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MInutes 10-12-93HIHUTES OF THE SPECIAL BOARD OF ADJUSTHENT #EETING HELD IN COHHISSION CHAHBERS, CITY HALL, BOYHTON BEACH, FLORIDA, ON NONDAY, OCTOBER 12, 1992, AT 7:00 P. H. PRESENT Vernon Thompson, Chairman James Miriana, Vice Chairman Thomas Cordie Barkley Garnsey Henrietta Solomon Nello Tineri Ben Uleck Paul Slavin, Alternate ABSENT Irving Sechter, Alternate Chris Cutro, Planning and Zoning Director Don Jaeger, Building Official James Cherof, City Attorney A, ACKNOWLEDGHENT OF HEHBERS AND VISITORS Chairman Thompson called the meeting to order at 7:00 P. M. and introduced Attorney Cherof, the Board Members, and staff. He welcomed Vice Mayor Matson and Con~nissioner Aguila. B, APPROVAL OF HINUTES Ms. Solomon moved to approve the minutes of the September 21, 1992 meeting as submitted. Mr. Cordie seconded the motion which carried unanimously. Chairman Thompson opened the floor for nominations for Secretary of the Board for the year 1992/93. Mr. Uleck nominated Ms. Solomon as Secretary. Ms. Solomon declined and nominated Mr. Tineri. Vice Chairman Miriana seconded the nomination. Attorney Cherof advised that this Board does not need a secretary because the Secretary of the Board is a representative of the City Clerk's Office, who is charged with the responsibility of maintaining and preserving the record of all matters that appear before the Board of Adjustment, and to facilitate the prep- aration of any documents to be presented to the Board between and after meetings. Chairman Thompson desired to proceed with the nominations since the Board has always had a secretary to read the applications. Attorney Cherof cautioned that however designated, it should not be confused with the Recording Secretary provided by the City Clerk's Office. There being no further nominations, Nello Tineri was unanimously elected Secretary of the Board. C, NEW PETITIONS Case #171 2624 Lake Ortve North Property Owners: Nlchael and Ramona Hrotek - 1 HINUTE$ - SPECZAL BOARD OF A~USTHENT #EETING BOYNTON BEACH, FLORIDA OCTOBER 12, 1992 Request: The applicant is appealing and requesting a hearing on the Building Official's administrative decision of how to determine the height of a fence or wall for the subject property. Mr. Tineri read portions of the application filed by the applicant. Mr. Cutro stated that this is a hearing on an administrative decision that was made by the Building Official in 1989. Attorney Cherof advised that one of the powers of the Board of Adjustment, in addition to the ordinary types of cases that come before it, is to review admin- istrative orders of the Building Official and the Planning Official of the City. The power of the Board of Adjustment as set forth in Section 10 of Appendix A of the Code, Subsection C, is different than its ordinary powers in a variance type of hearing where one of the considerations is hardship. Hardship is not a fac- tor in this type of proceeding. In this case, the Board is to evaluate whether the Building Official made the proper interpretation of the Code or whether the Building Official did not make the proper interpretation of the Code. Attorney Cherof read Subsection C of Section 10 of Appendix A of the Code. Attorney Cherof advised that five concurring votes are needed in issues such as special exceptions and variances; however, only four concurring votes are needed to override the determination made by the Building Official. Attorney Cherof explained that this case comes to the Board of Adjustment after being litigated for a number of years on a case between the City and Mr. Mrotek. It was pending in Palm Beach County Circuit Court and was dismissed by the trial judge. Mr. Mrotek took the case up on appeal and although the Appellate Court ruled that the Trial Court properly dismissed the case, it sent the case back to the Board of Adjustment based upon a stipulation made by the previous City Attorney a number of years ago. Attorney Cherof stated that some of the most recent case law with respect to the Board's responsibilities when sitting as a quasi judicial board were discussed with the Board on several occasions. He advised the members that they are sitting as a quasi judicial board this evening. All the witnesses who will be testifying this evening with respect to this application before the Board of Adjustment were sworn in by Attorney Cherof. PRESENTATION - HICHAEL HROTEK Mr. Mrotek stated that this matter is brought before the Board of Adjustment as provided under mandate of the Fourth District Court of Appeal of the State of Florida. He said the Court apparently felt the Board of Adjustment should have the opportunity to review this case again. In October of 1989, Circuit Judge Rodgers