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1993.04.14_PB_Minutes_RegularTOWN OF HIGHLAND BEACH PLANNING BOARD REGULAR MEETING - MINUTES Wednesday, April 14, 1993 9:30 A.M. Chairman Robert L. Lowe called the Regular Meeting to order in Com- mission Chambers at 9:30 A.M. Deputy Town Clerk Doris Trinley called the roll. Present were the Chairman and Members Leonard D. Bell, James F. Morrill, Frank L. Colarullo and William Maltz. Vice Chairman Arthur R. Keller and Member Paul R. Kane, Sr, were absent. Town Manager Mary Ann Mariano, Town Attorney Thomas E. Sliney, Building Official Lee Leffingwell and Jim Park, Senior Land Planner for Gee & Jensen, were also present, as were members of the general public. Upon MOTION by MR. BELL/MR. MALTZ, the Minutes of the March 10, 1993 Regular Meeting were unanimously approved. .Chairman Lowe announced the agenda was amended to delete the Public Hearing portion regarding a freestanding mooring at the request of the applicant, Dr. Albert Biehl of 1116 Highland Beach Drive. In a phone conversation with Ms. Leffingwell, Dr. Biehl asked to be put on the May agenda, indicating he needed more time to contact property owners within 1000 feet of his property as per Town Code. One of Or. Biehl 's immediate neighbors, Silvio Blaskovic, then ad- dressed the Board and requested an extension until the June meeting. He said he would not be able to attend the May meeting because he would be out of the country and that when told of this, Dr. Biehl had verbally agreed to apply for the June agenda. During the substantial discussion that followed, Mr. Blascovic was advised that only the applicant could make such a request; however, Mr. Blaskovic was invited to state his objections, if any, at this time, or submit in writing to the Board in the event Dr. Biehl requested to be put on the May agenda. NEW BUSINESS Preliminary Review for Addition of 50'x4O' Shade & Sundeck Area at Boca Highlands Center, Inc., 4801 S. Ocean Blvd., Lots 1-2 East. Submitted by Ed Fanning, Manager. Mr. Fanning explained the addition was being planned at the request of Boca Hi residents. He said not all necessary permits had been re- ceived from appropriate governmental agencies, but the process had been started. Planning Board Regular Meeting - Minutes • April 14, 1993 Page 2 of 3 1] After review of plans, Ms. Leff ingwell advised that should the Board give approval today, she would not issue a permit until all necessary governmental permits were received. She also noted a final approval would be appropriate should the members so decide. Before the vote, Mr. Bell complimented the fine efforts of Mayor Arlin Voress and others who had worked diligently and successfully to halt the State's efforts to move the CCCL line westward until an up-to-date technical model could be made available and peer reviewed. Mr. Bell noted this project was a good case in point should those efforts not have been successful; State restrictions would have precluded it from being considered by the Board until Boca Highlands Center, Inc. had obtained the necessary governmental permits in what would most likely be a lengthy and costly process. The following MOTION was then made by MR. MALTZ/MR. COLARULLO and met with unanimous favorable vote: THE PLANNING BOARD GIVES FINAL APPROVAL TO PLANS FOR THE ADDITION OF A 50'X40' SHADE AND SUNDECK AREA AT BOCA HIGHLANDS CENTER, INC., 4801 SOUTH OCEAN BLVD., LOTS 1-2 EAST. SUBMITTED BY ED FANNING, MANAGER; PROJECT 92H31, KRES MIHELICH, INC. THIS APPROVAL IS GIVEN SUBJECT TO APPLICANT'S RECEIVING ALL APPROPRIATE GOVERNMENTAL PERMITS. Discussion re Nonconforming Uses/Involuntary Natural Disasters. Attorney Sliney gave the background for this discussion (see Minutes of December 9, 1992 and March 10, 1993) and advised that he, Ms. Mariano, Ms. Leffingwell and Jim Park had recently met to seek a solution to the problem of multiple -unit residences, particularly high rise condominiums, being able to re -build to the existing number of units in the event of a natural disaster since the Comprehensive Plan called for 25% reduction in density. The members were given a written summation of the aforementioned meeting, as well as an addendum to same, prepared by Mr. Park. Lengthy discussion then took place and various means of accomplishing this without having to amend the Comprehensive Plan were again considered, i.e., a case - by - case determination by the Town 's Board of Adjustment or Town Commission, or an across - the board automatic right to rebuild. Planning Board Regular'Meeting - Minutes April 14, 1993 Page 3 of 3 Contained in Mr. Park's addendum was a special section from Boca Raton's zoning ordinance which spoke to reconstruction of existing buildings in part thusly: ..if any residential building located in a residential district is damaged by catastrophe , the building may be repaired or reconstructed and usedto house no greater than the number of dwelling units and no greater square footage or total living area in existence in the building prior to the dame, regardless of the damage..." NOTE: A COMPLETE COPY OF THE ORIGINAL REPORT AND THE ADDENDUM