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Minutes 08-16-18 MINUTES OF THE BUILDING BOARD OF ADJUSTMENTS AND APPEALS MEETING HELD ON THURSDAY, AUGUST 16, 2018, AT 3 P.M., IN COMMISSION CHAMBERS, CITY HALL 100 E. BOYNTON BEACH BOULEVARD, BOYNTON BEACH, FLORIDA PRESENT: Sanford Guritzky, Chair Mike Rumpf, Development Director Timothy Hunt Shane Kittendorf, Building Official Andrew Podray Daniel Berger Paul Bortz James Cherof, City Attorney, noted Sanford Guritzky was nominated as Chair at the last meeting and with his endorsement, called the meeting to order at 3 p.m. Roll call was taken. A quorum was present. Attorney Cherof explained the meeting was suggested at a City Commission meeting as a meet and greet for the Board and for staff to put together a short presentation about the authority and mission of the Board. The members will receive information about the Board's function, the Sunshine and Public Records Laws that affect the Board, and the Board's role under the Palm Beach County Code of Ethics. The members introduced themselves and their credentials as follows: Tim Hunt, is a third generation plumber, a State of Florida licensed inspector and plan reviewer and also holds LP and Natural gas licenses. He is currently now a Director of Operations. He has a background in construction and experience in interpreting the Code. Sanford Guritzky has been on the Board for many years. He has 43 years in the construction industry. He learned from the bottom up as far as phases of construction. He is currently retired. Dan Berger studied Building Science in college and works for a large national builder who has an office in Ft. Lauderdale. He is in charge of the field operations. They are technical builders and his expertise is building hospitals and some laboratories. He specializes in Code interpretation and works with architects, engineers and City officials all the time. Andrew Podray, President, American Housing Enterprises, a real estate holding company that owns and manages 1.4 million square feet of retail and office space. They own 641 Meeting its Building Board of Adjustments and Appeals Boynton each, Florida August 16, 2018 apartments, statewide, and he has been in development for the last 11 years. They are currently working on Banyan Cove in Delray Beach and the Crabpot in Riviera Beach. Paul Bortz is retired and from Uniontown, Pennsylvania. He was the former Mayor of Uniontown. He served on the Fayette County Building and Zoning Commission for 10 years and 17 years on the school board. He had his own real estate company. Attorney Cherof explained all else present was a member of staff except David Katz, Chairman of the Planning and Development Board. Chair Guritzky requested an updated Board list be sent to the members and was informed one would be sent. Shane Kittendorf, Building Official for Boynton Beach, explained the Board received the basic Administrative Amendment Section 113 regarding the Building Board of Adjustment and Appeals (BBAA). He explained when someone appeals his or a flood administrator's decision, the Board will play a neutral role with a determination. When someone wants to appeal his interpretation of a Code section, staff first tries to resolve the issue. He commented the Code is the Code, but if a hardship exists and they want to appeal, they can and he will present the request to the Board and the Board decides. Mr. Kittendorf abides by the Board's decision. Mr. Kittendorf read from Section 113.4 of the Building Code detailing the powers of the Board. Mr. Kittendorf did not provide the ordinance with Article 9 of the Code of Ordinances in the Land Development Regulations (LDR) nor did he include Article 10 detailing the flood prevention regulations. There is more information in those two codes and Mr. Kittendorf will provide excerpts of the sections to provide a brief summary. "The purpose and intent is to provide efficient relief process to allow for deviations of the certain requirements and standards of the Florida Building Code including the cities administrative amendments thereof and applicable regulations in the City's LDR. In circumstances when the applicant is able to demonstrate hardship. The intent of the application is not to provide the means to circumvent or circumventing any such requirements or standards, but to allow for a departure from Code upon demonstration that the subject request satisfactorily addresses the review criteria contained herein and without the necessity of amending any type of regulations to accommodate that requested relief. The owner of a building, structure or service system, or duly authorized agent may appeal a decision from the building official whenever any one of the following conditions is claimed to exist; the Building official rejected or refused to approve the mode or manner of the construction proposed to the following or materials to be used in the installation or alteration of that building, structure, or service system." Mr. Kittendorf explained when the Board is given Code sections, the Code verbiage is pretty clear, but there are certain conditions that become hardships for a customer or contractor. Most of the time the issue is resolved. He gave an example of a new 2 Meeting ints Building Board of Adjustments and Appeals Boynton each, Florida August 16, 2018 innovative matri I. The contractor provides