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Minutes 06-13-77MINUTES OF THE BOARD OF ADJUSTMENT ~ETING HELD AT CITY HALL, BOYNTON BEA~"t, FLORIDA, MONDAY, JUNE 13, 1977 AT 7:00 P. M. PRESENT Derle B. Bailey, Chairman David W. Healy, Secretary Mrs. Lillian Bond Walter B. Rutter Foy Ward Carl Zi~erman V. Paul Scoggins, Alternate Bert Keehr, Asst. Bldg. OffiCial ABSENT Ben Adelman, Alternate (Excused) Vernon Thompson, Jr., Vice Chairman Chairman Bailey called the meeting to order at 7:00 P. M. and introduced the members of the Board, }~. Keehr and M~s. K/~use. Minutes of May 23, 1977 Mrs. Bond referred to calling the Chairman and asking to be excused from this meeting and requested that her absence be noted as "Excused" in the minutes. Mr. Rutter made a motion to accept the minutes as amended, seconded by Mm~. Zimmerman. Motion carried unanimously. PUBLIC HEARING Parcel #1 - South 45 ft. of Lot 19 & All of Lots 20, 21 & 22, Less Road Right-of-way, Pence & King's Addno Recorded in Plat Book 1, Page 50 Palm Beach County Records Request - Relief from 10 ft. rear setback require- ment to 7 ft. 9 in. rear setback, Relief from 15 ft. si~ setback require- ment to 9 ft. 2 in. side setback, to build a roof over existing slab work area for protection of employees from the elements. Address - 711 North Federal Highway Applicant - Tropigas, Inc. of Florida . Hea!y read the above application. Chairman Bailey showed site plan to the members for their review. Chairman Bailey asked if anyone was present representing Tropigas, Inc. of Florida and Mr. Robert Merquist, Division Manager of Tropigas, Inc. of Florida, appeared before the Board. He told about their business having increased re- cently due to two companies having gone out of business and explained that they would just like to put a roof over the existing loading dock for protection of the employees from the elements. MI~J~i BOARD OF ADJUSTmeNT PAGE ~0 JUNE 13, 1977 M~. Ward asked if the loading dock was existing and Mr. Merquist replied that he believes it has been there since 1953. Mr. Rutter asked if it was a permanent structure proposed and Mr. Merquist replied: yes. Mr. Zimmerman asl~d where it would be located in relation to the~ioading dock and ~. Merquist informed him it would be directly over the loading dock, but will not be enclosed on the si~e and will merely be a roof to stand the elements to keep the em- ployees dry in the rain and out of the heat. Mr. Ward asked if it was a concrete platform a_nd Mr. Merquist replied: yes, and it will remain that way; there is no chance of it getting any larger. Chairman Bailey asked if anyone present was in favor of granting this variance ~ud received no response. Chairman Bailey then requested that the cor~unications re- ceived be read. Mr. Healy read a letter from ~. & Mrs. Leon Gudites, 623 N. E. 6th Court, stating that the only way Tropigas could be improved would be by moving away from the City and into the suburbs and then made reference to the railroad accident in February, 1977. He then read a letter written as Harbour Hall Condominiums, referring to the train accident in February and requesting that the dangerous tanks. ~e moved or placed underground. He then read a letter from James & Theresa Domos requesting that a solid steel and concrete wall be built around Tropigas to prevent another accident such as happened in February. Chairman Bailey then asked if anyone present was opposed to this variance and received no response. r~. Rutter made a motion to grant the variance, seconded by ~. Scoggins. Mr. Ward then made an amendment to the motion adding the stipulation that outside of the roof, the building shall remain open, seconded by ~;~s. Bond. A vote was taken o~ the amendment and it carried 7-0. As requested, ~s. Kruse took a roll call vote on the ori- ginal motion as follows: Mr. Rutter - Aye ~s. Bond - Aye Mr. Ward - Aye Mr. Scoggins - Aye Mr. Zimmerman- Aye F~. Healy - Aye M~. Bailey - Aye Motion carried 7-0. MINUTEE BOARD OF ADJUST_~NT P~~GE THREE JU~E 13, 1977 Parcel #2 - Lot 9, Block 1, Lake Eden, Plat #2 Recorded in Plat Book 29, Page 53 Palm Beach County Records Request - Relief from 25 ft. rear setback require- ment to 5 ft. rear setback, to build boat house near water to enclose boat. Address - 3885 South Lake Drive Applicant -Mane L. Folsom ~. Healy read ChairmanBailey showed a Ate plan to that it was for the building itself and the location of the boat house was shown on the surVey submitted with the application. Mr. Dwane L. Folsom, 640 S. E. 2nd Avenue, appeared before the Board. ~. Zimmerman asked where the south and west lot lines were and ~. Folsom informed him they were in the water. ~m. Zimmerman asked what the overall dimension of thee lot was on the north and east without including any land that is part of the lake ~ud Mr. Folsom informed him it was 185 feet along the lake and he intends to put in a seawall. Mr. Zimmerman asked if the lake was part of the L~ke Worth Drainage District and if there was a right-of-way and Mr. Folsom replied that he has the deed and the only thing~in- volved is the Grimes Development Board and they have written a letter in agreement. Chairman Bailey clarified that the only thing the Board was concer~ed with was Item #4 on the petition, the request for a 20 ft. variance to place the boat house 5 ft. from the property line. Mr. Folsom stated that there was not asy- thing in the ordinance covering a boat house. Mr. Ward asked if the boat house would project out further than the adjacent homes and cause an obstruction to the view and Mr. Folsom told about talking to the person living to the north and having agreed to keep it