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Minutes 09-23-97MINUTES OF THE PLANNING AND DEVELOPMENT BOARD MEETING COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORID~ TUESDAY, SEPTEMBER 23, 1997, AT 7:00 P.M. PRESENT Lee Wische. Chairman Jim Golden, Vice Chairman Mike Friedland Stan Dub6 Pat Frazier Maurice Rosenstock Steve Myott. Alternate James Reed. Alternate ABSENT Jos6 Aguila Tambri Heyden. Planning and Administrator Jerzy Lewicki, Assistant Plant Leonard Rubin, Assistant City Attorney 1. PLEDGE OF ALLEGIANCE Chairman Wische called the meeting to order at 7:00 p.m. and introduced the of the board and Attorney Rubin. Mr. Myott sat at the dais as a voting membel The Pledge of Allegiance to the Flag was recited. 2. INTRODUCTION OF MAYOR, COMMISSIONERS AND BOARD MEMI This item was dispensed with before the Pledge of Allegiance to the Flag. 3. AGENDA APPROVAL No additions, deletions, or corrections were made to the agenda. Motion Mr. Dub~ moved to approve the agenda as submitted. Vice Chairmar seconded the motion, which carried unanimously. 4. APPROVAL OF MIN UTES No additions, deletions, or corrections were made to the minutes of the last m 1ELD IN ~,, ON Z_oning .r 'nembers ,ERS Golden ling. · MINUTES PLANNING AND DEVELOPMENT BOARD MEETING BOYNTON BEAC H, FLORIDA SEPTEMBER 23, 1997 Motion Mr. Rosens[ock moved to approve the minu[es of the September 9. 1997 submitted Mr. Dub~ seconded the motion, which carried unanimously, 5, COMMUNICATIONS AND ANNOUNCEMENTS A. Report from the Planning and Zoning Department 1. Final City Commission Disposition of the agenda iter the last Planning and Development Board meeting Ms, Heyden reported the following: The change in canopies on the office building at the Cross Creek Center wa.. by the City Commission meeting as submitted. The City Commission decided it was important that the Chamber of participate at the joint workshop with the City Commission and the Pla Development Board. This meeting is tentatively scheduled for mid Nover Heyden advised that staff discussed tying all the topics into a life safety appr~ will be issuing a new agenda, Staff has identified a list of properties that the photograph for the slide show. She will honor the board's request regarding tour so that they can visit the sites on their own prior to the workshop. She pre board with a copy of the old Community Design Plan. 6. SWEARING IN OF WITNESSES' All those who planned to testify at this meeting were sworn in by the Secretary. 7. OLD BUSI N ESS None 8. NEW BUSINESS A. Site Plan Major Site Plan Modification 1. Project: Agent: Clear Copy Bob Feldman neeting as s from approved ommerce nJng and )er. Ms. ~ch. She ! want to map and zided the ecording MINUTES PLANNING AND DEVELOPMENT BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 23, 1997 Owner: Location: Description: Bob Feldman Southeast corner of Boynton Beach and N.W.7th Street Request for site plan approval square foot print shop on a .31 acr~ land. Bob Feldman was present to answer any questions. Chairman Wische advised that the meml~ers of the board have reviewed material and are familiar with this project. He opened the public hearing. Mark E. Roberts. D.D.S. voiced an objection to the application that Clear submitted as a major site plan modification. He submitted a letter voicing his in addition to 13 exhibits and an excerpt of the minutes of the City commiss~¢ held on March 19, 1996. (All these documents are attached to the original this meeting.) Exhibit 1 is from the Circuit Court of the Fifteenth Judicial Cin for Palm Beach County, which indicates that the initial site plan was Therefore. there is no site plan to modify. Exhibit 2 is a mandate from the Co~ new site plan hearings, not modified site plan hearings Exhibit 3 is a lett~ Roberts sent to Mr. Lewicki indicating that the site plan was quash, ed ant needs to be noticed as a new site plan hearing, not a modification of a site pla Attorney Rubin stated that the City will concede that it ~s a new site plan a Apparently, it was termed a modification because there was a previously sub plan. However. it was processed by staff as a new site plan application. Dr. correct that the Court squashed the original site plan. It is a new site plan: ho, procedure would be the same for a major modification or a new site plan Ms. Heyden stated that on September 19. 1995, the City Commission approve to staff comments, a site plan tee uest for Clear Copy. This proposal was for ~ shop and copy center to be located at the southeast corner of Boynt~ Boulevard and N.W. 7th Street, the address of which is 60 W. Boynt, Boulevard The property ~s currently zoned neighborhood commercial (C2); land use plan designation of local retail commercial. The applicant and prop~ is Bob Feldman. The property has a site area of .3145 acres and a buildir 3,780 square feet. After the City Commission approved the site plan, RHS C~ filed a Notice of Administrative Appeal. Prior to the resolution of that al applicant proceeded through the permit process and the construction proces obtained a Certificate of Occupancy. The Court has determined that the Cit~ reprocess this application as a site plan: therefore, we are going back th process of site plan approval. This is why this application is before this board 3 oulevard a 3.780 parcel of e backup Z, opy has objection, 1 meeting linutes of uit in and quashed. rt to have r that Dr. that this ~lication. tted site roberts is fever, the :1, subject new print n Beach n Beach nd has a rty owner area of )oration peal, the and has needs to 2ugh the OW. MINUTES PLANNING AND DEVELOPMENT BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER :23, 1997 With respect to traffic, this has been reviewed by the Palm Beach CouNty Traffic Division and meets their standards. As requested by the Palm Beach Co_u~ty Traffic Division, the applicant placed a restrictive covenant on the property that limits the use of the structure to a pdnt shop. However, at any time in the future, if there were ~ desire to change the use. it would have to go back to t~e Palm Beach County TrafficDi~ision. Our Eng neer ng Division has determined that the drainage plans meet the city code and drainage levels of service. There are two driveways on 7th Street. The south driveway is ingress only anc driveway is egress only, the north With regard to parking, access is on the west side of the property and parki g spaces are aligned along the east side of the property. There are 13 parking spaces, including one handicap parking space. The Engineering Division. Police Departn~ent, Fire Department, and Public Works Department have reviewed this layout md have determined that the design meets the code with respect to adequate ;cess for emergency and sanitation vehicles. In addition, because the property ~' already constructed, we have the added benefit of seeing that this property works-terms of access. The landscape design meets the city's landscape code. However, ti ere is a requirement in the landscape code for a perimeter hedge where parking sp ~ces abut the property line. Our landscape code allows one to receive credit for an exist ng hedge on an adjacent piece of property if that hedge meets the code requiremei~ts. This hedge, at time of maturity wil meet code requirements. Therefore, a lands,:ape strip with hedge, in addition to what already exists on the adjacent property, has not been provided. The plans meet the building and site regulations. The building coverage is ~ and the building height is 25 feet. The elevations that have been submitted, which are actually photographs of t~ building, illustrate a two-story building with brick colored tile roofing. The ext~ are finished with a pink/peach stucco with white raised stucco bands. The wi~ arched with bronze colored shutters. The building has a Spanish/Mediterram which is compatible with the existing buildings to the east and west. The freestanding sig~ indicated on the plans meets the sign code requiremenl There are no Technical Review Committee comments with respect to thi., Therefore. staff recommends approval of this project as submitted. percent existing dor walls ~lows are ~an style, project. 4 MINUTES PLANNING AND DEVELOPMENT BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 23, 1997 At this time, Chairman Wische acknowledged the presence of Mayor and Mrs. Jerry Taylor. Dr. Roberts asked Ms. Heyden if she is familiar with the City's Land De~/elopment Regulations and the Landscape Code. Ms. Heyden answered affirmatively. Dr. Roberts asked her what the word "shall" means in the code. Dr. Roberts advised that the landscape code states that a landscape strip si and a half feet wide. The memorandum dated September 14 1995 (Exhibit Heyden presented to the City Commission states that Clear Copy has not landscape strip and hedge and has no room to provide it without significan't the site plan. In this memorandum. Ms. Heyden indicates that the buffer di Code. He asked how it meets code now. Ms. Heyden advised that this is a brand new site plan submittal. Dr. Roberts referred to Al Newbold's memorandum that states that from his c of the tie-in survey, the paving appears to be 1.58 feet wide. With reg,: exemption that Ms. Heyden referred to: he stated that the landscape code st~ is only valid when the existing hedge meets al applicable standards of the code. There are only two standards of the Code. One is that it has to be at feet tall and not more than six feet high. The second is that it has to be two feet wide. He asked Ms. Heyden if it is still her contention that the adjacent hedge meets code. all be two ) that Ms. rovided a y altering not meet servation rd to the [es that it ~ndscape least four ,nd a half ~ndscape Ms. Heyden advised that she has been interpreting the andscape code for ten and a half years. Her interpretation of that section is that the existing hedge can be ~applied to those standards if it meets code. The standard is the height of the hedge. ~he said it meets code. H Dr. Roberts asked if Ms. Heyden prepared the document that was presen board as the addendum backup. Ms Heyden advised that it was a joint error her staff and herself. Dr. Roberts said it states that [he initial site plan wa,, only because improper notice was given. He asked her if that is her position. Attorney Rubin advised that the site plan was quashed because of notice. the Court noted that the sidewalk was not the required width. However. that corrected in the new site plan application. Dr. Roberts inquired about the method of garbage pickup that Ms. recommending for this property. Ms. Heyden stated that the dumpster i southeast of the building and is currently being picked up by the Pub .