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2012.04.11_PB_Minutes_Regular•'� 16 8 ( A� 0� • O �l Off•' �::`�':.., , ':m 4 TOWN OF HIGHLAND BEACH _' '' ; " • r MINUTES OF THE �'y� •• f.... .= PLANNING BOARD REGULAR MEETING Wednesday, April 11, 2012 9:30 AM Members Present: Chair Carol Stern, Vice Chair Ilyne Mendelson, Board Member Ronald Clark, Board Member Carl Feldman, Board Member Stephen Golding, and Board Member William Svenstrup. Member Absent: Board Member Ronald Raj sky (excused). Also Attending: Mayor Bernard Featherman, Vice Mayor Ron Brown, Commissioner Dennis Sheridan, Commissioner Louis Stern, Town Manager Kathleen Weiser, Town Attorney Christy Goddeau, Deputy Town Clerk Valerie Oakes, Building Official Michael Desorcy and members of the public. CALL TO ORDER: Chair Stern called the Regular Meeting to order at 9:32 AM. Roll call was taken by Deputy Town Clerk Oakes followed by the Pledge of Allegiance. ADDITIONS, DELETIONS OR ACCEPTANCE OF AGENDA: Chair Stern announced that under item 6A the item is a special exception not a site plan; she called for a motion to approve the agenda as amended. MOTION: Vice Chair Mendelson moved to accept the agenda as amended. Member Feldman seconded the motion, which passed unanimously. PUBLIC COMMENTS AND REOUESTS: No public comments. PRESENTATIONS: No presentations. APPROVAL OF MINUTES: • February 08, 2012 — Regular Meeting Chair Stern called for a motion to approve the minutes of February 08, 2012, Regular Meeting. MOTION: Vice Chair Mendelson moved to approve the minutes of the February 08. 2012, Regular Meeting. Member Clark seconded the motion, which passed unanimously. Planning Board Regular Meeting Minutes Wednesday, April 11, 2012 Paae 2 of 9 NEW BUSINESS: A) Application #28425 — 1118 Bel Air Drive; Albert Giachetti, Robert & Barbara Blanche SPECIAL EXCEPTION REVIEW FOR THE APPROVAL OF A NEW NEPTUNE 7000 LB. ELEVATOR BOAT LIFT, ATTACHED TO THE EXISTING WOOD DOCK AT THE REAR OF PROPERTY. CONTRACTOR: BK MARINE CONSTRUCTION, INC. Chair Stern read the title of the application. Chair Stern called for a motion to close the regular meeting and open the public hearing at 9:35 a.m. MOTION: Member Svenstrun moved to close the regular meeting and open the public hearing at 9:35 a.m. Member Clark seconded the motion, which passed unanimously. Chair Stern asked the Planning Board members to disclose any ex parte communication, hearing none, requested that the Deputy Town Clerk administer the Oath to all those who would testify. Building Official Desorcv submitted the application file for the record. The application is for review and site plan approval for a new 7,000 lb. Neptune elevator boat lift attached to an existing wood dock at the property 1118 Bel Air Drive. He stated that he reviewed the plans and they are in compliance with the building code. Building Official Desorcv asked Chair Stern to clarify the comment she stated for the record regarding the special exception. Deputy Town Clerk Valerie Oakes explained that Chair Stern was correcting the wording on the agenda. It read Site Plan and should have read Special Exception. Attorney Goddeau explained that the Planning Board is the deciding authority for site plan applications. For special exception applications, the Board serves in an advisory role by making a recommendation to the Town Commission to either approve or deny the application, as the Commission is the final decision making authority. Building Official Desorcy stated that he had reviewed the survey and plans as submitted to the Building Department, which meet the requirements of the Code of Ordinances Chapter 30-68. Member Feldman — On the actual permit itself, the original total for the job was $9,750 and then amended to $12,000. Why did the price increase to $12,500.00? Building Official Desorcy — The original estimate did not include the electrical work. Member Feldman — Does the existing dock comply with Article 5: Section 30-83 which is the bulk head and sea wall, etc.? Can they do all this work on the existing structure? Planning Board Regular Meeting Minutes Wednesday, April 11, 2012 Page 3 of 9 Building Official Desorcy — I made a site visit yesterday, kicked the tires and the dock is substantial enough and the sea wall is substantial enough to facilitate the use of this boat lift. In my opinion it is structurally sound. Member Feldman — Consequently, if they go ahead with this project and you come in to inspect it afterwards and find out there is