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Minutes 01-28-92MINUTES OF THE BOARD OF ADJUSTMENT WORKSHOP MEETING HELD IN CONFERENCE ROOM "A", CITY HALL, BOYNTON BEACH, FLORIDA, ON TUESDAY, JANUARY 28, 1992 AT 7:00 P. M. PRESENT Vernon Thompson, Chairman James Miriana, Vice Chairman Raymond Eney, Secretary Andrew Haynes Thomas Newton Henrietta Solomon Ben Uleck ALTERNATES Bradley Miller Paul Slavin Chris Cutro, Planning and Zoning Director James Cherof, City Attorney Mike Haag, Zoning and Site Development Administrator CALL TO ORDER The workshop commenced at 7:05 P. M. Mr. Cutro introduced, Mike Haag and James Cherof, and explained the purpose of this workshop. LEGAL CONSIDERATIONS IN REVIEWING VARIANCES Attorney Cherof said part of the reason for this meeting is that over time the laws change and the Court's interpretation of the law changes. There have been a number of recent Appellate Court decisions that have significantly changed the method by which quasi judicial boards must conduct their business. Recently, there have been a string of Appellate Court opinions that Attorney Cherof characterized as being pro property right opinions. The concept is that if you own property, you have the right to develop it and use it so long as it does not create a health, safety, or welfare problem to your neighbors, or does not encroach upon their right to use their p[operty. The health, safety and welfare aspect of it is the City's Code of Ordinances. He cited the case of Jenninqs vs. Dade County which involved a rezoning, wherein an interference with the property right was alleged, and that lobbying created a presumption of undue influence. There is now an Appellate Court case that states mem- bers of boards that sit in judgment, quasi judicial boards, can- not permit themselves to be lobbied on issues that will come before them for a vote. There is a very fine line as to what is proper discussion and what is lobbying, so the rule that this Board must follow is that items which are on the agenda or which the Board anticipates having to vote on some day, should not be discussed with people who want to give their perspective. The reason for this is if an applicant does not obtain the relief MINUTES - BOARD OF ADJUSTMENT WORKSHOP BOYNTON BEACH, FLORIDA JANUARY 28, 1992 he is seeking, he can go to the Circuit Court which sits as an Appellate Court. The applicant has the right to take the record from the Board of Adjustment proceeding and show it to the Circuit Court judge. The record should clearly reflect everything heard that influenced the Board's decision. If things were heard before the meeting, off the record, there is a pre- sumption that ithe property owner was prejudiced. The members need to discourage any type of contact that people want to make with them on items pending. If the Circuit Court hears argument that somebody contacted one of the members before the meeting, that case is coming back before the Board of Adjustment to be and the property owner is probably going to be awar ' fees and costs against the City. Attorney Cherof said another Appellate Court case clearly says that this kind of board, a Board of Adjustment, is a quasi judi- cial board. This second case also says in reaching a deter- mination, the Board may rely upon substantial and competent evidence a position), but not on oPinions somebody that just "feels" that someth will not work correctly. A lot of work and the burden now on the Planning Department and the City administration to put a case in front of the Board. It is the duty of City Jr to bring to the Board substantial and competent witnesses. In answer to a question posed by Ms. Solomon, Attorney Cherof discouraged any member from going anywhere to look at any prop- erty because the initial burden for the granting of the variance is for the property owner to come forward and present to the Board all the evidence it needs to make a decision. If there are questions about a specific piece of property, the Board should raise them during the meeting, on the record, to the Planning Staff. The members should come into meetings without any precon- ceived notation of what is right or wrong for that location. Mr. Slavin asked if plans are presented to the Planning Department prior to the Building Department. Attorney Cherof said the Planners will not be the only ones supplying information to the Board. There may be many cases where the Planner will have somebody from the Building Department present to explain how something progressed to get to the Board of Adjustment. Vice Chairman Miriana asked if the Board must disregard the let- ters received from residents. Attorney Cherof said the process and even the Court opinions do not eliminate the fact that this is a public hearing setting and that there are people whose prop- erty rights are affected by what somebody does or does not want to do. Those letters help the Board to focus on specific issues. The Planning Staff is going to see those letters ahead of time 2 MINUTES - BOARD OF ADJUSTMENT WORKSHOP BOYNTON BEACH, FLORIDA JANUARY 28, 1992 and hopefully they are going to respond and give the Board the information needed. Chairman Thompson expressed concern that this Board will become a rubber stamp for the Building Department and the Planning Department. Attorney Cherof said this is not necessarily so. The reason these cases are being decided this way is that the Courts are tired of seeing boards that rubber stamp the adminis- trative position on matters. This board is not part of the City administration and may not agree with the philosophy that the City administration follows. If the applicant does not meet their burden, the Board has the right, without even hearing anything further, to deny the application. It is only when the applicant has proven each