~d to the between quashed addition. las been .~yden ~s located Works 5 MINUTES PLANNING AND DEVELOPMENT BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 23, 1997 Department to their satisfaction. They have signed off on this plan wit. comments. Dr. Roberts asked if it is legal for the City dump truck to encroach on the parking space when it enters to access the dumpster. Ms. Heyden did not kr is happening. She stated that per the Public Works Department. there is n~ with this site in terms of sanitation vehicle access. Attorney Rubin did not answer to Dr. Roberts' question but offered to research that issue. As far as the space has been designed adequately. Dr. Roberts referred to the September 14, 1995 memorandum in which M indicated that the City trucks did not have adequate access on the exact same Now she is saying they do. He asked if the size of the City trucks has char September 14. 1995. Attorney Rubin pointed out that Dr. Roberts keeps referring to the 1995 me~ and the 1995 site plan, which has been quashed. He stated that what ha 1995 is not relevant to the approval of this site plan. Mr. Rosenstock asked Dr. Roberts' what his objection is to this site plan. E: explained that he owns the building nexl door. He built the largest building th would allow him to build on over seven tenths of an acre. It is 4.500 square Clear Copy property is three tenths of an acre and the building is almost 4.~: feet. This building is over t00 percent larger than allowed by the City Buildi He did not think anybody should be granted special favors and be allowed building that is twice the size of another building. Because this property has built, he ~s sustaining substantial financial damages. His tenants want him their rent because this building blocks his building. The City conditionally aPl site plan with certain.condit, ions. They have a fiduciary responsibility to assu conditions were met before'they issued building permits. Not one of the con( met and the City did not enforce any of the conditions. Mr. Rosenstock asked if this is true. Ms. Heyden and Attorney Rubin did no to be a fact. Dr. Roberts stated that one of the conditions was that the City had to ven sidewalk met code. Attorney Rubin stated that this issue was corrected. Ht Dr. Roberts that this is a new site plan approval. Dr. Roberts advised that another condition was that the City had to veri existing hedge was conforming. If it was not conforming, the new site plan w; to contain an additional buffer zone. The City verified that it was not confi building permits were issued. The perimeter buffers are required to bE ~out any handicap :w if that problem <now the e knows; . Heyden site plan. ed since orandum )ened in Roberts the City ;et. The )0 square ~g Codes. [o build a )een over to reduce roved this e that the tions was know this y that the reminded that the required ~mg, yet a certain MINUTES PLANNING AND DEVELOPMENT BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 23, 1997 measurement, which they are not. The property does not meet the size requi~ allow this size building. Dr. Roberts stated that he has filed appeals against the landscape approv Certificate of Occupancy, which the City has refused to allow this bdard to stated that as a property owner, he has a right to be protected by Development Regulations, just as the property owners around him were prot( he cou d not build his building twice the size that he would have liked to have stated that the fact that the building is there is irrelevant. The ~ssue is who the site plan meets the code. Ms. Hoyden testified that the exact same acci site plan, which was substantially the same did not have proper access. I~ testifying that it does. He asked if the s~ze of the trucks or the conditions have He stated that since the trucks did not legally have access to the propert! applicant testified that his shop was only going to generate one can of g~ week. the City only approved curbside pickup for regular garbage. The approved a dumpster on this property because there is no proper access. Th approved curbside pickup; yet, the minute the CO was issued, the City illega a dumpster in and is illegally servicing the property. Attorney Rubin stated that Dr. Roberts is addressing things that were approv go-round. He advised that Dr. Roberts raised these issues the first go-roun filed a Petition for Writ of Certiorari, and the only thing the Court foun, sidewalk, which has been addressed With regard to the appeals, this is not forum for that. Also. Dr. Roberts filed a mandamus action against the City t City hear his appeals, and that count was dismissed. Dr. Roberts asked Ms. Heyden if the site plan that was submitted this different from the site plan that was previously determined by the Court as the essential requirements of the law. Attorney Rubin stated that the , addressed the initial site plan approval. There was an initial site plan appr, modification that staff determined was a minor modification, which Dr. Re challenged. The Court quashed the first site plan approval, which was the or changed, and determined that the other site plan approval was moot. It is position that they never reached the modified site plan. Therefore. the C really determined,whether the modified site plan met the code or not. Tb ~ssue was an issue in the very first one and he believes it was corrected by was modified. The Court never got to the modified site plan. Dr. Roberts asked if it was the City's argument to the. Court that he did not pr, second lawsuit. Attorney Rubin stated that the second lawsuit was rendered ements to ii and the hear. He the Land ;ted when ~uilt it. He 1er or not ~ss on the ow she is changed. ', and the rbage per ;ity never ; City only y brought ~d the last when he was the he proper have the ~vening is ~t meeting ;ourt only val and a )errs also ; that wa, s the City s ~urt never sidewalk :he time it vail in the loot. MINUTES PLANNING AND DEVELO, PMENT BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 23, 1997 Dr. Roberts said the Court awarded him court costs because he prevailed. Attorney Rubin agreed that Dr. Roberts was the prevailing party in the Petition fcr Writ of Certiorari. / It seemed to Mr. Myott that the site plan review has gone through all the departments and that the site plan, as submitted, generally conforms to the City's deyelopment standards for site plan approval. Ms. Heyden confirmed that this is correct. Dr, Roberts asked what the resPonsibilities of the Planning and Zoning Department would be if it could be demonstrated that the new site plan has code violatlons. Ms. Heyden stated that if there had been code violations, one of the Technic~ ti Review Committee members would have listed them in their comments. If some' hing was overlooked, anybody can bring it up to us and we will see that it gets remedied Dr. Roberts stated that the current plan that has been submitted has a notatior the City will verify that the existing hedge is two and a half feet wide, For this approval, Ms. Heyden 'stated that it does not matter if that notation is on the [ stated that only [he landscape hedge has to meet that section Staff has dc visit of the existing hedge and the strip. Staff did not have to measure the strip did it anyway. The hedge meets code. Dr. Roberts stated that the landscape code states that the strip has to be 3 Ms. Heyden indicated in a memorandum that the strip is 20 inches. He askec meets the code. Attorney Rubin stated that Ms. Heyden testified that it was t that had to be in conformance and that it is in conformance. Dr. Roberts conte the hedge is not 30 inches and, therefore, does not meet the code. on it that particular lan. She ne a site but they ) inches. how this ~e hedge qded that Mr. Rosenstock asked if the Clear Copy building occupies more square foo1age than permissible by the code and if a modification was granted. Ms. Heyden advise :l that the building coverage is only 37 percent on this site and the code allows in excess. 2f that. Mr. Rosenstock asked if Dr. Roberts could have built a bigger building. Ms Heyden answered affirmatively. Dr. Roberts explained that he would have had to hal e certain requirements met. such as bumper strips and a certain amount of interior lan, tscaping. He advised that the night that this was approved, there were three site plans 211 on the three corners of this property. Two of the site plans were turned down bec;tuse one was four inches too short and another was about eight inches too short. Clear Copy's, which is 30 inches too narrow, was approved. He felt Clear Copy is being granted special privileges that the farm store and pizza place were not granted. Mr. Myott pointed out that the requirement is for a two and a half foot landscape strip, not for a two and a half-foot hedge. 