Loading...
Minutes 05-17-73~GULAR~ETING OF THE PLANNING AND ZONING BO~D MAY 17, 1973 Present: Robert Olds, Chairman Richard Vastine, ~ice Chairman Loren Blacketer Mrs. Marilyn Huckle Orris Walker Col. Albert Wehrell Ernest G. Simon, City AtTorney Absent: Fred Kostner Mr. Olds opened the meeting at 7:30 P. M. an~ welcome~ the public. Mr. Olds asked ~or a motion to approve the minutes of the previous meeting of April 19th. Col. Wehrell made the motion to approve the minutes. Mrs. Huckle stated there was one correction on page $ with regard to Mr. O'Brien?s statement regarding the loca- tion of the sub-division "below 6th Street". This should be 36th Avenue. Col. Wehrell made the motion to approve the minutes as cor- rected. ~. Vastine seconded. Motion passed ~. Olds introduced the members of the Board and said Mr. Eostner was ill. He also introduced Mrs. 01ds, who was in the audience. sr. Olds introduced City Attorney,Mt. Simon and welcomed him to the meeting. Mr. Olds stated there was no old busines~ on the agenda an~ read the notice of new business, Parcel #l and Insert A regarding the request b~ Medical Arts, Inc. for Conditional Use to utilize adjunctive parking facility with related med- ical and dental clinic located on adjacent property at 28~7 S. E. 1st Place, Boynton Beach, Florida. Mr. Olds then read the particulars of the law suit filed by M~. & Mrs. Rohrbaugh against Medical Arts, inc. MI~UTES PLANNING & ZONING BOARD May 17, 1973 Mr. Olds asked Dr. Astler to come forwarm. Dr. Vernon Astler stated he was one of the owners of the Medical Arts Corporation and his a~torney, Sam Phillips, was there and he preferred to have Mx. Phillips make the exp~nation. He said he would comment Tater. Sam P~hillips, a member of Phillips & Babbitt~Attorney's of West Palm Beach, stated he represented Medical Arts in the litigation read above. He user. the blackboard to present the situation. Mr. Phillips said the first building on Seacrest across from Bethesda Hospital was erectem in 1960 on lot l0 by Dr. Astler and this was the original clinic. Adjacent to this, an apothecary or drug store was erected on lot ll in the 1960~s. The third triangular lot is the one adjoin- ing the Rohrbaugh property. He stated Dr. Astler applied for zoning to build the clinic, and lot l0 was zoned G, October 3,1960 which permitted a medical clinic but only if Conditional Use were granted. When Dr. Astler aske~the city if he could put up the medi-o~ cai clinic and make application for Conditional ~se, he was told he had premission for the clinic but did not need Con- ditional Us~. in 1960, if the city had said Conditional Use was required,Dr. Astler would have applied for it. Mr. Phillips stated that if the majority of lots is zoned one way, the minority follows the majority. In 1971 Medi- cal Arts applied to Boynton Beach for a building permit. Mr. Moore, at that time said if the majority of the tract is zoned one way, unplatted land if divided, the smaller will follow the classification of the larger portion. Mr. Moore was the City Attorney at that time, and that ordinance has been upheld. Mr. Olds told Mt. Phillips that he had made himself quite clear and he was repeating the ~udgment given by the court~ which they had all gone over and it was familiar to them. Mr. Blacketer asked if the drug store and the two-story building just built were both on lot ll. Mr. phillips answered yes, they are against one another. Page No. 2 MINUTES PLANNING & ZO~YING BOARD MAY 17~ 1973 ~Lr. Phillips stated the Medical Olinic is an innocent bystander. They were misled in not applying for Conditional Use 12 years ago and now they are out in the cold,with an injunction against parking. Mrs. Huckle said, -as you stated, the court says they did not set the zoning. Mr. Phillips replied that the court will not set lower clas- sification, it is not their job. Mrs. Huckle said our present zoning map says this is R1AA, you have designated this R2. We have never had public hear- ings and a change in our ordinance to change from RIAA to R2. Mr. Phillips said the court cannot set zoning and regarding 31-5 the court upheld that ordinance - larger parcels con- trol the smaller. Mrs. Huckle said that section 31.3(5)c when quoted, it was quoted out of context~ and asked if the entire ordinance was brought to Judge Downeyis attention. Mr. ~hillips states the entire section was brought to the attention of the Judge. Mr. Vastine suggested that Mr. Fhillips be asked to absent himself and let other speak. Mr~ Olds said,I think Mr. Phillips,you have made your point very clear. Is there anyone else to speak in favor of the case. Dr. Astler said, I will be brief. We did apply to the city, this was granted by the City Council, and we built the Medical building in good faith~ and incorporated the property which is now Green's Pharmacy. Mr. & Mrs. Rohrbaugh ~opeared and made no objection to lots ll being used as apothecary. The city asked us to revise our grade and insisted on drainage beds, which was done at considerable axpense. After we spent $135,OO0,Mr. & Mrs.Rohrbaugh voiced their objection at a City Council meeting. Page No. 3 MINUTES PLANNING & ZONING BOARD MAY ~7, 1975 Dr. Astler said,you have heard the long dissertation by Judge Downey and he ordered us to come back here. We are doctors doing our jobs. Nobody is being paid off. We made an appeal and have temporary right to use this for parking and we need it. Mr. Olds asked if anyone else wanted to speak in favor~ no one volunteered so he stated he would listen to the