a problem with the dock or the sea wall, will they have to remove it or can they leave it because you gave the approval for the construction? Building Official Desorcy — If that does occur, it would have to be repaired. The contractor and the marine contractor are more qualified than I am to attest to the strength of the dock. Member Feldman — If it is approved or we are advised to approve it and the Town says go ahead with it, are we or the Town responsible or is it the responsibility of the property owner? Building Official Desorcy — No, it is the property owner's responsibility. Vice Chair Mendelson — Is an engineering report on file or required? Building Official Desorcy — No, there is not a report on file. An engineering report or an assessment is not required according to the Town's Building Code. Chair Stern — Is the construction of the sea wall the same all the way down the Intracoastal or does everybody, when they built the house, have different classifications? Building Official Desorcy — There were probably a few marine contractors involved. Not just one. That is my assumption since I was not here when they built that seawall. Member Svenstrup — The diagram indicates that the boat lift is going to be attached to the pilings (Building Official Desorcy — two pilings) and not specifically to the dock, although the dock would be supporting the pilings. Building Official Desorcy — The pilings would support the boat lift and not the dock. Member Svenstrup — That is what I was saying. Basically the boat lift is going to be attached to the pilings and the dock itself and the sea wall are almost untouched with the new construction. Building Official Desorcy — That is correct. Petitioner Presentation: Al Giachetti, Property Owner of 1118 Bel Air Drive — Is a licensed state contractor for 25 years and a civil engineer. Built and owned several homes in Highland Beach for many years. BK Marine has done my pile work for many years and is very qualified to do the work. The assessment of the dock seems to be a little bit of an issue. If during the construction the Building Official comes to do the inspection and feels it is not up to the constructional requirements and he denies me that final inspection, I will do whatever he feels has to be done at that time. Also, living there and putting a $100k boat on the lift, I would not do anything that would cause damage to my own property or my neighbor's property. I will continue to maintain the property. (Distributed a diagram. Attached as Exhibit `A'). It is my understanding that you need a minimum of 80 feet to install a boat lift anywhere in Highland Beach and this canal is almost double that wide. I have about 100 feet of sea wall and I share that sea wall with Ocean Cove (Camino Cove), which are Planning Board Regular Meeting Minutes Wednesday, April 11, 2012 Page 4 of 9 about 10 units with about 240 feet of sea wall. It is a fishing boat and does not have a cabin or a big tower. The Realtor who is representing one of the units that might be affected by the view and concerned about selling it has sent an email to the Town. The truth of the matter is that tomorrow I could park a 60 ft. cabin cruiser there and his view would be blocked also. As far as Riparian Rights, I believe everyone in Ocean Cove (Camino Cove) has a deeded dock slip so it doesn't affect them docking wise since they already have a docking slip. I don't see how I am impinging on any other property. There are multiple boat lifts in town. The maximum size of the boat is 30 feet. I am asking for the right to have a boat lift and do not feel I am infringing on any other property. Everybody else has dockage in that area. The lift is self supporting; it is off the dock; there are no dolphin piles; there is nothing that would impinge navigation other than a normal boat being docked there. The boat that I plan to put there has a narrow nine foot beam. There are multiple boat lifts throughout the town and there is even one in the canal. That's my case. Vice Chair Mendelson — What type of boat are you going to put there? Mr. Giachetti — I am putting a 31 ft. open fishing boat there. That is the maximum you could put on that lift. Member Svenstrup — Do you reside there now? Mr. Giachetti — Yes, I do. It is my homesteaded property and I plan on staying there for awhile. Member Feldman — Could you put a shorter, higher boat on there? Mr. Giachetti — It could be higher but not much higher. There.is no way I could put a boat on