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Minutes 12-11-89MINUTES OF THE BOARD OF ADJUSTMENT MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA ON MONDAY, DECEMBER 11, 1989 AT 7:00 P.M. PRESENT Vernon Thompson, Jr., Chairman Lillian Artis~ Vice Chairwoman Denys "Sam" DeLong Raymond Eney Thomas Newton Ben Uleck James Miriana, Alternate (Voting) Alfred Newbold, Administrator, Plan Review and Permitting ABSENT Henrietta Solomon (Excused) Chairman Thompson called the meeting to order at 7:00 P.M. and introduced the members of the Board and the Recording Secretary. The presence in the audience of former Board member George Mearns was acknowledged. MINUTES OF NOVEMBER 13, 1989 Chairman Thompson noted it had been necessary to make a correction on page 9, under the paragraph labeled "Request" The request has been corrected to the following language: "Relief from zoning requirement of 124 parking spaces to be reduced to 102 for new 941 sq. ft. storage addition to recreation building." Mso Artis moved to approve the Minutes as corrected. DeLong seconded the motion which carried 7-0. Ms. ~NNOUNCEMENTS Chairman Thompson remarked that Henrietta Solomon had advised him she would not be in attendance at the meeting as she is out of town. It was noted that to date, no applications had been received for the January meeting. COMMUNICATIONS None. NEW BUSINESS CASE ~141 Address: 2624 Lake Drive North Boynton Beach, Florida MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA DECEMBER 11, 1989 Legal Description: Owner: Request: LAKESIDE GARDENS S/D, Lots 40, 41, 42 & 43 as recorded in Official Record Book 8, Page 57, Palm Beach County Records Michael and Ramona Mrotek Relief from zoning requirement of 6' height limitation to 8' along western property line of single family resi- dence. Chairman Thompson remarked that the Board of Adjustment is not a majority Board° Seven voting Members were present. Any three negative votes will deny a request for a variance. Chairman Thompson read the criteria upon which the Members base their decision~ He read from Appendix A - Zoning, Section 10, B. 3. (a) through (f) Secretary Eney read the application and the applicant's answers to paragraph 5 (a-f) of the application. Mr. Leonard Hanser, an attorney representing Mr. and Mrs. Mrotek addressed the Board and indicated the issue revolves around the height of the west wall of the residence. Mr o Hanser stated there is a 4' retaining wall upon which an exterior wall has been constructed. Because of the proxi- ~m~ty of the house to the Intracoastal and in order to comply with Federal regulations, the house was built higher than one would normally expect. This was because of flood insurance requirements. Mr. Hanser remarked the application included notification to the City that the grade would have to be increased to meet these Federal requirements. The grade was approved. It was r:equired to comply with sound engineering principles, so a retaining wall was built to shore up the sand on which the grade was built. A permit was obtained for the retaining wall. Mr. Hanser stated the wall and the grade received approVal from the City upon completion. A permit for the additional wall which is now in controversy was requested° Remarks concerning finished grade were made by Mr. Hanser and reference was made to the definition of finished grade from the current Zoning Code, which states on page 1882: "The average level of the finished surface of the ground adjacent to the exterior walls of the structure." Mr. Hanser raised the question of where does the City measure finished grade. In this instance he felt the finished grade was measured not from the Mrotek property but from the adjacent neighbor's property° MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA DECEMBER 11~ 1989 Mr. Newbold responded that the wall sits 1' within the adjoining property, therefore he has 1' of ground at the same level as the neighbor. The wall is 1' within his pro- perty so he has 1' of land to the exterior of the property. Mr~ Hanser referred to a memorandum which indicated the interpretation of where the 6' in height is to be taken from came from the Building official who said the height of the wall would be from the lowest point of the adjoining pro- perty and not from the top of the retaining wall. Mr. Hanser asked if it would satisfy the Board if the owner placed grade around the outside of the wall. If there was space along the outside of the wall and the grade was increased along the outside, it would appear that would make the wall comply. Mr. Newbold asked the applicant if he was present to appeal the decision of the Building Official or was he seeking a variance° Mr. Hanser responded, "Why can't we do both?" Mr. Newbold pointed out that if the Mroteks are appealing the decision of the Building official