Loading...
Minutes 04-15-96 MINUTES OF THE BOARD OF ZONING 'APPEALS MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA, ON MONDAY, APRIL 15, 1996, AT 7:00 P.M. PRESENT ~ James Miriana, Chairman James Cherof, City Attorney Ben Uleck, Vice Chairman Michael Pawelczyk, Asst. City Marilyn Huckle Attorney Howard Rappoport Mike Haag, Zoning & Site Agnes Hollingshead, Alternate Devel. Admin. ABSENT Herman Gold, Alternate 1. ACKNOWLEDGEMENT OF MEMBERS AND VISITORS Chairman Miriana called the meeting to order at 7:05 p.m. He introduced the City's attorneys, Mr. Haag, the board members, and the recording secretary. 2. APPROVAL OF AGENDA Ms. Huckle moved approval of the agenda as submitted. Mr. Rappoport seconded the motion which carried unanimously. 3. APPROVAL OF MINUTES Mr. Rappoport moved to approve the minutes of the February 12, 1996 meeting. Ms. Huckle seconded the motion which carried unanimously. 4. COMMUNICATIONS AND ANNOUNCEMENTS In response to Chairman Miriana's question, the Recording Secretary announced that the City Clerk's Office had received a FAX today advising that the appellant in this case is RHS Corporation, rather than Dr. Mark Roberts. The FAX was submitted to Attorney Pawelczyk. 5. ELECTION OF OFFICERS This item was not addressed. 6. SWEARING IN OF WITNESSES _Prior to the swearing in of witnesses, Gene Moore, attorney representing Clear Copy, ~ r~ stated that it was his contention that this board had no authority to hear this matter. The .. City's Planning Director did not make a decision. She made a recommendation to the City Commission, and that recommendation was unanimously ratified and granted by the City Commission. In addition, Mr. Moore stated that Dr. Roberts waited too long to appeal the MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 recommendation. If he wanted to attack the Planning Director's recommendation as to the granting of the minor modification, he should have done so prior to it being ratified by the City Commission. The City Commission made a ruling, and the Board of Zoning Appeals does not have juridiction to override that ruling. At Chairman Miriana's request, Attorney Cherof explained that the matter before the board is not an appeal of a City Commission decision. It is an appeal of the Planning Director's recommendation relative to a minor rather than major modification. The authority of the Planning Director is found in Chapter 4, Section 9. An appeal of an administrative nature ~s clearly subject to appeal to this board. However, the appeal is limited to that determination. Attorney Cherof advised that the board will determine by motion either that it was, or was not a minor modification. If you do not agree that it was a minor modification, you will overrule that determination. This procedure is listed in Chapter 4, Section 9, and the board's authority and procedure for review is set forth in Ordinance 95-44. It is Attorney Cherof's opinion that this board does have the authority to make a determination. Mr. Moore reiterated that the appellant sat back and chose to appear before the City Commission where he was unanimously rejected. He feels this board would have had authority if the appellant had done this prior to the City Commission ratification. He feels it is clearly too late for this appeal. He stated that anything the board does now will amount to an overruling of a City Commission decision, and he took exception to that ruling. Mrs. Huckle asked for clarification of what took place at the City Commission meeting of March 19, 1996. Attorney Cherof advised that the City Commission listened to the review of how Ms. Heyden reached her determination. There was a motion to ratify that decision. The motion to ratify was seconded, and unanimously passed. Attorney Cherof stated that verbatim minutes of that portion of the meeting will be placed into evidence by staff at the appropriate time. Re_o Stambau.qh, Attorney representinq RHS Corporation, advised that he was present when the City Commission received a recommendation from Ms. Heyden that this was a minor modification. There was a ratification of a staff determination. His client received guidance from the City as far as the appeal process, and that is the reason why they were present for this appeal. It was Ms. Hollingshead's opinion that counsel for the board advised that this board does have jurisdiction to proceed, and she was prepared to make a motion-to proceed and follow the agenda. MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 Motion Ms. Hollingshead moved that we proceed with our meeting based on the comments we have heard and the recommendation of counsel of the board that we have jurisdiction to proceed. Mr. Rappoport seconded the motion. Mrs. Huckle confirmed with Attorney Cherof that the motion was sufficient. The motion carried unanimously. Attorney Pawelczyk administered the oath to all who would be testifying in this matter. 7. OLD BUSINESS None 8. NEW PETITIONS: A. PUBLIC HEARING ADMINISTRATIVE APPEAL 1. Case #4-001 Location: 660 W. Boynton Beach Boulevard Owner: Bob Feldman Appellant: RHS Corporation Request: Appeal of the Planning and Zoning Director's administrative decision of a minor site plan modification for site plan changes requested by the owner of Clear Copy. Attorney Pawelczyk advised that this meeting is limited to the appeal by Dr. Roberts. That is an appeal relative to whether the decision made by Tambri Heyden, a minor site plan modification, and not a major site plan modification, was correct. The authority for this appeal is under Ordinance 95-44. All parties will be stopped from saying anything that does not have to do with this appeal. This is a new procedure for the board because it is an appeal, and not a variance. In making a decision, the board will either affirm or reverse Ms. Heyden's decision. A motion will be made accordingly at that time. Mike Haag made the presentation for the City. He explained that a new numbering system has been adopted for this board. The #4 in this case number referS to the fourth month (April), and the 001 indicates this is the first case the board is hearing after institution of the MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 new numbering system. Mr. Haag advised that Ms. Heyden, Planning and Zoning Director, made a decision that the requested changes to the site plan shown in the back-up material, were minor changes. Ms. Heyden outlines the method she used to make her determination in Planning and Zoning Memorandum No. 96-143 (City's Exhibit #1). Page 2 of this memorandum outlines the seven criteria used to make a determination relative to whether site plan changes are major or minor. Mr. Haag read each of the seven criteria which also listed Ms. Heyden's response to each. Mr. Haag reminded the members that in order to make a determination, one must look at the approved site plan (City's Exhibit #2) and the proposed site plan (City's Exhibit #3). The Planning Director took the approved plan and evaluated the request to change to the proposed plan. She determined there was a minor modification, and her determination was supported by staff. In response to Mr. Rappoport's question, Mr. Haag used the overhead projector to show the location of Dr. Roberts' property to the east of the Clear Copy parcel. Mr. Haag confirmed for Mr. Rappoport that there is an existing hedge on Dr. Roberts' property, but there is no wall. There has been no change to the buffering or screening from the original site plan. Mrs. Huckle pointed out that Criterion #3 on Page 2 of Exhibit #1 indicates C-3 zoning. Mr. Haag referred to the Location Map for Clear Copy (City's Exhibit #4) and confirmed that the zoning is C-2. In making this determination, the Planning and Zoning Department requested assistance from the Legal Department since they were aware that an appeal was contemplated. At the City Attorney's suggestion, Ms. Heyden took her determination to the City Commission on March 19, 1996, for affirmation that her determination of a minor change was acceptable. That determination was ratified by the City Commission. An excerpt of the minutes of the March 19, 1996 Regular City Commission meeting were submitted as City's Exhibit #5. In addition, a verbatim excerpt from the tape recording of the March 19, 1996 meeting addressing the "Minor Site Plan Modification for Clear Copy" was submitted as City's Exhibit #6. Tape recordings of the City Commission meeting of March 19, 1996 were marked as City's Exhibit #7. Aisc submitted into evidence was a copy of the Land Development Regulations, Part 111, Chapter 4, Section 9 (City's Exhibit #8) which identifies the major and minor modifications, and a copy of City of Boynton Beach Ordinance 95-44 (City's Exhibit #9) which gives this board the power to act on this request. With all of the evidence presented, and due to the fact that the Land Development Regulations, Part III, Chapter 4, Section 9, were followed, Mr. Haag requested that the board affirm or sustain the Planning Director's recommendation that it was a minor site 4 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 plan modification. There were no questions of Mr. Haag from the board members at this point in the meeting. Re.q Stambau.qh, Miller & Woods, PA, 1400 Centrepark Blvd, Suite 660, West Palm Beach, represented RHS Corporation. The Corporation is the legal property owner of the property contiguous to the property being developed by Clear Copy. He introduced Dr. Roberts, President of RHS Corporation. Attorney Cherof advised that Dr. Roberts' original letter requesting the appeal is dated March 25, 1996, from Dr. Roberts on Mark E. Roberts, DDS letterhead. Subsequently, there was a letter changing that from Dr. Roberts to RHS. Mark Roberts said the initial letter sent was a public records request for the application. Attorney Cherof responded to that letter stating that was not a satisfactory application for this appeal. He subsequently sent a letter on RHS letterhead indicating that RHS was the appellant. Dr. Roberts stated that this project has been ill fated and poorly planned from the beginning. Through negligence, the City compounded the problems when they approved the site plan, issued the building permits, and allowed construction to move forward. The City would like all of their problems to go away. Since the original site plan was so bad, and did not meet the Land Development Regulations, the City required Clear Copy to submit a new site plan. Ms. Heyden called this new site plan a minor modification with the hopes that this aggravation would go away. The owner of Clear Copy would like the members to believe that Dr. Roberts is present tonight because he does not want the property developed. Gene Moore would also like you to believe the same thing. George Davis, Tambri Heydan, and City staff feel the same. However, what RHS wants is not the issue. The issues are whether the Clear Copy project meets the City's building Codes, and why Ms. Heyden determined this was a minor site plan modification. For the record, Dr. Roberts stated that RHS Corporation has no problem with Clear Copy developing the property. In the lawsuit filed, RHS is asking the court to require the City to enforce the building Codes. Mr. Moore objected to Dr. Roberts remarks stating that the chair instructed the appellant that the issue before the board is whether or not these minor changes were right or wrong. Dr. Roberts is again attacking the basic site plan. Attorney Cherof advised that this is not a review of the first or second site plan. It is a review of the difference between the two, and whether that difference is characterized as a minor or major modification. He requested that comments be restricted to that analysis. 5 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 Attorney Stambaugh explained that Dr. Roberts did not have an opportunity to express his concerns the last time this project was reviewed because he was out of town. Chairman Miriana questioned why Dr. Roberts was not allowing Attorney Stambaugh to present his case since he was being represented by counsel. Attorney Pawelczyk advised that it is Dr. Roberts' choice to decide how his case is presented. Dr. Roberts continued by saying the new site plan submitted by Clear Copy does not comply with many of the Land Development Regulations. RHS feels the new site plan is a major modification. Dr. Roberts submitted a letter from Gee & Jenson (Appellant Exhibit #1), an engineering firm, which provides an opinion that this is a major site plan modification. Major modifications require approvals of both the Planning and Development Board and the City Commission. Since Ms. Heyden knows this site plan cannot meet the Land Development Regulations, she determined it to be a minor site plan modification. Minor modifications are handled administratively, and not through quasi-judicial review. Ms. Heyden did not want to address or resolve the issues on this site plan; she just wanted the aggravation to go away. Dr. Roberts stated that he plans to show why this is a major modification, and he hoped that with the proper decision by the board, additional appeals and lawsuits can be avoided. In determining what constitutes a major modification, the City's Ordinances leave gray areas for interpretation. However, the intent is clear. The new site plan does not meet the requirements of the Land Development Regulations and, therefore, needs further review as intended in major site plan modifications. The City presented the opinion that it does meet the Land Development Regulations, but Dr. Roberts will show that it does not. The City presented the opinion that the site plan does not adversely affect adjacent properties; however, it does adversely affect RHS property. The City stated the site plan does not reduce physical buffers; however, it does. The City said there is no affect on adjacent property; however, an indication this is not correct is evident in the fact that NW 7th Street must be restriPed, changing the traffic flow problem to the surrounding neighborhood. The City also presented that the site plan alteration is almost the same as the original plan. They want the members to believe that even though every parking space has been changed to a new locatiOn, the driveways have been changed to new streets, the drainage engineering is completely new, the lighting design is new, the buffers have been altered, the traffic flow to and on the property has been totally changed, and the method of trash pickup has been changed, that this new site plan is virtually the same and has no impact on the adjacent properties. Tambri Heyden wants you to believe that since the Clear Copy property has the same number of parking spaces, the same number of driveways, and the fact that the building is in the front and the parking is still in the rear, everything is the same and this is a minor MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 site plan change. Dr. Roberts finds this hard to believe. Dr. Roberts reviewed the major issues regarding why this site plan should require further 'review. He distributed copies of overlays he prepared for review by the members. The first page indicated the new modified site plan. He explained that the property abutting the Clear Copy property .has an existing hedge. That hedge is nonconforming. The hedge does not meet City standards and will not provide an adequate buffer. The approved site plan addressed this issue. The original site plan indicated that the property next to it had a hedge. It also stated that if the hedge did not meet the City standards, the site would be revised to show proper vehicle use screenage to be in compliance with City standards. They purposely erased this requirement from the new site plan so that it no longer appears. The City Commission, on September 19, 1995, approved that there would be an adequate buffer. The Code requires fire trucks to have access to the property. This site plan was changed, and that changed the entire vehicular traffic pattern. The second overlay he presented showed that the fire trucks and garbage trucks cannot access the property. RHS property abuts Clear Copy property which contains hazardous waste. They are required to get a hazardous waste permit. If a fire were to develop on this property, the City could have the fire truck park on the roadway, but that would not allow additional emergency vehicles to access the surrounding neighborhood. The Codes address this and require that fire trucks have sufficient access to the property. The Code also requires that garbage trucks have access to the property. The City acknowledged that this is not possible. On September 19, 1995, the City Commission did not approve curbside recyclable