granted a motion which directed him to appeal to the Board of Adjustment for relief under Appendix A-Zoning, Section 10(C) and (D), Review of Orders and Decisions. Following Judge Rodgers directions, Mr. Mrotek said he appealed to the proper authorities in the City and filed his petition for the Board of m HINUTE$ - SPECIAL BOARD OF AD,,1USTHENT HEETZNG BOYNTOH BEACH, FLORIDA OCTOBER 12, 1992 Adjustment. However, sometime after accepting his application, the Building Official changed it to request a variance under Section 4(J)(1) and (2). This section deals with exemption request outside of the Code, requiring that the variance have strong justification and an additional vote for approval of that request. He said had his application not been changed, four votes would have been adequate for approval under Section 10(C) and (D) in 1989. Mr. Mrotek submitted AppliCant's Exhibit 1, Petition References, which contains several documents which he referred to during his presentation. Mr. Mrotek petitioned the Board to examine the facts and grant him relief by reversal from orders, interpretations and conjecture imposed by the Building Official. He said he received nothing but dilatory and litigious response from the Building Official in trying to reason and settle these issues since May of 1989. He said the issue goes to the ability and actuality of receiving a Certificate of Occupancy for his home and that the nonapproved tag is the only item which is stalling the paperwork process for the issuance of the Certificate of Occupancy. All required final inspections have been approved with the excep- tion of the nonapproved tag. Mr. Mrotek stated that Don Johnson, the Chief Code Administrator of the Building Department, and the Senior Inspector of each division of inspection, conducted the final inspections on Permit 883162 at his house at 2624 Lake Drive North. When he asked why the inspection required a building inspector, a senior inspec- tor, and a code administrator, he was told that the inspectors were doing as instructed by the boss, Mr. Mrotek stated that he has yet to find one other contractor who has received this privileged inspection. Mr. Mrotek stated that the Minimum Palm Beach Countywide Amendments to the Standard Building Code, 1985, were adopted under Ordinance 86-55 by the City of Boynton Beach. He read portions of Sections 103.6.1 and 103.8.6 from his Exhibit I and said the nonapproved tag verbally cites Section 103.6.1. He referred to the permitted set of plans and displayed the original set of plans drawn by Architect George Davis. He noted the change on the plans and stated that this change is the incePtion of this whole farce. It was enacted on the architect's sealed plans as a discriminating modification arbitrarily and without foundation of applicable code, reducing the west wall elevation to four feet. It thus compromises the design and Structure integrity, as no construc- tion criteria are indicated. He said the change is inconsistent with CWA 103.4.2 and violates Florida Statutes 471 and 481. He read portions of F. S. 481.221 from his Exhibit I and said the construction of the west wall is correct under Countywide Amendment 103.2.3.3 because it was built according to the design of the architect, as stated in the last two sentences of that provision. Mr. Mrotek stated that there is no change on the original plan sealed by Architect George Davis and that Mr. Davis set this wall down to be six feet and knows it complies with Section 4(J)1 and 2 of the Zoning Code. Mr. Mrotek stated that the wall is a §.7' perimeter wall that encompasses the pool area. It has four sides and has been verified by Specific Purpose Survey done by Craven and Thompson. He said a perimeter wall is a distinct different structure in permit and function, as well as construction. -3- MINUTES - SPECIAL BOARD OF ADJUSTMENT MEETZNG BOYNTON BEACH, FLORIDA OCTOBER 12, 1992 Mr. Mrotek continued that under Countwide Amendment 103.4.3, there is a provi- sion for specific foundation. In April of 1988, Permit 881106 was issued for the masonary block and concrete soil retention bulkhead built to implement con- formity to FEMA requirements and to ensure soil and foundation stability and integrity. Permit 881261 was issued for fill. Both bulkhead and fill consti- tute a certified buildable pad as required before the Building Department will accept an application for a building permit, which included the wall. The application review criteria indicate that the finish floor grade must be 8' plus MSL, a requirement that must be met before submitting plans. Mr. Mrotek illustrated the sequence of events, using a scale model of his house. In March of t988 he purchased the property. According to survey, the