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Minutes 11-24-09 MINUTES OF THE PLANNING AND DEVELOPMENT BOARD MEETING HELD ON TUESDAY, NOVEMBER 24, 2009, AT 6:30 P.M. IN COMMISSION CHAMBERS. BOYNTON BEACH, FLORIDA PRESENT: Shirley Jaskiewicz, Chair Roger Saberson, Vice Chair Matthew Barnes Sharon Grcevic Candace Killian Jeff Lis Steve Myott Warren Timm, Alt. Mike Rumpf, Planning Director Jamila Alexander, Assistant City Attorney 1. Pledge of Allegiance. Chair Jaskiewicz called the meeting to order at 6:32 p.m. Vice Chair Saberson led the Pledge of Allegiance to the Flag. 2. Introduction of the Board. Chair Jaskiewicz introduced the members of the Board. 3. Agenda Approval. Motion Vice Chair Saberson moved to approve the agenda as presented. Mr. Timm seconded the motion that unanimously passed. 4. Approval of Minutes. Motion Vice Chair Saberson moved to approve the minutes. Ms. Grcevic seconded the motion that unanimously passed. 5. Communications and Announcements. A. Planning and Zoning Report 1. Final disposition of the January 27, 2009 Planning and Development Board meeting agenda items. Mike Rumpf, Planning and Zoning Director, reported the following actions taken by the City Commission: 1 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 . Sunshine Square, Phase I, Site Plan Time Extension for a Major Site Plan Modification - approved . Defilipis Pool Variance - approved . Seacrest Surgical Center (3 items) parking lot variance, front setback variance and Major Site Plan Modification - approved . IPUD Zoning District, Marine oriented water dependent land use item - approved with the addition of items recommended by the Planning and Development Board. The amendments addressed references to the preferred zone, limited outdoor display of boats for sale, limited stay-over provision!), and minimum lot width requirements for marina uses. The members were polled to ascertain whether they were available for the December 22, 2009 meeting. Since the members would be present, the meeting would move forward. 6. Old Business: A.1. Pro-Golf/Mega Mini (ADAP 09-002) Administrative Appeal, located -at . 2951 SW Place. Request for appeal of administrative determination that a storage bay shall not be used to manufacture, fabricate or process goods in a self-storage facility bay in the M-1 Zoning District as indicated in Chapter 2, Zoning Section 11.0.1 .c. Applicant: Michael Weiner, Weiner & Associates, PA (Tabled on October 27,2009) Motion Vice Chair Saberson moved to remove the item from the table. Mr. Barnes seconded the motion that unanimously passed. Mr. Lis inquired why the item had to be removed from the table since it was an item on the agenda. Attorney Alexander explained Roberts Rules required its removal. Attorney Alexander administered the oath to all who would testify. An updated memo was distributed to the members. Mr. Rumpf explained when the item was first presented, staff presented information that was known at that time. Based on that information, staff concluded that the appeal should not be supported. Current regulations opposed the operation of businesses within self-storage warehousing operations as approved by the City. It is still staff's understanding that the proj~ct was originally reviewed and approved as principally a storage business, i.e. self-storage, or a warehousing type of operation. When the item was tabled, staff met with the applicant to determine which bays of the project should be recognized as being allowed to accommodate business operations other than just storage or warehousing of business or personal goods. They were also 2 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 to confirm what the original approval was. There was a lack of public recmd, i.e., original site plan file approval and the minutes, which would correspond with the date of the original approval. Two meetings were held; the second of which was a site v.isit. The distributed memo contained the conclusions and findings to-date of information collected from the site visit and other sources. Prior findings were originally provided to the Board in the staff report. A copy of the memo is included with the meeting materials. Staff disagreed with the Appellant's assertion that the ,size of the bays was larger than what would be used for storage. In the late 1970s, self-storage was not a business, such as Stor-AII that was used by white-collar businesses, and for personal goods rather than for commercial entities. The subject project was warehousing as much as it was self-storage. Any commercial business involving landscaping, tiling, and irrigation would have merchandise and equipment that would be sizable and would have a need for space larger than a 10' x 10' bay. The bays were not large enough to assemble large pieces of equipment. The other argument was the existence of electrical meters for many of the units. 'A self- storage mini-warehouse would not have electrical needs that varied enough to require individual meters based on the size of the units and the types of goods there. One bay had a small type of forklift. There was varying equipment on-site and some businesses may require electric-powered equipment. There were refrigerators. Large units.would require more lights; however, staff did not feel it was a sound basis to argue that they were approved for business occupancies. . . The Building Codes referenced have not changed since the late 1970s. The' Codes require minimal restrooms, mechanical ventilation and separation walls for business occupancies. Business occupancy was not a business that was there for the ~torc;lge and management of their goods; it was to conduct a business there. The Building Code was clear in defining what a business occupancy was. Staff observed very few shared restroom facilities. 'If there were 216 units assumed and reviewed at that time by technical staff that were to be used for business occupancies, there would have been many more bathroom facilities, as required by the Americans with Disabilities Act. . The mechanical ventilation would vary. From what staff saw, (which were not the bays that were assumed to be currently operating an approved business) it appeared there was very minimal mechanical ventilation. As to the argument that the original construction was for business occupancy, staff noted from the site visit that one or more buildings had been modified subsequent to the original approval and construction. The small closet-type storage spaces, accessible by an exterior man-door, were modified and consolidated to make them larger to accommodate either larger storage spaces of business occupancies. There appeared to be a modern and an original system of identifying the buildings via letter, "A" through 3 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 "J". An older plan showed a building as "B" or "D", and was identified as being intended for business occupancies, but not really being used for it. Those were the small :;Iosets that were converted to twice their size by the removal of interior walls, a center wall and rear wall. Staff aiso noted additional unpermitted work regarding interior walls being removed and roo.f drains being added. which penetrated a supporting wall with reinforcing rebar.' The