pickup. Dr. Roberts provided an excerpt from that meeting. He read from the excerpt as follows, "...Ms. Heyden explained that if the recycling truck cannot maneuver on site, a determination will be made relative to the method of garbage pickup." Dr. Roberts stated that the City Commission did approve on site recyclable pickup as the Codes require. All commercial establishments must have on-site containerized garbage pickup. Dr. Roberts requested that the City send him a copy of an Ordinance that defines what a container is. He also asked for information on the trucks the City has available to pick up these containers. Using his overlays, Dr. Roberts stated that the truck cannot get onto the property. The trucks have a minimum turning radius of 90'. They would have to turn, cross over the curb and the parking spaces, and go onto his property just to make the turn. Because of this, the City decided that the already-built dUmpster area would be called a storage area because the truck could not get to it. He reminded the members that MS. Heyden said the method of garbage pickup had not changed from the original approved site plan. She said the City Commission approved curbside pickup. Dr. Roberts questioned where the curbside pickup would be located because there are no swales. The Code does not allow the cans to be placed in the MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 roadway. If placed on the sidewalk, they will block access. If left in the driveway, it will be a violation of the Code. This property does not have the provisions for curbside pickup. In addition, Ms. Heyden did not take into account adequate garbage pickup. Mr. Feldman testified that this 4,000 square foot copy center will have one garbage can per week of garbage. The Code requires the dumpster to have sufficient access. This modified site plan eliminates access to the dumpster. There is no provision for any vehicle to go to the dumpster area because the handicap parking space is in the way. They knew they could not call it a dumpster area, so they called it a storage area, and Ms. Heyden changed it on the plans. The Code requires 27' for back-up space for each car. The new plans modified the 27' to now have only 26.5'. This is against the Land Development Regulations, and requires a variance. This was modified and changed on the new plans. This is why the plans need further review by the City Commission, and that is why this should be a major modification. The Land Development Regulations require all dedications of land to be approved by the City Commissioners. Under this modification, Ms. Heyden voluntarily accepted the property for the City. However, she does not have the authority to do that. The Code requires 2.5' buffer zones between the properties. The original site plan made provisions for that requirement. The new site plan has been changed and does not allow for that 2.5'. A variance should be required. The Code requires that the loading zone be accessible. Clear Copy has a loading zone, but the trucks cannot legally access the property. Clear Copy has eight employees. It is assumed that deliveries occur when employees are at the facility. A good number of employees would have to leave the project for the trucks to enter the property. Assuming they could enter the property, it is physically impossible to enter the loading zone without encroaching on the handicap space. The City requires a concrete-type post to prevent encroachment. This building automatically encroaches 2" closer to the parking lot than was shown on the plan. In addition, the building has an electrical meter that protrudes another 6". Besides the fact that the loading zone is only 12' wide, which is required by Code, eight additional inches are lost. Dr. Roberts feels the decision regarding whether or not to have a loading zone should require a variance. The new site plan does not have the required irrigation and landscaping design, and does not meet the Land Development Regulations. The previous site plan did show irrigation and landscaping design. The new plans have a new lighting design. The required engineering has not been submitted. The original engineering submitted assumed light could go through a concrete MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 wall. The original site plan had engineering illegally using lighting from RHS property. They never took into account that they had a 6' high hedge or 6' high concrete wall. The Code requires a minimum amount of light for safety protection. The lighting requirements are serious. More things have changed than just flip-flopping the parking lot. This is a major site plan change. Dr. Roberts stated there are a lot more things going on; however, he believes the scope of alt of the changes and the intent of a major modification is to have further review of the site plans. Attorney Stambaugh pointed out that Dr. Roberts expressed most of his concerns. This new modified plan includes the land dedication. The Land Development Regulations require, under Article V, Section 3.A.2.E.5, that the City Commission shall determine whether it accepts a land dedication. Although this land is not of a great amount, when examining a major or minor modification, this is a fact that should be considered. This alone should have been enough to make this new modified site plan a major site plan modification. Another issue is the environmental issue. This is something which was not submitted in the minor modification; however, it is a requirement. Attorney Stambaugh read from Section 11.3 of the Code which states that in all cases, approval of the environmental review permit shall precede approval of site plan. Dr. Roberts added that the reason the site plan was changed was that the applicant could not provide a certification of conformance with the Land Development Regulations. The City asked for it, and when they could not provide it, the City asked them to modify the site plans. This is required before a site plan is approved. Clear Copy still has not submitted this certification because the Land Development Regulations cannot be met. If this is a major modification, they will have to show certification to the City Commission. Attorney Stambaugh read the definition of "containerized" from Section 10-25 of the Code. It says, "Containerized means a detachable metal container provided by the City, designed and intended to be mechanically dumped into a packer type sanitation vehicle and varying in size from 2 cubic yards to 8 cubic yards adaptable to City equipment." In a minor modification, there is no containerized commercial collection. This is another fact which should be brought out in the board's determination. In addition, Dr. Roberts talked about the recycling trucks and access. It was indicated in staff's report that service areas are in the same general location and methods of refuse collection, curbside pickup for trash or recyclables, is unchanged. That is untrue. The recyclables have changed. Attorney Stambaugh pointed out that Dr. Roberts has closely examined this case, and has MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 a good command of the facts. That is the reason why he made the presentation. Mr. Rappoport asked Dr. Roberts if he approved of the original site plan which was submitted to the City. Dr. Roberts responded that he objected to the original plan. When he began to offer a history of this project, Mr. Moore objected since he felt the remarks were not germane. Dr. Roberts advised that he objected to the original site plan and wrote a number of letters indicating the areas of noncompliance. The City said they complied, and in the end, Dr. Roberts was correct. The site plans did not comply, and they had major problems. There were no other witnesses to testify on behalf of the appellant. Mr. Haag rebutted the following: Off-Site Hedge As stated in Planning and Zoning Department Memorandum No. 96-143, the hedge was approved when the City Commission approved the first site plan. It has nothing to do with the modified site p~an. The City Commission approved the hedge on Dr, Roberts' property, and the City Commission was aware of the discrepancy in the size of his landscape strip, Fire Truck - The review for the Clear Copy project went before the Technical Review Committee which is comprised of several City departments. The Fire Department is one of those departments. They had no concern whatsoever that the fire truck could not get on the site. They felt the site was acceptable to fire/rescue vehicles. They did not have any comments on the original or modified site plan. He referred to Exhibit "C" (City's Exhibit #10) which was part of the back-up material. Recycling and Sanitation - Both of these areas were addressed with the minor site plan modification. Mr. Haag did not have knowledge of what Dr. Roberts read from the minutes of September 19, 1995 relative to recyclables. However, the memorandum received from Public Works, as indicated in Exhibit "C" (City's Exhibit #10), confirms that they have no concern providing curbside service for the removal of solid wastes or recycling as previously approved. Location of Cans for Pickup - The determination regarding the location of ....... the cans for pickup is generally worked out between the property owner and - Public Works. 10 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 Back-up Space - The plan delineates 27' back-up space. The Code requires 27': The plan is in compliance with the Code. Land Dedication - The City Commission must approve land dedication, however, it can be handled separately. Land dedication is taken to the City Commission by the City Engineer, Mr. Hukill, and as noted in the comments in Exhibit "'C", Mr. Hukill will process this when he feels the time is appropriate. Mr. Haag is certain the City Commission will accept Mr. Hukill's recommendation. Loading Zone -The Code requires a 12' x 35' loading zone, and access to it. The site has a loading zone, and it is acceptable to staff. How it is approached, entered and exited goes back to the property owner. Irrigation - Irrigation plans are not required in the site plan process. They are required in the permitting process. All landscaping must be irrigated. When these plans go from site plan to permitting, most every project is approved subject to staff comments. The comments are then rectified at permit level. If irrigation is not shown, but the plans indicate there is landscaping, a stamp would be placed on the plans requiring a separate permit for irrigation. When they are ready for final inspection, the field inspector would see that stamp and not issue the final inspection until the irrigation permit is secured. Landscaping - The landscaping plan shown on the modified site plan was subject to Exhibit "C". There are comments regarding landscaping. Before a permit can be issued, the property owner must take care of all of the staff comments regarding landscaping. Certification by Design Professional - This is a comment which is listed in Exhibit "C" by the City Engineer. This must meet with his satisfaction before he would allow them to proceed with the project. Dr. Roberts felt this should be done beforehand; however, in four or five years of reviewing site plans for the City, Mr. Haag stated that this is a comment which generally comes through as a staff comment because it is not provided at the site plan level. This is required prior to issuance of the permit. Mr. Moore commended Mr. Haag and the City on its presentation. He feels it has clearly shown that Ms.- Heyden was correct in her decision relative to minor versus major. Her decision comes with the appropriateness of practice. The appellant has the burden of proving that her decision should be overturned. Ms. Heyden's decision was supported by her staff and the Technical Review Committee, and ratified on two occasions (the original site plan and the changes) by the City Commission. ]! MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 Mr. Haag added the following in response to issues brought up by Attorney Stambaugh: Land Dedication - This was already addressed. Environmental Review - Mr. Haag attempted to sift through the back-up materials quickly to find a statement relative to environmental review. He was unable to find it in his haste. However, he advised that Clear Copy applied for environmental review. They went through the review and were approved. The apProval is subject to comments. That means that when you go through site plan review for a new building, the environmental review cannot approve the environmental concerns for the project until the building is built. They have been approved subject to staff comments. They cannot get an Occupational License until they have an environmental review permit. This will happen when the building is built. Containerized Metal - Mr. Haag stated that he did not know how to refute the section of the Code read by Attorney Stambaugh. The size of the containers and their location for pickup is worked out between the property owner and Public Works. In closing, Mr. Haag stated that he stands by the recommendation of the Planning and Zoning Director that this is a minor site plan modification. Dr. Roberts questioned whether Mr. Haag believed the Land Development Regulations should be followed. Mr. Haag responded affirmatively. Dr. Roberts asked Mr. Haag to look at his plans and tell the board the dimensions on. the plan. Dr. Roberts stated the plan he was showing Mr. Haag was the approved plan submitted by Clear Copy. Mr. Haag confirmed that the dimension shown on that plan for the back-up space read 26.5'. Dr. Roberts showed each member the plan indicating the back-up space of 26.5'. Mr. Haag explained that Dr. Roberts' plan was different from the one being evaluated in the agenda back-up material. The plan in the package says 27'. There were several versions of the plan. Dr. Roberts stated the one he possessed was the sealed plan, and the one that was in the back-up material. Mr. Haag disagreed, and stated that he did not know where Dr. Roberts' plan came from. Dr. Roberts suggested that the members look at the plans in their back-up material. He stated that the plan dated March 3rd appears in the back-up material. His plan is dated March 8th. He stated his plan were "the" plans. ]2 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 Mr. Haag reiterated that the plans which were reviewed were the ones contained in the agenda back-up material. Dr. Roberts said the property is 50' wide. The Land Development Regulations require a 5' landscaped area, a 6" raised curb, 18' of parking space, and 27' of back-up space. Fifty and one-half feet are needed, and the property is only 50' wide. Either a curb, one-half foot of planting area, or a half foot from the parking space would have to be eliminated to make 50'. There is no way around these requirements because they are Code requirements. Dr. Roberts asked Mr. Haag if the City Commission could approve something that requires a variance without going through a variance. Mr. Haag referred that question to the City Attorney. However, with regard to Dr. Robert's comment about 5', Mr. Haag said the curbing is all inclusive of the 5' landscape strip. This is general practice and has been accepted for as long as he has been reviewing plans for site. Dr. Roberts responded that the Code does not make such a statement. Attorney Cherof advised that Dr. Roberts is afforded the opportunity to present whatever evidence he wishes to present. The purpose of this proceeding is not for it to be a debate. He is free to put on whatever evidence he wants, and to take as much time as he needs to accomplish that. Dr. Roberts again asked if the City Commission can approve something that requires a variance without it going through a variance opinion. Mr. Moore objected to Dr. Roberts' question. Attorney Cherof advised that there is no issue of variance before this board tonight. The issue is the distinction between the first and second site plan. Attorney Stambaugh pointed out that Dr. Roberts is trying to make a point that this is a matter of logic. When are the determinations between a major and minor modification going to be made? Is the issue of a variance included in this criteria which must be followed? Dr. Roberts continued by saying that Mr. Haag stated the City Commission approved the buffer zone between the properties. What the City Commission approved is what he provided a copy of which states that the property next door has a proper buffer, or Clear Copy will change their site plan to have a proper buffer. Instead of changing the site plan to have a proper buffer, they eliminated it. The City acknowledges that this is a nonconforming hedge. Clear