opposition. Frederick Holtingsworth, Attorney for Mr. & i~[rs. Rohrbaugh, said, we object -before, during and now. All you are con- cerned with is an attempt to use a parking lot which the Judge says they cannot use. You are not under any court order to grant Conditional Use on this property. ~ou have Mr. Simon here to advise you on the law, and I am sure he will tell you Judge Downey has not ruled on anything but the fact that what they did was wrong. I represent a home- owner whose property is borde~deon two sides by a parking lot. They went ahead after the law suit was file~ and paved the lot. The most significant finding the Judge made was the Rohrbaughs have been d~maged by this lot and he reserved ~urisdiction to award them money. ~r. Hollingsworth stated that there was a loophole in the zoning code and the definition of lot was very loose. In addition, he said two wrongs do not make a right. Mr. 01ds said this is the Planning & Zoning~Board and law suits do not come under our ~urisdiction - it is not our business. Mr. Hollingsworth said if the Board feel they would like to hear Mr. & Mrs. Rohrbau~h, they would like to speak. Mr. Olds said they would be glad to listen to the Rohrbaughs but it would not be necessary for them to speak. Col. W~hrell asked Mr. ~imon, since the court suggested this matter be brought before the Board, if the issue was whether or not a Conditional Use be granted. Mr. Simon said the Court had not instructed the city to grant or deny application for Conditional Use. They said an application should have been made and it should have been obtained from the city. No parking can be allowed until they get it. If the owner does not apply, it remains "as is" - no parking is permitted. You look on this as on a~y applica- tion for Conditional Use - forget the law suit. If the ap- plication is denied or if you decide to recommend it to the City Council, that is your function. Simply regard this as an application for Conditional Use. Page No. ~ MINUTES HAY !?, 197~ Mr. Yastine stated that no matter what they die, final decision rests with the City Council. Mt. Simon said~correct. Mr. Vastine said it was stated it is on appeal now, any action of this body affect the appeal. Would Mr. Simon_ said no. Mrs~ Huckle askee what zoning this currently has,- RIAA zoning -is this correct? Mr. Simon said yes. Judge Irowney has taken the position that majority rules minority. This should be considered R2 but this does not mean they can use the parking lot~ without Conditional Usei Mr. Olds said the only thing before us is a request for Conditional Use to use parking facilities. Right, Mr. Simon? Mr. Simon- correct. 0cl. Wehrell said consideration should be given to the back- ground when coming to a decision. Mr. Btacketer said if they recommended Oonditional Use be granted would it be to just the present owner or if it was sold would it go to the new owner. Mt. Simon said if you grant it, it stays that way but in order to clarify it under majority, minority, it has to be one tract of land, one owner, one main building. Mr. Blacketer asked -1 lot? i~Lr. Simon said it would be granted because it is only part of one lot. Mr. Olds asked if anyone in the audience had anything to say, Mr. Hollingsworth stated that Court holds Condition Use or variance goes with the lot and ch~ge in ownership does not affect it. Mr. Vastine said this Board is in a position of being Judge and Jury. We investigated the facts and severe problems along the line. It puts us in a precarious position as three of us are new, but the problem we face tonight is to be fair and make a recommendation. I want the people in the audience to realize this is a critical position. Page No.5 MIhV3TES PLANNING & ZONING BOARD MAY 17, 1973 Mr. Olds said we enly sit as a recommending Board. What- ever decision we arrive at is only a recommendation to the Council. Mr. Blacketer said i move that this request for Conditional Use be recommended to the City Council. Mr. Walker said he thought they should be more specific as to which piece of property should be recommended for Condi- tional Use. Mr. Blacketer stated his recommendation was based on the application for Conditional Use. This does not state the lot. Mrs. Huckle~ said Parcel B. Mr.W~ker seconded the motion. Mr. Olds said it was moved and second that Conditional Use be granted and recommendated to the Council and asked for Col. Wehrell said if it was denied it would be a hardship. In addition, there is undeniable damage to Mr. & Mrs. Rohrbaugh. However, if this is not used for parking it would mean parking in the street again. Parking is needed. Mt. Olds said if this is carried through and adopted there should be a little better abutment to beautify the area between the Rohrbaugh's property and the parking lot. This parking lot can become a ~isance, particularly at night with kids. Mr. Vastine said he recognized the position of the Rohrbaughs that he had seen this at night with headlights, etc. and he asked Dr. Astler for a better buffer zone. He said they should consider that they have a Community Appearance Board who should get into the act to put up a buffer and beautify. An individual vote was taken: Mrs. Huckle - No. Messrs. Vastine, Olds, Blacketer,Walker and Col. Wehrell -Yes. Vote 5 - !!. The recommendation will go to the City Council. Dr. Astler said they made an effe~ to put up a hedge fence on 5 feet of land. They would be glad to ~o this. Mr. ~astine moved the meeting be adjoined. This was seconded by Col. v;ehrell. 9:15/ IP'MA Page No.