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Minutes 09-12-83 MINUTES OF THE BOARD OF ADJUSTMENT MEETING AT CITY HALL, BOYNTON BEACH, FLORIDA, HELD IN THE BUILDING DEPARTMENT, MONDAY, SEPTEMBER 12, 1983, AT 7:00 P.M. PRESENT Vernon Thompson, Jr., Chairman Edgar "Bud" Howell, George Ampol, Vice Chairman Building Official Robert Gordon, Secretary Paul Slavin Harold Weinberg Lillian Artis, Alternate Leo Grossbard, Alternate ABSENT George Mearns (Excused) Joseph Moore (Excused) Chairman Thompson called the meeting to order a~ ~:.0~5 with an explanation of apology to.everyone for~,the small meeting room tonight. Chairman Thompson introduced the Members of the Board, the Recording Secretary and the Building Official, Mr. "Bud" Howell. He noted that two members have excused absences this evening. Of the seven rot.lng members ~onight, five assenting votes would grant a request and any other combination would deny a request one way or the other. MINUTES OF AUGUST 8, 1983 MEETING OF THE'BOARD OF ADJUSTMENT Mr. Grossbard moved to approve the Minutes as presented. Vice Chairman Ampol seconded the motion and the motion carried 3-0. Those not present at the August 8th meeting- abstained from voting. PUBLIC HEARING PROCEDURE The six (6) criteria on which the Member.s of the Board of Adjustment base their decision were ready, by Chairman Thompson. Chairman Thompson announced that applications-.would be taken in the order in ,which they were received at City Hall. Case #39 Applicant: Robert Brown Request: Relief from lot area requirement of 7,500 sq.ft, to be reduced to 6,625 sq.ft. Proposed Improvement: Construction of 1,500 foot minimum pole house (two stories) Location: 733 N.E. 8th Avenue MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 Secretary Gordon read from the application as follows: "PrOperty involved: Lot #45, Block #4, S/D Lake Addition to Boynton, Plat Book 1t, Page 71, or otherwise described as follows: Property Address: 733 North East 8th Avenue Property~ is presently zoned: R1A, 'Formerly Zoned: RtA Denial was made upon existing zoning requirements from which.relief is required: RiA zoning district requires minimum, lot area of 7,500 square feet. Nature of exception or variance required: Applicant is requesting the required 7. 500 square foot lot area be reduced to 6/625 square feet. Proposed improvement: Construction of a 1,500 foot minimum pole house, two stories ~ Name. of' Applicant: Robert BroWn Address of Applicant: 701 South Seacrest Boulevard, Boynton 'Beach" Secretary Gordon read the applicant's responses to the six questions as follows: "a. The special conditions that exist to this particular parcel of land are: the lot is presently zoned for single-family residential use, however~ at the present time, there exists a shortage of square footage on the road frontage, required by current zoning laws, to allow the COnstruction of a hcme. Also, because of the low elevation of the sites in this area, it will be necessary to fill at least one foot of fill over the entire area of the'property to enable this site to have a yard. Without this fill, the alternatives for the prospective hc~eowner would be to have a home in the middle of an inundated lot, with no available off-street parking. b. These special conditions do not result from any actions taken by myself, but are simply a result of progressive zoning changes that have taken place over the years since .the development's initial platting and the natural settling and decomposition of the muck topsoil layer. c. By the granting of this variance to build, the City of Boynton Beach will not be conferring any special privileges to this particular property that['~is de~ied ~ this ordinance to other hcmes or buildings presently in this same zoning d/strict. - 2 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 "d. The literal interpretationoftheprovisions of this chapter would deprive me of the rights that are enjoyed by other hemes'within this same zoning district and would work an unnecessary and undue hardship upon me. e. The-variance that I request is a minimum variance that will-make it possible for this land to be used for its most reasonable use in this area. f. The ~granting of this variance will be in harmony with the general intent and purpose of this chapter and will in no way be injurIous to the area involved or detrimental to the public welfare.' Mr. Robert Brown, 701 South Seacrest Boulevard, Boynton Beach, stated that .he has lived at this address for the last seven years. Chairman Thompson asked the applicant if there was any%'hing he would like to tell the Board that migh.t shed some 'ligh% on why he feels he should be granted'a variance. Mr. Brown stated that he purchased this lot with the intention of building a home for himself. He is presently, renting in his Mother's house and would like to leave so he purchased this land in order to build a house. -It is a very nice and quiet area. All of the traffic from Federal Highway and the railroad tracks is swept off to-the west by the nice breeze that comes off.the I~ntracoas~al so i%-makes an ideal lot for a nice quiet neighborhood. Mr. Brown contacted the property owners adjacent to the subj.~ect lot and was told they weren't interqs~ed~ breaking up their parcels of land 'just for a 10, 20 or 30 ft. accommodation go him so that he could buY 10, 20 or 30 ft. to allow himself the needed frontage. One property owner next to the subject lot, said he would sell both~of his lots which are currently listed at $25,000. That would be a financial burden on him to have to buy three lots to build on one. The reason Mr. Brown put ~l%pOte house" down is because the land is a little low, especially in one ar,ea. He understood that there'was some concern about filling these lots because of added run=off water. Mr. Brown thought the best compromise would be to allow the water to run under the house. He has seen a lot of pole houses constructed in New Smyrna, Hobe Sound, the Key~sc,~ Marco Island and St. Petersburg. They have a good, useful life of 25 to 30 years and the banks will finance on them. As long as it meets all the engineering specifics and requirements, he