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Minutes 10-10-83
MINUTES OF THE BOARD OF ADJUSTMENT MEETING AT CITY HALL, BOYNTON BEACH, FLORIDA, HELD IN THE BUILDING DEPARTMENT, MONDAY, OCTOBER 10, 1983, AT 7:00 P.M. PRESENT Vernon Thompson, Jr., Chairman Bert Keehr, George Ampol, Vice Chairman~ Deputy Building Official Robert Gordon, Secretary George Mearns Paul Slavin Harold Weinberg Lillian Artis, Alternate (voting) Leo Grossbard, Alternate ABSENT Joseph Moore (Excused) Chairman Thompson'called the meeting to order and introduced the Board Members, Deputy Building Official, and Recording Secretary. He recognized the City Officials in the audience: Mayor Warnke, Vice Mayor Carl Zimmerman, Councilmen Joe deLong and Nick Cassandra. Ms. Artis was sitting in for Mr. Moore. MINUTES OF SEPTEMBER 12, 1983 MEETING Mr. Slavin advised that on page 11, 2nd paragraph from the bottom, first sentence, the spelling of "pole" should be "poll". Mr. Ampol moved to accept the minutes as corrected. Seconded by Mr. Mearns, the motion carried 7-0. PUBLIC HEARING PROCEDURE The six criteria on which the Members of the Board base their decision were read by Chairman Thompson. He also pointed out that to grant a variance, it would take five members in favor; to deny, it takes only three. He noted that they had a full board present. PUBLIC HEARING Case ~41 - Lot 5, Block 8, CENTRAL PARK ANNEX Recorded in Plat Book 12, Page 51 Palm Beach County Records. Request: Relief from 60 ft. lot frontage requirement to be reduced to 50 ft. lot frontage, and relief from 7,500 sq. ft. lot area requirement to be reduced to 5,850 sq. ft. lot area to make Lot 5 a buildable lot Address: 118 S.W. 12th Ave. Applicant: Doris C. Sims Secretary Gordon read from the application as follows: "Property is presently zoned: R-3A. Formerly zoned: R-1 then R-2. Denial was made upon existing zoning requirements from which relief is required: R-lA zoning requires 60' lot frontage -- i MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 and 7,500 square foot lot area. Nature of exception or variance required: Subject property has 50' lot frontage, requiring a variance of 10' and 5.,850 square foot lot area, thus requiring a variance of 1,650 square feet. Proposed improvement: Purpose to make lot 5 a buildable lot. Name of Applicant: Doris C. Sims, 114 S.W. 12th Avenue, Boynton Beach." Chairman Thompson requested that anyone representing Ms. Sims come to the microphone. Ms. Sims came forward. Secretary Gordon read the applicant's answers to the six questions a through f, question 5, "Statement of special conditions, hard- ships or reasons justifying the requested exception or variance"- "a. Special conditions exist as follows: When I purchased the property in 1978, I purchased because it was zoned duplex and had the possibility of converting the two-story house on West 1/2 of Lot 3 and Lot 4 into a duplex. For this purpose I immediately had separate air conditioning and heat systems installed - one for upstairs and one for downstairs. At that time the frontage required in that area was only 50 feet and my expectation was to be able to build a duplex unit on that lot or sell it as a 50-foot lot for building. I was unaware that the master zoning plan was changing the frontage to 60 feet a few years later and that the area was being rezoned to single family until after it had already been in effect, or I would have immediately finished the required changes to duplex in the house. At this time I would be satisfied to forget converting the house to duplex and the~lot to duplex, but would like to request that the lot (Which is entrapped) Lot 5 be approved as a building lot for a single family unit. b. These conditions which exist do not result from any actions on my part. It was a rezoning which increased the required footage after I had bought the lots. c. I do not believe this would give me any special privileges as the house to the East of my property sits only 7 or 7½ feet from their property line, and the house on the West side of Lot 5 sits 7 or 7½ feet from the property line. Lot 5 is entrapped and cannot be expanded to 60 feet. 108 S.W. 12 Avenue immediately to East of my property has 55'~ frontage; 111 S.W. 12 Avenue immediately in front of my property has 50' frontage; 115 S.W. 12 Avenue diagonally in front of my property has 50' frontage. - 2 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 The owners immediately West of Lot 5 are not interested in purchasing any portion of Lot 5; therefore, it is a Lot en- trapped by them on the West and by my house on the East. d. The literal interpretation of the provisions of this chapter would deprive me, the applicant, of the right of a buildable 50' lot which is enjoyed by other owners in the immediate area. This would work unnecessary and undue hardship upon me, the applicant, as I had purchased the property when the zoning allowed ~it to be a buildable Lot on Lot 5. e. The variance granted is the minimum variance that will make possible the reasonable use of the Lot 5 for building purposes. f. The variance would be in harmony with the general intent of the area as it exists and the variance would not be injurious to the area or detrimental to the public welfare." At Chairman Thompson's request, Ms. Sims stated her name and address. She said she felt She had covered it thoroughly on her application, adding that she did buy it as an investment and planned to live in it for a period of time and be able to sell it. She advised that when the Mas~er Plan came into effect, she did not receive a notification nor did she see it in a newspaper, or she would have pursued, while still legal to do so, converting. into duplex and doing something with t~e lot so she would not be in the position of losing the dollar value which she stands to lose at this point. It was her IiVe~ihood plan to be able to use this property to provide herself with an income and living expenses. M~.. Sims felt that a precedent has been set - there are duplexes in the area - and doesn't feel that it would change the area to allow her to build a dupl x This house was built in 1924, there is no unity of title, and the west lot should be an independently · saleable lot. It is an entrapped lot. If the people who pur- chased the house that is on the west half of Lot 3 and Lot 4 don't want to buy that lot, and she has already contacted the neighbors on the west side of her add they are not interested in buying any additional property, sh~ could have split it between the two houses. That leaves her ~ith a~,~choice of ~o people and one has said no. She would like to be able to make Lot 5 available with all the frontage that was required at the time she purchased it five years ago. Chairman Thompson asked the Members if they had any questions to ask Ms. Sims. There was no response. Chairman Thompson asked if there was anyone there who wo~ld like to speak