at a low profile. Mr. Zimmerman asked where the division was between the Lake Worth Drainage District property and his property and M~. Folsom referred to the survey showing this. Mr. Folsom informed the Board there were a number of other boat houses in that immediate area. ~. Ward asked how close~ they were located to his property and M~. Folsom told about a large one located across the lake. ~. Ward stated he was concerned about the boat house projecting out and cutting off someone's view and Mr. Folsom told about talking to his neighbor and their agreement. Mr. Rutter asked if there would be rooms above the boat house a~ud ~. Folsom replied: no, it would just be big enough for a boat. MINUTES B0~D OF ADJUST~'~'~NT P~GE FOUR JUNE 13, 1977 Mr. Healy asked where the Setback line was determined from and Mr. Keehr replied that they would take it from the arc. Mr. Healy asked if there would be a high water water line and M~. Keehr replied that it would EO by the survey. Mr. Healy asked if errosion had taken anything of the property line away and ~. Folsom replied that it had been taken away considerably, especial~on the north side. Chairman Bailey asked if anyone wished to speak in favor of this variance and received no response. He then ascertained that no communications had been received. He then asked if anyone w~ted to speak in opposition to this variance. .Mr. Louia Grinetti, Jr., 3855 South Lake Drive, stated he would like to see the detail on the size of the structure. He also asked if anyone else would be able to build a boat house if this was approved and Chairman Bailey explained how each variance was warranted on its individual merit. M~. Folsom then explained the plan to Mr. Grinetti. M~s. Bond asked if the height of the building could be con- trolled in granting the variance and Chairman Bailey replied that if the variance is granted, it must be built according to the plans submitted. Mr. Scoggins asked if the boat house complied with the building code as far as height, etc. and ~. Keehr replied: yes. M~. Healy asked what the distance would be between the main house mud the boat house and ~. Folsom informed him it would be 28 ft. M~. Healy questioned the distance allowed without a variance and Mr. Folsom informed?~him it would be 3 ft., plus he would have to dig a canal to the lake. M~. Healy made a motion that the variance be granted, seconded by Mr. Rutter. No discussion. As requested, ~s. 'Kruse took a roll call vote on the motion as follows: Mr. Rutter - .~ye Mrs. Bond - Aye Mr. Ward - Aye Mr. Scoggins - Aye Mr. Zimmerman - Aye Mr. Healy - ~ye ~. Bailey - Aye Motion carried 7-0. Parcel #3 - A)[.~art of Lot 3, Sam Brown Jr.'S~S/D, described as: Beginning at the intersection of the S. line of said Lot 3, with the E'ly right of way line of S.R. #5 (U.S. #1) as said right of ws~y as shown on plat recorded in Road Plat Book 3, pages 11 thru 17, public records of Palm Beach County, Fl; MINUTES BO~D OF ADJUST~NT P~&GE F~-E JU~E 13, 1977 thence S. 89° 15' 00" East (bearings mentioned herein refer to said Road Plat Book 3) along the S. lineoOf said Lot 3, a distsauce of 365.65 ft.; thenc~ N. 0 13' 00" East a distance of 128.14 ft.; thence N. 89v 47' 00" West a distance of 346.14 ft., more ~.or less, to the E'ly right of way line of said S.R. #5; thence S. 08° 12' 0~' West along said E'ly right of way line a distance of 125.97 ft. more or less', to the point of beginning, subject to easements and rights of way of Record and easement over the N. 10 ft. for ingress and egress, Section 15, ~5 S,.43 E. Recorded in Plat Book 1, Page 81 Palm Beach County Records Request - Relief from 20 ft. rear setback requirement to 6 ft. 2 in. rear setbacks to build new duplex in line with existing duplex. Address - 600 Lake Side Harbor ~&pplicant - Warren George ~. Healy read the above application. Chairman Bailey announed he would like to abstain in this matter because he is a pro- perty owner in this area. Chairman Bailey asked if anyone was present representing Mm. Warren George ~ud ~m. Clarence Cl~k appeared before the Board. ~. Healy confirmed that a letter had been received appointing Mm. Clark as Mr. George's representative. Ym. Rutter noted that the hardship stated was to build in line with the existing duplex. Mr. Zimmerman asked how much walkway was planned between the existing duplex and the one proposed and Mr. Clark informed him that they planned to connect the new duplex onto the one existing. M~. Ward ask.ed if all the property belonged to one~an and ~. Clark replied: yes and added that the utility buildings would come done. ~. Ward ~/ questioned the property to the south and M~. Clark informed him it was a comk~ercial lot owned by the adjoining Texaco Station. Mr. Rutter asked if there would be ample room for parking and Mr. Cl~k replied: yes. Fm. Healy questioned the age of the existing duplex and Mr. Clark informed him it was the last one built and he has lived across~ ~the street for 12 years and it was existing when he moved there. Chairman Bailey asked if anyone in the audience was in favor of this variance and Mr. Henry Parpard, Lake Side Harbor Drive, appeared before the Board m~d informed them he was the manager of these apartments and is in agreement. Chairman Bailey asked if any communications had been received. Mr. Healy read a petition signed by ~@. & F~rs. J. C. Haunab, Inlet Harbor Club; Mr. & M~s. Glenn F. Guthrie, 626 Lakeside Harbor; Beverley A. Warnke, 617 Lakeside Harbor; and ~@. & Mrs. Charles H. Sipple, 625 Lakeside Harbor; requesting this MINUTES BOARD OF ADJUST~/~NT P~.GE $ IX JUNE 13, 1977 variance to be denied. He then advised that a letter had been received from Lorraine & Glenn Guthrie requesti~their names to be withdrawn from the petition. He then read a letter from John J. Barici, Jr.