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LEGAL APPROVAL Prepared by: James A. Cherof, Esq. City Attorney, City of Boynton Beach P,O, Box 310 Boynton Beach, FL 33425 CITY OF BOYNTON BEACH BOARD OF ZONING APPEALS ORDER DENYING RELIEF INRE: Case No. 4-001 RHS Corporation, Appellant The Appellant, RHS Corporation, appeared before the Board of Zoning Appeals on April 15, 1996 and requested an Appeal of the Planning and Zoning Director's administrative decision of a minor site plan modification for site plan changes requested by the owner of Clear Copy, Based on the sworn testimony of Mark Roberts, Reginald Stambaugh, and Mike Haag, of the Planning Department, the Board finds that no basis for relief has been established. Accordingly, IT IS ORDERED THAT: The decision of the Planning Director that the amended site plan was a minor modification is hereby affirmed. DATED: r!1?!tJ,,! ATTEST: ~~a:"'~~J<1<-" Cit Clerk MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MAY 20,1997 Maurice Rosenstock, 1 Villa Lane, advised that there are 13 code violations on that property and a fine is accumulating, Eventually, the owner is going to have to pay the fine or have his property foreclosed on. . Mayor Taylor was advised that he has communicated with the County about this and the diesel pump was shielded. He will have the County check into this again. Reginald Stambaugh, attorney for RHS Corporation, said it was his understanding that after this City Commission meeting there would be an attorney/client negotiations, However, he did not see it on the agenda, He informed the Commission that a mandate was executed by the Circuit Court revoking the site plan approval tor Clear Copy. No one should be occupying the premises. It is a nonconforming building, He would like to negotiate and settle this matter. Attorney Goren was 110t aware of what rights the City or others may have and advised that the City Attorney will advise the Commission at the next meeting, Mark Roberts said subsequent to the mandate and at the request of the City, he attended a meeting with City Attorney James Cherot, At that meeting, City Attorney Cheraf asked him to present some conditions that he would be willing to settle with the City in order that the City Commission would not require Clear Copy to close their building, Also, City Attorney Cherot promised to hold an executive meeting tonight to hear his. conditions, and was aware that Mr. Roberts' offer would end tomorrow, Mr. Roberts stated that if necessary, he will file additiona/lawsuits. He said he has incurred substantial damages by this property being there, It was Attorney Goren's understanding that the ~ession referred to by Messrs, Stambaugh and Roberts is set for June 3, 1997, Mayor Taylor advised that the City Commission has been informed ot this. Victor Norfus addressed the issue of revitalization of Boynton Beach, specifically the Cherry Hill and Martin Luther King Boulevard areas, He read a letter which was addressed to Commissioner Tillman. This letter is attached to the original minutes on file in the City Clerk's Office. Mayor Tay/or advised him that there is an item on the agenda this evening with regard to hiring a consultant to handle redevelopment of the entire City. This consultant is going to be seeking community input. He suggested Mr. Norfus interact with the consultant to make sure he has his input. 15 MEETING MINUTES REGULAR CITY COMMISSION BOYNTON BEACH, FLORIDA MAY 7, 1996 Appeals showing that it cannot legally access the site. Mr. Haag said the Fire Department had no concerns about this situation, and this is the way it has been done in the past. If there is a fire, since the truck cannot get on the site, it will have to park in the street, blocking additional fire and rescue vehicles from getting to the site. This will affect Dr. Roberts' property in addition to affecting the site. Dr. Roberts is also concerned about hazardous wastes produced by Clear Copy that might affect his property. With regard to recyclables, Mr. Haag testified that he was not familiar with the City Ordinances. Dr. Roberts provided copies of the City Ordinances requiring containerized refuse service on commercial properties. This site plan has been revised to totally eliminate the dumpster area which violates the City Ordinances. During a previous City Commission meeting, Mr. Feldman stated that this 4,000 square foot print shop, which is larger than Kinko's, will generate only one garbage can per week in addition to the recyclables. The City approved curbside pickup. No other print shop in the City has curbside pickup. They have Code required containerized pickup. -- Ms. Heyden testified that the truck that picks up recyclables is smaller. There is one smaller truck, but it cannot pick up what is legally required by City Ordinances. The recycling truck cannot access the property. Mayor Taylor pointed out that Dr. Roberts was presenting repetitive information to the City COmmission. He requested that Dr. Roberts only go over information relative to the appeal. Dr. Roberts stated that he was providing the Commission with information that was presented at the Board of Zoning Appeals. Mr. Haag said Dr. Roberts was not correct at that time, and Dr. Roberts is proving that he was correct during his testimony. Dr. Robert said what Mr. Haag presented was a misrepresentation of facts. This site plan negatively affects the property itself. In addition, since the site cannot properly get rid of garbage, it will affect his property. These are requirements under a determination of minor or major site plan modification. Service vehicles cannot get on the property, and Mr. Haag stated that it was up to the applicant to be able to get the vehicles into the loading zone. The only way they can access the loading zone is to enter through an exit. There is an Ordinance which prevents this. Therefore, it negatively affects the property. In addition, there is a 6" electric meter which protrudes into the loading zone; therefore, it is not nearly as wide as it was presented to be. The Land Development Regulations clearly state what a minor modification is. To be a minor modification, it must be a non-impacting modification with no adverse affects on the approved site plan and no affect on adjacent properties. In evaluating the plans, four of the criteria clearly indicate this is a major modification. Dr. Roberts stated that the lighting plan is insufficient, and does not meet City standards. 41 MEETING MINUTES REGULAR CITY COMMISSION BOYNTON BEACH, FLORIDA MAY 7, 1996 It adversely affects this site and his property. If the property itself, or adjacent properties are impacted at all, the modification is major. At the conclusion of Dr. Roberts' presentation, Mayor Taylor advised the Commissioners that their duty was to either affirm or deny the Board of Zoning Appeals' decision to uphold the Planning Director's determination of a minor site plan modification for this project. Vice Mayor Jaskiewicz does not feel anything presented tonight was anything different from what was presented in the past. Motion Vice Mayor Jaskiewicz moved that we confirm the board's recommendation that this is a minor site plan modification. Commissioner Tillman seconded the motion which carried unanimously. Dr. Roberts stated that he will follow through with a lawsuit. 3. Update on the Bay Club Attorney Cherof advised that after conferring with the Police Department and setting out a strategy to deal with a number of problems in the vicinity of the Bay Club, all of which are linked to the Bay Club operation, a seven or eight-fold attack has been prepared to address the continuing problems. It is the consensus of City administration that what is happening in the area will be a focus in terms of enforcement of our City Codes, the State traffic laws, enforcement of the State Alcoholic Beverage laws, and Occupational License violations. A meeting is scheduled for Monday at Royal Palm Clubhouse with business owners and residents to seek their help to allow us to post as many tow-away zone signs as possible and to enforce that signage. We hope those activities will bring that operation into strict compliance with how businesses ~hould be operating in Boynton Beach. Commissioner Bradley would like to see emphasis inside the Club as well. He understands alcohol is being served to minors. He asked if undercover operations could be conducted as well as the items mentioned. Attorney Cherof advised that there will be undercover operations at that location. If violations are found, arrests will be made. Vice Mayor Jaskiewicz was of the opinion that if such violations are found, they could come under the jurisdiction of the Nuisance Abatement Board. If the operations persist, the business could be closed. 42 MINUTES OF THE BOARD OF ZONING APPEALS MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA, ON MONDAY, APRIL 15,1996, AT 7:00 P.M. PRESENT James Miriana, Chairman Ben Uleck, Vice Chairman Marilyn Huckle Howard Rappoport Agnes Hollingshead, Altemate James Cherot, City Attorney Michael PaweJczyk, Asst City Attorney Mike Haag, Zoning & Site Devel. Admin. ABSENT Herman Gold, Alternate 1. ACKNOWLEDGEMENT OF MEMBERS AND VISITORS Chairman Miriana called the meeting to order at 7:05 p.m. He introduced the City's attorneys, Mr. Haag, the board members, and the recording secretary. 2. APPROVAL OF AGENDA Ms. Huckle moved approval ot the agenda as submitted. Mr. Rappoport seconded the motion which carried unanimously. 3. APPROVAL OF MINUTES Mr. Rappoport moved to approve the minutes ot the February 12, 1996 meeting. Ms. Huckle seconded the motion which carried unanimously. 4. COMMUNICATIONS AND ANNOUNCEMENTS In response to Chairman Miriana's question, the Recording Secretary announced that the City Clerk's Office had received a FAX today advising that the appellant in this case is RHS Corporation, rather than Dr. Mark Roberts. The FAX was submitted to Attorney Pawelczyk. 5. ELECnON OF OFFICERS This item was not addressed. 