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Minutes 09-21-92 MINUTES OF THE BOARD OF ADJUSTMENT MEETING HELD IN CONFERENCE ROOM "C", WEST WING, BOYNTONBEACH, FLORIDA, ON MONDAY, SEPTEMBER 21, 1992 AT 7:OO PRESENT Vernon Thompson, Chairman Thomas Cordie Henrietta Solomon Nello Tineri Ben Uleck Paul Slavin, Alternate Chris Cutro, Planning and Zoning Director James Cherof, City Attorney ABSENT Barkley Garnsey (excused) James Miriana (excused) Irving Sechter, Alternate ACKNOWLEDGEMENT OF MEMBERS AND VISITORS Chairman Thompson called the meeting to order at 7:03 p.m. He introduced the members of the Board, Attorney Cherof, Chris Cutro and the Recording Secretary. Chairman Thompson announced that a letter had been received from Mr. Garnsey regarding the fact that he would not be present at this meeting. Also, Mr. Tineri reported that Mr. Miriana called him to report that he would be out of town for this meeting. These announcements brought about a discussion on the excused absence policy. Mr. Cutro explained the policy and the fact that there are no excused absences; however, some of the members disagreed with his expla- nation and felt a new policy had been instituted without Board members being notified. Chairman Thompson will investigate this policy and if necessary, he will make a recommendation to the City Commission. APPROVAL OF MINUTES There being no additions, deletions or corrections to the minutes of the July 13, 1992 meeting, Henrietta Solomon moved to accept the minutes as received. Chairman Thompson announced that the minutes are approved as received. ELECTION OF SECRETARY TO REPLACE MR, RAYMOND EMEY No election took place this evening. COMMUNICATIONS None ,REPORT OF PLANNING AND ZONING DEPARTMENT None CONTINUED PETITIONS None - i HINUTE$ - BOARD OF ADJUSTHEHT HEETING BOYNTON BEACH, FLORIDA SEPTEHBER 21, 1992 Chairman Thompson announced that there were three meetings being conducted this evening. Because of that, Attorney Cherof requested that Case #169 be reviewed first so that he could be present for the determination and then leave to attend another meeting which was already in progress. REQUEST FOR REHEARING: Case #169 McDonald's Restaurant - two new free-standing signs Property Owner: Catalina Centre Development Corporation Request: To rehear a petition originally heard by the Board on July 13, 1992. The request was to increase the maximum number of free-standing signs, increase the maximum allowed sign area and reduce the minimum setback as it relates to the new signs. Attorney Cherof stated that there is nothing in the Code with regard to rehearing a case. However, when there has been a denial, the matter may not be reheard for one year. He further explained that when any administrative hearing has taken place, if the applicant can show, following the hearing, that the Board did not have all of the evidence which was available, or proceeded under a false procedure, that Board can consider a rehearing of the matter. This means that the applicant would need to present something which was not presented at the first hearing. Attorney Cherof explained that he read the letter submitted by the applicant wherein he states the Board may have been mistaken in its decision because of the issue of whether the applicant had to first apply for a building permit before appearing before the Board of Adjustment. In some cases, it is not necessary to do that. In this case, the Building Department did not have the right to issue a permit. If that was the reason for the denial, then the case should be reheard. Another reason for granting a variance is when hardship has been clearly indi- cated. In Florida, the standard is unique. Attorney Cherof explained that a hardship is present when the. ~hardship makes it impossible to use the land for the purpose for which it was zoned. In Attorney Cherof's opinion, this is not the case with MacDonald's and in the absence of that hardship, the Board cannot grant a variance. Chairman Thompson explained that the Board decided on July 13th to hear the case even though there was no permit. The vote on that issue is clearly stated in the minutes of the July 13th meeting. That becomes proof that the Board did not deny the variance because of the lack of a permit. He feels the Board did not make a miStake in its decision. Attorney Cherof pointed out that there is nothing in the applicant's letter of August 11th which goes to the real issue. That real issue is that there is no legal hardship because the property is being used and the sign issue is only a convenience. He pointed out that unless there is something else which is not contained in the letter, he would recon~mend that the Board not entertain the rehearing. -2- NINUTE$ - BOARD OF ADJUSTNENT NEETING BOYNTON BEACH, FLORIDA SEPTENBER 21, 1992 Mr. Slavin pointed out that the minutes