ARE ATTACHED TO AND MADE PART OF THESE MINUTES. As discussion of possible recommendation of adoption of this procedure took place, consideration was given to transfer of ownership in a worst case scenario, i.e., insurance companies who could then sell to new developers the right to build the pre-existing number of units. While acknowledging this was a legitimate concern, Attorney Sliney advised that zoning ordinances legally dealt only with use of land, not ownership; therefore, this possibility would have to be accepted. Concluding that the Boca Raton approach might work as well for Highland Beach, and that it would not require amendment to the Compre- ',hensive Plan, Mr. Park was requested to prepare a draft ordinance for the Board's consideration. In the interest of time, it was agreed that a Special Meeting to consider recommendation of this ordinance would be held on Wednesday, April 28 at 9:30 A.M. There being no further business to come before the Board at this time, the meeting was adjourned upon MOTION by MR. MORRILL/MR. BELL at 10:55 A.M. dmt Attachments APPROV ATTEST: DATE: William Maltz GEE & JENSON F_r(111leer s •>rct'llots-Planners. Inc. One Harvard Circle Wost P,wli Beach, FL 33409 Telepilpne (407) 683-3301 Fax (-107) 686-7446 ALTERNATIVE METHODS OF RELIEVING RESTRICTIONS ON REBUILDING OF STRUCTURES DAMAGED IN EXCESS OF 70% OF VALUE A Report by James C. Park to the Town of Highland Beach - March 26, 1993 Current Situation The Town's zoning regulations (Chapter 30, Highland Beach Code of Ordinances) provide in Section 6.5. Nonconforming Structures, that any "nonconforming structure destroyed by any means to an extent of more than seventy (70) percent of the assessed value of the structure at time of destruction, shall not be reconstructed except in conformity with the provisions of this ordinance." As worded, the restriction on reconstruction would apply with regard to all zoning provisions including parking, setbacks, building height, density, etc. The Town's decision to reduce the permitted density in multiple -family districts (number of units allowed per • acre of lot area), immediately following adoption of the Town's Comprehensive Plan, was a means of responding to current and projected deficiencies in the Town's ability to maintain level of service standards set forth in the Comprehensive Plan. Additionally, the Town's action was a response to the 1985 Florida Growth Management Act provisions which required that communities lying within coastal high hazard areas take appropriate steps to direct future population growth away from hazardous coastal sites. The dual objectives of ensuring that public services will be available in accordance with appropriate level of service standards for public services and a reduction -in density within the Town's multiple family zoning districts to serve that purpose were set forth in the Comprehensive Plan which was adopted after required public hearings and review by the Florida Department of Community Affairs. It is noted here that while the objectives and specific implementing policies are set forth in several sections of the Comprehensive Plan, the objective regarding a limitation on reconstruction of buildings damaged by storm -related conditions states that the damage threshold for reconstruction of nonconforming buildings would be 50% rather than 70% as provided in the Town's zoning regulations. When the land development regulations were prepared, reviewed and adopted by the Town following adoption of the new Comprehensive Plan, the zoning regulations were not amended to incorporate the lower figure because the conflict was not then known. E Rationale for the Regulation It is accepted practice to establish, in a municipality's zoning ordinance, a requirement that existing structures that do not conform with the regulations for the District in which they are located, and that are destroyed to a major portion of their value, must be rebuilt in a manner which corrects the nonconformity. This rather standard requirement usually applies to the land use itself or to specific structural or locational aspects of a building. The specified percentage of a structure's damage is almost always 50% or a higher percentage. Highland Beach has an exceptionally high percentage at 70%. However, there is no reason to fault the regulation as improper. The Town has simply decided, for whatever reason, to maintain a higher than normal threshold for the imposition of requirements. Presumably, the reasoning was that the Town wished to reduce reconstruction costs for owners of structures severely damaged by floods and hurricane force winds and other phenomena prevalent along the coast. The Palm Beach County zoning ordinance establishes a 30% drainage threshold for imposition of mandatory compliance with the County's land development code. The 30% is computed based on 125% of the assessed value of the nonconforming structure. If the . computation is based on only 100% of the assessed value, the threshold percentage increases to 37.5%. Interestingly, the Palm Beach County regulation also provides that a structure damaged