6. SWEARING IN OF WITNESSES Prior to the swearing in of witnesses, Gene Moore, attorney representing Clear Copy, stated that it was his contention that this board had no authority to hear this matter. The City's Planning Director did not make a decision. She made a recommendation to the City Commission, and that recommendation was unanimously ratified and granted by the City Commission. In addition, Mr. Moore stated that Dr. Roberts waited too long to appeal the 1 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 recommendation. If he wanted to attack the Planning Director's recommendation as to the granting of the minor modification, he should have done so prior to it being ratified by the City Commission. The City Commission made a ruling, and the Board of Zoning Appeals does not have juridiction to override that ruling. At Chairman Miriana's request, Attorney Cherof explained that the matter before the board is not an appeal of a City Commission decision. It is an appeal of the Planning Director's recommendation relative to a minor rather than major modification. The authority of the Planning Director is found in Chapter 4, Section 9. An appeal of an administrative nature is clearly subject to appeal to this board. However, the appeal is limited to that determination. 'j .,.... ~ .'; _T Attorney Cherof advised that the board will determine by molio'li either that it was, or was not a minor modification. If you do not agree that it was a minor modification, you will overrule that determination. This procedure is listed in Chapter 4, Section 9, and the board's authority and procedure for review is set forth in Ordinance 95-44. It is Attorney Cherof's opinion that this board does have the authority to make a determination. Mr. Moore reiterated that the appellant sat back and chose to appear before the City Commission where he was unanimously rejected. He feels this ,board would have had authority if the appellant had done this prior to the City Commission ratification. He feels it is clearly too late for this appeal. He stated that anything the board does now will amount to an overruling of a City Commission decision, and he took exception to that rufrng. . . . , . .. Mrs. Huckle asked for clarification of what took place at the City Commission meeting of March 19, 1996. Attorney Cherof advised that the City Commission listened to the review of how Ms. Heyden reached her determination. There was a motion to ratify that decision. The motion to ratify was seconded, and unanimously passed. Attorney Cherof stated that verbatim minutes of that portion of the meeting will be placed into evidence by staff at the appropriate time. Rea Stambauah. Attornev reDresentlna RHS Corooratlon. advised that he was present when the City Commission received a recommendation from Ms. Heyden that this was a minor modification. There was a ratification of a staff determination. His client received guidance from the City as far as the appeal process, and that is the reason why they were present for this appeal. It was Ms. Hollingshead's opinion that counsel for the board advised that this board does have jurisdiction to proceed. and she was prepared to make a motion to proceed and follow the agenda. 2 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 Motion Ms. Hollingshead moved that we proceed with our meeting based on the comments we have heard and the recommendation of counsel of the board that we have jurisdiction to proceed. Mr. Rappoport seconded the motion. Mrs. Huckle confirmed with Attorney Cherot that the motion was sufficient. The motion carried unanimously. Attorney Pawelczyk administered the oath to all who would be testifying in this matter. 7. OLD BUSINESS None 8. NEW PETITIONS: A. PUBLIC HEARING ADMINISTRATIVE APPEAL 1. Case 14-001 660 W. Boynton Beach Boulevard Bob Feldman RHS Corporation Appeal of the Planning and Zoning Director's administrative decision' of a minor site plan modification for site plan changes requested by the owner of Clear Copy. Attorney Pawelczyk advised that this meeting is limited to the appeal by Dr. Roberts. That is an appeal relative to whether the decision made by Tambri Heyden, a minor site plan modification, and not a major site plan modification, was correct. The authority for this appeal is under Ordinance 95-44. All parties will be stopped from saying anything that does not have to do with this appeal. This is a new procedure for the board because it is an appeal, and not a variance. In making a decision, the board will either affirm or reverse Ms. Heyden's decision. A motion will be made accordingly at that time. Location: Owner: Appellant Request: Mike Haag made the presentation for the City. He explained that a new numbering system has been adopted for this board. The #4 in this case number refers to the fourth month (April), and the 001 indicates this is the first case the board is hearing after institution of the 3 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 new numbering system. Mr. Haag advised that Ms. Heyden, Planning and Zoning Director, made a decision that the requested changes to the site plan shown in the back-up material, were minor changes. Ms. Heyden outlines the method she used to make her determination in Planning and Zoning Memorandum No. 96-143 (City's Exhibit #1). Page 2 of this memorandum outlines the seven criteria used to make a determination relative to whether site plan changes are major or minor. Mr. Haag read each of the seven criteria which also listed Ms. Heyden's response to each. Mr. Haag reminded the members that in order to make a determination, one must look at the approved site plan (City's Exhibit #2) and the proposed site plan (City's Exhibit #3). The Planning Director took the approved plan and evaluated the request to change to the proposed plan. She determined there was a minor modification, and her determination was supported by staff. In response to Mr. Rappoport's question, Mr. Haag used the overhead projector to show the location of Dr. Roberts' property to the east of the Clear Copy parcel. Mr. Haag confirmed for Mr. Rappoport that there is an existing hedge on Dr. Roberts' property, but there is no wall. There has been no change to the buffering or screening from the original site plan. Mrs. Huckle pointed out that Criterion #3 on Page 2 of Exhibit #1-indicates C-3 ZOrltng. Mr. Haag referred to the Location Map for Clear Copy (City's Exhibit #4) and confirmed that the zoning is C-2. In making this determination, the Planning and Zoning Department requested assistance from the Legal Department since they were aware that an appeal was contemplated. At the City Attorney's suggestion, Ms. Heyden took her determination to the City Commission on March 19, 1996, for affirmation that her determination of a minor change was acceptable. That determination was ratified by the City Commission. An excerpt of the minutes of the March 19, 1996 Regular City Commission mee1ing were submitted as City's Exhibit #5. In addition, a verbatim excerpt from the tape recording of the March 19, 1996 meeting addressing the "Minor Site Plan Modification for Clear Copy" was submitted as City's Exhibit #6. Tape recordings of the City Commission meeting of March 19, 1996 were marked as City's Exhibit #7. Also submitted into evidence was a copy of the Land Development Regulations, Part III, Chapter 4, Section 9 (City's Exhibit #8) which identifies the major and minor modifications, and a copy of City of Boynton Beach Ordinance 95-44 (City's Exhibit #9) which gives this board the power to act on this request. With all of the evidence presented, and due to the fact that the Land Development Regulations, Part III, Chapter 4, Section 9, were followed, Mr. Haag requested that the board affirm or sustain the Planning Director's recommendation that it was a minor site 4 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 plan modification. There were no questions of Mr. Haag from the board members at this point in the meeting. Rea Stambauah. Miller & Woods. PA. 1400 CentreDark Blvd. Suite 660. West Palm Beach. represented RHS Corporation. The Corporation is the legal property owner of the property contiguous to the property being developed by Clear Copy. He introduced Dr. Roberts, President of RHS Corporation. Attorney Cherof advised that Dr. Roberts' original letter requesting the appeal is dated March 25, 1996, from Dr. Roberts on Mark E. Roberts, DDS letterhead. Subsequently, there was a letter changing that from Dr. Roberts to RHS. Mark Roberts said the initial letter sent was a public records request for the application. Attorney Cherof responded to that letter stating that was not a satisfactory application for this appeal. He subsequently sent a letter on RHS letterhead indicating that RHS was the appellant. Dr. Roberts stated that this project has been ill fated and poorly planned from the beginning. Through negligence, the City compounded the problems when they approved the site plan, issued the building permits, and allowed construction to move forward. The City would like all of their problems to go away. Since the original site plan was so bad, and did not meet the Land Development Regulations, the City required Clear 'Copy to submit a new site plan. Ms. Heyden called this new site plan a minor modification with the hopes that this aggravation would go away. The owner of Clear Copy would like the members to believe that Dr. Roberts is present tonight because he does not want the property developed. Gene Moore would also like you to believe the same thing. George Davis, Tambri Heydan, and City staff feel the same. However, what RHS wants is not the issue. The issues are whether the Clear Copy project meets the City's building Codes, and why Ms. Heyden determined this was a minor site plan modification. For the record, Dr. Roberts stated that RHS Corporation has no problem with Clear Copy developing the property. In the lawsuit filed, RHS is asking the court to require the City to enforce the building Codes. Mr. Moore objected to Dr. Roberts remarks stating that the chair instructed the appellant that the issue before the board is whether or not these minor changes were right or wrong. Dr. Roberts is again attacking the basic site plan. Attorney Cherof advised that this is not a review of the first or second site plan. It is a review of the difference between the two, and whether that difference is characterized as a minor or major modification. He requested that comments be restricted to that analysis. 