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MInutes 08-09-76~.I~UTES OF THE BOARD OF A~.JUST~'~IT ?2[,mTI~,G HE~D AT CITY __ALL, BOYNTON BEACH~ ~ , FLORIDA, MONDAY, AUGUST 9, ~976 AT 7:00 ?. M. Joseph Aranow, Chairman Derle B. Bailey, Vice Chairman Alvin C. Boeltz George Ampot Vernon Thompson, Jr. Albert Caravetta, .Alternate Len~Schmidt, Bldg. Dept. Rep. Robert Gordon, Secretary Foy Ward (Excused) Walter Rutter, Alternate (Excused) (Excused) Chairman Aranow called the meeting to order at 7:00 ~. M. and introduced the members of the Board, the Building Department representative~ and the Recording Secretary. He added that Mr..Ampoi would be the acting Secretary for this meeting. Corresoondence Mr. Ampol read a communication dated July 29, 1976~ from ~s.. Padgett stating that in view of the fact that a quorum was not present at the hearing before the Board of Adjustment on July 12, 1976, no action was taken. The Robert B. Nutter ap- plication has been re-advertised for August 9, 1976. The City of Boynton Beach has withdrawn the ao~ol~cstion in re- spect ~o the wa~er mmstr~butmon bum!dmng wnmch was heard on July 12. Chairman Aranow' ascertained that each member of the Board had received copies of the correspondenc~e from Mr. Albert Rodriguez anda~4r. & ~s. E. F. Hagstrom in regards to the~_autter a-opli- cation. ~ · Old Business Arthur H. Nelson Application Chairman Aranow referred to the Nelson application being tabled to give ~.ir. Nelson an opportunity to present a proper survey. This was heard at the last meeting, but since they did not have a quorum~ they will take it up tonight. A letter was written to ~. Nelson giving him the opportunity to presen~t a survey and if he did not appear at the last meeting, the application would be dismissed. Under the cir- cumstaz~ces, if there is no objection, he entertains a motion to 8eny the variance for ~. Nelson. ~.~. Ampoi stated that due to the fact M~. Nelson did not appear as requested on MINUTES BOARD OF TWO AUGUST 9, 1976 two occasions, he moves to deny the application, t~[r. Boeltz seconded the motion. No discussion. As requested, Mms. Kruse took a roll call vote as follows: M~. Boeltz - Yes Mr. Bailey - Yes Mr. ~' ~ - -, nompson Yes ~'~. Ampo! - Yes Mr. Caravetta- Yes M~. Aranow - Yes Motion carried 6-0. New Business ~gbert B. Nutter Ao~olication Lots 73, 74 and 74A, Arden Park Recorded in Plat Book 2, Page 96 Palm Beach County Records Address - 234 N. E. 6th Avenue Request - To allow light cabinet and furniture manufacturing i~o~osed~ Improvement - To construct building accor~no~' ~ to Plans on file in the Building Dep~tment, which will conform to current setback regula- tions, for the above use. Mm. Ampol read. ~ne above application and advised that it was denied by the Building Department because the property is not zoned for manufacturing. The owner was informed per the statement that the use would be allowed before purchasing the property. ~. Ampol then read a note dated August 9, 1976, to ~. Howell advising that ~. ~chael Smodish, Assistant City Attorney, had called stating that he reviewed the authority of the Board of Adjustment in regards to Mr. Nutter's re- quest and said Board does have the jurisdiction over this request. Chairman Aranow referred to the letter from Mm. Frank Kohl, City Mmnager, read at the previous meeting and requested Ampo! to read this again since they did not have a quorum present. ~. Ampot read the letter dated June 18, 1976, addressed to Chairman Aranow in reference to Architectural Craftsman, Inc. advising that he met with M~. Nutter, Attor- ney Donald Kohl (no relation), Mr. Schmidt and M~c. Howell in his office. M~. Nutter informed them~that prior to purchas- ing the lots in the C-4 zone for his present business, he questioned Mr. Bushnell as to whether these lots were zoned properly for light manufacturing of furniture and cabinets. MI~JTES BOARD OF ~TTT~I~m ?AGE T~EE u u o_, 9, 1976 When !~. Nutter was assured these were properly zoned, he then purchased the lots. At the completion of closing, he sub- mitted the plans to the Building Department and was informed the lots did not qualify flor this type of operation. He then obtained the services o£ an attorney. D~ing the meeting in his office, he called ?~. Bushnell at home, since he is no longer employed by the City of Boynton Beach, ~d ~k~. Bushnell did recall conversations with Mr. Nutter. He stated he was aware of stating the lots were in a C-~ zone. ~. Bushnell did, in fact, inform M~. Nutter he could man~£acture furni- ture and cabinets in this C-~ zone. .Inasmuch as M~. Buslmnell is no longer with the City, he did not wsmt to p~sue the matter further with him. This is to advise the Board that Mr. Bushnell, as an employee of the City, gave erroneous informa- tion to !~. Nuttero Mr. Nutter did spend $~0~000 £or the property and is encountering hardships in proceeding with his business. Further, there are manufacturing firms in this City which ha~e been grand£athered. Chairman .Aranow then informed ~. Donald Ko~i that unfortu- nately what was stated at the last meeting has been expunged since they did not have a quorum. Mr. Donald P. Kohl stated his name and his address as ~00~ S. Congress Avenue, Palm Springs. He informed the Board he was representing Robert B. Nutter and Darlene H. Nutter and Architectural CraftSman, Inc.