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Minutes 08-15-96 MINUTES OF THE BUILDING BOARD OF ADJUSTMENT AND APPEALS MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA, ON THURSDAY, AUGUST 15, 1996, AT 6:30 P.M. PRESENT A. Malek Abdallah, Chairman Al Newbold, Deputy Director of the Barry Goldman, Vice Chairman Department of Development Milton Russell Michael Pawelczyk, Assistant City Oris Walker Attorney Michael Bessell, Alternate ABSENT Richard Kurtz Melvin Sternbach Robert Zimmerman Robert Mulroy, Alternate A. CALL TO ORDER Chairman Abdallah called the meeting to order at 6:33 p.m. B. ACKNOWLEDGEMENT OF MEMBERS AND VISITORS The Recording Secretary called the roll. C. APPROVAL OF AGENDA Mr. Walker moved to amend the agenda to add Approval of Minutes. Vice Chairman Goldman seconded the motion, which carried 5-0. D. APPROVAL OF MINUTES Mr. Russell moved to approve the minutes of the October 12, 1995 meeting as submitted. Mr. Walker seconded the motion, which carried 3-0. Chairman Abdallah and Mr. Bessell abstained since they were not present at that meeting. E. OLD BUSINESS None. F. NEW BUSINESS Applicant: Mario Shlesinger, Shlesinger Homes Reference: Boynton Lakes North Development Explanation: Relief from Table 600 of the Standard Building Code, 1991 Edition, to permit non-rated openings in wall areas less than three (3) feet from the property line. Attorney Pawelczyk administered the oath to Earl Dean Payne, Jr., who is an employee of Shlesinger Homes. The members of the board reviewed the plans provided by Mr. Newbold. Mr. Newbold reviewed the applicant's request. He stated that the site plan for this project was approved. The plans show a sidewalk coming out of the side of the end buildings and wrapping around to the rear of the property. It crosses the platted property line and goes onto common property. The drawing shows a typical sidewalk that was approved during the site plan process. When it was approved by the City Commission, the applicant received permission to have that sidewalk. Mr. Newbold pointed out that there are windows in the opening. The applicant is in violation of Table 600 of the Standard Building Code, which states in this case that you cannot have any openings from 1 to 3 feet and there must be a one hour minimum fire rating. He said the main concern of Table 600 is to stop the spread of fire from building to building. The end buildings in question have zero lot lines. The person who reviewed the original plan should have requested that the applicant either meet Table 600 or seek relief from Table 600. This reviewer left the City, and a new reviewer discovered that Table 600 was not met. The Building Department supports this request because of the open space. The only requirement the Building Department requests is that the open space remains open. If someone wants to change the plat and put any kind of structure in that open area, it would nullify the variance and they would have to meet Table 600 at that time. He advised that Southern Standard Building has been contacted, and they also support this request. Mr. Newbold said Table 600 can be met by platting the property and moving the zero lot line further out to accommodate the percentage of openings in the existing buildings; however, this would be a hardship for the applicant. The existing buildings are finished and were sold, and the applicant would have to change the rating and do a lot of cosmetic work to bring it into compliance with Table 600. Vice Chairman Goldman clarified that the problem is that the opening in the fire wall is 3 feet or less from the property line. He pointed out that a public easement exists. Mr. Newbold advised that easement rights were granted through the zoning process. Vice Chairman Goldman pointed out that those easement rights are the rights of the Association. MINUTES BUILDING BOARD OF ADJUSTMENT AND APPEALS BOYNTON BEACH, FLORIDA AUGUST 15, 1996 Mr. Newbold advised that during the site plan process, a document giving the unit owners the right to use that easement as ingress and egress was approved. Vice Chairman Goldman stated that before the Declaration of Easements was submitted, it was the responsibility of the Association, not the property owner, to maintain the sidewalk. He asked who is presently responsible for maintaining the sidewalk. Mr. Newbold said it belongs to the Association. Vice Chairman Goldman pointed out that the Declaration of Easements states that the lot owner shall have and bear obligation to maintain in good and safe condition all easements. Mr. Newbold said this is not an issue before the board. Vice Chairman Goldman asked what the basis would be for granting the applicant relief from Table 600. Mr. Newbold stated that the strict enforcement of the Code would