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Minutes 07-12-76Re - BOARD OF ADJUSTMENT MINUTES JULY 12, 1976 NO QUORUM WAS PRESENT, THEREFORE MEETING COULD NOT TAKE ANY ACTION. SEE MINUTES OF MEETING OF AUGUST 9, 1976 MINUTES OF THE BOARD OF ADJUSTMENT ~TING HELD AT CITY HALL, BOYNTON BEACH, FLORIDA, MONDAY, JULY 12, 1976 AT 7:00 P. M. PRESENT Joseph Aranow, Chairman Foy Ward, Acting Secretary George Ampol Alvin Co Boeltz Len Schmidt, Deputy Chief Insp. Building Department ABsENmT Derle B. Bailey, Vice Chairman (Excused) Robert Gordon, Secretary (Excused) Vernon Thompson, Jr. Albert Caravetta, Alternate (Excused) Walter Rutter, Alternate (Excused) Chairman Aranow called the meeting to order at 7:05 P. M. and introduced the members of the Board, representative of the Building Department, and Recording Secretary. Chairman Aranow announced that he received copies of 0rdi- nantes No~ 76-18 and 76-19 and requested through the minutes that the City Clerk send a copy of each of these ordinances to each member~and alternate of the Board. Minutes of June 14, 1.97~ Mr. ~mpol made a motion to accept the minutes as read, seconded by Mr. Ward. Motion carried 4-0. .~nfinished Business Tabled Application from Arthur H. Nelson. Chairman Aranow requested that the letter the Board wrote to Mr. Nelson be read and ~M. Ward read this letter. Chairman Aranow then ascertained that Mr. Nelson nor a repre- sentative were present. He then entertained a motion to dis- miss this application. ~M. Ampel referred to this having been Pending since April and moved to deny the variance on this application, seconded by M~. Boeltz. As requested, ~Ms. Kruse took a roll call vote as follows: ~. Boeltz - Aye Mr. Ampol - Aye ~M. Ward - Aye Mr. Aranow - Aye Motion carried 4-0. New Business MINUTES BOARD OF ADJUSTMENT PAGE TWO JULY 12, 1976 Parcel #1 - 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 Proposed Improvement - To cor~truct building according to plans on file in the Building Department, which will con- form to current setback regulations, for the above use. Applicant - Robert B. Nutter Mr. Ward read the above application and informed the Board it was requested because the property is not zoned for manufac- turing, but the owner was informed that the use would be al- lowed before puchasing the property. He also noted that the application fee in the amount of $50.00 had been waived by the City Manager. Mr. Ampol asked why the $50.00 fee had been waived? Mr. Donald Kohl stated his r~me and that he was an attorney representing R~. Nutter and his business address is 3003 Congress Avenue, Palm Springs. Chairman Aranow referred to Item 5 on the application referring to a statement that the use would be allowed before Mr. Nutter purchased the property and he questioned what statement this was referring to? Kohl replied that this may be the statement made by the City Manager. Mr. Ward read a letter dated June 18 from the City Manager verifying that Mr. Bushnell did inform Mr. Nutter that he could manufacture in this C-4 zone. The letter advised the Board that Mr. Bushmell, as an employee of the City of Boynton Beach, did furnish erroneous information to this resident and Mr. Nutter did spend $30,000 for the property based on this information, and further there are manufacturing firms in this area which have been grandfathered. Mr. Kohl stated he would like to give a brief history. Before allowing him to proceed, Chairman Aramow asked Mr. $chmidt if there was anything in the law permitting manufacturing in the C-4 zone and Mr. $chmidt replied not as such. He added that the nextdoor neighbor is in the same business, but he is grandfathered. He brought this matter to light that it would require M-t zoning and Mr. Nutter obtained an attorney to see what could be done. He attended the meeting with the City Manager, Mr. Nutter, M~. Howell and Mr. Kohl and everything stated in the letter is true and he did witness the conversa- tion with Mr. Bushnell. MINU~$ BOARD OF ADJUST~NT PAGE THR~ JULY i2, 1976 Chairman Aranow referred to the law stating that manufacturing has to be in the M-1 district~ This Board grants variances where they can, but they do not re-write the zoning law. He does not see how there would be any way to grant a hardship for this one particular man. The mere fact there is a com- pany grandfathered i~ entirely different, if ~ Nutter had u~lt before the zoning law, they could not deny this, ~ut he cannot see any way to change the law. Mr. Kohl stated that he would like to respond and Chairman Aranow replied that he knew he wanted to use every avenue he can, but questioned how this Board has authority? M~ Eohl informed him that there was no reason for this Board to exist if they could not change zoning per individual request for one reason or another. Also~ there is the