to an extent less than 30% but more than 20% of its value may be restored only upon approval by the Board of Adjustment. The City of West Palm Beach utilizes a complex set of regulations governing reconstruction of nonconforming structures. However, the regulation relating to residential structures that exceed density standards specifies a damage value threshold of 50% of the "value of the structure." Problems and Alternative Solutions Problem "A" A reduction in the permitted density of development in multi -family districts, as recently enacted by the Town, has an awkward impact on existing residential condominium structures built at a density greater than that currently allowed. When damaged to an extent greater than 70% of assessed value, the number of residential units must be reduced to meet the reduced density standards for the district in which the property is located. This reduction will not only result in some owners being denied the right to continue their ownership interest but it will also result in higher costs assigned to each owner for common facilities and land due to a smaller number of unit owners to share those costs. 0 2 Solution 1. (Recommended) The Board of Adjustment is granted the powers and duties appropriate for granting relief from the zoning ordinance provisions including those regarding reconstruction of severely - damaged nonconforming structures. Section 11 of the zoning ordinance lists the four bases on which a variance might be approved. They are as follows: (1) That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same district, (2) That the special conditions and circumstances do not result from the actions of the applicant, (3) That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, buildings or structures in the same district, (4) That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance and would work unnecessary and undue hardship on the • applicant. Each variance request must be considered on its merits and no general policy of approving all variance requests resulting from storm damage should be established by the Town. It is reasonable to interpret all four listed bases as being applicable to most situations of severe property damage resulting from a hurricane. The Town's attorney should advise on the accuracy of this assessment as it pertains to Item (3). This solution does not guarantee, in advance, favorable action on each variance request and requires that condominium property owners place their faith in the Board of Adjustment or, if necessary as a result of a denial, an appeal through the courts. Regardless of the lack of predictability offered by processing of a variance through the Board of Adjustment, from the standpoint of zoning principles and practice, it is the most appropriate means of handling the problem. Solution 2. (Recommended with Reservation) Section 6.5 (b), the section covering reconstruction of buildings destroyed to an extent more than 70% of value, could be modified to include an exemption for residential condominium structures. The rationale for making an exemption for structures having multiple owners, as compared to a multi -unit structure with rental occupancy, is fairly • simple. A rental contract is automatically canceled if a unit is destroyed or sustains such severe damage as to make it unsafe. The dislocated occupant has no fee -simple interest 3 in the property and the loss settlement need not consider equity for multiple owners as in the case of a condominium property. Mr. Hadeed suggested in his statement to the Town Commission a condition that "over 50% of the owners declare their intention to rebuild." This criterion does not appear consistent with the underlying presumption in this solution that each owner of a condominium unit should have the opportunity to exercise his or her right as a property owner regarding reoccupancy after reconstruction. A review of the legal aspects of granting, to a majority of owners within a condominium association, control over the rights of occupancy by a minority of the owners, is outside the scope of this report. As a means of avoiding the potential problem, it is suggested that the exemption be drafted so as not to include a requirement that a majority of residents indicate an intention to reoccupy the structure. The exemption wording would result in an expanded Section 6.5 (b) and would read as follows (added language underlined): (b) should such nonconforming structure or nonconforming portion of a structure be destroyed or damaged by any means to an extent of more • than seventy (70) percent of the assessed value of the structure at time of destruction or damage, it shall not be reconstructed except in conformity with the provisions of this ordinance; provided, however, that any condominium residential structure constructed and operated in accordance with Florida Statutes applicable to such structures may be reconstructed so as to provide not more than the number of residential units number of floors and total floor area existing at the time of destruction or damage: and, further provided that reconstruction as described shall