road is approximately 3.68 MSL and is supposed to be eight feet. Under the provisions of the special foundation under Countywide Amendments, he asked the City Engineering Department if his remedy would be acceptable. They permitted him to put in a bulkhead under Permit 881106. The fill comprised the required first floor grade elevation and a building pad was certified by Coastal Engineering. At this point he submitted his application for and received a building permit. Construction of the house was commenced. At the same time, the perimeter wall, which encloses the pool area, was built. Mr. Mrotek stated that Appendix A-Zoning, Section 4(J)(1) states that fences, hedges and walls shall not exceed six feet in height in residential zones. He said the wall is 5.7' according to Craven and Thompson and had this wall been built on mother earth, there would be no need for this meeting tonight. However, he had to follow a Federal recommendation adopted by the City of Boynton Beach and implemented on his behalf so that he could obtain flood insurance. He said the wall meets the requirement under Zoning A, Section 4(J)(1) and the building requirement noted in Section 1. He stated that the word "building" includes th~ word "structure" and shall include anything constructed or erected Which requires permanent location on the ground or is attached to anything having a permanent location on the ground. He said it is attached on top of the bulkhead which has permanent location on the ground. In SOuthern Building Code, 1988, the definition of the height of the wall is the vertical distanc~ to measured from the foundation wall, or from a girder or other intermediate su of such wall. He claimed the wall is supported and is measured from ~upport, and that nowhere in CWA, SBC, 1988, is the word "grade" mentioned, read Countywide Amendment 101.3.2 and stated that Section 4(J)t and 2 per a fence, hedge or wall up to six feet, which is how the architect drew the He felt it was discriminating that the west wall has to be two feet less than the north, south and east walls. Mr. Mrotek stated that design and construction has followed the codes and for the past fOrty-one months the Building Official has imposed his interpretations of the CWA and the SBC, especially CWA 101.4.1. He said zoning, CWA, SBC and the Federal Florida State Statutes all provide that he should be afforded, under the law, what every other property owner is allowed by Code, precluding the adopted FEMA requirements of 8' plus MSL for finish floor grade. Mr. Mrotek felt that no zoning violation exists and that the wall does not violate Section 4(J)(1) and (2). He added that before this went to litigation, -4- HIHUTE$ - SPECIAL BOARD OF AD~USTHEHT HEETING BOYNTOH BEACH, FLORIDA OCTOBER 12, 1992 it could have been cited to Code Enforcement. He felt this is not a question of zoning, but a flagrant interpretation of minimum code. He said zoning viola- tions never existed and were never cited. All four walls are of equal height and the walls, as designed by Architect George Davis, comply with the zoning and SBC 1988 definition of wall height. He appealed to the Board of Adjustment to affirm the wall as being built as it should have been, removing and reversing the nonapproved cited CWA 103.6.1. Concerning the nonapproved 103.8.6, he requested that the already submitted affidavits and Florida State certified professional engineering findings be acceptable for the substantiation of correct permitted construction integrity of the wall. The Board reserved the right to question Mr. Mrotek. Mr. Mrotek submitted Applicant's Exhibit 2, a letter from Mabel E. Leavitt of 2508 Lake Drive North, who had no objection to the wall. Mr. Tineri read the letter into the record. Nike Ne$$tng$chlager of 2601 Lake Drive. North sympathized with the Mroteks. He said six years ago he asked the City Officials what he would have to do to meet all standards in the City of Boynton Beach. They handed him a guide containing what he needs to know as a builder/owner. He drew his plans according to this guide and asked the main inspector to help him do this the right way. The inspector told him he was doing it all wrong. Mr. Messingschlager felt the Mroteks built their house more than sufficient for the City to allow them to get a Certificate of Occupancy. He said he lives down the street from the Mroteks and felt their house is well maintained and the wall is built to specifications. Jane Miller of 2617 Lake Drive North said she and her husband were owner/realtors sixteen and a half years ago and learned how hard it is for an owner/builder to learn to do exactly as they are supposed to when so many dif- ferent people are telling them what to do. She lives right across the