of the July 13th meeting reflect clearly what took place. The vote was 5-2 against granting the variance and he does not see the reason for rehearing the case. He feels there is no hardship in this case. There was lengthy discussion among the members which was not focused on the issue at hand. Attorney Cherof again reminded the members that the case should be reheard only if the members feel the applicant can prove a hardship exists. From the appli- cant's letter and from the minutes of the last meeting, no hardship was proven. Notion Mr. Slavin moved that the Board deny the request for a rehearing on the advice of the City Attorney and from a legal point of view. Mr. Uleck seconded the motion. Attorney Cherof recommended that the Board permit the applicant to speak with respect to the motion itself. Mr. Slavin was puzzled by the Attorney's recommendation. Chairman Thompson also expressed bewilderment at this request. However, Chairman Thompson stated he was willing to listen to anything as long as it was legal. Craig Llvlngsto~ of 323 North Federal Highway, represented the applicant. stated that based on the discussions which took place this evening, he will withdraw the request. He The motion carried 6-0. Attorney Cherof stated he will follow up with a memorandum. He further stated that he is aware the Code states that a permit must be denied before a request for a variance. However, in Florida, the rule of law is that an applicant is never required to do something futile. There is no need for an applicant to pay a fee and have a set of plans reviewed if the staff knows it will deny the application. Attorney Cherof will recon~nend to the City Commission that this Code section be clarified. Mr. Slavin asked Attorney Cherof why Mr. Cutro was permitted to visit the site when Board members are advised not to do so. Attorney Cherof explained that Mr. Cutro has a duty to perform, and in this instance, Mr. Cutro spoke with Mr. Cherof who recommended moving this forward. Mr. Cutro apologized for not being present at the July 13th meeting. He explained that he met with the applicant under very specific circumstances. He further stated that he should have supplied a covering memorandum for that meeting. However, Mr. Cutro pointed out that he makes the ultimate decisions regarding the zoning code. -3- H]NUTE$ - BOARD OF AD~IUSTHENT HEETZNG BOYNTON BEACH, FLORIDA SEPTE#BER 21, 1992 NEN PETZT~ON$: Case #170 506 NW 8th Court Property Owner: Frank and Helen Po111frone Request: Appendix A Zoning Section 5.D.2a specifies the minimum side and rear yard setbacks for the subject property are as follows: 7.5' side setback; 25' rear setback. The applicant wishes to construct a one-story room addition 6.5' from the side property line and 18.7' from the rear property line. Therefore, the applicant requests appro- val of a variance to reduce the side yard setback 1' (one foot) and the rear yard setback 6.3' (six point three feet). Mr. Cutro made the presentation and explained the applicant's request. He further stated that drawings submitted in the package of back-up materials show where the building presently sits on the property and where it will be if the variance is granted. Mr. Cutro suggested the applicant introduce his items. Chairman Thompson read the application and the Statement of Special Conditions. (A copy of the responses to the Statement of Special Conditions is attached to the original copy of these minutes on file in the City Clerk's office.) Frank and Helen Polllfrone~ 506 NW 8th Courts represented themselves. Mr. Pollifrone presented photos showing the property from different angles. He explained that there is a street in front of the property and a street behind the property. There are only two neighbors. One of the neighbors was present to support the Pollifrone's request. Mr. Pollifrone measured the properties and found that his neighbor's house will be 15' from the proposed new structure. Their view will not be obstructed and their property will not be adversely affected by this structure. Mr. Pollifrone stated that his request is nothing new to the area. The lots in this area are small and other property owners have been given variances. He is requesting the variance in order to add an additional bathroom and some addi- tional space which is needed by his growing family. Mr. Pollifrone explained that the City originally permitted the slab which is in place and the permit states the stab would be used for a patio and future addition. When he applied to the Building Department, he was told he could not do that and had to remove the slab. Because of his denial of a building permit, he was advised to request a variance. He stated that removing the slab and repouring it would be too costly for him and his wife. They are Palm Beach County school teachers. They cannot afford