8 ' MINUTES PLANNING AND DEVELOPMENT BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 2,3, 1997 said the Code states that there has to be 30 inches of planting area Dr. Roberts avement on h s side and the pavement on C ear Copy's side, -buJ~ there is between the p only 20 inches. The Code also states that if the property next to you is va~ ant. you have to install a 30-inch hedge, If you come in and there is a 30-inch hed e and it meets code, you are exempt from putting it in. The Code further states that if /ou abut a nonconforming hedge, you are required to install a hedge. He said he has ,een told that because his hedge ~s nonconforming, that he cannot alter his building in any way without ripping up his whole parking lot to make his parking lot conforming. He has been granted a nonconforming status on h s hedge, which means that he cann ~t alter or modify his building in any way without upgrading it to meet the standards. HE said Ms. Heyden is stating that although the hedge is nonconforming for Dr. Rob ;rts. it is conforming for the adjacent property owner. He did not'think this was fair. M~. Heyden could not vedfy that anybody from the City has told Mr. Roberts this. Mr. Myott asked if Mr. Roberts could obtain a variance for this situation. D Roberts said he cannot because the condition was created by himself. Roberts stated that he can produce records indicating that his property is ,nsidered ,,.Dor'nconformir~g and that when the Eand Code was changed in 1991 he was grandfathered in and can continually use his property as long as he does not; [er it. Dr. Roberts stated that in the backup material. Ms. Heyden indicates th~ Commission previously approved this modified site plan. He asked how si' that conc usion. Attorney Rubin questioned the relevance of this, but advis, Commission did not approve the modification. Instead they ratified the Zoning Director's determination that it was a minor modification. Dr. Roberts stated that this site plan has never been approved. This is a ne and it is irrelevant whether or not the building exists. He again asked if the garbage trucks has changed in the last two years, Ms. Heyden did not kn size of the trucks has changed. However, she stated that the Pub Lic Work-" satisfied that his sanitation vehicles can access this site adequately. Motion Mr. Dub~ moved to app rove Bob Feldman's/Clear Copy's request for site pi of a 3.780 square foot print shop on a .31 acre parcel of land. Mr. Friedlan the motion, which carried 6-1. Mr. Rosenstock cast the dissenting vote. 9 the City came to the City nning and f site plan ;ize of the ' that the Director ~s ~n approval seconded MINUTES PLANNING AND DEVELOPMENT BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 23, 1997 9. COMMENTS BY MEMBERS Mr. Myott felt the site plan could have been prepared more clearly and would ~ppreciate it if the department would ask for very clearly d fawn site plans. He felt if sitet ~lans are clearly drawn, it might help us to avoid conflicts ke th s in the future. ~ Mr. Rosenstock recalls Mr. Aguila pointing out that the color of this building color that was approved yet nothing has been done about it. In addition, he when this was approved, the applicant said that there was not going to be the dumpster on the prope~ because he did not have much waste. He stated th~ was Chairman of this board, every applicant had to sign all the plans an Attorney drew up a form stating that the applicant would comply with all th, and conditions of all the City departments. He felt someone should follow-u the requests and conditions are met. Ms. Heyden stated that the building is painted the color that was approved. building came through for the first site plan, it was pink. The staff comment w bud ng be changed to a peachy shade of pink. This board accepted that. arises fyou are not specific and do not tie it down to a specific color chip or al color. Mr. Rosenstock suggested making apphcants produce a chip. Ms Heyden advised that the board decided that the color was not an importa issue to require the applicant to come back before them and gave staff the ~ work out that issue. With respect to the dumpster, when the board approves subject to staff comments, there is still refinement that occurs during the perrr Mr. P, osenstock felt this board should know what the final decision [s going ' Hoyden stated that during the refinement process, as part of permitting, if tt' meet the criteria in the code for a minor, they do not come back to this bo board is concerned about this. she suggested that the m~nor criteria in th, revisited. Vice Chairman Golden inquired about Meadows Square Shopping Center. stated that the decision has been made that since they have finished the b painted it already, that the City should not ask the applicant to repaint it. ShE that City staff had indicated to the applicant that they did not need a permit. Mr. Myott suggested requiring that people come before this board for color commercial property. Ms. Heyden advised that this would require a cha Code. She suggested bringing this up at the upcoming workshop and wil agenda. ~s not the .~calls that ~eed for a when he the City requests ~ be sure Vhen the ~s that the k problem qame of a ~tenough uthority to site plan process. be. Ms. ~changes rd. Ifthe Code be s. Heyden ilding and explained ~anges on ge to the a Id it to the 10 MINUTES PLANNING AND DEVELOPMENT BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 23, 1997 10. ADJOURNMENT unanimously, Eve Eubanks Recording Secretary (One Tape) 11 MarkE Roberts, D D.S 650 West Boyn[on Beach Blvd.. Sui[e #2. Boynton Beach. FL 33426 (407) 736-17~0 September 23, 1997 Planning and Development Board City of Boynton Beach 100 E. Boynton Beach Blvd. Boynton Beach, FL Re: Clear Copy site plan Dear Board: The intent of this letter is to voice an objection to Clear Copy's application submitted as a major site plan modification. On February 25, ' Fifteenth Judicial Circuit Court granted writ of certiorari for cases AP 95- and AP 96-4870 AY. The Court's ruling quashed Clear Copy's previous approval. The ruling and Mandate are enclosed. With no approved site pi is no site plan to modify. Consequently, this application must be properly pi as a new site plan, and not a major modification to an existing site plan. I vehemently disagree with the City's characterization of events as p on page 3 in the Staff Report, Memorandum #97-467, under the heading, and Proposed Characteristics/Development". Below are additions and/or co to the events that occurred. Contrary to the Staff Report, the City Commission did not appro' Copy's modified site plan on March 19, 1996. The City Commission h; approved the modified site plan, nor has it had an opportunity to do so. At tr 19, 1996 meeting, the commission voted its confidence in Tambd 'decision' that the Clear Copy site plan you are hearing tonight constitutec modification. RHS Corporation and myself filed a writ of certiorari, Case AP AY, requesting the Court quash the determination because the site plan vio City's Land Development Regulations, and thus, was not a minor modificati Court granted our case. In this same site plan before you tonight, Clear C indicates it is a major site plan modification. Staff is falsely presenting tha plan meets the Code. If you desire obtaining documents outlining Clea multiple Codes violations, I request you postpone your decision tonight, ar ;itc plan 997, the ~266 AY ;itc plan ~n, there )cessed esented Existing rections e Clear s never -= March eyden's a minor )6-4870 ~ted the )n. The ~py now the site Copy's obtain the Court records in the City's possession. The City issued Clear Copy a certificate of occupancy. However, appeal to the Planning and Development Board opposing the cert occupancy because of its multiple Code violations. The City is illegally rE present it to your Board for review. A copy of the appeal is enclosed. If the and Development Board is not afforded an opportunity to hear my app, additional litigation will be forthcoming. The City cannot pick and choose hear a legally filed appeal predicated upon the possible outcome of the a On February 25, 1997, the Court quashed Clear Copy's site plan. stated that the City denied procedural due process and the City Com] approval of ClearCopy's site plan departed fromthe essential requ~remen Clear Copy's site plan has numerous violations of the Land Dew Regulations, and contrary to the Staff's assertion, the Court quashed the because it did not meet Code. Sinc~er,~/,~q / / Mark E. Roberts, D.D.S. MER:sm enclosures: 15th Circuit Court Ruling, dated February 25, 1997 Mandate, dated April 30, 1997 Application for Appeal opposing Certificate of Occupancy I filed an hcate of ~using to ~lanning a soon, when to )eal. ~e Court ~ission's s of law. Iopment site plan EXCERPT OF MINUTES OF THE REGULAR CITY COMMISSION' M~ETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BE~CH, FLORIDA, ON TUESDAY, MARCH 19, 1996, AT 6:30 P.M. X. LEGAL D. Other 3. Minor Site Plan Modification for Clear Copy City Attorney Cherof stated that in September of 1995, the Commission ap ptan submitted by Clear Copy. An adiacent property owner, Dr. Mark Robe the Commission's approval of the site pian and raised a number of technic; respect to compliance with the Code. That matter is still pending. A few wee Copy indicated that they wished to submit a modified site plan. There procedure set forth in Chapter 4 of the Land Development Recjulations deals with how the City evaluates a request for modification of a site plan. It a determination that it is a minor modification, which is handled adminisl makes a determination that it is a major modification, in which case it is t original site plan. Under the terms of our Code, the determinatio'n of whethe~ major modification is left to t,he discretion of the Planning and Zoning Dir~ backup, there is an analysis m,=de by the Planning and Zoning Director, and tt that this is a minor modification of the site plan and it is to proceed adminisl The reason this is before the Commission is because the matter is pending ~roved a site rs, appealed I issues with :s Ego, Clear s a specific ction 9) that 4ther makes