Minutes 04-22-98
BUILDING BOARD OF ADJUSTMENT AND APPEALS MEETING HELD IN
COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA
ON WEDNESDAY, APRIL 22, 1998 AT 6:30 P.M.
PRESENT
A. Malek Abdallah Don Johnson, Deputy Building Official
Barry Goldman, Chairman Michael Pawelczyk, Assistant City
Richard Kurtz, Vice Chairman Attorney
Melvin Sternbach
Michael Bessell
Robert Mulroy, Alternate
ABSENT
Milton Russell
Robert Zimmerman
A. CALL TO ORDER –Barry Goldman, Chairman
Chairman Goldman called the meeting to order at 6:39 p.m.
B. ROLL CALL
The Recording Secretary called the roll and a quorum was declared present.
C. APPROVAL OF AGENDA & MINUTES of the MARCH 26, 1998 MEETING
Vice Chair Kurtz moved to approve the minutes of the March 26, 1998 meeting. Mr.
Sternbach seconded the motion. Motion carried 6-0.
D. OLD BUSINESS
Chairman Goldman inquired if a member of this Board intended to reintroduce the
PETITION OF: Steve Snyder, P.E., Palm Beach County Department of
Environmental Resources, SEEKING RELIEF FROM SECTION 401.2.2 and Table
407, Standard Plumbing Code, 1994 Edition; PROPERTY REFERENCE: 3400 S.
Seacrest Blvd.
Attorney Pawelczyk stated that a Member of this Board who voted in favor of the motion
voted upon at the meeting of March 26, 1998 must make the motion to reconsider.
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BUILDING BOARD OF ADJUSTMENT AND APPEALS
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Chairman Goldman asked if any member of the Board who is present and who voted in
favor of the motion at the March 26, 1996 meeting wished to make a motion to
reintroduce the matter for reconsideration at this time.
MOTION
Mr. Sternbach made a motion to rehear the petition as presented to this meeting.
Chairman Goldman passed the gavel to Vice Chair Kurtz in order that Mr. Goldman
could second the motion. Motion seconded by Mr. Goldman and carried 6-0.
Vice Chairman Kurtz passed the gavel back to Chairman Goldman.
SWEARING IN OF WITNESSES
Assistant City Attorney Pawelczyk swore in all persons testifying this evening.
Present and RepresentingPalm Beach County
:
Richard E. Walesky, Director,
Department of Environmental Resources Management
Steven G. Snyder, P.E., Registered Engineer
Heidi Juhl, Assistant County Attorney
Chairman Goldman introduced Don Johnson, Deputy Building Official who stated the
purpose of the meeting was to re-examine the Application presented to the Board. Mr.
Johnson will be introducing additional information and facts and stated for the benefit of
those members who were present at the March 26, 1998 that the Applicant was
requesting relief from Section 401.2.2 and Table 407 of the Standard Plumbing Code,
1994 Edition.
The request for relief from Section 401.2.2 and Table 407 of the Standard Plumbing
Code, 1994 Edition in the Webster’s New World Dictionary defines “premises as a
piece of real estate.” Section 401.2.2 requires that “
“…all buildings, structures and premises intended for human
occupancy or use shall be provided with adequate sanitary
facilities as may be required, but not less than one water
closet and one hand washing lavatory”
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Mr. Johnson stated that Table 407 determines the amount of facilities that are required
for water closets and lavatories and for the proper plumbing fixtures for a building or
occupancy.
This Table requires that a restroom be required for both males and females for a public
building. Each restroom shall have one water closet and one lavatory. There shall also
be one drinking fountain available for the public. Mr. Johnson referred Members to the
Code Sections in their packets and the Table. Mr. Johnson also made reference to
footnote 6
which is referenced under Table 407 and stated it is not applicable to this
building because it is a building of public use.
Mr. Johnson stated that the Applicant is seeking complete relief from this requirement
and does not want to install any sanitary facilities at the site.
Chairman Goldman thanked Mr. Johnson for his presentation and asked the
representative of Palm Beach County to make his presentation.
Richard E. Walesky, Director of Environmental Resources Management for Palm Beach
County took the podium and introduced himself, Attorney Juhl and Mr. Snyder to the
Board and thanked the Board for allowing the County to re-present their case.