conform with all other requirements of this ordinance as may exist on the date the destruction or damage occurred. The primary reservation that the writer has with this solution is that it gives the right of reconstruction uniformly to all condominium property owners without any review of the suitability of reconstruction. The variance approach (Solution 1) at least gives the Board of Adjustment an opportunity to consider circumstances that might indicate a compromise solution to accommodate the various public interest issues noted in Section 11 of the zoning ordinance. As an example, if the owners of four of five adjacent oceanfront properties, damaged in excess of 70% of their value, found that it would be most advantageous to abide by the lower density/height standards currently set forth, but the owners of the fifth (assume it is the center property) decided to build to the maximum former density/height, the objective of achieving somewhat uniform density for properties within a district would be negated. Needless to say, uniform density within a given district is not necessarily ensured by zoning regulations in normal circumstances because land . values and market conditions may lead to development decisions at a density less than the maximum permitted. It would be inappropriate, therefore, to place great importance 2 on drafting reconstruction limitations with the idea of achieving conformity in density for all properties within a district. Solution 3. (Not Recommended) One means of handling the condominium reconstruction problem discussed at the Planning Board's meeting of February 10, concerned permitting of reconstruction as a special exception. Special exceptions are permitted in most of the Town's zoning districts; however, the only special exception uses listed are churches and facilities grouped under the vague term: "Essential public service structures." The term is not defined in the zoning code; however, it is presumed to refer to utility installations. Other uses could be listed in any district or districts selected by the Town. The requirements that must be satisfied before the Town Commission can grant the special exception request are set forth in Section 10(c) as follows: (c) The public hearing shall be held. Any party may appear in person, or by agent or attorney. Before any special exception shall issue, the town commission shall make written findings that it is empowered under the section of the ordinance described in the application to grant the special exception; that granting the special exception will not adversely affect the public interest, that there is compliance with specific rules governing individual special exceptions of the type involved, that the proposed development, with conditions and safeguards attached, would be generally compatible with adjacent properties and other property in the district, and that satisfactory provision and arrangement has been made concerning the following, where applicable: (1) Ingress and egress to the property and structures, with particular reference to automotive and pedestrian safety and convenience, traffic flow, and access in case of fire or catastrophe; (2) Off-street parking and loading areas, refuse and service areas, with particular emphasis to item (1) above and to effects on surrounding property, (3) Utilities; location, availability and compatibility, (4) Screening and buffering; type, dimensions and location; (5) Signs, if any and proposed lighting, (6) Required yards and other open space. The special exception term has a long tradition in zoning ordinances but it is almost always reserved for unusual land uses rarely occurring in a community and where relationships to surrounding properties must be carefully considered to prevent incompatible development. The Town's six listed criteria relate directly to safeguards • necessary when permitting certain uses by special exception. While my initial reaction 5 M'y fR, at the Planning Board meeting of March 10, was supportive of using special exception provisions for overriding the ordinance provisions governing reconstruction of buildings experiencing severe damage, further study has caused me to change my mind. I believe the special exception is inappropriate not only for the reason of historical precedent and practice but also because there is no reference to "special conditions and circumstances" (as set forth for a variance) and a hurricane event causing damage to buildings is certainly a "special" condition. Finally, special exception uses are listed for each district and it would be very awkward to incorporate wording which resembles a land use description. Such description would need to read somewhat like the following: Reconstruction of a nonconforming condominium residential structure constructed and operated in accordance with applicable Florida Statutes when such reconstruction would, in accordance with Section 6.5 (b) of this Chapter, result in a reduction in the number of residential units as a result of revisions to density standards or building height enacted by the Town subsequent to the original construction