street from the Mroteks' house and feels the Mroteks' place is a compliment to the neighbOrhood and that the wall is not detrimental in any way. Helen #arclnkowsk1 of 2625 Lake Drive sees no problem at all with the building or the wall. George Ho~t and his wife live at 2611 North Lake Drive. Mr. Hoyt felt the Mroteks' house is a credit to the neighborhood and saw nothing wrong with it. $andra P~nker~on of 2110 Lake Drive read a letter from Roland and Shirley Satti stating that they think the Mroteks' property is beautiful and the wall does not hinder them in any way. This letter was submitted as Applicant's Exhibit 3. Ms. Pinkerton said the property is beautiful and she has no problem with the wall at all. LOuIs Oglialoro of 12722 Oak Tree Drive advised that he was the job site foreman during construction of the Mrotek residence at 2624 Lake Drive North and #INUTES - SPECIAL BOARD OF AD,,1usTMENT #EETING BOYNTON BEACH, FLORIDA OCTOBER 12, I992 supervised the requested inspections on the site from April 1988 through March 1992. He said the bulkhead was built of block, vertical and horizontal rebar and poured solid with concrete per architectural plans. The lot was then filled with 1,600 yards of fill, compacted with a fifteen ton vibropack unit every two feet. All of this work was necessary to comply with the requirements for a buildable pad and FEMA guidelines adopted by the City. He felt the entire construction project exceeds the minimum code. Scott Williams, Esquire, represented Martin McGee, the owner of the home at 640 Dimick Road, which is directly to the west of the Mrotek residence. Mr. McGee leases the home to a tenant and is seriously concerned about the impact of the wall on his house. The wall on the westerly side of the Mrotek home is located eight feet from the exterior easterly wall of Mr. McGee's home. The windows on the easterly side of Mr. McGee,s home are well below the elevation of the wall. As a consequence, Mr. McGee's home loses the benefit of sunlight in the morning and any breezes coming out of the east. A shadow is cast over his home until noontime. Attorney Scott advised that an ordinance that governs height restric- tions with re to walls are clearly meant for the protection of the neigh- boring , not for the folks who choose to erect those walls. He said location of a ten foot wall within eight feet of Mr. McGe ~ome. Ramona #rotek stated she found some verification in the rumors regarding construction in the City. She said even though the people in the Building Department tried to be nice, it was very hard because they were forced to work under stress and pressure because of the Building Official. She stated that she and her husband have jumped through all of the Building Official's hoops beyond minimum Code, which many other homeowners had not had to go through at all. She said her house could have been her home in late 1989; however, due to a self- serving ego or an unfounded issue, she and her husband have been deprived of their Certificate of Occupancy. Mrs. Mrotek felt this is a nonissue. She said the property that Mr. McGee owns has always been rental property and that the previous renters and the current renters have commented many times that they like the privacy that the wall has affordeU them, that they have no problem with the sun or wind, that they do not want the wall lowered because their bedrooms windows could then be looked into, and that the wall has very good landscaping and is good security for them. Mrs. MrOtek stated that she and her husband have been forced to put their fur- niture and personal belongings into storage and rent an apartment for three years. They maintain and pay taxes for house insurance. She said she and her husband presented their situation to everyone in command in Boynton Beach, only to have their Commissioner instruct them not to discuss their problems with her. She said it was mentioned by another Commissioner and later in arbitration that if they paid $10,000 to defray the attorneys' fees of the City, that they could keep the wall. Mrs. Mrotek claimed that the Building Official's opinion was unfounded by any code and perpetuated illegally. She believed a lot of this was caused by per- -6 FIINUTE$ - SPECIAL BOARD OF AD~IUSTFIEFIT FlEETIFlG BOYNTON BEACH, FLORIDA OCTOBER 12, 1992 sonality problems and was sure that if her husband was liked by the Building Official this problem would not exist. She stated that the indifference shown by the bureaucratic system has taxed her and her husband very heavily and that it is impossible to find any authority uncompromised by the influence of City politics in the Building Department. She said express authority abounds there, but no one will take a responsibility that