Agenda 08-16-18 G T Y ° am \
I r ---- CITY OF BOYNTON BEACH
fir) AGENDA
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o ti.7.o ry ,fP/ BUILDING BOARD OF ADJUSTMENT AND APPEALS
DATE: August 16, 2018 TIME: 3:00 P.M.
PLACE: COMMISSION CHAMBERS, Boynton Beach City Hall, Boynton Beach City Hall,
100 E.Boynton Beach Boulevard
1. CALL TO ORDER AND PLEDGE OF ALLEGIANCE - Chairman
2. APPROVAL OF AGENDA
3. APPROVAL OF MINUTES ( MEETING)
4. PRESENTATION BY CITY ATTORNEY'S OFFICE REGARDING
PUBLIC RECORDS, SUNSHINE LAW AND ROBERTS RULES OF ORDER
5. NEW BUSINESS:
REVIEW OF ROLE OF BOARD BY CITY STAFF REPRESENTATIVE
6. COMMENTS BY MEMBERS
7. ADJOURNMENT
The Board (Committee) may only conduct public business after a quorum has been established. If no
quorum is established within twenty minutes of the noticed start time of the meeting the City Clerk or
her designee will so note the failure to establish a quorum and the meeting shall be concluded. Board
members may not participate further even when purportedly acting in an informal capacity:
NOTICE
Any person who decides to appeal any decision of the Building Board of Adjustments and Appeals with respect to
any matter considered at this meeting will need a record of the proceedings and for such purpose may need to
ensure that a verbatim record of the proceeding is made,which record includes the testimony and evidence upon
which the appeal is to be based. (F.S. 286.0105) The City shall furnish appropriate auxiliary aids and services
where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits
of a service, program, or activity conducted by the City. Please contact the City Clerk's office, (561) 742-6060, or
(TTY) 1-800-955-8771, at least 48 hours prior to the program or activity in order for the City to reasonably
accommodate your request. Additional agenda items may be added subsequent to the publication of the agenda
on the City's web site. Information regarding items added to the agenda after it is published on the City's web site
can be obtained from the Office of the City Clerk. .
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The City of Boynton Beach
_ -- DEVELOPMENT DEPARTMENT
BUILDING DIVISON
• 100 E. Boynton Beach Boulevard
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P.O.Box 310
Boynton Beach, Florida 33425-0310
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o ...,: ' TEL 55661i_7744266335570
www.boynton-beach.org
Florida Building Code 6th Edition (2017)
Chapter 1 —Administrative Amendments
EFFECTIVE December 31, 2017
SECTION 113
BUILDING BOARD OF ADJUSTMENT AND APPEALS
113.1 Appointment. There is hereby established a board to be called the Building Board of
Adjustment and Appeals, which shall consist of seven members and two alternates. The
applicable governing body shall appoint the Board.
113.2 Membership and Terms.
113.2.1 Membership. The Building Board of Adjustment and Appeals shall consist of
seven members. Such board members shall be composed of individuals with knowledge
and experience in the technical codes to include, to the greatest extent possible, an
architect, engineer, general contractor, electrical contractor, HVAC contractor, plumbing
contractor, and any other contractor licensed category. In addition to the regular
members, there should be two alternate members, one member with the qualifications
referenced above and one member at large from the public. A board member shall not
act in a case in which he or she has a personal or financial interest.
113.2.2.1 Terms. The terms of office of the board members shall be staggered so no
more than one-third of the board is appointed or replaced in any 12-month period. The
two alternates, if appointed, shall serve one-year terms. Vacancies shall be filled for an
unexpired term in the manner in which original appointments are required to be made.
113.2.2.2. Removal from office. Members shall be automatically removed for lack of
attendance. Lack of attendance is defined as a failure to attend three (3) consecutive
meetings or a failure to attend more than one-half of the meetings scheduled during a
calendar year. Participation for less than three-fourths of a meeting shall be the same as
a failure to attend a meeting. Members removed pursuant to this provision shall not
continue to serve on the board and such removal shall create a vacancy.
113.2.3 Quorum and voting.A simple majority of the board shall constitute a quorum. In
varying any provision of this code, the affirmative votes of the majority present, but not
less than three affirmative votes, shall be required. In modifying a decision of the building
official, not less than four affirmative votes, but not less than a majority of the board, shall
Page 1 of 4
be required. In the event that regular members are unable to attend a meeting, the
alternate members, if appointed, shall vote.
113.2.4 Secretary of board. The building official or his/her authorized representative
shall act as secretary of the board and shall make a record of all of its proceedings,which
shall set forth the reasons for its decision, the vote of each member, the absence of a
member, and any failure of a member to vote.