Mr. Walesky presented a brief background on the Seacrest Scrub site and stated the
Scrub was purchased by the 1991 Bond Issue for Environmental Sensitive Lands. A
$100,000,000 bond issue was created by a vote of the public to purchase these types of
lands and have been set aside for conservation purchases and are not a park. This is a
method used in distinguishing these types of lands from other lands. These properties
are being managed for their biological and intrinsic values and secondarily for some
passive recreational opportunities. The facilities on these sites are minimal and all that
is being offered is a very small parking lot, together with an educational kiosk. A
handicap access is also being offered, which will include a 1,000’ concrete pathway for
everyone’s use. A series of trails have been created to be consistent with management
roads. The site is a fire-maintained system. The area has been sectioned off in four
zones and will be managed by controlled burning.
Mr. Walesky referred to the handouts presented to the Members. The handout marked
#1 deals with the partnership agreements between the City and the County and deals
with the management plan of the site that was entered into over five years ago. The
plan further states the uses of the site and Mr. Walesky referred Members to the
highlighted areas of the agreement, which state the area is managed solely for
conservation, protection and enhancement of natural and historical resources and for
passive natural resource based outdoor recreation.
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The agreement further sets out the types of improvements to be built on the site, some
of which are fencing, a parking area, and foot trails, appropriate for passive use. Mr.
Walesky asked Members to continue to refer to the highlighted areas of the agreement.
Facilities may include walking and interpretive trails, educational displays, parking
facilities, fencing, gates and signage. Referring to page 6, Mr. Walesky stated that the
City has agreed to long-term maintenance of the site, including garbage pick-up, police
services, regular mowing and other items. Mr. Walesky stated he felt there has been a
great deal of municipal involvement in this site and a lot of work has been done to date.
A NAMAC committee has been established to review these types of projects.
Mr. Walesky presented a press release that was displayed at the Boynton Beach City
Hall for ten days prior to a public hearing held at City Hall to discuss the management
agreement, the facilities and the public needs. Members were referred to documents
1E and 1F in their handouts. Mr. Walesky stressed that the entire reasoning behind all
these handouts is to establish a long five-year process was involved on planning the
site with City staff. Also, Mr. Walesky stated that elected City officials approved these
plans, knowing what the facilities were and that in all these documents and plans, there
is not one mention of bathroom facilities.
Referring to Item #2 in the handouts, Mr. Walesky stated this is proof of the City of
Boynton Beach’s approval of the site plan. Members were referred to the chronology of
events in this packet. Referring to item 2A dated December 20, 1996, this is the first set
of questions received by the County on the site plan. Mr. Walesky stated there were
thirty detailed questions, but there was no questions related to bathrooms.
Item 2D is the County’s response to item 2A, which is very detailed. Mr. Walesky stated
that item 2C is the City’s approval of the building application and stated the County
relied on the application in good faith, as an approved site plan. The County then
issued a formal bid notice and the Board of County Commissioners approved a set of
construction plans. A vendor was selected and the vendor was authorized to proceed.
When the County returned to the City for a building permit to be issued from the
approved application, a new set of questions was presented to the County at that time
(item 2D). Mr. Walesky stated there was still no reference to bathrooms; 2E is the
County’s response to item 2D; and Item 2F is the building permit issued by the City.
Mr. Walesky referenced the second page of the building permit is the Xerox of one of
the plans previously submitted and referenced the highlighted area which states
“separate permit required for bathroom facilities.” Mr. Walesky thought that since the
County never applied for a bathroom it made sense that it was not approved. The
County verbally heard from the City that this was an issue and that the issue of
bathrooms is going to have to be addressed.
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Mr. Walesky stated the packet the County was furnishing is intended to make several
points and throughout this entire process there were many questions and answers
addressed. The application approval was received over one year ago and the County
relied on this approval to move forward with the bid process. The County has invested
a great deal of time and money in this effort and the only mention of a bathroom was an
obscure note on one set of drawings that led the County to believe there was a problem
with the bathroom. Mr. Walesky stated that the County feels City staff has erred in two
areas. Once the building application was approved, that should have been the basis for
the final issuance of the building permit. Secondly, attachment #3 contained a
highlighted statement that says –
“…all buildings, structures and premises intended
for human occupancy or use shall be provided
with…”
Mr. Walesky stated the definition does not include raw land. Page 4 of attachment #3
defines premises as
“…a tract of land with the buildings thereon: or
building or part of a building usu. with its grounds or
other appurtenances”
Mr. Walesky stated that it makes sense to include the land with the building in order that
pipes can be installed to a building, you have to consider the land surrounding the
building.