is proportionately and directly con- nected. She requested the members of the Board to use their authority to set things right by putting the responsibility back where it belongs and to rule to have the decision in this matter reversed so that she and her husband can finally move into their home. PRESEFlTATIOFl - DOFf ~AEGER Mr. Jaeger summarized the City's position by starting with a chronology of events that occurred. He testified that the first contact the City had with the Mrotek property was on March 11, 1988 when the property was cited because work was started on site without permits and there was debris left in the City right-of-way. On April 1I, 1988 a permit was issued for clearing and grubbing. On April 15, 1988. a permit was issued to fill the property. On April 20, 1988 a permit was issued to build a retaining wall, and on June 7, I988 an application to build the house was submitted. On July 11, 1988 there was a case brought before the Board of Adjustment because the applicant at that point had requested a variance to the height, exception. The applicant wanted to build over the area requirement for a maximum of twenty-five feet, which was denied by the Board. The building permit was submitted for the house on August 25, 1988 and issued on November 22, 1988~ There was delay due to numerous problems with codes that had to be addressed prior to the permit being issued. One of the issues was the height of the wall, Mr. Jaeger said he was not the Building Official at that time and was not involved in the situation. He was informed by the Plans Reviewer that the Building Official at that time determined that the west wall had to .be lower than the other walls. On March 9, 1989, a Stop Work Order was issued for the wall only because there were no calls for inspection of the wall and the wall was built inconsistent with the approved plans. Mr. Jaeger testified that construction on the wall continued, even though the Stop Work Order was issued. The walil was stuccoed, electricity was put in the wall, and trees were planted. On Juily 14, 1989, an application was submitted to the Board of Adjustmeht to Peview a Variance. At that time discussion ensued regarding th code sections being appealed and a decision was made by the Building as'to What sect!ion to bring the case before the Board of Adjustment. ~nce was denied. Mr. Jaeger said he first heard about this wall in June or May of 1989. He reviewed the plans and the codes and visited the house with the Deputy Building Official at the time. Despite Mr. Jaeger disagreeing with the interpretation of the Building OffiCial on how he permitted that wall, he agreed to let the wall remain consistent with the approved plans. In Mr. Jaeger's opinion, the way the wall was permiitted was way beyond what the Code permitted. However, since it was already permitted, he told Mr. Mrotek that he would rely on the permitted MINUTES - SPECIAL BOARD OF ADJUSTMENT MEETING BOYNTON BEACH, FLORIDA OCTOBER 12, 1992 plans. Mr. Mrotek chose not to follow that decision and took the matter to Court. Mr. Jaeger distributed and submitted City's Exhibit 1, the provisions of the applicable Zoning Code. Appendix A, Section 4{J}{1} states that fences, hedges and walls shall not exceed six feet in height in residential zones. Mr. Jaeger presented the building plans {City's Exhibit 2} which are being retained by the Building Official. These plans were permitted in November of 1988. The wall is shown on Plan 1 of 1, drawn by George Davis. The Building Official at the time permitted the west wall four feet above a four foot retaining wall, making it an eight foot wall. On the other sides he permitted a six foot wall on top of a four foot wall, making them ten foot walls. Mr. Jaeger said he was informed by the Plans Reviewer that Mr. Davis' rationale was that since there was no existing house to the south, the property would be filled to the four feet and then they would, have at that poin{ a six foot wall. To the west there was an existing house so the Building Official decided to take a mean average between the two elevations inside the wall and outside the wall, establish that at two feet and then allow six feet on top of that for the four foot wall. Mr. Jaeger did a Mr. Mr the the way to build that interpretation; however, he continually advised this was permitted and agreed to by Mr. Mrotek prior to agreed to uphold these plans consistent with at the time approved them. Mr. Jaeger showed the vritten on the plans where Mr. Mrotek signed and agreed two feet lower than it is now. Mr. Jaeger stated that the survey of that site (City's Exhibit 3, which is being retained by the Building Official) clearly shows that the wall height is 9.4' which is above the ground