did not see that it would be in any way dangerous or anything like that. - 3 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 Chairman Thompson called for any questions of the applicant by the Board Members. At this time there were none. As this was a Public Hearing, Chairman Thompson asked if there was anyone else in the audience who. wished ~o speak IN FAVOR of granting the variance. There were no responses. Chairman Thompson asked if there was anyone in the audience wishing to speak AGAINST the granting of the variance. No-one responded. Mr. Brown asked if he could speak in his own behalf. He wished to add that he has spent about $1~500 for soil samples, etc., which would be nonrefundable if he 'did not get the variance. He said it would be money that'would be thrown by the wayside. Secretary Gordon'had two pieces of cor~respondence in opposition to granting the request. He.read a let%er received from W. Pflepsen and Susan Pflepsen dated August' 31, 1983. Secretary Gordon also read a notation written on the Notice of Hearing form, received from Henry Starr and Gisela Starr. Mr. Slavin had questions to address to Mr. Howell.. Mr. Slavln referred to Hr.. Brown's comments about a foot of fill on the property and then about a pole house. We have a blueprint of a building going up but Mr.~Slavin did not know whether it was being put' up on tiles or' being buil~ on the ground leVel. Mr. Howell stated-that a pole house ordinarily is set above ground and it will be allowed if it is structurally sound and does not exceed the height limitations. Mr. s~avin understood that but referred to the two statements~made about, a) a foot of soil and, b) a pole house. He did not knowlwhat the speciJ fications call for in the architect's drawing but asked if it would be a pol'e house or a house on another foot of soil. It was Mr. Howell's understanding that the applicant wanted to ~add a foot of fill which is possible as long as he doesn't impede~the natural flow of water because that is in a flood pla~e zone. It was also Mr. Howell's understanding that the pole house would be elevated above ground, level. In other words, Mr. Slavin. ascertained,~.that the-.applicant wants ~to~.'~ add a foot of soil and then build a pole house. ~Mr. Howell concurred. In this case, Chairman Thompson advised, it is not a question of the type of house as this 'is allowable by the City as long as it meets the standard code. The questi'on 'befOre the. Board tonight is~the~.~reduction of 875 square feet. Mr. Slavin asked Mr. Howell if there'was enough' square fOotage for this house .to be constructed on the property with the requeste~.~' setbacks. Mr. Howell replied affirmatively. - 4 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER ~., 1983 Vice Chairman Ampol addressed his questions regarding the height of the structure and proper footing to Mr. Howell. Mr. Howell concurred that it would be two Sto~esandwould be similar to setting on piles and the applicant would be limited to how high he could raise it. This would be determined by the pitch of the roof because there is a 25 ft. maximum height limitation, but the applicant would be able to raise it to a certain extent. Chairman Thompson commented that if the request is granted, the ~½' sethack~requirement would be met and the house would be 35' wide. Being a newcomer on the Board, Mr. Weinberg asked, the Chairman if it was the Board's responsibility to consider the type of house being built on the property in relationship with the surrounding area. Chairman~ Thompson referred to properties being zoned according to the City ordinances. He didn't believe that, lawfully, the Board could say what style of house should be constructed. As long as it meets the City specifica .... tions, design is not part of'that interpretation.. Mr. Weinberg commented that one of the objections here states that it is an inappropriate structure for that location and he was just wondering whether the Board had to take that into consideration oral,not. Mr. Weinberg stated that the'Chairman's explanation gave him the answer. For the record, Chairman Thompson commented that, as was pointed out,there are two vacant lots and to purchase tWo lots would be a hardship. Chairman Thompson~believed from what he saw on the other side, there was no land available. Mr. Brown added that there was a home on the other side. Mr. Slavin moved to grant Mr. Brown the variance as requested for several reasons: 1) The lot is not conforming because of City actions in upgrading building codes and zoning laws. 2) Back in 1972, we have copies of MinUtes of the Board of Adjustment, granting a variance to this lot to build a residence on a 50 ft. lot. We know we have factual records that Mr. Brown tried to purchase additional property and it is beyond his means. We know that we cannot deny a person the use of~ their property. The house will fit within the variance required. The Building Department will see that all codes, heights, etc., will be kept and maintained and will be built accordingly. - 5 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 Vice Chairman Ampot seconded.the motion. Under discussion, Mr. Weinberg referred to the Minutes of 1972 and asked if the variance was granted once, and the property still remains vacant, as in this particular case, is it necessary to get a current variance. Mr. Howell advised that tha~variance was on the frontage which was 60' and~the, variance~being applied for now refers to the total square footage. At the request of the Chairman, the Recording Secretary took a roll call vote as follows: Mr. Slavln - Aye Mr. Grossbard - Aye ~ice~C.hairman Ampol - Aye Chairman Thompson - Aye - Mx. G'ordon - Aye Mr. Weinberg - Aye Ms. Artis - Aye Motion-carried 7-0 in favor of granting the variance. C~se #40 Applicant: Anthony and Carol DiNorcia Request: Relief from 10 ft. side yard setback requirement to be reduced to 5 ft. side yard setback Proposed Improvement: Construction of an addition containing a bedroom, closet, bathroom and garage Location: 605 Whispering Pines Road Secretary Gordon read from the applciation as follows: "Property involved: Lot7, Block 8,.S/D~.MissionHill, Plat Book 24, Page 178, or otherwise described as follows: Address: 605Whispering Pines Road Property is presently zoned: R-1AAB, Formerly Zoned: R/AA Denial was made upon existing zoning requirements from which relief is .