Appellant indicated he called in when they replaced the man- doors with roll-up doors when the units were consolidated, but staff was confident no City reviewer would have approved that type of alteration to a supporting portion of the building. To date, all versions of the site plans reflect the parking ratio of 1 :800 was applied to the entire site. The zoning regulations in the late 1970s and 1980s indicated 1 :800 ratios were for a storage use. A more intense use, such as Industrial and active business, would have a parking ratio that would vary between 1 :300 or 1 :500 spaces per square foot. The Property Appraiser's office lists the property as a storage use category. A 1992 site plan application that had to do with the parking area did not detail the buildings.on the plan, but had a note describing-them as being storage buildings. , The Appellant has not provided staff with any evidence. contrary to the findings Of staff as it pertained to the item staff just discussed. It was staff's position that the project was not approved for business occupancies and operations other than for storage purposes/warehousing and goods. If it was the preference of the Board to forward the recommendation to the City Commission that it should allow suCh activities, t~en the regulations needed to be revised. Another unpermitted improvement to the project was the addition of lofts. Parking requirements for storage purposes applied to bay types; not square footage. If one or more spaces were approved for business occupancies, the parking requiiement methodology would differ based on square footage. One or more units were retrofitted to add loft space which changed the parking requirements because it increased storage capacity. These changes which would then require other improvements, such as parking. Allowing the use would require a revision to the regulations and a major site plan modification for the site to be evaluated by a designer and reviewed by staff for conformance with the regulations. Mr. Lis left the dais at 6:53 p.m. Michael Weiner, Attorney for the applicant, requested Glenn Friedt assume the podium as he was familiar with the history of the property. Glenh Friedt, 3184 SE 12th, Ap'artment H, Pompano Beach, was present. Due to'an eye condition, he requested a friend read the statement he prepared. 4 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 Mr. Lis returned to the dais at 6:55 p.m. Bob Gaudio, of Ft. Lauderdale, read the statement. The Mega Mini facility that Mr. Friedt invested in was owned since 1974. The partnership purchased the land and constructed the first set of buildings in 1974. In 1986 Mr. Friedt took control of the partnership that operated the property. Later there were additions completed by 1987. The partnership consistently operated the property since the completion of the original construction in 1974. The original buildings constructed in 1974 were built for commercial warehouse, wholesale and light industrial uses. It was the partnership's intention to rent space for all types of uses covered by the Code at the time of the construction. While in 1987 they expanded the property by adding a self-storage component, they never changed their operations for the remainder of the property. After the completion of the addition in 1987, the City never asked that their other tenants move from the property. There were no difficulties with the operations after 1987 until 2007 and 2008. In the past few years, the City has had inconsistent policy regarding the property. The City continued to grant occupational licenses and allowed businesses to mi)ve in. Currently, there were a number of businesses operating out of the property. In 2007, the City discouraged the issuance of licenses and issued Code Enforcement violations as to the use. This was the first time the City disputed their open, continuous and intentional use of the property. Mr. Friedt requested legal counsel exhaust all qvenues of appeal, as the decision was a reversal of their treatment and could not be lawful. They relied on past approvals from the City, the issuances of licenses to their tenants and the City's receipt of taxes from them, There were 413 self-~torage bays a'ld 216 larger industrial units on the property available to lease to tenants for any use within the M-1 zoning district. The property was a source of revenue to the City. It generated about 200 jobs locally and could create additional jobs. Their activities were not bothersome, obnoxious or unlawful. Mr. Friedt contended there was no good reOlson to limit the use of the buildings after 35 years of continuous use of that purpose without any adverse effects on the City. He requested the decisions of staff be reversed. Mr. Gaudio met with City staff twice and he thought progress was made at the first meeting, He invited them to the property for an inspection and hoped to soliqify the history of the property. He addressed issues in the City staff report. Mr. Guadio explained the City claims they iNere not given access to bays where existing busihesses were operating, and only saw bays that had storage. Mr. Gaudio contended City Staff inspected at least two bays where maintenance was being carried out on a regular basis on lawn equipment. He felt that was operating a business out of the bays, and not just storing equipment. There were a number of tools and supplies for the maintenance of equipment. The condition of the bays clearly indicated that maintenance was Garried out. There were air compressors and other types of hand tools and maintenance items in the bays. Mr. Rumpf inspected the meter room. Mr. Gaudio contended the City authority on meters tried to find a stamp that would provide a date. When it wa~found on the main electric meter, he claimed that it proved none of the other meters could 5 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 have been installed prior to 1987. He explained that in 1987, they tore up the front portion of the concrete slab in order to add lines to the new two-story, self storage building, and they put in a new meter box. There were an additional 37 meters attached to the emergency breaker that .were in the original slab with the original construction. Mr. Gaudio was told the individual meters were not proof of the use of the buildings. Mr. Gaudio contended it was not difficult to figure out that when they have sen/ice in individual units, which includes a separate breaker box inside the individual units, with both 110 and 220 lines, it was not a self-storage use. He spoke to two electrical contractors who have done a lot of work in the self-storage industry in South Florida, and neither had ever been to a storage facility that had anything other th,m 9. single meter supplying electric to the: entire property. There were 38 meters on site. Most of the meters were not running because the tenants were moved out,at the request.of City staff. Mr. Gaudio commended Mr. Rumpf who was present at the on-site meeting, and believed he had a sincere, open mind. He asserted the balance of the staff had one agenda only as noted by the errors in the report. The Appellant had created a spreadsheet of the units they considered business units which showed a $20 thousand dollar vacancy per month. from the units. This Io.:>wered the value of his property by $2.5 million. He hoped the Board would take staff's recommendation with a grain of salt. " Vice Chair Saberson inquired how long Mr. Gaudio was the manager of the facilit.y. 