAID N/C ' ~AI]
Direct Payment Requisition dated 6/16/77
sho~s refund of:S100.00. ~^-rr . 6/16/77
I~ h,r~b¥ Licensed to Engage in Busine~ or Occupation of Cla~,ification
Restaurant - 50 seats
LOCAT]C~N
- I
Two Geo. rges, Casa Lo~;Blvd.'
GeorgeiW. or-Labra Culver.- dba '-,''"-
-.
TWO GEORGES' HARBOR HUT ..': ..
Casa Lo,ha.Blvd. -- ' :
Boynton Beach,'-F.l..33435'."- ' ' ' '' "' -.:
I"~"F THI~ LICDSE IN t CONSPICUOU~
C0. RRECTED COPY
· '}"'C)RTH[PERIOD CONIM]~CIN~
10/1/76
J AND 13~DINI~ qlqn/77
NOTICE: T'his license becomes ~ and VC
ow.,~ip or addrt~ is ~g~d unle~ ]ic~t 3
to ~e Li~ ~m~ foz Com~on~
/ / LICENSE INSPE
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: TWO GEORGES HARBOR HUT .' ,-:-' - -;-':-.':": -:'-"-':- . .... ..... . ,_
For: Overpayment.. on license ~" A1027 dar--ed' Septe.robe ,
--'F~ -~ CONTROL ~ DETAIL ~ AMOUNT
.' . -.- ..... :_. .-.-.-.-..? '.'_.: .:
· .001 :'. 034: .... I
;-
Finance Dept.
i'T~O GEORGEg$: 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