in favor of granting the variance. There was no response. Chairman Thompson asked if there wa~ anyone who wou~d like to speak against the granting of the variance. There was no response. - 3 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 Mr. Ampol noted that all ~eighbors within 400 feet had been notified, and he ascertained that only one response had been received. Secretary Gordon read that communication, dated October 3, 1983, as follows: "Our opinion is that the requested variance not be passed. We feel that it is in the best interest of the neighborhood, appear- ance wise and property value wise that the 60 foot frontage re- quirement be maintained. We have viewed the property to assist in evaluating the request. Sincerely, /s/ Emitt R. Pierson /s/ Najol L. Pierson" Under discussion, Chairman Thompson was sure everyone had viewed the property, and he stated that the land is land locked. Also, a hardship has been placed on her by the City when there was a change in City Ordinance. Mr. Weinberg asked if the 7½' position from the property line is within the Code. Mr. Keehr advised that it is okay. Chairman Thompson said yes it is for that area - R-lA. Mr. Slavin asked Mr. Keehr if this property was originally platted as a 50' lot. Mr. Keehr answered, "That's correct, and it was rezoned from R-1 to R-2 and from R-2 to R'iA, and the rezoning from R-2 to R-lA took place in June of '75." Mr. Ampol noted that Ms~ Sims purchased this property in 1978, 3 years afte~ it was rezoned. Chairman Thompson noted that the hardship was placed on the property, not on the owner. Mr. Slavin asked if there is enough room to build a house with the proper set-backs on the lot as it is now. Mr. Keehr advised yes. Mr. Gordon asked Ms. Simms if the tree on the west side is on her lot. She said she thinks it is. Ms. Sims asked Mr. Keehr for clarification of the date of rezon- ing. She thought it was with the Master Plan of 1980 or 1981. Chairman Thompson noted that her question was out of order, but Mr. Keehr thought he should clarify it. Mr. Keehr said the re- zoning from R-2 to R-lA did take place in 1980; the rezoning from R-1 to R-2 took place in 1975. It had been an error' on his part and she was correct, he acknowledged. He added that,'just prior to Ms. Sims' purchase of that property, the 50' lot was a buildable lot under the grandfather section of the City Ordinance - prior to March 4th of 1978. - 4 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 Mr. Weinberg moved to grant the request. Mr. Gordon seconded. Mr. Ampol asked if Ms. Sims is going to sell the house when she builds there. Chairman Thompson advised that she .has the right to do it. Mrs. Bee took a roll call vote on the motion as follows: Mr. Mearns - Aye Mr. Weinberg - Aye Mr. Ampol - Aye Chairman Thompson - Aye Mr. Gordon - Aye Mr. Slavin - Aye Ms. Artis - Aye The motion carried 7-0. The variance was GRANTED. PUBLIC HEARING #2 Case #42 - Lot 20, MANGO HEIGHTS Recorded in Plat Book 30, Page 55 Palm Beach County Records Request: Relief from 25' rear yard setback requirement to be reduced to 22'1" rear yard setback for wooden overhang to cover existing concrete patio. Relief from 25' front yard setback requirement to be reduced to 23'2" front yard setback to accommodate house as constructed. Address: 211 S.W. 5th Avenue Applicant: Philip R. Martin Secretary Gordon read the request from the application as follows: "Property is presently zoned: R-lA. Formerly zoned: R-lA. Denial was made upon existing zoning requirements from which relief is required: R-lA zoning requires 25' setback and 25' front yard setback. Nature of exception or variance required: ApPlicant is requesting the rear setback be reduced to 22'1", therefore requiring a variance of 2'11", and front yard setback to be reduced to 23'2", therefore requiring a variance of 1'10" Name of Applicant: Philip R. Martin, 211 S.W. 5th Avenue." Secretary Gordon further read the applicant's answers to the six questions a through f, question 5, "Statement of special condi- tions, hardships or reasons justifying the requested exception or variance": "When I purchased this house July 1982 a concrete slab was already in the back of the house running the full length of the house from East to West (43') and out from the house 13' Not realizing this was against code, I erected a wooden over- - 5 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 hang to cover the slab so it would be more enjoyable for my future wife and me in the evenings, and it would also help keep the house cooler from the heat of the sun. Another reason is that I plan to be married 5 November 1983 and have the reception in the back yard; this (patio) will help in case it may rain. Now I understand that ~there is a 25' setback from the property line. With this concrete porch as it is, there is approximately 23' in the back yard. Our backdoor neighbor has the same lot size, same house, etc, and has added a porch to the back of her house the same width as ours. The remaining backyard should be around 23' as well.' The same holds true for a neighbor east of us. Obviously they have both applied for variances and received one. So by grant- ing a variance to me I do not feel it would be injurious'to the area involved or otherwise detrimental to the public welfare. Also I will be able to have an enjoyable wedding." At Chairman Thompson'~s request, .Phil Martin came forward'. Refer- ring to the notice sent to the property owners within 400' Mr Martin advised that he went around the neighborhood and collected signatures of those who agreed with him that he should get the variance. Mr. Martin passed that around to the~Members. Also, pertaining to item c, Mr. Thompson advised that he took photographs of the area where there were places that basically do have the same type patio that he is trying to get. He passed the photographs around to-the Members. Mr. Ampol asked Mr. Keehr about the floor slab - if it is a 4-inch slab with 2500 lb. concrete. Mr. Keehr answered yes, but advised that it does not conform. He said the slab was poured as a patio slab with no indication that it would be utilized for a structure at a later date. It contained no further design, consequently it was issued as a patio slab. Mr. Martin advised that he did put an overhang on there but he did stop building on it to come before this Board. To take the weight, he did put some footers 24x12x16 on the base of each pole that's holding .up the patio. He referred to a .bl'ueprint he had and noted that he does'have concrete rods poured through it. He said he is not aware of what the previous owner did to that concrete slab. Mr. Ampol re-established that Mr. Martin actually purchased this house on July 1st, even though the deed is dated May 13th, 1982, with the slab already in. Mr. Martin confirmed this. Mr. Martin advised that he is not asking for a variance in front, just in the