of the elements that the burden shifts to the City to come back and provide additional information. The City may be in favor of the applicant, however; a group of homeowners may not, and they have the right to come forward with testimony, proof, and experts. Mr. Uleck said if the members did not look at the property in question, they would not be able to tell if someone was lying. He has been on this BOard for 9 or 10 years and this is the way he judged cases. Attorney Cherof advised the Board should make the final decision on what is presented at the meeting, on the record, and personal knowledge cannot be brought in. Mr. Cutro realized in the past the Board has been saddled with situations where site plans have already been approved by the Planning and Zoning Board and were asked to make determinations on building permits that have already been granted. The site plan review process has been reversed so the Board of Adjustment will not be making adjustments on plans after they have been approved. The variance will go to this Board before a site plan is approved. The same thing will be happening with building per- mits as well. Staff will not allow those plans to go forward; they will put a hold on the permit. Attorney Cherof explained what the Board did before was controlled by State Statute which was abolished in 1985. It is now covered under the City's home rule powers. If it is ignored, the City will get reversed in every appeal, and will have to pay Court costs and attorney fees. The Board viewing the property is not something that is on the record and the property owner is entitled to have all of his case on the record. Discussion ensued regarding the members looking at specific sites. Attorney Cherof said he is not suggesting that because somebody comes in and puts facts in front of the Board that the Board must grant them the relief they are requesting. The Board also sits in judgement of the qualifications of the person that is testifying and the voracity of what is said. MINUTES - BOARD OF ADJUSTMENT WORKSHOP BOYNTON BEACH, FLORIDA JANUARY 28, 1992 Vice Chairman Miriana mentioned he was contacted on previous cases. Attorney Cherof advised any member would have to disclose if he is being lobbied. With regard to enforcing the Code, Attorney Cherof said there are variances so this Board can make a change if all the other cri- teria are met. The Code is merely guidance with respect to variance procedures or special exceptions. Chairman Thompson brought up again the issue of members being called. Attorney Cherof said the members should tell those people that they cannot listen to them if it is regarding an item coming up on the agenda. Chairman Thompson asked if discussion continues, but not regarding an agenda item, if there is still a violation. Attorney Cherof did not think so, but advised the members to be cautious. He advised if they feel somebody is trying to encourage them to vote one way or another, that is the time to end the conversation. Commissioner Matson was present and suggested doing what she does in these situations, namely, telling the callers that you prefer to hear what they have to say at the same time everybody else hears it. STAFF PROCEDURE Mr. Cutro explained what Staff plans to do to try to assist the Board in making determinations. The standarized package of information which the Board will receive will include the name of the applicant, a detailed description of the request, the appli- cable ordinance section numbers, the location, the present zoning of the property, the use of the property, the parcel size, the surrounding zoning, the surrounding uses, an analysis of the facts, the reasons for the request for a variance, a comparision of an analysis of Section 10(b)(3) which is the criteria for variance, a recommendation on whether or not to approve, approve with conditions, deny, or to continue an item, a plot plan which will have notations on it as to what the variances are, the application, and, if necessary, a zoning locater map to see what the zoning is around a particular area. In addition, the infor- mation will include other pertinent materials, such as letters from the public, a list of telephone calls received from people opposing the variance. The applicant will be allowed to present photographs, but they will have to be left with the City. The package will be delivered to the members on the Thursday before each meeting. Mr. Cutro advised the members that if they have any questions after reviewing the packages, they should call Mike Haag. Staff will include the requested information in their presentation at the meeting. Chairman Thompson asked if Staff is leading the Board by making a recommendation. Attorney Cherof said Staff is not leading the MINUTES - BOARD OF ADJUSTMENT WORKSHOP BOYNTON BEACH, FLORIDA JANUARY 28, 1992 Board any more than the applicant is leading the Board in requesting the variance or the special exception. It is simply a recommendation from the City's point of view and is not binding on the Board. The applicant will be made aware of Staff's recom- mendation ahead of time and will have an opportunity to respond. Mr. Newton said if the applicant is denied a variance which the Planning Department recommended be denied, then the applicant may feel they should have some other recourse. Attorney Cherof said the Board is entitled to all the expertise of all the people that work for the City who were hired for a specific purpose. Ms. Solomon asked if it is possible to get the package of infor- mation before Thursdays. Mr. Cutro said he has a limited time to review the package himself; however, he will try to get it to the members on Wednesdays, depending on the amount of cases. BOARD PROCEDURE The following was recommended by Mr. Cutro as a way to conduct business and