as to what is grade and what isn't, it should ~be properly listed as a public hearing° He referred to Appendix A - Zoning, Section 10, D., which refers to the appeal being taken within 30 days after rendition of the order and also indicates the matter should be advertised as such for the Public Hearing. Mr. Newbold noted Mr. Mrotek had advised he had been instructed by an attorney to apply for a variance. Therefore, he was pro- vided with the application for a variance. Mr. Newbold indicated the decision was handed down on July 26, 1989 in a written memoo One month later, the time limit expired for Mr~ Mrotek to file an appeal from the decision. Mr. Mrotek came to Mr. Newbold's office on November 6, 1989 in order to request the variance° The request had been advertised to the public as a variance. Mro Hanser made reference to a November 20, 1989 conver- sation with City Attorney Rea where it was agreed the appeal would come to the Board of Adjustment. In the letter, it was indicated that the City was waiving any time require- ments for the filing of an appeal to the Board of Adjustment~ Mr. Michael Mrotek addressed the Board and stated they were before the Board technically under Appendix A - Zoning, Section 10, D. "Appeals From Decision of Administrative Official°" Mr. Mrotek indicated he had requested an appli- cation for the appeal before the Board of Adjustment. Discussion had taken place on whether he needed to appear before the Building Board of Adjustment & Appeals or the 3 MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA DECEMBER 11, 1989 Board of Adjustment. He stated Mr. Jaeger and Mr. Newbold had advised him he needed to appear before the Board of Adjustment. He therefore asked for the application. He explained Mr. Newbold gave him the application, reviewed it and told him what he should put on it. It was completed in handwritten form and submitted within the deadline to Mr. Newbold~ He waited to be advised of the meeting date. When he received the notice, he observed it did not indicate what he had requested, which was an appeal. He had been in touch with the City Clerk's Office regarding the notice prepared. Upon further research, Mr. Mrotek found his application had been whited out and alter~ed by the Building Dept. He stated the facts, as presented to the Board are not correct. He had asked fora retraction or restatement which was denied. It was noted that Mr. Mrotek applied earlier in the year for the Building Dept. to re-review his plans and change them and had paid a $21 fee. The request had to do with the west wall as drawn by Architect George Davis. The west wall is similar in contruction, height and composition to the other walls on the property. Mr. Mrotek stated when he presented this alternative to the Building Dept. to rectify his problem, the Building Dept. didn't agree with him. He felt he had exhausted his administrative remedies with the Building Dept~ He stated he was told by Mr. Newbold and Mr. Jaeger there were no other means for him to seek. He was unaware of Section 10, C. and D. until he filed suit in Civil Court for relief. Mr. Mrotek advised he has been going through this at con- siderable expense for some time. He felt that was the reason he was beyond the 30 day limit. They didn't know about the 30 day limitation because they tried alternative remedies. Other remarks were made. Mr. Mrotek stated he was requesting the removal of the red tag which had been placed on the property and for the City to sign off as he felt the construction complied with the Codes of the City. Mr. Mrotek repeated remarks about his application having been altered. Ms. Artis asked Mr. Mrotek who had given him permission to put up an eight foot wall instead of a six foot wall. Mr. Mrotek explained in detail the events that had transpired° He commented he had been advised his property was in Flood Zone 7, which required an 8' elevation above the sea. Remarks were made about the first floor elevation of the home having to be built up and then the wall constructed, so the earth would not spill out onto his neighbors. Mr. Mrotek stated Bud Howell, former Building Official had approved this idea° The wall was inspected and permitted. The fill was permitted. When he brought the plans in for the home itself, they were reviewed and he was 4 MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA DECEMBER 11, 1989 isssued a permit. Mr. Mrotek stated the permit includes the structure of the building and the surrounding privacy wall that encloses the pool area. He felt it had been built to the City's specifications. Permits relating to the property were made available to the Chairman. Mr. Newbold reported that on March 16, 1988, activities were underway at the site without proper permits. Reference was made to a letter from Med Kopczynski who at that