back. Because the application shows request for both, Mr. Keehr advised that the front yard setback is being requested by the Building Department because of the fact that it does not - 6 - MINUTES- BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 meet the required 25'. This came about through the inspection and approval of a 'home without a up-to-date surveywhich they do require today, so it was an error brought about by the Building Department due to the fact that they did not insist on a tie-in survey at that time. However,~ the Building Department felt that, at this time, that should be corrected by this Board. Mr. Weinberg asked Mr. Keehr if the concrete slab, that was part of the house when Mr. Martin purchased it, would be considered a safe foundatiOn for the substantial structure that Mr. Martin was putting on it. Mr. Keehr answered, "Not without underpinning that portion of it that supports the steel stantions, of which Mr. Martin haS stated he did; and if that can be verified, that would be ample support for that particular structure." In the light of the fact that originally it did not have it and Mr. Martin claims he did put it in, Mr. Weinberg asked Mr. Keehr if he didn't think they should get some verification of'that fact before this Board votes on it. Mr. Keehr advised that the veri- fication of the structural soundness of the addition will be up the Building Department to verify and they will verify that. He noted that the responsibility of this Board is to either grant or deny a variance to accept that. Mr. Weinberg asked if a permit was ever issued for that slab. Mr. Keehr advised yes, .there was a permit issued for that on August of 1981 to a Mr. McKenney. Looking at it on Microfilm, he noted that it indicated no footer or any indication that a structure would be put on this at a later date. Reviewing all aspects of this case, Mr. Slavin felt that the only thing this board should be interested in is the basic re- queSt for the variances of 2' 11" and 1' 10"~ Chairman Thompson thought he was right; however, the building is there and if it was going to have some bearing on the vote in this ca,se, he felt the questions were in order. Mr. Slavin disagreed, according to his interpretation of the guidelines this Board has been given to go by, and he feels certain that, if this variance is granted, the Building Department will follow up and see that everything is acCording to Code and safe. Since the building is there, Mr. Weinberg expressed his concern that this Board would be liable for any damages incurred if some- thing should ~happen between the time the variance is granted and the time the Building Department gets to it. Mr. Thompson did not think so. Mr. Martin referred to his letter in the request where he advised that he was planning to have his wedding in the back yard. He said he was red-tagged for putting on the overhang. He felt every- one should be allowed to foul up one time. He now knows his mistake and is trying to get it corrected. Chairman Thompson asked if there was anyone in the audience who would like to speak in favor of granting the variance. - 7 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 Lois Cox came forward, introduced herself, and gave her address as 215 S.W. 5th Avenue. She stated that she is a next door neighbor and sees no harm in it. She cited one home in'partiCular that is completely cloSed in and very, very close to the property line, and there had been no objection to it then and she sees no objec- tion at this time. Chairman Thompson asked if there was anyone else to speak in favor; there was no response. He asked if there was anyone who wished to speak against the granting of the variance; there was no response. Mr. Ampol ascertained that all property owners within 400' have been notified and no responses had been received by the Board other than the list that Mr. Martin brought in at this meeting. Mr. Slavin noted that Mr. Martin did bring in a list of people who do not object, and that Mr. Martin, on the 9th of October, got 10, 12, maybe more names, and it is now a matter of record. Chairman Thompson noted that he was a member of the Board at the time that other property in the neighborhood came before the Board back a few years, and he does believe that Mr. Martin is just one of several with the same type situation existing with patios and overhangs. He noted that backyards in that neighborhood are en- closed with 6' fences. Mr. Ampol moved to grant the variances because he believed Mr. Martin gave good reasons for it. Mr. Slavin seconded the motion because 1) Mr. Martin bought this 'house with the concrete slab approved by the City of Boynton Beach, 2) Half of this variance request is not his fault; it is the City Building Department at the time the house was built, and 3) Mr. Martin wants to build a overhang and states he definitely will file for permits and everything necessary for the safety of it. At Chairman Thompson's request, Mrs. Bee took a roll call vote on the motion as follows: Mr. Mearns - Aye Mr. Weinberg - Aye Mr. Ampol - Aye Chairman Thompson - Aye Mr. Gordon - Aye Mr. Slavin - Aye Ms. Artis - Aye The motion carried 7-0. The variance was GRANTED. Secretary Gordon retUrned the pictures to Mr. Martin at this time. MINUTES- BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 PUBLIC HEARING ~'3 Case ~43 - Parcel R, Replat of First Section of PALM BEACH LEISUREVILLE Recorded in Plat Book 28, Page 201 Palm Beach County Records Request: Variance from zoning ordinance to allow open maintenance equipment storage area in REC zone Address: 1007 Ocean Drive Applicant: Palm Beach Leisureville Community Association, Inc. Secretary Gordon read the request from the application as follows: "Property is presently zoned: REC. Denial was ~made upon exist- ing zon~ing requirements from which relief is required: SEE ATTACHED. Nature of exception or variance required: SEE ATTACHED." Secretary Gordon interrupted to note there are 14 pages attached; then he continued to read from the application: "Proposed improvement: See attached site plan showing as-built, with agreed additional landscaping (Earl H. Martin ASsociates, dated June, 1983). "Name of Applicant: Palm Beach Leisureville Community Association, Inc., 1006 Ocean Drive." Secretary Gordon read the at%achm~nt a~s~i~n~#3 on the application: "DENIAL WAS MADE UPON EXISTING ZONING REQUIREMENTS FROM WHICH RELIEF IS REQUIRED: The Codes Enforcement Board, by order dated May 24, 1983, has determined that the subject facility, as it is currently being used, constitutes "open storage", in violation of §~ 5C R1AA-1 (Appendix A) Uses Permitted, ~7 (Appendix B - Planned Unit De- velopments) Uses Permitted, and ~1 (Appendix A - Zoning). Appli- cant haS since requested reconsideration, of the Board's order, on two bases: 1. The opinion of Carmen S.. Annunziato, that the current use of the subject property