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Minutes 05-12-80MINUTES OF THE BOARD OF ADJUSTMENT MEETING HELD AT CITY HALL, BOYNTON BEACH, FLORIDA, MONDAY, MAY 12, 1980 AT 7:00.P.M. PRESENT Vernon Thompson, Jr., Chairman Carl Zimmerman, Vice Chairman Robert Gordon, Secretary Theodore Blum Ben Ridolfi Paul Slavin Lillian Artis, Alternate Bert Keehr, Deputy Bldg. Official ABSENT Marilyn Czufin (Excused) Anthony DiSarli, Alternate (Excused) Chairman Thompson called the meeting to order at 7:00 P. M. He introduced the members of the Board, Deputy Building Offi- cial and Recording Secretary. MINUTES OF ~ARCH '10, 1'980 Mr. Gordon stated with finding no omissions or errors in the minutes of March 10, he moves to accept them. Mr. Zimmerman seconded the motion, Motion carried unanimously. PUBLIC HEA~R'iNG Parcel #1 - The South 157.37' of the North 314.74' of Gov. Lot 2, lying East of Florida East Coast right-of- way and U. S. Highway No. 1 right-of-way, and less the North 137.37' of the West 300' of the above described property in Section 22, Township 45 South, Range 43 East, LAKE VILLAGE, City of Boynton Beach, according to the plat thereof as recorded in Plat Book 21, Page 18, Palm Beach County Public Records; and a tract of land in Lake Worth in Section 22, Township 45 South, Range 43 East, Palm Beach County, Florida, more particularly described as follows: Beginning at the intersection of the South line of Lake Village and the easterly right-of-way line of State Road No. 5 (U. S. Highway No. 1) according to the plat thereof as recorded in Plat Book 21, Page 18, Palm Beach County Public Records; thence South 89o25,00,, East, along the South line of said Lake Village, a distance of 997' to a point in the high water line on the westerly shore of Lake Worth; thence continue easterly along the same course, a distance of 352.82' to a point in the City of Boynton Beach Bulkhead Line, established by Ordinance No. 289, November 19, 1956, said point being in the arc of a curve concave to the East MINUTES - BOARD OF ADJUSTMENT MAY 12, 1980 having a radius of 1732.07' and a central angle of 5°13'07"; thence northwesterly and northerly along the arc of said curve and said City of Boynton Beach Bulkhead Line, a distance of 157.76' to a point in a line 157.37, North of and parallel to the South line of said Lake Village; thence North 89°25,00,~ West, along said parallel line, a distance of 325.61' to a point in the aforesaid high water line on the westerly shore of Lake Worth; thence South 7°05,00- West, along said high water line, a distance of 157.75' to the point of beginning. Request - Relief from 100 ft. lot frontage requirement to 20.18 ft. lot frontage to construct quadplex townhouses Address - 1622 North Federal Highway Applicant - Ernest J. Smallman Mr. Gordon read the application and Chairman Thompson added that a letter was submitted advising that Mr. Daniel O'Brien will be representing this application. Mr. Daniel J. O'Brien, 2580 S. W. t0th Circle, President of O'Brien, Suiter & O'Brien, came before the Board. He informed the Board that this property dates back to the 1946-51 era, which was previous to zoning codes. He then distributed docu- mentation in the form of a map and deeds so the members could follow his presentation. He then explained how this property was divided into various parcels and added that he will submit the deeds to verify this showing it was done prior to the zon- ing codes. In 1972, this property was zoned R-3 with the 20' access road to U. S. 1. This was a parcel of property developed prior to the existing codes of Boynton Beach.. The codes do not include a grandfather or non-conforming clause for any parcel in this configuration, but only have such an inclusion in the single family zone. Mr. O'Brien advised that his clients have contacted the adjoin- ing property owners of Parcel B and the mobile home park to the south in an attempt to acquire frontage. The mobile home park answered that they could not do it and Mr. Kirsch, who owns Parcel B, did not reply to the inquiry sent in January. They have tried to acquire additional frontage, but have been turned down by the adjoining property owners. Mr. O'Brien then submitted copies of the deeds covering trans- actions through the years to prove the continuity of the split of the properties. He also submitted copies of t~ letters sent to the adjoining property owners. - -2- MINUTES - BOARD OF ADJUSTMENT MAY 12, 1980 Mr. O'Brien stated they contend the code is deficient in that it does not allow for existing pre-code conforming properties, which this was. By not granting a variance, the owner could not develop his property in substantial accord with the current zoning. He does not think the variance being requested results from the applicant, as this was actually set up in 1951 and the 20' access to the rear piece of property was considered suffi- cient. The variance request does not result from any action of the applicant, but from results of actions taken 29 years ago and subsequently from the actions of the City in the adoption of a zoning ordinance and comprehensive plan with zoning the property R-3, but not making provisions to develop it R-3. The code as written does deprive the owner of develop- ment rights causing undue hardship. Mr, Slavin clarified that this property was originally split in 1951 and Mr. O'Brien agreed and clarified that originally in 1946, the deeds refer to the property as the north half and south half. He explained that in 1946, it was platted in its entirety; in 1948, Parcel B was deeded off; and in 1951, it reverted back to the north half and south half. Mr. Slavin asked if by deeding, it meant the