ques- tion~ef whether Mr. Nutter is manufacturing. He ~elieves Mr. Nutter,s occupation could fit into C-4. He is asking for a hardship to consider this change because F~. Nutter was misle~ by City Officials and second, it is not inconsistent to surrounding or nearby uses~ The surrounding uses do not comply, ~ut were grandfathered. The surrounding uses are not incompatible to the proposed use. He understands this Board exists to take up individual ~atters to consider whether they are in the best use of the City. N~. Boeltz replied that this Board could not change zoning. This aoplicatio~ should ~e before the Planning & Zoning Boar~. Thi~ Board grants variances, but not zoning. Mr. Kohl stated that this Board should be able to gran~ variances on hardships created by the City. Mr~ Ampol referre~ to the record indicating that the property was purchased on May 28, 1976 and Mr Kohl agreed this was correct~ ' Mr. Kohl then continued with giving a brief history. He is here because the City l~nager told him to come before this Board and ask for a hardship Variance based on the facts. On April 9, 1976, Mro Howell and Mr. Schmidt came to Archi~ tectural Craftsman, Inc. at their existing shop to check on another matter. This shows that the Building Department did know about Mr. Nutter,s occupation then. On April 23, Mr. Nutter called the Building Department with reference to find- ing these three lots for ~ale. He talked to a young lady at the desk and informed her who he was and what his business was. He does not think~he manufactures furniture, but ac- cording to the definitions he possibly does manufacture. He did not know what zone these lots were in, but the woman said she would call him back. She did call him back and ad- vised that the zoning was right for his type of building and for this purpose. Not relying entirely on that young lady, he prepared a set of preliminary plans using only two lots and made an appointment and talked to Mr. Bushnell. Mr. MINUTES BOARD OF ADJUSTMENT PAGE FOUR JULY 12, 1976 Bushnell checked the zoning and told him it was right, but told him the building was too big for two lots as it did not comply with the requirements. Mr. Nutter then reduced the size of the building and used the third lot. He hired a professional architect and executed a contract on May 21 to buy the lots relying on the information from Mr. Bushnell and the young lady. He closed the sale and purchased the lots on May 28. The conditional sales contract was condi- tioned on the zoning being right. On May 28 or 29, he brought his finished plans into the Building Department for approval and came back on June 3 and nobody had looked at the plans. The plans were circulated through the various departments and approved by the Police, Fire and Engineering Departments. On June 10, Mr. Schmidt called him and told him he could not pro- ceed as he was in the wrong zone. This caused a hardship on him with taking his savings to purchase the lots, preparing the plans and being all set to go. They are asking for a hardship exception that he is M-I. Mr. Beeltz asked how this Board could change the use of the property when they don,t have the authority and Mr. Kohl re- plied that they could declare Mr. Nutter to be C-4. Chair- man Aranow informed him that they could only grant a variance in C-4 if he wanted to carry a use in C-4. Requesting a var- inace to take the manufacturing business from M-1 to C-4 is changing the zoning ordinance and the Board does not have this authority. He is not saying whether ~. Nutter has a hardship or not with regards to Mr. Bushnell~s statement, but the law says he must be in a M-1 district. This Board has no jurisdiction. Mr. Kohl asked what Board did have jurisdiction and Mr. Boeltz replied that the Planning & Zoning Board did. Chairman Aranow added that the Board of Adjustment did not have this jurisdic- tion and questioned if the Planning & Zoning Board could chamge this C-4 to M-1 and Mr. Schmidt replied that he agreed this Board could not give a variance on use, but the Planning & Zoning Board can. He added that the Planning & Zoming Board could not grant a variance, but could put manufacturing under 0-4 or spot zone these lots. Mr. Kohl referred to the City Manager suggesting this was the Board to come to and Chairman Aranow replied that he is sure he did not do any harm and referred to the possibility of a law suit resulting and how it was required to go before all the City Boards. He adde~ that he did not think the Planning & Zoning Board would spot zone, but they do have the right to include something like light manufacturing in the 0-4 district° He e~plained how they made recommendations to the City Council and stated again that this Board did not have the authority. M!NUTEE BOARD OF ADJUST~NT PAGE FIVE JULY 12, 1976 Mr. Kohl referred to the last month's delay, at the advice of the City Manager, being nil and Chairman Aranow replied that he had gotten one hurdle out of the way. Mr. Kohl replied that it was not a hurdle if they didn't belong here. ~.4r. Boeltz referred to in a court case how the judge would ask if all the Boards had been exhausted. Mro Kohl stated he believed he could have sued a month ago, but he held off to go before this Board as suggested by the City!