Referring to attachment #4, Mr. Walesky stated this is a list of the parks in the City of
Boynton Beach. It was forwarded to him by a citizen of Boynton Beach that highlights
the parks that are more active within the City, but do not have restroom facilities.
Item #5 was referenced by Mr. Walesky which refers to a memorandum dated February
12, 1996 prepared by him to the Palm Beach County Board of County Commissioners
when policies were being established for bathroom facilities on conservation lands, not
parks. This Board was referred to the factors that were considered at that time and
are listed on page 2 of Item #5. Mr. Walesky stated that public policy has already been
established. The Board of County Commissioners has approved five sites to date. The
larger, more rural sites will likely have restroom type facilities. The Royal Palm Pines
site is 750 acres and the Jupiter Ridge site is 271 acres. The Boynton Beach site is a
53-acre site. Also, portable toilets were installed at these larger sites. The cost of
installing the minimum facilities at Seacrest Scrub was estimated at $98,000. The cost
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of a bathroom will double the price. If this sets a new precedent and there are
approximately 15-16 sites in the County, adding $100,000 to each site, this will cost a
significant amount of money.
Mr. Walesky further stated that this is unsecured land, except for a gate to keep autos
from driving onto the land. Anyone can come onto the land, twenty-four hours a day.
This can attract vandals and loitering. There was at one time a large amount of
homeless people on this site and the City moved the homeless out of the area. The
County feels when you put running water in a restroom facility it will attract this type of
homeless person.
Lastly, Mr. Walesky stated that bathrooms are not needed. Most people entering the
area will stay on the one-fifth of a mile trail only. With regard to furnishing a drinking
fountain, Mr. Walesky stated that canteens should suffice, since this is a wilderness
experience for most entering the area. Concerning the needs of the children, Mr.
Walesky presented a letter from St. Joseph’s Episcopal School requesting that
bathrooms not be installed in the area. Regarding busing in students, it is felt that
Seacrest Scrub probably would not be a final destination and the children would
probably be going to other areas, stopping off at this area for a 15-minute experience. It
will become a tourist stop, linked to many other stops.
To sum up his presentation, Mr. Walesky stated that the bathrooms are not needed,
they are against public policy for conservation lands and are not required by the code.
Chairman Goldman thanked Mr. Walesky for his presentation and made the
following comments.
With regard to the element of surprise stating how long the process has taken place
and some obscure stamp appearing on a plan, Mr. Goldman stated that Mr. Walesky
was aware that when plans are processed they go through a great deal of procedures.
An inspector can go to the site and problems can develop at any time. This is quite a
common occurrence.
Chairman Goldman stated that the issues are people and bathrooms and that the area
is a public accommodation, which will have trails, parking lots, AT compatible, fences,
and overall the public will use the area. With all these amenities being placed on the
property, it should be no surprise that a bathroom will be needed.
Mr. Johnson, Deputy Building Official agreed with Chairman Goldman’s comment that
Mr. Walesky should not have been surprised that when a permit is issued, there is a
disclaimer that states applicant must get approval from every other jurisdiction,
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municipality, etc. for the various permits. With regard to Item 2A submitted by Mr.
Walesky regarding the December 20, 1996 TRC memorandum from Tambri Hayden,
Planning and Zoning Director and referring the Board to item 27 on the memorandum it
states:
“The content of the plans are subject to compliance
with all applicable city code of ordinances. It is the
applicant’s responsibility to show compliance. “
Item 30 on said memorandum states:
“All plans submitted for specific permits shall meet the
City’s code requirements at time of application…”
Referencing the last paragraph of the memorandum, it states;
“The instructions and comments herein should be
followed or incorporated into your plans and
submitted to the Building Department to initiate the
permit review process”.