elevation, and 10.5' at BB. In Mr. Jaeger's opinion, this is a 9.4' wall where the zoning code only approves a maximum height of six feet for walls in residential zones. Mr. Jaeger submitted five photographs of the wall in relation to the neighboring property {City's Composite Exhibit 4}. He stated that Mr. Mrotek's property extends 1½' on the west and south sides of the wall and that the wall materially affects Mr. Mrotek's neighbor's property. He said the purpose of Zoning Codes is to protect the community and allow light and ventilation to occur. The Code states that walls should remain a maximum of six feet in height in residential zones. Clearly, this wall well exceeds that; however, he agreed to sanction the approved plans. Nevertheless, Mr. Mrotek proceeded to build the west wall up to the same elevation as the rest of the walls without calling for adequate inspec- tions, and completed the wall despite the Stop Work Order. Mr. Jaeger noted there was a lot of testimony tonight about Standard Building Codes and'amendments to the Codes; however, he said the only issue before the Board of Adjustment tonight is the Zoning Code and the height of the wall. Nevertheless, in order to clarify some statements made by Mr. Mrotek, Mr. Jaeger discussed the issue of the requirement of the finish floor elevation of the structure. He explained that FEMA requires the City to enforce an eight foot height above mean sea level in that particular area and that there are numerous ways to Obtain that height, such as stem wall construction or building up on -8- HINUTES - SPECIAL BOARD OF ADJUSTHENT HEETING BOYNTON BEACH, FLORIDA OCTOBER 12, 1992 peers, and that it was not necessary for that house to be built on fill. He said that was Mr. Mrotek's choice. Moreover, the bottom floor of the house is a garage and is strictly not habitable space. This further compounds it because FEMA requires the first habitable floor level to be above base flood elevation. Mr. Mrotek's first habitable floor is twelve feet above the garage floor eleva- tion and four feet above the road. Therefore, Mr. Mrotek met that criteria without having to fill the lot. Mr. Jaeger further explained that the Building Department attempts to uniformly interpret the Zoning Codes of the City and that a special privilege would be granted Mr, Mrotek if his appeal is upheld. In addition, it would affect how the Building Department interprets and goes about uniformly enforcing the Zoning Code from this point forward. Mr. Jaeger testified that Mr. Mrotek agreed to construct the wall in a certain manner as a condition of the permit. The City's position has always been to approve the wall consistent with the plans that were approved at the time. Mr. Mrotek chose not to construct in accordance with the plans and ,,in ~a Stop Work Order was issued, continued construction. Mr. Jaeger reiterated 5sue before the Board of Adjustment is to uphold the Zoning Code which say,s, that the maximum height of walls in residential areas shall be six feet. He alddedlthat the evidence shows that the Wall exceeds the Code. Jack McCorsky is building a house south of Mr. Mrotek's property and stated that if there is any intention of filling in the lot adjoining Mr. Mrotek's property, it will affect his property and he would object to the wall. He did not know why objections were not made to the south wall because it is as high as the west wall and faces his property. SUMMATION - MICHAEL NROTEK With regard to Mr. Jaeger's statement that no inspections of the wall were called for, Mr. Mrotek stated that an inspection was requested for the building columns, wall columns and tie beam. However, Inspector Frank McCleod only inspected the bUilding columns because that is what the ticket generated by the computer instructed him to do. Mr. Mrotek said he was not informed of what Inspector McCleod had inspected, received his okay and thought it was for everything. He later discovered that only the building columns were inspected. He said he had no intention of defrauding the City or breaching the Code. Regarding signing off and agreeing on the plans, Mr. Mrotek said he initialed those plans as requested by Mr. Howell. Mr. Mrotek explained that he originally drew those walls; however, the City would not accept his rendition because he was not qualified. Therefore, George Davis, who is qualified under Florida Statute, produced a rendition which was submitted to the Building Official. Mr. Mrotek said that if he could agree to change the wall on the plans, he could have originally drawn that wall, but that wall was required to be drawn by an architect, who drew it according to Appendix A-Zoning, Section 4{J){1} and {2}. With regard to Mr. Jaeger's comment about construction