and facility is a permitted accessory use. 2. The subject property, it has been discovered sub- sequent to the hearing, is zoned REC, not R1AA or PUD. · he Codes Enforcement Board's order gave the applicant a period of 60 days to bring the property into compliance. At the hear- ing, during his testimony, Chief Inspector Edwin W. Winch, Jr., suggested that the proper procedure for the applicant to follow would be to obtain site plan approval, from the Planning and Zoning Board, Community Appearance Board, and the City Council. This process was promptly undertaken, and Community Appearance Board and Planning and Zoning Board approval was obtained. In - 9 - M33~UTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 addition, the Technical Review Board recommended location of the facility in another site not in proximity to hOusing, such as the golf course. The Technical Review Board further recommended that if another area could not be secured, that the facility at the requested site should be a building of architectural style and feature similar to the remainder of the buildings in the recreation area. These recommendations were rejected by the Planning and Zoning Board, as the subject site is in proximity to less housing than any site on the golf course, and because of the financial reasons described below which precluded construction of an architecturally similar building. The matter came before the City Council for final approval on July 19, 1983, at which time the application was tabled, for the purpose of obtaining a legal opinion from .the City Attorney regarding the Council's power to approve such an application. Among ot'her things, it appeared that no original site plan for the subject property had ever been approved. On August 2, 1983, the City Council unanimously referred the application to this Board, for considering the granting of a variance." Secretary Gordon read the attachment answering ~4 on the application: "NATURE OF EXCEPTION OR VARIANCE REQUIRED: Applicar~t~seeks a variance which would allow it to maintain a fenced-in concrete slab, surrounded by 6 foot high hedging, for the purpose of storage of self-riding irrigation system mainte- nance vehicles, and lawn maintenance ~ehicles, serving the recreation areas and lawns in the Ralm Beach Leasureville com- munity. These vehicles include a pickup truck, vans, self- riding lawn mowers, and a mini-sneaker. The applicant has been using the subject facility for parking of these vehicles since April, 1982. From April, 1982, through November 1, 1982, applicant was also storing other materials in this facility. These other materials were removed on or about November 1, 1982, and applicant does not seek a variance for storage of same, which include tools, supplies., and other than vehicles or self-propelled equipment. Applicant, since November, 1982, has not been using the facility for the parking of non-riding self-propelled Vehicles, such as lawn mowers. Applicant requests a variance for keeping same in the facility. Further, applicant requests a variance for'the temporary loca- tion within the facility of lawn fertilizing equipment and - 10- MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 machines, during the times when periodic fertilizing of the lawns in the community is being undertaken. In the alternative, applicant seeks approval of the above as a permitted conditional use, pursuant to ~5.1.1A (REC District) as ancillary to the golf course, and as a conditional use to the homes and condominium apartments in the R1AA District, as ancillary to the maintenance of the lawns and sprinkler system therein." At the request of Chairman Thompson, Mark Schorr, from the law firm Becker, Poliakoff & Streilfeld, came forward and introduced himself as an attorney for Palm Beach Leisureville Association. He explained that the application is lengthy and detailed with attachments be- cause of the unusual situation they are in, He wanHed to emphasize that this community association is not a voluntary organization - it is responsible, under these documents which are covenants running with the land, for performing a number of functions including lawn maintenance and irrigation or sprinkler system maintenance. Also, they are not a for-profit organization and unlike almost every other applicant which comes before this Board. Mr. Schorr distributed seven pictures of the facility to the Members and noted that they were all identified on the back. He said that they were all taken from ground level and they show hedging which the association has put up for the purpose of screening this facility. Mr. Schorr proceeded to explain why they were here and how they got here. He said this association, like any other community or condo- minium association, must perform the enumerated services - no choice; but unlike a condominium association, this association does not have the benefit of the Florida Condominium Act which, in essence, says that a condominium association shall operate in the black. IH doesn't have the power to just assess for whatever it wants to assess for. It cannot raise its budget more than 5% per year with-~ out getting 75% approval from all of the members, and it can't levy special assessments without getting approval from all of the members. Mr. Schorr referred to the detailed answer to Section 5 of the application, "Statement of Special Conditions, Hardsh'ips and Reasons Justifying the Requested Exception or Variance". He explained'the problems the associatiOn ran into with the sprinkler system and pumping stations needing renovation. Also, Hhe contractor doing a very good job. The community association determined they could do it better and cheaper if it did it itself, but to build a beautiful storage building on site costs money that the association does not have. He said the participation.and response in this community is a very dismal one. Mr. Schorr explained that the association started their plans for this facility and sent their General Manager, Oliver Troup, to City Hall where he was issued a permit for the slab, but the contractor they hired to put up the fence put i_t~up_~wi~hOut a permit so the fence was red-tagged - then they got a permit for that. That happened in - 11- MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983~ the spring of 1982. Then in October of 1982 in the same parking lot area, another activity was going on with asphalt tank & equip- ment for repaying of the community streets. Because of rain, it was there for about a month instead of a week, so some residents complained to the community association and apparently to the City so the Codes Enforcement Officer came down. At that time, as stated in the application, not only were vehicles and rid.eable equipment being stored in there but plain old fashioned tools and supplies - PVC pipe, drums, etc. - so the association was cited. Mr. Schorr said they immediately