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Minutes 05-12-05 MINUTES OF THE BUILDING BOARD OF ADJUSTMENT AND APPEAlS MEETING HELD IN THE WEST WING, FIRST FLOOR BUILDING DIVISION CONÆRENCE ROOM, aTY HALL, BOYNTON BEAOi, FLORIDA, ON THURSDAY, MAY 12, 2005 AT 6:30 P.M. Present Milton Russell, Vice Chair Michael Bessell Beverly Agee Frank Lindsay Robert Zimmermann Don Johnson, Building Official David Tolces, Assistant City Attorney Absent Richard Kurtz A. Call to Order - Milton Russell, VICe Chainnan Vice Chair Russell called the meeting to order at 6:37 p.m. B. Acknowledgement of Members and VISitors Vice Chair Russell thanked the Board members for their attendance and acknowledged and welcomed Ms. Jodi Rivers, Mr. Wally Majors and Mr. John Wildner, and Assistant City Attorney David Tolces. Mr. Johnson apologized for the change of venue, and the small meeting facilities. Assistant City Attorney administered the oath to all persons who would be testifying. c. Approval of Agenda Motion Mr. Zimmerman moved to approve the agenda. Motion seconded by Mr. Lindsay and carried unanimously. D. Old Bœiness None Meeting Minutes Building Board of Adjusbnenls & Appeals Boyntnn Beach, Florida May 12, 2005 E. New Business Applicant: Reference: Explanation: Wally Majors Southeast Neighborhood Park Request for relief from Section 403 ("Minimum Plumbing Facilities'') of the 2001 Florida Plumbing Code. Don Johnson, Building Official, presented the item. He stated the Recreation Department of the City of Boynton Beach was requesting relief from Section 403 - Minimum Plumbing Facilities of the 2001 Florida Plumbing Code. The Building Division was given a site plan to review, concerning the proposed Southeast Neighborhood Park. Mr. Johnson referenced number 2 of Section 403.1.1.1 of the 2001 Florida Building Codes, which defined Assembly Occupancy as: "the use of a building or structure, or any portion thereof, for the gathering together of people for purposes such as civic, social or religious functions or for recreation, or for food or drink consumption or awaiting transportation", and pointed out the neighborhood park would be considered recreation. Mr. Johnson noted in reviewing the master plan submitted by the applicant, it appeared that each picnic table could seat six people. Based on the estimate, he felt there could be a maximum of fifty-four people using the park at any given time. He pointed out the park would also have six vehicle parking spaces, one of which would be handicapped accessible. Pursuant to Table 403.1 and footnote (a) of the Florida Building Codes, Mr. Hutchinson stated the Southeast Neighborhood Park would be required to have a minimum of handicapped accessible water closet and lavatory for men and also one for women. Mr. Hutchinson pointed out the applicant had asked that the requirement for restrooms be waived. Jody Rivers, Park SuperintEndent, thanked Mr. Johnson for his assistance and thanked the Board for allowing them to bring forth the matter. She explained the park was located in a neighborhood off of main streets and would only be 2112 acres. Therefore if you did not live in the surrounding neighborhood, you would not know the park was there. She explained that before they designed the park; they had four public meetings with the neighborhood. At this meeting, they investigated the residents' concerns and issues, and their preferences for the park. They came up with the park design based on discussions at those meetings. One of the residents' specific requests was not to have restrooms, because they felt the park would become a gathering place. 2 Meeting Minutes Building Board of Adjusbnenls & Appeals Boynton Beach, Florida May 12, 2005 Additionally, Ms. Rivers pointed out the project was barely funded - they had approximately $580/000 for the project. They planned to put in the underground piping in case a restroom was wanted in the future. A restroom would cost approximately $100/000/ and they would not be able to complete the park if they put it in. That would cause them to lose the $200/000 grant they got with the state provided the park was completed by a certain date. She also noted there were six parks in Boynton Beach, three of which were destination areas. These parks do not have restrooms. She pOinted out the county had just recently decided not to put restrooms in the infield parks, because they want to keep them from becoming destination parks. She asked the Board to consider a waiver of not having the restroom in the park. Mr. Zimmerman