~ 631 Las Palmas Park, re- questing the variance to be rejected in that it will be detri- mental to the property owners with a structure being close to the property line invading their privacy and also no hardship Would be suffered with this variance being refused, He then read a letter from Charles H. Sipple, 625 Lakeside Harbor, requesting the variance to be denied as none of the existing buildings on this property conforms to the present code and adding another building in non-conformity to the code does not strengthen the City's position. The City has gone to a great amount of thoughtful and conscious planning and costly expense to arrive at an equitable solution to a growing City's prohle~ and these should be adhered to with only granting a variance in a few extreme hardshipsituations and no hardship exists in this case. He then read a letter from Bertha Wykoff, 6318 Las Palmas W~, opposing this variance. ~. Ward asked if these people lived in the R-1AA area and they consulted the zoning map and Chairman Bailey pointed out that everything east of this property was~i~in R-1AA. M~. Rutter questioned the difference in the setbacks since it was an addition to the other duplex and M~. Keehr informed him that the new setbacks must be adhered te. Mr. Zimmerman asked if the property was non-conforming as it is now and ~. Keehr replied that the one building is. Chairman Bailey asked if anyone in the audience desired to speak in opposition to this variance and Mr.. john Jameson, 649 Las Palmas, appeared before the Board. He referred to ~. Par~ard's statement and stated that he is an employee and requested the Board to keep this in mind. He then asked if Mr. Clark was the con2ractor for construction and Chairm~sa~ Bailey informed him that according to the information sub- mitted to the Board, Mr. Clark is representing M~. George. Mr. Healy read the letter received from Mr. George giving M~. Clark the authorization~to act for him for the construc- tion of a duplex. Mr. Ward added that there was nothing to stop a builder from representing an owner. Mr. Jameson stated that he lives within 400 ft. of the appli- cant,s property and is against the approval of this variance. The applicant's property is non-conforming in its entirety. It is an example of antiquated permissiveness from yester- year. All construction should be required to meet the pre- sent day City requirements so the City will not be down- graded.' MINUTES BOARD OF ADJUS!T~NT PAGE i~iE~EN JUNE 13, 1977 Mr. Healy referred to property extending out from the build- ing approximately 55 ft. and Mr. Clark agreed. [~. Healy asked if there would be ample room for parking and M~. Clark replied: yes. M~. Healy remarked that there was no definite hardship. He pointed out that if the building was set in the proper setback of 20 ft., it would not create any hardship as far as parking or driveway and M~. Clark referred to the prevailing winds coming from the east and stated they would be blocked if it sets out. Also, they do have enough parking now. He added that approximately 40 letters were sent to residents and if somebody does not reply, it is like a vote for it and Chairman Bailey replied that he could make his assumptions. Mr. Ward made a motion to grant the variance, seconded by Mr. Rutter. Under discussion, M~. Zimmerman asked if the build- ing could be built and meet 2he setbacks if~.~the variance was not gra:ated~and Mr. Keehr replied: yes, there is enough room. Mr. Zimmerman clarified that there was no hardship then. Mr. Ward asked if there was enough clearance to have a set- back between the buildings and ~. Keehr informed him that 20 ft. would be required between the duplexes. ~. Zimmerman clarified that there would still be room to build it and M~. Keehr told about laying it out and it could be done. Mrs. Bond referred to the 115 ft. going to the east and asked if it belonged to this complex as well and M~. Keehr replied: yes. M~s. Bond pointed out that this. could be built on as well and M~. Clark informed her this was zoned residential. The members c:onsulted the zoning map and studied the zoning in this area. Mr. Healy referred to the property being cut up and asked if the duplex could be built with enough park- ing, driveway, etc., if the variance was denied and Mm~. Clark replied that he did not know if there would be enough room s~d stated that they were just trying:~to straighten it out. Mr. Zimmerman stated that there was another alternative and if there was not enough room for a duplex, a single family house could be built. ~.~. Keehr informed him that !~. Clark had presented a drawing and it could be built to.~meet the re- quirements, setbacks, clearance of other building, etc. M~. Clark stated that the owner objects to cutting up the property more than he has to and would like to line it up with the other duplex to beautify the area. Mr. Rutter remark.ed that it seemed more advantageous to have them matching rather than one front and one back. ~s. Bond stated that actually it would be a fourplex instead of a duplex. Mr. Scoggins asked if a fourplex would comply with C-3 zoning and ~@. Keehr re- plied: yes. He added that if the building was put straight forward 14 ft., it would fit the site. Mr. Zin~merman re- marked that it may be more desirable to have them this way rather than in a stra&ght line. He also pointed out that there is a window on the east side of the existing duplex which would have to be shut off if the new one is lined up to it; but if moved forward, possibly it could remain. He doesn,t believe it would destroy the appearance with having it set forward. ~.