~ Architectural Cra£tsman, Inc. is a light cabinet mad furniture making company. Architec- tura.1 Craftsman, inc. feel they are craftsmen and not a man- u£acturing concern. He stated he would brie£1y run through the sequence of events. First to show the Building Department had. some £amiiiarity with ~. Nutter and his business~ on April 9 o£ this year, ~. Howell and !~. Schmidt came by his present shop on S. E. 6th Avenue in reference to a paint complaint. This fact is significant to show they should have kno~mwhat type o£ business it was. Later that month~ on April 2~, ~. Nutter~ having ffound three lots which appealed to him and hez~ing i.~_own his lease ~as running out at the end of September and the rent was going to increase, decided to inquire whether these lots were suitable. On April 2~, he talked to a female on the phone in the Building Department and described the lots and his 'business. She called him back and stated she checked and the lots were suitable. Sometime during the week of ~y 3, F~. Nutter went into the Building Department with a set of preliminary plans and went over them with ~. Bushnell. Originally, he wac. ted to build on two lots and save the vh=~d. The plansiindicated the size of the asked M~. Bushnell if the zoning was right. M~. Bushnell MIN~JTES BOlteD OF ADJUST!~NT PAGE ~0UR AUGUST 9, ]9,6 checked and. stated the zoning was right, but the building was too big 'for just the two lots. He suggested centering on the three lots or reducing the size of the building. ~. Nutter did both and included the third lot and reduced the size o£ the building. After both conversations, he went to a profes- sional architect and had plans drawn. On May 2], i~. Nutter entered into a contract to purchase these lots. If he had known on May 2~ that the zoning was not right~ he could have not entered the contract or made a conditional contract. On May ~, he talked to Mr. Schmidt regarding parking require- ments, landscaping, etc. He did not ask ~,. Schmidt about thezzoning, but Mr, Schmidt did not mention it was not right. Mr. Schmidt was on his premises previously and should have known what type of business he was in. He purchased the land and closed the deal on May a8. On M~s~~ 28, he brought the final plans into the Building Department. On June ~, he went ba~k to the Building Department and found out the plans had not even been circulated. On June ~, theF were circulated and actually approved by three or four departments. ~On June ~0, he was notified by M~. Schmidt that the land in question was C-~ and his business required M-] zoning. The zoning was not proper and he could not occupy the building. On June the meeting took place with ~..Frank Kohl~ City Manager° As stated in his le~t~, he cai_ea. M~. Bushnell to verify the information. Mr. Bushnell told him he had told ~. Nutter the zoning was right. ~. Frank Kohl suggested that they contact this Board. The City waived the normal $50 fee. He appeared last month when a quorum was not present and there was discussion whether the Board could grant the v,mriance. He had a discussion with ~h~. Smodish today and discussed the pages in the code regarding the jurisdiction of this Board. ~. Donald Kohl then read Section ~0, Subsection B and stated that this has happened regarding a decision made by an admini- strative official. He read Subsection 2 and 2A and in refer- ence to this~ there has been at most three people who contest. Based on such a small representation, he doesn't think it would affect the public. Immediately next door is a competi- tor of ~. Nutter~s who does the same type of work~ but this man is grandfathered in. ~. Boeltz referred to the old zoning being R-2 and questioned how a business could be grand- fathered, and ~. N'utter informed him that the old zoning was C-2 which allowed light manufacturing and heavy commercial. ~. Kohl continued that in any event, there is a competitor doing the same type of work, which has been grandfathered in. Mr. Kohl continued with reading Section 2C and agreed that a reasonable amount of time could be prescribed, He read Sec- tion 3 and this would be based that it is not contrary to public interest on the small amount of people opposing and similar type business in the area. With reference to Section 3A, before the land was purchased, he was told. the land was MINUTES T T ~ ~ BO~RD OF ADJU~TI,~NT l>~g~ FIVE AUGUST 9, t976 sml~able. He purchased the land with the intent based on what the City Officials told him. Chairman Aranow referred to the girl in the office being men- tioned as first stating the zoning was right and e×plained how the Board did not know what was actually said by either party. If ~. Kohl thin~m~ this is going to make something binding, he is wrong. Also, in reference to M~. Bushnell's statements, they do not know what he said. He doesn't think this applica- tion can be based on.this without the Board having the facts before them. He thinks Mr. Bushnell should be available to confirm or deny this. He explained further how Mr. Nu~ter or Mr. Bushnell could have said things, but the Board didn't know. Mw. Kohl agreed and added that he was sure that was why Ph~. Fr~uk Kohl ca!led ~. Bushnell while they were in his office. He asked Mr. Frank Kohl i~ he would appear be- fore this Board and he stated he would write a memo~ which he did. His position is that Mr. Nutter did not rely just on a phone call or ~..