Mr. Johnson stated that the Building Department is not against Mr. Walesky’s proposal,
but have to enforce the code. Mr. Johnson stated that when Mr. Snyder appeared at
the March 26 meeting he checked the Southern Building Code and determined that the
City' s definition was correct in their interpretation. Again, Mr. Johnson stated the City
Building Department was not against the County’s request, but have to apply the
applicable section of the code. Mr. Johnson further stated that the Building Division
tried to work with the County when it saw that the plan did not include a bathroom
facility. At that point, the Building Division stamped the note on the plan to allow the
County to get their permit so that construction could begin. The City wants this project
to succeed and that was the reason for the note.
Chairman Goldman restated his opinion that there should be no element of surprise
because these types of situations occur all the time. Chairman Goldman stated that
the Building Department has to follow the code and this Board, is a quasi-legal board
established by the City, and the purpose of this Board is to provide relief. By this
Board providing relief, it allows the Building Department to do their job, without having
to waive certain aspects of a project.
Vice Chairman Kurtz stated he felt the meeting was getting off the issue in
interpretations of codes. The issue is the County is appearing before this Board for
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relief from the codes, because the County does not feel they have to comply in this
case and that is the issue at hand.
Mr. Abdallah asked if there would be any liability if persons used the area to relieve
themselves? Would the police be called in this type of situation as a nuisance has
been created, or if someone were to become sick, who would be liable? Would the City
or the County be liable?
Mr. Walesky stated that the City of Boynton Beach is the manager of the property,
which means the City provides police and fire protection. If a violation of law occurs, it
is the City’s responsibility to handle it. If there was an accident with true liability, the
County owns the property and the County would be liable.
Mr. Sternbach asked what the definition of park versus natural conservation and was
informed the area in question was natural conservation. Mr. Sternbach presented the
scenario of any young female in need of bathroom facilities while in the area and is told
that there is a bathroom one-quarter mile down the road that causes stress to the
young female. How do you address this type of situation! Mr. Sternbach stressed that
people need bathrooms.
Discussion ensued regarding how to address these types of situation.
Mr. Abdallah inquired what was meant by “temporary bathroom”? Mr. Walesky stated
they are portalets that are provided at larger sites by the County and that portalets
would be better suited for this area. Cost wise they are inexpensive and maintenance
free. The cost to the county is $1200 a year for portalets versus $100,000 for
restrooms, which have to be maintained and cleaned.
Mr. Mulroy stated that it was up to this Board to come up with a recommendation.
Motion
Mr. Mulroy made a motion to grant relief to the Petitioner from the plumbing code. Vice
Chair Kurtz seconded the motion.
Chairman Goldman opened the floor for discussion.
It was further stated that the majority of the audience do not want these facilities at the
Seacrest Scrub and this situation has occurred with other parks within the City limits of
Boynton Beach, some of which are more used than this facility and relief from this
requirement was granted. Also, If the County does not want to build the facility, the
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City as a partner will have to build the facility. If the park gets so much use and the
need arises for this facility, some one will have to put the facility in.
Vice Chair Kurtz stated that there was no need for these facilities, as the Seacrest
Scrub is located in the middle of the City on Seacrest Avenue. There is the Episcopal
School across the street, the Seacrest pool within walking distance and that any
emergencies could be handled.
Mr. Sternbach stated we would be going back to the “gas station syndrome”. Mr. Kurtz
stated that he didn’t feel this situation applied.
Mr. Bessell noted that one of the handouts provided states that the City will be
responsible for opening and closing the facility. Mr. Bessell also referred to an
interoffice memorandum from Mr. Walesky which says that the typical visitor
experience would include 15 minutes in the parking lot looking at the kiosk, 30 to 45
minutes walking the 1,000 foot nature trail, for a total time of one hour. Also you have
to include the time coming to and from the facility. Mr. Bessell stated he could not
support the motion unless there is a facility closer to the area inasmuch as the closest
bathroom is one-half mile away.
Mr. Abdallah made the suggestion that one or two portalets be placed in the area for
emergency situations.
Attorney Pawelczyk advised the Board that he was not sure whether Mr. Walesky has
completed presenting his case. If not, he has to be given the opportunity to call
witnesses. Even though a motion was placed before the Board and seconded, Mr.