flagrantly continuing after the Stop Work Order, Mr. Mrotek stated that the Stop Work Order was issued on Tuesday, March 5th. At that time the wall was completely poured and the -9- HINUTE$ - SPECi*AL BOARD OF ADJUSTHENT FLEETING BOYHTOH BEACH, FLORIDA OCTOBER 12, 1992 structural permitted portion was finished, which is the only thing that would have been inspected. He later sealed and painted the wall because the weather would have deteriorated it. Moreover, when the wall was poured, the electrical conduit was in it. The electrical conduit, the wiring and the situation thereof were inspected under special inspection by Sam Dillingham, the electrical inspector, Don Jaeger, Don Johnson, and a few other people from the Building Department. Regarding Mr. Jaeger's con~ment about there being some misinterpretation of the application that Mr. Mrotek filed in 1989, Mr. Mrotek said there was no problem with that application. The application and the contents thereof were cited by Judge Rodgers under a motion filed by the City Attorney which specifically quoted Section 10(C) and (D). Mr. Mrotek contended he has a six foot wall. He related that during a discus- sion with Mr. Jaeger on May 7th, Mr. Jaeger said, "This is the way it was per- mitted. You do as I say or I wilt rescind your permit." Mr. Mrotek said it is against Florida Statute for him to sign off or agree to the change on the plans. The packet he received indicated finish floor grade to be 8'+ MSL and he built accordingly. Mr. Mrotek stated that the purpose of the Craven and Thompson survey was to show that he owned land on the other side of the wall. It is about 6/lOths of a foot and to be proper and considerate he did not build on his neighbor's land. Mr. Mrotek testified that Don Johnson verified that he was not building on his neighbor's land. There is 6/lOths of a foot between Mr. Mrotek's wall and his property line. Mr. Mrotek stated that flood insurance is directly related to the integrity of a foundation and that his insurance agent could not insure the top portion only. Mr. Mrotek claimed the wall should be measured from mother earth, which is six feet and which would give him a 1.7' wall when he stands in his back yard. He said this does not meet Code for a six foot or a four foot drop and he is required to have forty-two inches. Mr. Mrotek claimed there was no agreement whatsoever on the plan. He had five specific reviews with the Building Official on those plans. He was not allowed to have a metal roof because the Countywide Amendment on flashing requires stainless or copper. Mr. Mrotek said he lost thirty-five per cent of his buildable area to setback when he complied with the City's zoning requirements. He felt his building pad has nothing to do with the wall and if the wall was built six inches off center, it would still be just as high and it would still have its own identity. He said minimum Code says six foot and there are no provisions that say in certain instances it should be four feet. He claimed there are still provisions under Section 10(C) and (D) that could put this into writ of de novo or writ of cer- tiorari. Mr. Mrotek felt the change was done against Florida Statute and stated that there is a ruling against profiting from illegal acts. - 10- HZNUTES - SPECIAL BOARD OF ADJUSTMENT #EETING BOYNTON BEACH, FLORIDA OCTOBER 12, 1992 Mr. Mrotek stated he has the lowest insurance premium in a flood zone and his agent insures from the foundation up, not just the top half. Mr. Mrotek claimed it is habitable and that FEMA has never said it has to be habitable. He felt he should be afforded what every other man is afforded under the Code, which is a six foot perimeter wall around the swimming area. He spent $10,000 to fill four feet of his lot with ninety-six truck loads of dirt because the City wanted to adopt this plan because it would receive Federal aid if it accepted FEMA's regu- lations. Mr. Mrotek claimed it is not compulsory or mandatory. He said he talked to people in Washington who admitted that there are cities in Florida that either do not want it, have not accepted it, or have lost it for non- compliance. Mr. Mrotek asked to be granted a reversal of the Board's decision. SUHHATION - DON ~AEGER Mr. Jaeger explained that it is his job to interpret the Code in a uniform and fair manner. He stated that there has been much discussion regarding FEMA, heights of buildings, construction codes, and inspections. However, the issue before the Board is simply the Zoning Code, which says that walls in residential zones shall not exceed six feet in height. The survey indicates that the wall well exceeds a six foot elevation. The Building Official at the time interpeted the Code in a manner which Mr. Mrotek