~. Bushne!t's information, but a series of events before purchasing the lot. Chairman Aranow replied that they were here for a variance and that is what the Board Will decide on. Mm. Kohl continued with reading Section ~B and referred to the circumstances not being caused by the applicant, but as a result of erroneous information given to him. He read Section 3C and pointed out that the identical type of business exists in the same identical zoning. Chairman Aranow asked if he had checked the zoning laws on this '~, ~ - ~.a~ter and exactly what the zoning says this district is for? M~. Kohl replied that he checked Section 5 and the land is in a C-4 district. Chairman Aranow asked if he could ~h~w him under the zoning law where it stated funiture manu- facturing and Mr. Kohl replied that it was under M-l, but M~. Nutter does not do manufacturing, but makes cabinets ~d fur- niture. Chairman Aranow replied that they were bound by his application and ?.~. w~_ informed, him t.,.~at~'~ it was filled out in conjunction with help from the Building Department. He does not know if someone from the Building Deoartment out those word~ in thence or not. Chairman Aranow - remo..~.~ that he hoped ~. Nutter read the application before signing it. Chairman Aranow stated he was sure everything was covered in ~. Donald Kohl's letter dated July 14, ~976 sent to t~. Frank Kohl. M~. Kohl agreed and added that there 'was a law suit pending~and basically the same thing is in the !~v suit. Chairman Aranow requested that this letter be read into the record. M~. Kohl informed him that this letter had nothing to do with this Board and Chairman Aranow m_~zormem him that M~. Frank Kohl had forwarded a copy to him and he would like every member of the Board to know what communications hsR~e been received. He then read the attached letter. · ~ T ~.~ BOAI~D OF ADJUSTmeNT PAGE SIX AUGUST 9~ 1976 Mm. Bailey then requested to see the plans and },~. Schmidt gave them to him. Chairman Aranow referred to I~. Kohl's statement that Mr. Schmidt should have knov~£~about Mr. Nutter~s business because he visited his o!~ ~lace and he takes exception to that. The business at the o!d~'p!ace has nothing to do with the new place. The Board is concerned with the application before them which is located at 25~ N. E. 6th Avenue. Chairman Aranow then asked if there was anything ~upposed to be built on these lots and Mr. Kohl informed him that }~.~ Nutter, per his ad.vice~ had gone ahead with the construction with the building to minimize his loss and he can lease it if not allowed to use it. The Building Department can only'pro- hibit him for occupying it. Chairman Aranow cia~ified that he asked if there was a building on the lot and !ir. Kohl re- plied that the lot had been cleared in preparation for build- lng, but there is no building. Chairman Arsmow asked if this was the lot where the tree was down and Mr. Nutter replied: yes, Chairman Aranow stated his personal opinion was ]O~ to the contrary. ~. Kohl informed him that it was not in the same shape as when'he bought it. Chairman Aranow in- formed him tlhat every member of the Board visits the property and tal!~ to neighbors, etc. He doesn't~_~ke to be told there is a building when there is not. Mr. Kohl replied that he will proceed with construction. The building permit has been gra~%ted~ but he cannot occupy it with his business. Chairman Aranow referred to the letter of July li, and the reference to May 14 when ~.~. White and I~. Nutter met with Mr. Schmidt and discussed a building under construction and ~. Kohl informed him that ~. White did. have a building under construction on another loca~_on.+~ ~. Ampo! asked if a buiid~m~ p~mt had been zssuem and Mr. Schmidt informed hi~a that it had not been issued yet, but it is in the process of being issued, but not for the p!a.~s submitted but per revised plans. Mr. Boe!tz questioned if what he was going to do was in the right use and ~. Nutter informed him that a paint and body shop was allowable under the ordina~'~ce a~d a painting con- tractor will have a wa~no~s~~ ~=~ ~ ~ and the other will be leased. Chairman Aranow referred to the application being in a C-4 zone for a building under M-1 and ~. Schmidt agreed that these were the original plans. Chairman Aranow stated that if there was a change in the app!ication~ why should the Board be concerned with it? ~. Kohl clarified that ~. Nutter wanted to move his 'business in there, but if not allowed, he will build the building ~n.d make the best use MINUTES BOARD OF ADJUSTt~NT 976 of the money which has been spent. Chairman Aranow suggested getting things straight and they were here to get M-1 in C-4 and M~. Kohl replied that this was his interpretation, but he is here to get Architectural Craftsman, Inc., a craftsman ~n~t makes ~arnmt~re into C-4. Cnamrman Aranow replied that he d~d not ...... ~ . ~now an~tnm.