~equired: R1AAB zoning requires 10' minmmum side yard. Nature of exception or variance required: Applicant is requesting that the side yard be reduced to five feet (5'), therefore a variance of five feet (5') is required. Proposed improv~nent: Bedroom, closet and bathroom and garage. Name of Applicant: Anthony and Carol DiNorcia Address of Applicant: 605 Whispering Pines Road" - 6 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 Secretauy Gordon read the applicant'.s responses to the six questions, as follows: "a- There are no special conditic~s. b. ConditioD~are caused byapplicant. c. It will be a special privilege. d. The provisions do not deprive applicant of rights. e. Variance g~anted is a minimum of size of rooms. f. Variance will not be injurious to the area, or detrimental to the public welfare.TM ~'r. Anthony DiNorcia, 605 Whispering Pines 'Road, Boynton Beach, came forward. Mr. DiNorcia stat.ed that~there was a correction to be made and that the request is reall'y for five feet in the rear but in the front, it would be about seven and one half feet because of the angle of the property. He is, therefore, only asking for a two and a half foot varfance in the front part of the extension.~and pointed this ~out on btuep~in~.s .shown to Members.~ Mr. DiNorcia stated he has made q~ite a bit of improvements' to the house, however, h~ ~in~e~.~an?_useadditional living space. They hired a designer to come up with the' best way to utilize %he house and gain some living space. This was the best he could come up with, without .~.dest~o~i~g'~.-%he house while it is in construction. They would like to stay in the house while the addition is going on and i~ order to do that, this was the only way they could figure how to do it. It is the best. Mr. DiNorcia pointed out that i.£~there is a prob. lem.~with~ privacy.on,one smde, (which he did not think there was'~because there are plenty of trees there), he would be more than willing to build a privacy wall or fence, whichever one the Building Department would allow. Upon looking at the property this morning,, for a second time to convince himself, Mr. Gordon didn't know where this addition would be because there is a two car garage there now. Mr. Gordon did not know where his property~ends. Mr. Gordon saw some trees and from his observation, did not even see where Mr. ~iNorcia has the 5' variance. Mr Gordon thought that perhaps the Bocchi court would be taken away and Mr. DiNorcia would build back there. Mr. DiNorcia stated that was the wrong side. ~,~-He_showed Mr. Gordon the location of the addition from the survey brought forward by Mr. Howell. - 7 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 Mr. Weinberg asked the applicant if~ the tine Of demarcation between his house and the house next door is the little row of bushes. It was ascertained that they were on the applicant's property. Chairman Thompson remarked'that was why it looked so narrow. In answer to Mr. Weinberg's question, Mr. DiNorcia explained.Where his property ends. He also stated that one of the things that happened after the addition was designed was that they did not realize that the property had an angle to it and when it was placed on the survey, they realized that it needed-more than a 2' variance. It deepens as it angles. Ms. Artis asked Chairman Thompson to l'ook again at the answers the applicant submitted to Section 10. a, b, and c, "They~d0~no~ hold up to Mr. DiNorcia's application. Our job is to find special conditions and by whom these conditions are caused. Ms. Artis stated that the applicant said there are no special conditions and that the conditions are caused by the applicant, which they are not. Chairman Thompson said that is a good point. Ms~ Artis also noted that it said, "It will be a special privilege"; we are not allowed special privileges. Chairman Thompson asked if there was anyone in the audience wishing to speak IN FAVOR of granting the variance. No one responded. Ms. Artis wondered, in .view of the applicant's responses, if he understood the questions. Mr. DiNorcia did not see where it was caused by the Building Department because at the time the houses were built, the setbacks were fine. If you want to add to the houses, you really haven't got the space because of the angles. Ms. Artis told Mr. DiNorcia the reason she was questioning ~his is because he is telling the Board that the provisions will not deprive him of his rights~ Mr. DiNorcia commented that he is not an attorney and really does not know how to interpret it. Before going into the Public Audience portion regarding those OPPOSED, Vice Chairman Ampol wished to interject. He received a photostatic letter from a doctor containing deed restrictions. The Board is not concerned with deed restrictions nor with Board of Directors'Association approval; its concern is the City of Boynton Beach Code of Ordinances. ~...The Chairman added that the City Zoning Code supersedes all other zoning restrictions that are formed by organizations. Chairman Thompson asked if there was anyone in the audience wishing to speak AGAINST granting the variance. MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 Mrs. Margaret C. Horton, 615 Hillcrest Road, stated that she is opposed to granting the variance because the neighborhood now has decent sized yards and if they grant one variance now, she is afraid other variances will be granted and the neighborhood would, with its nice sized yards, deteriorate. Attorney Arthur Bickel, representing Rita M. Stanek, 615 Whis~ pering Pines Road, stated that she was recently discharged from a hospital and could not come here but wanted her.