5 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 Attorney Stambaugh explained that Dr. Roberts did not have an opportunity to express his concerns the last time this project was reviewed because he was out of town. Chairman Miriana questioned why Dr. Roberts was not allowing Attorney Stambaugh to present his case since he was being represented by counsel. Attorney Pawelczyk advised that it is Dr. Roberts' choice to decide how his case is presented. .:;. .!t. Dr. Roberts continued by saying the new site plan submilled by Clear Copy does not comply with many of the Land Development Regulations. RHS feels the new site plan is a major modification. Dr. Roberts submitted a letter from Gee & Jenson (Appellant Exhibit #1), an engineering firm, which provides an opinion that this is a major site plan modification. Major modifications require approvals of both the Planning and Development Board and the City Commission. Since Ms. Heyden knows this site plan cannot meet the Land Development Regulations, she determined it to be a minor site plan modification. Minor modifications are handled administratively, and not throu~ quasi-judicial review. Ms. Heyden did not want to address or resolve the issues on this site plan; she just wanted the aggravation to go away. Dr. Roberts stated that he plans to show why this is a major modification, and he hoped that with the proper decision by 1I1e board, additional appeals and lawsuits can be avoided. . . - . In determining what constitutes a major modification, the City's Ordinances leave gray areas for interpretation. However, the intent is clear. The new site plan does not meet the requirements of the Land Development Regulations and, therefore, needs further review as intended in major site plan modifications. The City presented the opinion that it does meet the Land Development Regulations, but Dr. Roberts wiI show that it does not. The City presented the opinion that the site plan does not adversely affect adjacent properties; however, it does adversely affect RHS property. The CIty stated the site plan does not reduce physical buffer~~ however, it does. The City said there is no affect on adjacent property; however, an indication this is not correct is evident in the fact that NW 7th Street must be restriped, changing the traffic flow problem to the surrounding neighborhood. The City also presented that the site plan alteration is almost the same as the original plan. They want the members to believe that even though every parking space has been changed to a new location, the driveways have been changed to new streets, the drainage engineering is completely new, the lighting design is new, the buffers have been altered, the traffic flow to and on the property has been totally changed, and the method of trash pickup has been changed, that this new site plan is virtually the same and has no impact on the adjacent properties. Tambri Heyden wants you to believe that since the Clear Copy property has the same number of parking spaces, the same number of driveways, and the fact that the building is in the front and the parking is still in the rear, everything is 1he same and this is a minor 6 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 site plan change. Dr. Roberts finds this hard to believe. Dr. Roberts reviewed the major issues regarding why this site plan should require further review. He distributed copies of overlays he prepared for review by the members. The first page indicated the new modified site plan. He explained that the property abutting the Clear Copy property has an existing hedge. That hedge is nonconforming. The hedge does not meet City standards and will not provide an adequate buffer. The approved site plan addressed this issue. The original site plan indicated that the property next to it had a hedge. It also stated that if the hedge did not meet the City standards, the site would be revised to show proper vehicle use screenage to be in compliance with City standards. They purposely erased this requirement from the new site plan so that it no longer appears. The City Commission, on September 19,1995, approved that there would be an adequate buffer .' The Code requires fire trucks to have access to the property. This site plan was changed, and that changed the entire vehicular traffic pattern. The second overlay he presented showed that the fire trucks and garbage trucks cannot access the property. RHS property abuts Clear Copy property which contains hazardous waste. They are required to get a hazardous waste permit. If a fire were to develop on this property, the City could have the fire truck park on the roadway, but that would not allow additional emergency vehicles to access the surrounding neighborhood. The Codes address this and require that fir'a trucks have sufficient access to the property. The Code also requires that garbage trucks have access to the property. The City acknowledged that this is not possible. On September 19, 1995, the City Commission did not approve curbside recyclable pickup. Dr. Roberts provided an excerpt from that meeting. He read from the excerpt as follows, "...Ms. Heyden explained that if the recycling truck cannot maneuve~ on site, a determination will be made relative to the method of garbage pickup." Dr. Roberts stated that the City Commission did approve on site recyclable pickup as the Codes require. All commercial establishments must have on-site containerized garbage pickup. Dr. Roberts requested that the City send him a copy of an Ordinance that defines what a container is. He also asked for information on the trucks the City has available to pick up these containers. Using his overlays, Dr. Roberts stated that the truck cannot get onto the property. The trucks have a minimum turning radius of 90'. They would have to turn, cross over the curb and the parking spaces, and go onto his property just to make the turn. Because of this, the City decided that the already-built dumpster area would be called a storage area because the truck could not get to it. He reminded the members that Ms. Heyden said the method of garbage pickup had not changed from the original approved site plan. She said the City Commission approved curbside pickup. Dr. Roberts questioned where the curbside pickup would be located because there are no swales. The Code does not allow the cans to be placed in the 7 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 roadway. If placed on the sidewalk, they will block access. If left in the driveway, it will be a violation of the Code. This property does not have the provisions for curbside pickup. In addition, Ms. Heyden did not take into account adequate garbage pickup. Mr. Feldman testified that this 4,000 square foot copy center will have one garbage can per week of garbage. The Code requires the dumpster to have sufficient access, This modified site--'Plan eliminates access to the dumpster. There is no provision for any vehicle to go to the dumpster area because the handicap parking space is in the way. They knew they could not call it a dumpster area, so they called it a storage area, and Ms, Heyden changed it on the plans. The Code requires 27' for back-up space for each car. The new plans modified the 27' to now have only 26.5'. This is against the Land Development Regulations, and requires a variance. This was modified and changed on the new plans. This is why the plans need further review by the City Commission, and that is why this should be a major modification. The Land Development Regulations require all dedications of land to be approved by the City Commissioners. Under this modification, Ms. Heyden voluntarily accepted the property for the City. However, she does not have the authority to do that. The Code requires 2.5' buffer zones between the properties. Tbe original site plan made provisions for that requirement. The new site plan has been changed and does riot allow for that 2.5', A variance should be required. The Code requires that the loading zone be accessible. Clear Copy has a loading zone, but the trucks cannot legally access the property. Clear Copy has eight employees. It is assumed that deliveries occur when employees are at the facility. A good number of employees would have to leave the projed for the trucks to enter the property. Assuming they could enter the property, it is physically impossible to enter the loading zone without encroaching on the handicap space. The City requires a concrete-type post to prevent encroachment. This building automatically encroaches 2" closer to the parking lot than was shown on the plan. In addition, the building has an electrical meter that protrudes another 6". Besides the fact that the loading zone is only 12' wide, which is required by Code, eight additional inches are lost. Dr. Roberts feels the decision regarding whether or not to have a loading zone should require a variance. The new site plan does not have the required irrigation and landscaping design, and does not meet the Land Development Regulations. The previous site plan did show irrigation and landscaping design. The new plans have a new lighting design. The required engineering has not been submitted. The original engineering submitted assumed light could go through a concrete 8 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 wall. The original site plan had engineering illegally using lighting from RHS property. They never took into account that they had a 6' high hedge or 