all the test data, but have not taken it through the State's r trs. Based on their testing information, the contractor would appeal Mr. i orf's decision, appear before the Board, consider the data and make a determination if the new material is equal or greater than the minimum standards make a decision. The appeal is based on the true intent and meaningof the Florida Building Code including the City's Administrative Amendments thereto, have been misconstrued r incorrectly interpreted. Each Buildingficial in each area has their own way of how they interpret things. Mr. Kittendorf agreed to send the members Ordinance to read sections end explained he likes to keep an open thought process. I thereis something that could be done better, based on his interpretation and an appeal is wanted, he will bring it to the Board for final decision. Section specified, "The owner of the building structure or service system or duly authorized t may request relief from the following: the FloridaBuilding including the City's Administrative Amendments and Technical Amendments, Chapter 4 Article , Building Construction, Historic Preservation requirements and City Code of Ordinances, r Chapter 4, Article10 FloodPrevention requirements and City Code of Ordinances. Mr. Kittendorf advised Flood Prevention has strict compliance standards and it is unlikely variance would be granted, t it is possible if an appeal can bring just cause for variance. The Flood Prevention Code is insurance driven, to protect life and property at large. I hurricane or rain causes flooding and a home has flooded many times, it i considered repetitive loss and the home has to be brought into compliance. challenge is what is considered a substantial improvement. r. Kittendorf advised substantial improvement is when animprovement % of the value of the home or the structure, staff woulds on regulations, owner has to bring up to Code and it is a hardshipto the homeowner seeking the renovation. Staff tries to provide an avenue to avoidrequirement, but in most cases, the home is brought into compliance and the variance process comes into play becausethe homeowner could appeal to the Board for that standard. The Board reviews the information provided from the applicant and from the staff and then make a decision. He encouraged the members to become familiar with the City'sordinances to understand staffs responsibility. Mr. Podray asked how the averagegeneral contractor would know bout the Board. He looked on the website and didnot see anything. r. Kittendorf explained % of general contractors know the requirements and the process to appeal. It is known statewide. I a Building Board of Adjustmentsand Appeals does not exist in a local municipality, then the contractor would apply tote State Building Commission. Mr. Podray questioned under 113.4 of the appeals: "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 exist." He noted bulletpoint threespecified, "that an equally good or desirable form of installation can be employedin a specific c thought the language s ambiguous it opened the Boardto appeal. Mr. Kittendorf explainedit is an open Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, Florida August 16, 2018 statement. The question becomes what are they trying to request a variance from, what part of the Code was not clear or gray in a manner that indicates the contractor cannot do something, and what was happening that would create that type of hardship that they now have to appeal. Other questions come into play, such as if the Building Official rejected or refused that type of component or material to be installed and what was the reason behind the disapproval. That information comes to the Board, based on the Building Official's interpretation, based on his findings for a decision. He explained the most important component is will it protect life and property and why they enforce the Codes. Attorney Cherof added they cannot write Code fast enough to keep up with innovation and those working in the field are on the front line of innovation and wanting to try things that work better or equal to or exceed what they could find approved in the Code. He thought that provision of the Code speaks to that particular issue. If local government is to keep up with times, innovation and be user-friendly, such a provision has to be included. Contractors, engineers or architects may think they have something that is innovative and that protects the public and their users, but in the end, if there is a dispute between the Building Official and them over that item, then it comes before the Board who uses its collective expertise to make the decision. If the Board granted the variance or appeal, staff would start to rewrite the Code to include that ruling. Mr. Podray explained he was restoring Casa Costa and an issue came up with one of his office build-outs regarding electrical receptacles that would stay on 24/7. He understood effective January 1, 2018, the Code was modified so up to 50% of the electrical receptacles have to turn off after non-use for a certain period of time. His subjective opinion was an equally good or a more desirable form would be to just install the receptacles as they have done for the last 50 years inside a normal office build out. He asked if this issue would qualify under the appeal criteria. Mr. Kittendorf responded the path he would have