~views to be known. She strongly opposes the variance for several reasons. The construction of a wall would cut off her air circulation and there is a question of loss of privacy. Mr. Bickel also referred to the question of noise and impairment to her use of the backyard, which she objects to. There have been no variances of this type previously granted and as the previous speaker suggested, this would be a "foot in the door" for granting of other variances and a gradual degradation of the neighborhood. Furthermore, there is a fairly large Dine tree which root System M~s. Stanek is concerned will be harmed by the construction th'a%~ may cause it to die. Mr. Bickel produced a photograph of the tree. On technical and legal grounds, Mr. Bickel referred to the Board denying the variance because it does not meet any of the guidelines which the Code sets out. The applicant has a very nice home and is enjoying the use of his property, and Mr. Bickel referrled to there being no particular hardship to this piece of property which needs to be rectified by the Board. As far as harmony.~wi~h the neighborhood, clearly, hawing a large warehouse-like structure occupying a large pro- portion of the lot is not in harmony with the appearance of the neighborhood and would be detrimental to it. The applicant has asked the Board to give him a special privilege which is opposed to the spirit of the Board~.s functions. Mr. Gordon asked if the Pine Tree was on Mr. DiNortia's property. Mr. Bickel advised that it is on the next door ~eighbor's property, very close to the property line. At t'his time Mrs. DiNorcia questioned a 'statement made by Mr. Bickel. Through t.he Chair, Mr. Slavin referred to the Board's limitations as to what it can do. The Members have been given guidelines, have had instruction, have attended workshops, etc. and know where they can go and what they have to do. Mr. Slavin questioned the Board's involvement with peopl~ outbursts. People have a right to speak but the Board must follow its direction. Chairman Thompson concurred and thanked Mr. Slavin for his concern that the Board not get into a cross-involvement. The Chairman asked if anyone else wished to speak AGAINST the granting of the variance. - 9 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 Mrs. Robert Alderman, 610 Whispering Pines Road, questioned whether it would make granting of future variances easier if the Board granted this variance. Chairman Thompson advised that eadh case is based on its own merits. We have to consider whether the City, County, Federal Government or whatever organization has placed a hardship on that particular property; not the owners. Chairman Thompson referred to the changes made in 1975 by the City ti~ upgrade property which plac~d ~a~dshipsi~on many people. Mrs. Enrico Rossi, 625 Whispering Pines Road, stated that this case does not meet the hardship requirements. Mr. Howell referred to the statement made that the Board does not get involved in deed restrictions, which he said was correct. The City has its own zoning laws, etc., but Mr. Howell felt, as a Building Official, he should make the Board aware that if a variance were granted, a permit was'issued~and there were deed restrictions, the Board may be subject to a lawsu~ It has been Mr. Howell's experience that this Board upholds deed restric- tions. Responding to a question, Mr. Howell had no idea if there were deed restrictions on this property or not. Mrs. Jean Heye, 615 Hillcrest Road registered her opposition to the request for a variance. Mr. Enrico Rossi stated that the questicns to be addressed are the ones raised by Ms. Artis~ the answers~ to the questions on the application. He was sure the Board would take this into consideration. Regarding correspondence received in opposition to granting the variance, after discussion it was determined that since the letters were so numerous and many were photocopies, Secretary Gordon would read the names into the Minutes. Mr. DiNorcia asked, "Do we have 27 people within 400 feet?" Mr. Ampol advised that all property owners within 400' are sent notices of the Public Hearing aside from a Notice of Public Hearing being published. Secretary Gordon read the following names: "Alexander Kortner, Steven E. Boltz, Richard W. & Kendall Dighton, Mr. & Mrs. Enrico Rossi, Bruce Noe, Lois & Richard Bee, Catherine Horton, Dr. James H. Pollock, Mrs. Olay R. Jergesen, Rita Stanek, Jean Heye, A.H. Kennemer, M.S. McCasilain,Jr.,M.D., Connie Glass and Dr.& Mrs. Peter Wintrich, Hesta H. & James Pollock, M.M. Sams, Robert Nichols, James E. Buffan, G.W. Matthews, Dr.& Mrs. A.H. Kennemer, Mrs. B.T. Davies, Margaret L. Dubendorff Lucy G. Alderman, Helen Percy and Harold Lynch" ' - 10 - MINUTES- BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 Mr. Slavin asked Mrs. DiNorcia if, when she replied to the Board's seven guidelines, she read them and understood ~what she was reading. Mrs. DiNorcia replied, "To the best of my knowledge." Mr. Slavin moved to deny this request for a variance. In all good conscience, Mr. Slavin could non see any way the Board could grant this when the applicants, by their own admission state, "a, There are no special conditions, b, The Conditions are caused by the applicant", and most important of all, "c, It will be a special privilege." Mr. Weinberg seconded the motion and stated that, as Ms. Artis pointed out, and as Mr. Slavin has reiterated, a, b, and c, show that there are no compelling reasons for the Board to grant this requested variance. At the request of the Chairman, Mrs. Jackson took a roll call vote as follows: Mr. Grossbard - Aye Vice Chairman Ampol - Aye Chairman Thompson - Aye Secretary Gordon - Aye Mr. Weinberg - Aye Ms. Artis - Aye Mr. Slavin - Aye Motion carried 7-0 to deny the request for a variance. Before proceeding, Chairman Thompson wished to poll~ the members on the unique situation they had encountered with this case regarding the numbers of letters received at their homes. In Chairman Thompson's eight years of service on the Board, he has never seen anything like this and believed the general opinion was that the members do not want mail sent directly to their homes. There is a mail box in City Hall for 'all letters includ- in9~ minut~es and they can't be lost. Mr. Ampol got a whole stack of letters at home and even had to pay for postage due. Mr. Weinberg stated that he and Mr. Ampol talked this over and .tkey strongly object to their names and