~g about Architectural Craftsman, inc at ail, but ~L~ ~utter has said on his application that he wants to put ~.,f. ~' ' m~nu acturing xurnmture into v._ms zoning. Nutter informed him that Mr. Schmidt filled out this on the application and questioned the difference. He added that he w~s allowed to re~air and refinish furniture in this district. Chairman Aranow rep!~em that he was not allowed, to manufacture furniture. Under this application, he is asking for furniture manufacturing in C-~ and ~. Kohl replied that they would like to amend that. Chairman Aranow stated in order to do that, he would have to go back to the Building Deparsmen~ for a new _plication- ~. Kohl referred to ~. Schmmdt' filling out the application ~2ad Mr. Nutter having been bound by previous er- roms in the Building Department. Chairman Aranow e~plained how the only error the Board was here to correct was if the Building OXf~LCm~. erred in granting a permit. M~. Thomoson clarified that the building permit was going to be issued under C-4 and Mr. Boe!tz agreed, but not to allow manufacturing. Chairman Aranow agreed a~d added that it did not require5 the Board's permission. ?~. Thompson continued that they were trying to make a change after the building per- mit is issued and they cannot do it. it must be issued in C-4. Chairman Aranow agreed and stated it did not belong before this Board. I~. Kohl informed them that if the Board granted the application, M~. Nutter would amend his plans to include the electrical to build furniture. He does not manu- facture. If this Board does not grant the hardship variance, he can sell the lots, let them sit, or build a building that is permissabie. He is proceeding under these alternatives. There is a time lapse. If the varia~ce is granted, he must meet deadlines to have the building finished. If the vari- ance is not granted, he has a job to do. A new building per- mit is issued, so it is not too late. Chairman Aranow r~am from the Board's mnsvructmo_s pertain- ing to the granting of variamces. The granting of a variance must not be contrs~y to the spirit of the ordinance. The Board cannot amend an ordinance. The Board exercises judi- cial not legislative power. In granting a use variance, which is being applied for~ a use otherwise .prohibited, the Board is amending the ordinance and taking invalid legisla- tive power and legislative power should be exercised by the Council. ~.~ is difficult to conceive any use variance that in effect does not amend the ordinance. This is the law the Board is covered by. This application comes under this. MINUTES BOAI~D OF ADJUSTi~NT PAGE EIGHT AUGUST 9, t976 Chairman Aranow then asked Mr. Schmidt if they denied this application when it was submitted and M~. Schmidt replied that not at that time and explained how the procedure was to go through other Boards be£ore a plan takeoff was made to figure cost of building, permit, etc. It was at that point that it was denied because it was determined by the takeoff people that the equipment shown on the plans would be used for manufacturing. Chairman Aranow referred to the petition dated June ~5, ]976 and No. ~ stating the denial was made upon the existing zoning requirements. He clarified that M~. Nutter was coming to the Board because he received a denial £rom the Building Department. ~'. Schmidt agreed, Chairman Aranow referred to ~. Kohl's statement regarding the original plans submitted and ~, Schmidt replied that he was not aware o£ them. Chairman Aranow asked how they ar- rived at the ~enial o£ what ~. Nutter wanted and ~. Schmidt replied that it was based on the equipment and machinery shown on the plans. Chairman Ara.now asked iff these were the plans originally submitted to ?h~. Bushnell and Mr. Kohl re- plied: no. Chairman Aranow clarified that he was refferring not to the £irst set not prepared by an architect, but the ones submitted after purchasing the property m~d ~. Nutter informed him that they were turned down. M~. Thompson asked where the original plans were that ?~. Bushnell agreed to and Mr Koai ~x~!~_.~ed how they were not a complete set of plans and ~.~. Nutter added that they were just a basic outline of the building. Chairman Aranow added that they did not have the details of the equipment to go in the building. He then asked ~. Schmidt if prlor to the plans being received iff he knew what equipment was going into the building and I~. Schmidt replied: no. Chairman Aranow referred to ~. Kohl's statement that b~. Nutter~s intention was to go into cabinet making and. asked iff there Would be any objection to that under C-~ and Mr. Schmidt r~eplied: yes, there would be. Chairman Aranow asked if the Building Department considered cabinet making as msmufacturing and ~.