time was the Deputy Building Official, to Mr. Robert Glynn of 41 Cocoanut Lane, Ocean Ridge, Florida. Mr. Glynn and Fernando Ruiz were known to be the owners of the pro~ perty at that time. The letter referred to clearing, grubbing and filling activities that had been going ono The letter advised these activities required permits. Mr. Glynn was asked to come to the Building Dept. before March 30, 1988 to apply for a permit. Mr. Newbold referred to the Warranty Deed and noted the property transferred hands on March 25, 1988. Mr. Newbold acknowledged that the City Engineer at that time, Mr. Clark, did issue Mr. Mrotek a permit to fill the property. In Mr. Mrotek's earlier remarks he stated he had built the property up because of the flood control require- ment. Mr. Mrotek had indicated he got that information from someone in the Building Dept~ Mr. Newbold was not privy to conversations that might have taken place in that regard. Mr. Newbold stated the law did not require the property to be filled. It was addressing the livable area in a house and had nothing to do with the property. Mr. Newbold was in possession of the permit Mr. Mrotek had obtained for the 4' retaining wallo Mr. Newbold referred to an earlier variance on the height of the building which was applied for by the Mroteks and he elaborated on the sequence of events. Comments were made about the 6' wall which was constructed on top of the 4' retaining wall and which was denied by the plan reviewers. Mr. Newbold noted Mr. Mrotek and Mr. Howell had discussed the denial and it was "hashed out" between the two. Mr. Mrotek's signature is on the plans agreeing he would not build the wall to the extreme height of 10' above the grade level. Mr. Newbold didn't think Mr. Mrotek could say he had been fooled by the Building Dept. Mr. Mrotek proceeded to construct that additional wall without any inspections. The current Building Official, Mr. Jaeger and Mro Newbold visited the site and explained to Mr. Mrotek they would honor everything Mr. Howell had agreed on, but they would not permit him to exceed what was agreed upon, as his signa- ture on the plans indicated. Other remarks were made. 5 MINUTES - BOARD OF ADJUSTMENT BO~qTON BEACH, FLORIDA DECEMBER 1I, 1989 On July 14, 1989, Mr. Mrotek submitted an application for an amendment to the drawing to modify it where the wall could remain at that height. Mr. Newbold explained it was denied not based on a determination of what is grade and what isn't, but based on the section of the Code which limits the heights of walls in residential zones. Regarding Mr. Mrotek's statement that he had been advised to come before the Board of Adjustment by Mr. Newbold and Mr. Jaeger, Mr. Newbold noted that was weeks after the application was in and had been advertised. Mr. Mrotek came in arguing that he didn't like the way the notice was writ- ten. Mr. Mrotek had indicated to Mr. Newbold that he had been advised to apply for a variance by his attorney and Mr. Rea. Mr. Mrotek said he needed the application. When Mr. Newbold asked to assist h~im with it, Mr. Mrotek indi- cated he knew how to do it as he had done it once before. Mr. Newbold felt he should at least provide the applicant with the sections of the Code under which the wall had been denied° Mr. Newbold wrote these sections down on a piece of paper for Mr. Mrotek. Mr. Newbold explained that Mr. Mrotek had at one point produced an older survey which was unsatis- factory. A more recent survey was required and was later produced. Mr. Newbold stated he normally has a sit-down conversation with applicants, but when Mr. Mrotek brought the paperwork back~ he left the papers and didn't want to talk to anybody. Comments were made about the changes to the application. Mr. Newbold stated at the bottom of the application his signature appears denying the permit. The application asks for the section of the Code that the denial is based on. Mr. Newbold stated that is why it has to be correct. Our Code does not read the way Mr. Mrotek wanted to change it. Mr. Newbold stated the applicant wanted to use parts of this and parts of that to fill in that space. Mr. Newbold made the correction. Mr. Mrotek had taken issue to that. It was noted that the Board of Adjustment cannot take down red tags and has no jurisdiction outside the scope of making this variance. Other remarks were made. Chairman Thompson explained the Board of Adjustment does not interpret the Code of the City, rather they work with it in these cases° Interpretation of the Code is done by the City Attorney and the Building Dept. The Board looks for hardship created by the City, County or State. Sometimes the hardship is self imposed° The Chairman did not think discussion which had taken place in the past was pertinent at this time° The Board would review the situation but would not