~. Clark added that they were also trying not to t~e out many trees in that area. MI5~TES BOARD OF ADJUSTMENT PAGE EIGHT JU~E 13, 1977 As requested, ~s. Kruse then took a roll call vote on the motion as follows: ~. Rutter - Aye Mrs. Bond - No Mr. Ward - Aye Mr. Scoggins - Aye ~. Zimmerman - No Mr. Hea!y - NO Motion tied 3-3. Chairman Bailey announced the variance has been denied and stated that a vote of four was required to grant a v~iance. He believes there is no stipulation as to the number of votes needed to be denied. Mr. Ward stated that he believed it takes four to carry and four to deny. Chairman Bailey declamed a recess to.check the ordinance. Chairman Bailey called the meeting back to order at 8:15 P. M. and announced he thought they had an explanation for the 3-3 vote. Mr. Healy read Paragraph C, Page 40, of the Official Zoning Regulations of the City of Boynton Beach. Mr. Rutter stated that since it takes four votes, three votes do not enter into it and he reads it as nothing having been granted or denied. Chairman Bailey replied that nothing has been granted because there were not four votes. He pointed out that the ordinance states in favor of the applicant and not in denial. Mr. Healy stated that he believes the fact the motion was made to approve, it failed with only three votes. Chairman Bailey announced that in his opinion, this variance has been denied and Mrs. Bond agreed in that a vote of four is~ needed. Mr. Ward stated he believed four votes were neces- sary to deny it or four to approve it. It requires four votes either way. It could mean if his motion was to deny it, it would need four votes. Chairman Bailey pointed out that the ordinance states in favor of the applicant and a motion to deny would not be in favor of the applicant. It is his opi- nion that this variance has been denied because there were not four votes in favor of the applicant, not in favor of the motion. He thinks it is definitely plain. He then announced that as Chairman, he rules that this variance has been denied. Mr. Ward made a motion that the Chairman contact the City Attorney and get a definite decision on this and whether it takes four votes to deny ~ud approve. Mr. Rutter seconded the motion. Motion carried 7-0. Chairman Bailey asked Mrs. Kruse to send a note to the City Attorney requesting a written explanation about this question. Mr. Scoggins asked about the status of M~~. George's request and Chairman Bailey replied that it is his opinion that the variance has been denied according to the Official Zoning Regulations of the City of Boynton Beach. MINUTES BOARD 0F ADJUSTMENT P~GE NINE JUNE 13, 1977 Parcel #4 - Lots I thru 6 inc. & E. 15.35 ft. of Lot 7, Casa Loma Recorded in Plat Book 11, Page 3 Palm Beach County Records Request - Relief from 53 required parking spaces to 11 par~king spaces, no land being available for the additional parking. Address - 728 Casa Loma Blvd. Applicant - George W. Culver ~. Healy read the above appliCation and Chairman Bailey showed the site plan to the members. Mr. George W. Culver appeared before the Board and advised that he was told now that he had to ask for this variance even though he thought it was previously appr~ed when he appeared for a setback variance. He just wants to replace the old building with a new building. It is not going to create any new business. There is no parking problem now. ~. Healy questioned what he was constructing and ~. Culver replied that he was constructing a new building as the present building is on a floating slab which has been settling through the years and he wants to put in a new building on pilings. Mr. Healy asked if it would be the same size and M~. Culver replied: yes. Mr. Healy referred to the patio ~ud ~. Culver explained that the patio was to the east and then there is the building on pilings and this would be in-between. He is working from the west to the east to replace the buildings which are on a floating slab. He plans to put in a 25 x 33 ft. storage building and leave the old building in there. Mr. Healy stated that no plans~of the new building were submitted and they only h~e the site plan of the old building with the converted patio and ~. Culver replied that he was just replacing the existing building. M~. Culver then explained the plans fur- ther. Mr. Ward asked how far along he was with construction and ~. Culver replied that he paid for the permits last Friday. Mr. Keehr agreed but clarified that these permits were for the first phase, but the general contractor has not signed the print as yet. Mr. Ward referred to having a lot of dis- cussion about the parking when the application for setbacks was granted in December, 1976. Mrs. Bond clarified that the variance was requested for parking and actually the Board was not interested in the building. ~. Ward told about having the same argument when the application for the setback was considered and they were told they were only to consider the building, but at that time, they should have made a decision regard- ing the parking. Chairman Bailey asked if M~. Culver had paid another $50 fee for this parking application and Mm. MINUTES BOARD OF ADJUSTmeNT PAGE TEN JU~ 13, 1977 Culver replied: yes, Chairman Bailey referred to a notation in the Minutes of December 13, 1976, where the Chairman ad- vised that an additional fee was not necessary to reappear before the Board for parking. ~,~s. Bond asked how he expected to provide parking with ex- panding the business and Mr. Culver replied that he was not expanding the business, just remodeling. Mrs. Bond asked if parking was a problem and Mr. Culver replied: no. ~.