that lift that could be higher than a 60 foot boat that I am allowed to put there. What is the view that I am really blocking? Everyone in Ocean Cove (Camino Cove) can walk to the ocean and have a nice size boat slip in their backyard. Member Feldman — When the boat is on the lift in the upright position, how high above the level of the land would the boat be? Mr. Giachetti — The boat from the water line is about eight feet which is my best estimate. Chair Stern — How far is the lift out of the water? Mr. Giachetti — About three or four feet. Chair Stern - I thought the boat could only be one foot out of the water. Building Official Desorcy — I am not aware of that regulation. Chair Stern read into the record Article 8: Section 30-131 Definition of a boat lift. I believe this was revised when Louis Stern was Chairman of the Planning Board. Building Official Desorcy — It is not in my code book. I don't believe this boat lift is going to raise the boat a foot higher than the sea wall. It is only going to be a couple of feet above the high tide line which is two feet lower than the sea wall. That is not going to be an issue. Chair Stern called for a motion to have Deputy Town Clerk read the correspondence received by the public. Planning Board Regular Meeting Minutes Wednesday, April 11, 2012 Paize 5 of 9 MOTION: Member Clark moved to have the Clerk read the correspondence received by the public into the record; seconded by Vice Chair Mendelson, which passed unanimously. Deputy Town Clerk, Valerie Oakes, read the correspondence that was submitted by 1) Greg Boan, 2) Dolores Gardella, and 3) Gene & Lauren Esnes into the record. (Attached as Exhibit `B".) Attorney Goddeau — There are two things the email is talking about "Riparian Rights". It is the right to access the waterfront you are adjacent to, navigable waters. The other issue is a view. Both of these issues are within "Riparian Rights". It is not a black and white issue. What is at issue here is whether or not the boat lift is going to block the adjacent owner's view. What I don't know in this issue is who is the adjacent property owner because you have an association that appears, based on my review of Palm Beach County Property Appraiser's website (PAPA), the land that is actually adjacent to the waterway and could have deeded its "Riparian Rights" to the owner. In that Association the unit owner only owns the property that is within their four walls. They may not own the "Riparian Rights". It may be the Association. So it is the Association that may have to assert that their "Riparian Rights" are going to be obstructed or impacted by this boat lift. There are two laws at issue here: 1) the "Statutory Law" that sets forth the "Riparian Rights" and 2) the "Common Law" that governs your view of the waterway. The issues presented before you today is that the Building Official has said that it meets the requirements of your code which is your regulatory scheme that addresses what this town requires for its boat lifts. Your code does not address "Riparian Rights". That is "Statutory or Common Law". So, to some extent, this issue will have to be raised by the property owner, whoever that is, that owns those "Riparian Rights". Your recommendation, today, could address that to the Commission to say that you recommend approval or denial based on a further review with the adjacent property owner of the true impacts of this. Of course it is within your discretion to approve it outright since it does meet the requirements of the code. Of course it is within your purview to deny it. Vice Chair Mendelson — If this was approved, could this open us up for some liability in legal fees that we will have to pay even if we are right. I sort of like your middle of the ground approach, approve it after you checked out who holds those rights and what their view is, before you just approve it wholeheartedly. Attorney Goddeau — Unfortunately you are stuck in the middle. Whatever action is ultimately taken by the Commission, you could be faced with liability from the property owner who wants the boat lift. In these types of situations, it is something you would want to take a close look at. Perhaps get the both parties involved to see if there is something that could be worked out. It may be something that cannot be worked out. The Commission will have to decide. I think it is within this Board's discretion of how you want to form your recommendation to the Commission. Member Golding — Approximately 