addresses being given out promiscuously. We feel that if there is any mail or any point of information that should be brought to our attention, Mrs. Boroni's letter was explicit enough for that information to be conveyed to her which ultimately is conveyed to us. Mr. Weinberg continued to report that Mr. Ampol and he feel that their' p~i~acy ~is also invad~ed. He does not mean to cast any aspersions on any of the people who are here today, but they do know as a matter of fact, there was a case, which has been dropped, requesting a variance whereby certain people MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, 'FLORIDA SEPTEMBER 12, 1983 who objected to the granting of that variance had been threatened by the people who had requested the variance. "We feel we are doing a responsible job. We are not paid. We do this because we wish to contribute to the welfare of the City of Boynton Beach, but we don't feel that we should be exposed unnecessarily to any kind of vandalism or retaliation because we have failed to grant the requested variance, therefore, we feel that whoever gave out our addresses should be informed that this should not happen again." Mr. Slavin asked the Chair if he could say two things. One, he wished to get back to the last vote taken. He wants it clearly understood and in the record, that all these letters objecting to the variance have no bearing on the workings of the Board and that is very important. Chairman Thompson stated that he would have to cut Mr. Slavin off as he was out of order inasmuch as a'~vote'had already been taken. Mr. Slavin had~planned to make this point at the outset. Mr. Slavin's second point referred to Mr. Weinberg's remarks. It was a matter of publiC record as to who are on the various boards in Boynton Beach. "Unfortunately we axe aL1 listed in the telephone book and it is easy access. I agree with him wholeheartedly and yet, I'd like to know how it can be stopped. We can ask the City Clerk not to give out our addresseS.but you can not stop Mrs. Boroni from giving out our names." '~a~an' T'hOmPson-ref~rred to the Members~ ~t'~,Violating b .g into dis~.usslion ,b~ telephOne cases <.correspondence, ~here was no violation of the Sunshine Law 'as no'~emb~'~ replied~%o.-,-Any 6orresP0nd~nt. Mr. Slavin noted that there is something on the back burner that has to be moved forward. Chairman Thompson asked if there were any other questions on this ~ssue before proceeding. If not, Chairman Thompson asked the Recording Secretary to make a note of this. Mr. Ampol stated that he would like the City Manager, Peter Cheney to know not to give out our names and addresses. "We are not paid City Councilmen; that's different. They are subservient to the constituents. We are here voluntarily; we don't get paid - and then to be annoyed by a bunch of letters. " Mr. Ampol referred to this being harrassment. Chairman Thompson commented that there seems to be something that has been overlooked. They did have a case before the Board last month, however, this was not voted on as the applicant was not present. Chairman Thompson stated that - 12 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 the Board read it and tabled it. Legally it was not known whether it was allowed to be tabled so the reading of it was withdrawn and would start all over when the applicant would be present. This was a surprise and not on the agenda. Chair- man Thompson proceeded. Case ~38 Applicant: Graham H~ Milner Request: Relief from rear yard setback requiremement of 25' for R-1AAB zoning to 21.3' rear yard setback for additional room Proposed Improvement: For excer~ise ~ room Location: 3386 Church Hill Drive Mr. G~aham H. Milner of 3386 Church Hill Drive, came forward and commented that the application was filed in June and was scheduled to be heard in July. Unfortunately, there was no meeting in July because there were not enough~ members present, Mr. Milner was told. It was rescheduled for August. Mr. Milner apologized for not showing and explained that he made an effort to leave Jacksonville, Florida, seven hours before the meeting and, unfortunately, encountered severe rain and was unable to actually drive 180 miles of solid rain. When he arrivsd at the meeting it was fifteen minutes after adjournment. He was told that it was postponed until September 12th and that is why he ~'is~ at %he meeting tonight. Chairman Thompson stated that there was a note from the Building Department and that the dates have been changed so that it places it in its right prospective and it should be heard by the Board. Chairman Thompson reviewed the circumstances for those Members who were not present at the last meeting. At this time, he asked S~cretary Gordon to read the application. Secretary Gordon read the following: "Property involved: Lot ~9, Block #5, S/D Mission Hill, Plat Book 24, Page 178, or otherwise described as follows: Property Address: 3386 Church Hill Drive Property is presently zoned: R-1AAB, Formerly Zoned: R-1AA Denial w~s made upon existing zoning requ~ ir~ents frcm which relief is required: R1AAB zoning district requ~, ires 25' rear yard setback. Nature of exception or variance required: Applicant is - 13 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 "requesting the rear yard setback be reduced to 21'. 3"~, therefore requiring a variance of 3'.7" Name of Applicant: Graham H. Milner Address of Applicant: 3386 Church Hill Drive, Boynton Beach" Secretary Gordon read the applicant's answers to the six questions as follows: "a. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district; b. That the special conditions and circumstances do not result from the actions of the applicant. c. That granting the variance requested will not confer on the applicant any special privilege that is denied by this Ordinance to other lands, buildings, or structures in the same zoning district; d. That literal interpretation of the provisions of this chapter would deprive the applicant of rights conmonly enjoyed by other properties in the same zoning district under the terms of the ordinance and would work unnecessary and undue hardship on the applicant; e. That the variance granted is the mJ~nimum variance tb~t will make possible the reasonable use of the land, building, or structure; f. That the grant of the variance will be in harmony with the general intent and purpose of this chapter and that such variance will not .be injurious to the area involved or o~herwise detrimental to the public welfare." Chairman Thompson asked Mr. Milner if he would like to add anything that would be informative to the Board. Mr. Graham Milner stated that he built his home at 3386 Church Hill Drive about six years ago. Since that time under the advice of his physician, backing away from his business activity, his physician suggested that he go on a health program with excercise and less stress. Mr. Milner's house does not lend itself to providing these facilities on aye ~a~hround basis so he decided to try to build this extra room where he has a lot of land on one side of his lot. - 14 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 Mr. Milner stated that this would generally be an exercise room, library room and den attached to the present structure. In order to house the exercise equipment, library facilities, etc., Mr. Milner would like the size to be 24' x 31' which would require a variance of approximately 3'7". There is a large privacy hedge of 10' on the. eaSt~side. Mr~ Milner had extra copies of the plat plan which he distributed. The east direction where he is requesting a variance would not infringe upon the privacy ~of his neighbor. The 24' width dimension Mr. Milner is requesting suits the construction plans and also provides the square footage area he feels is needed for the equipment planned to be used. Mr. Grossbard looked at Mr. Milner's home today and directed a question to Building Official Howell. Mr. Grossbard ascertained from questioning the applicant and from the plat plan, that there will remain 15'8" to the property line after extending the room. Mr. Grossbard wanted to know if this conformed to the zoning code. Mr. Howell advised that it did. Mr. Milner showed Mr. Grossbard the 12½' setback and stated that the 25' setback causes him a little problem. Mr. Weinberg was also at the property today and wanted to make sure he understood if Mr. Milner was taking away part of the property enclosed for the pool. Mr. Milner replied negatively and said the structure will face the pool area and abut it. There will be sliding glass patio doors giving access from the pool area into the new structure, not actually taking away from bu% going adjacent to it. Mr. Milner added that he had the surveyor leave the stakes where the proposed building will be. Chairman Thompson ascertained that there were no more questions from the Board. He asked if there was anyone wishing to speak IN FAVOR of granting the variance. Mr. Rober% Brown~of 7.33 N.E. 8th Avenue was curious to know who the applicant's doctor is. He was told it was Dr. Maxwell at the Watson Clinic where the applicant periodically goes for check-ups. Chairman Thompson asked if there was anyone who wanted to speak AGAINST the granting of the variance. No one responded. Chairman Thompson reviewed the file and ascertained from the Board Secretary that no communication was received on this case. - 15 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12 1983 Mr. Grossbard commented that he could not see any way this could hurt anyone by granting this variance at this time. He looked at the property to see where it would extend and in no way could he see, according to other properties in the vicinity, where it will harm the property or in a~y way harm the effect of the area. Chairman Thompson stated that there are things the Board must always lOok at and that is whether this is a hardship case or not. As we do know, this is not a hardship that has been caused by the City of Boynton Beach or by Palm Beach County as there are no streets one way or the other that offset the property in any way. Mr. Milner is asking for 3.7' off the east side of the property to construct this addition and it seemed to Chairman Thompson that the hardship Mr. Milner stated is due to health reasons. Chairman Thompson asked to hear the comments .of other Board Members. Mr. Weinberg ~isi%ed the property today with Mr. Grossbard. He did not see any reason why this variance could not be granted. The proposed construction does not extend beyond the building line and to the north of it there is the covered pool which extends quite a bit further to the east than this proposed addition, therefore Mr. Weinberg feels that this in no way would be deleterious to the neighborhood. Inasmuch as there is a health problem attached to it, Mr. Weinberg feels %he request is reasonable and he is in favor of it. From a point of interest, Chairman Thompson noted that the pool happens to be the required setback. ~en we have a permanent structure, as we have proposed here, it has to be by law 25'; that is why M~.'-~Milner has to ask for this variance. Mr. Weinberg asked if Chairman Thompson meant that there is a difference between the fact that the pool, which is a permanent installation, needs only 8'. "~Chairman Thompson concurred and said it was 10.6'. Mr. Slavin pointed out that the pool is not under discussion. Mr. Weinberg remarked that he brought it into discussion because he originally thought the required distance was necessary for the pool as well as the permanent addition and he was appreciative of the clarification. Inasmuch as there were no further questions from the Board, Chairman Thompson stated that he would entertain a motion to grant or deny the request. Mr. Weinberg moved that the request for the variance be granted to Mr. Milner. Mr. Grossbard seconded the motion. - 16 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 Mr. Slavin commented on the requests for variances due to conditions of health that the Board has granted in the past. In Mr. Slavin's opinion, this request was not outrageous. Chairman Thompson noted that there is a motion on the floor and a second. He asked if there were any questions on the motion. Ms. Artis guessed she had a question and comment. It was similar to what was just said about the previous health reasons and