began removing the equipment~ the tools, the PVC pipe, the drums - leaving nothing but the rideable vehicles. Nonetheless, the city brought the association before the Codes Enforcement Board where the Board decided that i~consti- tuted open storage. Instead of appealing, the association followed the Building Department's recommendation to get approval for the site plan. He noted that the earlier portion of the application recites the litany of why they ended up here. Mr. Schorr addressed the six factors this Board considers. He said the special conditions attached to this land are documents attached to the application - the Declarations of Restrictions, the Articles of Incorporation, and Bylaws of the association. He said it tried to amend these documents so that it could assess its members for whatever needed to'be done, but the response was dismal. He said it conducted a campaign over the past few weekS to gather support on petitions in support o'f this variance (which he planned to sub- mit to the Members) and' it didn't get 50%. He understood there was also a petition that went around from. the opponents. Mr. Schorr pointed out that he knows of no other community in this city that has this situation where it must perform services and can't raise money for it. This community was platted, approved, C.O.'s issued, and all construction undertaken before the City's present PUD regulations for provision of on-site maintenance facilities. This community had to hire outside contractors and the cost has become prohibitive. It has gotten to the point that the only way to maintain the existing quality and level ~of services was to ~start doing the irrigation system maintenance itself, and the facility for which they are asking a variance is the only one the association can afford. Mr. Schorr said under criteria ~2, the special conditions and circumstances are not the applicant's fault - they are the developers. Mr. Schorr said under criteria ~.3, granting the requested variance will not confer any special privilege on the applicant. He said that granting this variance would mean this planned community would have what every other planned community in the .city has or should have. Mr. Schorr said under criteria #4, they submit that the Codes -12 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 Enforcement BOard's very literal interpretation of the definition of open storage, which isn't permitted in any of the zones, ends up depriving the members of this association the rights that every other planned community and condominium resident has. If this variance isn't granted, something has to be cut - the level and quality and frequency of~mowing the lawns, sprinkler systems. Addressing criteria ~5, Mr. Schorr said this variance is the minimum - they are not asking to be able to put back the PVC pipe and metal drums, they just want to keep rideable self-propelled vehicles in there. FihatlY"(%6),;~Mr~ Schorr-~fei~that t~swillibeiq.~b~y with the ~oD/ng~. In th~alternative, Mr. Schorr submitted ~na~ ~n.ey are asking na~ this be permitted as a Conditional Use or Accessory Use. He felt he could run through how this facility satisfies all criteria there too. Mr. Schorr again acknowledged that there's been a lot of objection to this facility, and it was objection by some members of the Palm Beach Leisureville Community that brought this to the atten- tion of the City in the first place. He pointed out that these objectors, some of the neighbors of this facility, are members of the community's association just as much as everyone elSe in Palm Beach Leisureville~and the responsibility/obligation is to them also. Mr. Schorr said there were many alternatives proposed and all were rejected because the association couldn't affor~ it. He said this proposal, as opposed to the Technical Review Board's suggested alternatives, affected the fewest number of people. Out of 2,305 families in Palm Beach Leisureville, only 15 condominium units and 22 single family homes'can see those hedges. Mr. Schorr felt that no one could see over them,.~anO in, because everything surrounding the property is single story. Mr. Schorr referred to a newspaper that the community association publishes and distributes to everyone in Leisureville and an article in the last issue about this pending application~. Mr. Schorr, at this point, distributed to the Board Members duplicate copies of a flyer that was contained in that newspaper. The flyer asked the members of the association to sign in the space provided if they were in favor of this application. Mr. Schorr then submitted to the Board a file 6 or 7" thick containing an estimated 1,055 signed statements, noting that it is 1,055 of the 2300 people in the community and it is estimated that about 700 are still up north. Mr. Schorr asked that the objectors and this Board to understand that the objectors have basically three alternatives: 1) If this isn't approved and they have to go back to using an outside con- ~. tractor, something else has to be cut. He elaborated on their budget, delineating a list of items all of which, he said, relates to the appearance, character, and quality of the community. -13- MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 2) Mr. Schorr said the second alternative is for everyone to turn out and 75% of the residents to affirmatively vote to amend the articles and incorporation and bylaws to allow the community asso~ ciation to assess. 3) Mr. Schorr said the third alternative is for the objectors to drop their objections now that the hedges have all grown up. He noted that the Community Appearance Board re- quired them to plant more hedging, not immediately surrounding the facility, but on the street at the front of the parking lot, and they gladly did that. The most a~thetically pleasing version of this is what they want also, and that's what they've tried to pro- vide. At this time, Mr. Schorr invited questions from the Board. Mr. Slavin asked where they are now keeping their PVC pipes, back- up pumps, sprinkler heads, etc. Mr. Schorr answered that, on or about November 1, 1982, a mini-warehouse tyPe facility was rented outside the premises. Mr. Slavin asked if they could store the other equipment in the warehouse type facility. Mr. Schorr said the problem is cost. He said it was estimated that the additional cost of not only renting, but the additional time and labor for its employees bringing the vehicles back and forth every day would eliminate a good percentage of the savings that they realized by having this facility on-site. In addition, Mr..Schorr did not think the neighbors of this facility would appreciate the parade each morning and evening of the golf carts, lawnmowers, vans, etc. riding from the outside parking facility. Mr. Slavin asked if the 5% increase in their budget would cover the cost of building a structure (that is an alternative). Mr. Schorr said no