'Mr. Gaudio responded he was there one year, and it was his first employment with this storage facility. Mr. Gaudio explained there both men's and women's restrooms 'on site used by their tenants and by tenants from both of their neighbors to the sout~. They have a total of fiv~ restrooms for the facility. As to parking, at the time of the ,original use of the property, the parking ratio was adequate per Code. When they added the storage, they mayor may not have met the requirement. Mr. Gaudio was involved with Mr. Friedt for over 20 years, and in the past, had been to the facility many times. Mr. Gaudio travelled to assist Mr. Friedt and his companioh. He worked for a major real estate company in Florida, Texas and Colorado Mr. Friedt was the managing partner and majority owner of the facility. It was noted Mr. Gaudio was not a part of the deliberations that resulted in Mr. Friedt's earlier statements. ' The Board inquired about records from the business from the 1970s and early, 1980s showing they were still operating as a business enterprise. Mr. Friedt responCled he had tons of paper, but the facility was severely damaged during Hurricane Wilma. Some records were wiped out, butthey had some far reaching records. Mr. Rumpf explained at the site-visit, staff asked for anything related to approval records or site plans as staff did not want to make untruthful statements and was open to any 6 ---.~ Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 proof the Appellant had. Chair Jaskiewicz inquired if the Appellants read the comments from Building staff that woulc;l permit them to legitimately lease industrial bays if they conformed to the Code requirements to permit a change of use. There were comments listed to assist the applicant in compling with the current regulations. She asked if any effort had been made by them to retrofit and change. Mr. Gaudio responded he had not seen any documents from the City that indicated they would accept an application from them to retrofit any of the buildings that would be successflllly met. At the site inspection, it was made perfectly cleilr by City staff that it would not happen, Mr. Gaudio explained retrofitting the property to meet the current Code was most likely not economically viable. He also indicated for the past 35 years, the property operated and functioned extremely well without any harm or damage to any individual or community. Chair Jaskiewiz explained the minutes in 1986 indicated the facility was primarily used for dead storage as reflected in Exhibit D. Mr. Gaudio responded it was not correct. Mr. Lis interpreted the exhibit to be specifically related to the application to construct buildings added in~ 1987. He further inquired why this was never brought up over the last 35 years. He agreed with the Appellant and expressed he found the staff report to be slanted. He asserted there was nothing in the staff report that slJPported anything the Appellant had done 'in 35 years. He explained the Appellant was allowed to pull permits, operate a business and receive occupational licenses. He Wanted to know the compelling reason for the action and the motivation behind the request becoming a big issue to change the way it was operated. Mr. Lis explained his understanding was the Code allowed for grandfathering, and unless grandfathering was changed specifically through development orders, the project was allowed to exist as a non-conforming use. He did not see anything in the' record that indicated they were told they could not continue to operate the way they had for the last 35 years. Mr.Lis explained the petition read by Mr. Gaudio made sense to him, but what staff presented did not.' Mr. Rumpf explained over the time period, the issue only reached administrative levels. Staff was doing as much research as possible to address the land development regulations and the Planning' and Zoning system. He also was. using information to obtain facts from the Building side of the application. The Building Department neec;led to be an integral part of the evidence base for the original approval. Prior to the date when the appeal Was submitted. there were numerous administrative actions that occurred that were referenced earlier by Mr. Guadio. He contended a business left the facility because the City would not allow it to stay. Staff resear~hed several of those businesses. Code Compliance also provided facts, information and actions that had taken place involving the property in the past. Staff recognized the absence of (~cords 7 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24. 2009 during the time period, but also acknowledged during the last 10 years there was documentation from Code Compliance that showed the violation was they needed to obtain a business license - not the zoning. Staff tracked the responses to those violations. The administrative actions indicated the use was not an approved use. Staff had 16 business tax records they could locate dating back to 1989. Of the 16, most indicated what the business operation was. Mr. Rumpf read one use for a business, which was storage. Mr. Rumpf did riot, at the time, haVe any paperwork indicating they were cited by Code Compliance. This would indicate the facility was used just' for storage. Mr. Rumpf asserted the statement made by the Appellant indicating the City, over the years, approved business occupancies and activities. 'the records indicated most of the licenses they approved, in addition to the parent license of Mega Mir:i, were individual licenses that documented the facility was used for storage and warehousing of goods. One license was for a manufacturing business and a note on the license read "no manufacturing in mini-storage." Another business indicated it was stor3ge of pressure cleaning equipment. Another said, storage of convertible conversion kits. Mr. Lis inquired if staff found. any applications where a prospective tenant applied to operate a business and the City issued a business license. Mr. Rumpf respon<;led no and that the original staff report indicated over the years, there were a few that were inadvertently approved. During Mr. Rumpf's 22-year tenure years, there were four Occupational License administrators. The Occupational License was now referred to as a Business Tax Receipt. He explained during those years there were varying degrees of closeness between the zoning function of the City and the Occupational License function. For a storage business, the first thought of the City Reviewer, when receiving a license applicaticin was to check the address and a zoning. The application contained very little information, and it mayor may not indicate the business was located out of a self-storage facility. It did; however, indicate the zoning district. ' Mr. Rumpf explained there could have been licenses issued inadvertently, but staff was documenting the actions taken that were consistent with modern zoning regur~tions. Since 1974, all the permit records and the volume of paper represented during that ffme for this