10 years ago I ran into the same problem with the Town and the Town Commission allowed approximately 20 boat lifts with two boats on Planning Board Regular Meeting Minutes Wednesday, April 11, 2012 Page 6 of 9 them. I tried to fight it and the Town Commission ruled against me. I think the Commission has already ruled on this type of situation. Member Mendelson — However, I don't think that they are ruling against the boat lift. There is another statute involved other than building a boat lift that may come into play and we are not even sure who holds the right to discuss the "Riparian Rights". Member Golding — If I may answer that. The Town ruled against me and the 20 boat lifts are still blocking my view. I don't think "Riparian Rights" have anything to do with it because at that time we brought that up. Mr. Giachetti — I would like to have a brief rebuttal of the realtor who sent that letter who is not here today. But I could tell you that the property owners who are affected by this are here today. The President of the Homeowner's Association is here today. The only two property owners that are directly near me and in view are here today. Everybody you would want to talk to is here. If I am violating somebody's rights from the statute, they have the right to sue me. To hold me up just because somebody says that, I don't think it is fair. But that might or may not be within your power. As far as "Riparian Rights" go, they all have access to the dock. Mr. Guthrie has about 13 feet of sea wall. Even if he put a boat on his direct sea wall and Building Official Desorcy didn't make him adhere to what is supposed to be five feet away, the only thing you could put there is a dinghy. I am not blocking his view of his water or his dock. I am not asking for anything more than the right to dock a boat at my house. I just wanted to offer that rebuttal. Public Presentation: Sid Vonrospeunt, 4502 South Ocean Blvd. — I am the closest to Al's boat dock and have no objection to the boat lift. I would like to make a comment to Mr. Boan's uncalled email that he sent in. I think the Commission should know to look at this in depth. A couple of years ago we had some problems in the Cove. Some people wanted to have perpendicular docks and not parallel docks. Mr. Boan was one of the lead guys who wanted to have a perpendicular dock. I think it is an improvement if he puts the boat lift in there. For 10 years it was a disaster over there and I think he is doing a great job. I urge the Commission to approve this and disregard Mr. Boan's email since he is not even closely affected by this since he is living across the canal and not 200 feet from there. Graham Guthrie, 4500 South Ocean Blvd. — I am the property owner whose view is most affected by the proposal and I have no objection at this point because I have come to a conclusion that it would be useless. I was not aware that Mr. Boan was going to send the email and was not aware of it until just now. As a technical matter, I have assumed that my view is not the adjacent homeowner's view because of the property between me and the proposed project that is owned by our Association. Our Association has decided not to have any response towards this proposal so I assume there is no objection from the Association. I am saddened by the proposal. I am just now putting my house on the market and this would be an impediment towards the sale. Obviously I am not guaranteed a sale of my property so I don't think this gives me any grounds for objection. Planning Board Regular Meeting Minutes Wednesday, April 11, 2012 Paze 7 of 9 I would ask the Board to investigate the application of the law as it applies in this case and verify for your own benefit and mine as well whether the ownership of the property adjacent to the canal by the Association prohibits me from having that right to a view. Chair Stern — I would like to make a comment about Mr. Boan's letter. The letter was not to be public. I think he was just informing our Association what he felt was a rule. Whether it was viable or not I think it was just for general information. Deputy Town Clerk, Valerie Oakes, read correspondence from Member Rajsky submitted on April 9, 2012, who was unable to attend this Planning Board meeting, into the record. (Attached as Exhibit "C".) MOTION: Member Clark moved to close the meeting to the public at 10:15 a.m., seconded by Vice Chair Mendelson. Member Feldman — Could we have a discussion before we take a vote? As