because inflation has been more than 5% a year and 5% a year has. not been enough to keep up with the increase in costs of everything. Mr. Ampol referred to quite a few letters he had objecting that bags and. other stuff Was ~hrown around and they were not keeping it neat. Mr. Sch©rr said he is not there every day but Mr. Troup, the General Manager of the Association, was. present and could answer directly as to that. Mr. Schorr referred to their answer to criteria ~4 and told the board that they would do their best to keep it neat, and garbage and bags aren't thrown around on a regular basis. Mr. Gordon asked what they had inside the shrubs. Mr. Schorr said currently and since last November, pick-up truck, van, self-riding lawn mowers, mini-sneaker (a trenching tool that is a self-propelled rideable vehicle). It was ascertained that that's what they use for maintenance of the irrigation system. Mr. Schorr advised that they .are also asking for the ability to store lawn ~maintenance riding vehicles in there. Since the request was just made to store lawn equipment etc., Mr. Slavin asked Mr. Keehr if, in his opinion, that becomes a commercial structure. Mr. Keehr said no, not in itself, it does not. - 14 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 Mr. Weinberg said that he understood in addition to that they have a contractor who does the landscape maintenance ($eacrest Maintenance) and they are keeping equipment in there. Mr. $¢horr said they are. Mr. Weinberg also understood that they were not supposed to and according to the contract the association had with Seacrest, Seacrest was supposed to take their equipment'home every day. Mr. Weinberg did not know if the request for a variance includes storage area for the contractor. Mr. Schorr said Mr. Troup could address that question. Chairman Thompson interjected to note that they ha~e 6 members voting on this instead of 7 beCause of conflict of in%erest - George Mearns had stepped down. Oliver Troup came forward and introduced himself as the General Manager of Palm Beach Leisureville. He reported that, prior to his arrival to Palm Beach Leisureville, the lawn maintenance equipment by the former contractor, not Seacrest, stored their equipment outside behind some shrubs that surrounded one of the pump houses. The only equipment that they stored in those areas was equipment that was difficult for the contractor to remove. When the Board of Directors directed him to have this compound constructed, they took the opportunity.at that time to bring that equipment from what they considered a more unsightly position into what we considered was going to be a much more pleasing facility to look at. Mr. TroUp said he could not promise anyone, but they ~e'very intendment to keep this particular compound in the condition.that it should be kept. He said they hear very quickly if a towel is hung up to dry on a fence, and they just as quickly have it corrected. He noted that errors are.made from time to time because they are dealing with people, but it is no longer a junk yard. He said it was originally unsightly because they attempted to do too much with it. Theyattempted to store maintenance materials, small tools, plumbing supplies, with a rack up higher than the compound. He said the association board, when~they were first approached with a petition from the concerned people nearest the compound, quickly reacted to the people who were concerned and quickly had those things removed. Mr. Troup said as General Manager, he wasn't able to save as much as he felt he was going to be able to save. .He admitted earlier that he had gone probably too far. Referring to what has been done to enhance this compound ~o make it more sightly and more palatable and what the association board has agreed to do in addition to make it more palatable, Mr. Troup said the association board wants to do everything i~ possibly can to satisfy everyone in Leisureville and not just those who voted for the compound. Mr. Weinberg reminded him of the question of Seacrest keeping equipment there. He asked if they were permitted to. Mr. Troup -15- MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 said yes, they are permitted if the association permits them to. Before, they were keeping it outside in an open area on the property. The difference is, they have brought it into a controlled area. Lowell Bennett came forward and introduced himself as a 4-y~ar resident of Leisureville and Member of the Board of Directors. He stressed their financial problems and severe.restrictions on assess- ing the residents. Repeating much of what Mr. Schorr and Mr. Troup had reported, he noted they were victims of circumstance. He also stated that it is their intention to maintain and keep the rented storage space outside of Leisureville, and they have no intentions of putting anything in the compound except riding type vehicles. Addressing the question of storing everything in the rented storage Mr. Bennett advised that they would still have to gather them all in, in the parking lot every morning for assignment. He agreed that it would create bigger problem than having them in Leisureville. He said to get the carts, wagons, and lawnmowers from the storage to the parking lot, there are two ways. One is to drive them and the other is to rent or buy a truck and a trailer, load them on the trailer, haul them over there, take them off. Heldidn't think that was too practical. He didn't think the City wanted that type vehicles running up and down Boynton Beach Boulevard. He thought it would be a traffic hazard. Mr. Bennett said they were willing to go to any reasonable limit to landscape the piece of property they were talking about. He said there was literally no landscaping there - just a flat expanse of grass and flat expanse of asphalt - and now it is nicely land- scaped and will be improved upon if this variance is grant, ed. Mr. Bennett wanted to point out that at ~the very inception of the complaint that was handed to the City from Leisurevilte, there were several other items in the complaint which had nothing to do with action that this Board chooses to take. He said they were eventually dropped one by One down to where they have the single issue left. Mr. Bennett felt that the complaints could have been settled at a much earlier date with much less problem if the Leisureville resi- dents would take advantage of the open meeting that is held once a month, giving them an opportunity to give them'.all their complaints. It can be handled internally without involving outsiders..