create a hardship for the applicant. He pointed out that Southern Standard Building accepted it, and the Building Department's recommendation is based on the fact that there is some open land there with no structures on it. Chairman Abdallah asked about the City's future responsibility if the board grants this relief. Mr. Newbold stated that any construction in that area would have to come back to the City for approval, and the applicant would have to either meet Table 600 or it cannot be done. Vice Chairman Goldman referred to Block 12, Unit 6 where there is empty space and assumed the same situation exists on the opposite side. Mr. Newbold advised that all the end units have open space, but it does not belong to the property owner. Vice Chairman Goldman stated that the open space on the inside of the outside units is on a utility easement. He asked if there are transformers on that easement. Mr. Payne said there is a transformer between Blocks 11 and 12 within the 10 foot easement of the street, not directly adjacent or between any buildings. Vice Chairman Goldman asked if this presents a problem in case of a fire. Mr. Newbold answered negatively. He said it is far enough away from the buildings. Mr. Bessell felt the applicant only needs relief in three areas. Mr. Newbold said all those properties are in jeopardy of Table 600. The applicant needs relief in order to maintain the ones completed and not have to change his plans for the ones yet to be built. Chairman Abdallah asked who owns the property. Mr. Newbold advised that the entire property belongs to the Association. 3 MINUTES BUILDING BOARD OF ADJUSTMENT AND APPEALS BOYNTON BEACH, FLORIDA AUGUST 15, 1996 Mr. Bessell stated that by granting the applicant relief from Table 600, we would also be giving him more of a percentage of openings than what is shown on Table 600. Vice Chairman Goldman said there is a big open space next to Block 12, Lot 6. It is part of the platted property. The Code is trying to protect a fire wall and the public relative to that fire wall. If the fire wall has an opening, the integrity of the fire wall is destroyed. The idea is to protect whatever is next to that fire wall from being hurt by fire. The applicant wants relief from the Code because there is a big opening in this wall. He asked if the City is saying that since there is a big empty space next to that lot line, there is no concern that anybody or anything can be hurt because the board abrogated the integrity of the fire wall. Mr. Newbold said the board is being asked to make certain nothing goes there. Vice Chairman Goldman asked if a wooden storage shed or basketball court would allowed to be erected in that area. Mr. Newbold said nothing is allowed there. Vice Chairman Goldman asked if the board abrogated the responsibility of Table 600 if the City would be liable if something was put there that drew the public and a fire occurred and someone got hurt through the opening in the fire wall. Attorney Pawelcyzk advised that this board is a quasi-judicial board and the City has an immunity against liability. Vice Chairman Goldman expressed concern about what the Association can do on that property once the developer leaves when the project is completed. Attorney Pawelczyk advised that the board can condition the recording of this variance order under the legal description of the property involved so that it will be discovered every time a title search is done. Vice Chairman Goldman asked what will prevent the Association from building something on the property in the future. Attorney Pawelczyk pointed out that they would have to meet Table 600 if that is the board's condition in its approval of this variance. Mr. Bessell asked how the board can impose such a restriction. Attorney Pawelczyk explained that the board can do this because it is giving the applicant a variance that it does not have to. Mr. Bessell pointed out that there are no dimensions on the site plan. He asked what could be built in the end spaces that would meet Table 600. Mr. Newbold stated that nothing can be built on the property where the building sits because it is on the property line. He said that area is designated as open space on the plat and was not earmarked for 4 MINUTES BUILDING BOARD OF ADJUSTMENT AND APPEALS BOYNTON BEACH, FLORIDA AUGUST 15, 1996 anything. If someone wanted to put something there, they would have to go through the site planning process. Vice Chairman Goldman asked if the easement is essentially the sidewalk. Mr. Payne answered affirmatively. Chairman Abdallah did not think the easement has any effect on the open space. Mr. Newbold advised that it is a recorded easement. Mr. Payne advised that the easement is within the open space outside of any property line. Vice Chairman Goldman