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.
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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
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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.
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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.
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BOARD OF ZONING APPEALS
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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
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BOARD OF ZONING APPEALS
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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
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BOARD OF ZONING APPEALS
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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.
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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.
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