~ A1 Beck came forward and introduced himself as a 10-year resident with~.his wife Tina at 1504 S.W. 8th Avenue. He said they have enjoyed low maintenance. He reiterated that the maintenance of irrigation systems and pumps deteriorated over the years at the hands of various lawn service contractors, and he referred to the progressive action of the Board of Directors whereby they took proper action to maintain the .irrigation systems at a substantial savings to all the residents. He also talked about %-he improved appearance of the compound area. He said he and all his neighbors -16- MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 respectfully request that the Board of Adjustment approve the variance as requested. M. J. Pitre, 2006 S2W. Golf Lane, came forward and concurred and supported all the reasons that were presented by Mr. Schorr, Mr. Troup, Mr. Bennett, and Mr. Beck.. Mr. Pitre wanted to bring out the point that this non-parking area is approximately 32' by 90' and only covers an area of 2880 sq.ft. located on the west side of the large existing vehicle parking area which is approximately 156' by 180' which is seven times larger than the small parking area in question. The reason for his comparison of the two areas was to point out that this small compound is nothing more than a vehicle parking area for the maintenance equipment. Since they secured the downtown storage space for ... other supplies, he felt this matter should be considered more in terms of an addition to their parking area. Referring to a huge pile of "fill" dirt to the south of.that com- pound, Mr. Weinberg asked Mr. Keehr if it is in the province of this Board to restrict the use if they decide to grant the variance. Mr. Keehr advised that it has been determined by the Building Department that that area is being utilized for open storage and that is not a permitted use for that zone. Storage of the black dirt is in addition to the vehicles stored inside and~this is open storage. However, a pile of black dirt being used to fill around their shrub garden, in itself, would not constitute a vio- lation. Gene Moore, Attorney at 640 E. Ocean Avenue, came forward repre- senting a group of people who opposed the granting of this variance. He stated that they feel this would be an improper use. He sub- mitted a petition dated September 26th with approximately 16 names which was in addition to prior objections filed with the Board. He wanted to dispell any indication that all matters of contra- versy had been withdrawn. One critical question, in item 2 "How the Property is Zoned", it was indicated REC, and Attorney Moore submitted to this Board that the proper zone is R1AA. He felt that point was established at the City council meeting when the City Attorney ruled that it was R1AA classification and the City Manager indicated that the open storage uses are only allowed in M1 or C4 zones. He also referred to Councilman deLong's state- ment that it doesn't matter what zone it is because open storage is only allowed in M1 or C1 zones and this case is neither. Attorney Moore pointed out that they want to store some equipment in there in addition to the vehicles themselves, and that is sufficient equipment to service residential units in excess of 2300. He felt that amounts to or constitutes commercial useage. He said they are actually asking for a change in the zoning from the R1AA status to something comparable to a M1 Industrial or C4 Commercial. -17- MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 Attorney Moore emphasized that this city did not get involved in inducing those people to buy this property and did not take part in drawing those rules and regulations and bylaws, no matter how poorly they may have been drawn, and he did not feel it proper for this city to get involved in what amounts to a civil dispute be- tween a large number of people. Attorney Moore noted that if things get bad enough, they will get together and do whatever it takes. It is solely an economic problem and they are attempting to keep assessments down - like everyone else. He indicated this as a violation of the zoning code and the building code, and they should not be held any less accountable than anyone else. He said that is a self imposed hardship when they bought into that. Attorney Moore respectfully requested that this Board deny this application and leave these people to their own sources of solving a problem which is strictly an internal one which the city should not get involved. Mr. Keehr noted that, although this Board may not have the power to change zoning uses, it does have the power to make its own determi- nation and interpretation of the Building Department's determination and interpretation. In this case, the Building Department'~s determination that this is open storage has been challenged, therefore it is in the power of this Board to look at the uses of R1AA PUD with a REC within it use,.with the uses, with the definition of open storage, and with its~own interpretation. Councilman deLong advised that the statements he had made were based on the legal opinion of the City Attorney. Arthur Short, 1111 Lake Terrace, thought, since this area has been made to look better and i% '~will be a financial burden, possibly some of those who objected before may not now object and might be given a chance to withdraw their complaint. Attorney Schorr referred to the Conditional Uses permitted for REC and R1AA districts and felt this kind of facility falls into that definition. He said they were going through the site plan. process for that - through Planning & Zoning, Community Appearance Board, and City Council; and Council got an opinion of City Attorney Vance that they should come before this Board. Attorney Schorr referred to a possible law suit mentioned earlier by Attorney Moore. Attorney Moore clarified that he did not mean by his clients against Attorney Schorr's clients inside - he was saying that if there is a law suit against this Board for granting a variance then this Board would be forced into retaining somebody at taxpayers expense to defend its position. Attorney Moore clearly felt that if the maintenance responsibilities of the Association -18- MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 falls below an accepted level, it will be resolved, where it should be resolved, within the confines of Palm Beach Leisureville and not here in this Chamber. Mr~.:.Slavin recognized communications under memorandum dated September 29, 1983 from City Clerk's Office as follows: 3 to grant, 1 no, and 1 maybe; also, under memorandum dated October 10, 1983 from City Clerk's Office as follows: 2 yes, 28 no, 29 maybe, and 1 maybe with restrictions of dirt etc. Chairman Thompson announced that all communications are made a part .of the record and, as done in the past when'they receive more than 2.5, they will be put in the records in City~Hall for anyone to refer to in the future. At Mr.