Ms. Artis stated that tonight we do not have the attorney present and she was wonder~ng, ~Chairman Thompson remarked that was not on the motion but he guessed Ms. Artis was questioning the health reasons. Mr. Slavin commented that he was just thinking out loud and that some- times we think with our heart and not with our heads~ As there were no further questions, Chairman Thompson asked Mrs. Jackson to take a roll call.vote as follows: Vice Chairman Ampol - Aye Chairman Thompson - No, simply because I do not see a hardship where it could not be corrected within the 24.7' and 3.5' or 3~7' off but still making it 21' wide. Secretary Gordon - No Mr. Weinberg - Aye Ms. Artis - No, because I do not clearly see a real hardship imposed by the City on it. Mr. Slavin - Aye Mr. Grossbard - Aye Motion denied 4-3. Chairman Thompson noted that a 4-3 vote denies the request for a variance. REQUEST FOR DETERMINATION: Re: Meadows, 419 S. E. 4th Street Mr. Slavin called attention to the letter of 8/12/83 from the Meadows~to Building Official Howell and did not see where it was within the b~liwick of the Board of Adjustment. As Mr. Howell was present, Mr. Slavin asked why this was forwarded to the Board of Ad'justment. Mr. Howell advised that this Board has the right to hear any appeals that pertain to a zoning ordinance, He said this particular appeal is submitted by Mr. Bert Keehr because it is a gray area in the zoning ordinance. He noted that the Members had been given a copy of the zoning ordinance itself for nonconforming use of land. - 17 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEmbER 12, 1983 This Board is probably the only one that has a right to rule on this. Another interpretation was that this'would be a nonconforming use to allow a pool in a C-3 zone for residential use. Along with that a pool is allowed in a C-3 zone for a business; that is if they were selling pools. It became a questionable thing and has come to the Board for its opinion. In answer to Mr. Slavin's question,. Mr. Howell advised that this property was probably zoned C-3 in 1975. Mr. Slavin noted that this property was purchased five~years ago, in 1978, and didn't.[~know if they put the pool up after or before they bought it. He was trying to get it away from the gray area. Mr. Howell advised that the pool was put up recently and evidently without knowledge. He introduced Mrs. Cheryl Meadows. Mr. Slavin asked Mrs. Meadows if the pool was put up after she purchased the property. Mrs. Meadows replied affirmatively and added that it was purchased just recently. In answer to Mr. Slavin's question regarding applying for a permit, Mrs. Meadows advised that she applied for a permit after she pur- chased the pool and had no idea she needed a permit for a 4' above the ground pool. When she went to apply for a permit, she was told she could not have it. That was after she had already purchased it and set it up. To Mrs. Meadows, buying that pool was like buying a swing set. She has always wanted a pool. It is a temporary structure and can be emptied and taken down. It is there right now for their personal use and enjoyment. Mrs. Meadows has an eleven year old daughter that swims in it every day, as well as she and Mr. Meadows. Mrs. Meadows further explained that she has a two story older house~ one of the original houses in Boynton Beach, and cannot afford to air condition it so the pool is their cool off spot. They have enjoyed it thoroughly since they have had it, maybe two months, and this whole ordeal has turned into a nightmare. She can't believe that they said she can't have it. She will take a loss on it as the floater fell and bleached out the bottom damaging the pool. In answer to Vice Chairman Ampol's question, Mrs. Meadows advised that it is an above the ground pOo~ 4' x 15' vinyl. Mr. Howell pointed out the problem the City has. He referred to Page 1951 of the Zoning Ordinance before the Members. On the land use, a residence zoned C-3, automatically became a nonconforming use. Mr. Howell referred to the following paragraph: "B. NONGONFO~M]/qG USES OF LAND 1. No nonconforming use of land shall be enlarged or increased, nor extended to occupy a greater area of - 18 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 1~, 1983 " land than was occupied on the effective date of the adoption or amendment of these regula- tions, unless such use is subsequently changed to a use permitted in a district in.which such use is located." Mr. Howell then referred to the following on Page 1952: "3. No additional structures or buildings shall be erected in connection with such nonconforming use of land." Mr. Howell also referred to Page 1939, as follows: "B. POWERS AND DUTUES. The Board of Adjustment shall have the following powers and duties: 1. To hear and decide appeals when it is alleged that there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any zoning ordinance or regu- lation adopted pursuant to this chapter (ordinance)." Mr. Howell was sure that Mr. Keehr laid ms on the lap of the Board 'because'.~.he felt that if anybody could do anything for Mrs. Meadows, this Board could. Mr. Slavin thought it was a legal question and should be directed to the City Attorney, and not the Board. Mr. Howell stated that it was a zoning question and the Board does have some power and the right to rule on it although he was not trying to sway the Board. Ms. Artis and Mr. Slavin both had questions. Ms. Artis was told that prior to 1975 Mrs M~dows could~ ~have-put the pool in without any problems. Mr. Slavin referred to the seven guidelines of the Board and did not believe there was an answer to them iN the requests and the statements filed. Therefore, how could the Board possibly adjudicate this matter? Chairman Thompson was reminded of the caise regarding the awning which came up last year in which the attorney ruled that it was part of the permanent structure and technically was attached to the building. They had to ~tak~ it ~rn.