6' high concrete wall. The Code requires a minimum amount of light for safety protection. The lighting requirements are serious. More things have changed than just flip-flopping the parking lot. This is a major site plan change. Dr. Roberts stated there are a lot more things going on; however, he believes the scope of all of the changes and the intent of a major modification is to have further review of the site plans. Attorney Stambaugh pointed out that Dr. Roberts expressed most of his concerns. This new modified plan includes the land dedication. The land Development Regulations require, under Article V, Section 3.A.2.E.5, that the City Commission shall determine whether it accepts a land dedication. Although this land is not of a great amount, when examining a major or minor modification, this is a fact that should be considered. This alone should have been enough to make this new modified site plan a major site plan modification. Another issue is the environmental issue. This is something which was not submitted in the minor modification; however, it is a requirement. Attorney Stambaugh read from Section 11.3 of the Code which states that in all cases, approval of the environmental review permit shall precede approval of site plan. Dr. Roberts added that the reason the site plan was changed was that the applicant could not provide a certification of conformance with the land Development Regulations. The City asked for it, and when they could not provide it, the City asked them to modify the site plans. This is required before a site plan is approved. Clear Copy still has not submitted this certification because the land Development Regulations cannot be met. If this is a major modification, they will have to show certification to, the City Commission. Attorney Stambaugh read the definition of "containerized" from Section 10-25 of the Code. It says, "Containerized means a detachable metal container provided by the City, designed and intended to be mechanically dumped into a packer type sanitation vehicle and varying in size from 2 cubic yards to 8 cubic yards adaptable to City equipment." In a minor modification, there is no containerized commercial collection. This is another fact which should be brought out in the board's determination. In addition, Dr. Roberts talked about the recycling trucks and access. It was indicated in staff's report that service areas are in the same general location and methods of refuse collection, curbside pickup for trash or recyclables, is unchanged. That is untrue. The recyclables have changed. Attorney Stambaugh pointed out that Dr. Roberts has closely examined this case, and has 9 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 a good command of the facts. That is the reason why he made the presentation. Mr. Rappoport asked Dr. Roberts if he approved of the original site plan which was submitted to the City. Dr. Roberts responded that he objected to the original plan. When he began to offer a history of this project, Mr. Moore objected since he felt the remarks were not germane. . -' Dr. Roberts advised that he objected to the original site plan and wrote a number of letters indicating the areas of noncompliance. The City said they complied, and in the end, Dr. Roberts was correct. The site plans did not comply, and they had major problems. There were no other witnesses to testify on behalf of the appellant. Mr. Haag rebutted the following: r.'. Off-Site Hedge - As stated in Planning and Zoning Department Memorandum No. 96-143, the hedge was approved when the City Commission approved the first site plan. It has nothing to do with the modified site plan. The City Commission approved the hedge on Dr. Roberts' property, and the City Commission was aware of the discrepancy in the size of his landscape strip. Fire Truck - The review for the Clear Copy project went before the Technical Review Committee which is comprised of several City departments. The Fire Department is one of those departments. They had no concern whatsoever that the fire truck could not get on the site. They felt the site was acceptable to fire/rescue vehicles. They did not have any comments on the original or modified site plan. He referred to Exhibit "C" (City's Exhibit #10) which was part of the back-up material. Recycling and Sanitation - Both of these areas were addressed with the minor site plan modification. Mr. Haag did not have knowledge of what Dr. Roberts read from the minutes of September 19, 1995 relative to recyclables. However, the memorandum received from Public Works, as indicated in Exhibit "C" (City's Exhibit #10), confirms that they have no concern providing curbside service for the removal of solid wastes or recycling as previously approved. Location of Cans for Pickup - The determination regarding the location of the cans for pickup is generally workE;ld out between the property owner and Public Works. 10 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 Back-up Space - The plan delineates 27' back-up space. The Code requires 27'. The plan is in compliance with the Code. Land Dedication - The City Commission must approve land dedication, however, it can be handled separately. Land dedication is taken to the City Commission by the City Engineer, Mr. Hukill, and as noted in the comments in Exhibit "C", Mr. Hukill will process this when he feels the time is appropriate. Mr. Haag is certain the City Commission will accept Mr. Hukill's recommendation. " ~c Loading Zone - The Code requires a 12' x 35' loading zone, and access to it. The site has a loading zone, and it is acceptable to staff. How it is approached, entered and exited goes back to the property owner. Irrigation - Irrigation plans are not required in the site plan process. They are required in the permitting process. All landscaping must be irrigated. When these plans go from site plan to permitting, most every project is approved subject to staff comments. The comments are then rectified at permit level. If irrigation is not shown, but the plans indicate there is landscaping, a stamp would be placed on the plans requiring a separate permit for irrigation. When they are ready for final inspection, the field inspector would see that stamp and not issue the final inspection until the irrigation permit is secured. ,- Landscaping - The landscaping plan shown on the modified site plan was subject to Exhibit "C". There are comments regarding. landscaping. Before a permit can be issued, the property owner must take care of all of the staff comments regarding landscaping. -, Certification by -Design Professional - This is a comment which is listed in Exhibit "C" by the City Engineer. This must meet with his satisfaction before he would allow them to proceed with the project. Dr. Roberts felt this should be done beforehand; however, in four or five years of reviewing site plans for the City, Mr. Haag stated that this is a comment which generally comes through as a staff comment because it is not provided at the site plan level. This is required prior to issuance of the permit. Mr. Moore commended Mr. Haag and the City on its presentation. He feels it has clearly shown that Ms. Heyden was correct in her decision relative to minor versus major. Her decision comes with the appropriateness of practice. The appellant has the burden of proving that her decision should be overturned. Ms. Heyden's decision was supported by her staff and the Technical Review Committee, and ratified on two occasions (the original site plan and the changes) by the City Commission. 11 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 Mr. Haag added the following in response to issues brought up by Attorney Stambaugh: Land Dedication - This was already addressed. ., Environmental Review - Mr. Haag attempted to sift through the back-up ~ materials quickly to find a statement relative to ~nvironmental review. He >' was unable to find it in his haste. However, he advised that Clear Copy-~ applied for environmental review. They went through the review and were approved. The approval is subject to comments. That means that when you go through site plan review for a new building, the environmental review cannot approve the environmental concerns for the project until the building is built. They have been approved subject to staff comments. They cannot get an Occupational License until they have an environmental review permit. This will happen when the building is built. - , Containerized Metal - Mr. Haag stated that he did not know how to refute the section of the Code read by Attorney Stambaugh. . The size of the containers and their location for pickup is worked out between the property owner and Public Works. '-of ;,~ , . ,'!. "'''('.''' t In closing, Mr. Haag stated that he stands by the recommendation of the Planning and Zoning Director that this is a minor site plan modification. -: ' '" _ ;" '" Dr. Roberts questioned whether Mr. Haag believed the Land Development Regulations should be followed. Mr. Haag responded affirmatively. Dr. Roberts asked Mr. Haag to look at his plans and tell the board the dimensions on the plan. Dr. Roberts stated the plan he was showing Mr. Haag was the approved plan submitted by Clear Copy. Mr. Haag confirmed that the dimension shown on that plan for the back-up space read. 26.5'. Dr. Roberts showed each member the plan indicating the back-up space of 26.5'. Mr. Haag explained that Dr. Roberts' plan was different from the one being evaluated in the agenda back-up material. The plan in the package says 27'. There were several versions of the plan. Dr. Roberts stated the one he possessed was the sealed plan, and the one that was in the back-up material. Mr. Haag disagreed, and stated that he did not know where Dr. Roberts' plan came from. Dr. Roberts suggested that the members look at the plans in their back-up material. He stated that the plan dated March 3rd appears in the back-up material. His plan is dated March 8th. He stated his plan were "the" plans. 