provided, however, that all other requirements of the Code of Ordinances be met by the reconstruction. This lengthy description clearly does not suggest a "special exception" to which the requirements set forth in Section 10 (c) can be logically applied. For the reasons noted, the Special Exception does not appear suited for addressing the problem. Problem "B" The 70% damage threshold established in Section 6.5 (c) of the zoning ordinances is inconsistent with the 50% threshold set forth in the Comprehensive Plan in Objective 2.2. That objective reads as follows: The Town will not permit rebuilding of structures experiencing damage due to storm related conditions or erosion when such damage exceeds fifty percent (5091o) of the value of the structure unless reconstruction is in compliance with the Town's Code of Ordinances applicable to new construction. The policy set forth to implement the objective is Policy 2.2.1 and it reads as follows: The town will include within its land development regulations required to be adopted in accordance with Section 163.3202 F.S. provisions to implement Objective 2.2 and review its Code of Ordinances at least once every five years to determine the adequacy of total regulations in achieving this objective. 0 iF Chapter 163.3203 of the Florida Statutes requires that land development regulations be adopted by each local government within one year of the adoption of its Comprehensive Plan. The land development regulations must be "consistent with and implement the adopted Comprehensive Plan." The Town adopted such regulations; however, the inconsistency between the 50% and 70% damage threshold was inadvertently overlooked. The effect of this inconsistency is that the existing zoning regulations (70%) could be challenged through litigation brought by any citizen and the challenge would probably be successful because the regulation fails to meet the Chapter 163.3202 requirement. The Town's attorney should advise the Town on this matter. For instance, if the zoning regulation is found invalid, could the Town rely on the 50% threshold stated in the Comprehensive Plan during the time an amendment of either document is being processed? Recommended Solution The solution to the problem presented by the threshold inconsistency is obvious. Amendment of either the zoning ordinance or the Comprehensive Plan is necessary to comply with state law. If the zoning ordinance is amended, it could be done immediately. (As your planning and land development regulation advisor, Gee and Jenson is inclined to favor a reduction from 70% to 50% for the damage threshold inasmuch as the lower figure is a figure more commonly used in dealing with amortization of severely -damaged nonconforming structures. It should be noted that establishing the percentage of value represented by damage to a building is not an exact science. It is likely that considerable latitude would be allowed in making such determination with actual damage in excess of 50% being accepted as less than 50% for purposes of determining reconstruction rights of a property owner faced with the many hardships accompanying severe property damage.) Keep in mind that Palm Beach County has an effective threshold in the range of 30%-31.5% of the structure's value. If the Town prefers to amend the Comprehensive Plan, it should consider the possible need for other amendments and "package" those amendments in a single amendment process that can take up to 8-10 months given the requirement for mandatory advertising, review and adoption procedures by the Town and Florida Department of Community Affairs. One related amendment should certainly be included in such a "package." It concerns Policy 3.4.2. That Policy, much like Objective 2.2 and Policy 2.2.1, sets a numerical threshold for imposition of stormwater management regulations for rebuilding of damaged structures at 50%. This policy should. be consistent with the aforementioned objective and policy. 7 0 A is The town may wish to initiate other amendments of the Comprehensive Plan. These amendments could include revised dates for certain actions set forth in policies, revised level of service standards or include other provisions that would enable the Town to demonstrate its ongoing attention to the Comprehension Plan when it submits the DCA- mandated Evaluation and Appraisal Report. That report is scheduled to be submitted on September 14, 1995 (six years following the Town's adoption of the Comprehensive Plan). L • ADDENDUM TO MARCH 26, 1993 REPORT CONCERNING REBUILDING OF NONCONFORMING STRUCTURES The March 26 Report was reviewed with the Town Attorney, Town Manager and Town Building Official on March 31. During the discussion, additional alternatives were suggested for consideration which would, hopefully, lead to a process that grants rebuilding rights either by a modification to the zoning ordinance or by special action of the Town Commission in accordance with "discretionary emergency powers." Boca Raton Regulation As a means of gaining additional information , we extended our research with a contact to the City of Boca Raton Community Development Department. That City utilizes a different approach for regulating the rebuilding of nonconforming structures which could be considered for the Town of Highland Beach. 