113.3 Powers. The Building Board of Adjustments and Appeals shall have the power, as further
defined in 113.4 of this code, to hear appeals of decisions and interpretations of the building
official and consider variances of the technical codes.
• 113.4 Appeals.
113.4.1 Decision of the building official. The owner of a building, structure or service
system, or duly authorized agent, may appeal a decision of the building official to the
Building Board of Adjustment and Appeals whenever any one of the following conditions
are claimed to exist:
1.The building official rejected or refused to approve the mode or manner of construction
proposed to be followed or materials to be used in the installation or alteration of a
building, structure or service system.
2. The provisions of this code do not apply to this specific case.
3. That an equally good or more desirable form of installation can be employed in any
specific case, which the building official has rejected or refused.
4. The true intent and meaning of this code or any of the regulations hereunder have
been misconstrued or incorrectly interpreted.
113.4.2 Variances. The Building Board of Adjustments and Appeals, when upon written
request, has been so appealed to and after a hearing, may vary the application of any
provision of this code to any particular case when, in its opinion, the enforcement thereof
would do manifest injustice and would be contrary to the spirit and purpose of this or the
technical codes or public interest, and also finds all of the following:
1. That special conditions and circumstances exist which are peculiar to the building,
structure or service system involved and which are not applicable to others.
2. That the special conditions and circumstances do not result from the action or inaction
of the applicant.
3. That granting the variance requested will not confer on the applicant any special
privilege that is denied by this code to other buildings, structures or service system.
4. That the variance granted is the minimum variance that will make possible the
reasonable use of the building, structure or service system.
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5. That the grant of the variance will be in harmony with the general intent and purpose of
this code and will not be detrimental to the public health, safety and general welfare.
113.4.2.1 Conditions of the variance. In granting the variance, the board may
prescribe a reasonable time limit within which the action for which the variance is
required shall be commenced or completed or both. In addition, the board may
prescribe appropriate conditions and safeguards in conformity with this code.
Violation of the conditions of a variance shall be deemed a violation of this code.
113.4.3 Notice of appeal. Notice of appeal shall be in writing and filed within 30 calendar
days after the building official renders the decision.Appeals shall be in a form acceptable
to the building official. •
113.4.4 Unsafe or dangerous buildings or service systems. In the case of a building,
structure or service system, which in the opinion of the building official, is unsafe,
unsanitary or dangerous, the building official may, in the order, limit the time for such
appeals to a shorter period.
113.5 Procedures of the board.
113.5.1 Rules and regulations. The board shall establish rules and regulations for its
own procedure not inconsistent with the provisions of this code. The board shall meet on
call of the chairman, subsequent to a request to call a meeting by the secretary. The
board shall meet within 30 calendar days after notice of appeal has been received.
113.5.1.1 Rules of Evidence. Formal rules of evidence shall not apply, but fundamental
due process should be observed and govern the proceedings. Upon determination by the
chairman, irrelevant, immaterial, or unduly repetitious evidence may be excluded, but all
other evidence of a type commonly relied upon by reasonable, prudent persons in the
conduct of their affairs shall be admissible, whether or not such evidence would be
admissible in a trial in the courts of Florida. Any part of the evidence may be received in
written form. The Board may request certain evidence from the petitioner to be provided
by an architect or engineer registered in the State of Florida, in which case, said evidence
shall be signed, sealed, and dated.
113.5.1.2 Testimony. Any member of the Board or the attorney representing the Board
may inquire of, or question, any witness before the Board.Any member of the Board,the
petitioner or his/her attorney, and/or the building official shall be permitted to inquire of
any witness before the Board. The Board may consider testimony presented by the
building official, the petitioner, or any other witness.
113.5.2 Decisions. The Building Board of Adjustment and Appeals shall, in every case,
reach a decision without unreasonable or unnecessary delay. Each decision of the board
shall also include the reasons for the decision. If a decision of the board reverses or
modifies a refusal, order, or disallowance of the building official or varies the application
of any provision of this code, the building official shall immediately take action in
accordance with such decision. Every decision shall be promptly filed in writing in the
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office of the building official and shall be open to public inspection.A certified copy of the
decision shall be sent by mail or otherwise to the appellant and a copy shall be kept
publicly posted in the office of the building official for two weeks after filing. Every decision
of the board shall be final; subject however to such remedy as any aggrieved party might
have at law or in equity.
113.6 Local Construction Regulation Board.The local government may also utilize this Board
to convene as the Local Construction Regulation Board (LCRB), as provided in Florida Statute
489.113. The LCRB may deny, suspend, revoke or limit the authority of a certified contractor to
obtain a building permit or permit with specific conditions, if the LCRB has found such contractor,
through public hearing, to be guilty of fraud or a willful building code violation within the county or
municipality that the LCRB represents. The LCRB may also, deny, suspend, revoke or limit the
authority of a certified contractor to obtain a building permit or permit with specific conditions, if it
has proof through the public hearing process, that a contractor has been found guilty in another
county or municipality within the past 12 months, of fraud or a willful building code violation and
after providing notice of an opportunity to be heard to the contractor, finds that such fraud or
violation would have been fraud or a violation if committed in the county or municipality that the
LCRB represents. Notification of and information concerning such permit denial shall be
submitted to the division within 15 days after the LCRB decides to deny the permit.