indicated his agreement by initialing the plans. Mr. Mrotek accepted that interpretation but did not build consistent with the permitted plans. Mr. Jaeger stated that from the beginning, even though he believed the interpretation of the Building Official was incorrect, he told Mr. Mrotek that he would honor those permitted plans as long as he built consistently. Mr. Jaeger said the issue is the height of the wall and it was his position that the wall, as built, exceeds the minimum requirements of the Zoning Code in residential areas, which is six feet in height as indicated by the survey that was submitted. Attorney Cherof reminded the Board that concurring votes of four members of the Board shall be necessary to reverse any order, requirement, decision or deter- mination of any administrative official or to decide in favor of the applicant. Mr. Garnsey asked Mr. Mrotek to sum up his arguments for claiming that the wall should be measured from the top of the bulkhead. Mr. Mrotek responded that the wall should be measured from its foundation as provided by the Countywide Amendments, both in construction procedure and in definition. He added that the wall is a separate permitted entity and should be measured from where it was permitted to be built from. He said the wall did not exist until permitted. Prior to being permitted, the bulkhead did exist. A bulkhead was required under Federal guidelines. The buildable pad was then formulated and the wall was then set on top of the bulkhead. The wall is 5.7' and connects and sits on top of the bulkhead. It is measured, according to the definition in Southern Building Code, 1988, from the point of its foundation to the top. He said this was not done by his interpretations or his opinions. It was done the way the sentence reads in the Codes. The wall is measured from where it sits on its foundation or girder. - 11 - MINUTES - SPECIAL BOARD OF ADJUSTMENT MEETING BOYNTON BEACH, FLORIDA OCTOBER 12, 1992 Mr. Garnsey asked Mr. Jaeger how the City uniformly interprets a height of six feet with regard to walls. Mr. Jaeger responded that the Building Department takes a mean finish grade elevation at the exterior of the wall and measures up from that. The Building Code says wall height is measured from the top of the foundation. However, the Building Code is not used as a reference to interpret the Zoning Code. The Building Code, and the definitions in the Building Code, are used to interpret the Building Code. It is very difficult to take one set of definitions and transfer them over to the Zoning Code. The Building Department consistently measures the height of walls from average grade at the exterior of the walls. If not dOne this way, then anybody could build walls, fill on the inside, and if they attempted to measure grade from that point, con- tinue building walls up to forty, five feet, which is the maximum height. Mr. Jaerger advised that walls have to be measured as they impact the neigh- boring properties. Mr. Garnsey questioned why the other two walls were allowed to be six feet. Mr. Jaeger said that was a determination made by the previous Building Official. He believed the reason was because the likelihood of the property to the south being filled was high. If it was filled, it would have been filled up to that four foot elevation where the retaining wall ends. However, there was an existing structure to the west. Therefore, there was no likelihood that the property would be filled up. Hence, there was a mean average between the wall taken at that point. Attorney Cherof pointed out that Mr. Mrotek made reference to the top six feet sitting on top of the bulkhead. He clarified that the plans reflect this is not the case and that the wall is actually tied into the bulkhead. Mr. Mrotek said the wall, by instructural integrity, is required to be tied into the foundation. However, it is a separate entity permitted as a separate entity and should be measured as a separate entity. Motion Vice Chairman Miriana moved to uphold the interpretation of the Building Official. Ms. Solomon seconded the motion. A roll call vote was polled by the Recording Secretary. The motion carried 6-1. Mr. Cordie cast the dissenting vote. ADJOURNMENT There being no further business to come before this Board, the meeting properly adjourned at 9:12 P. M. Eve Eubanks Recording Secretary {Three Tapes) - 12 SPECIAL HEETING OF THE BOARD OF ADJUSTMENT OCTOBER 12, 1992 APPLICANT'S EXHIBITS 1 THROUGH 3 CITY'S EXHIBIT 1 AND COMPOSITE EXHIBIT 4 (CITY'S EXHIBITS 2 AND 3 ARE BEING RETAINED BY THE BUILDING OFFICIAL) As of February 12, 1993, the above exh~ are being retained by the City Attorr~v's Office, except f°r City's Exhibits 2 ~'3,/~ / a~_g~ 's C] Ci Attorney herof~ Att