~. Schmidt replied: yes. I~. Kohl added that there was no speci£ic mention o£ cabinet making in the classifications, but in C-~ there is mention o£ repair shops. Chairman Aranow informed him that the was £amiliar with all the items allowed. He further explained how they would try to chmngle the ordina~ces if they needed to be chsmged. ~. Kohl suggested that somebody should create a speciffic category for £uram~ure making mad not manufacturing and Chairman A.ranow replied that he had no objection. ~. Kohl added that if it was made, there was as much room to lOUt it in C-i+ as in M-~. Chairman Aranow referred to the information stated in M~'. Kohl's letter and ~. Kohl stated that he did not send this to the Board. Chairman Aranow referred to ~o Smodish's notation and how this became part o£ the record and ~. Kohl BOARD OF ADJUSTMENT AUGUST 9~ t976 informed him that }~. Smodish called him. Chairman Aranow explained how all correspondence and discussions were put on the record and kept out in the open. Mm. Kohl requested to have a chance to clarify and Chairman Aranow replied that he wanted the members of the Board to finish their discussion. Mr. Ampoi referred to the petition signed by ~. Nutter and item 4 requesting a variance to allow light cabinet and furni- t'are manufacturing s~d pointed out that he signed this. Chair- man Aranow referred to Mr. Kohl requesti~to ~m~nd this~ but he does not know of anything that permits amendments to peti- tions. The Board is governed whether to allow M-~ in C-4. M~. Kohl stated that assuming for the sake of argument they wanted to grant relief~ he feels they would find this could fit in either category. Chairman APanow informed him that this was not the Board's job, but they must be sure the zon- ing laws are followed T~ ' . _z he wants to puv a use into C-4 that rightfully belongs in M-1~ the Board's hands are tied. Mr. Kohl replied that he questions whether it rightfully be- },~. ~ .. } ..... ~on± t~en stated he would ~ke to ask PP. Schmidt if he Was the one who wrote these words on the application. He added that if he had filled it out for ~,~. Nutter~ he would not ha~e noted that. In, reply, Ch~mrman APanow referred to people signing things without reading them~ but they are re- sponsible. P~'. Kohl then requested that the application be amended by deleting the word manufacturing. Chairman Aranow asked him to show him where the Board could amend and }~. Kohl replied by asking him to show him where they could not amend. }~. Thompso~_ clarified that it was turned down by the Build- ing Department even though they helped fill it out. Regard- less whether manufacturing is there or not, the plans indi- cated the machinery in the building. It is turned down be- cause of the ecuioment noted in the prints. ~'~. Ampoi added that it was m._mta±Iem by Mr. Howell a}:}d Mr. Schmidt agreed. }~. Boeltz stated it would be impossible to give this appli- cant M-I and everyone else is C-4 and Mr. Kohl agreed and added that he believed they would find this particular type of business was not ~ · ~ . ac, eqaa~ely described He stated thab they should consider whether the use is compatible to C-4 and explained how a use exception should be included or a separate category created. Mr. Boeitz reoiied that this was taken care of by the Planning & Zoning Board. He stated that they were ~~ ~.o~.=~, for a special privilege. M~. Kohl informed him that they were contesting that M-1 was the appropriate classification. He added that other competi- tors exist in C-4. Mr. Boeitz replied that these were MINUTES BOARD 0F ADJUST~NT PAGE Ta,~.~ AUGuS~ 9, 1976 grandfathered, but he cannot be grandfathered without a busi- ness or building there. I'~. Kohl replied that the Board had the power to create special exceptions and explained how furni- ture manufacturing was something massif, produced, but i~. Nutter did not do that. ~.~. Nutter questioned what would have hap- pened if he had lied ~d noted furniture refinishing and re- pairing and Mr. Boeitz explained how he could have received a violation if new furniture was discovered. ~L~. Kohl added that the Building Deps~tment was aware of this business. ~. Boe!tz suggested that they apply to the Planning & Zoning Board to have this included. ~. Kohl stated that ~k~. Frank Kohl had sent them to this Board and also apparently ~. Smodish believes the Board has this power. Chairman Aranow agreed that the Board has Jurisdiction and an application has been filed and they are hearing this application. He has given the rules and regulations they are governed by, so they know the reasons for granting or denying. ~%. Thompson referred to the po~:~=o~tmt~ of Mr Bushnell not having seen a detailed o Yawing and he could have agreed to ai- most anything. ~. Nutter informed him that the set of plans had a red 'stamp from the To R. B. which ~.. Bushnell person- ally put on it. That set of plans had all the machinery on it when he accepted the plans for a permit. ~. Kohl added that ~.