Copy should have applied for a variance when the City became aware that it was impossible for them to have an adequate buffer zone. The City MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 cannot approve something that is illegal without going through a variance. Dr. Roberts said the building Codes require that fire trucks have access to the property. It is physically impossible for fire trucks to have access to this property. The City does not want to say there ~s a problem with this site plan. With regard to the loading zone, it is true that a truck can get on the loading zone; however, a standard size delivery truck has a 6' cab and 24' cabin. The standard size truck that will deliver to Clear Copy will not be a pickup truck. It will be a standard delivery truck, and it will not be able to go into the loading zone. In addition, the City does not consider the fact that it is actually 8" narrower than what is on the plans. Dr. Roberts said he requested a copy of the environmental permit which was issued. He received a letter from 'Ms. Heyden that the permit has not been issued. Mr. Haag agreed that the permit cannot be ~ssued until the building is built. They gained environmental review approval subject to comments. Dr. Roberts said the Land Development Regulations require approval prior to the permit. If the City has not been enforcing that requirement, that does not mean it is not legal. Mr. Rappoport read from City's Exhibit #6 (verbatim excerpt) where it states that an environmental review was granted with conditions. It states that the conditions and permit are not issued until just prior to an Occupational License being issued. Dr. Roberts submitted an excerpt of the City Commission meeting minutes of September 19, 1995 (Appellant's Exhibit #2). This deals with the issue of recycling. Dave Beasle¥, 515 SW 2nd Avenue, is a past member of the Planning and Development Board, and has been working in Boynton Beach as an architectural designer for 14 years. Everything he heard this evening from Mr. Haag and the City is typical practice. The environmental review process is done in the manner described. Some of the things here regarding the dumpster, loading zone, and fire truck have always been left to the discretion of the client, professional and City staff to work out. Attorney Stambaugh stated that in closing, RHS Corporation would like to make it known that what has been done in the past is not what should be done in the future. This is a major modification. An expert's letter was submitted by Gee & Jenson, and their opinion is that this is a major modification. Dr. Roberts wants to make sure the Codes are followed and the proper review is made. Attorney Stambaugh further stated that if it is determined that what was done in the past is what should be done in the future, and that replaces the Code, then he does not .believe the court will accept that type of logic. Mr. Moore closed with a statement that if the board had the opportunity to review the ]4 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 verbatim transcript, they will see that these are the recommendations of two engineers, including Mr. Wasser, who said these were minor alterations, and supported that determination. There being no further testimony, Attorney Pawelczyk advised that the board must decide whether the administrative decision made by Tambri Heyden that this was a minor site plan modification. The board will either affirm and uphold that decision, or reverse it. Ms. Hollingshead expressed concern because the City followed the definition of minor modification and checked off each item they reviewed, but RHS Corporation did not identify why there was a significant change in intensity caused by these changes. She sees that as a piece of a major modification. Motion Ms. Hollingshead moved to affirm and uphold the decision of the Planning Director that the amended site plan was a minor modification. Mr. Rappoport seconded the motion. The Recording Secretary polled the vote as follows: James Miriana Aye Ben Uleck Aye Mrs. Huckle asked to qualify her vote. She finds a great number of minor changes in the site plan, and she has several misgivings about some of the information presented and several misgivings about the plan. She wished she had a copy of the March 19, 1996[City Commission minutes earlier so that she would have been able to more thoroughly digest the information and feel more secure about some of the items. In view of her misgivings, she voted "No" Howard Rappoport Aye Agnes Hollingshead Aye. The vote was 4-1 to AFFIRM the Planning Director's recommendation. (Mrs. Huckle cast the dissenting vote.) 9. OTHER BUSINESS Chairman Miriana advised that the City Commission overturned the board's recommendation on Case 214 which the board heard previously. 10. COMMENTS BY MEMBERS None ]5 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 11. ADJOURNMENT There being no further business to come before the board, the meeting properly adjourned at 9:05 p.m. net M ~rainito (.~a_ net ~. Recording Secretary (Three Tapes) S:\CC\WP\MINUTES\BZA\041596.WPD C I TY OF BOYNTON BEACH- .,BOARD OF ZONING APPw. a?.S AGENDA DATE: Monday, April 15, 1996 TIME: 7:00 P.M. PLACE: Boynton Beach City Hall City Commission Chambers 100 E. Boynton Beach Blvd 1. Acknowledgement of Members and Visitors 2. Approval of Agenda 3. Approval of Minutes 4. Communications and Announcements 5. Election of Officers 6. Swearing in of Witnesses 7. Old Business NONE 8. New Petitions: A. PUBLIC HEARING ~.~ ..ADMINISTRATIVE APPEAL 1. Case #4-001 Location: 660 W. Boynton Beach Boulevard Owner: Bob Feldman Appellant: ?:~ ~ ~5 ~ Request: Appeal of the Planning and Zoning .~ Director's administrative decision --~ of a minor site plan modification for site plan changes requested by the owner of Clear Copy. 9. Other Business 10. Comments by Members 11. Adjournment ~OTICE: Bmy person who decides to appeal any decision of the Board of Zoning Appeals with respect to any. matter considered at this meeting will need a record of ~he proceedings and for such purpose may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. (F.S. 286.0105) Page 2 Board of Zoning Appeals Agenda, April 15, 1996 The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costello, (407)375-6013 at least twenty-four (24) hours prior to the program or activity in order for the City to reasonably accommodate your request. CASE #4-001 ADMINISTRATIVE APPEAL CLEAR COPY MINOR SITE PLAN MODIFICATION PLANNING AND ZONING DEPARTMENT MEMORANDUM NO. 9 6 - 2 01 TO: Chairman and Members Board of Zoning Appeals FROM: Tambri J. Heyden ~ Planning and Zoning Director DATE: April 12, 1996 SUBJECT: Clear Copy, Inc. - BZAA 96-001 Administrative appeal to minor site plan modification determination The Board of Zoning Appeals has the authority to review zoning related decisions made by the Planning and Zoning Director if an aggrieved party wishes to appeal such an administrative decision. Changes to a previously approved site plan for Clear Copy, Inc., a print shop owned by Robert Feldman and under construction at 660 W. Boynton Beach Boulevard, were recently submitted by the owner. These changes were determined by the Planning and Zoning Director to constitute a minor site plan modification, as opposed to a major site plan modification. Minor site plan modifications are permitted to be approved administratively by staff rather than requiring Planning and Development Board and City Commission approval. Dr. Mark Roberts, the property owner adjacent to Clear Copy, has appealed this minor site plan modification decision, contending that these changes requested by Clear Copy constitute a major site plan modification. Pages one through four of the attached Planning and Zoning Department Memorandum # 96-143 provide a history of the Clear Copy project, as well as a detailed description of the changes Clear Copy ~equested, the definition of a mi~or vs. major site plan modification and the basis upon which the administrative determination was made. The Board must review the determination and act to either uphold the administrative decision or over-rule the decision declaring the Clear Copy changes as a major site plan modification. TJH: dim xc: Central File a: BZAACler. mem Mark E. Roberts, D.D.S. asr 1996 ~. Samee Che=o~ Ci~y A~Ogney 3G99 E. ComUag~lal BZv~l. SuLfa #300 Ft. Laudezd&le, FL 33308 Dear Kr. The Land Development Regulations lear, that tile organizat/on =onf~ ~o Chapter 363 o~ ~he Florida $~atu.= and the~ an a~al Ae Co be fll~ on the p=o~r roquest~ the Cl~r Cleck,. Office ~AAB~FBtAvo Appeal to the Baa~ of AdJ~tmoflt Ifl~ a copy o~ Chmp~mz 163, FlorLdm O~atutee. Th* ~terk*s Og~Aco ifl~o~ mo ~ cop/es, u&nc~ afl ap~L ~LIo~ la · tLmeZF ~nflo~. plea,~ have the Clty fo~a~d these ~ank you Ln advance for your eoo~ratton. S~nc~Eely, , ~R~em .... gnoloauro (La~ ~elo~on~ ~ BY F~ (305)771-4923 R.H.S. CORPORATION 650 West Boynton Beach Blvd. · Suite #2 · Boynton Beach, FL 33426 .(407) 736-11700 March 27, 1996 Mr. James Cherof City Attorney of Boynton Beach 3099 E. Commercial Blvd. Suite #200 Ft. Lauderdale, FL 33308 RE: Clear Copy Project Dear Mr. Cherof: As you are aware, on March 25, 1996, RHS Corporation filed an appeal to be heard by the Board of Adjustment for Administrative Decisions of the Planning and Zoning Department and City's Staff. Land Development Regulations (LDR), Chapter 2, Section 10.E state that an appeal to the Board of Adjustment stays all work on the premises u~l~s a..~tay, will cause imminent peril of life or property.for Clear Copy's~ ~cay property.Wl~£ not cause imminent peril of life or property The continued development of the Clear Copy Project is clearly in violation of LDR. Therefore, I request the City immediately require the stoppage of all work at the Clear Copy Project. Sincerely, . Mark E. Roberts, D.D.S. President, RHS Corporation MER=sm SENT BY.FAX (305)771-4923 AND US MAIL xc: Reginald Stambaugh, Esquire Ms. Carrie Parker, City Manager Ms. Tambri Heyden, Director of Planning and Zoning JOS[As & GOx~N, P.A. LEONARD G RU~IN Reginald Stambaugh, Esquire M~ller & Woods, 1400 Centrepark Boulevard Wes: ~a~m Beach, Florida 33402 Re: C't o to Beac adv. S Co o ati n 950400 ~ac M~. Stambaugh: In furtherance of our telephone discussion and in respoase to you client's letters of March 25th and March 28th please consider the following: 1. I have agreed that Dr. Robert,s letter of March 25, 1996 is sufficient notice of intent to appeal to satisfy the thirty (30) day time requirement for filing. However, in and o: itself, Che March 25, 1996 letter is not sufficient to invoke the jurisdiction of the Board of Zoning Appeals since it does not ~peoify the nature of the appeal nor identify the administrative deG~sion that Robert,s is aggrieved of affected by. . 2. I ~dvised Dr. Robert's of the nee~ for a supplemental letter containing the above information but I nave not yet received 3. No stop work orde~ wili be issued by the City staff until the supplemental letter is received and I have determined that the Surisdiction of the Board of Zoning Appeals has invoked. Additional]~ .~ .... been pro jurisdiction, th~ offi~al'%r~m ~rm~,ne that. the Boardp ha~ determine ff t' _ ,. whom the appe~[ ~s taken .will . ne issuance of a stay will cause ~mmanent erll t l~fe or.~roperty. If that dete~tnat~__ , _ . P O s=a wi~ ' . . ~zs ma~e an~ certified, no Y I l~sue except as provided ~ e Ordinance 95-44. JAC/j c JA~S A~ ~O~OO~S~AdaAUG~.C r~ ce: Bill ~ukill (via facsimile) Carrie Parker (via facsimile) CITY OF ~OYNTON ~ACH MEMORANDUM TO: William HuKi]I, Director of Development FROM: James A. Cherof, City Attorney ..... DATE; March 29, 1996 RE: Clear Copy, RHS Corp. On MarCh 25, 1996 I received the attached letter from Dr. Roberts indicating a desire to appeal to the Board of Adjustment (Board of Appeals Appeals). I thereafter spoke with Dr. Roberts and his attorney and advised that the Board has not prescribed a form for appeals. I further advised that the letter of March 25, 1996 would be treated as a timely notice of intent to appeal, but that an supplemental letter from Dr. Roberts would be necessary to specify the administrative decision being appealed. I have not received that letter. There is no way to determine if the Board of Zoning Appeals will have jurisdiction to consider the appeal until the supplemental letter is received. Ordinance 9§-44 sets forth the procedures for the review of decisions of administrative officials, Section F of the Ordinance provides the " and appeal to the board stays all work on the premises and the proceedings in £urtherance o~ the action appealed from..." When Dr. Roberts has perfected his appeal by providing the supplemental letter (and assuming it properl~ invokes the jurisdiction of the Board) a s~o~ work order should be issued. I wil! advise you when I receive that document. cc: Carrie Parke~, City Manager Reginald 8tambaugh, Esquire Miller & Woods, 1400 Centrepark Boulevard West Palm Beach, Florida 33401 Re: it of _____ach ation g 0 Dear Rag: naraccer~zaClon o£ our telephone conversation of March 25, 1996, his letter does sufficiently set forth the nature of hi? appeal, to wit. the Pl~nn}.ng and Zonin Dlreo ~ dete~ination b the ma]or) modification. ~' --~e,,,=,t, was a mi,o= (rather than By copy of this letter, I am req~estin tha= s ~ stay and determine w~ ~--~-~- · ca .eva uate the yo~u .c~eate eminent ueri! to n~e~cn_e_~_~ ~mpos3~Lon of . ~ -~ uu znzczacea ~ediately. The next ~b~ul~ Zonzng ~ard of Ap eals ' , ~g?6, ?~ 7:00 p.m. The e esl v~]] ~.~_,,~tinq aece~znaclon ~at ~e ~1~ ~--~i.~.t~~ea co. a_rev~ew of the use your client,s ~hr ~ ~ = .... dete~l~at~ons~e sco~ of ~e appea~, ase, _.~ ~ submltt~ =o ~he ~a~d ~eyond the / /7 zOr a copy or Chapter 163 of the . of the Planntn~ and ----: .... ~, since no as ye2, I cannot provide a c~py. '~-~ng u~reccor has been issued By ~e way, ~e C~ty does not have a Board of Adjustment. AppealsB°ard Ofcreated.AdJ~stment was abolished last year and the BOa~of Zoning MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 19, 1995 Mr. Feldman said he prefers 10' ceilings for ventilation. However, in this case he went with 9'. He stated that he might ga n an additional foot if he decides to have a wooden floor rather than a concrete floor on the second floor. Mr. Davis will make that determination. Commissioner Rosen questioned whether or not an approval for drainage exists. Ms. Heyden advised that the Engineering Department has not changed its opinion and they feel the applicant meets the drainage requirements. Ms. Heyden referred to ['age 2 of Memorandum 95-325 where she summarizes the drainage issue. Mayor Pro Tern Matson disclosed that she spoke with Kathy Shabotynskyj of the Chamber of Commerce and Naomi Wilson aboutthis, project. She told them she was against this project, but had not seen the back-up material at that time. ~Jk:h,~..IJ~.r~~~, echoed the concerns of Dr. Roberts particularly with regard to the conflict with the architectural profile of the area. Attorney Cherof advised that Dr. Roberts' should be provided with an opportunity to ask Ms. Heyden a question on testimony she offered. Dr. Roberts indicated that he spoke with Mr. Hall of the Engineering Department. In his opinion, it will be impossible at permitting to comply with the drainage unless a retaining wall is built. If'the retaining walt is built, it will further encroach on the turning area or the planting area of the property. Dr. Roberts inquired whether or not this statement was correct. Ms. Heyden advised that she had never heard those remarks until this point. Dr. Roberts questioned Mr. Eichorst relative to the length of trucks that pick up recyclables. Attorney Cherof advised that Mr. Eichorst has not testified and is not subject to cross exam'nation. Commissioner Jaskiewicz confirmed with Ms. Heyden that the trucks are smaller and will be able to maneuver. ........ Dr. Roberts questioned whether or not the site plan would have to be reapproved if the drainage cannot be designed. Ms. Heyden explained that if there is a problem with the retaining wall which causes another problem on the site, a variance would be required. If the recycling truck cannot maneuver on site, a determination will be made relative to the method of garbage pickup. Motion r Vice Mayor Bra~tley moved to approve the site plan for Clear Copy subject to staff comments. Commissioner Jaskiewicz seconded the motion. II "~ Commissioner Rosen assumed that the matter of drainage was included in the motion, and Mayor Pro Tem Matson asked for confirmation that the motion includes all of Ms. Heyden's stil~ulations. Vice - BOYNTON BEACH BOULEVARD N.W. 1ST AVENUE BOYNTON BEACH BOULEVARD N.W. 1ST AVENUE - BOYNTON BEACH BOULEVARD",. N.W. 1ST AVENUE §8 4. Off-street parking areas shall be provided which adequately accommodate maximum vehicle storage demands for the proposed development and are located and designed in such a manner so as to serve the uses in the proposed development and not create incompatible visual re~a~ ~hi 5. regulations, provided as required by the city 7. Conformance with the city and county throughfare plans is required. 