to repour the slab. He said that neighbors two doors away were granted such a variance back in 1975. Also, others in Laurel Hills have been granted variances within the last year for the same situation. In response to a question by Mr. Tineri, Mr. Pollifrone stated the slab measures 14" thick. Chairman Thompson pointed out that the Building Department would determine whether or not the slab could support the proposed structure. The only issue facing the Board is whether or not to grant the variance. HZNUTE$ - BOARD OF AD~USTNENT NEETZNG BOYNTON BEACH, FLORIDA SEPTE#BER 21, 1992 Ms. Solomon questioned whether the Pollifrones would put the slab in the same place if they were forced to tear up the existing slab. Mrs. Pollifrone used the photos to show the location to be the only place the slab could be located. Chairman Thompson stated the slab might have been grandfathered in, but the building was not built and therefore, it cannot be grandfathered in. Mr. Cutro explained that the original owner would now have to go through this same proce- dure. Mr. Cutro said the applicant wishes to continue the 6.5' side setback on the property. That will keep the proposed structure in line with the existing building. The applicant's other request is to reduce the rear setback to 18.7'. Mr. Slavin noted a shed on the drawing and wondered if it would remain. Mr. Pollifrone stated the shed would be removed. CHAIRMAN THOMPSON ASKED IF THERE WAS ANYONE PRESENT WHO WISHED TO SPEAK IN SUPPORT OF THIS APPLICATION. Nancy Lel~nan, 504NW 8th Court, spoke in support of this application. She said the addition would be built on her side and she has no problem with it. The home is well maintained and the people are lovely. This addition would not block the view from her residence and she cannot see any reason to deny the request. Amy Pepln, 512 NW 8th Court, was present to support the Pollifrones in their request for a variance. AFTER THREE ANNOUNCEMENTS, THERE WAS NO ONE ELSE PRESENT TO SPEAK IN SUPPORT OF THIS APPLICATION. AFTER THREE ANNOUNCEMENTS, CHAIRMAN THOMPSON ANNOUNCED THAT THERE WAS NO ONE PRESENT TO SPEAK IN OPPOSITION OF THIS APPLICATION. Chairman Thompson read a letter from Mr. Darwin Ford wherein Mr. Ford expressed no objection to the proposed variance. Mr. Ford welcomed the idea of his neigh- bors investing in the neighborhood. Chairman Thompson read a letter from W. L. Piper, Jr. who wrote for his mother, Nell Piper, who resides at 402 NW 8th Court. The letter opposed the application since they feel zoning variances reduce property value. In response to Ms. Solomon's question, Mr. Cutro explained that a number of houses in the community were built with 6.5' setbacks. He feels the Board must consider the fact that at one point in time, the slab may have legally held a structure. This building was built prior to a Code change. If the original slab was acceptable at the time it was installed, then there are others which have 6.5' setback and others with less than the 25' setback. Mr. Uleck did not see any reason for not granting this variance. He sees a hardship in this case. -5- MINUTES - BOARD OF ADJUSTMENT MEETING BOYNTOH BEACH, FLORIDA SEPTEMBER 21, 1992 Chairman Thompson said it is his feeling that the 6.5' setback was once in effect and acceptable. The 6.5' setback will be in line with the present building. Further, since this runs between two streets and does not infringe on the rights of others, he does not see a problem with granting this variance. Motion Mr. Tineri moved that the Board grant the applicants their variance for the addition to their home since it is on a through street and does not interfere with visibility and would not be detrimental to our zoning Code. Mr. Cordie seconded the motion which carried 6-0. Chairman Thompson asked to be excused from the meeting to visit his wife in the hospital. Mr. Cutro reminded the members of the Special Meeting of the Board to be held on Tuesday, September 29th at 7:00 p.m. FUTURE PETITIONS FOR MEETING OF OCTOBER 19~ 1992: Case #172 Open OTHER BUSINESS 1. Special Meeting - September 29, 1992, 7:00 p.m., Commission Chambers, City Hall Case #171 2624 Lake Drive North Owner: Mtchael and Ramona Mrotek Request: ADJOURNMENT 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 sub- ject property. There being no further business to come before the Board, the meeting properly adjourned at 8:10 p.m. Recording Secretary (Two Tapes) -6- §.A) We are requesting a variance due to the following special conditions: 1)When the property was purchased in 1986 a major selling point was a prelaid slab that was ready to be built upon. The former owner had gotten the slab permitted and clearly notes on his permit application "a patio and slab for a future addition (please see attached copy "A" ). There is no mention on file that this in anyway was unacceptable. The permit was granted and the slab was poured with the footer intact at a 6.5 ft side setback and a 18.7 rear setback. So we are asking for a i foot side variance and a 6.3 feet rear variance. 