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THE SLAW
AND
THE PU : LIC RECORDS LAW
Presented by:
JAMES CHEROF, CITY ATTORNEY
Goren, Cherof, Doody Ezrol, P.A.
(561) 276-9400- Office
jcherof@cityatty.com
www.cityatty.com
; - _.._
THIEs 1SUMS1! I1LE LAVM'.
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SAN OVERV1
Fda Constitution)
Article I, Section 24 ( 1Oti
Section 286.011, Florida Statutes
Th Florida Constitution
.
Article I, Section 24
All meetings of any collegial public body of the executive branch of state
government or of any collegial public body of a county, municipality, school
district, or special district, at which official acts are to be taken or at which public
business of such body is to be transacted or discussed, shall be open and noticed to
the public and meetings of the legislature shall be open and noticed...
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Sunshine
Chapter 286.011 (1), Florida Statutes
All meetings of any board or commission of
any state agency or authority or of any
agency or authority of any county, municipal
corporation, or political subdivision, except
as otherwise provided in the constitution, at
which official acts are to be taken are
declared to be public meetings open to the
public at all times.
Requirement of Ch . 286.011 ( 1 ), F.S.
(1) Meetings of public boards or commissions
must be open to the public;
(2) Reasonable notice of such meetings must be
given; and
(3) Minutes of the meetings must be taken.
Purpose
The purpose of the Sunshine Law is to ensure that
decisions by public bodies are made in an open
forum accessible to members of the public. Myers v.
News-Press Publishing Company. Inc., 514 So.2d 408 (Fla. 2nd DCA 1987).
"Decisions" are official action which may include,
but are not limited to:
' "
* Recommendations .
* Discussions ,n
* Deliberations
Who is Subject to the Sunshine Laver?
El Any board or commission of any state agency
or authority or of any agency or authority of
any county, municipal corporation or political
subdivision. (i.e. collegial bodies)
Applies equally to elected or appointed boards
or commissions.
El Advisory Boards. See Town of Palm Beach v. Gradison, 296
So.2d 473 (Fla. 1974); Wood v. Marston, 442 So.2d 934 (Fla. 1983);
and Lyon v. Lake County, 765 So.2d 785 (Fla. 5th DCA 2000).
Who Is Not Subject to the
Sunshine Law?
o The Judiciary and the Legislature. See Locke v.
Hawkes, 595 So.2d 32 (Fla. 1992) and AGO 83-97 (1983).
El Fact-finding Committees (strictly for the
purpose of information gathering and
reporting) . See Cape Publications, Inc. v. City of Palm Bay,
473 So.2d 222 (Fla. 5th DCA 1985).
D
Private Organizations
•
What is a " Meeting " Subject to the
Sunshine Law
o Any gathering, formal or informal, of two or
more members of the same collegial body to
discuss some matter on which it is foreseeable
that action will be taken by the body at some
future point. See Hough v. Stembridge, 278 So.2d 288 (Fla. 3rd
DCA 1973).
El Discussions and deliberations, as well as
formal action taken by a collegial body.
(Interactive communication)
a No requirement that a quorum be present
Written Correspondence and Email
E One-way communication is okay (i.e. A
member of a collegial body may send written
or electronic correspondence to his/her fellow
board members pertaining to an item that they
may consider at a future date, however the
other members may not offer a response) . See
AGO 07-35 (2007)
E Interaction among board members = violation
C3 DO NOT USE "REPLY ALL"
•
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Use of Nonmembers as Liaisons
between :. pard Members
Third parties who are not members of a
collegial body may not be used to exchange
information between members of the body if
such an exchange would otherwise be subject
to the Sunshine Law.
Exceptions to the Sunshine Law
El Attorney-Client Discussions (Shade Session) - Section
286.011(8), F.S.
• Strict procedural guidelines
• Discussion must be limited to settlement negotiations or strategy
discussions related to pending litigation expenses
• Transcript of Shade Session must be taken by a court reporter
and the transcript becomes a public record upon the final
conclusion of the pending litigation
• NO FINAL DECISIONS ON LITIGATION MATTERS MAY BE
MADE AT A SHADE SESSION
Other Exceptions
El Executive Sessions related to Labor
Negotiations (Collective Bargaining) - Section
447.605, F.S.
o Procurement Selection/ Evaluation Committees
(negotiations & presentations) - Section
286.0113, F.S. 1.J/i
1L11,
Candidates and Members -
Elect
o Members-elect of boards or commissions are
subject to the Sunshine Law. See Hough v. Stembridge,
278 So.2d 288, 289 (Fla. 3rd DCA 1973).
I=1 The Sunshine Law does not apply to
candidates unless the candidate is an
incumbent seeking reelection. See AGO 92-05 (1992).