8. Compliance with the Palm Beach Traffic Performance Ordinance is required. D. Community services: Ail proposed developments shall be designed and located in such a manner as to ensure the adequate provision of the following community services: 1. Fire protection; 2. Police protection. sa~_ °_O .stru. ct.utes? .Ail buildings and · ~ p to De locate~ within a development shall be oriented and designed in such a enhance, rather th=- ~--~-~- ---- -~ manner as to guidelthe s~teinesand ~ts ~mmed~ate environment. Theal of Oshall be followed in the review and evaluation of all buildings and structures: 1. Proposed buildings and structures shall be related harmoniously to the terrain, other buildings and the surrounding neighborhood, and shall not create .through their location, style, color or texture · ncompatible physical or visual relationships. 2. Ail b~ildings a~d structures'.shall be des~ e oriented in a . 'gn d and ..... -: . . manner ensuring maximum privacy residential uses and related activitie~ both site being developed and adjacent propert on the 3. Ail permanent Y- outdoor identification features which are intended to call attention to a proposed development and/or structures shall be designed and located in such a manner as to be an integral part of the development. 4. Ail buildings and structures shall comply with the conm~unity design plan. F. Concurrency and level of service standards: For the ~ .. purpose of the issuance of development orders and Permits, the City of Boynton Beach has adopted level of ~ service standards for public facilities and services which include roads, sanitary sewer, solid waste, drainage, potable water, and parks and recreation. Ado~md Apr~1%, 199S, Ordinance 09~-02 use zn a co,on parKzng ~aclzz~y- among several uses of a .lesser number of parking spaces may be permitted zn accordance with ~aragraph 13 of this subsection. Jo mean a ace ~e~ 2. shall uses a. Every hospital, institution, hotel, commercial or ~induStrial building, or similar use,' requirin~ the~,reCeipt or~d±stribution by vehicle of materials or merchandise, shall have sufficienn Adopted A;r%l 4, %9~5, 0rd~anc. 05S-02 2-110 §11 perm_anentlY maintained off-street loading space so~.as~not.~to~hinder'the free mOvementof vehic£es ~r a street or~"~sidewalk. b an ea: ~e; [e K. PERMANENT RESERVATION OP SPACES. Area reserved for off-street parking-or loading, in accordance with 5he requirements of this section, shall not be reduced in area or changed to any other use unless equivalent off-street parking or loading is provided in accordance with this section. L. COMMERCIAL~ ESTABLISHMENTS ENGAGED IN T~E RETAIL SALE OF GASOLINE OR GASOLINE PRODUCTS. 1. Purpose. The purpose of these regulations is to establish development standards for co~f~ercial est'ablishments which engage in the sale of gasoline, or other motor fuels. These regulations are intended to cover businesses of any type, including convenience stores and automotive service ~ations; The.development standards established by t~is sectzon would'over[ay the development criteria ~tated in zhe · '~"zoning district in which these uses are allowed. Businesses, which enga~ mn the sale.~f gasoline or Boynton Beach, Florida Code of Ordinances ARTICLE II. REFUSE, GARBAGE AND TRASH* *Ed~t, or's note-Ord. No. 82-29, §1, enacted Sept. 21, 1982, repealed former Art. II, ¢~ 10-22--10-39, relatiVe to refuse, garbage and trash, and enacted in lieu thereof a new Art. o the same Sub'ect matter Former Art. II was derived from Code 1958, §§ pertmmng t . ~J 13 2 13-6, 13-9, 13'1I, 13-13, 13-33--13-41, and Ord. No, 80-20., § 1, adopted June _~, 1980. Sec. t0-22. City to collect and dispose of garbage; supervision; regulatory authority. All garbage and some 'trash and horticultural refuse accumulated in the city shall be collected,' conveyed and disposed of by the City under the supervision of the public Works director. The public works ~tirector sh~ll have authority ~o make adminiStrative regulations concer.ning th~ daYs of C?lleetiOn, type and location of waste c,ontainers and such other matters pertainin~ to the c~)llecti~n,', conVey~ce and diSpoSal not otherwise Set bY the':citTcommission or the citY manager'as he shall find heCeSsary,''ari}t to change and modify the same after 'notice as required by la~, provided thatsuch regulati6nsare h°t contrary to the l~mVisi0ns here0f. (Ord. No. 82-29,:~ § 1 ~ 9~21-82) '. Sec. 10-23. Definitions. For the purpose of this article, the following words and terms are defined as follows: Additional pickup means a collection of garbage, combustible trash, noncombustible.trash or yard trash required due to the inappropriate container, lack of containerization and/or size or type of material placed out for pickup: . COmmercial 'means places of business including, but not limited to hotels, motels. restaurants, offices, industries; stores and other locatiOns ~hich hold themselves out to the public as places o~' businesg or accommodations; Containers or receptacles: (1) "Noncontainerized" means the use of a standard thirty- three (33) gallon or less garbage can constructed of light gauge steel, galvanized metal or plastic with a tight-fitting lid; .such~receptacle to have two (2) handles upOn the sides thereof or a suitaNe bale by which it may be readily lifted for the purpose of easily emptying into a sanitation vehicle. ' '(2) t° city (3) "Containerized with wheels" are containers supplied by the occupants who choose 'to use them inside buildings and roll them to the designated oUtside location for pickup. Sec. 10-25. Containerized commercial and residential collection. (a) Regulations governing containerized service: (1) Containerized refuse service shall be cra, led out by the city at commercial or multifamily residential establishments in the promotion of imprOved sanitary conditions for the prevention of health hazard. Containers are supplied by and ~hall remain the property of the city. The user is responsible for the protection of 'containers placed to serve his premises. The user shall be liable to the extent of the cost of repairs or replacement of containers when damaged by fire, negligence, vandalism or other forms of abuse. (2) Free dumping access to containers at all times shall be provided by the user. All Copyright {c) 1995, American Le,qal Publishin,q Corporation 002 COMMERCIAL GEE & JENSON Engineers-Architects-Planners. ~nc One Harvard C~rc~e .. West Palm Beach, FL 33409 Telephone (407) 683-3301 Fax (407) 686.7446 March.14, 1996 ..- Ms. Tambd Heyden, Director Planning & Zoning City of Boynton Beach P.O. Box 310 Boynton Beach, FI 33425-0310 Re: Clean Copy, Inc., Site & Construction Plans Boynton Beach, Fi Dear Ms. Heyden: The site plan and construction drawings for Clea¢ Copy, Inc. located at West Boynton Beach Boulevard and N.W. 7th Street submitted to your office on March 6, 1996 and March 8, 1996 respectively, are substantially different from previously submitted plans. Among the changes made are the following: 1. Ingress ddveway to the property'has been changed from N.W. 1't. Ave. to N.W. 7th St. 2. The parking configuratiOn has completely changed. 3. The parking lot grading has changed aitedng drainage patterns and driveway slopes. 4. The site plan indicates deletion of a dumpster, however the construction drawing indicates inclusion of a dumpster. In addition to the above noted changes, the following are items of concern, particularly where variances are required: 1. There is no landscape buffer proposed at th e east side of the parking lot requiring a vadance. 2. The dimensions of the parking lot are inconsistent between the site plan and the ....... construction drawing, In either case, a vadance would be required. 3. No data was submitted indicating compliance with lighting requirements. 4. Access for emergency and service vehicles should be reviewed. City of Boynton Beach Attn: Ms. Tambri Heyden March 14, 1996 - Page 2 The above enumeration of changes and items of concem is not all inclusive, but is indicative of major plan changes which require a more in depth review than would normally be required under minor site plan change review procedures. Very truly yours, Harold T. Benoit, Jr., PE 96-105 cc: Mark Roberts, D.D.S. Reginald Stambaugh, Esq. Harvard Circle, West Palm Beach, Florida 33409 · (407) 683-3301 · Fax (407) 686-7446 PLANNING AND ZONING DEPARTMENT MEMORANDUM NO. 96-142 SITE PLAN REVIEW STAFF REPORT FOR CITY COMMISSION March 22, 1996 DESCRIPTION OF PROJECT: Project Name: Clear Copy, Inc. Applicant: Bob Feldman, Owner Agent: George C. Davis Location: Southeast corner of Boynton Beach Boulevard and N.W. 7th Street File No.: MMSP 96-03-003 Land Use Plan Designation: Local Retail Commercial (LRC) Zoning Designation: Neighborhood Commercial (C-2) Type of Use: Print shop Number of Units: N/A Square Footage: Site: 9,788 square'feet (.225 acres) Building: 3,780 square feet Surrounding Land Uses and Zoning District: Find attached Exhibit "A" - location map. North - Boynton Beach Boulevard and farther north commercial building, zoned C-2 South - N.W. 1st Avenue and farther south, single family dwellings, zoned R-lA East - Commercial building, zoned C-2 West - N.W. 7th Street and farther west commercial building, zoned C-2 Existing Site Characterietics~ The 3,780 square foot two-story building is under construction. Proposed Modification: The proposed request is to modify the previously approved parking lot to relocate one of two driveways and flip-flop a row of parking spaces with the access aisle location. Find attached Exhibit "B" - approved site plan and proposed modified site plan. The following are changes to the exterior elevations of the building that have been made or have been submitted for review since the September 19, 1995 City Commission approval of the site plan: Page 2 Memorandum No. 96-142 Site Plan Review Staff Report Clear Copy, Inc. File No. MMSP 96-03-003 i. change the color of the walls of the building from S-W BM 1-3 pink to Benjamin Moore base-2 OP-58 peach, ii. change the shape of the windows by adding a radius top, iii. added a horizontal stucco band mid height to the walls, iv. change the color of the roof tile from S- w BM 1-31 red to Adobe Copper Smooth, v. move the windows on the north elevation to the east approximately 6 feet, vi. change the swing of the door on the southeast corner of the building and vii. add decorative window sills Items ±, ii, and iii where changes made as part of building permit rectification of the comments from City Commission approval of the site plan. Items iv, v and vi are changes that have been approved administratively through the permit process, as a waiver, and item vii is currently in permit review pending Commission determination of their legislative intent regarding house eaves. Concurrency: Traffic - As requested by Palm Beach County Traffic Division, the applicant filed a restrictive covenant that limits the use of the structure to a print shop, unless further reviewed for traffic by the County. Drainage - Drainage information has been submitted to the Engineering Division. The city engineer is awaiting certification from the applicant that the drainage meets code. Drivew&ys, Two, one-way driveways to the parking lot are proposed. Both driveways are located on N.W. 7th Street. The south driveway is ingress only and the north driveway is egress only. Parking Facility: The proposed parking facility contains the required thirteen (13) parking spaces, including one (1) handicapped space. As previously approved, curb pick-up is the method refuse and recyclable material will be collected. Landscaping: Following compliance with staff comments, the proposed development will comply with the minimum landscaping required by code. The applicant has agreed to dedicate to the city area in the southwest corner of the site to construct the required sidewalk in the city right-of-way. Page 3 Memorandum No. 96-142 Site Plan Review Staff Report Clear Copy, Inc. File No. MMSP 96-03-003 Building and Site Re~ulations: The proposed development meets the requirements of the building and site regulations. Total site area is 9,788 square feet, building coverage is thirty- seven percent (37%) and the building height is twenty-five (25) feet. Com~unity Design Plan: As a condition of site plan approval the proposed two-story stucco building will be a peach color with white trim. Si~nage: A free standing sign is proposed between Boynton Beach Boulevard and the front of the building. The free standing sign is under construction. RECOMMENDATION: The Planning and Zoning Department has granted approval of this site plan modification request, subject to the comments included in Exhibit "C" - Administrative Conditions. Deficiencies identified in this exhibit shall be corrected on the set of plans submitted for building permit. Commission ratification Of this action is recommended. MEH: dim xc: Central File a: STFFRFll~4. CLE EXHIBIT I! A !! LOCATION MAP CLEAR COPY, INC. , / / I::IIA A r r-rTl- BI:lIGHT EXHIBIT "C" Administrative Conditions Project name: Clear Copy, Inc. File number: MMSP 96-03-003 Reference: One (1) sheet, ST-l, prepared by Georqe C Davis, Architect (as revi~ed March 5, 1996) and two (2) sheets prepared - ..... ~ .... , ~eal~d and date~ IDEPARTMENTS I INCnUDE I REJECT PUBLIC WORKS ' 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 Department criteria. FIRE 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 thehandicap Space. ENGINEERING DIVISION Comments: 4. Certification by the applicant's design professional that the work, when completed, will conform with all codes, ordinances, rules, regulations, 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 small portion of sidewalk infringing on southwest corner of site. BUILDING DIvISiO~ Comments: 8. Provide .Building Division with a copy of the final approved plans to be incorporated with the construction plans. PARKS AND RECREATION Comments: NONE FORESTER/ENVIRONMENTALiST Comments: NONE Comments: 9. Show, dimension and label on the site~landscape.plan the line-of-site triangles requlred at the intersection of N.~. Ist Avenue and N.W.' 7th Street, and both sides of each ingress/egress driveway located on N.~. 7th street. Add a typical note to the Plan that indicates the andscap!1ng~wlthIn the line-?f-sight triangles between thirty (30) inches and six (i6): feet in height shall be maintained tolallow an ~nobstructed cross visibility. Also, show on the site~landscape plan the zoning code visuai obstruction safe sight corner. [LDRi, chapter 7.5, Article II - LandScape COde, Section 5 H and Chapter 2 , Zoning, Section 4 E]. 10. Identify ~on!the site/landscape plan the loc~tion of the raised curb equ!red to protect the landscaping. [L~R, Chapter 23 - Parking Lots, Article I!I, E]. 11. On the sit~/landscape plan identify the specie, spacing and height of the landscaping shown. All landscaping shall b~ i~entified consistent with the specifications of the landscape code. Note: One-half of the total number ?f trees and hedges shall be identified as a native specie. [LDR, ChaPter 7.~, Article II - Landscape Cod~ iSection 5 C, D, E, and ComprehenSive Plan P61icy 4.4.6]. 12. Specify on the Site/landscape plan that the grade of the landscape material lis Florida #1 or better, that the landscape material will be installed, in a sound workmanlike manner and that the material will be irrigated with an automatic water sup~iy system. [LDR, Chapter 7.5, Ar%icle II - LandscaPe Code,.Section 5 A, B, C, and Comprehensive Plan Policy 4.4.6]. 13. Specify on the site/landscape plan the specie of lawn grass and 'the method of installation. [LDR, Chapter~7.5, Article II - Landscape Code, Section 5 C ~']. 14. Add to the site/landscape plan the existing lane striping within the N.W. 7th' Street right-of-way directly west of the site. Page 2 of 3 DEPARTMENTS INCLUDE RE ECT 15. TO conform to accepted practices amend the configuration=and horizontal d' ' control lmenslons of the landscape strips and parking lot shown on the sheet dentlfied Development Plan (prepared by H. Burton Smith, P.E.) to match sheet ST-1 (Site/Landscape Plan -p~Pared by George Davis, ArChiteCt). 