felt since it was a neighborhood park, restrooms were not necessary because the park would be close to the neighborhood residents' homes. John Wildner, Retired City Employee, noted he now works for the Palm Beach County Parks and Recreation, but he did some of the original planning on the Southeast Neighborhood Park. He pointed out the county had approximately 100 parks and 20% of them had no restrooms. Many of them were of similar size to the Southeast Neighborhood Park, and it was not the norm to have restrooms in every park. He did not think a park was necessarily a gathering place and felt the Plumbing Code might not apply in that situation. Other organizations that run parks are not required to have restrooms, and Mr. Wildner thought if the neighborhood requested not to have a restroom, it would not be appropriate. Wally Majors, Reaeation & Parks Director, stated they were prepared to bring some of the residents in to have them share their feelings about the issue, but did not in light of the venue change for the meeting and the small area. However, they did have records of what the residents requested, from the public meetings. Ms. Agee referred to the 2001 Florida Plumbing Code, section 403.1.1.1 and asked if there was an interpretation indicating that the code applied to parks. Mr. Johnson referred to the site plan and pointed out the structure that seats four tables under a roof. He stated they were also taking into account the use of the building, and referenced section 403.1 of the Florida Plumbing Code that states, "the types of occupancies not shown in Table 403.1 shall be considered individually by the code official." He noted they had the issue come up before 3 Meeting Minutes Building Board of Adjusbnenls & Appeals Boynton Beach, Florida May 12, 2005 with the scrub areas, and have been consistent with their interpretation that a restroom would be required, because they consider the park to be a recreational facility. Mr. Johnson pointed out in the Florida Building Code the definition of a structure is that which is built or constructed. Mr. Lindsay referred to the last sentence of the Southeast Neighborhood Park appeal to the Building Board of Adjustment and Appeals, which read, "The plans for the park include piping so that a restroom could be added in the future if it were found to be necessary." He felt that was satisfactory. Mr. Bessell did not think it was necessary to bring up the scrub areas because that was a different situation. The scrubs did not have a structure or picnic tables, or a gathering place, or a building. The scrubs had a parking space for a bus, for short-term tours. Mr. Johnson agreed there should be no comparisons made because each case, which comes before the Board is an individual case, and should not be rated on the merits of a decision made previously. Mr. Johnson stated the Florida Accessibility Code required parks to be accessible. The site plan showed there would be parking available, and for up to 25 spaces, there must be one handicapped spot. There must also be an accessible way for the public - whether from a road, or a public way. Mr. Johnson felt if it was a neighborhood park and people would have to go to their homes to use the restrooms, there was no need for parking spaces. He was concerned about the difficulties a handicapped person visiting the park would face, should they need to use a restroom. He also pointed out/ with no restroom facilities, someone may relieve themselves in the nearest bush, and a parent and a child may be walking through the area at the same time. Mr. Hutchinson expressed his willingness to cooperate with Recreation Parks, but he had to look at the issue in a comprehensive manner and take all those things into consideration. Ms. Rivers pointed out the park would be completely handicapped accessible. She also noted they were required to have the six parking places because of the City Code that relates to the basketball courts. The Planning & Zoning division said they must have six parking spaces. She reiterated that the decision not to have a restroom at the park was the request of the neighborhood residents. Mr. Bessell asked approximately how many people would use the park. Ms. Rivers stated 15 to 20 children would use the park in the afternoon. She also pointed out the neighbors would be on watch should anything start to go wrong at the park. 4 Meeting Minutes Building Board of Adjusbnenls & Appeals Boynton Beach, Florida May 12, 2005 Ms. Agee needed clarification on the definition of