~s. Bond asked why this application had to come before this Board and Mr. Keehr informed her that the parking the restaurant has now is primarily on a private City street. There are only 13 spaces available on Mr. Culver's land and 2 are being used for storage, The customers are primarily parking on the City street in front of the restaurant. However, it is a dead end street with no thru traffic and there are no Other businesses in this immediate area. Mr. Scoggins questioned just what bearing the parking had on this since the business is opera- ting and Mr. Keehr replied that he did not have the authority to close down the business. Mr. Scoggins stated that by deny- ing this application, it would be denying the right to remodel the restaurant and Mr. Keehr replied: no, permission was granted to remodel the restaurant on December t3, 1976. Mr. Healy asked about the parking and F~. Keehr informed him that parking did not come into the original issue and the variance was grm~ted to rebuild the building, ¥~. Ward asked if the present parking was on City property and Mr. Keehr replied: yes. M~. Ward asked if this variance was granted for parking, would it be granting a variance for parking on a City street since there zs no other space to park and M~. Keehr replied that they could not grant a variance to park on a City street, but would be granting a variance for the 53 required to the 11 available. Mr.. Scoggins asked how the business would be affected if the variance was denied and ~. Culver replied that the business can go on, but the building is an eyesore. Chairman Bailey asked if this meant he could not remodel the building unless he gets~the variance for parking and ~. Culver replied that is what he has been told by the Building Department. Chairman Bailey clarified that he had a variance for the building and Mr. Culver agreed. ~o Ward clarified that an error was made previously in not considering the parking, but several members had~objected at that time and limited the variance to the building. Chairman Bailey clarified that the first request was in September requesting relief from the 25 ft. setback to re- model and add an extension and there was nothing noted about parking and Mr. Ward agreed, but added that parking should have been noted as it was obvious then by the plans that parking was not available. MINUTES BOARD OF ADJUSTmeNT PAGE ELEVEN JU~E 13, 1977 Chairman Bailey referred to a permit being denied and ques- tioned just why a variance was required for parking ~d Mr. Culver explained that the City Planner advised him that it would be turned down if he did not get a variance on parking. Mr. Annunziato said he must come back to this Board for park- ing. Mm. Zimmerman stated he thought this variance was re- quested to clarify and set everything straight, so there is no difficulty in the future. The parking should have been taken care of in the other variance, but it wasn't and is now coming back to get it cleared away. ~. Rutter agreed it was evidently to clear up the legal points. Also, as far as the parking previously, it was a minor detail and the Chairman said Mr. Culver would not have to come back and pay a flee.~ Mr. Zimmerman stated he believes this should have been granted before and perhaps the applicant should be re- funded the $50. He believes it was an oversight of the previous decision, b~. $coggins stated that irregardless of our decision tonight, we ca~not reverse the decision of the previous Board. He notes in the minutes that the variance was granted and not pending further discussion of the park- ing. ~,~. Healy stated that if this variance is denied, the permit will also be denied as the application states that the permit was denied until we resolve the parking. M~~. Keehr informed them that the plans are being processed in the Building De- partment and go through the Planning Department first. He believes that Mr. Annunziato looked at the site and had~to recommend it for denial because it does not meet the City parking ordinance. Mr. Healy asked if the permit was granted and b~. Keehr informed him that it was for one section for which he has ample parking spaces with two spaces. ~. Healy stated that this was a different part now and ~,~. Keehr in- formed him it was the same building, but a portion. Mrs. Bond referred to ~. Culver having two businesses, a restaurant and marina and asked if the 11 parking spaces were for both businesses and ~Mr. Culver replied that there were ~3 altogether on the property. M~s. Bond asked about the other businesses in the area and Mr. Culver replied that none have had any parking problem~.. Chairman Bailey asked if anyone desired to speak in favor of this va~_ance and received no response. Chairman Bailey asked if any communications had been re- ceived. Mr. Healy read a note from William G. Lenzi, 760 E. Ocean Ave., objecting to this variance. Chairman Bailey then asked if anyone present desired to spe~a~ in opposition to this variance and the following appeared be- fore the Board. MINUTES BOAP~D OF ADJUSTmeNT PAGE ~¥ELVE JUNE 13, t977 M~. Thomas Purdo, Attorney representing M~. Malloy owner of Smokey's Restaurant, appeared before the Board. He stated that he was not sure he understood the history~of this appli- cation, but believes the reason Mr. Culver is here is to ask for a variance on parking since it is a non-conforming use. In order to reconstruct the building, ~. Culver must get a variance for every item. The first petition asked to build to the street line. The fact parking was not included is beyond him. There is also the question of a 20 ft. setback being required in the rear.