project showed there was a 1979 permit record to a contractor, a permit number, a valuation of $1.1 milllion dollars and a final date of January 27, 1980. The purpose was storage warehouse. The significance of that determines the use occupancv class and it determines the construction type, materials and others. The paperwork jid not indicate occupancy, it indicated purposes. Staff did not know what the $1.1 million applied to, but it described 2950 - 1 building, 2951 - 7 buildings or buildings 1-7.' There were multiple buildings and it indicated storage warehouse. . Mr. Rumpf explained occupancy classes have not changed from a Building starppoint. Mr. Lis inquired about the zoning standpoint. Mr. Rumpf explained there were use descriptions in zoning that still'differed storage/warehousing, storage and warehousing. Parking requirements are broken down for storage and warehousing, manufacturing, fabricating, and assembling business type occupancies. Mr. Lis referenced a statement made by the appellant regarding the uses they described that were ongoing since 1974 8 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 which were more than just storage and warehousing. Mr. Gaudio repeated Mr. I'riedt's statement he read earlier which was "the original buildings built in 1974 were built 'for commercial warehouse wholesale and light industrial uses." Mr. Lis suggested 'the definition of warehouse storage was where the parties differed. The Appellant b'3lieved they were allowed to use the premises the way they were since 1974, which was what they were doing. Staff's interpretation of storage warehouse based on staff's research was not consistent with the Appellants who were now told they were to close down operations when they had bays that were built out and permitted, and had electrical outlets. Mr. Lis explained electrical outlets were not needed for storage because they have a light switch. Chair Jaskiewicz pointed out not all of the buildings were there in the 1970s. Most of them were documented in the 1980s, as reflected in the minUtes indicating they were for the same uses as the others, which was dead storage, (Exhioits llF"& "G".) Mr. Lis inquired how many buildings and square feet of building footage existed prior to 1986 and 1987 and what they were used for. Mr. Gaudio explained a photograph taken at the end of the second construction phase in 1986/1987 showed five or six buildings with roughly 70,000 square feet. Of those buildings prior to 1986 and 1987, about 40,000 square feet were industrial. Mr. Lis inquired, as it pertained to those industrial uses, how much square footage exists outside of the original 40,000 square .feet of original buildings. Mr. Gaudio explained there was Building "B". Mr. Lis explained there were certain number of buildings prior to 1986/1987 and there were anticipated uses allowed in those buildings prior to that date. He asked if any of those uses migrj3ted to any of the businesses that existed after those original buildings, or M-1 uses beyond self storage if they migrated out of those buildings into other buildings. Mr. Gaudio responded Building "B" went from a true storage and was retrofitted during the construction of the two story, climate controlled self-storage that went to an industrial use, that probably that was not correct. It was noted the Mini-Golf wanted to move into the original, pre-1986 buildings. Mr. Weiner explained they received a memo only recently, and discussed parking. Mr Weiner explained the current parking Code required 1 space for each 800 square feet. It indicated warehouses and other indoor storage facilities/warehouse - industrial complexes: 1 parking space for every 800 square feet. The Property Appraiser description reads Warehouse/Distribution Terminal. It does not indicate only warehouse. Attorney Weiner explained in 2003 a 95,000 square foot warehouse facility was approved. This building was approximately the same size. as the Appellant's building elsewhere in the City. It had 721 bays, which was more thim the subject's building, and it was approved with 17 parking spaces. In 1986 and 1987, the Appellant learned there was an issue regarding bathrooms as they' were adding 18,000 square feet of building. The architect submitted a letter that indicated the prqposed building addition did not require any water or sewer hookups and the existing re~troom facilities in the adjacent building served as the new addition. 9 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 Attorney Weiner explained there were two applications with one of them being. for refurbishments. The second application was to build additional buildings fOf self- storage. Those applications addressed storage and warehouse use. In moving through the process, Attorney Weiner referenced a memo from Carmen Annunziato which indicated the building must be handicapped accessible and staff used 1987 standards. Non-fire rated partitions were allowed to separate tenants provided no area between one-hour rated partitions for like occupancies was used, which was not the wording used for self-storage facilities. The City allowed the partitions to be built-in. The memo explained exit doors must be provided for all tenant spaces, which Mr. Weiner a!';serted was not required for self-storage alone. Attorney Weiner explained in their original application for appeal, Exhibit "F" listed some of the occupational licenses, business taxes and some of the classification codes. Mr. Weiner explained the only reason why the activity at the facility decreased was because the City's attitude changed. Attorney Weiner referenced Mr. Rumpf's memo and explained they reserved the right to put additional records into the file as they attempt to uncover documents which are 35 years old. He explained parking, handicapped spaces and restrooms were reviewed and decided on in 1987. Since 2000 there were 30 to 40 building permits issued. Attorney Weiner asserted the City could not match them to what occurred there. and it would be inaccurate to have a wholesale recommendation regarding all that was done hffi. . There was mention of a 1992 site plan, which had to do with parkJng. AttorneyVVeiner explained if they were in another jurisdiction they would not be present. The property had M-t zoning with a future land use for Industrial. It was a qui,rk in the local. 