0 The Boca Raton zoning ordinance includes the following special section: Sec 28.190. Reconstruction (1) For the purpose of this section, "catastrophe" means any destructive force whether caused naturally or otherwise. (2) If any building or structure in which there is a nonconforming use is damaged by fire, flood, explosion, collapse, wind, war or other catastrophe to such an extent that the cost of repair or reconstruction will exceed 50 percent of the fair market value of the building or structure, it shall not be again used or repaired or reconstructed for any use except one permitted as a new use in the district in which it is located. (3) If any nonconforming building or structure is damaged by fire, flood, explosion, collapse, wind, war or other catastrophe to such an extent that the cost of repair or reconstruction will exceed 50 percent of the fair market value of the building or structure, it shall not be again used or repaired or reconstructed except as a conforming building or structure. 0 • (4) As an exception to (2) and (3) ; if any residential building located in a reside ' ' trict is damaged by catastrophe, the buildin repaired or reconstructed and used to house r than the number of dwelling units and no gr are footage or total living area in existence in ding prior to the damage, regardless of theme ' t of the damage, unless both the c " " ensive plan and the applicable zoning district r ns in effect at that time permit a greater number elling units. Reconstructed structures shall be bject to the applicable fire and building codes at the time of the issuance of building permits for the reconstruction. There is no limitation in the Boca Raton regulation making it applicable only to hurricane damage or, for that matter, only condominium structures. Any structure damaged due to any "catastrophe" could be rebuilt to its prior intensity/density under the regulation. It is important to note that compliance with the fire and building codes, but not the zoning code, is required. This avoids the problem of recent density reductions undertaken by • both Boca Raton and Highland Beach. It should be noted further that the Town will probably desire to substitute 70% for 50% used in the Boca Raton regulation. In order to insert the new provision in Section 6.5 of the Town's zoning ordinance, it is suggested that the present wording in paragraph (b) be replaced with the wording in paragraph (4) of the Boca Raton ordinance. It will be necessary also to add a definition of catastrophe in either Section 13 Definitions or Section 6.5 (4). I believe adaptation of the Boca Raton regulation is an acceptable means of addressing the problem of rebuilding damaged condominium structures. The language treats important health and safety requirements (i.e. new ADA regulations) as more important than zoning density requirements and will cause many buildings to be modified to meet those requirements prior to permitting even though the number of condominium units need not be reduced. Discretionary Emergency Powers The Town Attorney and I have reviewed the Florida Statute (chapter 870 F.S.) regarding powers granted to local governments which may be utilized in times of emergencies. This statute was adopted by the Town by reference in Section 2-29 of the Code of Ordinances. • We have read the statute to determine whether it might offer an opportunity for the Town to grant special exceptions to zoning requirements with regard to densities permitted by the zoning ordinance. The discretionary powers listed in the statute relate to establishment of curfews, prohibition of liquor sales, closing of places of public assembly and restrictions on flammable materials. Because of the very different nature of an exception to zoning regulations, we do not believe use of emergency powers as a means of providing relief is appropriate and we therefore do not recommend it. Comprehensive Plan Provisions If the Town intends to incorporate in its zoning ordinance, provisions similar to the Boca Raton language, some thought must be given to the issue of consistency of those provisions with the Comprehensive Plan. The March 26 Report commented on this issue on page 7 of that report. An amendment of the Comprehensive Plan to eliminate the 50%-70% inconsistency, as previously recommended, may not be necessary. The Building Official advises that, other than the 70% threshold established for reconstruction of nonconforming structures, a damage threshold of "over 50%" has been routinely applied by the Town with respect to other sections of the Town Code. That being the case, if the provisions regarding nonconforming buildings are revised to resemble the Boca Raton approach, the Code and Comprehensive Plan will be consistent without modification of the latter. It clearly appears in the town's best interest and the best interest of condominium property owners to undertake amendment of the zoning ordinance generally as described above.