~ This setback has not been dealt with by this Board. If he has to come up to code, he assumes there must be a 20 ft. setback in the rear. As far as ~. Culver having to appear before this Board so many times accord- ing to the minutes, it was his fault and not the Board's. He referred to the ownership and survey being questioned originally ~ad finally there was an opinion from Mr. Reed, the City Attorney, that if Mr. Culver had the permission from the other trustees, he could file the petition. He does not think the problem lies with the Board in that they have not acted properly. Many problems have been because of Mr. Culver's own neglect. First he asked for the front setback and nothing about parking and probably the next time, it wi~2l be the rear setback. In regards to the property and the reason he needs a parking variance is because there is a non- conforming use. If he is going to rebuild, he must bring it up to code the same as everyone else. In t964 to 1972, ~. Malloy rented the property and used it as a restaurant. It was not used as a restaurant from 1972 to 1975. In 1975, it was used as a restaurant ~ud he does not lauow how this was allowed since it was a non-conforming use. He opened a res- taurant and did not obtain a variance for setbacks, parking, fire codes, etc. In 1970, he put in a ticket window and lost some parking. In 1976, he put in a grass roof extension and lost parking. He decreased the parking. There is a general understanding of the law that you cannot reconstruct a non- conforming use. There is no question about being able to do this. Mr. Purdo continued that the reasons for parking and setback ordinances are for fire access, tf this variance is granted, the code may as well be thrown out. it will be doing exactly oDD0site of what the code was passed for. The Two Georges business requires 17 parking spaces and there are only 13 or 11 which are on the City street. The boat holds 50 people. The marina also requires parking. Then there are 53 spaces required for a restaurant with 150 seating capacity. He explained how more than 100 cars could be parked on Casa Loma Blvd. with no way for fire trucks to get through.. He referred to a boat fire~ such as last year, and also the possibility of a restaurant fire. With increasing the seat- ing capacity of the restaurant, parking will be increased. It is existing now and it is non-conforming and he wants to build a new restaurant without conforming. He wants a new MINUTES BOARD OF ADJUST~NT PAGE THIRTEEN JU~E 13, 1977 building with no front or rear setbacks and no parking. The gain is monetary. This is not the type of hardship which is supposed to be considered by this Board. it is not ai~-~.hard- ship through one's own acts he has eliminated parking like Mr. Culver has. In an attempt to reconstruct, he wants to make more money. It is a self-imposed hardship. M~. Purdo then stated that it was his position that Mr. Culver does not have the standing to bring this petition with being a trustee under the estate. He gave examples o£ how things woUld not be allowed without the court's per- mission. The trustee,s obligation is to the co~t. He does not thi~ Mr. Culver has a legal standing here and does not think he can act on this property without permission from the court itself.~ The trustees are to maintain the b. usiness status quo until the court decides who owns it. Mr. Purdo then referred to ~. Culver s~ing he wanted to have it changed so he can operate efficiently, but he is still operating. To reconstruct a whole building in ~io- lation of all the zoning codes, he believes is not a prece- dent the Board wants to set. The vari~uce ~. Culver was granted previously expires today and the minutes were clear stating that the permit must be pulled within six months. The permits have not been pulled. Withouta re-application, he does not think the variance is good with regards to build- ing to the street line. He believes it was a prerequisite of this Board placed on Dece~ber 13, 1976, and he does not think ~. Culver has complied. M~. Purdo again referred to the only parking being on the City street which will be loaded with cars and he thinks there will be real.~!danger to people using the facilities. The fire trucks cannot get in there to do anything. He then thanked the members for their attention and added if there were any questions, he would be happy to try to sms- wet them. He stated that in his opinion, this is a situa- tion where the-applicant cannot build without this variance and he must build by the code or get a variance for every decision. Mr. Healy questioned the date when the previous variance was given and Mr. Purdo informed him it was December !3, 1976 with a six month stipulation. Chairman Bailey clari- fied that the minutes stated that the permit must be se- cured within six months of that date. ~. Purdo remarked that "secure" could possibly mean anything. M~s. Janet Hall, Sea Mist Marina, appeared before the Board and stated that if these 55 ~thical spaces are allowed, the cars will be real and there will be no place for them to pe~k except on her property. It has been MINUTES BO~RD OF ADJUSTMENT PAGE FOURTEEN JUNE 13, 1977 stated by Mr. Culver that he is only going to remodel the existing building; however in the Building Department there are plans for a 25 x 33 ft. fish market plus the charter boat, fishing boats, drift boat and the restaurant. She then questioned the present seating capacity of the existing restaurant and ~. Annunziato replied that he did not know, but assumed it was 150 people. ~s. Hall continued that when M~. Malloy left, it was 22 and she believes