'zoriing code that self-storage was singled out, and they did not know When the singling out occurred. The Appellant was arguing the uses did not exist. Attorhey Weiner explained if they rented to a fabrication entity, they were an industrial zone. He inquired if the facility lost their right to rent to someone who wants to undertake an industrial or processing activity ,if a tenant rented there for 20 years. He asserted just becau~e they were renting to different uses did not mean they lost them. That was their point. Attorney Weiner felt they met their burden of proof in the matter and the City admitted they could not find all of their records The one person who testified knew about the building, the occuRancy, and its management and operation over the past 35 years and apart from that, everyone else was guessing. Attorney Weiner explained they only stated one-third of the facility was reserved for warehousing, which may have created confusion for Code Enforcement. However, Mr. Friedt believes he has 216 bays that were available for uses in the M-17,oning. Attorney Weiner explained that wa's grandfathering and he did not need to do artything more. Attorney Weiner explained they demonstrated it continued to be used un that basis. As it pertained to Code Enforcement, there were small businesses there, and there could have been individuals who installed junction boxes or scaffolding th~t they 10 Meeting Minutes Planning and Development Board Boynton Beach, Florida . , November 24, 2009 were not supposed to, which they would address Attorney Weiner felt' Code Compliance becoming involved with uses was wrong. Attorney Weiner requested the Board recommend to the City Commission that they find a way to preserve their 216 warehousing units, which they had done, and to determine the facility worked, that it continue, and that the 416 bays were storage. Chair Jaskiewicz corrected in 1986, a partner, Doug Long indicated the entire building would be used for dead storage. Ms. Grcevic explained she believed the 1986 minutes indicate the approl/alfor the 19,000 square foot storage addition, to be located between buildings "D" and "E", would be used for dead stOFage. She inquired if the 19,000 square foot building was used for dead storage and if any businesses were there. which building they were in. . Mr. Gaudio explained the building referred to in the memo was a 19,000 square foot air conditioned building with an elevator and climate control was a self-storage facility for dead storage. Vice Chair Saberson inquired if the appellant had met the burden of proof, and if .so, what would they have to prove to validly establish a non-conforming use. Attorney Alexander explained the burden of proof was on the Appellant to establish that the zoning action of the City was improper. The Appellant's letter of appeal to the City requests the facilitY be determined a non-conforming use. It was explained in oFsler for a property to be considered non-conforming, it had to be a legal use at the time' it was filed. To determine that, the Appellant has to establish or provide sufficient evidence that at the time it was established. it was built with the proper permits and it was a legal non-conforming use at the time the ordinance or the zoning ordinances were cQ:'1nged. In order for a property to be considered a legal non-conforming use, it cannot be abandoned for more than six months during that time period. To be considered a continuous use, the burden was On the applicant to show that over that time period, it did continue in that use at the same location. Vice Chair Saberson inquired if the absence of information supported the Appellant's burden of proof. It was reiterated the burden of proof was on the appellant to challenge the actions of the. City as incorrect or non-conforming with the previous use and the burdern was on the Appellant to' bring forth substantial competent evidence that would show that at the time it was permitted, and first established that it was a legal use, subsequently turning into a legal non-conforming use. Mr. Rumpf explained Attorney Weiner tried to discredit the use of the parkin~ ratio requirements in confirming the approved use, saying the 1 to 800 parking also ilPplied to an industrial complex. There was nothing found on the record that labels the facility as an industrial complex. The 1979 records from the Building Department have it as a storage operation, which was the opposite end of the spectrum In building Cede and zoning requirements. The statement made that the parking spaces were so voluminous that it could be for anything but storage. Attorney Weiner had referenced the 1992 plan 11 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 indicating that anything on there was insignificant because it only pertained to p,arking improvements and fields. Mr. Rumpf noted the title of the document, in labeling the eastern portion of the site, (which was parking), was labeled "outdoor storage." Mr. Rumpf explained he desired to help narrow the issue and their mission is to assist businesses and I",nd development in these challenging economic times. There have been code amendments made to assist numerous businesses in the City to engage in business operation and development. Mr. Rumpf would not provide, an opinion that staff found someone that was at fault and would "pick on"; rather, he was enforciog the regulations and building Codes. As it pertained to permits, the Building experts did recall when activities did involve permits and which did not. All of the documentation staff provided did not involve any guesswork; rather they provided facts and the Code and it addressed the history of the project. Mr. Rumpf explained the cleaning of landscaping equipment was an example of tne City attempting to interpret the regulations to allow basic storage type and minimal operations of related businesses and equipment Staff deems that as accessory. It could be deemed as inconsistent; however, the City tried to make exceptions, or interpret the Code to allow minimal businesses to operate there that basicall;l have similar characteristics. There is a big difference between a business occupancy an.d a storage occupancy. If someone was fabricating, assembling: fixing, doing major cleaning, or major repairing - it was a much more intense use in terms of waste, employees, etc. Parking was adequate at the time. Staff found the Codes and Was not speculating. Staff could tell what the use was and show the B9ard the labels which described the cer:tain use. Staff walked the site with an indiviqual who was in the building industry and with the City for more than 30 years. The site was vie~ved by knowledgeable individuals, reviewers and inspectors who were present in the 1980s. Staff found occupational licenses which included copies of what appeared to be a generic lease agreement. That agreement was available for inspection and indicated only storage was allowed. The agreement also indicated what was not allowed. The original staff report and the current findings and conclusions memo contained staffs findings. If the Board preferred to allow such activities to occur, there is a correct way. Staff did its best to connect the existing site which was antiquated in many ways, and retrofitted over the years, to the Code and not to some type of Code that mightgllow it to a certain degree. The Board could feel staff was being too hard on an existing business. However, it should not feel staff was coming to the Board without proper facts, documentation and their best understanding, which was substantiated. Chair Jaskiewicz inquired whether this applied to the entire site. Mr. Rumpf explained the only two documents that were absent were the original meeting minutes when the plan was approved and the original site plan, Everything else was documented. The two subsequent approvals for the two-story addition, which the document identified as Building "C" and another identified as Building "D" or "E." Those, strongly implied .the additions were storage only and staff continued to find documents that indicated it Was storage only. There was nothing found that said as clearly as the storage m~rkings 