structure, and asked if there was any way the park could be viewed as a gathering place not required to have a restroom under the Code. Mr. Johnson noted as the Building Official, the Florida Statutes allowed him to make that decision and interpretation. He determined it was necessary to have a restroom facility, whether or not there was a "structure", because the park would be a gathering for recreation. Ms. Agee asked if it was his position that all parks must have restrooms, and Mr. Johnson said yes. Ms. Agee stated she went to Fogleman Park, which was in the City of West Palm Beach, and it was about the same size as the proposed Southeast Neighborhood Park, and there were no bathrooms. Ms. Rivers pointed out Fogleman Park had a restroom that was taken out because it was so badly vandalized and became a place to sell drugs. Wally Majors noted that even though you have to look at each case individually, there were no documented problems experienced at Laurel Hills Park on Boynton Beach Boulevard, which is the same type as the Southeast Neighborhood Park. Ms. Agee asked why Boynton Lakes Park and Forest Hill Park did not have restrooms. Don Johnson stated he was not the Building Official at that time, but noted there are restrooms directly across the road from Boynton Lakes Park, which are part of the association. He assumed the Building Official at that time used his discretion that restroom was close enough to the park. Mr. Johnson pointed out Forest Hills Park was built approximately 30 years ago. Mr. Johnson pOinted out there were restrooms at the park on the end of NW 1th Avenue, which just has a sidewalk and benches. Pioneer Canal Park, which has a boat ramp and a small park area with tennis courts/ has restrooms. He pOinted out that even though Laurel Hills Park had no restrooms, there are no designated parking areas. Ms. Rivers stated that park had shell rock parking, but Mr. Johnson expressed it was not dedicated parking. With most recent parks, Mr. Johnson pointed out that Building Officials had taken the stance they should have restroom facilities. 5 Meeting Minutes Building Board of Adjusbnenls & Appeals Boynton Beach, Florida May 12, 2005 Ms. Agee asked why there was a concern that restroom facilities have maintenance problems. Mr. Majors said it was more an issue about the potential for negative use, because the restroom is a hidden area. He stated one of the key elements in designing parks is to keep them visible. Mr. Majors also pointed out Pioneer Canal Park was one of the few access pOints to fresh water fishing in Boynton Beach, making it one of the more popular destination pOints in Boynton Beach. Therefore, it was necessary to put a restroom there. He also pOinted out Heads Park was used by several hundred senior men on a weekly basis, and recognizing the need for a restroom, Recreation & Parks decided to have one built. Mr. Bessell felt a handicapped individual could sue if they did not have the restrooms and stated he would like to see the parking spaces eliminated and shell rock put in so they are not dedicated. Mr. Johnson stated he told the Recreation & Parks representatives; he would not have required restrooms if the spaces were not there. However, they could not eliminate those spaces now, because the Planning & Zoning code required parking spaces. Ms. Rivers stated one space would have to be handicapped accessible. Mr. Hutchinson noted the Florida Building Code has the Florida Accessibility Code, which is more stringent than the Americans with Disability Accessibility Act Guidelines (ADAGE). ADAGE has allowed the Florida Accessibility Code to be written. Mr. Bressner felt it was important that the handicapped requirements were met. He asked Mr. Johnson if the City of Boynton Beach had a Handicapped Advisory Board. Mr. Johnson stated they did not, but there was a group called Wide Tracks who visit the buildings and if there is anything that may not meet the Handicapped Code, they let them know. Mr. Majors pointed out they often have to deal with inclusion issues, and within the County there is a tremendous amount of support for them and also for families who have to find a way to accommodate a child with special needs. They could look to local agencies who put them in contact with human resources or other resources to make those decisions appropriately. So as a profession, Recreation and Parks had a significant relationship with therapeutics. 