~. Frank Kohl had gone into all this in his conversa- tion with Mr. Bushnell. Chairman Aranow then asked if anyone wanted to speak in favor of this application and received no response. He then asked if anyone wanted to ~ ~ ~.0e~ in oo~:osit~on and vn~ following peared before the Board. Mr. John Andrasko, Jr. stated his name and informed the Board that he owns orooerty directly ah~oss the street from this subject property] He referred to Mr. Kohl mentioning that there has been no opposition to a manufacturing plant across the street and must inject a few words that the citizens pay taxes .... Chairman Aranow interrupted him and requested that he speak for himself and keep to the point. ~L~. Andrasko con- tinued that he hoped the Board protects his rights as a ta~- payer in this town m~d he again wmnts to discuss the idea of the hardship business. He has been b~ying and selling real estate for over 40 years and whenever he goes to sell real estate, a conditional contract is drawn up. He explained how ignorance was no excuse and he always paid for his mistakes. ~Q~. Boeltz made a motion to deny the variance for the reason it is not in the right zone. M~. Ampol seconded the motion. ~o discussion. As requested, ~s. Kruse took a roll call vote as fo~_ows: Mi~j~S BOARD 0F ~ ~ ' ~ ~ A~J US T~'~N T PAGE ~i~V~N AUGUST 9, ~976 Mm. Boe!tz M~r. Bailey ~P. Thompson M~. Ampot ~r. Caravetta }k~. Aranow Motion carried 5-1. - Aye - No - Aye - Aye - Aye - Aye Other Business Chairman Aranow requested Mr. Schmidt to obtain copies of the latest zoning code with the amendments for I~. Caravetta and himself. He added that Mr. Caravetta also did not have a copy of the zoning map. He then asked if it was possible to obtain a copy of the old zoning map and M~. Schmidt roe!led that he would inquire into it. Chairman Aranow referred %o the need for the old zoning map and asked if the apptication~ could, include the present and previous zoning and }~. Schmidt agreed that this could be included. PP. Bailey then referred to the Board receiving a note with no signature from one person to another stating what the Assistant City Attorney decided and stated he would much rather see a letter to the Board of Adjustment signed by the Assista~at City Attorney and in his mind, this could have Just- ified voting for the variance. }~P. Ampol replied that they did not ~_eed a note from the Assit~t City Attorney stating what jurisdiction they have and have not. Chairman Aranow referred to the application being proper~ but he does not ~uow why the City waived the filing fee. Possibly the City Manager felt they were at fault for what they told this san. He thinks the filing fee should not have been waived, but once the application is made to the Board, this is not up to them. They were obligated to listen to the application, hear all sides~ visit the property, etc. Until they act in violation of their authority, he does not see any reason why this conversation between attorneys should give them authority to act. The Board knows their privileges aud re- i onsm~x.!~t~es. ?~. Thompson added that there was no hard- ship involved, in this case with constructing a building. The law ct~a. rmy states tn~y have no ~-~e ~-~_~ regarding the use. ?~ Am'ool added that the property was o ~ ~ q ~-' .- ~urcna~.~m in Ms~ t976 and t~ee weeks ~ater~.tne appmmcatmon was fmle~.. I~. Bailey referred to the last Cmty Cguncil meeting when a request was made to include boat sales mn the C-3 zone ~d how this was routed through the various departments and finally approved by CounCil. Chairman Aranow informed him t__at t~ ~ ~ Planning &~ Zoning Board must ~.~'~,~ the recommendation first. ~.~ Ampol added that this Board's decisions could not be reversed. i~. Bailey replied that they were here to serve and they should try to recommend in the best w~~ they can. They should Mi~TES ~o ~ OF ADJUST~.~NT BOA~.D u~u,,~ 9, I976 be informed enough to let the applicant know which way- he should go. Mr. Thompson agreed ~d referred to previous examples. Chairman Aranow referred to the No!an ~m!tmams application and how after he got what he wa~ted, he wanted a variance. He continued with e×plaining how he thought there should be an ordinance requiring if there was a vio- lation, non-conformity~ etc. on the property that it should be a matter of record and this can be obtained before pur- chasing the property for the protection of the buyer. Chairman Ar~aow then referred back to ]~. Nutter's applica- tion and ~ ~ ~ ~ ~ ~ amscussem the request again. Mr. Boel~z asked if M~~. Nutter could apply to the Planning & Zoning Board and Chairman Aranow replied that he did not know of anything that lets anyone go back to the Planning & Zoning Board. ~. Thompson referred to this property being close to resi- dential and how this was a request ~o downgrade. Chairman Aranow agreed. Minutes of June 14._~=~ 97__~6 Mr. Thompson moved to adopt the minutes as sub~mttem, seconded by ~. AmDol. Motion carried 6-0. Other Mr. Schmidt suggested a~ ~ ~na~ the members obtain copies of Ordinances 76-18, 76-!9, 76-20 and 76-21 regarding the grand- father clause and other zoning changes which hs~¢e not been included in the books. Chairman Aranow requested Mrs. ~ruse to ask Mrs. ~adgett if there were any ordinances~sed appli- cable to the Board of Adjustment a~'~d which have not been sent to the ~e~be~~, ~,~ ~'~ oo ~-~ .... ~ '~ ~ _ ~,~,~,,~ ~o o±ease send cop'ies to each member. Adjournment ~,~. Ampoi moved to adjourn, seconded by ~. Thompson. Motion arrmeo. 