16. PLace a note on site/landscape plan that indlcates t~e refuse and recyclable material generated at the sit~ will be Collected via curb pickup Recommendation (s): 17. It is recommended that the oversized p rklng s~ace located directly west of ~he building be reduced to meet minimum standards. This change would allow the slope of the driveway to h~ve a smoother transition from the right-of-way into the site. 18. To clarify the request, it is recommended that a distinguishable symbol (cloud)be used to identify the areas of the site/landscape plan that re being revised from the original perimit plans #!95-4541. TJH:dim a: ComDept. Cle Page 3 of 3 PLANNING AND ZONING DEPARTMENT MEMORANDUM NO. 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 intent for commercial building overhangs as it relates to the pending RMS Corporation v. City of Boynton Beach case. INTRODUCTION On September 19, 1995, the City Commission approved, subject to comments, the site plan request for Clear Copy; a new print shop to be located at the southeast corner of Boynton Beach Boulevard and N.W. 7th Street (660 W. Boynton Beach Boulevard) - see attached Planning and Zoning Department Memorandum No. 96-142 - Exhibit A for location map. RHS Corporation subsequently filed a Notice of Administrative Appeal to appeal through the circuit court s s th~ City s de~ision to approve Clear Conv's site ~1 ...... y tem ana occu ies the a ' . .=~ ~ ~. ~ owns P button9 property ~mmed~ately east 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 construction 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 department that the applicant for Clear Copy had submitted, through permitting and in response to Mr. Hukill's request for a code compliance certification, a site plan drawing showing several modifications to the permit that had been previously approved for Clear Copy's site improvements. For expediency and simplification, all applicants are allowed to submit modifications directly through the permitting application process for determination of minor 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 Planning and Zoning Department staff). Since the development is the subject of pending litigation, city policy requires staff to notify the legal department of any actions related to pending litigation. Such notification occurred and on March 4, 1996, the legal department advised staff of the following: a) that the City Commission be apprised, expeditiously (at their nexu available meeting), of the minor s~te 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 at their March 19, 1996 meeting. On or about March 5, 1996, the legal department notified the RHS Corporation that the minor site plan modification would be discussed at the March 19th Commission meeting. In addition, copies of this memorandum will be provided to the RHS Corporation, specifically Dr. Mark E. Roberts, today, after transmittal of this memorandum to you. It is the Planning and Zoning Department,s responsibility to determine which departments review minor site plan modifications and to inform the applicant of-the completeness of his submittal. After receipt of engineeringplans to accompany the modified site plan received, staff distributed the submittal to the Technical Review Committ~ (TRC) and ' the request on the agenda of meet~ (March 12, 1996). It is noted that standard method fo: obtaining comments from designated TRC for minor site plan modifications is by telephone request 'to )lans held in the Building Division. However, the was usedlin this case due to the to more quickly and effectively assemble the attached materil the March 19th Commission meeting. The modifications are described in the attached Planning and Zoning Department Memorandum #96-142 and are illustrated in the attached copy of the modified site plan (Planning and Zoning Department Memorandum #96-142 Exhibit B). After comparison with the September 1995 approved site plan (copy provided in attached Planning and Zoning Department Memorandum #96-142 - Exhibit B), these modification~ have beenldetermined to be minor in nature and can, therefore, be app] ~ively through the permit process. For cleare] understanding of the modifications requested, the original .an staff report has been attached and revised to reflect the Also attached in Planning and Zoning Department Memorandum 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 Be Development Regulations (Part III of the each ~dinances) used to determine the processing of a approved site plan are provided below. Followi~ staff's conclusion is included and appears in "Section 9. Modification of approved site plan. C. In making a minor/major modification determination, the planning and zoning director shall consider the following: 1. Does the modification increase the buildable square footage of the development by more than five (5) percent.,, [No change in the size of the building is requested.] 2. "Does the modification reduce the provided number of parking spaces below the required number of parking spaces.,, [No change in the number of parking spaces is requested.] 3. "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 Development Regulations.,, [The modification does not change, and continues to meet, the C-3 zoning district development standards (building and site regulations). In addition, compliance with the attached staff comments will ensure that all safety and technical concerns, as well as code requirements, have been addressed.] TO: Carrie Parker -3- March 15, 1996 4. "Does the modification have an adverse effect on adjacent or nearby property or reduce required physical buffers, such as fences, trees, or ~ hedges. ,, [The modifications include replacement of the N.W. 1st Avenue ingress only driveway 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 to the parking spaces, switching of the handicapped space location, addition of window sills to the bu .ding exterior. The ~- building es not lessen the appearance of t In fa¢~, the change lends & more to the building, making it more the exterior appearance of adjacent driveway change meets .code locational requ and does not negatively affect ad les. The~ parking lot "flip- flop" and change are internal to the devel, no negative impact (virtual ly no impact at all) on adjacent properties; nor do they diminish the function of - - the parking lot. With regard to reduction of physical buffers, the modifications do not diminish the degree of buffering afforded by the September 1995 approved site plan. No change in the landscaping proposed as part of the original site plan approval for the area between the Clear Copy .parking lot and Dr. Roberts' parking lot is requested, consistent with the September 19, 1995 city determination that this landscape buffer is acceptable. ] -' 5. "Does the modification adversely affect the elevation design of the structure below the standards stated in the community design plan." [The modification to the elevation design of the structure meets the community design plan and as stated in criterion 4 above, the building exterior ..... modification does not lessen the appearance of the building. In fact, the change lends a more finished look to the building, making it even more compatible with the exterior appearance of adjacent buildings. ] 6. "Does the modified development meet the concurrency requirements of the Boynton Beach Comprehensive Plan." [The modifications have no impact on the previously granted concurrency certification.] 7. "Does the modification alter the site layout so that the modified site plan does not resemble the. approved site plan." [This criterion grants a certain degree of staff authority and requires application of judgement and common m~nse to assess the magnitude of change. Consistent application of this criterion is apparent through the. quarterly reporting to the Commission of site plan waivers and minor modifications processed by the department. When 'magnitude of change and similarity, or lack thereof, is. evaluated between the approved site plan and the modification, the following comparisons are noted: a) no change in building location; TO: Carrie Parker -4- March IS, 1996 b) same building to parking relationship _ building in front, 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 in same general location and method 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 structures) is virtually unchanged. h) building height, style, type and use are unchanged; and i) utility service modifications are to the extent that they have no effect on other site improvements. Therefore, based on the above evaluation, staff concluded that the changes requested constitute a minor site plan modification and meet the following definition of minor modification: "a non- impacting 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 impact when viewed.from a public right-of-way as determined by the planning and zoning director,,. In addition to ratification of staff's action on the modified site plan, the legal department advised that staff seek from the Commission a determination of their legislative intent when adopting the following section of the city's zoning code: Section 4. General Provisions. J. Other Structures. The following structures shall be permitted in front, rear or side setbacks as provided in this ordinance, in any zone, except where so noted; taking into consideration existing easements: 3. House eaves shall not overhang or exceed the setback lines for more than two (2) feet. Specifically the question is whether commercial buildings are. allowed to overhang into setbacks, so long as the o~erhang does not 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 overhangs, which include building surface treatments, as well as window sills and cornices, have been reported to range from one inch to six inches. .... This determination is necessary because the tie-in survey submitted for the Clear Copy building indicates a 10 inch overhang into the front (north) and east side setbacks. Clear Copy's window sills, plaster, raised stucco bands and the cornice extend beyond the TO: Carrie Parker -5- March 15, 1996 setback by three inches, 1 1/4 inches and 10 inches respectively. The window sills were not part of the original approval and the cornice was extended a greater distance than originally planned in order to add roof ventilation; a design detail that is not considered until the construction drawing stage - after time of site plan approval. CONCLUSION In conclusion, two actions are requested by the Commission as follows: a) ratification of staff's action to process the submitted modifications as a minor site plan modification and b) a determination as to whether the Commission,s action when approving the zoning code included various commercial building features to be treated as house eaves, thereby permitting such features on commercial buildings to extend into the setback by no more than two feet. tjh Attachments xc: Central File C:ClrCopy EXCERPT OF MINUTES OF THE REGULAR CITY COMMISSION MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, 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 approved a site plan submitted by Clear Copy. An adjacent property owner, Dr. Mark Roberts, appealed ..... the Commission's approval of the site plan and raised a number of technical issues with respect to compliance with the Code. That matter is still pending. A few weeks ago, Clear Copy indicated that they wished to submit a modified site plan. There is a specific procedure set forth in Chapter 4 of the Land Development Regulations (Section 9) that deals with how the City evaluates a request for modification of a site plan. It either makes a determination that it is a minor modification, which is handled administratively, or it makes a determination that it is a major modification, in which case it is treated as an original site plan. Under the terms of our Code, the determination of whether it is minor or major modification is left to the discretion of the Planning and Zoning Director. In the backup, there is an analysis made by the Planning and Zoning Director, and the conclusion r - that this is a minor modification of the site plan and it is to proceed administratively. The reason this is before the Commission is because the matter is pending in the Courts on appeal, and the adjacent property owner, through his attorney, made a request that if there was to be a determination of a minor versus major modification, that they have the opportunity to come before the Commission in a public fashion and state their opinion and have the opportunity to express their opinion to the Commission, perhaps to persuade the Commission that staff had made the wrong determination in that regard. Additionally, there was an issue with respect to interpretation of the Code, which is usually not a matter left to the discretion of the Commission..Rather, the interpretation of the - ¢~ ..... Zoning Code is left to the Planning and Zoning Director. That involves an interpretation of Chapter 2, Section 4, Subsection J of the Code, which provides with respect to structures that house eaves shall not overhang or exceed the setback lines for more than two feet. The beginning part of that section indicates that they are talking about structures in all zoning districts, not specifically residential. Therefore, we construe the words "house eaves" to mean structure eaves. In fact, Tambri Heyden or William Hukill will explain that that interpretation has been consistently applied, or at least applied to some degree, by the Building and Zoning Departments from time to time to include all structures, not simply residential or house structures. City Attorney Cherof stated that this matter should be treated as a quasi-judicial proceeding. At the conclusion of the presentation, all that the Commission is asked to do EXCERPT OF CITY COMMISSION MEETING - 3/19/96 2 RE: CLEAR COPY is to acknowledge and ratify or endorse the interpretation by Tambri Heyd'en, or if the Commission does not agree that the interpretation is correct, to direct her to reconsider it. Additionally, with regard to the interpretation of the section of the Code that City Attorney Cherof described regarding the eaves overhanging the setback lines, if the Commission does not agree with his interpretation, he should be directed to provide an amendment to the Code to clarify that. At this time, all those who intended to testify this evening were ?.. sworn by City Attorney Cherof. Ms. Heyden stated that she has been a municipal planner for over ten years. Prior to coming to the City of Boynton Beach in 1987, she was a planner for the City of Williamsburg, Virginia. She reviewed Section 9 of the City Site Plan Review Ordinance. She said there are seven criteria that are spelled out in the Code that are used as guidelines in :making that determination. Using the overhead projector, she displayed an overlay of the site plan that was approved in September of 1995. She reviewed each criterion and compared the two site plans to show how she came up with this determination. In making a minor/major modification determination, the planning and zoning director shall consider the following: 1. Does the modification increase the buildable square footage of the development by more than 5 percent? Ms. Heyden displayed the approved site plan and stated that there are two driveways that were proposed (one an ingress only and one an egress only). The egress only was on 7th Street. She pointed out the location of the building. It faces Boynton Beach Boulevard. The square footage of the building has not changed. The parking that is provided is .... exactly what is required by Code. There are no surplus'parking spaces. 2. Does the modification reduce the provided number of parking spaces below the required number of parking spaces? Ms. Heyden advised that there are no changes in the number of parking spaces; just the location of the parking spaces. 3. 