~anager. ~. Kohl referred to it stating nowhere in C-4 that manufac- turing i prohibited and Chairman Aranow disagreed and read Section ~on Page 32. He added that under lA14, that is the only place manufacturing is permitted. Mr. Kohl stated that a cabinet shod is unclamsified in the code. It has just been somebedy,s interpretation that he manufactures furniture. Chairman Aranow referred to Mr. Nutter~s statement en the application requesting a variance to allow light furniture and cabinet manufacturing. Mr. Nutter informed him that he filled this out with help from the Building Department. Chairman Aranow referred to this being stated in the papers and he should advise the Building Department that he is a cabinet maker. ~. Kohl replied that their interpretation of a cabinet maker was under ~. Kohl requested a hardship for variance because the City employees misled this man and the City Manager recommended he come before this Board. He added that somebody in this town should know who runs what. Chairman Arsmow informed him again that this Board did not have the authority. He added that if Mr. Kohl could show them where they have the authority, they would be glad to look at it. Mr. Kohl asked if the minutes were prepared per verbatim and Chairman Aranow informed him that they w~re not, but the tape is retained and is on file in Mrs. Padgett~s office. Mr. Ward then read the powers and duties of the Board of ~djustment from the Zoning Code. Chairman Aranow stated that possibly the Building Board of Adjustments and Aopeals may have authority in this situation. He clarified ~hat the Board of Adjustment has the right to decide, but must have jurisdiction of the subject matter and they do ~ot have the power to change the zoning code. ~o Kohl stated that he believed they do have the power to decide whether Mr. Nutter's w~k~i ~r~ . . .~.~.~ciass~f~ed as manufacturing. Chairman Aranow then read from'Section 10, Appendix A, Zoning Regulations, Page 422.43, Code of Ordinances of City of Boynton Beach, Sub- section ~-C. He stated that he thought this was pretty clear in that they do not have the right to go from one zon- ing district to another or to grant'~ variances ~nder those conditions. ~. Kohl replied that this was his interpreta- tion. MI~TES BOARD OF ADJUSTmeNT PAGE S I'X J~LY 12, 1976 Chairman Ara~ow then asked if anyone else desired to be heard in reference to this application and the following appeared before the Board. Mr. John A~ra~ko, Jr. stated his name and his address as 1202 N. E. 2nd Avenue, Delray Beach. He informed the Board that he owns ~ million dollars of residential real estate property directly across the street and around this area. He came here tonight without ~uowing too much about the exact type of manufacturing ~. Nutter intended to do. He does know and has had considerable experience with the Building Depart- ment and he has had to abide by every regulation and ordinance put before him by the City. Every time he did any building, he made sure the property he was buying was suitable for the purpose without going headlong into something and spending a lot of money. He does know there are builders that do buy property and build, etc. and then go for permits. He is here to stress that they have enough noise and pollution in the country today and Boynton Beach has designated areas for man- Many residents in the surrounding area have re- quested that he object to this variance. He is familiar with cabinet manufacturing and knows there is a lot of noise, dust, over, traffic, etc. The people object to this. Chairman Ara~ow inter~mpte~ h~m and informed him that he did not mind him objecting on his behalf, but not on the behalf of others without thsir authorization. Mr. Andrasko continued that he Objects strenuously to having a manufacturing plant directly across the street from residential property that he owns. He d~es ~ow what this would bring on. There is a warehouse built down the street handling furniture and he told about their debris blowing all over his property and how he had complained to the City Manager about it. He voices his ob- jection to a manuf~ plant going into an area not zoned for it. There is plenty property around suitable for this type of work. ~t is not a hardship in this case. Anybody buying property blindfolded has a big problem. M~. Bertha Welch stated her name and her address as 612 N. E. 