6-0 and the meeting was prop~r=y adjourned at 8:35 P.M. Respectfully submitted, Suzanne Kruse Recording Secretary (Two Tapes ) 0/,', ," c- -,. f,!.".;. 3003 SOUTH CONGREss AVENUE ' PALM SPRINGS, FLORIDA ,30461 (00~) 968- !600 964- 1960 July 14, 1976 Mr. Frank Kohl City Manager City of Boynton Beach. 120 N.E. 2nd Avenue ..= Boynton Beach, Florida Re: Claim of Robert B. Nutter and Darlene H. Nutter, his wife,-andArchitectural Craftsman, /nc., a Florida corporation vs. City of Boynton Beach Dear Mr. Kohl: - This letter is being written to you as the City Manager of the City of Boynton Beach, pursuant to the requirements of Florida Statute 768.28 (6)~ to alert the City that the above individuals, Mr. and Mrs. Robert B. Nutter, and his wholly owned corporation, Architectural Craftsman', Inc., are hereby making claim against the City of Boynton Beach for damages arising out of tort actions of ~]e City of 'Boynton Beach building department officials, whose actions have caused and will continue to cause substantial damages to my clients. The nature of this claim is as follows: A. Architectural Craftsman, Inc. is a furniture and cabinet shop, which has been classified by your building department as requiring M-1 zoning under your official zoning regulations. Your building department officials knew or should have kno~ of this classification, in that as late as April 9th, 1976, two department officials, Mr. Howell and Mr. Schmidt dropped by Mr. Nutter's corporate location at 221 S.E. 6th Avenue in order to investigate a complaint against his paint room. This fact is significant only to show that appro×imately a month before the tortuous P~ge R%~o Mr. Frank Kohl actions, officials of your City knew or should have known of Mr~ Nutter, his business, and the requisite zoning for his type operation° B. Thereafter during the week of April 23rd, 1976, ~. Nutter ~called your City's building department with reference to checking the existing zoning of three lots, Lot 73, 74 and 74A of Arden Park with reference to whether or not the zoning would permit him to purchase these lots, build a building thereon, and operate his furniture and cabinet shop. He assured by the woman on the desk phone that the zoning was proper~ C~ Thereafter during the week of May 3rd, he took pre- liminary plans to the building department, talking with one Warren Bushnell, then a building official of the City of Boynton Beach, %~ho went over his plans with him. Mr. Bushnell again assured him the zoning was okay, made some suggestions with reference to the size of the plans, and thereafter in reliance upon this advice, Mr. Nutter complied with the suggestions re- garding the plans~ D. On May the 14th a Mr. Jay White and Mr. Nutter again met with building department'official Lenny Scb~midt about questions regarding the building Mr. I~ite then had under con- struction, and the plans for Mr. Nutter's proposed building. Again there was no mention with reference to Mr. Nutter's plans that the zoning was not proper. E. Thereafter on May 21st, Mr. Nutter entered into a contract to purchase the above mentioned lots from the previous o~ners, and this contract was consun%~ated on May the 28th by the purchase of said lands for a purchase price of $9,000.00. Mr. Nutter's life savings went into this $9,000.00 in order to own the land outright so that he could obtain financing for the con- struction of his proposed building. F. Thereafter on May 28th~ immediately following the ctosing~ Mr. Nutter took his plans to the building department fOr approval. Nothing was done until J~ne 3rd when he returned to see if the plans had been approved. ~ey were then circulated, and then on June 10th, he was contacted by Mr. Schmidt of your building depart- ment who first then told him that the zoning was not proper, and that he could not occupy the building if he constructed same cause the land in question was zoned C-4 and he required an M-1 zoning for his corporation° Pa~e Three Mr. Frank Kohl G. Thereafter on June 15th, Mr. Nutter, myself and your building department officials met in your office with you, at which time the matter was discussed. You at that time verified with ~. Warren Bushnell that in fact he had given ~4ro Nutter . the assurance claimed above that the zoning was right. At your suggestion, and after you waived the necessary filing fee, we appeared before the Board of Adjustment on July 12th, 1976, to obtain a hardship exception that would allow Mr~'Nutter to occupy the building proposed~ .H..