12 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 were, "Business" or "Industrial", or :'Active Occupancy Use." Attorney Weiner spoke about the lawfulness of the use at the beginning and pointed out Mr. Friedt gave testimony. Attorney Weiner explained there was a.sign approved by the City on the property that reads, "MEGA mini Storage Center and Industrial Business Park." Attorney Weiner contended it was the present sign approved by the City. Attorney Weiner explained the zoning of the property in 1974 to the present had not changed. The zoning was alwElYs M-1. Attorney Weiner explained the uses were allowed in 1974 when they constructed the building. Vice Chair Saberson contended one cannot make that conclusion from the standpoint that a sign was put up. Mr. Rumpf explained for the record that-unless a permit was provided, it was not accurate to state that the sign that was just described was lawful. Staff does not have record before them that it was a permitted sign. Mr. Rumpf explained both reports conclude that working something out would be the best alternative to the appeal. Until the appeal was completed, it was a matter of fact, what the property was vested for, what was it approved for and what it could legally continue to do. If it isn't approved for the use, they have a much deeper base to start from in terms of building and zoning requirements and more. There appeared to' be confusion regarding whether Pro-Golf made an application to go into the original 40,000 square feet that was approved in 1974. Staff contended it had not a'nd the Appellant was contending it was. Maxime DuCoste, Zoning and Business Tax Manager, explained the application for Pro-Golf failed to identify the specific bay they were going to occupy. The only address they had was 2951 SW 14th Place. On several occasions, the Applicant stated they were vested for light industrial. use in certain portions of the property, but he failed to provide staff that information. At this point, Pro-Fit can be anywhere from Building "A" to Building "J". Mr. Lis inquired knowing that, if it would make a difference in regard to just Pro-fit if they occupied the original 40,000 square feet approved in 1974. Mr. Rumpf responded it would not. Different buildings were not the issue at this point in time. Tney would have to review the project based on its original approval and current regulations, both allowing for storage usage and not business occupancies. Mr. Myott opined the property needed a real site plan that reflected the uses of the different buildings and the parking associated with the different uses. The project was longstanding and, documents were needed. They needed an exhibit showing what building was what, the square footage and the use. Any use such as storage has a certain amount of accessory use, and there could be a bit of office or manufacturi[lg, but when you have a smaller bay, it would only accommodate a small work bench. It all correlated to the parking as well. Records, such as a new site plan or a site plan amendment or modification was needed to then have different businesses in the different building and they needed to obtain building permits that addressed the fire ratings and other required items. 13 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24. 2009 Chair Jaskiewicz explained Mr. Myott's point was consistent with the recommendations made by the Building Department. Vice Chair Saberson felt there was no vendetta by staff and he commended them for doing a good job in trying to obtain as much factual information as they could. He was distressed the' applicant had all sorts of records yet failed to provide them to staff. There was a reference to an aerial photograph made which was not provided to staff, and he was concerned the Board was being selectively fed som'El information but not records they possessed that may go well back to 1974. He indicated that statihg the project was established for commercial/industrial businesses was incorrect if it was from 1974 going forward to 1986. Staff read the items referred to in various occupational license applications, or business tax receipt applications. Applicants file an application and are asked at the time, what the property can be used for, so they put it on the application that way, they obtain the license and then use it for business and not storage. If that was what they did, they did so illegally, or not in accordance with the City regulations. Vice Chair Saberson explained the Board deciding whether the units could be converted to a business use was a big determination as it pertained to 213 (sic) 216 units out of over 600, There was also a disparity that some were used. in the past, when the occupational license records indicated that from 1999 there were only 42 licenses issued for a business related purpose. Less than one-fifth of the units were being used over a 10-year period for business purposes. It pertained to how many of them were used previous to that, he expressed it was unlikely it was a significant type of use to the extent that was being indicated in the appeal. Vice Chair Saberson felt some of the information put out by the Appellant regarding parking and bathrooms, etc. was true, but those things were considered in light of the fact that the property was to be used for storage, and not busines~. In the event it was to be used for business, there would have been different requirements for bathrooms, parking, etc. Staff showed graphically via the memo from the Building DepartniEint that the facility was constructed as an M-1 use for a storage facility based on the facts and circumstances evident. The objective factual evidence there was the design' of the building, the way it was constructed. The number of parking spaces were consistent with a storage use, and not a business use. The staff indicated demonstratively that the project was originally constructed, going back to its earliest days, as a storage facility, and the City never knew when it was going through the process, that it would be used as businesses or they would have required the other items would be brought up to Code. He supported the staff's r~commendation. Mr. Myott added the 34 or 43 electrical meters told a story, because it was a true measure of whether it was a tenant space or not. There could be different levels of uses of electricity. He was uncomfortable also with the number of electric meters and the 216 other units and agreed with Vice Chair Sabetson. It was also noted that if it was being converted to the other business uses, there were other important considerations like fire-rated partition walls, ingress and egress, handicapped accessibility, fire protection, sprinklers, alarm system upgrades, etc. These were 14 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 important issues and he could not gloss over them. The building was not desigr;1ed for that purpose and there were other safety related factors that must be considere(1, The facility was never designed for the purpose that was being portrayed. If it was allowed to be converted then there were other safety issues that were not addressed. Mr. Lis explained 'the project was already converted as there were 42 meters there. Vice Chair Saberson responded