~JSlavin's request, Mr. Keehr gave a brief history: ~A permit to construct a 46x60 concrete slab was issued 1981. That applicav tion did not indicate the use of that slab. It is not required by the Building Department to require a use for that slab. It could be used for a shuffleboard or whatever. They issue concrete slab permits openly and for everybody except in a case where there is a drainage problem. Otherwise, they let people build patios any size they want. They can build all the way to the property line if they can keep the water off his neighbors. Also, a fence can be put up anywhere as long as it is the proper height. After the slab uermit was issued without any use, the fence permit was asked for and issued. When it was used for open storage is when the Building Department got envolved. To help define what is meant by open storage, Mr. Keehr read from the City Code of Ordinances as follows: "OPEN STORAGE. The safekeeping of any goods or products in an unoccupied space open to the sky for eventual removal not expected within 72 hours or for continuous replacement by same or similar goods or prOducts." Mr. Keehr believed the decision of this Board was an interpretation one and not to granting a variance. If they interpret this area to be open storage, it is not a permitted use. Chairman Thompson pointed out that they grant variances-for hard- ships created by the City or by other instances for Federal High- ways and whatnot, and he did not see a hardship created by any of those in this issue. He did not see any~here in the records in the development or changing of city laws where the City had caused the Leisure~itle organization to suffer. As pointed out by both parties, Chairman Thompson felt this is a responsibility of the organization. -19- MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 After thorough review and discussion, Mr. Ampol moved to grant the variance to Leisureville. Mr. Slavin seconded the motion for the sake of expediting the matter. Chairman Thompson reminded everyone that Leisureville needs 5 votes to have the request g~anted. Mrs. Bee took a roll call vote on the motion as follows: Mr. Weinberg - Nay Mr. Ampol - Aye Chairman Thompson - Nay Mr. Gordon - Nay Mr. Slavin - Nay Ms. Artis - Nay The motion failed 5-1 with Mr. Mearns abstaining. The variance was DENIED. OLD BUSINESS Request by Mr. & Mrs. M~D©WS 419 S.E. 4th Street Determination regarding removal of above ground swimming pool Chairman Thompson noted that this is the third .time this,has come before the Board. The last time the Board asked for an opinion from the City Attorney. At this time, Chairman' Thompson acknowledged an answer back and the Board's.right to hear it. Mr. Slavin asked if there were answers to the special conditions a through f. Mr. Keehr advised that this case is different from any other case they've heard in so much as they were not dealing with hardships in this case. They were dealing with interpretation only, which is their authority and responsibility to determine. Mr. Keehr explained that the Building Department has determined that this 4-foot pool, above ground in the rear yard of the home of Mr. & Mrs. Meadows at 419 S.E. 4th Street which is presently zoned C-3, constitutes adding to a non-conforming use. And that interpretation and determination has been challenged by the Meadows'. When a challenge is made, the appeal has to come before this Board. They are asking this Board whether it believes that this pool actually represents, in the intent of the zoning regulations, an addition to a non-conforming use. Mr. Keehr confirmed that C-3 is a Community Commercial District. Mr. Keehr stated that there is no permit issued on this at this time. -20- MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 Mrs. Cheryl Meadows came forward and explained her situation. Unable to sell her home, she impulsively purchased this pool and constructed it in her yard. S~he called Monday morning to see if she needed a permit, and was told yes. She had no idea she needed one. i,She'compared it to buying a swing set for her daughter. She felt it is a temporary structure. If they do get toi keep it, they plan on moving it on the back lot away from the house. When they sell the property, they will take this'pool with them. Mrs. Meadows advised that she did try to sell this property as Commercial property and because the zoning laws are so strict, people are turned away from buying it. The cost of bringing it up to code and turning it into a business Status i~'prohibitive. Also, their lot is only 35' by 50' long and she believes there are codes that would restrict any kind of business there because the parking is not there. So they are in the position of having a C3 zoning and have been told they cannot have their swimming pool there. Chairman Thompson asked if there was anyone else present to speak in favor of the variance. There was no response. Chairman Thompson asked if there was anyone present to speak against. There was no response. Mr. Keehr reminded the Board that they were not granting a variance, they were making an interpretation. Mr. Weinberg noted that City Attorney Doney states that"the powers of the Board of Adjustment is to hear and decide appeals when it is alleged that there is e~ror in'any order or final decision of determination made by an administrative official in the enforcement of any zoning ordinance or regulation adopted pertinent to this Chapter. I therefore would conclude that the Board of Adjustment does in fact have the authority and duty to decide an appeal when an individual challenges the determination or interpretation of the zoning code made by an administrative official. Therefore, the Board can properly review the decision of the Building Official concerning the above ground pool in question as to whether the use was non-conforming and whether the placement of the pool was an additional structure erected in connection with such non-conforming use of the land." Mrs. Meadows interjected that if she weren't an honest person, she would not have applied for that permit and no one would ever have seen that pool. She said she had no intention of doing any- thing behind the law. Chairman Thompson asked if this area was .aLways a business district - if this building was possibly in another zone. Mr. Keehr advised that when they purchased the property it was zoned C3 Commercial. -21- MINUTES - BOARD OF ~JUST~NT BOYNTON BEACH, FLORIDA OCTOBER 10, 1983 Mr. Slavin asked if the pool can be ~randfathered in as part of the structure~and as part of the right of the f~ily to enjoy its property. Mr. Keehr said no, it cannot be. The pool and the intent of the non-conforming uses ana adding to a non-conforming use is to restrict that and to discourage that. He said this zoning changed as far back as 1975. Mr. Weinberg made a motion that the 'equest be denied. Mr. Mearns seconded. Mrs. Bee gave a roll call Mr. Mearns - Aye Mr. Weinberg - Aye Mr. Ampol - Aye Chairman Thompscn- Aye Mr. Gordon - Aye Mr. Slavin - Aye Ms. Artis - Nay The motion carried 6-1. The request to keep the pool was DENIED. The meeting adjourned at 10:20 P.M. R~spectfully submitted, Iois Bee, Recording Secretary (three tapes)