12 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 Mr. Haag reiterated that the plans which were reviewed were the ones contained in the agenda back-up material. Dr. Roberts said the property is 50' wide. The Land Development Regulations require a 5' landscaped area, a 6" raised curb, 18' of parking space, and 27' of back-up space. Fifty and one-half feet are needed, and the property is only 50' wide. Either a curb, one-half foot of planting area, or a half foot from the parking space would have to be eliminated to make 50'. There is no way around these requirements because they are Code requirements. Dr. Roberts asked Mr. Haag if the City Commission could approve something that requires a variance without going through a variance. Mr. Haag referred that question to the City Attorney. However, with regard to Dr. Robert's comment about 5', Mr. Haag said the curbing is all inclusive of the 5' landscape strip. This is general practice and has been accepted for as long as he has been reviewing plans for site. Dr. Roberts responded that the Code does not make such a statement. Attorney Cherot advised that Dr. Roberts is afforded the opportunity to present whatever evidence he wishes to present. The purpose ot this proceeding is not for it to be a debate. He is free to put on whatever evidence he wants, and to take as much time as he needs to accomplish that. Dr. Roberts again asked if the City Commission can approve something that requires a variance without it going through a variance opinion. Mr. Moore objected to Dr. Roberts' question. Attorney Cherof advised that there is no issue ot variance before this board tonight. The issue is the distinction l?etween the first and second site plan. Attorney Stambaugh pointed out that Dr. Roberts is trying to make a point that this is a matter of logic. When are the determinations between a major and minor modification going to be made? Is the issue of a variance included in this criteria which must be followed? Dr. Roberts continued by saying that Mr. Haag stated the City Commission approved the buffer zone between the properties. What the City Commission approved is what he provided a copy of which states that the property next door has a proper buffer, or Clear Copy will change their site plan to have a proper buffer. Instead of changing the site plan to have a proper buffer, they eliminated it. The City acknowledges that this is a nonconforming hedge. Clear Copy should have applied for a variance when the City became aware that it was impossible for them to have an adequate buffer zone. The City 13 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 cannot approve something that is illegal without going through a variance. Dr. Roberts said the building Codes require that fire trucks have access to the property. It is physically impossible for fire trucks to have access to this property. The City does not want to say there is a problem with this site plan. . . '~. 'l. With regard to the loading zone, it is true that a truck can get on the loading zone; hOWQ.ver, a standard size delivery truck has a 6' cab and 24' cabin. The standard size truck that will deliver to Clear Copy will not be a pickup truck. It will be a standard delivery truck, and it will not be able to go into the loading zone. In addition, the City does not consider the fact that it is actually 8" narrower than what is on the plan~. ",' ," , Dr. Roberts said he requested a copy of the environmental permit which was issued. He received a letter from Ms. Heyden that the permit has not been issued. Mr. Haag agreed that the permit cannot be issued until the building is built. They gained environmental review approval subject to comments. " ;. Dr. Roberts said the Land Development Regulations require approval prior to the permit. If the City has not been enforcing that requirement, that does not mean it is not legal. Mr. Rappoport read from City's Exhibit #6 (verbatim excerPt) where it states that an environmental review was granted with conditions. It states that the conditions and permit are not issued until just prior to an Occupational License beinglssued. Dr. Roberts submitted an excerpt of the City Commission meeting minutes of September 19, 1995 (Appellant's Exhibit #2). This deals with the issue of recycling. Dave Beaslev. 515 SW 2nd Avenue. is a past member of the Planning and Development Board, and has been working in Boynton Beach as an arqhitectural designer for 14 years. Everything he heard this evening from Mr. Haag and the City is typical practice. The environmental review pfocess is done in the manner described. Some of the things here regarding the dumpster, loading zone, and fire truck have always been left to the discretion of the client, professional and City staff to work out. Attorney Stambaugh stated that in closing, RHS Corporation would like to make it known that what has been done in the past is not what should be done in the future. This is a major modification. An expert's letter was submitted by Gee & Jenson, and their opinion is that this is a major modification. Dr. Roberts wants to make sure the Codes are followed and the proper review is made. Attorney Stambaugh further stated that if it is determined that what was done in the past is what should be done in the future, and that replaces the Code, then he does not believe the court will accept that type of logic. Mr. Moore closed with a statement that if the board had the opportunity to review the 14 MINUTES BOARD OF ZONING APPEALS BOYNTON BEACH, FLORIDA APRIL 15, 1996 verbatim transcript, they will see that these are the recommendations of two engineers, including Mr. Wasser, who said these were minor alterations, and supported that determination. There being no further testimony, Attorney Pawelczyk advised that the board must decide whether the administrative decision made by Tambri Heyden that this was a minor site plan modification. The board will either affirm and uphold that decision, or reverse it. Ms. Hollingshead expressed concern because the City followed the definition of minor modification and checked off each item they reviewed, but RHS Corporation did not identify why there was a significant change in intensity caused by these changes. She sees that as a piece of a major modification. Motion Ms. Hollingshead moved to affirm and uphold the decision of the Planning Director that the amended site plan was a minor modification. Mr. Rappoport seconded the motion. The Recording Secretary polled the vote as follows: James Miriana Ben Uleck Aye Aye Mrs. Huckle asked to qualify her vote. She finds a great number of minor changt!s in the site plan, and she has several misgivings about some of the information presented and several misgivings about the plan. She wished she had a copy of the March 19, 1996 City Commission minutes earlier so that she would have been able to more thoroughly digest the information and feel more secure about some of the items. In view of her misgivings, she voted "No". Howard Rappoport Agnes Hollingshead Aye Aye. The vote was 4-1 to AFFIRM the Planning Director's recommendation. (Mrs. Huckle cast the dissenting vote.) 9. OTHER BUSINESS Chairman Miriana advised that the City Commission overturned the board's recommendation on Case 214 which the board heard previously. 10. COMMENTS BY MEMBERS None 15 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1~6 Based upon what he had to go through, he requested that the lien be reduced to $250.00, which equals the administrative costs. Mayor Taylor asked if the original problem was that the buildings were brought in prior to being permitted on that property. Pastor Sanderson said his plans had been submitted for cursory review. The buildings were brought in because Pratt Whitney could not store them. Motion Mayor Taylor passed the gavel and moved to satisfy the lien with an additional $50.00, for a total of $250.00. Commissioner Tillman second the motion, which carried 5-0. 3. Minor SIte Plan .MOdIIIe8IIOn for,ae.,.copy ~ City Attorney Cherof stated that in September of 1995, the Commission approved a site plan submitted by Clear Copy. An adjacent property owner. Dr. Mark Roberts, appealed the Commission's approval of the site plan and raised a number of technical issues with respect to compliance with the Code. That matter is still pending. A few weeks ago, Clear Copy indicated that they wished to submit a modified site plan. There is a specific procedure set forth in Chapter 4 of the Land Development Regulations (Section 9) that deals with how the City evaluates a request for modification of a site plan. It either makes a determination that it is a minor modification, which is handled administratively, or it makes a determination that it is a major modification, in which case it is treated as an original site plan. Under the terms of our Code, the determination of whether it is minor or major modification is left to the discretion of the Planning and Zoning Director. In the backup, there is an analysis made by the Planning and Zoning Director, and the conclusion that this is a minor modification of the site plan and it is to proceed administratively. The reason this is before the Commission is because the matter is pending in the Courts on appeal, and the adjacent property owner, through his attorney, made a request that if there was to be a determination of a minor versus major modification, that they have the opportunity to come before the Commission in a public fashion and state their opinion and have the opportunity to express their opinion to the Commission, perhaps to persuade the Commission that staff had made the wrong determination in that regard. Additionally, there was an issue with respect to interpretation of the Code, which is usually not a matter left to the discretion of the Commission. Rather, the interpretation of the Zoning Code is left to the Planning and Zoning Director. That involves an interpretation of 31 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1996 Chapter 2, Section 4, Subsection