2nd Street. She informed the Board that she is the nearest resident to this property. She objects to the noise and it is a residential area. She has been there since 1956. She objects to the noise, traffic, etc. and it is primarily a residential area. Mr~ Kohl replied that it is not a residential area, but is zoned C-4. Also, Mr. Nutter did not buy it blind, but came right to the City of Boynton Beach and consulted them and that is why he bought it. MINU~ BOARD OF ADJUST~NT PAGE SEVEN JULY 12, 1976 Chairman Aranow referred to the application being submitted to the Building Department and when that was turned down, that was the first official action of the City. Fyo Kohl disagreed and stated it was when the Building Official told Mr. Nutter that the property was zoned right. Chairman Arc, ow stated that this Board was not the District Court and Mr. Kohl replied that they came before this Board because of the City ¥~nager. He continued that furniture stores are allowed in C-4. Warehouses and selling wholesale are allowed m~er C-4. There are several categories under C-4 or M-1 that they could fight over. Chairman Aranow asked Mr. Schmidt if there was any definition of cabinet making and whether it is manufacturing and M~. Schmidt referred to Page 29 and the uses covered under C-4. He referred to paint and repair shop, but this is not what they de~ He referred to the reference to a wholesale establishment including warehouses, but they are manufacturing furniture. Another cateEory is a furniture store, but they do not make furniture. Furniture manufactur- ing is covered under M~. Mr. Kohl referred to ~ Schmidt fee!ing that manufacturing is any making, but they feel it is reproductive manufacturing. Chairman Aranow state~ that he thought they had listened to every argument and requested thmt the Board decide what they want to ~. Boeltz made a motion to deny the variance, because he does not think this Board has the right to go from one use to another or change the use of the property. Mr. Ampol seconded the motion. No discussion. As requested, Mrs. Kruse took a roll call vote as follows: Mr. Boeltz ~ Aye Mr. Ampol - Aye Mr. Ward -No Mr. Aranow - Aye Mrs. Kruse announced the vote was 3-1 and Chairman Aranow nounced that under this vote, the application is not denied. Mr. Ward stated he would like to state his reason for voting this way is because he believes Mr. Nutter exhausted every avenue before purchasing the property to be sure he was in the proper zone and evidently was mi~led because they re- ceived the letter from the City Manager inferring this is the proper Board to apply to. Chairman Aranow referred to the application not being denied and requested an alternative. Mr. Ward made a motion to grant the application. This motion died for lack of a second. Mr. Kohl questioned whether it required unanimous consent and Chairman Aranow explained how four votes were required. ~. Ampol suggested tabling until a full Board was present. ~. Ward clarified this b$ reading from Page 38 of the code regard- ing the requirement of four votes. He read further and noted MINUTES BOARD OF ADJUSTmeNT PAGE EIGHT JULY 12, 1976 that it stated that no action shall be taken unless five mem- bers are present and voting. Chairman Aranow stated that under this, they could not vote unless it was a unanimous vote. Mr. Kohl agreed and referred to it also stating they could effect any variation of this ordin~uce and it would be chang- ing this ordinance by allowing cabinet making in C-4. Chair- man Aranow informed him that they have authority in uses in particular districts, but cannot give a use in M-1 in Mr. Kohl replied that there was no need for a variance if the use was included. Chairman Aranow announced that as far as he was concerned, no action can be taken unless five members are present and voting. He thinks their vote on this particular matter is ineffective for any purpose. Mr. Ward agreed that they must have five members present; therefore, he believes this case is auto- matically tabled including the others listed on the agenda. Chairman Aranow announced that this case would automatically be tabled until the next meeting. Mr. Ampol also agreed. Mr. Boeltz made a motion to reconsider'faLs previous motion, seconded by Mr. Ampol. Under discussion, Chairman Aranow questioned ~n reconsidering if they wanted to make a motion to table? Mr. Ampol made a motion to table this application due to the fact they do not have five members of the Board ~of Adjustment present. Mr. Boeltz seconded the motion. As re- quested, Mrs. Kruse took a roll call vote on the motion as follows: M~. Boeltz - Aye Mr. Ampot - Aye Mr. Ward - Aye Mr. Aranow - Aye Motion carried 4-0. Chairman Aranow announced that this ap- plication was tabled until the ne~t meeting on August 9. He added that it was not