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 Development Regulations? Ms. Heyden stated that this modification does not change, and continues to meet, the C-3 zoning regulations (the building and site regulations). She provided the staff comments t, hat have been generated on this request, and she used the Technical Review Committee EXCERPT OF CITY COMMISSION MEETING - 3/19/96 3 RE: CLEAR COPY form to generate these comments, which is unusual. However, in light of the pending litigation, this was th e quickest and most effective way of obtaining those comments for the Commission this evening. Once compliance with those staff comments has occurred, this will ensure that all safety and technical concerns, as well as the Code requirements, have been met. 4. Does the modification have an adverse effect on adjacent or nearby property, or reduce required physical buffers such as fences, trees, or hedges? Ms. Heyden stated that the modifications include replacement of the N.W. 1st Avenue ingress only ddveway for a N.W. 7th Street ingress only driveway. Instead of one driveway onto 7th Street and one driveway onto 1st Street, there is an ingress only driveway onto 7th Street and.an egress only driveway onto 7th Street. Therefore, both driveways are now on 7th Street. (There was a change in the driveway locations.) There has also been a flip-flop of the location of the row of parking spaces with the access aisle to the spaces. The access aisle was on the east side, and the parking spaces were on the west side. They have now been reversed. There has also been a switch of the handicap space location, and window sills have been added to the building exterior. Regular parking spaces have been switched as well. The driveway change meets the Iocational requirements of the Code, and does not negatively affect adjacent properties. Th e changes to the parking lot and handicap space are internal to the development and have no affect at all on the adjacent properties. With regard to reduction of physical buffers, this is consistent with the September approval wherein the City Commission determined that the existing landscape buffer between Dr. Roberts' property and the Clear Copy property was acceptable. 5. Does the modification adversely affect the elevation design of the structure below the standards stated in the Community Design Plan? Ms. Heyden advised that the windowsills are consistent with the Community Design Plan. In fact; she felt they enhance the elevation design. 6. Does the modified development meet the concurrency requirements of the Boynton Beach Comprehensive Plan? Ms. Heyden advised that the modifications have no impact at all on the previously granted concurrency certification. EXCERPT OF CITY COMMISSION MEETING - 3/19/96 4 RE: CLEAR COPY 7. Does the modification alter the site layout so that the modified Site plan does not resemble the approved site plan? Ms. Heyden said this really boils down to assessing magnitude of change, and the Department has consistently applied this criterion, as evidenced through its quarterly reporting to the Commission. Ms. Heyden stated that when you compare the original site plan with the modified site plan, you will notice the following: · There has been no change in the building location. · The same building to parking relationship occurs. (The building is still in the front, and the parking is still in the rear.) · There has been one change in the number of driveways or type of driveways (two-way versus one-way and ingress versus egress). · The service areas are in the same general location and the method of refuse .... collection has also not changed. We are continuing to allow curbside pickup for the trash as well as the recyclables. · The degree, quality, quantity, and location of landscaping has not been changed. · The type of parking spaces (90 degree, angle, parallel) has not been changed. · The location of impervious areas (parking lot, sidewalks, structures) has virtually not changed. · The building height, style, type, and use have not changed. · The utility service modification is to the extent that it has no effect on other site improvements. In addition to ratification of her determination of minor-modification, she sought a determination from the Commission regarding the legislative intent when the house eave section of the Zoning Code was adopted. She asked if it was the intent to allow this section to apply to commercial buildings. Historically, overhangs on commercial buildings, if they are detected at the inspection stage, have been allowed and have ranged between one inch and four inches. They have included such things as the stucco on the buildings that adds a little volume or depth to the exterior, windowsills, and cornices. The Clear Copy building's windowsills, cornices, and stucco extend beyond the setback ...... ~ lines on the north, which is the front, and also the side property line on the east. Her report indicated three inches, one and a quarter inches, and ten inches, respectively. However, the applicant has submitted a package to the City Commission this evening. This package shows some photographs and drawings of the overhang. There is a little confusion about what the maximum encroachment or overhang is, ten inches or six inches. On the permit EXCERPT OF CITY COMMISSION MEETING - 3/19/96 5 RE: CLEAR COPY plans, the section drawing was labeled a ten inch overhang. When we scaled it, it showed six inches. She believes Mr. Feldman is going to tell the Commission tonight that it is approximately four inches. Ms, Heyden requested ratification of the minor modification determination, and a determination of the Commission's legislative intent on the house overhang application. Vice Mayor Jaskiewicz asked if there are any other buildings in the area that have a similar overhang. Ms. Heyden advised that the adjacent building has a similar overhang situation for gutters. It seemed to Bob Feldman, the co-owner of Clear Copy, that Dr. Roberts brings up minute things and makes them major. He reiterated that the original agreement showed a ten inch overhang. He measured the overhang, and it is six inches. With regard to the parking lot, the handicap spot was too much of a slope at that point. For safety purposes, it was flip- flopped back to make it a little more accessible. With regard to the color of the building, Mr. Feldman stated that a tangerine color was approved by the City Commission. However, after the building was painted, it looked a little more pink than tangerine. He is currently trying to get that toned down a little. With regard to the color of the windows, they were painted bronze because the windows on Dr. Roberts' property, Wendy's, etc., were bronze. He later found out that they are supposed to be white. He has a choice to paint them white, which he feels will peel off in six months because the windows are metal. He has bent over backwards since day one to meet City Code. Even though staff determined this to be a minor modification which could be ~andled administratively, it is before the Commission because of Dr. Roberts. He has been here 21 years. The City has been excellent to him, but becauSe of litigation involving Dr. Roberts, we are going back and forth on every little item. Mr. Feldman said he will do whatever the City wants him to do. He said he originally wanted a flat roof. There woUld have been no overhang at all. However, the City ~quired an S-tile roof. Therefore, it ~l~as to hang over a little. Reginald Stambaugh of Miller and Woods, the attorney representing Dr. Mark Roberts, advised that Dr. Roberts asked him and his mother, Commissioner Carol Roberts, to speak on his behalf. He said Dr. Roberts could not attend this meeting because he was only notified of this minor modification on Friday and already scheduled an appointment out of State. Mr. Stambaugh said practically everything that could be changed was changed, except the building itself. He said this is a major modification. He did not think there was good enough notice for him to be prepared to address everything as it has been presented. He said all we are trying to do is folloW the Land Development Regulations. He introduced Commissioner Roberts. Mayor Taylor welcomed County Commissioner Roberts to Boynton Beach. Commissioner Roberts read a letter, dated March 19, 1996, from Mark E. Roberts, D.D.S. to Mayor Taylor EXCERPT OF CITY COMMISSION MEETING - 3/19/96 6 RE: CLEAR COPY and Commissioners. In this letter, Dr. Roberts states that he believes this is a major site plan modification. A copy of this letter is attached to these minutes. Mr. Stambaugh focused on the key points in this letter which he believes would persuade the Commission to ask staff to reconsider its determination of a minor modification. Mr. Stambaugh said proper procedure is not being followed in this case. He said if we are not .going to follow the Land Development Regulations, then we should not have them. The purpose of the Land Development Regulations is to deal effectively with future problems which may occur asa result of the use and development of land. In the instant case, we are finding that there are problems being created. We are not following the purpose in this instance. Mr. Stambaugh reread the portion of Dr. Roberts' letter which lists the ways in which the new site plan alters the approved site plan so that it does not resemble the approved site plan. He stated that the new plans show the need for a land dedication to the City. He asked if the City staff, by mere determination of a minor modification site approval, is approving the City's acceptance of a land dedication. He asked if the City Commission allows this. He said this is a major modification. He stated that two other points have not been remedied with .this new modification, They are as follows: 1. The fire truck cannot legally access the property. LDR requires safe and efficient access to be provided for emergency and service vehicles to this property. This standard has been required of all commercial developments in the past. 2. City ordinances governing garbage pickup require containerized garbage pickup. There is a requirement for containerized receptacles for commercial properties. Section 10-25 states as follows: "Containerized refuse service shall be carried out by the city at commercial or multifamily residential establishments in the promotion of improved sanitary conditions .... " Mr. Stambaugh said there is no more containerized commercial collection. Mr. Stambaugh stated that there has not been an environmental review. Section 11.3 of the Code states as follows:" in all cases approval of the environmental review permit shall precede approval of the site plan." Mr. Stambaugh advised that the new plan has not submitted the required irrigation plan. He was in possession of a report from Gee & Jensen stating that Chapter 481.321 of the Florida Statutes requires that a licensed landscape architect prepare and sign all landscape plans unless for a single-family home. The landscape plan was submitted by EXCERPT OF CITY COMMISSION MEETING - 3/19/96 7 RE: CLEAR COPY an architect and this is contrary to State law. Therefore, the required landscape design is incomplete. In Gee & Jensen's March 14, 1996 letter to Ms. Heyden, it states as follows: · There is no landscape buffer proposed at the east side of the parking lot requiring a variance. · The dimensions of the parking lot are inconsistent between the site plan and the construction drawing. In either case, a variance would be required. · These changes are indicative of major plan changes. Mr. Stambaugh read Dr. Roberts' March 19, 1996 letter addressed to Mayor Taylor and the Commissioners regarding determination of the legislative intent of the zoning code. A copy of this letter is attachea to these minutes. Mr. Stambaugh advised that Dr. Roberts wants City staff to take a close look at the Code and comply. Mr. Stambaugh focused on the following three criteria when determining if a modification is minor or major: 1. 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 Development Regulations? Mr. Stambaugh stated that we already have gone over some of the below standard requirements. It does not meet the Code sections. 2. Does the modification have an adverse effect on adjacent or nearby property. or reduce required physical buffers, such as fences, trees, or hedges? Mr. Stambaugh stated that there is no buffer. Therefore, a problem exists. 3. Does the modification alter the site layout so that the modified site plan does not resemble the approved site plan? Mr. Stambaugh referred to the changes in the parking and access, and the land dedication to the City without Commission approval. He requested that the Commission deem this to be a major modification. Ms. Heyden advised that many of the changes that Mr. Stambaugh mentioned this evening were necessary to meet the staff Conditions of the original approval. Nine times out of ten, when you approve a site plan, the site plan that gets submitted as part of permitting, approved subject to staff comments, does not look like the approved site plan. That in and of itself does not constitute a minor site plan modification. The site plan was approved EXCERPT OF CITY COMMISSION MEETING - 3/19/96 8 RE: CLEAR COPY subject to staff comments, which included the change in the dumpster to can pickup. Light pole changes oftentimes change between site plan approval and permit review because the p. hoto cell Ilumination plans are not required until time of permitting. Oftentimes that requires some adjustment in the light pole locations. The buffer between Dr. Roberts' property and this property continues to be the same buffer design that was approved as part of the original approval, which was knowing that the width of the ~ landscape strip was less than two and a half feet. The loading zone was barely shifted in an east~west ~Jirection, but' is basically in the same location. This is a very insignificant change.: The driveway has changed from 15 feet to 12 feet. This still meets Code and is a very ~n,~ificant change. Cans are considered containerized pickup. An environmental approved, subject to certain conditions. The conditions and the permit occupational license being issued. Irrigation plans are They are required as part of the permit review. In ~n. partme~t informed her that ti~ey had notified cot on March 5th that this was considered a minor before the City Commission on March 19th. Commissioner Bradley inquired about the land dedication and the fire trucks. William Hukill, ,ctor of Development, pointed out the land dedication. Sometime in the past, becau,, ~he vehicular {raffic or~ 7th coming from the fence company on the other side of the tracks, the radius was made larger~ As a result, there is a 21" triangular piece of lan together. This has to either be dedicated to the City to m~ perty, or an easement or waiver has to be granted. With regard to access, Ms. Heyden said the Fire Department feels they have adequate ability to access this property for fire protection. ...... With regard to accepting a piece of property of any size on beh all of the City Commission and City, Mr. Stambaugh asked Ms. Heyden if she takes this lightly. Ms. Heyden stated that that method of resolving that issue was not reviewed by her department. She felt it would be appropriate~to address this question to the Building Department. M r. Stambaugh asked the same question of Mr. Hukill. Mr. Hukill indicated that he does not take this lightly. Mr. Stambaugh felt the City Commission should make the decision regarding the donation of land, no matter what the size of the property. Mr. Stambaugh asked for the Code Section that deals with trash cans/containers. Ms. Heyden did not have a Code book in front of her. She stated that the City allows can pickup as well as dumpsters for traSh collection. Mr. Stambaugh felt you need to take extra care with commercial properties. He said the Code spells out what a container is, and he left it to City Commission to make that determination. Section 10-25 states as follows: "Containerized refuse service shall be carried out by the city at commercial or multifamily residential establishments .... "Mr. Stambaugh said there is a contrast between 10-25 and EXCERPT OF CITY COMMISSION MEETING - 3/19/96 9 RE: CLEAR COPY 10-24 (residential noncontainerized collection), which appears to be regular garbage collection. With regard to the buffer zone, Mr. Stambaugh said just because the Code was not in compliance the first time, does not mean that it should not be in compliance the second time under an application for modification. Mr. Stambaugh requested the Commission to follow the Code and consider this a major modification. Ms. Heyden said the Commission has previously approved, in special cases, under certain circumstances, can pickup for commercial properties. Also, we have followed the Code, and by allowing this minor site plan modification in no way jeopardizes anything in the Land Development Regulations. Over the past five years, we have been very consistent in applying what is a minor modification and what is a major modification. This is nothing more than we have ~lone in the past. Mr. Stambaugh stated that the Land Development Regulations spell out everything. City staff was supplied with Gee & Jenson's reports. If the City Commission does not feel that they have done any wrong, we are going to have to let the Courts decide this matter. City Attorney Cherof stated that Mr. Stambaugh has invited th e Commission to substitute its opinion for the opinion of the Planning and Zoning Director, and to make a determination that this is a major site plan modification. That would be in violation of