6 Meeting Minutes Building Board of Adjusbnenls & Appeals Boynton Beach, Florida May 12, 2005 Mr. Bressell expressed he was not convinced a waiver was the way he wanted to vote. Mr. Lindsay asked based upon the litigation constantly happening, that there was a possibility if the park was built without the lavatory facility that a person could come along and may have a disabled child, and bring a lawsuit against the City for failing to provide that type of facility in a public park. Assistant City Attorney Tolces pOinted out it would not be a liability on the part of the City. The City's decision would be in compliance with the Florida Accessibility Guidelines, as well as within the Federal requirements. He stated people could sue but that did not mean the City would be liable. Mr. Zimmermann felt there was an easy solution; to have portable toilets at the park. Mr. Johnson stated the building code only allows portable toilets to be used for temporary events. Assistant City Attorney Tolces pointed out that even if you could have portable toilets it would be very expensive because you would need one that is handicapped accessible and then you would also need one for men and one for women. Mr. Lindsay asked that assuming the piping is put in, would the expense involved in putting in the restroom at a later date would be double or triple, if they determine it was necessary to have a restroom. Mr. Majors stated it would cost at minimum of about $75K to $80K to put the restrooms in now, and Ms. Rivers stated it would cost an additional 15% to 20% should they decide to put it in later. Motion Mr. Lindsay moved to grant the appeal and Ms. Agee seconded the motion. Mr. Bessell stated he would like the City to consult with a handicapped advisor or individual who is prominent in any field prior to them making a decision. Assistant City Attorney Tolces stated under the City administrative amendments to the Florida Building Code, if you were going to modify the decision of the Building Official you would need four affirmative votes. However, if you were going to grant a variance different to what the code may require, three affirmative votes would be required. 7 Meeting Minutes Building Board of Adjusbnenls & Appeals Boynton Beach, Florida May 12, 2005 Mr. Johnson asked if it was possible to waive the requirement that the restroom be built now, but it had to be built within 24 months. Ms. Agee said she would agree with it but stated she would prefer to add it had to be built within 24 months if it was determined to be necessary. Mr. Lindsay withdrew his motion, and Ms. Agee agreed. Motion Mr. Lindsay moved to grant a variance to Section 403.1.1.1 number 2 of the 2001 Florida Building Code, so long as the necessary utilities are installed to allow for the installation of handicapped accessible bathrooms for each sex, and that in 24 months the Board would review the variance to determine if the bathrooms are required. Motion seconded by Ms. Agee. Ms. Agee pointed out the City would install the piping now, and the Board would meet in 24 months with information about the use of the park and any problems, and that mayor may not result in the 15-20% additional cost to install the restroom. Mr. Johnson noted they should put in the appropriate piping required now for both restrooms, so there would not be added expense at a later date. Mr. Bessell asked how the case would be reviewed in 24 months, and who would bring the information back to the Board. Ms. Rivers stated they would have a public meeting with the neighborhood prior to the 24-month deadline and get any feedback. They would also be in the park at least once a week for maintenance responsibilities. Mr. Majors noted they would also contact the police department to find out if they responded to any problems at the park. Assistant City Attorney Tolces pointed out the City would take the affirmative step to set the Board meeting in May 2007. The Recording Secretary called the roll and the motion carried 5-0. Organizational Meeting - Eledion of new Officers Mr. Johnson stated at the last meeting, they had the election of officers, and Mr. Robert Mulroy was elected as Chairman and Mr. Milton Russell was elected Vice Chairman. Unfortunately, Mr. Mulroy never turned back in the sheet for his 8 Meeting Minutes Building Board of Adjusbnenls & Appeals Boynton Beach, Florida May 12, 2005 reappointment, so he was no longer on the Board. He explained they would have to nominate a new Chairperson and Vice Chairperson. Motion Mr. Zimmerman nominated Milton Russell as Chairman of the Building Board of Adjustment and Appeals. Motion seconded by