atively, or it eated as an it is minor or ctor. In the ~= conclusion atively. the Courts on. appeal, and the adjacent property owner, through his attorney, made a rbquest that there was to be a determination of a minor versus major modification, that t opportuni~ to come before the Commission in a public fashion and state thai have the oppottunity to express their opinion to,t. he Commission, perhaps to j CommissiOn that staff had made the Wrong demrmination in that regard. Additionally, there was an issue with respect to interpretation of the Code, wh not a matter left to the discretion of the Commission..Rather, the interprE Zof~ing Code is left to the Planning and Zoning Director. That involves an int~ Chapter 2, Section 4, Subsection J of the Code, which provides with respect that house eaves shall not overhang or exceed the setback lines for more t The beginning part of that section indicates that they are talking about str zomng districts, not specifically residential. Therefore, we construe the ~ eaves" to mean structure eaves. In fact, Tambri Heyden or William Hukitl wil that interpretation has been consistently applied, or at least applied to some d if ay.have the op~mon and ~ersuade the :h is usually :ation of the rpretation of o structures an two feet. ctures in all )rds "house explain that Iree, by the Building and Zoning Departments from time to time to include all structure~ residential or house structures. City Attorney Cherof stated that this matter should be treated as a proceeding. At the conclusion of the presentation, all that the Commission not simply ]asi-judicial asked to do EXCERPT OF CITY COMMISSION MEETING - 3/19/96 RE: CLEAR COPY s to acknowledge and ratify or endorse the interpretation by Tambri Hey~en, or if the Commission does not agree that the interpretation is correct, to direct her to ~'econsider it. Additionally, with regard to the interpretation of the section of the Code that ,~ity Attorney Cherof described regarding the eaves overhanging the setback lines, if the ~Commission does not agree w th h s nte~retation, he shou d be directed to provide an an'endment to the Code to clarify that. At this time, all those who intended to testify this sworn by City Attorney Cherof. Ms. Heyden stated that she has been a municipal planner for over ten ye coming to the City of Boynton Beach in 1987, she was a planner for Williamsburg, Virginia. She reviewed Section 9 of the City Site Plan Revie~ She said there, are seven criteria that are spelled out in the Code that guidelines in makingthat determination. Using the overhead projector, she overlay of the site plan'~hat, was approved in September of 1995. She re · criterion and compare~., the two site plans to show how she came determination. In making a minodmajor modification determination, the planning and zoning consider the following: Does the modification increase the buildable square foe development by more than 5 percent? Ms. Heyden displayed the approved site plan and stated that them are two dr were proposed (one an ingress only and one an egress only). The egress on~ Street. She pointed out the location of the building. It faces Boynton Beac The square footage of the building has not changed. The parking that exactly what is required by Code. There are no surplus parking spaces. Cening were trs. Prior to the City of Ordinance. ire used as lisplayed an 'iewed each p with this tirector shall age of the ceways that ~ was on 7th Boulevard. provided is Does the modification reduce the provided number of parking the required number of parking spaces? Ms. Heyden advised that there are no changes in the number of parking si: location of the parking spaces. Does the modification cause the development to be below the ( standards for the zoning district in which it is located, or oth( standards in the Land Development Regulations? Ms. Heyden stated that this modification does not change, and continues to zoning regulations (the building and site regulations). She provided the sta that have been generated on this request, and she used the Technical Revie~ ;~aces below :es; just the 9velopment applicable ~et, the C-3 : comments Committee EXCERPT OF CITY COMMISSION MEETING - 3/19/96 RE: CLEAR COPY II not stucco, bands, or any other exterior applications to enhance the building. that an eave to him, as a builder and professional, ~s a projection from a bull protect you from sun or ram,. or could possibly be enclosed and enlarge th~ building without getting a building permit. He said what we have here is so was done within the original scale dimension by City staff and it was reduced l- and still accommodates a requirement of cross ventilation for this particular has the task of buitdir~g this building, but needs some direction. The eave w trusses and overhangs were inspected and passed. It was not until an o~ 4e also said ling that will area of the qething that f 40 percent uilding. He ,s built. His ection was raised in regard to the eaves that he was g yen a red tag. The projection fror the stucco band ;out is only two inches to accommodate this particular screen vent rig. We are not looking at rain protection. He cannot S~ee them I~.ter trying to enclose und~ meath that eave. With regard to the color of [h.e windows, the intent was to main~m a more traditional, conservatiCe, Mediterranean look. Bronzed window frames wou d ~nhance the building r~uch more than white Window frames. / Vice Mayor Jaskiewicz stated that the word "house" in Section 4 seems to ' ; causing a problem. She suggested changing that ,word to "building" to avoid any misir erpretation in the future. Mayor!Taylor said this is about the third time he has been through this matter ii detail, and he didlnot hear much that he had not heard previously. He said he has consi, ,~red every single one of these comments over and over again. He felt the Commissior addressed them adequately. He did not think anybody ever took it trivial. He fell staff were perfectionists. He respected Dr. Roberts' opinion. He felt that staff has addr( ~sed many of the i~ems that Dr. Roberts had brought up. He felt a lot has been done to ad Iress some of Dr. Roberts' concerns. He said Dr. Roberts' made it clear the very first time I"; appeared before the Commission that he did not want this building to go up Jnder any circumstances. Mayor Taylor was comfortable with staff's recommendation. H~ felt we are doing this within our Codes and in many cases, exceeding the Code. Motion Commissioner Bradley moved to ratify the Planning and Zoning Director's de of minor site plan modification in this site plan review. Commissioner Tillman the motion, which carried 5-0. The legislative intent of the house eaves was addressed next. Mayor Tay Attorney Cherof felt this section of the Code was clear. ,=rmination seconded r and City IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL ~IRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA MARK E. ROBERTS & PJ-IS CORPORATION, Appellants, APPELLATE DIVISION (CIVIL) CASE NO AP 95-g266 AY AP 96-4870 AiY CITY OF BOYNTON BEACH, Appellee. Opinion filed February 25, 1997. Petition for Writ of Certiorari from the City Commission of the City of Boynton Beach. 4~.~,eginald G. Smmbaugh Esq., st Palm Beach, Appellant, RHS Corporation. IRandee S. Schatz, Esq., [Palm Beach, for AppeIlants, RHS Corporation & Mark E. Roberts ~James Cherof, Esq. '& Leonard Rubih, Esq. Ft. Lauderdale !or Appetlee PER CURIAM, The Petition for'Writ of Certiorari is GRANTED. We find that Petitioners, Mark E. Roberts ("Roberts") and RHS Corporation CRHS") were denied procedural due process by Respondent's. the City Commission of 4078331881 FROM Ranoee S. Scha*.z TO ?~E 17E41 =. FC' Boynton Beach ("City Commission"), failure to issue proper notice of the rehearing set September 19, 1995. Respondent does not take issue with the impropriety of the lotice, but asserts only that Roberts and RI-IS waived their right to appeal the issue due to thei~ appearance at the hearing and their failure to raise the issue of notice at that .time. ,~lowe;.'er, if "notice is so lacking that [a par[y] was unable to fully prepare for the hearing to vo :e an- objection or where the [party] can otherwise demonstrate prejudice, the courts will 'efuse ro find a waiver or estoppel.' Schumacher v. Town of Jupiter, 643 So. 2d 8, 9 i(Fla. 4 DCA 1994). Here, Roberts and RHS were not notified of the 1: ~,..ring until the da2~ befor, he hearing was to be held, and even then, it was only through their serendipitous effor~ that the,,. were afforded notice. One day's notice ts not sufficient time to prepare for a hearin presentation. Furthermore, the City Commission's approval of bhe site plan at issue cause constituted a departure from the essential requirements of the law. Article 4, of the Boynton Beach City Code CCity Code") states in pertinent part: Sidewalks shall be four (4) feet wide within local streets rights of way ~nd five wide within ali other streets. The site plan as presented ~o the City,Commission~ represented sidewalks ofor~Iy somt feet in width along the intersection ofkhe site. This zs an obvious and patent t~onconf~ with the City Code. Respondent's only argument in rebuttal is that there is no provisi City Code which deals with sidewalk widths at intersecffons. This argument is strain best. The City Code at issue clearly states that sidewalks must be at least a minimum feet wide. If Respondent's line of reasoning is adopted, the City Code provision wout< this :ction 10 5) fee~ two (2) nnance of the rendered utterly meaningless, as anything could becorne an exception since the code section is so generally stated. Accordingly, we quash the approval of the site plan by the City Commission. We decline to reach tl~e additional procedural issues brought forth in the subsequent and consolidated Petition for Writ of Certiorari in AP 96-4870 AY, a~ the now moot, due to our granting of the Petition for Writ of Certiorari on the issues pre: AP 95-8266 AY. COOK, MARPA, & CARLISLE, JJ., concur. a078331881 nted m TOTAL P.83 11: 12AM ~076878103 P. ~om CIRCUIT COURT OF THE FIFTEENTH fGDICIAL CIRCUIT, IN AND fOR PALM BEACH COUNTY, FLORIDA ' APPELLATE DMSION This cause having been brought to this Court by appeal, 0md after due consideration the having issued it~ opinion; YOU ARE HEREBY COMMANDED that su ch further prod~eding$ betfad in' said accordance with the opiaion of this Court, and with the rules of procedure and laws of the ', Florida. WITNESS ~ HONORABLE lACK H. COOK, Presiding ludge 0fthe Appellate Division (Civil) of the Fii~eenth Judicial Circuit and seal of the said Court at West PaLm Beach~ Florida on tNs day. DATE: APRIL 30, t997 '..