take input: (1) The Secretary reads the case number and the request. (2) Staff is allowed to make their presentation to get their input into the record. (3) The applicant is allowed to make a presentation. (4) Staff is allowed to rebut and answer the Board's questions regarding the information applicant has supplied. (5) The public hearing is opened. (6) The public hearing is closed. (7) The applicant is given a chance to make a closing statement and possibly rebut some of the public hearing statements. (8) Discussion is held between members. The Board can ask questions of Staff and applicant. The Board should refrain from asking for opinions from people who spoke in the audience. (9) The Board makes a motion and votes on it. If the Board overrides Staff recommendations, those need to be stated as part of the motion. Mr. Cutro recommended avoiding the "halo" effect (somebody who has done something good deserves to get the variance because he is a good person) and the "pitchfork" effect (somebody who has done something bad does not deserve to get the variance). In answer to a question posed by Mr. Slavin, Mr. Cutro said the full request of the applicant will be spelled out in detail. The justifications for the variance should not be read into the record by the Secretary. The applicant should make his own case; the burden of proof is with him. 5 MINUTES - BOARD OF ADJUSTMENT WORKSHOP BOYNTON BEACH, FLORIDA JANUARY 28, 1992 Attorney Cherof advised that anybody who is going to offer testi- mony needs to be sworn in by the Secretary or the Attorney. Ms. Solomon asked if it is the responsibility of this Board to remember the Codes of the City. Attorney Cherof answered in the negative, saying Staff will be there, as well as somebody from the City Attorney's Office, to give guidance as to what the Code says and what the standard is. He hoped that a copy of the applicable Code would be included in the backup for every variance or special exception that comes before this Board. Mr. Cutro agreed to do this. Ms. Solomon asked if the Code should be taken into consideration when making a decision. Attorney Cherof reminded Ms. Solomon that for every section in the Code from which a variance is being sought, there is a section in the Code that says one is entitled to a variance, if certain criteria are met. The function of the Board in a variance proceeding is not to strictly enforce the Code; it is to grant relief from the strict enforcement of the Code, providing there is a hardship which is not self-imposed, and pr~oviding it is in harmony with the rest of the neighborhood. In response to Chairman Thompson, Attorney Cherof said he will try to give the Board more guidance on a case by case basis, but the general rule is that economic hardship does not qualify for the granting of a variance. A hardship is the result of something beyond the control of the property owner, such as a strange configuration of the property that eliminates the possi- bility of all the parking spaces. Chairman Thompson said many years ago at a workshop, someone from the University of Florida addressed the Board and advised that a person cannot be denied the use of his property. Attorney Cherof disagreed, saying that the City can stop certain kinds of busi- nesses and development where it can demonstrate that it is a hazard, or if there is a health, safety, or traffic congestion consideration. Mr. Miller inquired about'his role and responsbilities as a new alternate member of this Board. Chairman Thompson advised Mr. Miller he may join in the discussions but is not allowed to vote. Attorney Cherof added that Mr. Miller may be required to sit on the Board when there is not a quorum. Secretary Eney felt the members should avoid commenting on deter- minations made by the Board in previous cases. Attorney Cherof said this is instant reversal in a Court, and that everybody has the right to have the Board consider their case separately and independently. Chairman Thompson inquired about the process regarding rehearings. Mr. Cutro said if an applicant requests a rehearing 6 MINUTES - BOARD OF ADJUSTMENT WORKSHOP BOYNTON BEACH, FLORIDA JANUARY 28, 1992 within 30 days after the Board has made its determination, it reverts to the Board for a determination as to whether or not to hear the case. He would like to change the Code to state that rehearing requests are not allowed prior to one year and if there is an appeal process, direct it perhaps to the Court or the City Commission. Mr. Haag asked if the Board should allow the applicant an oppor- tunity to speak at the meeting with regard to a request for rehearing. Atttorney Cherof said the Code says nothing about rehearings, but there are Court cases that say if there is some new issue that was not brought to the Board's attention or a mistake of fact, a~d there is criteria for it, that somebody should have the right to make a request for rehearing. He thought everything the applicant wants to say about why they should have a rehearing should be included in a written document and the Board should make a decision based upon what is in the four corners of it. Legal direction can be given to the Board on Whether there is enough in the four corners of that document to get the applicant back to the Board. Chairman Thompson inquired if the Board has to make a decision on a case at the meeting it is scheduled for. Attorney Cherof advised the Board has the power to table any matter before them. Mr. Cutro added there may be times when something is introduced at a meeting that Staff does not have the ability to comment on, or a question may be raised that Staff does not have the ability to answer at that time. ADJOURNMENT There being no further business, the meeting properly adjourned at/~P. M. Eve Eubanks Recording Secretary (Two Tapes)