Ms. Agee, and carried unanimously. Motion Mr. Zimmerman nominated Michael Bessell as Vice Chairman of the Building Board of Adjustment and Appeals. Motion seconded by Mr. Lindsay, and carried unanimously. F. Announcements Mr. Johnson pOinted out he received notice of a new member from the City Clerk's office, but it was too late to contact him for the meeting, but he would be present at the next meeting. He noted Mr. Richard Kurtz was away and not in attendance at the meeting. G. Adjournment There being no further business, the meeting properly adjourned at 7:41 p.m. Respectfully submitted, Cû{[)Cl{~Á", ' Catherine Wharton (Recording Secretary) (May 17, 2005) 9 BUILDING BOARD OF ADJUSTMENT AND APPEALS CITY OF BOYNTON BEACH IN RE: APPEAL OF CHIEF BUILDING OFFICIAL DECISION 660 Las Palmas Parkway Applicant: W ALLY MAJORS, Director of Recreation & Parks ORDER REVERSING DECISION OF THE CHIEF BUILDING OFFICIAL AND GRANTING A VARIANCE The Appeal of the decjsion of the City of Boynton Beach ("City") Chief Building Official filed by Wally Majors, Director of Recreation & Parks Department of the City of Boynton Beach, the "App1icant", was submitted to the City's Building Board of Adjustment and Appeals on April 22, 2005. The Applicant was appealing the decision of the City's Chief Bui lding Official to apply Section 403 ("Minimum Plumbing Facilities") of the 2001 Florida Building Code requiring the Southeast Neighborhood Park to have a minimum of one handicapped accessible water closet and lavatory for males and one handicapped accessible water closet and lavatory for females. The City's Building Board of Adjustment and Appeals reviewed the testimony and evidence provided to the Chief Bullding Official, and the arguments of Applicant's counsel, and orders as fol1ows: FINDINGS OF FACT 1. Section 108.4 of the Florida Building Code, as adopted by the City, provides for the procedure relating to appeals of decisions made by the Chief Building Official to the Building Board of Adjustment and Appeals ("Board"). 2. The Board makes the following preliminary findings: The Applicant had provided a site plan to the Building Department to review conceming the proposed Southeast Neighborhood Park requesting relief from Section 403 of the 2001 Florida Plumbing Code. The Chief Building Official reviewed the site plan and determined that Section 403.1.1.1 number 2 of the 2001 Florida Building Code required that the Applicant construct restrooms at the Southeast Neighborhood Park as the proposed use is a recreational use/facility that will include structures where people will congregate. The Applicant has appealed the Chief Building Official's decision to apply Section 403 ("Minimum Plumbing Facilities") of the Florida Building Code to his permit applications. CONCLUSION AND ORDER 1. After review of the record before the Chief Building Official, the recommendations and comments of the Chief Building Official, Applicant's testimony and evidence, the Board hereby detemlines that the Chief Building Official correctly applied the applicable Code section of the 2001 Florida Building Code requiring the Southeast Neighborhood Park to have a minimum of one handicapped accessible water closet and lavatory for males and one handicapped accessible water closet and lavatory for females. 2. Pursuant to the authority of the Florida Building Code, as adopted by the City of Boynton Beach, the Board hereby grants a variance to section 403.1.1.1 , number 2 of the 2001 Florida Building Code to allow the construction of the Southeast Neighborhood Park without the required restrooms, so long as the necessary infrastructure is installed to allow for the instal1ation of handicapped accessible bathrooms for each sex at such time in the future, if the Board determines the bathrooms should he constructed at the Southeast Neighhorhood Park. In twenty-four (24) months from the date of this Order, the Board shall review the variance to determine if the Applicant should install the bathrooms at the Southeast Neighborhood Park 3. The public record, including, but not limited to, the Chief Building Official's reports, memoranda, comments, and recommendations on the appeal, agenda hack-up before the Building Board of Adjustment, along with the record established before the Building Board of Adjustment on May 12, 2005, are hereby incorporated by reference. DONE AND ORDERED this __ day of , 2005 in the City of Boynton Beach, Florida. ~~ MILTON RUSSELL, CHAIRMAN CITY OF BOYNTON BEACH BUILDING BOARD OF ADJUSTMENT AND APPEALS ATTEST: