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Minutes 04-13-76MINUTES OF THE REGULAR MEETING OF THE PLANNING & ZONING BOARD HELD AT CITY HALL, BOYNTON BEACH, FLORIDA, TUESDAT, A~iL 13, 1976 AT 7:30 P. M. PRESENT Joseph T. Kelly, Chairman Fred KOstner, ¥ice Chairman Richard Lambert Enrico Rossi Simon Ryder Garry Winter E. Eo Howell, Bldg. Official ABSENT Oris Walker (Excused) Chairman Kelly called the meeting to order at 7:30 P. M. and introduced the members of the Board and the Building Official. He announced they would dispense with the regular order of business until after the Public Hearing and proceed with the Public Hearing advertised at 7:30 P. M. Public Nearing Parcel #2 - Sec. 30, Twp. 45 South, Range 43 East, Palm Beach Farms Company Plat #8, East 260 feet of Block 90, 91 to 94 inc., 96 to 102 inc., East 260 feet of Blocks 103 & 122 and 123 to 128 inc., Less the East 450 feet thereof, and less Congress Avenue Right-of-Way. Recorded in Plat Book 5, Page 73 Palm Beach County Records Request - Rezone from C-3 Commercial to R-3 Multiple Family Use - Multiple Family Applicant - Land Unlimited, Realty, representing Owner, Sears, Roebuck and Co. Mr. Edward P. Duffy, Jr., appeared before the Board to repre- sent Sears. Chairman Eelly asked the members of the Board if they had received the forms and application pertaining to this request and the members replied negatively. Chairman Kelly ascertained that only he and the Vice Chairman had re- ceived these. He then read a memo dated March 24 from Mrs. Padgett to M~. Howell regarding this application. Chairman Kelly then asked Mr. Duffy if the plat had been finalized yet and Me. Duffy informed him that he had sub- mitted another plat to scale and a portion of the survey. Chairman Kelly ascertained that none of the members had re- ceived this new plat. Mr. Duffy informed the Board that as requested, he had filed a t" to 200 ft. plat from the County with Mrs. Padgett. MINUTES PLANNING & ZONING BOARD PAGE TWO APRIL 13, 1976 M~. Duffy explained that it was a 100 acre parcel. The east 20 acres, the east 450 feet, would remain under Cm3 zoning. Right now, the entire 100 acres are zoned C-3. Sears is re- questing that approximately 80 acres in the re~ be rezoned to R-3, keeping the front 450 ft. deep as is at C-3. Chair- man Kelly asked if the sketch submitted would suffice to in- dicate this and Mr. Duffy replied that he believed it would and explained on the sketch. ~. Rossi asked that it be con- firmed that what was shown on the sketch was actually what Mr. Duffy described and Mr. Howell~confirmed it was and added that they should have gotten the plan. Mr. Duffy repeated that he did submit a plat to scale, but he doesn't know where it is. Chairman Kelly referred to having reviewed this plan previously and requesting a dimensioned plat. Mr. Duffy re- plied that he gave this to M~s. Padgett, but evidently the Board members did not receive it. ~. Ryder referred to this having been reviewed by the Board previously and at that time, it was determined that a rezoning application would be required and he would like to kuow if the application for rezoning conforms with the present re- quirements? M~. Howell informed him that M~. Duffy did sub- mit the proper application to .Mrs. Padgett, but there has been a breakdown between his office snd M~s. Padgett and he doesn't know why it was not received. Chairman Kelly showed the application to the members. M~. Lambert referred to the 450 ft. commercial depth and asked if there was any established commercial depth that the Building Department or this Board would like to see? He pointed out that the commercial was 1,320 ft. deep to the north and 350 ft. deep to the south. Chairman Kelly replied that there had not been a pattern established. Mr. Duffy replied that 1,320 ft. was too deep~ He informed him that the reason Sears was going 450 ft. was in planning for a marginal entrance on Congress. ~. Lambert re~rked that now would be a good time to get an adequate depth on the commercial property along Congress. Chairman Kelly asked if Sears was allowing for a 400 ft. ultimate depth and Mr. Duffy replied: yes, they want to do it right. ~. Lambert questioned if they wanted more and M~. Duffy replied that 6hey figure 450 ft. is more than enough. Chairman Kelly stated that he believed normally on a well established route they would have 400 ft. as a fair representative depth and M~. Duffy agreed and referred to this being the case along the north side of Palm Beach Lakes Boulevard. ~. Howell added that according to the zoning laws, there must be a 30 ft. setback between the abutting residential. ~. Rossi clarified that Sears owns this 100 acres and it is zoned C-3. It is an unusual request to go from C-3 to R-3 for 80 acres. They are asking for 20 acres along Congress to remain C-3. It is general knowledge that Sears has entered MINUTES PLANNING & ZONING BOARD PAGE THR~ APRIL 13, 1976 into an agreement with DeBartolo for a shopping center north of here. They don't want to sell to a competitor when formu- lating their plans. Mr. Duffy agreed and added that they could sell now or go into R-3. They want to sell it and make sure it will not be used for C-3. ~. Rossi asked if they felt the 450 ft. depth was needed to develop it pro- perly and ME. Duffy agreed. Mr. Rossi referred to the County having 50 ft. for Congress on the west side and they will be requiring an additional 10 ft. and he asked if the applicant would be willing to dedicate that additional 10 ft. at this time? Mr. Duffy replied that he could not answer this. Mr. Rossi explained how Congress Avenue ultimately calls for a 120 ft. right-of-way. On the east side across from Sears, there is 60 ft. of right-of-way and he is certain the County will go ahead and ask for a dedication of an additional 10 ft. on the west side. He referred to another applicant dedi~ cating it. The County can either buy it or possibly have it dedicated. It behooves this Board to get the applicant to dedicate it. Mr. Duffy replied that he could not give up 10 ft. of the applicant's land. M~. Rossi referre~to Mr. Duffy being given the authority to speak on behalf of the petition. Mr. Ryder asked if Mr. Cogen had agreed to this and Mr. Rossi replied that it had been discussed, but no decision was reached. Chairman Kelly stated he knew all the members would like to see the delineated plat showing a better description; however, they could go on all evening discussing this. He suggested possibly postponing this for a day or two to determine where this plat is and having a special meeting to finalize it. The agenda for the City Council meeting is not finalized until Friday. Also, it will give Mr. Duffy a chan¢'e to talk to Sears about this question regarding the right-of-way. They are floundering without this final plat. It is not M~. Duffy's fault. Mr. Duffy informed them that the final plat was approximately the same as the one in their possession, but it has been ~rawn to scale by an engineer. Chairman Kelly stated he was sure between Mr. Howell ~ud himself they could locate the plat. Mr. Lambert questioned what difference it made how the subdivision is divided? There are no unknown figures. They want 450 ft. Mr. Kostner replied that it was very difficult to continue with this matter unless this map is presented indicating this in detail and also the buffer area between the commercial and residential. Mr. Duffy stated that the buffer area was not required. This will be shown on the final plat. They are only talking about approxi- mately 80 acres in this being rezoned and are not talking about developing now. Mr. Kostner stated that they were ask- ing for a portion of the plat to be rezoned from C-3 to R-3 and ~. Duffy agreed. Chairman Kelly asked if the members had enough information and M~. Ryder replied that he thought they have the informa- tion, but he doesn't think it has been presented properly. MINUTES PLANNING & ZONING BOndeD PAGE FOUR APRIL 13, 1976 Also, he would like the applicant to get an expression from the owner about the additional right-of-way. He also added that this affected Cogen with removing the additional com- mercial area. Mr. Duffy replied that he didn't P~ow about Cogeno Mr. Ryder continued that he thought they should hold it over. Mr. Rossi clarified that the question was whether the appli- cant has met all the requirements in making the application and if the requirements of the Planning Board do not require description. Mr. Winter stated he believed they should act tonight and Mr. Kostner and ,Mr. Lambert agreed. Mr. Rossi reminded Mr. Duffy that if the City did not get the opportunity to express it- self concerning the 10 ft. at this time, when a site plan is presented he will be faced with that, the same as Boynton Shopping Plaza. N~. Duffy agreed. Mr. Winter made a motion to accept the rezoning request as presented and make a recommendation to the City Council to approve the application as submitted. Mr. Lambert seconded the motion. Motion carried 9-1 with Mr. Ryder opposing. Chairman Kelly announced that he has asked time and again that copies of everything be sent to each member. He is not being critical. He has even distributed copies if something has come late. He has made the request that everything be mailed to everyone, if it is not too bulky. With the assis- tance of ~. Howell, he believes they can get this done. Chairman Kelly then realized that he had overlooked asking anyone in the audience if they were for or against the Sears application. He received no response mud apologized for hav- ing overlooked this before the vote was taken. Parcel #3 - Abandonment of Easement, being 10.0 feet in width, for drainage purposes, lying over the west 5.0 feet of Lot 25 and the east 5.0 feet of Lot 26, ~!/eck.~O,.~.~w~.on the Plat of Golf View Harbour, 2nd Section, Boynton Beach, Florida, as recordedin Plat Book 27, on Page 46, Palm Beach County Records Requested by Milnor Corporation Chair~n Kelly stated he believed the members had received the papers on this to abandon an easement mud substitute a new easement. The members replied that they had not received any plan or anything, just the public notice. Mr. Howell asked how many copies Chairman Kelly had and he replied that he received one yesterday and obtained one today for Vice Chairman Kostner. He then read a memo dated March 24 from MI~UTES PLANNING &[~ZONING BOARD PAGE FIYE APRIL 13, t976 ~s. Padgett to Mm. Howell regarding the information for this application. He added that everything seemed to be in order from his personal study of it. Mm. Howell explained the request on the survey. Mm. Rossi asked if this was after the fact and Mr. Howell replied: yes, a building is existing on the easement. Mr. Rossi clarified that there appeared to be a one story CBS building constructed over an existing 10 ft. platted drainage easement going from S. W. 28th Avenue to Lateral 28. In view of the fact that a building lies over the thing, there supposedly was to have been a relocation before construction. The fact is that the developer wants to abandon that under the building and relo- cate it to the east. He is just requesting the abandonment of one easement and the acceptance of another. He asked if the application showed this and ~. How'ell replied: yes. Mr. Rossi added that he wanted to be sure it was technically correct. ~. Ryder pointed out that the public notice did not state the easement was being replaced. He referred to having to ask questions since they did not get input. He asked if it had been determined in changing this drainage location, if it was possible ~he ~ty would ask for a sewer location? Mr. Eostn~r referred to ~m. Ryder not having all the information pertinent to this case and he gave him his material regarding the vari- ous departments indicating their satisfaction in regards to the abandoning of this easement. He then informed the members that the Building Department, Fire Marshall, Engineering De- partment, Florida Power & Light Co., and Chief of Police stated they. have no objections. Mr. Howell apologiz~ed for t~e members not getting all the information. He doe~sn't k~ow why~they have not, but he will find out why. ~. Howell continued with explaining how the building ~otbuilt over it. Upon checking this, he found out there was a verbal agreement in allowing the~e people to build over the existin~ easement, they would dedicate ~m additional easement. He does not know why it was not settled before being built. It is existing and the map in the Engineering Department shows the existing eaaeme~a~B~ing abandoned and the new easement to be dedicated. He cannot answer the question as to how it happened and how a permit was issued. He inherited this. Mr. Lambert referred to a memo from the Engineering Dep~mtment stating they did not plan to use this particular easement. Also, a letter from the attorney stating a new easement will be created. The City Attorney also indicates no problem. Mr. Kostner continued from previously that also the Public Utilities, Department of Transportation, Southern Bell and Teleprompter also had no objections. Chairman Kelly clari- fied that all the various utilities have no objections and most state they are not using it. MINUTES PLANNING & ZONING BOARD PAGE SIX APR IL !3, 1976 Mr. Ryder asked if there was a representative from Milnor Corporation present and ~. John Stewart appeared before the Board and informed the Board that he represented O~Brien, Suiter & O'Brien and ~as asked to appear tonight in case the Board had any questions. Chairman Kelly requested that here- after that he please advise the Chair that he is present and ~. Stewart replied that he was waiting to be asked. ~. Rossi asked in what stage the existing building was and Mr. Howell informed him it was completed and occupied. M~. Rossi asked if a mortgage survey had been prepared and Mr. Stewart replied: yes and it showed the existing easement. Mr. Rossi asked if the bank accepted it and ~. Stewart re- plied that evidently they did. M~. Howell added that he looked at this and thinks the plat showed the existing ease- ment as being abandoned and showed the new one to be done in the future. Mr. Rossi stated there was only one recorded easement and Mr. K:ostner added that it put a cloud on the title. M~. Rossi asked if the proposed easement had a pipe and Mr. Stewart replied: yes. Chairman Kelly asked if anyone in the audience was in favor of this abandonment and received no response. He than asked if anyone objected and received no response. Mr. Ryder moved to recommend to the City Council acceptance of the abandonment of the easement as described on the plan submitted tonight representing the survey in question as recorded in Plat Book 27, Page 46, and recommend further that the City Council accept a substitute easement which will be 25 ft. east of the easement to be abandoned, also 10 ft. in width. Mr. Kostner seconded the motion. Motion carried 6-0. At this time, Chairman Kelly noted that ~. Walker still had not arrived. He advised that [~. Walker thought he may be able to attend, but he is in the process of moving his business office around internally and probably was not able to make it as he thought. Parcel #1 - Lots 2, 3 and 4, Block C. Hathaway Park Recorded in Plat Book 13, Page .17 Palm Beach County Records Address - 809 & ~13 S. E. 4th Street Request - Rezone from R-2 to R-3o Use - To permit at least 7 apartments in two existing buildings Applicant - Andre St. Juste Mr. Andre St. Juste appeared before the Board and stated his name and his address as 809 S. E. 4th Street. Chairman Kelly asked if the members had received all the information and re- ceived negative responses. He read a memo from ~s. Padgett MINUTES PLANNING & ZONING BOARD PAGE SEVEN APRIL 13, 1976 to Mr. Howell regarding this application. He added that Mr. Howell had waived the requirement for a survey. This property is located in R-2 zoning. The application is to have it re- zoned to R-3. A letter is attached from the applicant. The members then consulted the zoning map for the location. Mr. Rossi suggested that in the future that each member should be given a plot record. Chairman Kelly agreed and added that he has requested'~this previously. Mr. Rossi con- tinued that whenever there is a rezoning application, he feels it should be identified on the plats and the aerials, so the Board can get a better look where the applicant's property is located. Chairman Kelly agreed and added that they did have a promise to have the plats and aerials at each meeting. Mr. Ryder suggested that the Building Department representa- tive give a presentation and should indicate if the applica- tion has been filed in the proper satisfactory manner. M~. Howell replied that it has been. Chairman Kelly referred to an application for variance submitted prepared by Mr. Bushnell stating this property is non-conforming. It requires action by the Board of Adjustment in granting a v~iance. Mr. Lambert asked if M~. Howell had inspected this property and referred to there being two buildings there now with three apartments in each building. He asked where they pro- posed another apartment? ~. St. Juste replied that there are not seven there. He is asking for seven. He is asking the Board to leave it the way they are. He explained that the apartments were too big to rent as built and he cannot pay his bills if they are not rented. Mx. Lambert asked if each building had the same layout and if right now, there were three apartments in each building? ~. St. Juste re- plied yes, but two apartments are closed. Mr. H, owell clarified that existing are six apartments, two buildings with three apartments each. These apartments were put in without a permit. Mr. St. Juste has been to court about this. Chairman Kelly asked if somebody had sued and M~. Howell informed him that the Building Department cit,d him and took him to court because it was done without a per- mit. M~r. St. Juste was told he could come before this Board and apply for rezoning. If the rezoning is allowed, it would still be non-conforming property and he would have to go be- fore the Board of Adjustment to be allowed to keep what he has. Also, they must consider that according to the zoning map, this is right in the middle of a R-2 zone. M~. Lambert asked how ol~ the buildings were and ~. St. Juste informed him they were two years old. Mr. La~nbert asked if he had built them and Mr. St. Juste replied that he had a contractor build them. ~. Lambert asked if the MINUTES PLANNING & ZONING BO~D PAGE EIGHT APRIL 13, 1976 zoning had been changed and M~. Rossi questioned when the buildings were built, what was the zoning? Mr. Howell in- formed them it was R-2. M~. Lambert asked if the old zon- ing had the same requirements and setbacks and Mr. Howell replied that he believed the lot area and setbacl~ had been changed, but it was for a duplex or single family only. It would have been grandfathered as a duplex, but he has a tri- plex on duplex property. Mr. Rossi clarified that a triplex had been built without a permit on duplex property and asked about the setback~ at that time? ~. Howell informed him that the setbacks would have been conforming. As he under- stands it, this has been a recent conversion. Chairman Kelly asked if the buildings were built originally as a duplex and Mr. St. Juste replied: yes, with two families for each build- ing. Chairman Eelly asked when they were converted to three for each building and M~. St. Juste replied about four to five months ago. The building with two apartments was too big, he could not rent it. ~. Kostner asked if he received permission from the Building Department to convert the build- ings and M~. St. Juste replied that when he did it, he was under the impression that as long as you did not do anything to the outside, he would have the right to do it. ~M. Kostner asked again if he had asked for permission to make changes from two family to three family and Mr. St. Juste replied that he did not ask, he did not know he had to ask for the inside. Mr. Kostner clarified there were two violations in question: he did not get a permit to build the buildings mud did not get a permit to convert them. ~wk~. St. Juste replied that he got a permit to build the buildings, but not for the extra kitchen. After he found out it was needed, he applied for a permit and has to pay double until the Board decides. M~. Kostner asked if the Board~granted this request, this property would still be non-conforming in regard to land area and ~. Howell informed him it would be non-conforming square footagewise in regards to the apartment size~ in the apartments that he has converted without the permit. ~. St. Juste remarked that they were big and wide. M~. Howell continued that previously the lot-~size would be non-conform- ing, but he is grandfathered on the lot size. Going to R-3 would be non~.conforming with the square footage of the l~ud area and non-conforming regarding the minimum square footage of the apartments on two apartments. Chairman Kelly clarified that they do not have any grandfathering until they get final adoption by the City Council of the literature which is in the hands~ of the City Attorney on the non-conforming document. Actually, there is not any grandfathering clause in existence today. M~. Howell_~replied that when he said it was grand- fathered, he was speaking of being grandfathered as two duplex buildings. MINUTES PLANNING & ZONING BO~RD PAGE NiNE APRIL 13, 1976 Mr. St. Juste requested to present his letter. Chairman Kelly informed him that they did not have to read it, as he can make the presentation himself. Mw. Kostner questioned what would happen if the Board took no action and Mr. Howell explained that Mr. St. Juste has been in court. He was fined by the judge and ordered to re- move two tenants, one from each building, which he has done. He believes M~. St. Juste was cited again for contempt and the judge has withheld on this to e×haust the City Boards. Mr. Lambert stated that the Board of Adjustment could not do any good if this Board turned him down. If this Board turns him down, what about the changes to the building? Would it have to be changed back to a duplex? M~. Howell informed him that Mx. St. Juste would have to change them back to what they were originally. He explained that the extra apartment was accomplished by closing a door and re- moving a door. ~. St. Juste requested the Board to con- sider the circumstances. His building is bigger than the other buildings. His building is bigger and larger and there is enough parking. If they would inspect the property, they would see that one of his apartments makes two apartments of these nearby. Each apartment cost him $3,000. How can he afford to lose this money? The building was built too big. If they would inspect the building next to his, they will see that his is bigger and wider and with more parking. He does not know why he has to do this. Mr. Kostner stated in view of the problem that seems to exist, he would like to move at this time to table the ques- tion and he would like to view this property and see the real problem. He does not want to see an injustice contin- ued and would like to see this resolved. It seems to be com- plicated. He would be the last one to injure this man. He moves to table this to give an opportunity to view these premises. ?~. Ryder suggested hearing from the people in the audience first. Chairman Kelly requested anyone opposed to this application to come forward. ~. Thomas Rouch stated his name and his address as 2570 S. W. 11th and added that he was the Secretary-Treasurer of Sands Point Homes. He informed the Board that they con- structed the building as duplexes. During the construction of these buildings, Mr. St. Juste without their knowledge attempted to turn the building into four-plexes with addi- tional p~mbing. He was cited by the Building Department. He did it on a weekend and was caught. It was red tagged and they had to stop construction. He was in violation. As a second thing, they had to wind up in a legal tangle with this gentleman. This is the second time he has at- temp~d to do this. MINUTES PLANNING & ZONING BOARD PAGE TEN APRIL 13, 1976 Mr. Lambert clarified that he was talking about the original construction. He questioned if the original blueprints showed a duplex and PR. Rouch agreed &ud explained that M~. St. Juste got somebody on his own on the weekend and the Building Department came in and when they appeared for work on Monday morning, they found the red tag. Pictures were taken of additional plumbing in the back. It was quite ap- parent that he was going to use the buildings as four-plexes instead of duplexes. Mr. Barrett was the Building Official then and they were working with him. Mr. Lambert asked if the plumbing made at that time was ripped out and Mr. Rouch replied that it was ripped out to the satisfaction of the Building Department. Then, they had to replace all the cabi- nets and walls back to the original plan, which they did. Mr. Lambert questioned the approximate square footage of each apartment as originally built and ~. Howell referred to a plan having been submitted to the Chairman. Chairman Kelly replied that he had no plan. Mr. St. Juste submitted a page with figures. ~. Howell continued that it was permitted and c/o'd as a duplex. Irregardless of the size, it did conform at that time. Now, he has an apartment in each building under 750 sq. ft. which is under the minimum. Mr. Winter asked if it had been explained to M~. St. Juste that what he was doing was in violation of the codes and Mr. Rouch informed him that he had explained this to-him many times and this was also explained in the Palm Beach County Court House. M~.C~de J~esstated his name and his address as 911S. E. 4th Street. He informed the Board that he objects because he does not believe the man has enough property to have that many apartments and also doesn't believe there is enough parking area. With what he has now, the parking is blocking the sidewalk. There is only a sidewalk on one side of the street and cars are in the middle of it at this property. Mr. Lambert asked if he has a residential property on this street and M~. Jones replied: yes, and there are two houses between this apartment and his house. ~. St. Juste stated that he has at least t2 parking spaces and has more land to make two additional parking spaces. With the reference to people parking on the sidewalk, people just park anywhere they want and th~ parking area is empty. Mr. Kostner asked ~. Howell if the~was reverted back to what he originally had, would it be the least of his problems as they exist now? Mr. Howell replied that he is still in court on contempt charge. Chairman Kelly questioned the contempt charge and M~. Howell replied that the judge gave a certain time to comply to get the tenants out. ~. St. Juste informed the Board that at the moment, the building MINUTES PLA~ING & ZONING BOARD PAGE Ei~VEN APRIL 13, 1976 is empty and he still has to pay the City and County. He as~the Board's cooperation as he owes the bank money for these buildings. Mr. Kostner replied that the Board was not concerned with the expenses incurred. His concern is what action, the Board can take to lessen his problems and not com- poUnd them. In his opinion, to revert to twofamily would be the least of the probleim~. Chairman Kelly stated that the court directed him to. go back~to two family. Mr. Ryder commented that he didn't see how they could give an official blessing. The applicant has been flagged by viala- tions. He doesn't know why they are worried what he can do. He doesn't think it would be proper for the Board to bail him out by changing the zoning. Mr. Winter added that it Would constitute spot zoning if~they were to rezone this. Chairman Kelly agreed. Mr. Lambert asked again the square footage of these units and Mr. Howell replied that he did not know without looking at the plans. As tri-plexes, it would not meet the square foot- age. Chairman Kelly asked if it met the R-2 requirements when built and Mr. Howell replied: yes. Mr. Ryder made a motion that this application for rezoning be recommended to the'City Council for denial. Mr. Kostner seconded the motion. Motion carried 6-0. Mr. St~ Juste requested to ask a question and Chairman Kelly replied that they could not discuss this all night. The Board has reached an unanimous decision to deny the rezoning. M~. St. Juste requested the Board to make an inspection of Block C. If they would read his letter, it refers to a build- ing next to him which is eight family. If they would make ~m inspection, they would find out he does not have too many people in his apartment compared to the others. Also, when he built the apartment, he was told he could not put a mail- box on the wall. Chairman Eelly interrupted that this had no bearing on the case. He violated the code when building. He doesn't see how they can go any further in this matter. Mr. Rossi referred to the applicant being no different than anybody else in the neighborhood. If it has merit, he thinks ~. St. Juste should file a complaint in those areas where he thinks people are violating the code. Chairman Kelly informed him there was no R-3 ink, this area. Mr. Rossi re- ferred to Mr. St. Juste's statement that other people were in violation of R-2 and ~. St. Juste agreed. ~o Rossi continued that if that is the case, the proper course to take would be to file a complaint with the Building Depart- ment with those properties in violation of use or size. Mr~ Howell asked how old the buildings were he was referring to ~ud Mr. St. Juste replied that many have been changed after his building was finished. ~. Howell asked if he was saying MINUTES PLANNING & ZONING BOARD PAGE ~ELVE APRIL 13, 1976 that other buildings were converted without permits and ~. St. Juste stated that his building is bigger with more park- ing, e~tco Mx. Rossi continued that he thinks if M~. St. Juste has a specific party or address in mind that is in violation of the code, he believes it should be brought to the attention of the Building Official° Chairman Kelly recommended that Mr. St. Juste consider Mr. Rossi's advice. New Business Structural Height Relief James E~ Wurth 640 Castilla Lane Chairman Kelly ascertained that ~o Wurth was not present. Mr. Kostner asked if this was the tower and Ehairman Kelly replied that it was the double tower. Mr. Ryder stated that he had no information on this and questioned the request. Mr. Howell apologized for the information not being supplied and guaranteed that this would not happen again. Chairman Kelly read a letter from Mr. Wurth. Mr. Howell explained that this was two wind generators. He understands that this man came before the Zoning Board previously and they requested engineering drawings, but somebody told M~. Wurth to go ahead and build without meeting this request. They have been built now and he has received complaints. No permit was issued. He requested Mr~ Wurth to bring in engineering drawings to check that it met the wind load. He referred to Page 14 in the zoning book and advised that he based this violation on Par~raph F-2 being in violation of the height limitation by 5 ft. This calls for this Board's action and recommendation to the City Council. M~. Ryder told about this being presented previously and the applicant wanted to go to 60 ft. The Board gave this a lot of consideration and asked for further information. Several members of the Board indicated they were unhappy with an in- stallation of this kind in a R~IAA area. He was opposed and explained his reasons. However, somebody told ~. Wurth he would not have to come before this Board if he stsyed below 45 ft. He did not feel height was a £actor, but the nature of this thing. He doesn't see how they can give a blessing to something like this. It can be put in a rural area, but not here in a highly exclusive residential area. Chairman Kelly advised that he received the material regard- ing this application yesterday. He referred to a letter being submitted originally from the neighbors inbthe area stating they have no objections to the plan to install a single tower. However, somebody told him to go ahead. Instead of going ahead with the plan for a single tower deal, if he obtained building permits, etc., he went ahead MINUTES PLANNING & ZONING BOARD PAGE THIRTEEN APRIL 13, 1976 with two. He thinks the best consideration tonight would be to poll the neighbors once again to see how they feel. This is his personal opinion. ~. Lambert replied that he didn't know what the neighbers had to say had anything to do with it because if it is allowed in that part of the City and some- body wants it, that's it. He asked if it was possible to go to court because it was allowed in one subdivision and not the next because of neighbors' complaints? He asked if there was anything about height that is critical in regards to wind currents and it must b~ 50 ft.? ~. Howell replied that he referred to this particular paragraph on Page 14 as he would have to take this as being a similar structure. There is a height limitation of 45 ft. This man is in violation by 5 ft. In all fairness to this man, he wanted to be here, but could not because he is an airline pilot. He asked M~. Wurth if he wanted it withdrawn, but he wanted the Board to see it. He did say he could attend the next meeting if the Board decided not to act. Mr. Howell continued that there is the problem of this Board making a recommendation to City Council. If it is not allowed, he will have to cite him and take him to court. It was brought to his attention and there was no permit and he must pursue it. ~. Lambert referred to the first paragraph under Uses Permitted in R-1~ in the book and questioned how much weight could be put on this? Are there any others info, the State of Florida? The State authorities must have something to say. M~. Howell replied that he has heard about a couple that have been in court. One was in Miami. A man was cited for height violation and when the Building Department cited it, it was to the top of the prop. The court ruled in favor of the man and said at that hearing, the height would be at the center of the generator. There was another case where they tried to keep it out of a residential area and this man based his case on the energy crisis and this case was won. Mr. Ryder stated~that this man has flaunted the authority of the City. There is nothing in the book that describes this kind of structure. He told about his results with talking to the neighbors. He explained how he felt this was out of place~ etc. Mr. Kostner referred to this being another case of violent disregard for the law and the ordinances prescribed. He can understand where people may not understand procedures. However, this is not the case with Mr. Wurth. He told about being present in the audience when this was first presented to the Board. The fact that ~. Wurth disregarded getting even a permit and went in through a round-about way gives him no recourse but to make a motion to insist this violation not be continued and the application be denied. M~. Ryder seconded the motion. MINUTES PL~ING & ZONING BOARD PAGE F OL~RTEEN APR iL 13, 1976 Mr. Winter stated he would like to give Mr. Wurth the oppor- tunity to come before the Board. He agrees it was built in violation, but nothing in the building code provides for this. Mr. Kostner replied that there were provisions for things not spelled out in the code. Mr. Winter remarked that a CB antenna could be over 45 ft. and Chairman Kelly replied that they have had cases like this. Mr. Winter questioned if Mr. Wurth did meet the height and did not consider this a structure. He would like to give Mr. Wurth the opportunity to come before this Board. Mr. Kostner stated that this bus- iness has got to stop with work being done without a permit. Mx. Winter agreed, but pointed out that this was a different kind of structure. He added that it probably was done during the energy crisis and Mr. Kostner replied that this was not so and he was not given a permit, but he went ahead. Mr. Lambert referred to the codes regarding radio towers, etc. requiring permits, certain wind stress, etc. Mx. Howell informed him that any structure that is built, any assembly of materials, must meet wind load. Mr. Lambert continued that if ~. Wurth did come into the Building Department and indicated he wanted to put up a tower 45 ft. high for what- ever reason~and it met the code as far as the wind factors, stress, etc., would he be granted a permit? ~. Howell re- plied that he would not be issued a permit without the Board's and Council's approval. ~.~. Lambert asked even if it was within the height limit and Mr. Howell replied that for some- thing not covered in the code, he would have no alternative than to put it before this Board. Mr. Lambert questioned if the code indicated what a tower should be and ~. Howell re- plied that according to the zoning code, he would put it be- fore this Bo~d. Mr. Lambert referred to installing a radio antenna 45 ft. high and Mr. Howell informed him that would not require a permit. ~. Lambert questioned installing a radio tower with an electrical mechanism at the top and ~. Howell informed him that was covered by the code. He pointed out that the wind generator was something which wasn't men- tioned in the code. Anything that he would feel might be an unusual thing and maybe the Planning & Zoning Board would frown at his department for issuing a permit, he would be sure it came before this Board. M~. Lambert asked if a radio antenna was in the code and M~. Howell informed him it was covered by a specific ordinance. Mr. Lambert clari- fied that his point is that a TV antenna with a rotary motor would not be b~ought before this Board. Mr. Ryder stated that the wind generator had to come before this Board as it is a structure and there is already a structure on this property. This does not compare to an antenna. This structure is not covered by the code speci- fically and belongs before this Board. Mr. Kostner added that it is definitely stated that any item not covered shall MINUTES ~PLANNING & ZONING BOARD PAGE FIFTEEN APRIL 13, 1976 be specifically presented to the Board for the Board's deci- sion and they must consider the general good of it, the af- fect to the neighborhood, the affect of adjacent areas, etc. This is in the code as he remembers writing it. His big con- cern was the rotaries on the top and the possibility of one coming off in this R-1AA area. ~. Howell then gave an example of C-3 zoning on Federal Highway which .allows a shopping center. Preliminary plans were presented to him for a farmer type shopping center under one roof. He explained how the plans were presentable and he would issue a permit for this as a shopping center. However, there was a little area shown screened from the highway where they wanted to park little trucks like a flea market operation. He told them if this was included, it would have to go befOre the Planning & Zoning Board and City Council, as this is not spelled out in the code. He will not make a decision on his own on something like this. He believes this is similar because it is not spelled out. At this time, Mr. St. Juste interrupted and informed the Board that he is not from the United States. He built his building in a white section and possibly some people are against him because of his color. He does not know anybody in the section that he could talk to. He is asking the City for help. He cannot read his letter to the Board and re- quests that they pass it hand to hand, but they will not do it. ~y he ask someone to present his problem? Chairman Kelly asked if he meant he could not read English and St. Juste replied not very much. He would like to ask per- mission to have someone come with him and explain his case. He also would like everyone to read his letter. He is not trying to fight the City. He is asking for cooperation to use his building. Right now, he cannot use it and borrowed money to build it and owes the bank. When a neighbor says he does not have enough parking, he wants to prove that he does have enough parking. He can prove the inside of the building is large enough too. Other apartments could be put inside it and they are on the same block. M~. Winter replied that he understood what he was trying to say. He explained how he had experience with people from Cuba who were not familiar with living conditions in the U. S. Apparently with the customs the? way they are in the U. S., Mr. St. Juste is not familiar with what he can do with his property and what he had hoped to do. He referred to the statement of a neighboring house with eight units and in- formed ~. St. Juste it would be his duty to report this to the Building Official mud they will be cited. He explained how it would then go before the courts am_d a ruling would be made and if in favor, it would also apply to his case. However, he must cite the neighbor first. M_~. Ryder inter- rupted with objecting to this coming from this Board as they have nothing to do with anything like this. Chairman MINUTES PLANNING & ZONING BOARD PAGE SIXTEEN APRIL 13, 1976 Kelly agreed. Mr.~ Winter continued that he was just trying to explain for Mr. St. Juste. Chairman Kelly replied that i~ was not within the province of this Board. M~. St. Juste re- ferred to white people citing him and ~. Winter assured him that color had nothing to do with it. Chairman Kelly agreed that the color of the applicant had no bearing whatsoever. Mr. St. Juste continued that he has six apartments and 12 parking spaces. Chairman Kelly interrupted with informing him that the Board had given him ample time and he stated his case, etc. He assures him that the color of the appli- c~ut has no bearing at all before this Board. He requested Mr. St. Juste to let the Board continue with their meeting, as they have given him ample time. M~. Lambert referred back to the Wurth application and stated he was concerned with the book as he does not see how this ~rticular matter has anything to do with Page 14, Paragraph F-1. Chairman Kelly asked if he meant this should not be before this Board and referred to ~. Howell having explained this previously. ~k~. Lambert referred to the request being for relief of 45 ft. Chairman K~elly reminded him that a motion was on the floor. Mr. Lambert ~equested that the mo- tion be read and Mrs. Kruse did so. Mr. Rossi questioned the violatioa referred to in the motion and ~. ~'ostner informed him that it was too high and he did not get a permit. After discussion, M~. Kostner withdrew his motion and M~. Ryder withdrew his second. Mr. Kostner then asked what the application called for and Chairman Kelly asked if a formal application had been sub- mitted to the Planning & Zoning Board. ~. Howell replied that only a denial had been given. Chairman Kelly advised that he received an application for a variance to the Board of Adjustment, but apparently a formal application to the Planning & Zoning Board is not in~.~existence. Chairman Kelly read the application he had received. Mr. Howell informed them that he interDre%ed this that it should come before this Board. This ms the only place he could send it. M~. Lambert pointed out that it was after the fact. Mr. Kostner stated he didn't think this should come before this Board. The re- quest is for a variance ink,the height limitation. Mr. Howell then read Paragraph F-2. Chairman Kelly clarified that a structure requires a building permit and no permit was applied for. Mr. Howell stated if they thought he was wrong in bringing it before this Board, they should tell him where to tak~ it. M~. Ryder stated he believed it belonged before this Board as there is not any specific coverage for it in the code. He third~s they are being misled though with refer- ring to the height, This structure is incompatible with the land use described for this area. MINUTES PLANNING & ZONING B0~RD P~GE SEVENTEEN APRIL 13, 1976 ~ Kostner made a motion that since this is not compatible to the area, a recommendation be made to the City Council th~mt this application be denied. ~. Ryder seconded the motion. Under discussion, Ne. Rossi clarified that the question was whether they have any business to act in view that it is al- ready constructed. They must consider whether it is a viola- tion, since he did not get the Board's recommendation to put it up. He agreed it was in~'violation and explained. However, does this Board have any authority to act on something in violation? This is a Planning & Zoning Board. He referred to the parking situation at Village Royale on the Green and how the Board did not take action since it did not belong be- fore them, but it was a violation. Chairman Kelly agreed this was a good point. M~. Howell also agreed that Mr. Rossi had a point. He added that he is faced with the problem. He has.to consider if the ~n applied for a permit, wha~t would he do with it? The w~ he reads the book, it would have to go before this Board. There is a violation in that a permit was not issued and there is also the height viola- tion. Personally, the way he inte~ets the book, it should have been brought before this Boar~0r a permit if the man wanted to build it. He wa~ted the Board's directions and felt the Board should be aware of it. Ne. Ryder stated if it had not been built, he would still feel the same. He feels it does belong before this Board because of the nature of the structure. He doesn't believe just because it is built, it should get out of the Board's area. ~o Rossi ex- plained how he thought they were getting into an area which did not concern them. ~t is a violation after the fact. It is now a violation and is it within the scope of the Planning and Zoning Board? They should have a clear legal application. Mr. Kostnsr agreed thi~ was a valid point and referred to no action having been taken on the motion. Mr. Lambert referred again to the reference to the particular paragraph and asked if they turned it down, could Mr. Wurth simply knock it down 5 ft. and they were acknowledging the fact it would be okay? Mr. Ryder informed him that the motion did not state this. Chairman Kelly stated he thought they should not take any action. He believes they should go on record and make a motion that something in violation by non- issuance of a building permit is not within their province. They are exceeding their authority by discussing something which is in violation and already existing. Mr. Ryder referred to the Board just acting on a violation in existence with St. Juste. Chairman Kelly replied that this was a request for a change of zoning. Mr. Ryder questioned the stauding of the motion. ~. Howell requested to ask a question before the Bos~d did anything. He referred to their reference to Village Royale on the Green and pointed out that the parking was covered in MINUTES PLANNING & ZONING BOARD PAGE EIGHTEEN APRIL 13, 1976 the zoning code. It is stated that so many parking spaces are required and it is up to the Building Department to get so many parking spaces. However, this wind generator is not covered in the zoning code. The other example regarding the shopping center is also not covered in the zoning code. Do they mean that the Board does not want to act on these things? Mr. Winter replied that he thought they should get mu opinion from the City Attorney. Chairman Kelly stated he thought it would be better to table this matter and request the Building Official to seek a legal opinion from the City Attorney ex- plaining the entire situation shown on this record and asking if the Planning & Zoning Board has jurisdiction on a matter apparently in violation of the code by not obtaining a build- ing permit before building. .Mr. Rossi stated that he agreed Mr. Wurth ignored everyone and went ahead with not only one but two. He is just wonder- ing if they are acting as a judicial body. If he constructed it and was asking for a variance, it should be before the Board of Adjustment. F~. Howell explained that in hearing a case, the Board of Adjustment considers the zoning code and this is not included. Chairman Kelly stated again that he thought they should have a legal opinion. ~o Ryder stated he would like the motion brought to a vote. Mr. [ostner stated he felt the suggestion of a legal opinion was well taken and thinks they should get a clear opinion on this matter. There see~ to be quite a problem and no clear cut issue. He then rescinded his motion. Chairman Kelly re- quested Mr. Ryder to rescind his second for the purpose of getting this cleared up so they will know if they have juris- diction on anything like this in the future. Mr. Ryder re- fused to rescind his second and requested a vote taken on, the motion. Chairman Kelly then called for a vote on the motion maae by ~. Kostner regarding denial of this application. The motion was defeated 5-1~ with M~. Ryder voting for it. Mr. Kostner referred to the suggestion made by the Chair with regards to this question and made a motion that this matter be given to the City Attorney by the Building Official through the Building Department to get an opinion on where this Board stands on this question, what right they have to consider it, and do they have jurisdiction. Mr. Winter seconded the motion. Motion carried 5-1, with Mr. Ryder voting against. Chairman Kelly added that he felt if they followed the recom- mendation of this Board and seek an opinion from the City Attorney, they will all-.~have a clear picture of what they can and cannot do on matters of this nature. MINUTES PLANNING & ZONING BO~D PAGE NI.~TE~N APRIL 13, 1976 Min~.~.te.s of March 23, ~ 976. Chairman Kelly referred to Page ~ 1, last paragraph, and stated it should be '~its" survival instead of '~his~' survival. Mr. Ryder moved that the minutes of March 23, t976, be adopted as corrected, seconded by Mr. ~inter. Motion car- ried 6-0. Ad.j. ournment ~' ~ seconded by ~. Ryder. Motion M~~. Kostner moved to am~ou~n, carried 6-0 and the meeting was properly adjourned at 10~10 Respectfully submitted, Suzanne Kruse Recording Secretary (Three Tapes ) AGENDA PLANNING AND ZONING BOARD Regular Meeting Date: April 13, 1976 Time: 7:30 Place: Council Chambers City Hall 1. Acknowledgement of ~embers and Visitors. 2. Reading and Approving o£ Minutes. 3. Announcements. 4. ComMunications. 5. Old Business: 6. New Business: 1. Rezoning Request 3. Sears, Roebuck & Co.. South Congress Ave. Rep., Chas. E. Fronrath Edward P. Du£fy, Jr. Land Unlimited, Realty Rezoning Request Andre St. Juste 809 & 813 S.E. 4th St. Rep., Andre St. Juste Owner Abandon Easement Request Milnor Corporation Golfview Harbour Rep., Norman Michael Milnor Corp. Structural Height Relief James E. Wurth 640 Castilla Lane Rep., James E. Wurth Owner Rev. 3/19/76