a board member and hearing what we heard today, I personally feel we need to view the property ourselves. From the letters we received and the talk we heard, I can't make a decision on what the views are and what they are not, number one. Number two, there are legal matters that were brought up as to whether we can vote on this and number three, I think we need a little more input from the Town Attorney on how she thinks we should proceed with this before we take a vote on yea or nay or hold off on it. I as a board member would like to view the property. Vice Chair Mendelson — I do not think it is necessary to view the property because I don't think we can make an objective decision about the views being affected. My only concern, as I said before, is the statute and whether or not legally are their issues with respect to the views. The Homeowner's Association who has the right to make the claim is not here and does not object. We are only doing this as an advisory board and not a decision making board. Our decision is to recommend it to the Commission. I would suggest the Town Attorney do a little more research and make that presentation at that meeting so they know what they are voting on. That would be my recommendation. Member Svenstrup — I also feel it is not necessary to view the site itself. There are enough diagrams and aerial photographs that show the area. At the end of a canal you always have some kind of a problem. Such as whose view is going to be disturbed and whose benefit of their sea wall will be impacted. I would recommend approving it for the Town Commission's review. MOTION: Member Svenstrup moved to make a recommendation to the Town Commission to approve the special exception application. Member Clark seconded the motion which passed unanimously. Discussion: Planning Board Regular Meeting Minutes Wednesday, April 11, 2012 Page 8 of 9 Vice Chair Mendelson — I would like to amend the motion to say that the Town Attorney prepares a memo before the Town Commission votes on it. Member Svenstrun — I think our advice would be, as Attorney Goddeau did here today, her making a presentation to the Commission would be adequate. Attorney Goddeau — Attorney Glen Torcivia will be present at that meeting. He is aware of the discussion taking place. He will certainly make a presentation to the Commission and answer any question or concerns the Commission might have regarding "Riparian Rights" and how these rights are viewed. Vice Chair Mendelson — I believe this will be sufficient. Roll Call: Member Svenstrup - Yes Member Clark - Yes Member Feldman - Yes Member Golding - Yes Vice Chair Mendelson - Yes Chair Stern - Yes Motion carried 6/0. OLD BUSINESS: No Old Business. NEW BUSINESS: No New Business. (This portion intentionally left blank) Planning Board Regular Meeting Minutes Wednesday, April 11, 2012 Paae 9 of 9 ADJOURNMENT: Chair Stern called for a motion to adjourn the meeting at 10:23 a.m. MOTION: Member Golding moved to adjourn the regular meeting at 10:23 a.m. Member Svenstrup seconded the motion, which passed unanimously. APPROVED: 12 Carol Stern, Chair Ilyne Mendelson, Vice Chair A�Y& ad William Sven p, Board Me ber TOWN SEAL ATTESTED: Ix Va erie Oakes, CMC Deputy Town Clerk Date: 5 EXHIBIT A PETITIONER'S EXHIBITS P',rint Page Page 1 of I I No Text 11111111 No Text EXHIBIT B CORRESPONDENCE RECEIVED FROM THE PUBLIC rage i or t Valerie Oakes From: Lustem@aol.com Sent: Tuesday, April 10, 2012 8:51 AM To: Valerie Oakes Subject: Fwd: Riparian Rights - Re Boat Lift Application Attachments: Patio.jpg From: Boans@comcast.net To: lustern@aol.com Sent: 4/9/2012 10:55:12 P.M. Eastern Daylight Time Subj: Riparian Rights - Re Boat Lift Application Hi Lou, Since you were over here on Easter Sunday I started to think about that back comer of the canal where the proposed boat lift may be constructed if approved and it occurred to me there is A) an overlap (or conflict) of Riparian Rights in that comer and B) an apparent issue for the applicant as the proposed location of the lift may constitute a violation of Florida law if approved. The view of Camino Cove unit 8, 4500 S. Ocean Blvd. is in direct line with the proposed location of the lift and if installed will effectively obstruct fully'/ of the view for unit 8. See the attached photo and note the lift will probably be at the approximate location of the existing mooring whips on the right side of the photo and imagine a 12 foot high by 12 to 14 foot wide structure there. (Lila` with boat on it). In reading the link below, it seems the Florida Statute is primarily concerned with two specific rights. 