property was sold and Mr. O'Brien replied there was a transfer of title, which normally speaks of selling. He added this was all done prior to any zoning codes. Chairman Thompson asked if anywhere in the record during the time back in 1948, was it noted the 20' frontage was in line with the code and Mr. Keehr informed him that prior to June, 1975, this parcel of land could have been developed without a variance. He explained that prior to 1975, the building site regulations for the R~3 zone only required a multi-family dwelling to have a minimum of lot area but did not address the frontage. ' Mr. Zimmerman referred to Mr. Smallman obtaining title to this property in March 1980 and asked if he knew at that time that it only had 20' frontage on the highway and Mr. O'Brien re- plied affirmatively an~ explained this property was under con- tract for about four years and plans were submitted and it was felt they had certain vested rights. Chairman Thompson referred to this 20' being the only access to this property and stated if the application is denied, then without purchasing more land, this land cannot be used. Mr. O'Brien agreed this was correct and the land would be land- locked. -3- MINUTES - BOARD OF ADJUSTMENT ~AY 12, 1980 Mr. Slavin requested explanation of the site plan and Mr. O'Brien explained the plans for this property. He added that DER has requested that 135' of the mangrove area be retained in its natural state, which they will comply with. They are limited to the type of development because it is only 157' wide. There are no problems with the plans proposed for the rear, but the problem is the 20' strip which was saved for access in the 1940's. Mr. Slavin asked what the actual width required was for an access road and Mr. Keehr replied that 22' is the minimum width. Mr. Zimmerman questioned the number of people who would be using this access road and Mr. O'Brien replied there will be 40 units and the average is 2.1 persons per unit, so it would be less than 90. Mr. Zimmerman questioned the length of this access road from Federal Highway back to the property and Mr. O'3rien informed him that presently it is 253' and it was 300' prior to the widening of U. S. 1. Mr. Zimmerman stated on road of this length with so many people using it, it would b expected that vehicles would pass each other and Mr. O'Briei~ replied that he didn't believe there would be people pas:~ing, but there may be a problem of stacking with people not being able to get out onto U. S. 1. They admit there is a traffic Droble~ entering U. S. 1, but~they are not asking for a variance from a traffic problem, but on something which was ~reated ~rior to the zonin? code. He added that Palm Beach County ~nly requires a 20~ width on their pavement for any of their residential roads. The 20' is adequate for two-way tr~ffic. Mr. Ziramern would be nc would be ps O'Brien ag~ neering pfc the code de Mrs. Artis 1980, it wa fied this w property, b couldn't de. ban clarified that on this 20' access road, there right-of-way on either side for swale and it vement from property line to property line and Mr. eed this was correct, but advised this is an engi- blem. He clarified that they are here to solve ficiency now. clarified that when this property was purchased in s non-conforming with the code. Mr. O'Brien clari- ~s existing when the present owners purchased this at the prior owners bought it in 1951 and they ~elop it since the code was enacted in 1975. Mr. Blum re[erred to the possibility of a truck and fire truck havin,i to pass on this road and asked if there would be enough r~)om and Mr. O'Brien replied affirmatively and explained t]lat 20' of pavement is sufficien~ to handle two- way traffic Mrs. Artis ~ sked if the previous owner could have developed this properl~y and Mr. Keehr replied that prior to 1975, the property co~.ld have been developed. Mrs. Artis asked if the original owz.er could develop it now and Mr. Keehr replied negatively. Chairman Thompson asked if the former owner owned -4- MINUTES - BOARD OF ADJUSTmeNT ~Y 12, 1980 the property prior to 1975 and Mr. O'Brien replied affirma- tively and he added that Section C was deeded in 1951 and this property was deeded to Boynton-Seacrest, Inc. in 1968 or 1970. Chairman Thompson referred to a grandfather clause and Mr. Keehr explained that the only property covered by a grandfather clause are residential lots. Mr. Zimmerman questioned the use of Parcel C and Mr. O'Brien informed him that a motel is located on this site. Chairman Thompson asked if anyone in the audience wanted to speak in favor of the granting of this variance. Mr. Wallace Hemp, representing Mr. Smallman, referred to the traffic issue and stated he doesn't believe there are any auto- mobiles on the road wider than 5½' and many of the local streets are no more than 16' wide and the County only requires a width of 20' There is adequate room for cars and trucks to move in both directions in the 20' width. The traffic is actually an engineering problem. Mr. Hemp then referred to the zoning and stated up until 1975, a variance would not have been required to develop this pro- perty. This variance is being asked in order to make the law retroactive. If this was creating a non-conforming situation, there is no doubt it would have to conform; however, this pro- perty was created prior to the enactment of the ordinance. Subsequently in 1975, an ordinance was enacted changing the rules and regulations and a variance is required. Chairman Thompson stated since this property was not developed before 1975, he feels there is reasonable doubt placed on this. If this is developed as planned, 80 cars will use the property. If this