the conversion may have taken place illegally. Mr. Lis rebutted they had taken place and they were allowed to continue to operate under that premise. Vice Chair Saberson explained that was not a fair assumption because for over 10 years there were 42 occupational licenses out of 213 (sic) 216 bays. He pointed out staff indicated the licenses were issued in error over a 1 O-year period What was being represented to the City when the applicants applied for the licens~ was it would be for storage. It was misrepresented and it was not proper. There was discussion that Florida Power and Light, (FPL) would not service the meters, if there were an issue. Attorney Weiner explained the meters were originally installed in 1974. It was discussed FPL would not install meters without permits. Vice Chair Saberson explained he was somewhat influenced becaUse some years ago, he was the City Attorney. He clarified years ago, the occupational license staff was never in the same office as zoning. The licenses were issued and.time and again, there were errors. Now the Business Tax Receipts office was under Zoning and.'!;. mini zoning review was done. That was not done in Delray Beach. Repeatedly there were errors in issuing licenses that should not have been. At the time there were instances when entities took the City to Court on the grounds the City issued an occupational license, asserting the entity could use the license for a comm~rcial business in an industrial zone. Vice Chair Saberson explained the City's position was it could .not. It was a revenue issue, not a zoning determination or approval, and it could not be relied on as a zoning approval. That was one reason why they changed the title of the Occupational License to a Business Tax Receipt. The applicant was just paying money, but not receiving a definitive zoning determination. . Mr. Barnes explained Pro-Fit Golf wants to assemble. repair and distribute golf clubs, which was fundamentally different from a lawn service which stored equipment there. Staff was asserting it was a storage of business goods, yet some of those businesses have a Business Tax Receipt aUhe storage facility. Mr. Barnes did not want existing businesses that use the facility purely for storage of their wares to be penalized nnd not have their Business Tax Receipts renewed. He indicated the Code states individual storage bays or private postal boxes within a self-storage facility shall not be considered a premises for purposes of assigning a legal address in order to obtain a Business Tax Receipt. He explained it seemed problematic. Mr. Rumpf explained business license taxes and fees are based on the value of merchandise. He thought it was relevant to know if the businel;s was storing, goods there, as it comes down to an issue of valuation. ' , 15 Meeting Minutes Planning and Development Board Boynton Beach, Florida , November 24, 2009 Mr. DuCoste' explained they issue Business Tax Receipts for the location 'where business was being conducted. Historically, when applications for licenses were submitted there was no close connection between the business tax and the zoning. He , , assumed that was how some of the 42 licenses were erroneously Issued. The mistake was made by the issuance of Business Tax Licenses for the storage of merchanoise for a business that could be located in another proper location within the City. To just store lawn equipment for a home-based landscaped business, they should be licensed from their home location as a home based business, not from the self-storage business. That was the mistake made. There was a discussion of insurance, when storing equipment in a storage facility. In order to have the equipment insured, the insurance company may want proof that the facility was a viable location and have it licensed. Mr. DuCoste explained insurance was a different issue and staff could not speculate the reasoning behind a business operator using self-storage for any purpose. Attorney Weiner explained the Boynton Beach Code of M-1 provides for multiple permitted uses. One of the permitted uses was storage, self-storage, warehous,es and wholesale. There was another supplemental provision outlined in Section 11 .O.that put further restrictions on self-storage. which was why they had to show the entire facility was self-storage. They were trying to make the supplemental regulation apply. Attorney Weiner explained they were there with just M-1 and they could move freely betw~.en the uses as other people do. Even if someone did not realize they could move. freely through permitted uses, they were grandfathered in. ' Ms. Grcevic explained the issue. There was no documentation that what they were grandfathered in was what it was originally built and zoned for. . . Attorney Weiner explained they did not have to be and it was not because of the.ir fault. He explained the issue was Supplement 11-0 of the regulations and it was up to the City to apply it. He explained Pro-Golf applied for a license and the City, in its letter of July 1 st, wanted the Supplement to apply. Attorney Weiner explained staff had to demonstrate why Supplement 11-0 applied to the entire project when it was not designed for Supplement 11-0. Even if it did apply, the Supplement did not exist in 1974. Chair Jaskiewicz understood the applicant assembled, manufactured and repaired on site in the self-storage bay. The operation consists of using equipment that was:typical of light to Industrial operations allowed in the M-1 zoning district, but specifically prohibited from operating within a self-storage business. pursuant to Chapter 2, Zoning Section 11-0 of the Land Development Regulations. She requested clarification if they were referring to the entire 216 units. . Attorney Alexander explained this was an appeal regarding the entire 216 units. Chair 16 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 Jaskiewicz pointed out staff explained to the Appellant how to retrofit the facility and how to comply. Attorney Weiner explained City staff would not acknowledge that Supplement 11-0 applied to the 216 units. Attorney Weiner summed up that it was known the building was constructed in 1974 in the M~1 zoning district that allowed industrial uses in 1974. Mr. Rumpf felt it was important to hold the speakers, himself and the Appellant to fact. A few moments ago Attorney Weiner explained the electrical meters existed in 1974 and they have not provided any evidence that anything existed in 1974. He had a record indiCating $1.1 million of value was permitted in 1980, for Buildings 1 and 7 or 1 through 7. Another statement was made saying they were vested. That was what the discussion continued to debate - evidence of what existed, what was approved and constructed, and the Codes that applied to them at that time. Mr. Rumpf implored the Board to hold staff to fact and be cautious in their statements, not blatantly summarizing conclusions without supporting evidence. Attorney Weiner explained the only testimony provided that was uncontroverted Was .the testimony of Glen Friedt, who was the only person who was there when it was "built in 1974, and the admission of the City staff was they did not know any differently. Vice Chair Saberson explained City staff testified about the