necessary for the people present tonight to spe~ again, but their statements from these min- utes would be considered. Mr. Andrasko asked if others who were not present could appear and Chairman Aranow replied~ Parcel #2 - That Portion of Tract 1 lying between the East R/W line of Seacrest Blvd. and the West R/W .line of the Florida East Coast R. R., and being bounded on the North by the South R/~ line of Woolbright Road; Said Tract 1 being a parcel of land in Section 33, Twp. 45 South, Range 43 East, Palm Beach County, Florida, Recorded in Plat Book 1, Page 4, Palm Beach County Records MING TES B0~ARD OF ADJUSTmeNT P~_GE NINE JULY 12, 1976 Location - S. Eo Corner of Seacrest Blvd. and Woolbright Road ~ S. Eo 15th Ave.) Request - Variance on street side setback from 20 ft. requirement to 15 ft. street side setback To Erect Water Distribution Building Applicant - City of Boynton Beach ~'~a~.~noted that an application was not submitted for the above and read a letter from ~. Howell requesting that this be placed on the July 12 agenda for the Board of Adjustment. Chairman Ara~ow then referred to the survey submitted being dated 8/20/60 and since it was over ten years old, it was not satisfactory. Chairman Aranow then asksd where the setback was located and ~. $chmidt informed him on Woolbright Road. Chairman Aranow referred to the detail of this particular spot showing a foun- dation and slab on Woolbright Road, but there are none on the property and ~. Schmidt agreed. Chairman Arano~qm~stioned where the 15 and 20 ft. were and Mr. Schmidt informed him that there were no requirements, no setbacks, no lot sizes, etc. required on City owne.~ property in the zoning ordinance. Chairman Ar~now asked why this was before the Board and Mr. Schmidt explained how ~o Howell felt the City should observe comparable setbacks to the neighborhood. The neighborhood calls for a 20 ft. setback across the street and he did not fee! the City should be allowe~ to build up to the street. He feels the City should observe the zoning. Chairman Aranow asked why they wanted 15 ft. then and M~. Schmidt explained how it would cause a problem to hold to 20 ft. He believes it will crowd out what is there or the building proposed. Chairman Aranow stated that according to the scale on the drawing, there was plenty of room. Mr. Ward referred to the 17 year old survey not showing what is supposed to be there ~ud ~. Schmidt informed him that the City ~ ~ngineers felt this survey would suffice. Chairman Aranow remarke~ t~at it didn't tel~ them anything. He added that he also believed the Building Official should submit an application. He does not see why it should not be 20 ft., the same as the zoning board has set for everyone else. He also noted that no deed had been submitted. Chairman Aranow announced that this would be tabled until the next meeting and requested that a drawing be submitted' showing more detail° Other Mr. Ward referred to not having a denial form forwarded from the Building Department with thea~pl~cat~ons.' ~ Mr. Schmidt explained how the form had recently been amended and item 3 MI~TES BOARD OF ADJUST~T PAGE TEN JULY 12, 1976 on the petition covered this now. He also explained how their procedure in handling this had been changed. Correspondence. Chairman Aranow asked if the members had received a letter dated~June 15 from ~. Reed regarding the f~uancial disclo- SUre lawand reCeived negative responses. He then gave copies of this letter to the members. Chairman ~ranow read a letter dated June 17 from Mayor DeLong addressed te ~. Gara~etta regarding his appointment to the Board. He then gave copies of the revised membership list of the Board of ~djustment to the members. Chairman Aranow informed the Board that he received a letter from ~¢r. Caravette advising that he would not be a~ailable for the month of July. Chairman Aranow then read a letter dated June 15 from Council- woman Emily Jackso~ regarding the Ad-Hoc Committee with refer- enceto minutes of their meetings in compliance with the Sun_ shine Law. He stated he was awaiting a reply from Mr. Reed regarding this and the powers of the Ad-Hoc Committee. He informed the Board that ~. Eelly did obtain copies of the permits for the five applications they referred to. He added that he thought the Nutter application was a situation that should go to the ~d-Hoc Gommittee, especially in view of the letter from ~. Eohl. Chairman Aranow then told how the situation at Village RoYale on the Green was progressing and how he thought this should also be investigated. Chairman ~ranow thanked ~. Ward for acting as Secretary. ~djournment ¥~. Ampol made a motion to adjourn, seconded by Mr. Boeltz. Motion carried 4-0 s~ud the meeting was properly adjourned at 8:45 P. M. Respectfully submitted, Suzanne Kruse Recording Secretary (Two Tapes)