1.) The right to an unobstructed view and 2.) the right to the property owners navigable access right up to the property line where the land meets the high water mark *without regard to where an HOA has assigned dock space, that's a separate issue and probably subordinate to the state statute. The law says the property owner is entitled to navigable access. Even if an owner waives his Riparian Rights, I don't think they can be waived in perpetuity since property rights run with the land and a new owner would be entitled to the rights again. As I told you I'm not opposed to boat lifts but I fear a lift in this location may cause a multitude of legal problems for the parties and perhaps the Town if not researched by the town attorney before approval. "Click on the link" ltt ://www.liw-I w.com/files/ re ntations/General%200verview%20of%20Ri arian%20Ri h % 20in%20Florida pdf k. Common Law 4/30/2012 Yage 2 of 2 2. Right to View and Right to Ingress and Egress Statutes 1. General Rights The Florida legislature has deferred to the common law regarding the general riparian rights granted to riparian land owners in Section 253.141, Fla. Stat., which states that these rights include "the rights of ingress, egress, boating, bathing, and fishing and such others as may have been defined by law."74rida common law recognizes that riparian rights specifically include the right to an unobstructed view and the right of ingress to and egress from the water. Best regards, Greg B. 4/30/2012 -m S08-J91-0/SJ .f/O7-t7t-8t9S rbu3Ka �• -lave 1' e.ac' J rc> adb. 'e� a� I I gybes wc- cam V,euJ �-F 1 CL 7 t'o1�e �- `t'�r�.�� 'CVIO�T' l� i �clS. V e u i R vLcG o s" - - y t 1/K. `�`aC'� Ae G� No Text --- �-�. ��.•� — - 1 it 1 o mci cur Lr, HignIand beach, Boat Lift Pagel of 2 1118 Bel Air Dr, Highland Beach, Boat Lift Al Giachetti < alg@jaghomedesign.com> 2 messages Gene Esnes < gene@Ipeenterprises.com> — - -------- To: "alg@jaghomedesign.com" <al Wed, Mar 28, 2012 at 10:41 AM Cc: Lauren Esnes <ia uren@lpeenterppr ises com>esign.com> To Whom It May Concern, My wife, Lauren Esnes, and I, Eugene Esnes are the owners Of 1119 Bel Air Drive, Highland Beach. We were sent a notice from the Town Of Highland Beach Planning Board regarding the Public Hearing for consideration of: "SITE PLAN REVIEW FOR THE APPROVAL OF A NEW NEPTUNE 7000 LB ELEVATOR BOAT LIFT, ATTACHED TO THE EXISTING WOOD DOCK AT REAR OF PROPERTY LOCATED AT 1118 BEL AIR DRIVE." We will be unable to attend the hearing, however, we have NO objection to this project. Thank you. Sincerely, Gene c- Lauren Esnes 561-2.39-5460 cell Gene(a;LPEEn cerprises.com Gene Esnes< gene@lpeenterpises.com> Az A Wed, Mar 28, 2012 at 10:42 AM To: "alg@jaghomedesign.com" <alg@jaghomedesign.com> Cc: Lauren Esnes <lauren@lpeenterprises.com> To Whom It May Concern; My wife, Lauren Esnes, and I, Eugene Esnes, are the owners of 1114 Bel Air Drive, Highland Beach. We were sent a notice from the Town Of Highland Beach Planning Board regarding the Public Hearing for consideration of: "SITE PLAN REVIEW FOR THE APPROVAL OF A NEW NEPTUNE 7000 LB ELEVATOR BOAT LIFT, ATTACHED TO THE EXISTING WOOD DOCK AT REAR OF PROPERTY LOCATED AT 1118 BEL AIR DRIVE." We will be unable to attend the hearing, however, we have NO objection to this project. Thank you. Sincerely, Gene & Lauren Esnes https://mail.google.comlmaiU?ui=2&ik=80ded2abfe&view=pt&search=inbox&th= l 3 659c... 3/29/2012 EXHIBIT C April 9, 2012 Ms. Valerie Oakes, CMC Deputy Town Clerk Town of Highland Beach 3614 S. Ocean Blvd. Highland Beach, FL 33487 Ref: April 11, 2012 Planning Board Meeting Dear Ms. Oakes: As I will not be present at the April 111, 2012 Planning Board meeting, the below comments are submitted regarding the Public Hearing for Application #28425 for a 7000 LB Elevator Boat Lift at 1118 Bel Air Drive. 1. Chapter 30-68 (h) (4) states that "Installation of mooring facilities shall not adversely affect the enjoyment or value of adjacent property". Is this a problem to any adjacent property owners? g one others)"- 3. The existing wood deck appears weathered. Will present condition of the wood deck support the Elevator Boat Lift? 4. The Building Transmittal Form does not have a block checked which states that the plans meet or do not meet town zoning requirements. Respectfully submitted, Ronald A. Rajsky 4420 S. Ocean Blvd. Highland Beach, FL 33487