- CIRCUIT APPEAL CASE NO.: AP 95J$266 AY AP 96-4870 AY "~ COUNTY CASE NO.: -~ 2 STYLE: M_ARK E. ROBERTS & RHS CORPORATION v. CiTY OF BOYNTON ~ origlnai to: Circuit Court et: Reginald O. Smmbaugh, Esq, Randee S. Sc~t~ Esq. James C1aerof, Esq. Leonard Rubi.~. Esq: DOROTHY H. WILKEN, CLI CmCUIT COURT Palm Beach County, Florida By:. Nivi.a D.~ Ag~ero .. Deputy Clerk 3ollr'~ tare of ...%- ~ACH ITAT~ OF .KEN 1 Mark E Roberts, D.D.S 650 West Boynton Beach Blvd., Suite #2. Bobntotl Beach, FL 33426 · (407) 736-1700 August 28, 1997 Mr. Jerzy Lewicki Senior Planner, Planning Dept 100 E. Boynton Beach Blvd. Boynton Beach, FL 33425 Re: Clear Copy Application for ~ajor Site Plan Modific. tion Dear Mr. Lewicki: This letter is a follow up 5o our Augus5 28, 1997 conver regarding Clear Copy' s application for major site modification. You indicased you were instructed to accept Copy's application as a ma.~or site plan modification. In add. you said that you were no5 informed the Circuit Court Fifteenth Judicial Circuit quashed the City Commission's ap] of Clear Copy's original site plan~ Should you desire confir! of the Court's action, you may con,ar5 the City Attorneys O~ To summarize our conversation, it is my position that Copy's application for a major site plan modification was c.~ accepted in error, since there is no approved site plan to m( To comply with the Court's Mandase, the City must process Copy's application as a new site plan application and hold h~ with the opinion of the Court, with the rules and proceduI laws of the State of Florida, and those of Boynton Beach. Should the City proceed to process Clear Copy's applicat~ a new site plan application, rather than a major modificati request to be notified. In addition, I also reques~ copies ¢ changes or modifications in their application to that effect Sincerely ./ / Mark E. Roberts, D.D.S. MER/sm copy: James Cherof, City Attorney Kerry Willis, City Manager ~ Dale Sugarman, Assistant City Manager Tambri J. Heyden, Planning and Zoning Director ation plan Clear tion, [ the royal ation lice. Clear early ~ify. 2lear ~ring and n as )n, I any Mark E. Roberts, D.D.S. 650 West Boynton Beach Blvd., Suite #2, Boynton Beach, FL 33426 · (407) May 31, 1995 Ms. Carrie Parker City Manager City of Boynton Beach 100 E. Boynton Beach Blvd. Boynton Beach, FL-. 33~25-0310 Ref: Clear Copy Project, Build Permit ~954541 Dear Ms. Parker, Consider this letter an application Development Board appealing the final landscaping app~ the Clear Copy Project as per Chapter 7.5, Article II, 11, of the~Land Development Regulations. The basis of Ks Clear Copy's violations with Chapter 7.5, Article 5.D.1, and Section 5.E of the Land Development Re¢ Please notify me of the date the Board will hear the 36-1700 to the Planni q and for Section the appeal Section )ns. ~1. Sincerely, Mark E. Roberts, D.D.S. MER:sm copy: James Cherof, City Attorney MARK E. ROBERTS, D.D.S. 650 West Boynton Beach Blvd. · Suite #2 · Boynton Beach. FL 33426 .(407) 736-1700 July 10, 1996 Mr. James Cherof City Attorney of Boynton Beach 100 E. Boynton Beach Blvd. Boynton Beach, FL 33425 RE: Clear Copy Project Dear Mr. Cherof: This letter ~hall ach as a formal application Roberts, D.D.S. and RHS Corporation to the Board of Zoni Pursuant Chapter 2, Section 10.E of the City's Land ~egulations (LDR), we are appealing the decision of the ¢ irector issuing a certificate of occupancy for Clear Co July 10, 1996. The basis of this appeal is that the project has not complied with the approved site plan re( all applicable LDR, and all City ordinances, and th certificate of occupancy should not have been issued. LDR states that upon the denial of an application under Chapter 2, a period of one year must run prior t subsequent application for appeal. A previous appli denied and is being challenged in Court. Should the Cou that decision, this appeal will be required to be ~eard If this. application has non me5 the City's required is not clear, please notify me. Should the Court r~ previous denial, notify me with due notice of the time will hear this appeal. S i~nc/9~e 1 Y) ', Mark E. Roberts, D.D.S. MER/sm.. Sent by FACSIMILE (305-771-4923) and Hand Delivery copy: Carrie Parker, City Manager William Huckilt, Director of Development Mark E. Appeals. evelopment evelopment ~y, IRC. oR ~tear Copy ~irements, ~refore, a ~or relief filing a ~tion was reverse format or verse the the Board i~. I, ~27 conviction thereof shall be grounds for the revocation or suspension of any permit granced for the constr~ction or remodeling of any building or structure on the Site so Section involved. No building permit or certificaue of occupancy issued.for any improvements upon a property whe] provls!ons of this article have not been compli( 28-30. Reserved. ARTICLE II. LANDSCAPE CODE Section 1. Short title. This article shall be known and may be cited as the Beach Landscape Code." Section 2. Declaration of purpose and intent. It is the PUrlDose and intenu of this article to im~r appearance of certain setback and yard areas including o vehicular parking and open-lot sales and service areas i Be~ch; ~o protect and.preserve the appearance, characterI value,of the surrounding neighborhoods and to preserve e~ thereby promote the general welfare by providing for ins~ and maintenance of landscapIng for screening and elimina~ visual pollution, and where possible that the landscapin! provided as a resu!= of this article be constructed in a whichwill reduce the demand for energy currently and in future, since the City Commission finds that the pecu!ia~ characteristics and c/ualities of Boynton Beach justify regulations to perpetuate the appeal of its natural v~su~ pollution free environment. Section 3. Construction of language and definitions. A. Rules for construction of language. The followi~ of c0ns~ruction shall apply to the text of this 1. The particular shall congrol the general. 2. In case of any differences of meaning or in~p. between the text of this code and any captio~ illustration, su~=~ry table or illus=rauive the text shall control. 3. -~.Thp~0r~~5~ is ~.always~imanda~0~'~%nd~no~ d~scre~longz~The word may. ~s permissive 4. Words used in the present tense shall includ~ fuuure; and words used in the singular numbez include the plural, and the plural the singul unless the context clearly indicates the conu 5. A "building" or "str~cture" includes any part thereof. hall be the with. 'Boynuon ~ve the 'f-street ~ Boynton and .ergy and allation ion of to be manner the rules ticle. ication ~ble, the shall ~r, ~ary. right-of,way, excluding dedicated alleys to the rear of building, there shall be provided landscaping between such area and such right-of-way as follows: 1. A strip of land at least five (5) feet in width located between the abutting right-of-way a/~d the off-street parking area or other vehicular u~e area which is exposed to an abutting right-of-way shall be landscaped, such landscaping is to include a minimum of one tree for each forty (40) lineal feet (r fraction thereof. Such trees shall be locat~!d between the abutting right-of-way and off~st~ eet parking area or ocher vehicular use area and shall be planted iD a planting area of at least twent] -five (25) square feet with a dimension of at !eas~ five (5) feet. In addition, .a hedge; wall, or or]er durable landscape barrier of at least three 3) feet in height shall be placed along only the interior perimeter of such landscaped strip. If such durable barrier is of nonliving material, for each tt (10) feet thereof, one shrub or vine-shall be p!~ ted abutting such barr%er along the street side 5f such barrier. The remainder of the required land~cape~ areas shall be landscaped with grass ground ~over or other landscape treatment. Perimeter landscaping relating to abutting prope~tzes.' On the site of a building or structure or open l~t use providing an off-street parking area or other ve~icutar use area, such arealshall be!provided wi=h a lan~Iscaped barrier, preferably ~ ~d~"~ot less than four [) feet nor greater than six (6) feet in height to form continuous screen between the off-street par~ing area or other vehicular use area and such abutting prope~ Such land~cape barrier shall be located between he corm~on lot line and the off-street Darkin~ area r other +ehicular use area In ~ planting strip of not le~s two .a~.d one-half (2 1/2) feet in width. The pro+isio_ns of this sub~ection shall not be applicable in following situations: · 1. When a property line abuts a dedicated' 2. Where a proposed parking area or other vehicular use area abuts an existing hedge, said existing .edge may be used to satisfy =he landscape requirement of this meets subsection provided that said existing hedge all applicable standards of =his article. Accessways. The maximum width of an acce~sway ~ one- or two-way traffic) through the required p~ landscape strip co an off-street parking or othe vehicular use area shall be thirty-five (35) fee balance of such street frontage not involved wit 7.5-16 ,hether 'imeter The TO: FROM: RE: BUILDING DIVISION ~MORA-NDUMNO. 