2) If this space ks to ever be used for the purpose designated on the permit application, which is to build an addition, the cost to tear up and repour the concrete slab would be exorbitant. Most people would be unable to finance such an undertaking. At this point we have already over extended ourselves to have the addition built as is. We are expecting another child in December. We can ill afford to change plans now. To tear up and repour the slab is impractical, to pick up and move is impossible. To tear up the slab or to not build on it would cause extreme personal and/or financial hardships. 3) We bought this house with the intent of raising a family and growing into the house. We have one child and another is expected in December. We are in dire need of space and another bathroom. At this point in time we are financially incapable of moving. We relied heavily on the fact that the property had the potential to be built upon. We took for granted the fact that the slab was permitted, inspected and was given approval by the city so to us it appearred legal and a viable option if we needed to expand. The lots in this area are somewhat small 100x60 and there fore do not lend themselves to be built upon as in other areas zoned R-iA. ~; we ~ougn= =n~s~ouse"W~t~ tneCOncrete sla~intact. It was ~ legally permitted by the City of BoFnton. We had no influence or input into where or how the slab should be laid. We did know that the slab was there, was permitted, was approved by the city and was ready to be built upon. Other than that we had no effect or input that created this special condition. C) We do not consider it a special privilege to use our property to the utmost. All construction will take place on our property. Our neighbors will not be inconvenienced by machinery or the work being done. The addition is being done' for the sole purpose of utilizing space in the best way possible. We are not asking for any special privileges but the right to use our land in the manner that has already been set forth and permitted by the city. D) The literal interpretation of the provisions of this ordinance would deny us rights that have been granted to others. There have been several variances granted in the R-1-A zoning district. A side and rear setback variance was granted to a neighbor in November of 197§. Since that time at least two more have been granted in the adjacent neighborhoods (Gordon Park and Laurel Hills, please see attached copy "B"). We feel if our request is denied that it would definetely cause undue and unnecessary financial hardship and would in fact deny us of privileges that have been granted to others. E) The variance requested is the minimum required. We are working with a slab that is only ! foo~ out of compliance with the side setb~gk-and-aPproximately ~.~ fee~ in th~ rear. It appears to be a small amount of space in the scheme of things. It is neither excessive nor flamboyant in any manner. The side of the slab joins perfectly with the edge of the existing house and the end of the slab runs up to the patio area.Once again We would like to mention the fact that we are working with a prelaid slab and the cost to make these chnges would prohibit us from doing any building whatsoever. This variance will give us the ability to structure. a high quality and aestl pleasing F) We believe the addition that we intend to build will embody the spirit of the ordinance. It in no way will be detrimental but may in fact have a positive impact on the area. It will be well built and pleasant to look at. In response to public welfare: Our neighborhood is in a state of transition. Many young couples have recently purchased and renovated properties in this neighborhood. Most of the properties were becoming rundown and in disarray. We did the exact same thing several years ago. We put a tremendous amount of time, energy and money into this property to make this our home. A home where we could raise our children. We did this with the notion that the house could be built upon without too many problems and the fact that we already had a slab poured made it seem like a definite reality if the need arose. The need has arisen. We are attempting to continue this momentum and encourage others to improve their properties too. We in no way intend to infringe on our neighbors rights. We plan to continue the family atmosphere that has been established in our neighborhood. We are certain that we have the support and the approval of our neighbors ( see attached copy "C"). We are confident that the Board of Adjustment will understand our needs and will act accordingly, in everyone's best interest.