Walesky still has to be afforded the opportunity to present his witnesses.
Mr. Walesky had approximately 6 witnesses who wished to speak. Chairman Goldman
requested that each person testifying limit their time to 3 minutes each.
Vice Chair Kurtz at this point requested that it be recorded in the minutes that he
objects to this action
. Vice Chair Kurtz further stated there is a motion on floor that
was recognized by the Chairman, the motion was seconded, and the motion was
opened up for discussion by the Board and therefore the time for witnesses is over.
Also, Mr. Kurtz requested that he go on record that he disagrees with Attorney
Pawelczyk’s interpretation of these proceedings.
Attorney Pawelczyk stated that for the record, this Board has to afford due process to
the applicants and in doing so, we may have to stride a little bit from “Robert’s Rules”
as in this case, because the motion was made prematurely.
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The first witness took the podium.
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Mike Fitzpatrick, 101 SW 4 Avenue, Boynton Beach, Florida.
Mr. Fitzpatrick
stated that he is a four-year member of the Recreation and Parks Advisory Board for
the City of Boynton Beach. Looking at Boynton Lakes versus Meadows Park,
Meadows Park has a bathroom. When Boynton Lakes was built, it was scheduled to
have a bathroom also, but the residents did not want it, so therefore none was built.
Also, with regard to Forest Park, that Park does not have restroom facilities. Kids
Kingdom which was built two years ago and which was intended to have a bathroom
still does not have a bathroom to date. Mr. Fitzpatrick stated that at least 1,000
children visit Kid’s Kingdom weekly. He also stated that at the next Parks and
Recreation Board meeting he plans to present a resolution to that Board to support not
having bathroom facilities installed in the Seacrest Scrub.
Stella Rossi, Chair of the Coalition for Wilderness Islands.
Ms. Rossi stated that
this group was formed in 1983 to set aside wilderness areas. Ms. Rossi further stated
that there are only small portions of wilderness areas left and the reason for the name
of our coalition is because these areas are surrounded by development. Ms. Rossi
thanked the Board for letting her speak and stated that since 1983 they attend all
meetings on the Management Plan in the County. Ms. Rossi stated that she had taken
kindergarten classes to Seacrest Scrub and never was approached by any child in
need of a restroom. The most children seem to stay is approximately 30 to 45 minutes.
The Scrub area is intended for scientific research, bird watching, and photography or
simply to walk into the woods for enjoyment. This is one of the last remaining sites in
Palm Beach County and the plans for the area were approved by the Board of County
Commissioners without bathrooms and we ask for relief from section 401.2.2. Ms.
Rossi thanked the Board for letting her speak.
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Mark Behar, 298 NW 11 Street, Boca Raton, Florida.
Mr. Behar stated he has
been attending these types of meetings for the past three years. Mr. Behar stated he
felt that this was a new area for the City of Boynton Beach and that there are no
precedents for development of these areas. He further stated that the County’s passing
of the $100,000,000 bond issue was for the specific purpose to preserve natural areas
and not to accommodate the public first. The first and foremost reason was to
preserve the echo system and then accommodate the public without harming the echo
system. Mr. Behar stated that bathrooms do not fit the criteria and that bathrooms
would encourage loitering plus the great cost of installing and maintaining the facilities
was not justified.
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Fred Cichocki, 750 NW 6 Drive, Boca Raton, Florida.
Mr. Cichocki stated that the
purpose of preserving these lands was for the preservation of native Florida history and
natural history for posterity and the intent of creating these areas was to have the
lowest impact as possible on the site. Mr. Cichocki stated he was in agreement with
everything that has been presented and Seacrest Scrub should be considered as a
special case and felt the $100,000 could be better spent to maintain the property for
several years. Mr. Cichocki thanked the Board for letting him appear before them this
evening and asked them to reconsider their order to install bathroom facilities on the
site.
Rosa Durando, 10308 Heritage Farms, Lake Worth, Florida.
Ms. Durando stated
that she has been working for environmental issues for over thirty years and is a
member of the Environmentally Sensitive Land Acquisition Selection Committee. Ms.