to take would be to recuse from voting or discussions as a Board member, and either he or his agent can appeal the interpretation of Mr. Kittendorf's position to try to show how it is better. The Code now states 50% of the receptacles shall have a shut-down mechanism. It is an energy code requirement that is new and was implemented. If they shut down the 50%, the owner is trying to save energy and be more green. In this case, they would want to maintain consistency and allow the existing receptacles to go in place. The question is if it would meet the Code or does it exceed or fall below the Code. The existing receptacle is now deficient versus the new unit with the energy savings. If the intended use is required to meet a 24-hour service requirement, than an exception can be made, but they would have to determine how many receptacles in the establishment have to meet the requirement. The Board would have to review that issue for the exception to be applicable if it could be at all. Attorney Cherof discussed the process, how the package is sent to the members and how much in advance of the meeting the members would receive the information. Mr. Kittendorf explained when a person appeals, a Notice of Appeal shall be in writing and filed within 30 calendar days after the Building Official renders the decision. Appeals shall 4 Meeting int Building Board of Adjustments and Appeals Boynton Beach, Florida August 16, 2018 be in a form acceptable to the BuildingOfficial and the Boardshall meet within following days from when the decision has been provided. It is usually with a 60-day ri . The Buildingr of Adjustmentsn I shall, in every case, reach a decision without unreasonable r unnecessary delay. c decision of the Board shall also include the reason for the decision. If the decision of the Board reverses or modifies refusal or disallowance of the Building Official or varies the application of any provision of the Code, the Building Official shall immediately take action in accordance of such decision. Every decision shall be promptly filed in writingin the 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 the applicant and any copy shall be kept publically postedi the Office of the Building Official for two weeks after filing. Every decision of the Board shall be final, subject however, to such remedy the aggravated party might have at law r at equity. Attorney Cherof explained the Building BoardAdjustments and Appeals makes its decision, the ruling is reduced to the form of an Order by the City ore 's Office with the help of the Building Department and the City Clerk. It is only when the Order is signed and filed with the City Clerk that the clock begins to run for the right of appeal or further review. The next level of review is to the Circuit Court of Palmeach County and is called Writ of Certiorari. The Courts treat it as an appellatematter and they look at whether theres competent evidence to support the outcome of the hearing before the Board. II of that is handled by the City Attorney'sice. Once a ruling is made, the Order is signed, the Board is finished withthat particular issue andthe matter does not return to the Board unless a Court requests the matter be returned c to the Board for further evidence or consideration. rnCherof could not recall a single instance that has happenedto local governments in a tri-county area in the last 30 years. Attorney Cherof reviewed l each County Code of Ethics and explained years ago, the City gave up its own personal local Code of Ethicsn became involved with County's Code of Ethics efforts. He advised if a member has a question about the Code of Ethics, or what the Board will vote on ora matter coming for the Board where there may be s conflict of interest, the member should contact the Palm Beach County Ethics Commission. Attorney Cherof had distributedout with their phone number and advised they have an online application for posing questions. The second step in that processis to followtheir advice becauseif not, the follow wouldbe to the State is office for enforcement. If a member believes they may have violated the Code or were told they violated the Coe of Ethics, Attorney Cherof recommended hiring an attorney because the consequences are very stringent and the member should follow the advice they receive from it attorney. Years ago, the City Attorney's ice used to interpret the local, City and the State versions of the Code of Ethics for members of Boards and for the City Commission, but they no longer do s because they under the County's Code and it is that office that makes interpretation and provides guidance. Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, lri 16, 2018 Attorney Cherof gave an overview of the Sunshine and Public Records Laws and distributed a printed version of the two laws. He explained the Florida Constitution provides for all government activity at any level from staff to the administration, to legal and Boards and the City Commission has to occur in view of the public in the Sunshine to ensure the public can follow an issue since its inception, which prevents informal communication between Board members. The measure was enacted into law in Chapter 286.011, which outlines all the general provisions. It requires when the Board is going to engage in discussion on a matter of public importance they have jurisdiction over, the City Clerk provides a notice to the public of the meeting. The members meet only to discuss the matter in public. There is no pre- discussion amongst the Board meeting about it; however, a Board member can speak to staff or the legal department about it, but no dialogue between members. Minutes are taken at the meeting so the public that could not attend could read what occurred and the minutes come back to the Board at the next meeting, for the Board to approve or make corrections if needed. The purpose is to ensure all decisions are made in public. The members are appointed by the City Commission and are governed by State Law. The meeting is the agenda, which can be modified or amended, as long as it does not deviate very much from the subject matter. Mr. Bortz asked if there would be a reason to meet in executive session and learned the only two ways a local government can meet behind closed doors is when litigation is pending and only the City Commission has the right to meet. In those meetings, a court reporter takes down a verbatim record of all that is said at the closed-door session until litigation is over. When the litigation is over, those minutes from the closed-door session become part of the clerk's minutes and are made available to the public. The other closed-door meeting pertains to labor negotiations with the unions so the City Commission can give the City Manager direction on how to negotiate a contract. Attorney Cherof announced there are no other exceptions. One problem seen is when agenda packets are sent to the Board members via email and all the Board members receive a copy. He advised Board Members should never"Reply to All" because if so they are communicating with other members of the Board as well. The Board cannot use staff to act as a conduit before the meeting or during deliberating an issue and no discussions off the record at the meeting are permitted. Mr. Bortz asked what the Board's liability was as far as members being sued. Attorney Cherof responded the Board is covered, unless there was a willful intent to obstruct the Sunshine Law. As such, there could be personal liability and the member could be a subject of prosecution by the State Attorney's Office. He explained ordinarily, the first line of defense is the City Attorney's office takes up the defense and explores whether or not the member is entitled to the defense because it was inadvertent or a mistake or a misrepresentation. He advised with great power comes great responsibility and great liability. 6 Meeting inuts Building Board of Adjustments and Appeals Boynton Beach, Florida August 16, 2018 Attorney Cherof explained thereare 12 lawyers in the CityAttorney's office. Thy are outside firm that has providedthe City withrepresentation for 28 years. Every covers Boards and Commissions and they handle local government law. When contacting the CityAttorney's ice, Lynn Swanson is the paralegal and she knows which attorney is available to obtain an answer right away. The Public Records Laws not come into play as a Board Member. Each document from draft to final document created for local government is a public record. All a ails and texts are public record. They are maintained by the Clerk's office and IT Department and they are maintained on the Board's behalf if workingthrough the City's email system s a Board Member. If not, Board members must maintain the public record and not destroy their text messages to staff. Do not rely on the fact that the recipient will do so on their behalf. Information on computers and i ads must all be maintained. a r member, member of staff i ttorney are their own custodians, Insurance is not necessary. Attorney Cherof could not recall an instance that even came close to a member needing insurance. Rarely did someone who came before the Board that did not like the way they are treated file a complaint it the Palm BeachCounty Commission on Ethics. In those instances, members should contact the City Attorney's office first. Attorney Cherof commented as to other records, a member making self-notes during Board meeting for the purpose of reminding them of questions, are not a public record and are transitory. If a member is the Chair and they take notes to makecertain t Order that is issued complies with his recollection of the hearing, that record is on behalf of the Board to reconcile with the minutes and that record st be kept as it is a public record. Roberts Rules of Order is used at the meetings. Some of it is archaic and some of it has no application to public entities in Florida. A note int the rules about informal procedures fors all boards is what they follow. The attorney forte Board will be prepared to walk through Roberts Rules. The purpose is to ensure anyone coming to the Board gets a fir opportunity to present their case in a quasi-judicial fashion. All will be put under oath and the members will obtain evidence to make a decision. Roberts Rules does not really apply. All of the attorneys are familiar with the procedures and they will expedite hearing. Mr. Podray asked about making recommendations to go before the City Commission. He thought 30 days to appear before the Building BoardAdjustment and Appeals and having to be notified within another 30 days is already 60 days. He commented there is o and a half month turn around for a case. He thought the City could