the Code. One of the provisions of the Code gives the Planning and Zoning Director the discretion to interpret the Code. There is recourse to Dr. Roberts through the Code as well. There is a provision in the Code that states that if any aggrieved party does not like the interpretation of the Planning and Zoning Director on any issue, that they have recourse to the Board of Zoning Appeals. Th e aggrieved party may obtain a reversal from the Board of Zoning Appeals of the interpretation of the Code by the Planning and Zoning Director. The Code does not always address each and every issue specifically on point. That is why the Planning and Zoning Director has the power to make interpretation. The Commission does not have the power to override the opinion of the Planning and Zoning Director in interpreting the Code. The matter is before the Commission to listen to all of this and suggest to the Planning and Zoning Director that she may want to reconsider it, but the~Commission cannot require her to do that and cannot override her. With respect to the other issue regarding the interpretation of the overhang issue, City Attorney Cherof said that is an interpretation that staff has made. The same recourse is available to Dr. Roberts if he does not agree that that is the proper interpretation of the Code by the paid professional administrators of the Code. Dr. Roberts has recourse to the Board of Zoning Appeals. City Attorney Cherof stated that they are wrong with respect to telling you that their recourse is to the court. There is an administrative remedy available to them. It is built into the Code to specifically avoid putting people in the position where EXCERPT OF CITY COMMISSION MEETING - 3/19/96 10 RE: CLEAR COPY they have to go to court to make their points of interpretation known to the advisory boards then to the Commission. He suggested that if the Commission believes the Planning and Zoning Director has made the proper interpretation, or wishes not to interfere with that interpretation be it correct or incorrect, the Commission needs do nothing. The Commission can simply ratify her interpretation. With respect to the overhang issue, City Attorney Cherof stated that the only reason that is before the Commission is if the Commission does not believe that staff has been properly interpreting that in applying it to commercial properties, the Commission needs to tell him so that he can clarify that provision of the COde. Commissioner Bradley asked if the ratification is accomplished through silence or through a motion. City Attorney Cherof said it could be by either. Mr. Stambaugh had a difference of legal opinion on the interpretation of that clause. He believes a ratification constitutes an action by the City Commission which would essentially override any of the actions which the administration or City staff would be making. He said if this process is going to go through as a minor modification, then it should be treated as a minor modification. City Attorney Cherof took it from this~ comment that Mr. Stambaugh is asking the Commission not to take any action. Mr. Stambaugh said we have had an opportunity to speak on this issue, and we are requesting that the City Commission take the action of deeming this a major modification. City Attorney Cherof advised the City Commission that it does not have the power to do that. George Wasser, a practicing architect for 33 years, State Threshold Inspector, and Licensed General Contractor in the State of Florida, has been a resident here and in operation here for about 23 years. He stated that he was called in some time ago as a consultant for Clear Copy, to review some of the comments, look at the property, and see if there was anything of merit in these complaints, He checked the property and made a few recommendations. Later,: he found out that the City had already made those comments. Mr. Wasser found the items that Mr. Stambaugh brought up to be the same kind of rhetoric that he read in Gee & Jonson's report. He said it ignores a lot of things. There is simple, logical reasoning behind all of the City comments and approvals. In his experience as a professional, he totally agreed with the Building Department and the Planning Department. He also agreed with City Attorney Cherof that there is a discretion involved in everything, and not everything is definable. That is why we have staff to interpret and enforce the intent of the Code. He believes that has been done here. Ciro Gomez, President of Ciro Gomez Inc., is a general contractor. He had the opportunity to build Dr. Roberts' building, and found the City to be very cooperative. He said he was sure that if he was to go back and review Dr. Roberts' building and found that one of the setbacks was 15 feet, that he would have to shave off all the stucco because at the time when the surveys were done to determine setback requirements, only cement block is up, EXCERPT OF CITY COMMISSION MEETING - 3/19/96 11 RE: CLEAR COPY not stucco, bands, or any other exteriOr applications to enhance the building. He also said that an eave to him, as a builder and professional, is a projection from a bUilding that will protect you from sun or rain, or could possibly be enclosed and enlarge the area of the building without getting a building permit. He said what we have here is something that was done within the original scale dimension by City staff and it was reduced by 40 percent and stil/accommodates a requirement of cross ventilation for this particular building. He has the task of building this building, but needs some direction. The eave was built. His trusses and overhangs were inspected and passed, it was not until an objection was raised in regard to the eaVes that he was given a red tag. The projection from the stucco band out is only two inches to accommodate this particular screen venting. We are not look annot see them later trying to enclose underneath that eave. the color of the windows, the intent was to maintain a more bt Bronzed window frames would enhance the Vice Mayor Jaskiewicz stated that the word "house" in Section 4 seems to be causing a problem. She suggested changing that word to "building" to avoid any misinterpretation in the future. Mayor Taylor said this is about the third time he has been through this matter in detail, and he did not hear much that he had not heard previously. He said he has considered every single one of these comments over and over again. He felt the Commission addressed them adequately. He did not think anybody ever took it trivial. He felt staff were perfectionists. He respected Dr. Roberts' opinion. He felt that staff has addressed many of the items that Dr. Roberts had brought up. He felt a lot has been done to address some of Dr. Roberts' concerns. He said Dr. Roberts' made it clear the very first time he appeared before-the Commission that he did not want this building to go up under any ..... circumstances. Mayor Taylor was comfortable with staff's recommendation. He 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 determination of minor site plan modification in this site plan review, Commissioner Tillman seconded the motion, which carried 5-0. The legislative intent of the house eaves was addressed next. Mayor Taylor and City ~ ...~... Attorney Cherof felt this section of the Code was clear. EXCERPT OF CITY COMMISSION MEETING - 3/19/96 12 RE: CLEAR COPY However, to avoid any misinterpretation or confusion in the future, there was a consensus of the Commission that the verbiage be changed. City'Attorney Cherof will rework that section of the Code with staff. VERBATIM EXCERPT OF CITY COMMISSION MEETING HELD ON MARCH 19, 1996 ITEM X.D.3 (MINOR SITE PLAN MODIFICATION FOR CLEAR COPY) Heyden: Tambri Heyden, City's Planning and Zoning Director. I have been a municipal planner for over ten years now, and prior to coming to the City of Boynton Beach in 1987, I was a planner for the City of Williamsburg, Virginia. As Mr. Cherof stated, we're looking for two actions on behalf of the City Commiss on tonight, and the first is ratification of a determination I made regarding the modification that was submitted that this modification constitutes a minor change. So I'd like to go over the section ~'~' that Mr. Cherof referenced, which is Section 9 of the City Site Plan Review Ordinance, and there are seven criteria that are .spelled out in the Code that guide in m!aking that determination, and I'd also like to show you an ~roved in September of 1995, and I realize: So I'd like to go you so you can The first criteriOn is, odification determination, the plan g: The first square footage .... of the ( This is the approved site plan, but basically there are two driveways y; one an 'nton egress only, 1st. This is the Beach ulevard. The square location The parking and, the parking that,s are no surplus ,, access isle on this s on the west side. As I m the building, and the number of secon~ ;s? And as with parking spaces; )n is: Does the just development or other applicable This modification does not( regulations, and that is speci ition, I provided in your on this request, to '- - but in light of the gen and mo way of Verbatim Excerpt 2 Clear Copy obtaining those comments for you tonight. Once compliance with those staff comments has occurred, this will ensure that all safety and technical concerns, as well as the Code requirements, have been met. The fourth criterion is: Does the modification have an adverse effect on adjacent or nearby property, or reduce required physical buffers such as fences, trees, or hedges? The modifications include replacement of the N.W. 1st Avenue ingress only driveway for a N.W. 7th Street ingress only driveway. And let me show you that overlay. Okay, so what's happened is now instead of only one driveway onto 7th, one driveway onto 1st, we have an ingress Only driveway onto 7th and an egress only driveway onto 7th. Both driveways are on 7th Street. So we've had a change in the driveway locations. There's also been a flip-flop of the location of the row of parking sPaces I mentioned earlier with the access aisle to the spaces. The access aisle was on the east side, and the parking spaces on the west side, and now they've been simply reversed. There!s also been a switch of th location, and addition of window sills to the building handicap space location used to be here next to the entrance (inaudible) now located here, and regular with that space. As mentioned, the exterior (inaudible) ~t windowsills have now been add ection. The driveway change, meets codes ~ .have a distance les meet that ;nt properties. The fli he With re is wh~ landscape roperty was affect the Co~ and this is I: Does the of the Boynton B~ ications have no ~on. And this to alter the site layo approved site plan down to 3 Verbatim Excerpt Clear Copy assessing magnitude of change, and you'll find that the Department has consistently applied this criterion, as evidenced through our quarterly reporting to the Commission. When you compare the original site plan with this modified site plan, you'll notice several things. There's been no change in the building location. The same building to parking relationship occurs. In other words, the building is still in the front; the parking is still in the rear. There is no change in the number of driveways or type of driVeways, meaning two-way Versus one-way. We still have this one way in, one way out type of arrangement. The service areas are in the same general location and the method of refuse collection, which has been a point of contention, has also not changed. We're continuing to allow of- egree versus angle versus parallel lot, the e,structures, las I mentioned earlier; the: And lastly, I want to Doint ere have on other site im to for when the r words, was Mr. De IS, if they have have ran, incl adds a little voh this is'really and stucco n~ ront, and do ;e inches, on those three items, which is ~ drawings of the the maximum And I'm her, but I'll ns, the it, it showed Six inches :it's 4 Verbatim Excerpt Clear Copy approximately four inches. So I believe that that's what the condition of the overhang is. And again, we're looking for two, two actions from you tOnight--ratification of the minor modification determination, and a determination to your Legislative intent on the house overhang application. Taylor: Thank you. Jaskiewicz: May I ask her one question? Taylor: Sure. Jaskiewicz: Are there any other buildings in the area that have the similar overhang? Heyden' Yes. Yes. As a matter of fact, the adjacent building has a similar overhang situation for gutters. Taylor: It says historically the Development Department has allowed overhangs, which includes building surface treatments, etc., so they have some historic background there on the overhangs. .Bob Feldman, Reginald Stambaugh, and Carol Roberts spoke. Heyden: Yes. I've tried to jot down the points that the applicant's, the, Mr. Roberts' attorney has made. ! don't know if I've caught them all, but I think the most important thing to keep in mind is that a lot of the changes that I've heard addressed were necessary to meet the staff conditions of the original approval. I would say nine times out of ten, when you approve a site plan, the site plan that gets submitted as part of permitting, approved subject to staff comments, does not look like the approved site plan. That in and of itself does not constitute a minor site plan modification. It's very important, and I'll go over some of those points. The garbage collection for instance. The site plan was approved, subject to staff comments. Staff comments included change in the dumpster to can pickup. The dumpster goes away. That's why you don't see it on the site plan. That is not a ~'- - minor site plan modification. The light'changes. Light pole changes oftentimes change between site plan approval and permit review because the photo cell illumination plans are not required until time of permitting. Verbatim Excerpt 5 Clear Copy Oftentimes that requires some adjustment in the light pole locations. And I really hate to see that site plans come back to you through the major site plan modification process just because the light pole changed. The buffer that was mentioned--as I mentioned in my earlier presentation, the buffer between Dr. Roberts' property and this property continues to be the same buffer design that was approved as part of the original approval, which was knowing that the width of the landscape strip was, was less than two and a half feet. That was accepted and this plan continues that landscape buffer design. The loading zone--the loading zone was merely shifted. I don't know how many feet, but it was shiffed in an east/west direction. It's basically in the same location. That is a very, very insignificant change. The driveway width--the attorney mentioned that it has changed from fifteen feet to twelve feet. That still meets Code; very, very insignificant. Cans are considered containerized pickup. I don't think I have any more to say on that. An environmental review has been granted. There were conditions: The conditions and the permit are not issued until just prior to a occupational license being ssued, so we're not there yet, but yes, an environmental review has occurred and it has been approved subject to conditions. Irrigation plans-irrigation plans are not required as part of a siteThey are required 'as part of the permit review. I don't know if there s bee but an that's a minor ,e last point I have to make is t' Mr. Roberts Dr modification and Jrred on March ~ ny other questions, I'd be more than happy to answer them. Matthew Bradley and William Hukill spoke. Heyden: Thank you, Bill. Fire access--I specifically included in Exhibit C a listing of all the departments and their comments and you'll notice that, which I don't normally do, but since this is sort of an unusual situation, the comments I received from the Fire Department specifically said they had no comments. They feel that they have adequate ability to access, access this property for fire protection. Verbatim Excerpt 6 Clear Copy Bradley: Thank you. Mayor: Okay. Would you like rebuttal? Stambaugh: Yes. Thank you very much Commissioners in your patience for this. I just have a couple of questions for Ms. Heyden, and also for Mr. Hukill. Ms. Heyden, do you take it lightly the fact that you are accepting a piece of ~' "' property of any size on behalf of the City Commission and the City? - Parker: I can go ahead and answer that as the City Manager for the City. Stambaugh: I'm asking the question to Ms. Heyden. Parker: Okay. Heyden' That method of resolving that issue was not something that my department reviewed. So it really is appropriate that it be addressed to the Building Department, who reviews sidewalks. Stambaugh: Okay. So you're saying you can't comment on that or, I mean, it seems as if that you're reviewing this process, you're in the review process yourself, right? Heyden: Yes. Stambaugh: Okay. What's your answer? You don't have any answer? Heyden: This package is a collection of all departments' comments and Stambaugh: Okay. Who's the appropriate? Heyden' clearly the Engineering Department has, in their determination, made an .... opinion that this is a very, very minor change to allow this kind of sidewalk resolution. Therefore, I concur. Stambaugh and Hukill spoke. 