J of the Code, which provides with respect to structures that house eaves shall not overhang or exceed the setback lines for more than two feet. The beginning part of that section indicates that they are talking about structures in all zoning districts, not specifically residential. Therefore, we construe the words "house eaves" to mean structure eaves. In fact, Tambri Heyden or William Hukill will explain that that interpretation has been consistently applied, or at least applied to some degree, by the Building and Zoning Departments from time to time to include all structures, not simply residential or house structures. City Attorney Cherot stated that this matter should be treated as a quasi-judicial proceeding. At the conclusion of the presentation, all that the Commission is asked to do is to acknowledge and ratify or endorse the interpretation by Tambri Heyden, or if the Commission does not agree that the interpretation is correct, to direct her to reconsider it. Additionally, with regard to the interpretation of the section of the Code that City Attorney Cherof described regarding the eaves overhanging the setback lines, it the Commission does not agree with his interpretation, he should be directed to provide an amendment to the Code to clarify that. At this time, all those who intended to testify this evening were sworn by City Attorney Cherot. Ms. Heyden stated that she has been a municipal planner for over ten years. Prior to coming to the City of Boynton Beach in 1987, she was a planner for the City of Williamsburg, Virginia. She reviewed Section 9 of the City Site Plan Review Ordinance. She said there are seven criteria that are spelled out in the Code that are used as guidelines in making that determination. Using the overhead projector, she displayed an overlay of the site plan that was approved in September of 1995. She reviewed each criterion and compared the two site plans to show how she came up with this determination. In making a minor/major modification determination, the planning and zoning director shall consider the following: 1 . Does the modification increase the buildable square footage of the development by more than 5 percent? Ms. Heyden displayed the approved site plan and stated that there are two driveways that were proposed (one an ingress only and one an egress only). The egress only was on 7th Street. She pointed out the location of the building. It faces Boynton Beach Boulevard. 32 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1996 The square footage of the building has not changed. The parking that is provided is exactly what is required by Code. There are no surplus parking spaces. 2. Does the modification reduce the provided number of parking spaces below the required number of parking spaces? Ms. Heyden advised that there are no changes in the number of parking spaces; just the location of the parking spaces. 3. Does the modification cause the development to be below the development standards for the zoning district in which it is located, or other applicable standards in the Land Development Regulations? Ms. Heyden stated that this modification does not change, and continues to meet, the C-3 zoning regulations (the building and site regulations). She provided the staff comments that have been generated on this request, and she used the Technical Review Committee form to generate these comments, which is unusual. However, in light of the pending litigation, this was the quickest and most effective way of obtaining those comments for the Commission this evening. Once compliance with those staff comments has occurred, this will ensure that all safety and technical concerns, as well as the Code requirements, have been met. 4. Does the modification have an adverse effect on adjacent or nearby property, or reduce required physical buffers such as fences, trees, or hedges? Ms. Heyden stated that the modifications include replacement of the N.W. 1 st Avenue ingress only driveway for a N.W. 7th Street ingress only driveway. Instead of one driveway onto 7th Street and one driveway onto 1 st Street, there is an ingress only driveway onto 7th Street and an egress only driveway onto 7th Street. Therefore, both driveways are now on 7th Street. (There was a change in the driveway locations.) There has also been a flip-flop of the location of the row of parking spaces with the access aisle to the spaces. The access aisle was on the east side, and the parking spaces were on the west side. They have now been reversed. There has also been a switch of the handicap space location, and window sills have been added to the building exterior. Regular parking spaces have been switched as well. 33 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1996 The driveway change meets the locational requirements of the Code, and does not negatively affect adjacent properties. The changes to the parking lot and handicap space are internal to the development and have no affect at all on the adjacent properties. With regard to reduction of physical buffers, this is consistent with the September approval wherein the City Commission determined that the existing landscape buffer between Dr. Roberts' property and the Clear Copy property was acceptable. 5. Does the modification adversely affect the elevation design of the structure below the standards stated in the Community Design Plan? Ms. Heyden advised that the windowsills are consistent with the Community Design Plan, In fact, she felt they enhance the elevation design. 6. Does the modified development meet the concurrency requirements of the Boynton Beach Comprehensive Plan? Ms. Heyden advised that the modifications have no impact at all on the previously granted concurrency certification. 7. Does the modification alter the site layout so that the modified site plan does not resemble the approved site plan? Ms. Heyden said this reatly boils down to assessing magnitude of change, and the Department has consistently applied this criterion, as evidenced through its quarterly reporting to the Commission. Ms. Heyden stated that when you compare the original site plan with the modified site plan, you will notice the following: · There has been no change in the building location. . The same building to parking relationship occurs. (The building is still in the front, and the parking is still in the rear.) · There has been one change in the number of driveways or type of driveways (two-way versus one-way and ingress versus egress). · The service areas are in the same general location and the method of refuse collection has also not changed. We are continuing to allow curbside pickup for the trash as well as the recyclables. 34 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1996 . The degree, quality, quantity, and location of landscaping has not been changed. . The type of parking spaces (90 degree, angle, parallel) has not been changed. . The location of impervious areas (parking lot, sidewalks, structures) has virtually not changed. . The building height, style, type, and use have not changed. . The utility service modification is to the extent that it has no effect on other site improvements. In addition to ratification of her determination of minor modification, she sought a determination from the Commission regarding the legislative intent when the house eave section of the Zoning Code was adopted. She asked if it was the intent to allow this section to apply to commercial buildings. Historically, overhangs on commercial buildings, if they are detected at the inspection stage, have been allowed and have ranged between one inch and four inches. They have included such things as the stucco on the buildings that adds a little volume or depth to the exterior, windowsills, and cornices. The Clear Copy building's windowsills, cornices, and stucco extend beyond the setback lines on the north, which is the front, and also the side property line on the east. Her report indicated three inches, one and a quarter inches, and ten inches, respectively. However, the applicant has submitted a package to the City Commission this evening. This package shows some photographs and drawings of the overhang. There is a little confusion about what the maximum encroachment or overhang is, ten inches or six inches. On the permit plans, the section drawing was labeled a ten inch overhang. When we scaled it, it showed six inches. She believes Mr. Feldman is going to tell the Commission tonight that it is approximately four inches. Ms. Heyden requested ratification of the minor modification determination, and a determination of the Commission's legislative intent on the house overhang application. Vice Mayor Jaskiewicz asked if there are any other buildings in the area that have a similar overhang. Ms. Heyden advised that the adjacent building has a similar overhang situation for gutters. It seemed to Bob Feldman, the co-owner of Clear Copy, that Dr. Roberts brings up minute things and makes them major. He reiterated that the original agreement showed a ten inch overhang. He measured the overhang, and it is six inches. With regard to the parking lot, 35 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1996 the handicap spot was too much of a slope at that point. For safety purposes, it was flip- flopped back to make it a little more accessible. With regard to the color of the building, Mr. Feldman stated that a tangerine color was approved by the City Commission. However, after the building was painted, it looked a Iittte more pink than tangerine. He is currently trying to get that toned down a little. With regard to the color of the windows, they were painted bronze because the windows on Dr. Roberts' property, Wendy's, etc., were bronze. He later found out that they are supposed to be white. He has a choice to paint them white, which he feels will peel off in six months because the windows are metal. He has bent over backwards since day one to meet City Code. Even though staff determined this to be a minor