base its decision on second-hand conversations. MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA DECEMBER 11, 1989 Comments were made about the powers of this Board. Mr. Mrotek read from Section 10, C. Lengthy conversation took place regarding the fact that a 6' wall has been built on top of the 4' retaining wall, bringing the height up to 10' o Comments were made about the grade. Mr. Newbold repeated the fact that the new Building Official was willing to go along with what Mr. Howell had agreed on with Mr. Mroteko Mr. Mrotek built 2' more than what was approved. Mro Newbold stated that whether he keeps that 2' is before the Board for it to determine. Photographs of the wall were made available to the Board members. Chairman Thompson asked three times if there was anyone pre- sent who wished to speak in favor of granting this variance° Mrs. Ramona Mrotek addressed the Board and felt a hardship existed. She thought it would be unattractive if part of the wall had to come down. She was very concerned about security and safety and she explained her concerns. She felt the variance should be granted. Chairman Thompson asked a fourth time if there was anyone present who wished to speak in favor of the variance° There was no further response from the audience. Chairman Thompson asked if there was anyone present who wished to speak in opposition to the variance. Mr. J. Pokorski addressed the Board. Mr. Pokorski owns nearby Lots 84, 85, 90 and 91. Mr~ Pokorski stated he had previously remained silent regarding this matter. He felt construction of the wall was inconsiderate. In his opinion, the wall was an eyesore and made it look like a fortress. He intends to build on his property soon and stated he could build his home without putting all that fill in with walls. Other remarks were made. Chairman Thompson asked three more times if there was anyone present who wished to speak in opposition to granting of this variance. There was no response from the audience° Secretary Eney read letters from Mr. Martin J. McGee addressed to the Board and to City Attorney Rea, objecting to this application~ The letters are on file in the City Clerk's office° Mr. McGee owns the home at 640 Dimick Rd., which is located 8' west of the wallo Mr. McGee was upset as the wall is higher than the top of his bedroom windows and blocks ou% breezes, sunshine and the view. Mr. McGee was concerned that his property value would decline because of this wall. 7 MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA DECEMBER 11, 1989 As there was no one else present who wished to speak in favor of or in opposition to the granting of the variance, THE PUBLIC HEARING WAS CLOSED~ Discussion took place regarding granting a variance on something that is already existing. Chairman Thompson stated the Board needed to determine whether this is a self- imposed hardship or one imposed by the City. Comments were made about making a legal decision. Lengthy deliberation took place° Several Board members expressed their feelings about the wall and what had taken place. Discussion took place on the height and the fact that a 2' variance is needed. Mr. Newbold clarified that there had been agreement between Mr. Howell and Mr. Mrotek that 4' of additional wall would be constructed on top of the 4' retaining wallo Instead, 6' was constructed on top of the retaining wall. Mr. Newbold made remarks about Mr. Mrotek applying for an amendment to the application. The change had been denied. Mro Newbold stated if the 2' variance is not granted, then Mr. Mrotek will need to put the wall back to the height that was agreed upon with Mr. Howell. Other comments were made° Motion Mr. Eney felt both the City and Mr. Mrotek were responsible. Because of the City's error, he moved that the 2' variance be granted. Mr. Uleck seconded the motion and agreed with remarks made by Mr. Eney. The Recording Secretary took a roll call vote as follows: Mr. Newton - Aye Mr. Miriana - Nay Mso Artis - Prior to voting, Ms. Artis asked if she would be out of order by asking a question° Chairman Thompson remarked that legally, he thought that would be out of order. The Recording Secretary continued with the roll call: Ms. Artis - kye Mr. Thompson - Nay Mro Eney - Aye Mr. Uleck - Aye Ms. DeLong - Nay The request for a variance was DENIED as there were three negative votes~ Chairman Thompson stated the wall would have to go back to 8' in height. 8 MINUTES - BOARD OF ADJUSTMENT BOYI~TON BEACH, FLORIDA DECEMBER 11, 1989 Prior to adjourning the meeting, Chairman Thompson distri- buted Certificates of Appreciation to the Board members for service in the past year. ADJOURNMENT Ms. Artis moved to adjourn the meeting. Mr. Eney seconded the motion which carried 7-0. The meeting properly adjourned at 8:40 P.M. Shannon Burkett Recording Secretary (Two Tapes) 9