provide faster service and he wanted to discussways to facilitate appeals. Attorney Cherof commented he could bring a draftt to the Code to address it as long as it does not conflict with provisionsi the FloridaBuilding Code. Most of the time, the continuance is requested an applicantnot the Board or staff. Sometimesthe 30 days may seem Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, Florida August 16, 2018 like a long time, but from an applicant's point of view, when they have to present evidence, they may need more time. He thought they could build in a window of time and continuances. He will check into it further and report back at the next Board meeting. Mr. Berger agreed if the applicant wanted to proceed faster, they should have the opportunity. As someone who has been through the process in other municipalities, the delay can cost the developer up to $30,000 a week for workers to sit on the job and it has the potential to shut projects down and leave bills for the owner. Often individuals try to shy away from coming to the Board, because it could cost a fortune. Attorney Cherof noted the current City Commission is very proactive and engaged in making life easier for development and the building trades. That was not always been the case and not in the tri-county area where once they get in the system they never know when they will get out. Mr. Berger commented he works everywhere from Jupiter down to Miami Dade. They come across issues, usually with the State and they take a lot of those cases to Tallahassee. He thought it was odd that there were only three meetings of the Board in 10 years. He thought there would be more disputes. Attorney Cherof explained part of the answer is staff has been very proactive and engaged with people on issues to resolve the matter. The fact there are so few cases coming to the Board means staff was successful. It is rare the City Attorney's Office had to give professionals any guidance on how to resolve an issue that is a building code or development related issue. He pulled the minutes of the last few issues that came before the Board. In 2014, there was an appeal of a demolition order, which also went on to court, was litigated for three or four years and has since been resolved. The City now owns the property where the structure was demolished. There was a hearing in November 2013 regarding an appeal for a Business Tax Receipt denial due to non-compliance with provisions of the Code. The applicant felt the Business Tax Receipt should be issued and they receive waivers of the provisions that were violated. Chair Guritzky noted many items come to the Board for extensions when the period of time for appeal has run out. Attorney Cherof recalled such a situation occurred in 2012 and 2017. Two of the four items dealt with time extensions, which was a testament to staff making life easier for the end product user. He explained staff was doing their job which is important for the safety of the citizens. Mr. Podray thought the Board meets too infrequently. He also thought there may be a way to reduce the fee for the appeal process because for a small time contractor, the $250 fee may be a slight impediment to appear before the Board. He mentioned the 60 day waiting period and the fact the Board is not advertised on anything. He knows a lot of small general contractors and could confirm that many of them do not know about the process to come before the Board. He wanted to fully vet what they can do as a Board to make recommendations to the City Commission to lower the price, shorten the time period from 60 days to less, as time is money. The Board should be more active. He 8 Meeting Minutes Building Board of Adjustments and Appeals Boynton Beach, Florida August 16, 2018 thought the Board should be on the City website and a flyer be made. The building staff is open to different interpretations of the Code and he was impressed. He wanted the City to offer the same opportunities to people who were less versed than he, so they wouI d have due process and recourse. Attorney Cherof explained the City redid the website. City Hall was moving so bulletin boards were not available and the City was moving to more public notices and hearings. A Building Board of Adjustment and Appeals meeting would appear there. The City Attorney's office cannot address fees, but it does make sense to be more user friendly with its administrative fees. He commented he will bring these items to the attention of the City. Mike Rumpf, Development Director, introduced himself. He thanked the members for volunteering and advised their role was very important to the City Board as was the Planning and Development Board, with is he has a lot of experience. If Messrs. Kittendorf or Kuntzman are not available, the members can feel free to contact him. Attorney Cherof invited anyone with questions to contact staff or him and they will provide all the information. As tote electronic notice process, if the members had any ideas, they should contact the City. He noted the legal staff serves the Board and Commission and they want to be as efficient as the building department is in dealing with contractors and developers, and the clerk's office is with public record requests. Chair Guritzky requested a one-page version of Robert Rules. The meeting was adjourned at 3:54 p.m. Catherine herry I Minutes Specialist 9