modification which could be handled administratively, it is before the Commission because of Dr. Roberts. He has been here 21 years. The City has been excellent to him, but because of litigation involving Dr. Roberts, we are going back and forth on every little item. Mr. Feldman said he will do whatever the City wants him to do. He said he originally wanted a flat roof. There would have been no overhang at all. However, the City required an S-tiIe roof. Therefore, it has to hang over a little. Reginald Stambaugh of Miller and Woods, the attorney representing Dr. Mark Roberts, advised that Dr. Roberts asked him and his mother, Commissioner Carol Roberts, to speak on,his behalf. He said Dr. Roberts could not attend this meeting because he was only notified of this minor modification on Friday and already scheduled an appointment out of State. Mr. Stambaugh said practically everything that could be changed was changed, except the building itself. He said this is a major modification. He did not think there was good enough notice for him to be prepared to address everything as it has been presented. He said all we are trying to do is follow the Land Development Regulations. He introduced Commissioner Roberts. Mayor Taylor welcomed County Commissioner Roberts to Boynton Beach. Commissioner Roberts read a letter, dated March 19, 1996, from Mark E. Roberts, D.D.S. to Mayor Taylor and Commissioners. In this letter, Dr. Roberts states that he believes this is a major site plan modification. A copy of this letter is attached to these minutes. Mr. Stambaugh focused on the key points in this letter whidl he believes would persuade the Commission to ask staff to reconsider its determination of a minor modification. Mr, Stambaugh said proper procedure is not being followed in this case. He said if we are not going to follow the Land Development Regulations, then we should not have them. The purpose of the Land Development Regulations is to deal effectively with future problems which may occur as a result of the use and development of land. In the instant 36 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1996 case, we are finding that there are problems being created. We are not following the purpose in this instance. Mr. Stambaugh reread the portion of Dr. Roberts' letter which lists the ways in which the new site plan alters the awroved site plan so that it does not resemble the approved site plan. He stated that the new plans show the need for a land dedication to the City. He asked if the City staff, by mere determination of a minor'modification site approval, is approving the City's acceptance of a land dedication. He asked if the City Commission allows this. He said this is a major modification. He stated that two other points have not been remedied with this new modification. They are as follows: 1. The fire truck cannot legally access the property. LOR requires safe and efficient access to be provided for emergency and service vehicles to this property. This standard has been required of all commercial developments in the past. 2. City ordinances governing garbage pickup require containerized garbage pickup. There is a requirement for containerized receptacles for commercial properties. Section 10-25 states as follows: "Containerized refuse service shall be carried out by the city at commercial or multifamily residential establishments in the promotion of improved sanitary conditions...." Mr. Stambaugh said there is no more containerized commercial collection. Mr. Stambaugh stated that there has not been an environmental review. Section 11.3 of the Code states as follows: .... in all cases approval of the environmental review permit shall precede approval of the site plan." Mr. Stambaugh advised that the new plan has not submitted the required irrigation plan. He was in possession of a report from Gee & Jensen stating that Chapter 481.321 of the Florida Statutes requires that a licensed landscape architect prepare and sign all landscape plans unless for a single-family home. The landscape plan was submitted by an architect and this is contrary to State law. Therefore, the required landscape design is incomplete. In Gee & Jensen's March 14, 1996 letter to Ms. Heyden, it states as follows: . There is no landscape buffer proposed at the east side of the parking lot requiring a variance. . The dimensions of the parking lot are inconsistent between the site plan and the construction drawing. In either case, a variance would be required. 37 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1996 · These changes are indicative of major plan changes. Mr. Stambaugh read Dr. Roberts' March 19, 1996 letter addressed to Mayor Taylor and the Commissioners regarding determination of the legislative intent of the zoning code. A copy of this letter is attached to these minutes. Mr. Stambaugh advised that Dr. Roberts wants City staff to take a close took at the Code and comply. Mr. Stambaugh focused on the following three criteria when determining if a modification is minor or major: 1 . Does the modification cause the development to be below the development standards for the zoning district in which it is located, or other applicable standards in the Land Development Regulations? Mr. Stambaugh stated that we already have gone over some of the below standard requirements. It does not meet the Code sections. 2. Does the modification have an adverse effect on adjacent or nearby property or reduce required physical buffers, such as fences, trees, or hedges? Mr. Stambaugh stated that there is no buffer. Therefore, a problem exists. 3. Does the modification alter the site layout so that the modified site plan does not resemble the approved site plan? Mr. Stambaugh referred to the changes in the parking and access, and the land dedication to the City without Commission approval. He requested that the Commission deem this to be a major modification. Ms. Heyden advised that many of the changes that Mr. Stambaugh mentioned this evening were necessary to meet the staff conditions of the original approval. Nine times out of ten, when you approve a site plan, the site plan that gets submitted as part of permitting, approved subject to staff comments, does not look like the approved site plan. That in and of itself does not constitute a minor site plan modification. The site plan was approved subject to staff comments. which included the change in the dumpster to can pickup. Light pole changes oftentimes change between site plan approval and permit review because the photo cell illumination pfans are not required until time of permitting. Oftentimes that 38 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1996 requires some adjustment in the light pole locations. The buffer between Dr. Roberts' property and this property continues to be the same buffer design that was approved as part of the original approvat. which was knowing that the width of the landscape strip was less than two and a half feet. The loading zone was barely shifted in an east/west direction, but is basically in the same location. This is a very insignificant change. The driveway has changed from 15 feet to 12 feet. This still meets Code and is a very insignificant change. Cans are considered containerized pickup. An environmental review has been approved. subject to certain conditions. The conditions and the permit are not issued until just prior to an occupational license being issued. Irrigation plans are not required as part of a site plan. They are required as part of the permit review. In conclusion, Ms. Heyden said the Legal Department informed her that they had notified Dr. Roberts' personally via a telephone call on March 5th that this was considered a minor modification and that it would be going before the City Commission on March 19th. Commissioner Bradley inquired about the land dedication and the fire trucks. William Hukill, Director of Development, pointed out the land dedication. Sometime in the.past, because of the vehicular traffic on 7th coming from the fence company on the other side of the tracks, the radius was made larger. As a result, there is a 21" triangular piece of land where the sidewalks come together. This has to either be dedicated to the City to make the sidewalk fit on City property, or an easement or waiver has to be granted. With regard to access, Ms. Heyden said the Fire Department feels they have adequate ability to access this property for fire protection. With regard to accepting a piece of property of any size on behalf of the City Commission and City, Mr. Stambaugh asked Ms. Heyden if she takes this lightly. Ms. Heyden stated that that method of resolving that issue was not reviewed by her department. She felt it would be appropriate to address this question to the Building Department. Mr. Stambaugh asked the same question of Mr. Hukill. Mr. Hukill indicated that he does not take this lightly. Mr. Stambaugh felt the City Commission should make the decision regarding the donation of land, no matter what the size of the property. Mr. Stambaugh asked for the Code Section that deals with trash cans/containers. Ms. Heyden did not have a Code book in front of her. She stated that the City allows can pickup as well as dumpsters for trash collection. Mr. Stambaugh felt you need to take extra care with commercial properties. He said the Code spells out what a container is, and he left it to City Commission to make that determination. Section 10-25 states as follows: "Containerized refuse service shall be carried out by the city at commercial or multifamily 39 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1996 residential establishments...." Mr. Stambaugh said there is a contrast between 10-25 and 10-24 (residential noncontainerized collection), which appears to be regular garbage collection. With regard to the buffer zone, Mr. Stambaugh said just because the Code was not in compliance the first time, does not mean that it should not be in compliance the second time under an