Durando stated that bathroom facilities would encourage vandalism and there would be
a constant need for repairs. Also, Ms. Durando stated that portalets would not be
appropriate for the Scrub, as they would be placed almost on the sidewalk.
Grace Iverson, 8818 SE Sharon Street, Hobe Sound, Florida.
Ms. Iverson stated
that the point to creating areas like Seacrest Scrub is to afford residents the opportunity
to enjoy these types of wild spots into the future. Ms. Iverson stated the idea is to keep
living history alive and referred to the area in Boca Raton between the railway and I-95.
These areas are intended to be preserves of natural history, a monument to the next
generations and are a rim of the Everglades. The area is unique to certain native birds
including the Florida Scrub Jay.
Enrico Rossi, 625 Whispering Pines Road, Boynton Beach, Florida.
Mr. Rossi
stated this land is located close to his residence and that the entire issue revolves
around one word which is the definition of “premises”. Mr. Rossi stated that the
premises
definition of is “buildings and land”, which was obtained from the
Webster’s Dictionary.
Chairman Goldman asked Attorney Pawelczyk for his interpretation of the definition of
“premises” presented tonight before the Board. Attorney Pawelczyk stated that the
building officials made the determination of the definition and feels that the appeal is of
that determination.
Chairman Goldman asked Attorney Pawelczyk what this Board is supposed to
determine what the definition is? Attorney Pawelczyk informed Chairman Goldman
that the Board has to determine whether the County is entitled to relief.
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Chairman Goldman thanked all those who testified. Chairman Goldman stated that he
heard five issues and restated those issues and if you are going to have a natural
preserve maintained, with trails, parking lots, pathways and fences placed on the area
that meet ATA standards, it becomes more than a natural preserve.
Mr. Mulroy stated that a motion was made and it was seconded. There has been
discussion and it is now time for a vote on the motion. Chairman Goldman asked for
those in favor of the motion to say “aye” and those against the motion say “nay”. The
Recording Secretary called a roll of the vote on Mr. Mulroy’s motion.
Mr. Mulroy Aye Mr. Bessell Nay
Vice Chair Kurtz Aye Mr. Sternbach Nay
Mr. Abdallah Aye Chairman Goldman Nay
All members having voted, the motion does not pass. The vote was tied with 3 ayes
and 3 nays.
Attorney Pawelczyk stated that another motion must be made to determine why the
motion did not pass.
Chairman Goldman asked if there were any additional comments. Chairman Goldman
stated that the matter should now be reheard before the full Board.
Motion
Vice Chair Kurtz made a motion that this Board grant relief in accordance with Mr.
Mulroy’s motion by having the County and/or City provide on site portable toilet
facilities. Mr. Abdallah seconded the motion.
Chairman Goldman asked if there was any discussion. There being none, the
Recording Secretary called a roll of the vote
Mulroy Aye Bessell Nay
Vice Chair Kurtz Aye Sternbach Nay
Mr. Abdallah Aye Chairman Goldman Nay
All members having voted, the motion does not pass. The vote was tied with 3 ayes
and 3 nays.
Mr. Bessell inquired if the State of Florida has any interest in this property? And was
informed the State no longer has an interest.
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Chairman Goldman stated that since a decision cannot be made tonight, that the
matter be tabled and heard at a future meeting at which meeting the full Board would
be present.
Motion
Mr. Kurtz made a motion that the matter before the Board be tabled until it can be
heard by the full Board at a future meeting. Motion was seconded by Mr. Steinbach.
The Recording Secretary called a roll of the vote to table.
Mr. Mulroy Nay Mr. Sternbach Aye
Mr. Bessel Nay Chairman Goldman Aye
Vice Chair Kurtz Aye
Mr. Abdallah Aye
The motion passed 4-2.
Discussion ensued as to when the matter can be heard again. Chairman Goldman
stated they would try to have a meeting as soon as possible in order that all Board
members be present.
Chairman Goldman asked for a motion to adjourn the meeting.
Motion
Mr. Sternbach made a motion that the meeting be adjourned. Motion seconded by
Vice Chair Kurtz and carried unanimously. Meeting adjourned at 7:58 p.m.
Respectfully submitted,
____________________________
Recording Secretary
(two tapes)
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