~ ~i~It was concur~e~ that this was a different, story. Chairman Thompson asked Mr. Howell what the specs are on an above the ground pool. Mr. Howell advised that this would be permitted in a residential area and would also be permitted where it is if they Were selling pools under our ordinance. They would still have to have a permit. Mr. Howell asked that - 19 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 the Board read Page 1939 to see if the fe right to rule on~th.~ ..... ~__~ . ~ Y el they have the be wron V' ~ ~ ~L~z~ his ~epartment's thin inn . g' ice Chairman Am o . _ ~. k~_~ consider this ille~al.~cr~_~_~ asked ~f Mr.~ Howel± would · ~= ~ ~on~ormln . Mr .. t~at their Code Officer picked it ~-~ ~,_.,~owell advised ~ ~p w~unou= a permi~ and rmghtfully so. Mr. Howell believed that Mrs. Meadows did not realize that she had to have a permit but at the same time it does not alleviate Mr. Howell of his du=y. It is a gray area. Are we really expanding a residential use? C-3 allows a pool and Residential allows a pool. We have a nonconforming residence in a C-3 zone. Mr. Slavin ascertained that part is grandfathered in but said you can't grandfather the pool. Mr. Weinberg ascertained that if they had asked for a permit down.prior to purchasing the pool, they would have been turned Going back to Page 1939, Chairman Thom so Board has a right t ...... ~P n commented that th make . ~ ~ ~n~ any.special exce t' e ~_ ~ure t~at all conditions are ~=~ ...... ~P~on but must ~u~r~e~. The Board also L*~ =ne right top lace any reasonable t~me limits..onit. On.Pagei. 1939 Mr. Weinberg quoted the following: "To hear.and decide such special exceptions as the Board of Adjustment is specifically authorized to pass. "and asked Chairman Thompson if khe B'oard was ~authorized tc handle any such exception as this and if it was within the Board's duty. Mr. Weinberg noted that it is contrary to the zoning law. Mr. Howell pointed out the further conditions referred to in the sec%ion. Mr. Weinberg read Item c. of Page 1939, "The Board of Adjustment may prescribe a reasonable time limit within which the action for which the special exception is required shall be begun or completed or both." Mr. 'Slavin read the following aloud, "2. To hear and decide such special exceptions as the Board of Adjustment is specifically authorized to pass on under the terms of this chapter (ordinance); to decide such questions as are involved in the determination of which such special excerptions should be granted; and to grant special exceptions with appropriate conditions and safeguards or to deny such special exceptions when not in harmony with the purpose and intent of this ordinance. The following apply as to such special except~ ions. " Chairman Thompson thought the following should also be read, in continuation, "a. In granting any special exception, the board shall find that such grant will not adversely affect the public interest.,, Mr. Slavin pointed out that was instructions to the Board in relation to para-. graph 2. - 20- MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 Chairman Thompson recalled at one of the workshops of the Board, that it' was pointed out that they are not allowed to grant special conditions. Mr. Howell believed that since this was taken from the Boynton Beach Code of Ordinances, the Board did have that power. Chairman Thompson understood Mr. Howell but thought the only thing that could be done is to hear it and pass judgment based on the interpretation of the City Attorney. Mr. Slavin thought Chairman Thompson's remark was very important. Mr. Slavin thought the Board should take this matter and refer it to the City Attorney. If it falls within the jurisdiction of the Board of Adjustment, well and good. As Mr. Howell says, it is a gray area and Mr. Slavin did not know whether the Board was qualified or not to determine if it is within the Board's jurisdiction or not. They would refer it to the City Attorney for guidance. Chairman Thompson suggested that it be postponed until the next meeting. In the meantime, Chairman Thompson said he would take it upon himself to check with the City Attorney and get a ruling on this as to whether the Board should hear it or not. Mr. Weinberg referred to a.question he had asked Mr. Howell as to whether Mr. Howell would have granted the permit if she had requested it prior to the purchase of the pool and Mr. Howell had said he would not have given it. Mr. Weinberg was now asking Mr, Howell if he had refused the permit, would the Board still then have authority to override that refusal? Mr. Howell replied that Mrs. Meadows or anybody has the right tO appeal the decision of any code. This happens to be a zoning ordinance which falls in Mrs. Meadows' jurisdiction, in Mr. Howell's opinion. If it was a building code and interpretation, then it would fall under the Building Board of Adjustment and Appeals. Just to be on the legal side, Chairman Thompson stated that this would be put on the Agenda for the October 10th Meeting of the Board of Adjustmen~in the meantime seeking the advice of the City Attorney to make sure they are going in the right direction. Mr. Howell ascertained that this would be brought before the Board on the second Monday in October, the 10th. Within that time, Chairman Thompson stated that the Minutes of this meeting would be sent to the City Attorney. Mrs. Meadows asked if the City Attorney would make a decision. Chairman Thompson replied negatively and said he would inform the Board as to whether they should legally hear the case or net. That was all the Board wanted the City Attorney to do. - 21 - MINUTES - BOARD OF ADJUSTMENT BOYNTON BEACH, FLORIDA SEPTEMBER 12, 1983 After further discussion, Mr. Slavin moved that the request of M~s. Meadows be submitted to the City Attorney as to whether or not it would be legal for this Board to hear this case. Mr. Weinberg seconded the motion. No discussion. Motion carried 7-0. Chairman Thompson remarked that this would then be placed on next month's Agenda until they get a ruling on whether they should hear it or not. ADJOURNMENT Secretary Gordon moved to adjourn, seconded by Mr. Weinberg. Motion carried 7-0. With no further business to come before the Board, the meeting was properly adjourned at 9:05 P.M. Respect/fully submitted, i~inia/~. Jackson, R~cordi~'g Secretary (Three Tapes) - 22 -