95-267 July 31, 1995 William V. Hukill, P.E. Department of Development Director A1 Newbo!d Deputy Building Official DR. ROBERTS,S ~ICAL OFFICE BUILDING I2~NDSC-A~INGDISCP, EP/%NC~/ In order to assist you in your response to Tambri HeFden's memorandum 95-383, I researched the f~les and offer ~he following facts and comments: The Technical Review Board (TR~) plans were si~ned Jaeger during his tenure as the department,s represe~ building plans were reviewed by Michael Haag and si~ned off by Warren DeLoach in Mr. Haag's absence review shows the building plans .match the TR~plans that were reviewed by the CoL%~unzty Appearance Board. show a 2~ setback for the extreme western section property adjacent to the parking lot. ~ring this era, Mr. Jaeger then became Building Off~ Haag was appointed %n charge ~f site.review which was this department during that time.. S~te plan approval 0873 was generated ~o track the szte plan process improvements and administered by the Site Development the Buitdin~Department under Mr. Haag,s supervision. project"has Peen ~o.mpleted and all paperwork is on.n~.' Thekefore, all original documents are no longer avail A~tached 9re copies of the site plan and the w~th a p~in~-out of the inspection history. F~ of the t~e~in suz-~ey, the pav~ng appears to~b~1.58~/ west property, line and not 2~. as s~own ~n~th~ wou!~_~ssu.r~ that the s~rvey ~s correct ~n~a~-"i~ ha f~zcatzon date~showin~ Au~st 23, 1989 ~d I fo~c ~ ~ w~s approved Au~st 18, 1989 by Roa~ ~=~ om =na~ sam~ su~ey} it appears that the~uildin~ correct ioca~ion and %= would be fair to ~sume that pr0blem'is.wi=h the sl~e of the paved are~. ~ found documentation in the file sivins ~y e~anatlon, e=c [:~&ut~on.z~m =he narrow landscape strip or whether ame ~ ~ssUe. / f by Don tative. The mately 1989. My ~d those ~.ll plans the 'ial and Mr. handled by permit 88- all site Division of :rof~lm. )le.. ~rvey along ~bservation rom the .gaPlans. I that the rmer p.artment. · n the he only ~as to any %t ever Building Division Memo 95-267 to William V. RE: Dr. Roberts' Medical Office Building July 31, 1995 Page Two Hukill, P~E. Our records do show that the CAB inspection was made Kopczynski who was the former Deputy Building Official appointed to handle CAB inspections by Mr. Jaeger whe: Building Official. That inspection was approved Augu~ i can only assume that the proper position to take been to cut off the additional paving to comply with landscape strip. It could have been assumed that it necessary since we did then, and do now, allow bumper set back on paved areas less than The code requires sc bum~ers overhang the landscape s~rlp. I see ~o reaso~ would be an issue, especially as it relates t? the adj since our code also exempts landscaping on pz .an~sc~ping. My interpretation ¢ is t S~ri~ itself has a ~lmension and the be located within no= necess~ s must be as wide as Itshould be our position that the neighboring propert Shguld not be penalized for the paving onDr. Roberts' being closer to his p~operty line than what was permit If any controversy arose during the construction of Dx permits, Mr. Haa~ could shed some light on it since h~ involved in the site plan process and the final sits si~ned by him on November 19, 1991. AN:bh Attachments y Med and he became 25, 1989. ld have 2e 30" ~s not ~tops to that the why this ~cen= ~perty that the code ~quirement Strip but :he strip. ~ owner property :ed. , Roberts' was ;prova! was PLANNING AND ZONI}~G DEPARTMENT MEMORANDUM NO. 95-497 Agel%da Memorandum for September 19, 1995 City Commission Meetin~ TO: Carrie Parker City Manager FROM: TambrJ J. Heyden Plannin~ and Zoning Director DATE: september 14, 1995 SUBJECT: Clear Copy, Inc. - NWSP ~ 95-004 New Site Plan (reconsideration of 7/18/95 Commission action ) Please place the above-referenced request on the September 19 1995 Commisslol% agenda under Developmen[ Plans. At the september 5, 1995 Commission meeting, the Commission vol to reconsider their July 18, 1995 action of denial of tile above~ referenced site plan on September 19, 1995. Planning and Zoninu Department Memorandum NO. 95-352 and 325, previously transm]tte~ to you fol' the July 18th meeting, are a=rached for referefice reg~arding the specifics of the site plan. Upol] your receipt of the at~acbed July 20, 1995 letter from Dr. Roberts, the property owner adjacent ~o least of] the subject property, you requested staff no research and respond to tile points in Dr. Roberts, letter ill preparation for tbs september 19th reconsidera~ion by the Commission. The followi11~ respouse is provided based o1% information I have gathered iron} the city attorney, the Engineering Division {see attached Engineering Division Memorandum NO, 95-333), the Public Works Departme]%t ar~¢ the applicant (see attached letter dated August 3, 1995 from Gecrga Davis): 1. Article II, Section 5.E of Chapter 7.5 regarding tbs ,;%. landscape hedge and strip between tbs subject property ~nd Dr. Roberts, property - Pursuant =o the above sect/on of the landscape code, a and ol%~-half foot wide lalldscape strip with hedge must be provided along in6~rlor property lines where vehicular use areas {driveways a11d parki]%g lots} abut imterior property lines. Clear Copy has not Pl'ovided s landscape strip and hedge {and has mo room =o provide it without significantly altek-ing their site plan) due to a code exempt/on tha= allows sa~isfacs~on o~ the lamdscape requ~remenss where there is an exlstln~ ]}edge, provided the "hedce meets alt applicable standards of the landscape code". Dr. Roberts she=es that the code exemption cannot be applie( to Clear Copy because although theL-e is a hedge o~ Dr. Roberts, property, adjacent to Clear copy, the strip is ~0 il]¢hes shor~ of the required 2 1/2 feet. Therefore, he sea:es that nelthe~- D~-, Roberts,, nor Cl~az- Copy meet code, and that Clear Copy, by code, needs ~o provide a 10 lmch wide landscape strip ad3acent no Dr. Roberts, nonconforming strip or Clear Copy must be granted a variance {appeal). Please note tbat Dr. Roberts cites a section which does not exist a1~d therefore I cannot verify his first sentel%ce. e a' property tbat .was prepared an timein for Dr. provements on Dr Roberts, ........ of ~uspection of TO: Carrie Parker -2- SS~~-ember ; !995 problem on his property and that Clear Copy, on of *.he landscape Article IV Section 10.T of ChaRuer 6 regarding sidewa] Pursuant ~o the above sac:ion, the w~dth of the sidewalk Clear Copy is to provide is four feet wide (Dr. Roberts indicates five feet wide) s~nce the sldewa!ks Clear Copy no %ns~all a~e on local streets. The Site plan s~lbmltte shows the sidewalk diminishing 5o a width of two fes~ ~5 the i~=ersection of N.W. ?th Street and N.W. let Aven~le. According to the Engineering Division ~here la no clay standard de:si! for how sidewalks are to be designed at n intersection. In fact you will find existing sidewa!k~ zn=ersecclons deslqned in a couple of diffeven~ ways. T a existing sidewalk on the west side of the street 15 also designed with a diminished width a~ the intersection. T e £n~ineering Division has indicated verbally ~hat due ~ ha way ~he eastbound turn lane on N.W. 7th Surest zs cons~rucued, the applicant shall complete the sidewalk b attached sketch the: has been prepared by George Davis This design Would not ueduce any area of the parking igc or the minimum five foot wide landscape strip required adja snt The above section sta~ee "Due to the high degree of visibility of buildLngs located on Hypoluxo Road, Min~r Woolhrigh= Road, Boynton Beach Boulevard, Winchester Boulevard, High R~dge Road, Seacrest ~oulevard, Golf Ocean Avenue, Federal Highway, Old Dixie Highway, N.Z. design requirements apply: 1. Overhead doors shall not be located on'a buzld facadefs) that faces a public or private s%reer The intent of this section was - overhead doors shall hOE be located on a bulldln~ facade(s) that faces oma of the ~b not be located on a building facade that faces ~I1¥ public or TO: Carrie Parker -3- September 14, 1995 Chap=er 23, Article II.H.3 regard(ag the distance.driveways shall be from street right-of-way lines - The above section states that "?ark(ag lot drivewways sh~ll be coustructed at least thirty (30) feat from the intersection of the right-of-way lines along local streets and one hundred eighty (180) feet along streets of a higher classification-. Both N.W. 7~b Street and N.W. 1st Aven~e are local streets and Boym~on Beach Boulevard is e s=ree~ of "higeer classification,,; an arterial Tiara(ore, a driveway ol~to N.W. 7th Street~ a local street, is req%~ired to be~ feet, no~ the 180 feet stated by Dr. Roberts from the intersecting right-of-way lines of N.W 7th Street aud Boynton Beach f~ulevard The Clea~- Copy site plan refle~s~ a driveway distal%ce of over 65 feet and therefore compli=s \ with code without a variance. ._~ Dr. Roberts adds that Engineering Division Memorandum No 95-156, dated May 15, 1995 states that a variance is nee The attached El%gineeri]%g Division Memorandum ~o. 95-333 dated August 31, 1995 states that their May l~5th (incorrectly interpreted' the code. therefore a variance In addition, it was mentioned at the Jnly 18th Comlalssic meeting that the Texaco service station and Wendy's restaurant on Boynton Beach Boulevard, which are ol~ corn lots and ]~ave driveways onto the side street they aDut, ~ required =o seek variances. Staff researched tbs approv~ of these projects and neither one was required To obtain variance for their driveways on side streets and tbe sam~ code requiremei~t was ill place a~ the time of their proje( approvals. 5. Light pole ill paved area obstructs back-up aisle - Dr. Roberts s=a=es oma of the light pole locatioms does permit the required, ~nobstructed back-up space of 27 fee therefore he believes a variance is needed (or a parking space deleted which Wo~lld cause the buildin~ ~o have to red[~ced in size). George Davis addresses this in his 3rd letter and s=~es that the euror was not cau]ht when revised plaus were'submitted whick flip-flopped the park~ lot amd the lighting plan was []o= correspondimgly revised He states that the light pole can be relocated =o the wes side of the parking lot to within ~he lamdscape s~lp, wh ls permissible. Therefore, ~%o variance and no alteration% the parking lot design are needed. !