it is 50 now. With this application, she believes he is trying to get it through to t50 seating capacity. Mr. Paul King, Coastal Towers, appeared before the Board and advised that they were presently having a problem with people using their parking area. When the apartments are sold, there will not be available parking. The people are parking there from the marina. Also, he is amazed at what he has heard here tonight. He referred to ~. Culver not having a set of plans, not knowing how many seats are in the restau- rant, but a building permit was issued to allow him to get a foot in the door. He cannot understand why there is a Zoning Board and Board of Adjustment i~ they don't tow the line. This is a non-conforming operation and he is only trying to make it bigger than before. Where he camefrom, you could use a non-conforming property as it was. He does not understand how this would be allowed. He does not under- stand why Mr. Culver was given a permit without plans or parking considered. He does not see any way a variance could be justified when over 50 parking spaces are needed and there are none. If there are any on the property, it has not been brought out. There is only parking on the City street. He definitely recommends that this petition be turned down, the building permit cancelled and the whole thing stopped. ~"~. B;s.~-t~iEeehr mnnounced that he would like to clarify a few things. In r~ference to the rear setback, there is 90 ft. in the rear as the lots go out into the water mud the water is considered the setback. Regarding the use of the property, it is zoned C-4 and a restaurant is allowed. The only thing non-conforming is the structure of the building and the way it sits on the lot and it is no longer non, conforming because a variance has been granted. In regards to the 150 seating capacity, he does not know what it is presently but does not think it is pertinent. In reference to fire protection, ~. Culver will be required to bring a 6" water main from Ocemu Avenue to his property, for which he has posted bond. The building he has proposed to build and submitted plans for is a storage building for storing fresh fish, etc. and he has the parking for that. In all honesty, the permit was com- pleted last week. It was ready to be picked up last Friday and ~. Culver presented the Building Department with a check to pay for the permit, but the contractor has not come in to sign the permit as yet. The contractor,s signature is required before construction can be started. ~fI t~JTES BOARD OF 'ADJUST~NT PAGE FIFTEEN JUNE 13, 1977 Mr. Ward asked if the permit would be validated without the ~ ntractor's signature and Mr. Keehr replied: no, it csmnot be. Mr. He&ly referred to the application for variance being made out on May 13 and at that time the permit was denied and questioned how a permit could be issued now and Mr. Keehr replied that the permit was not denied. Mr. Healy questioned the purpose of the application and Mr. Keehr informed him it was for parking ~ud clarified that the permit issued was for the storage building which has the required parking, but this is for parking at the restau- rant. ~. Ward asked if the storage building was included in the original variance to reconstruct what was there and M~. Keehr replied that it was part of the original variance. Mr. Purdo stated that apparently he has misunderstood a lot and that his impression was that the variance was given to the street line for the restaurant and ?~. Ward replied that he believed this was correct. Mr. Purdo referred to now talking about a permit for a fish house and he thought ~. Culver had to get a permit to build the restauraut within six months, so apparently there is something uncle~. Mr. Keehr referred to the previous~minutes ~d read that Thompson asked about considering parking and Mr. Howell re- plied that it included parking and Chairman Aranow disagreed. The restaurant is a non-conforming building and as it is today, there is storage, kitchen, seating arrangements inside and outside. Mr. Purdo clarified that the fish house is not separate and is part of the restaurant and t~. Keehr agreed it was right now. M~. Purdo asked if it was being used as a fish house now and ~. Keehr replied that he did not know, but the new building is for storage and he showed the plans. He added that the variance was given for the storage build- ing and he has the required two parking spaces. Mr. Purdo clarified that the permit is to build the storage building and not the restaurant and the parking variance must be given to build the restaurant and Mr. Keehr agreed this was ~orrect and added that he was certain the Planning & Zoning Board would not approve it as it is. ~. Purdo stated that a variance was not granted to build a restaurant, but jus:t to build to the street line and Chairman Bailey clarified that the request was for relief from 25 ft. front setback to remodel and add gu extension. He added that previously no action was taken on the parking because the Board did not know what he wanted to do with the parking. ~. ~rdo stated that a permit has not been pulled within six months for construction on the restaurant and Mr. Keehr agreed. Mr. Purdo statedtthat ~. Culver has not made application as stipulated in December and ~. Keehr replied that ~. Culver has made application and the plans have been approved, but the permit has not been picked up. Mr. Purdo asked when the Board differentiated between the storage building and restaurant and Chairman Bailey replied that at the previous MANUTzS BOARD OF ADJUSTmeNT PAGE SIXTEEN JUNE 13, 1977 meeting, the entire project was discussed and a motion was made for the construction to be completed over a time period due to Mr. Culver's financial matters. It was stipulated that a permit for a portion or all should be secured within s~x months and all to be completed within 24 months. Mr. ~rdo stated that nowhere in the minutes did it make it evi- dent there were two buildings and Chairman Bailey replied that there were two phases. ~¢r. Keehr explained how it was actually all one building. M~.