pointed out that the Declaration of Easements and Maintenance Obligations document indicates that each lot owner is benefitted by that easement. Mr. Payne said the intent is for egress purposes. Vice Chairman Goldman said it also states that the lot owner has the obligation to maintain and protect that easement. He asked if this gives the lot owner an opportunity to file a variance if he wants to use that easement. Mr. Payne pointed out that any restrictions which the board may place on this relief today would take care of that issue. Vice Chairman Goldman said the basis for the applicant's request is that there is open space; however, that open space is the easement. Mr. Payne disagreed. He said the applicant's request for relief is based on the zero property line. Vice Chairman Goldman asked if the lot owner would be entitled to do something with the easement if he is benefitted by it. Attorney Pawelcyzk advised that the easement is specifically for wall maintenance, roof overhang easements, and ingress and egress. He said just because there is an easement, it does not mean you can build on the property or put a basketball court or flower garden there. The Declaration of Easements does not provide the property owner with any property rights other than ingress and egress. Vice Chairman Goldman pointed out that it states, "of such easement or construction of improvements thereon". Mr. Payne stated that that refers to a sidewalk, a plant or a sprinkler. He said the developer does not want to put any structures in the open space, nor does the Association. He has been privy to the Association documents, and they are very restrictive. Vice Chairman Goldman was trying to determine what to base this relief on. He referred to the Building Code Permit Administrator's August 2, 1996 letter which states that in order to solve the development problem, this board should provide for the perpetual "private" use of the easements. He asked if the essence of it is that the easement becomes private and 5 MINUTES BUILDING BOARD OF ADJUSTMENT AND APPEALS BOYNTON BEACH, FLORIDA AUGUST 15, 1996 therefore that is the basis for granting the variance. Attorney Pawelczyk said the Building Code Permit Administrator probably stated that in case the City needs to put something in that space. Mr. Bessell asked if this has been done previously in the City. Attorney Pawelcyzk advised that it does not matter what the board did on another piece of property. The board should look at this piece of property only to see if there is a hardship. There is no such thing as precedent in a variance request. Motion Mr. Bessell moved to grant the request for relief from Table 600 to permit non-rated openings in wall areas less than three feet from the property line. Mr. Walker seconded the motion. Mr. Walker requested that the motion be amended to state that structures cannot be built in the open space and that the open space is to remain perpetual. Chairman Abdallah agreed. Vice Chairman Goldman felt that, at the very least, there should be some restrictions on the vacant land to be that the Association does not decide to put something there in the future. In addition, he did not think that this board should be granting variances just because they are requested to. He said it is the board's job to review the requests and make a decision. He was concerned about the private perpetual use item mentioned in the letter. Mr. Russell pointed out that if someone wants to put something there, it has to meet Table 600 if the board includes that condition in its motion. Amended Motion Mr. Bessell amended his motion to include that if in the future they want to develop the vacant spaces, that they once again have to meet the requirements of Table 600 of the Standard Building Code. Mr. Walker agreed to the amendment. Mr. Bessell asked if the board and the City are protected if this variance is granted. Attorney Pawelczyk advised that the board is definitely protected. The City could always be sued for anything, and it would be up to a judge or jury to find the City liable or not. He said the board has fully apprised itself of the applicant's request for a variance, has heard all the facts, and is making a decision using their discretion. Therefore, technically, there 6 MINUTES BUILDING BOARD OF ADJUSTMENT AND APPEALS BOYNTON BEACH, FLORIDA AUGUST 15, 1996 should never be any liability. A roll call vote was polled by the Recording Secretary. The motion carried 4-1. Vice Chairman Goldman cast the dissenting vote. G. ANNOUNCEMENTS None. H. ADJOURNMENT There being no further business to come before this board, Mr. Russell moved to adjourn the meeting at 7:45 p.m. Vice Chairman Goldman seconded the motion, which carried unanimously. Eve Eubanks Recording Secretary (One Tape) 7