~1 additlon =o the above, there are three other issues tha~ ha~ uufolded slnce the July Commission meeting; building design, rraffic concurremcy and dumpster access. Building ~est]n - You will recall that there was a Great deal · discussion a~ tbe July meeting relative to the design% of building and additional la~]dscapin~. Things discussed we changlmg the building color zo a shade of ~an or orange rather tha~% Pink (addressed in s=aff,s J%~ly comments) lowering the height bf the building (the two stories ' proposed are allowed~), putting shutters and ralsed :}}1' o~,.all w&ndows~, adding tile accel% u~oing height is at the building Is a~ ~he minlmtm s-*~**e-nn~ng (since the zequi,ed) and raised Stlcco ~c~, a_vaT~ance would be g ch tO TO: Carrie Parker -4- September 14, ~995 increasing the size of }hedges and trees and adding more landscaping along the three street frontages. As Induce in his August 3rd letter, the applicant offers adding shutters co the south side of the buildi~%g al]d addir~g ar windows. Traffic concurrency - By the time of the July Commissioll meet Palm Beach County was not provided enough information to certify for concurrency {addressed in staff's Jnly comments). Since this meeting, staff has received the { a~tached August 16, 1995 letter regarding this issue whe Palm Beach County states that altho%lGh it appears as if project meets tire county's traffic ordinance, there was additional information that they needed to reqnest of th traffic engineer Palm Beach County [has nos con~acting stsff since this letter to notify us tha£ the informat]o has been submitted. Also, they indicate that a restrict covenant needs to be placed on the property limiting its to a print shop (a uew traffic study would be needed and mns= be approved for any other use in the future). Dumpster access - You will recsll that there was a great deal that because of tbe landscape island south of the drivew access the dumpster. Based on additional information th Public Works. Department obtained from the applicant generated, can pick-up will be the method of solid waste di£posal, except for recyclab]es which %{ill be picked smaller and will be able to nlaneuver on site. Recyclabl, planned fol' the dumpster (same location). The applicant will be reqn~red to bring his cans out to curbslde o1~ pi, up days. If the Co~mission determines that this site plan request approvable, i~ is recommended that ~he approval be couditlone¢ %lpon all staff commen~s ~rausmit~ed in J[lly a~]d compliance wi~ Palm Beach County,s August 16th letter (as well as ~'Davis, A~gust 3rd letter. tjh Central File A:Clercopy ed hed of The PLANNING AND ZONING DEPARTMENT MEMOR-~NDUMNO. 96-143 Agenda Memorandum for March 19, 1996 City Commission Meeting TO: Carrie Parker City Manager FROM: Tambri J. Heyden Planning and Zoning Director DATE: March 15, 1996 SUBJECT: Clear Copy, Inc. - MMSP =96-03-003 (Minor site plan modification for parking lot and building design changes and request for overhang · determination) Please place under Legal Other, on the March 19, 1996 City Commission agenda, discussion of 1) a minor site plan modification that has been submitted for Clear Copy and 2) Commission legislative inten5 for commercial building overhangs as it relases 5o the pending P~qS Corporation v. City of Boy~on Beach case. INTRODUCTION On September 19, 1995, the City Commission approved, subject to commen~s, the site plan request for Clear Copy; a new print shop to be located a5 the southeast corner of Boynton Beach Boulevard and N.W. 7th Street (660 W. Boynton Beack Boulevard) ~ see attached Planning and Zoning Department Memorandum No 96-142 ~ Exhibit A for location map. R~qS Corporation subsequently filed a Notice of Administrative Appeal to appeal through the circuit cour5 system the City's decision 5o approve Clear Copy's site plan. P~qs owns and occupies the abutting property immediately ess5 of Clear Copy's parcel. There is a medical/dental office building located on this abutting property. Since the September approval, the applicant has moved forward with construc~lon permits and the building is currently under construction and nearing completion. On February 27, 1996, I .received from the city engineer, William Hukill, a memorandum notifying the departmen5 that the applicsnt for Clear Copy had submitted, through permitting and in respon, se to Mr. Hukill's reques~ for a code compliance certification, a site plsn drawing showln~ several modifications to the permit that had been previously approved for Clear Copy's site improvements. For expediency ~nd simplification, all applicants are allowed to submit modifications directly through the permittin~ application process for determinstion of m~nor vs. major change or may submit modifications directly to the Planning and Zoning Department, with a letter describing the changes (although we have also allowed modification plans to be evaluated for determination by'meeting with Planhing and Zoning Department staff). Since the developmen~ is the subjece of pending litigation, city policy requlres ssaff to notify the legal department of any actions related to pendin~ litigation. Such notification Occurred and on March 4, 1996., the legal depar~men5 advised staff of the following: a) that the City Commission be apprised, expeditiously (at their next available meeting), of the minor site plan modification that has been submitted; b) that the City Commission ratify staff's determination and c) that the RHS Corporation be notified that the modified site plan will be presented to the Commission at this meeting. As previously discussed with you, on March 8, 1996, the legal department filed a Motion for Extension of Time with the circuit court regarding the subject case Reference in the motion was made TO: Carrie Parker -2- March 15, 1996 indicating that the modified site plan would come before the City Commission au their March 19, 1996 meeting. On or about March 1996, the legal department notified the RHS Corporation that the minor site plan modification would be discussed au the March lgth Commission meeting. In addition, copies of this memorandum will be provided to the RHS Corporation, specifically Dr. Mark E. Roberts, today, after nransmlttal of this memorandum uo you. It is the Planning and Zoning Department's responsibility no determine which departments review minor site plan modifications and to inform the applicant of the completeness of his submittal. After recempt of engineering plans ~o accompany the modified site plan received, staff distributed the submittal to the Technical Review Com~ittee (TRC) for comments and placed the request on agenda of the next available TRC meeting (March 12, 1996). It is honed that the standard method for obtaining comments from designated TRC members for mmnor site plan modifications is by telephone requesn no review plans held in the Building Division. However, the TRC meeting forum was used ~n this case due to the pending litigation and ~o more quickly and effectively assemble the attached materials for the March 19th Commission meeting. The modifications are described in the attached Planning and Zoning Department Memorandum ~R6-142 and are illustrated in the attached copy of the modified site plan (Planning and Zoning Departmen~ Memorandum #96-142 Exhibit B). After comparison with the September 1995 approved site plan t~--~difi~~determined 'to 'be minor th'~D~u~ ~nd P~°¢essr~'Fo~ clearer~Co~issib~ unde~s~J~dihg 0'f fh~ ~-qTre~'~d, the original site plan staff report has been attached and revised to reflec~ the changes. Also attached in Planning and Zoning Department Memorandum No. 96-142 - Exhibit C is a list of all administrative comments that condition this minor site plan modification approval. For reference purposes, the applicable sections of the Boynton Beach Land Development Regulations (Part III of the Boyn~on Beach Code of Ordinances) used to determine the processing of a modification ~o an approved site plan are provided below. Following each criterion, staff's conclusion is included and appears in brackets: "Section 9. Modification of approved site plan. C. Ih making a mmnor/major modification determination, the planning and zoning director shall consider the following: Does the modification increase the buildable square footage of the development by more than fi~e (5) percent." [No change in the size o~ the building ms requested.] "Does the modification reduce the provided number of parking spaces below the required number o~ parking spaces." [No change in the number of parking spaces is requested.] "Does the modification cause the development to be below the development standards for the zoning district in which it is located or other applicable standards in the Land Developmen~ Regulations." [The modification does not change, and continues to mee~, the C-3 zoning district development s=andards (building and site regulations). In addition, compliance with the antached snaff comments will ensure that all safety and technical concerns, as well as code requirements, have been addressed.] TO: Carrie Parker -3- March !5, 1996 "Does the modification have an adverse effect on adjacent or nearby property or reduce required physical buffers, such as fences, ~rees, or hedges.,, [The modifications include replacement of the N.W. 1st Avenue ingress only drivewmy for a N.W~ 7th Street ingress only driveway, a flip-flop of the location of the row of parking spaces with the access aisle ~o the parking spaces, switching of the handicapped space location, addition of window sil~s ~o the building exterior. The building exterior modification does no~ lessen the appearance of the building. In factj the chan~e lends a more finished look ~o the building, making it more compatible with the ex,error appearance of adjacen~buildin~s. The driveway change meets code locational requirements and does not negatively affec~ adjacent properties. The parkin lot , ~ - une aevelopment and have no negative impact (virtually no impact at all) on ad-acent properties; nor do they diminish the funcu~on of the parking lo~. With regard Eo reduction of physical buffers, the modifications do hOE diminish the degree of buffering afforded by the September 1995 approved site plan. No change in the landscaping proposed as part of the original siEe plan approval for the area between the Clear Copy parking lot and Dr. Roberts, parking lot is requested, consisten~ with the September 19, 1995 city determination thaE this landscape buffer is acceptable.] "Does the modification adversely affecu the elevation design of the s~rucuure below the ssandards s~a~ed in the community design plan." [The modification Eo the elevation design of the sErucEure me,ts the communiEy design plan and as sEaEed in criuerzon 4 above, the building ex, error modification does not lessen the appearance of the building. In fac~, the change lends a more finished look ~o the building, making it even more compatible with the exterior appearance of adjacent buildings.] "Does the modified developmen~ meeE the concurrency requirements of the Boyn~on Beach Comprehensive Plan.,, [The mod~ficauions have no impac~ on the previously granted c~ncurrency certification.] "Does the modifi~auion alter the site layouE so that the modified site plan does nou resemble the. approved site plan.,, [This criterion gran~s a ceruain degree of staff auuhority and requires application of judgement and common sense ~o assess the magnitude of change. Consisu~nE application of this criEerion is apparen~ through the quarterly reporting to the Commission of sit~ plan waivers and minor modifications processed by the department. When magnitude of change and similarity, or lack thereof, ~s evaluated between the approved site plan and the modification the follow±ng comparisons are noted: ' a) no change in building location; TO: Carrie Parker March 15, 1996 b) same building to parking relationship - building in fronu, parking in rear; c) no change in number of driveways or type of driveways (two-way vs. one-way and ingress vs. egress); d) service areas are ~n same general loca~£on and m~thod of refuse collection (curbside pick-up for trash and recyclables) is unchanged; e) degree, quality, quantity and location of landscaping is unchanged; f) type of parking spaces is unchanged; g) location of impervious areas (parking lot, sidewalks and sEructures) is vzrEually unchanged. h) building height, style, t~pe and use are unchanged; and i) utility service modifications are to the extent tha~ they have no effect on other site improvemen~s. Therefore, based on the above evaluation, staff concluded that the changes requested constitune a minor site plan modification and meet the following definition of minor modificatzon: "a non- zmpacting modification which will have no adverse effect on the approved site and development plan and no impact upon adjacent and nearby properties, and no adverse aesthetic lmpacu when viewed from a public right-of-way as deuermined by ~he planning and zoning In addition to ratification of staff,s action on the modified site plan, ~he legal department advised that staff seek from Commission a determination of their le islat' ' ~he adopting the followin- se -' - g lye ~ntent when ~ Cumon or the city's zoning code: Section 4. General Proviszons. J- Other Structures The following snructures shall be permitted in fronu, rear or side setbacks as provided in this ordinance, in any zone, ~xcept easements:Where so noted; taking into considerauion existing 3. HOUSe eaves shall no= overhang or exceed the setback lines for more than two (2) feet. Specifically the question is whethe . allowed to overhan~ ' ~ .... u__~ ~ commercial bu~ldin s exceed two feet. The Development Department states that historically overhangs of commercial buildings have been allowed, at time of inspection, to exceed the setback lines. These overhan~s, which include building surface treatments, as well as windoWinch toSillssix inches.and cornices, have been reported to range from one This determination ~s necessary because the tie-mn survey submitted for the Clear Copy building indicates a l0 inch overhang into the front (north) and sas~ side setbacks. Clear Copy's window sills, plaster, raised stucco bands and the cornice extend beyond the TO: Carrie Parker March 15, 1996 cornice was extended a greater distance than originally planned order ~o add roof ventilation; a design detail that is nc considered until the construction drawing stage - after time site plan approval. CONCLUSION In conclusion, two actions are requested by the Commission follows: b) ratification of scaff's acuion to process the submfuu, modifications as a minor site plan modification and a determination as uo whether the Commission,s actio] when approving the zoning code included variou~ commercial building features to be treated as hous eaves, thereby permitting such features On commercia ~ings to extend into the setback by no more than tw tin Attachments xc: Central File C:ClrCopy COMMERCIAL DUMPSTERS /~) ~ x /O/ EXHIBIT "C" Administrative Condition~ Project name: Clear Copy, Inc. 'File nnmber: MMSP 96-03-003 Reference by ~. Burton Smith, P.E, si=ned, sealed and dated 3/2/96 PUBLIC WORKS Comments: 1. As p~eviousty approved, Public Works has no concerns providing curbside service for the removal of solid waste and recycling UTILITIES Comments: 2. A mini manhole will be required in Clear Copy's north entrance placed over the City sanitary sewer cleanout near the property line per Utility Department criteria. Comments: NONE 'POLICE' Comments. 3. Place bollards along the east edge of the handicap parking space safety zone and the north half. of the east edge of the, handicap space. Comments: 4. Certification by the applicant's ' eslgn professional that the work, when completed, will conform with all codes, o~dinances, rules, regulations, and City Commission approvals. 5. Elimination of dimensional variations betwaen Davis drawings and Smith drawings 6. Restriping of NW 7th Street as directed. 7. Dedication of property occupied by small.portion of sidewalk infringing o~ ,sod~h~est corner of'site. Comme/~a~ 8. Prowide'Building Division with a copy ~f: the final approved plans to be lncorporated with the construction plans. iPARKs AND ~ECREATION Comments NONE EXHIBIT "C" Administrative Conditlon~ Project name: Clear Copy, Inc. File number: MMSP 96-03-003 Reference: One (1] sheet, ST-1. Prepared by Georae C. Davis, Architect (as revised March 5, 1996} and two (2) sheets by H. Burton Smith, P.E. sicned, sealed and dated 3/2/96 DEPARTMENTS I iNCLUDE I REJEC PUBLIC WORIS Comments: 1. As previously approved, Public Works has no concerns providing curbside service for the removal of solid waste and recycling UTILITIES Comments: 2. A mini manhole will be required in Clear Copy's north entrance placed over the City sanitary sewer cleanout near the property line per Utility DRpartment criteria. : NONE Comments POLIC~ Comments: 3. Place botlards along the east edge-of the handicap parking space safety zone and the north half. of the east edge of the,handicap space. DIWS ON Comments: 4. Certification by the applicant's ' design professional that the work, when completed, will conform with all codes, Ordinances, rules, re~u!ations, and City Commission approvals. 5. Elimination of dimensional variations between Davis drawings and Smith drawings. 6. Restriping of NW 7th Street as directed. 7. Dedication of property occupied by · s~a11 portion of sidewalk infrin~in~ on southwest corner of'site. BUILDtN~ DIVISION ' 8. ~ro~ide'Bui!ding Division with a copy of the final approved plans to be lncorporated with the construction plans iPARKS AND RECREATION Comments: NONE 4] .City of Boynton Beach: a. Photocopies of Minutes Randy Schatz, Esq.: a Filing Fee Pinnacle Court Reporting Inc. a. Court Reporter Fees $ 35.30 $ 206.00 $ 150.0o Further,' the Court finds that the &ther costs requested by Petitioners' were ~itioer withdrawn or were not compensable under Florida case law or Florida'~ ~ Guidelines for Taxation of Costs in Civil Actions. Accordingly, it is hereby ORDERED and ADJUDGED that Judgment be and the same is entered in favor of the Petitioners, Mark E. Roberts and RHS Corporation, $605.l~0 for which let execution issue. Uniform )g DONE: August 14, 1997 CC: Reginald G. Stambaugh, Esq. Leonard Rubin, Esq. James Cherof, Esq. IN THE CIRCUIT COURT OF ':I'HE FIFTEENTH JUDICIAL cIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA RHS coRPoRATION, a Florida corporation and MARK ROBERTSi Petitioners, APPELLATE DIVIsIoN (ClVlE) CASE NO AP 95-8266 ~Y AP 964870 AY ?~.~¥ CITY OF BOYNTON BEACH, Respondent. BY ORDER OF THE COURT: THIS CAUSE is before the Court on Petitioners' Affidavit of Plaintiff'~ Regarding Costs Incurred and on Affidavit of Plaintiff Regarding Costs Incurred. February 25, 1997 Petition for Writ of Certiorari in this cause was granted. On Ju 1997 this Court found that Petitioners were entitled to appellate costs and were o submit affidavits to support their claim for costs· Respondents were afforded an opportunity to submit any objections. Having reviewed the file, Petitioners' affids Reply, Respondent's Objections to Affidavit of Counsel and Petitioners' Relative ! Taxable Costs and being fu!!y advised in the matter, the Court finds the following appropriate. 1. Law Offices of Kramer, Ail, Fleck & Carothers: .a; Filing Fee $ 206.00 b. Courier Fees . $ 8.50 Counsel )n le 13, :lered to its and osts