way the property was designed and constructed and when it was originally built, that clearly indicated that it was planned, built and constructed as a storage facility. There was also the information from the Building Official. Mr. Lis suggested that the appeal of administrative determination with regard to the use of the bays in the existing facility be forwarded to the City Commission without recommendation based on the fact that we have conflicting testimony, which is inconsistent, from the parties. The burden of fact on both sides, in his mind was questionable. He does not question the fact that staff has taken what records they have found, but does question the records they have not found. He also questiori.!3d .the records that the applicant has failed to produce to substantiate its position. So based on that, his motion was: . Motion Mr. Lis moved it be forwarded to the Board for consideration without recommehdation from this Board and that it be addressed by them at that level without recommendation. Ms. Grcevic seconded the motion. ' Chair Jaskiewicz felt they were remiss in their responsibility to state their recommendations regarding the issue. Attorney Alexander explained the Board was a recommending Board to the Commission 17 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 and as previously stated, the appeal was bought to the Board so the Board could recommend the action to the Commission. That was the function of the Board. It was at the Board's pleasure whether it wanted to move forward with out recommending action or without recommendation to the Commission. Vice Chair Saberson felt the Board should make a recommendation one way or the other. Many times the members were faced with having to make decisions and they frequently did not have absolutely the complete information, but a decision was made based on the probability of the information they have and the preponderance of the evidence as they have received it.. The Recording Secretary repeated the motion as: Mr. Lis moved that the appeal of administrative determination with regard to the use of the bays in the existing facility be forwarded to the City Commission without recommendation based on the fact that we have conflicting testimony which is inconsistent from the parties. Ms. Grcevic seconded the motion. A roll call vote was taken and recorded as follows: Mr. Lis - aye. Ms. Grcevic - aye. . Mr. Timm - aye. ' Chair Jaskiewicz - nay. Vice Chair Saberson - nay. Ms. Killian - nay. Mr. Barnes - nay. The motion failed. Mr. Timm suggested the Applicant and the City meet. If there were minor changes made to clarify the situation it would be benefit the City and the Applicant. Chair Jaskiewicz felt it was the responsibility of the Board to make their feelings :~nown on this matter. She urged them to take into consideration the minutes of the entire meeting. . Vice Chair Saberson voted nay for the reasons he had stated. Motion Mr. Lis moved to support Petitioner's Appeal of Administration Determination of the existing bays continue to be used now and into the future as they have been used continuously since 1974 for M-1 purposes as provided for under the Code. Ms. Grcevic commented she preferred to see documentation from both parties to support their position and seconded the motion. She indicated she felt she was forced 18 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 to make a decision but wished she could see more documentation such as original blueprints, to support the claims. She expressed she felt both parties believe what they feel. If there was paper, the Board could see it and have validity to it. Attorney Alexander inquired if the motion was to overturn or reverse the City's action. Mr. Lis explained it was his understanding the way the appeal was drafted was it was an Appeal of an Administrative Determination that a storage bay shall not be used to manufacture, and his motion was the opposite - that they be allowed to operate in continuous uses they operated in since 1974. Chair Jaskiewicz thought Mr. Lis was making an inaccurate assumption without knowing the facts that existed in 1974. Mr. Lis thought the Chair was also and that the matter would wind up in a lawsuit because they were dealing with a property rights issue. He explained that was why he wanted to forward the decision with no recommendation to the City Commission, because they were asserting property rights and the Board was saying, through staff, that they did not have the property rights they thought they had. If that continues to the City Commission and the City Commission finds against them, he would file a lawsuit based on continuous use since 1974. He explained he was trying to avoid a suit through his first motion, and now through his second motion. Chair Jaskiewicz explained all they had to do to comply was to follow the recommendations presented by the Business Department. Mr. Lis.did not agree. . Mr. Timm inquired if the Appella'nt would be willing to follow the' recommendations of staff. Mr. Gaudio responded they have not received any recommendations from staff on how to make it comply with what they want. He asserted staff indicated that they were not in compliance, they never were and they are strictly a self-storage facility. . When they came on site, there was no discussion from anyone or Code Compliance about retrofitting the property to make it compliant with the current Building Code. Due to the age and original design of the property it was not economically viable to convert it into today's version of a light industdal property. Vice Chair Saberson requested confirmation that the motion. if approved, would grant the appeal and overturn the staff's administrative decision. Attorney Alexander confirmed it was her understanding as well. Vote Mr. Lis - aye. Ms. Grcevic - aye. Mr. Timm - aye. Chair Jaskiewicz - nay. Vice Chair Saberson - nay. Ms. Killian - nay. Mr. Barnes - aye. 19 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 24, 2009 The motion passed 4-3. Mr Timm felt grandfathering applied Ms. Killian did not like government interfering with people's business, but there were health and safety issues. Just because something was allowed to operate did not make it right. She thought if they found proof that certain units had operated continuously since 1974, grandfathering could be a consideration that could be a compromise and not set a precedence. The burden of proof is on the applicant and they have not proved it. Mr. Barnes was pro business, but from a planning perspective, if small businesses needed this, then perhaps the Code could accommodate very small manufacturers. Between the meeting and the City Commission he suggested the applicant flood the City with paperwork because they had the burden to prove that what happened, what was there and what was needed. Mr. Lis concurred with Mr. Barnes' statement the Appellant bring the paperwork t~1 prove their point. .. Chair Jaskiewicz thought the applicant would experience difficulty unless the st..ucture was brought up to Code. Adiournment Mr. Timm moved to adjourn. Ms. Grcevic seconded the motion that unanimously passed. The meeting adjourned at 8:54 p.m. C!. (ltfvj\J ~Q OJLuu1--- Catherine Cherry 6 Recording Secretary 120509 - 121009 20