~ ~rdo then asked what the seating for the restaurant is now, what is it according to the permit and what is it from now on? ~. Culver informed him that the present license is for 150 seats by the City of Boynton Beach. He clarified that it is a restaurant being replaced with store rooms, kitchen, bathrooms, etc. He then referred to the requirement of a 6" water main and fire hydrant and advised that the contractor gave a price~of $10,200 and he posted this with the City. He was awars the contractor did not pull the permit ~ud talked to M~. Keehr about this and was assured that since the check was submitted, there would be no technicality. ~¢r. Rutter asked if he had taken every precaution with refer- ence to fire trucks having access and there would be no hinder- ance and M~. Culver replied: no. He added that the restaursmt will not be enlarged and everyone inopoosi%io~ is the competi- tors. ~ Mrs. Hall stated that she did receive a letter and also has a statement from the person operating the restaurant that the license was for 50 seats. If there is a difference between this amount, she thinks they should see the plans so they know exactly what is being requested. Chairman Bailey clarified that the petition asks for a vari- ance in reduction of the required parking spaces~from 53 to 11. He then asked if there was a plan showing the parking? The building has had a variance issued on it. It is his opinion that the building pls~s do not have to be here in order to hear this petition. This is solely, a request for a variance in parking and not the building itself. By granting or denying the variance~ it is a good idea to know what you are granting it for. It is interesting to note that the. building as it is is for 50 seats and ~¢r. Culver states it is 150 at present and he thinks this should be cleared up. If the Bo~rd sees fit, they may want to k~ow how it is licensed now. _Mrs. Hall stated that if the request is to triple the capacity of this building, she thinks they should see the plans. M~. Scoggins referred to the statement she mentioned from an employee of the restaurant and ~s. Hall clarified that the person who has been operating the restau- rant states the license s~vs 50 is the capacity. Mr. Culver MINUTES BOARD OF ADJUSTmeNT PAGE SEVENT~N JUL~ 13, 1977 informed the Board that the person operating the restaurant actually is a squatter and is his ex-wife. She does not have the license in her possession because he paid for it and has it in his possession. He paid the fee for a 150 seat restaurant. He did not give her the license because he has been trying to get her out because she has not been paying the rent. Mrs. Bond asked prior to this new license, what was the capacity at that time and ~. Culver replied that it was 50. ~,~s. Bond asked if he increased it and Culver replied that he thinks his wife requested 150 and it was sent this year at the higher fee for 150 seats. Sooggins asked if this could be verified and ~,~. Keehr re- plied that he could not verify it .a~d had no reason not to believe ~. Culver. He added that the seating is derived by the amount of space and when this license was granted, there must have been sufficient seating to grant it. Ward asked if the license for the 50 seating capacity was in the name of his ex-wife and I'~. Culver replied that it was in his name. ?.~. Ward asked if it was posted in the place of business and Mr. Culver replied: no. ~@. Ward asked .if it was operating now and ?k~, Culver replied that it was in his name. ~. Ward referred to the establishment operating without a posted license and ?h~. Culver replied that the license was posted on the property. ~. Purdo asked if someone came out from the City to see if they could seat 150 and Mr. Culver replied that he did not kmow as he has not been in the restaurant for two years. Mx. Purdo asked if the State authorities authorized the 150 seating capacity and Mr. Culver replied that the Dept. of Health Hotel and Restaurant Commission agreed it could be issued for 150 seats. Mr. Rutter announced 2hat from what he has heard, what he feels and how he judges this, he makes a motion that the variance be granted, seconded by Mr. Zimmermano No discus- sion. As requested, Mrs. Kruse took a roll call vote on the motion as follows: Mx. Rutter - Aye M~s. Bond - Aye Mr. Ward - No ~. Scoggins - Aye ~. Zimmerman - Aye Mr. Healy - No l~. Bailey - Aye Motion carried 5-2. Ad_~ournmen_~t. Mr. Healy mov~m to adjourn, seconded by Mr. Rutter. Motion carried 7-0 and the meeting was properly adjourned at 9:35 P.M. Recording Secretary (Three Tapes) MEMORANDUM TO: FROM: ~. Gene Moore City Attorney ~. Derle B. Bailey Chairman, Bos~d of Adjustment June 14, 1977 At the Board of Adjustment meeting on June 13, 1977, a motion to approve a variance received a vote of 3-3. It was ~g opinion that the variance was denied as according to Paragraph C, Page 40 of the Official Zoning Regulations of the City of Boynton Beach, four votes are required in favor of the applicant to grant a variance. However, some of the members of the Board disagreed and believe a vote of four is required to either deny or approve a variance or motion. We would appreciate your written opinion in regards to this.