7 Verbatim Excerpt Clear Copy Stambaugh: As far as the containerized pickup, if you could just address me to the code section of where it says that trash cans or containers, Ms. Heyden. Heyden: I don't have the code in front of me. I don't know what that (inaudible) Stambaugh: Do you know the code section? Heyden: No I do not off the top of my head. Stambaugh: Okay. But you said that that is the rule, right? Heyden: I was responding to a reference that you had made regarding the City's requirement for containerized, I believe your words were containerized pickup. Stambaugh: Right. Heyden: And I was merely noting that the City allows can pickup as well as dumpsters for trash collection. Stambaugh spoke. Stambaugh: ...Ms. Heyden, you are requesting that the. City Commission indicate whether or not there was a meaning, an interpretation of house eaves. Why do you think that they had, I guess that's why you're asking the' City Commission, why do you think that there is house eaves if staff is interpreting it to mean something else? Heyden: Can you state that again? Stambaugh: If staff is interpreting this to be different than just house eaves, what leads you to that belief? -- .~ Heyden: I'm not sure I understand the question. Stambaugh: Okay. Let me try to rephrase it. Verbatim Excerpt Clear Copy 8 Heyden: It was our Legal Department's advice to take this determination to you: Transcribed by Eve Eubanks, Recording Secretary . , PART III. LAND DEVELOPMENT REGULATIONS - CHAPTER 4 SITE PLAN REVIEW Boynton Beach, Florida Code of Ordinances Section 9. Modification of approved site plan. A. Minor: A non-impacting 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 impact when viewed from a public right-of-way as determined by the planning and zoning director. B. Major: A modification which presents a significant change in intensity of use which, in turn, may have a significant impact upon facilities, concurrency; upon nearby and a{iacent properties, or upon findings made at the time of approval of the site and development plan as determined by the planning and zoning director. C. In making a minor/major modification determination, the planning director shall consider the folloWing: 1. Does the modification increase the buildable square footage of the development by more than five (5) percent. 2. Does the modification reduce the provided number of parking space below the required number of parking spaces. 3. 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 Development Regulations. 4. Does the modification have an adverse effect on adjacent or nearby prope~ or reduce required physical buffers, such as fences, trees, or hedges. 5. Does the modification adversely affect the elevation design of the structure or reduce the overall design of the structure below the standards stated in the community design plan. 6. Does the modified development meet the concurrency requirements of the Boynton Beach Comprehensive Plan. 7. Does the modification alter the site layout so that the modified site plan does not resemble the approved site plan. D. When any determination of major/minor modification made by the planning and zoning director is challenged or contested by the applicant, the modification shall be processed as a new site plan in accordance with this chapter. E. Procedure: A site plan modification shall be processed as follows, pursuant to its categorization: 1. Minor: Administrative review and action by the appropriate city departments. Co=vrklht (c) 1995, American Leqal Publishinq Corporation - Boynton Beach, Florida Code of Ordinances 2. Major: Processing is the same as for the original site plan. F. Required information: The following information must be presented with a request for a site plan modification: 1. Minor: A letter which sets forth the requested changes along with an exhibit showing that portion of the site plan which is to be changed in its present condition and an exhibit depicting the requested change. 2. Major: A major modification shall contain the same information as required for a new site plan submittal. G. Upon approval of a major site plan modification by the City Commission, the applicant shall have one (1) year to secure a building permit from the development department. If an applicant fails to secure a building permit in that time, all previous approvals shall become null and void and the applicant will be required to resubmit the plan for site plan review. At its discretion, the City Commission may extend the approval of a major site plan modification for a one-year period. Minor modifications shall not extend the time limits of an approved site plan. H. The planning director shall file a quarterly report on minor site plan modifications ~ _ with the City Commission. Co~vri=ht (c) 1995, American Leqal Publishin,q Corporation ORDINANCE NO. O95-~-,/- AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA AMENDING CHAPTER 2 ZONING. OF THE LAND DEVELOPMENT REGULATIONS OF THE CITY OF BOYNTON BEACH, CREATING. A NEW SECTION 10 ENTITLED "BOARD OF ZONING APPEALS"; PROVIDING FOR CONFLICTS, SEVERABtLITY, CODIFICATION AND AN EFFECTIVE DATE. WHEREAS, the evolution of statutory and judicial treatment of matters which relate to variances have changed so significantly; and WHEREAS, the City Commission of the City of Boynton Beach has deemed it to be in the best interests of the citizens and residents of the City of Boynton Beach to create a new board entitled "Board of Zoning Appeals". NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMI,~,~ION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: ~ Chapter 2." Zg. I3JI~" of the Land Development Regulations is hereby amended by deleting Section 10. Board of Adjustment in its entirety and creating a new Section 10, as follows: Section 10. Board of Zoning Appeals. A. COMPOSITION AND PROCEDURE: 1. The Board of Zoning Appeals shall consist of five (5) regular members and two (2) alternate members, who shall be appointed by the City Commission. Two (2) members shall serve for a term of one (1) year from the date of appointment; .and three (3) members shall .. serve for a term of two (2) years from the date of appointment. Vacancies created after expiration of these terms shall be filled by appointments for three-year terms. One (1) alternate shall serve for a term of one (1) year from the date of appointment; the other alternate shall serve for a term of two (2) years from the date of - appointment. Vacancies on the Board shall be filled by appointment by the City Commission. Members of the Board may be removed by a majority of the total members of the City Commission. Members and alternates of the Board shall be electors of the City. 2. Meetings of the Board shall be noticed by the City Clerk. 3. All hearings shall be quasi-judicial and no order of the Board is final until a written order is issued. 4. Minutes will be kept of all meetings of the Board and shall include the vote of each member on each question. B. POWERS AND DUTIES. The board of zoning appeals shall hsvs the followi~§ 1. To hear and decide appeals' when it is alleged that there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any zoning ordinance or regulation adopted pursuant to this chapter .(ordinance). 2. To hear and decide requests for special exceptions. To decide such questions as are involved in the determination of when such special exceptions should be granted.' To grant special exceptions with appropriate conditions and safeguards or to deny such special exceptions when not in harmony with the purpose and intent of this ordinance. The following standards apply to the Board power to g rant special exceptions: a. In granting any special exception, the board shall find that .Such grant will not adversely affect the public interest. b. In granting any special exception, the board may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when ma~de part of the terms under which the special exception is granted, shall constitute grounds for the revocation of the special exception and the certificate of occupancy or occupational license associated therewith. c. The board of zoning appeals may prescribe a reasonable time limit within which the action for which the special exception is required shall be begun or completed or both. 3. To authorize upon appeal such variance from the terms of this ordinance as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the provisions of this ordinance would result in unnecessary and undue hardship. In order to authorize any variance from the terms of this ordinance, the board must find: a. That spedal conditions and circumstances exist which are peculiar to the land,-structure, or building involved and which are not applicable to other lands, structures or buildings in the same zoning district. b. That the special conditions and circumstances do not result from the actions of the aPplicant. c. That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, buildings, or structures in the same zoning district. d. That literal interpretations of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the ordinance and would work unnecessary and undue hardship on the applicant. e. That the variance granted is the minimum variance that will make possible the reasonable use of the land, building or structure. f. That the grant of the variance will be in harmony with the general intent and purpose of this chapter and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare. g. For variances to minimum lot area or lot frontage ' requirements, that property is not available from adjacent properties in (3rder to meet these requirements, or that the acquisition of such property would cause the adjacent property or structures thereon to become nonconforming. The applicant for such variances shall provide an affidavit, with the application for variance, stating that the above mentioned conditions exist with respect to the acquisition of additional property. 4. In granting variance: a. The board may prescribe appropriate conditions and safeguards in conformity with this ordinance. Violations of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this ordinance. b. The board may prescribe a reasonable time limit within which the action for which the variance is required shall be begun or completed or both. c. Variances to lot area and maximum densities specified in comprehensive plan. Where variances to lot area requirements are requested, and suCh a variance, if granted, would cause the density to exceed the density shown on the future land use map of the city's comprehensive plan, the density created shall be construed to be in conformance with the comprehensive plan, if the board finds that the variance meets the conditions set forth in this section for granting same, and the variance would only allow for the construction of a single-family detached dwelling. c. Under no circumstances except as permitted above shall the board grant a variance to permit a use not generally or by special exception permitted in the zoning district involved or any use expressly or by implication prohibited by the terms of this ordinance in the zoning district. No nonconforming use of neighboring lands, structures, or buildings in the same zoning distdct and no permitted use of lands, structures, or buildings in other zoning districts shall be considered grounds for the authorization of a variance. D. REVIEW OF ADMINISTRATIVE ORDERS. in exercising its powers the board may, upon appeal and in conformity with provisio ns of this section, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination made by an administrative official in the enforcement of any zoning ordinance or regulatiOn adopted pursuant to this ordinance~ ~nd may.make necessary order, requirement, decision or determination, and to that end shall have all the powers of the. Officer from whOm the appeal is taken. A majority vote .shall be necessary to reverse any order, requirement, decision or determination of any 'such administrative official or to decide in favor of the applicant on any matter upon which the boards is required to pass under this section. E. APPEALS FROM DECISION OF ADMINISTRATIVE OFFICIAL. Appeals to the board may be taken by any person aggrieved or affected by any decision of an administrative official interpreting any zoning ordinance. Such appeal shall be taken within thirty (30) days after rendition of the order, requirement, decision, or determination appealed from by filing with the officer from whom the appeal is taken and with the board, a notice of appeal specifying the grounds thereof. The appeal shall be in the form prescribed by the rules of the board. F. STAY OF WORK AND PROCEEDING ON APPEALS. An appeal to the board stays all work on the premises and all proceedings in furtherance of the action appealed from, unless the official from whom the appeal was taken shall certify to the board that by reason of facts stated in the certificate, a stay would cause imminent peril of life or property. In such case, proceedings or work shall not be stayed except by a restraining order which may be granted by the Board, or by a court of record on application, on notice to .the officer from whom the appeal is taken and on due cause shown. G. HEARING OF APPEALS. The board shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing, any party may appear in person, by agent or by attorney. Applicants shall be required to file a proper form (supplied by the Planning Department), a current certified survey accompanied by a fee as adopted by resolution of the City Commission. For procedural purposes, an application for a special exception shall be handled by the board as for appeals. H. REVIEW OF DECISIONS OF BOARD OF ZONING APPEALS. Any person may appeal the decision of the Board to the City Commission of the City of Boynton Beach.within thirty (30) days after rendition of the decision by the board.' The Decision of the City Commission shall be deemed final subject only to review by'writ of certiorari to the Palm Beach County Circuit Court. L WITHDRAWAL OR DENIAL OF APPLICATION. 1. Upon the denial of an application for relief hereunder, in whole or in part, a period of one (1) year must run prior to the filing of a subsequent application affecting the same property or any portion thereof. 2. Upon the withdrawal of an application, in whole or in part, a period of six (6) months must run prior to the filing of a subsequent application affecting the same property or any portion thereof, unless, however, the decision of the board is without prejudice; and provided that the period of limitation shall be increased to a two- year waiting period in the event such an application, in whole or in part, has been twice or more denied or withdrawn. 3. An application may be withdrawn without prejudice by the applicant asa matter of right; provided the request for withdrawal is in writing and executed in a manner and on a form prescribed by the board and filed with the board at least one (1) week prior to any hearing scheduled concerning the application; otherwise, all such requests for withdrawal shall be with ~. prejudice. No application may be withdrawn after final ~ action has been taken. When an application is ..... withdrawn without prejudice, the time limitations for reapplication provided herein shall not apply. ~ Each and every other provision of Chapter 2 not herein specifically amended shall remain in full force and effect as previously enacted. ~ All laws and ordinances applying to the City of Boynton Beach in conflict w!th any provisions of this ordinance are hereby repealed. ~ Should any section or provision of ~this Ordinance or any portion thereof be declared by a court of competent jurisdiction to be inValid, such ..... decision shall not affect the remainder of this Ordinance. ~ Authority is hereby given to codify this Ordinance. ~ This Ordinance shall become effective January 1, 1'996. FIRST READING this ~/ day of November, 1995. ~ SECOND, FINAL READING AND PASSAGE this ~ day of December, ii 1995. CITY OF BOYN,TON BEACH,?FLORIDA Vice Mayor ~/ /" ~~~~ - ~ ii Commiss~one Ii ATTEST: Bd. zQNINGaPPEALS 11117/gERev. 12/1/9~.Rev.12/5/gE