~At the July 12th Board of Adjustment meeting, ~he general consensus of the members present was that they did not have the right to grant the exception required even if they wanted to. They first denied our application, then reconsidered when it was pointed out they did not have adequate votes to make the denial lawful~ and then tabled the matter until a later meeting because they failed to have a quorum of five men, ers present° The matter has now been set for a future hearing in August, but there is no assurance to Mr. Nutter that they will then have a quorum, or that the general consensus present at the July meeting would not be the final decision of the board in August. Mr. Nutter has no need for these lots except to construct a building thereon with the sole purpose of occupying this building when finished. He would not have purchased the lands in question had the zoning not been proper° Mr. and Mrs° Nutter now find themselves in a position where their life savings are tied up in a lot that is useless to them. They have obtained a building permit to construct a building, and accordingly are proceeding with the construction. The building when finished will either be sold, or leased to some concern that will be within the proper zoning unless the City of Boynton Beach makes some exception to allow th~ to occupy it. The lease where they are now located runs out September 30th, 1976, and they have been promised a sizeable rental increase at that time. The increase in rent will prevent them from operating at the existing location thereafter, and they will be forced to shut down their business be- cause of the increased overhead unless they are permitted to move into this location~ Their business has been netting Mr. Nutter approximately $2,000.0-0 per month income, and his losses based on the tort actions of the City of Boynton Beach building officials in misleading him into the purchase of the above land wii1 accrue at the rate of $2,000.00 per month following October 1st, 1976. Additionally, ~o Nutter's claim consists of having purchased a $9,000.00 lot which is of no use to him and being forced into con- struction of a building thereon in order to salvage any of his Page Four Mr~ Frank Kohl life earnings which have thus far gone into this lot. Addi- tionally, Mr. Nutter's claim against the City of Boynton Beach includes legal costs and fees incurred through numerous office consultations with my office throughout these proceedings, the meeting of June 15th in your office, the filing of ~he app!ica- ' tion before the Board of Adjustment, the appearance before the Board of Adjustment, and thereafter for the preparation and filing of a ?Trit of Mandamus ~ich is now pending against your City. There will be continued legal expenses in pursuing the Writ of Mandamus as well as this tort claim. ~dditiona!ly, Mr. Nutter cut his vacation short by one week to return especially for the July 12th Board of Adjustment meeting per your instructions, and both he and his wife have suffered numerous mental and emotional strains and apprehensions as a result of this entire process. Accordingly, we are now calling upon you to make good Mr. Nutter's losses, and it is our intention to bring suit against the City of Boynton'Beach at the appropriate time to recover these losses. It is our earnest belief that if Mr. Nutter is not allowed to complete the building and occupy s~ne with'his Corporation, Architectural Craftsman, Inc., that he will be d~naged in excess of $50,000.00, the maximum allowable under Florida Statute 768.28 (5), and when suit is instituted it will be for an amount in excess of $200,000.00. It is sincerely hoped that we will not find it necessary to bring suit against the City of Boynton Beach. I do not know how your governmental red-tape will permit you to correct the injustices that have already been done to ~r. Nutter, but I suspect that there is some way that the City of Boynton Beach can allow Mr. Nutter to occupy the building he proposes on his Arden Park lots, as it is not an inconsistent use with the other surrounding buildings. There are in fact cabinet shops in the immediate vicinity, one right next door, which have been grandfathered in.prior to the existing zoning code. The citizens and land owners of Boynton Beach who did appear before the Board of Adjustment to complain (there were only two of them) voiced their main complaint on the potential noise. This is not a valid objection, in view of the fact that the existing zoning would permit an automobile body shop but would not permit Mr. Nutter's cabinet and furniture finishing shop, ~]ich would produce far less noise. In the event that you can find a way for the City of Boynton Beach to correct the injustices by allowing him to operate his corporation in the proposed building so that he will not find it necessary to close his shop at the expiration of his existing lease, Mr. Nutter will still have suffered some out-of-pocket expenses and Page Five Mr. Frank Kohl numerous emotional griefs for which we are now making claim. Will you please take %his matter up with your legal counsel, and perhaps with the City Council of.the City of Boynton Beach, and perhaps we can find a way to satisfactorily resolve this dilemma. truly y ~o~s, DPK:ld cc: Mr. and MrSo Robert B. Nntter