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Violations of the Sunshine Law
El Any member of a collegial body who violates the
Sunshine Law is guilty of a noncriminal infraction,
punishable by fine not exceeding $500. Section 286A11(3)(a),
F.S
El Any member of a collegial body who knowingly
violates the Sunshine Law is guilty of a misdemeanor
of the second degree. Section 286.011(3)(b), F.S.
El Criminal penalties apply to members of advisory
boards as well as members of elected or appointed
boards. AGO 01-85 (2001)
ADDITI • NAL NON - CRIMINAL
PENALTIES
El Suspension or Removal from Office, The
governor may:
1) Suspend any public official who has
been charged with a misdemeanor
arising out of his or her official duties; and
2) Remove any public official who is
convicted of a misdemeanor arising out of
his or her official duties.
The WU. Childers Incident ( 2003
Escambia County Commission Chairman; Former
State Senate President
ID Wanton and Knowing violation of the Sunshine
Law
0 60-day jail sentence (served 38 days) - First public
official incarcerated for violation of the Sunshine
Law T ``
a 500 fine plus $3,600 court costs $g ){
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Chapter 119, F.S.
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Public Records
Section 119.O11 ( 11 ) F.S.
El "Public records" means all documents, papers,
letters, maps, books, tapes, photographs, films,
sound recordings, data processing software, or
other material, regardless of the physical form,
characteristics, or means of transmission, made
or received pursuant to law or ordinance or in
connection with the transaction of official
business by any agency.
Notes or Non - FinaI Drafts
CI No "unfinished business" exception to the public
inspection and copying requirements of Chapter 119,
F.S. If the purpose of a document prepared in
connection with the official business of a public agency
is to perpetuate, communicate or formalize knowledge,
then it is a public record regardless of whether it is in
final form. Shevin v. Byron, Harless, Schaffer, Reid and
Associates, Inc. 379 So.2d 633, 640 (Fla. 1980).
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"Vp:I'J f,'T
1n/hat A .; encies are Subject to the
Public Records Law?
o "Any state, county, district, authority, or
municipal officer, department, division, board,
bureau, commission, or other separate unit of
government created or established by law
including, for the purposes of this chapter, the
Commission on Ethics, the Public Services
Commission, and the Office of Public Counsel,
and any other public or private agency, person,
partnership, corporation or business entity
actingon behalf of any public agency." Section
119. 1(2), F.S.
Computer Records and Email
ID Information stored in a public agency's computer "is as
much a public record as a written page in a book or
tabulation in a file stored in a filing cabinet." Seigle v.
Barry, 422 So.2d 63, 65 (Fla. 4th D.C.A. 1982).
El Email messages made or received by. agency
employees in connection with official business are
public records and subject to disclosure in the absence
of a statutory exemption from public inspection. AGO.
96-34 (1996).
El EXCEPTION - Private emails stored in government
computers do not automatically become a public
record simply by virtue of that storage. State v. City of
Clearwater, 863 So.2d 149 (Fla. 2003).
Transitory Messases
E Transitory messages are messages of short-term
value based upon the content or purpose of the
message, not the format used to transmit it (i.e.
reminders, event notices, etc. . .).
El Transitory messages are not intended to formalize
or perpetuate knowledge, do not set policy,
establish guidelines, confirm a transaction or act as
a receipt.
El Retain until obsolete, superseded or administrative
value is lost.
Who Responds to Public Records
Requests ?
CI " Custodian of public records" mean "the
elected or appointed state, county or municipal
officer charged with the responsibility of
maintaining the office having public records, or
his or her designee." (i.e. Clerk) Section 119.011(5),
F.S.
Who is Authorized to Inspect
Public Records?
o ANYONE! Section 119.01, F.S.
•
O No "le itimate need" or "sp ecial purpose"
requirement. See State ex rel. Davis v. McMillan, 38
So.2d 666 (Fla. 1905) .
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When Must an !agency Respond to
a Public Records Request?
El Custodian of records must promptly
acknowledge request and respond in good
faith.
El No statutory time to respond, but custodian
must make reasonable efforts to do so.
E1empti 'I ns
a See Section 119,071, F.S.
I=1 The Public Records Law is liberally construed
in favor of open government
o Exemptions = Narrowly construed
El Burden is on the agency to illustrate why a
record falls within the statutory exemption
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