is granted, it will create a hardship on the future owners. Mr. Hemp clarified that the maximum density would be 40 units. The figure of 80 is based on every unit having two cars. Chairman Thompson asked if this is granted, would this person have to come back before the Board on account of the engineer- ing problem and Mr. Keehr replied that he didn't believe so as he believes the road width could be worked out with the City Engineer. He doesn't believe this Board should address that particular problem. The variance requested is for the frontage. Mr. Hemp added that the difference they are addressing is 2' in reference to ingress and egress. Mrs. Artis asked if this was similar to knowingly buying some- thing which is non-conforming and Chairman Thompson replied that could be answered in two ways as the former owner had a hardship and the hardship was passed onto the new owner. -5- MINUTES - BOARD OF ADJUSTMENT MAY 12, 1980 Mr. O'Br±en then read a memo listing the Technical Review Board's comments after review of the plan and clarified that this Board was not being asked to solve any engineering pro- blems. Chairman Thompson agreed and stated this Board mus~ determine if there is a hardship imposed or self-created. Chairman Thompson asked if anyone in the audience wanted to speak against the granting of this variance and received no response. He requested Mr. Gordon to read the correspondence received. Mr. Gordon read a letter from Mr. Timothy C. Wright, attorney representing Mr. & Mrs. Alex Ramirez, objecting be- cause of the hazardous situation of establishing a roadway with 20.18' frontage onto the highway and requested the codes to be complied with. Mr. Slavin referred to Mr. & Mrs. Ramirez owning the property to the north and questioned their concern regarding an emer- gency vehicle coming into this property in relation to their holdproperty, the City He responsible, does not understand their threat that they will Chairman Thompson clarified that we must keep in mind there is only 20' access to this property. Without the variance, the present owner, who bought into a hardship case, could not use the property. The deeding of the property created the problem and this was done in 1948 before there was a code to conform with. He read a legal opinion submitted by the attorney to give the Board further guidance. If there is no way to make the property conform, the owner would be deprived the use of the property and without this 20' entrance, the property cannot be used as it would be landlocked. An owner cannot be denied the use of the property; however, he did buy into a hardship. Mr. Zimmerman stated this is not a pre-recorded subdivision and Mr. Keehr agreed and added it would not come under the subdivision regulations. Mr. Zimmerman clarified this could be subdivided and used for single family homes under a sub- division plat and they would have use of the property. Mr. Keehr added that he believes if this property came under the subdivision regulations, the road would have to be 20' wide. Discussion followed regarding how single family homes could be built in this zoning category, Mr. Keehr clarified if the property was used for single family dwellings, they must con- form to R-1 requirements. Mr, Zimmerman asked if the City could condemn property to widen the street and Mr. Keehr replied that he has no idea whether that type of action could be taken and whether the lack of 2' would warrant that. -6- MINUTES - BOARD OF ADJUSTMENT MAY 12, 1980 Mr. O'Br~en' referred to being knowledgable of zoning codes in his business and stated he thinks they will find that a sub- division requires certain frontage on a dedicated right-of-way, so this would still require a variance. There would be the same problem with not having the required frontage. Chairman Thompson referred to a lake front tract east of N.E. 22nd Avenue and stated it was denied because it was on a small street and Mr. Keehr replied he was not sure which par- cel he was referring to. Mr. Zimmerman added that the City Council recently had a problem with a two-way street of this approximate width and it was changed to a one-way street. Here, the City may run into the same problem and this street could not be changed to one-way. Mr. Slavin made a motion to grant this variance. This is a large piece of property which was chopped up over a course of 30 years. The present owner feels, and from what we have heard in the memo from the Technical Review Board, all the other problems can be worked out. He does nom think it will be unsightly and will enhance the beauty of this land. Other- wise, there will be a large piece of land locked in which will become blighted. He moves to grant this variance. The hardship was created by chopping up the property over 20 years ago and the present owner bought the property with the intent of developing and upgrading and the hardship exists not of his own making. The area is zoned R-3 and that is what he intends to build. It is not a question of subdivision or frontage Mr. Ridolfi seconded the motion. ' As requested, Mrs. Kruse then took a roll call vote on the motion as follows: Mrs. Artis - Aye Mr. Blum - Aye Mr. Zimmerman - No Mr, Ridolfi - Aye Mr. Slavin - Aye Mr. Gordon - No Mr. Thompson - Aye Chairman Thompson added that his vote was based on the laws of the State of Florida that to d~ny this variance would be to deny the use of this property in the R-3 zone Variance granted by a vote of 5-2. ' ADJOURNMENT Chairman Thompson ascertained there was no further business. Mr. Zimmerman made a motion to adjourn, seconded by Mr. Slavin. Motion carried 7-0 and the meeting was. adjourned at 8:20 P.M. ~ording - Tapes ) -7-