application for modification. Mr. Stambaugh requested the Commission to follow the Code and consider this a major modification. Ms. Heyden said the Commission has previously ~roved, in special cases, under certain circumstances, can pickup for commercial properties. Also, we have followed the Code, and by allowing this minor site plan modification in no way jeopardizes anything in the Land Development Regulations. Over the past five years, we have been very consistent in applying what is a minor modification and what is a major modification. This is nothing more than we have done in the past. Mr. Stambaugh stated that the Land Development Regulations spell out everything. City staff was supplied with Gee & Jenson's reports. If 1I1e City Commission does not feel that th~y have done any wrong, we are going to have to let the Courts decide this matter. City Attorney Cherot stated that Mr. Stambaugh has invited the Commission to substitute its opinion for the opinion of the Planning and Zoning Director, and to make a determination that this is a major site plan modification. That would be in violation of the Code. One of the provisions of the Code gives the Planning and Zoning Director the discretion to interpret the Code. There is recourse to Dr. Roberts through the Code as well. There is a provision in the Code that states that if any aggrieved party does not like the interpretation of the Planning and Zoning Di'ector on any issue, that they have recourse to the Board of Zoning Appeals. The aggrieved party may obtain a reversal from the Board of Zoning Appeals of the interpretation of 1he Code by the Planning and Zoning Director. The Code does not always address each and every issue specifically on point. That is why the Planning and Zoning Director has tile power to make interpretation. The Commission does not have the power to override the opinion of the Planning and Zoning Director in interpreting the Code. The matter is before the Commission to listen to all of this and suggest to the Planning and Zoning Direclor that she may want to reconsider it, but the Commission cannot require her to do that and cannot override her. With respect to the other issue regarding the interpretation of the overhang issue, City Attorney Cheraf said that is an interpretation that 513ft has made. The same recourse is 40 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1996 available to Dr. Roberts if he does not agree that that is the proper interpretation of the Code by the paid professional administrators of the Code. Dr. Roberts has recourse to the Board of Zoning Appeals. City Attorney Chernf stated that they are wrong with respect to telling you that their recourse is to the court. There is an administrative remedy available to them. It is built into the Code to specifically avoid putting people in the position where they have to go to court to make their points of interpretation known to the advisory boards then to the Commission. He suggested that if the Commission believes the Planning and Zoning Director has made the proper interpretation, or wishes not to interfere with that interpretation be it correct or incorrect, the Commission needs do nothing. The Commission can simply ratify her interpretation. With respect to the overhang issue, City Attorney Cherot stated that the only reason that is before the Commission is if the Commission does not believe that staff has been properly interpreting that in applying it to commercial properties, the Commission needs to tell him so that he can clarify that provision of the Code. Commissioner Bradley asked if the ratification is accomplished through silence or through a motion. City Attorney Cherof said it could be by either. Mr. Stambaugh had a difference of legal opinion on the interpretation of that clause. He believes a ratification constitutes an action by the City Commission which would essentially override any of the actions which the administration or City staff would be making. He said if this process is going to go through as a minor modification, then it should be treated as a minor modification. City Attorney Cherof took it trom this comment that Mr. Stambaugh is asking the Commission not to take any action. Mr. Stambaugh said we have had an opportunity to speak on this issue, and we are requesting that the City Commission take the action of deeming this a major modification. City Attorney Cherot advised the City Commission that it does not have the power to do that. George Wasser, a practicing architect for 33 years, State Threshold Inspector, and Licensed General Contractor in the State of Rorida, has been a resident here and in operation here for about 23 years. He stated that he was called in some time ago as a consultant for Clear Copy, to review some of the comments, look at the property, and see if there was anything of merit in these complaints. He checked the property and made a few recommendations. Later, he found out that the City had already made those comments. Mr. Wasser found the items that Mr. Stambaugh brought up to be the same kind ot rhetoric that he read in Gee & Jenson's report. He said it ignores a lot of things. There is simple, logical reasoning behind all ot the City comments and approvals. In his experience as a professional, he totally agreed with the Building Department and the 41 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1996 Planning Department. He also agreed with City Attorney Cherof that there is a discretion involved in everything, and not everything is definable. That is why we have staff to interpret and enforce the intent of the Code. He believes that has been done here. Ciro Gomez, President of Giro Gomez Inc., is a general contractor. He had the opportunity to build Dr. Roberts' building, and found the City to be very cooperative. He said he was sure that if he was to go back and review Dr. Roberts' building and found that one of the setbacks was 1 5 feet, that he would have to shave off all the stucco because at the time when the surveys were done to determine setback requirements, only cement block is up, not stucco, bands, or any other exterior applications to enhance the building. He also said that an eave to him, as a builder and professional, is a projection from a building that will protect you from sun or rain, or could possibly be enclosed and enlarge the area of the building without getting a building permit. He said what we have here is something that was done within the original scale dimension by City staff and it was reduced by 40 percent and still accommodates a requirement of cross ventilation for this particular building. He has the task of building this building, but needs some direction. The eave was built. His trusses and overhangs were inspected and passed. It was not until an objection was raised in regard to the eaves that he was given a red tag. The projection from the stucco band out is only two inches to accommodate this particular screen venting. We are not looking at rain protection. He cannot see them later trying to enclose underneath that eave. With regard to the color of the windows, the intent was to maintain a more traditional, conservative, Mediterranean look. Bronzed window frames would enhance the building much more than white window frames. Vice Mayor Jaskiewicz stated that the word "house" in Section 4 seems to be causing a problem. She suggested changing that word to "building- to avoid any misinterpretation in the future, Mayor Taylor said this is about the third time he has been through this matter in detail, and he did not hear much that he had not heard previously. He said he has considered every single one of these comments over and over again. He felt the Commission addressed them adequately. He did not think anybody ever took it trivial. He felt staff were perfectionists. He respected Dr. Roberts' opinion. He felt that staff has addressed many of the items that Dr, Roberts had brought up. He felt a lot has been done to address some of Dr. Roberts' concerns. He said Dr. Roberts' made it clear the very first time he appeared before the Commission that he did not want this building to go up under any circumstances. Mayor Taylor was comfortable with staff's recommendation. He felt we are doing this within our Codes and in many cases, exceeding the Code. 42 MINUTES REGULAR CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA MARCH 19, 1996 Motion Commissioner Bradley moved to ratify the Planning and Zoning Director's determination ot minor site plan modification in this site plan review. Commissioner Tillman seconded the motion, which carried 5-0. The legislative intent of the house eaves was addressed next. Mayor Taylor and City Attorney Cherof felt this section of the Code was clear. However, to avoid any misinterpretation or confusion in the future, there was a consensus of the Commission that the verbiage be changed. City Attorney Cherot will rework that section of the Code with staff. XI. UNFINISHED BUSINESS None. XII. CITY MANAGER'S REPORT 1. Finalization of Contract Extension with Edward Garcia re: Marina Property 2. Settlement Agreement re: Meadows 300 Property 3. Executive Session re: Fire Union Contract City Manager Parker hoped to finalize the real estate extension agreement with Mr. Garcia by Friday. Therefore, next week, she will be requesting a brief Special City Commission meeting to ratify that extension as soon as possible. Also, she will be requesting a date for an Executive Session regarding the Firefighter Union negotiations next week. City Attorney Cherof also requested a special meeting on Monday. He advised that progress has been made on the language in the settlement agreement with the 300 Properties (Meadows Drive). He requested permission to bring this back to the City Commission for review in order to expedite the resolution of this matter. At Commissioner Bradley's suggestion, these items will be discussed at the March 25th meeting at 7:00 p.m. The Executive Session was scheduled for 6:30 p.m. 43