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1987.09.22_BAA_Minutes_RegularTOWN OF HIGHLAND BEACH, FLORIDA • BOARD OF ADJUSTMENT PUBLIC HEARING - MINUTES SEPTEMBER 22, 1987 9: 30 A.M. Chairman Cohen called the Public Hearing of the Board of Adjustment, Town of Highland Beach, Florida, to order at 9:30 A.M. in the Commission Chambers at Town Hall. Town Clerk/Recording Secretary Mariano called the roll. Present were Regular Members D. Augenstein, C. Arbetman, G. G. Lorenz, H. B. Cohen and Alternate Member G. M. Harbin who acted as a Regular Member. Absent from this Public Hearing was Regular Member A. M. Fox, Jr. Also present were Town Attorney T. E. Sliney, Building Official B. Sutherland, Town Clerk/Recording Secretary M. A. Mariano, and members of the general public. A Workshop Meeting was held on July 20, 1987, at 1:30 P.M. at which time Members of the Board of Adjustment examined the petitions which were explained in detail by the Petitioners. Following an on site inspection of the subject property by the Board Members, the Workshop Meeting was adjourned by Chairman Cohen. PETITION NO. 7--87--32, SUBMITTED BY PETER C. INCE, AGENT FOR OWNER CONNAUGHT CORP. AND CONTRACT PURCHASER J. WYNNE- (TOWN LOT NO. 71 EAST) Chairman Cohen noted that Petition No. 7-87-32 was to examine a request submitted by Peter C. Ince, 6699 North Federal Highway, Suite 100, Boca Raton, Florida 33431, (Agent for owner Connaught Corp. and contract purchaser J. Wynne) for an increase in the maximum building width, under Section 4.3 (e) (12) of Chapter 30 of the Code of Ordinances of the Town of Highland Beach for Town Lot No. 71E, located in the 3600 block of South Ocean Boulevard. Attorney Robert Eisen, representing the Petitioner, was sworn in by Secretary Arbetman. The Recording Secretary attested to the fulfillment of the legal requirements involving the advertising of the Public Hearing. It was noted that Attorney Eisen had submitted all appropriate return receipts in compliance with notice requirements. Chairman Cohen said Members will hear sworn testimony from the Petitioner and persons interested in this matter. Members will discuss the merits of the petition, request advice of counsel and take final action on this matter. Attorney Eisen noted that the subject lot is presently zoned RML--1 which is multi -family and is subject to a maximum building width of 100'. Attorney Eisen further noted that this building width was primarily designed to regulate multi -family construction and is not found in the Town's single family district. This lot is peculiar in that it is long BOARD OF ADJUSTMENT • Public Hearing -- Minutes September 22, 1987 Page 2 of 6 and narrow and the configuration necessitates the construction of a wider single family home than the permitted 100'. It was noted that setbacks in excess of those required were being provided on the property as well as a decrease in permissible density from four units to one single family dwelling. There were no other members of the public desiring to be heard on this matter. Chairman Cohen noted that no restrictions existed with regard to the width of single family dwellings and therefore the applicant was well within his rights in requesting a variance before this Board. Secretary Arbetman noted that what the applicant was doing with regard to down -zoning was in the community interest and was in compliance with the spirit of the Town's Ordinances as well as the letter of the law. MOTION was then made by MR. HARBIN/MR. ARBETMAN to grant the variance requested in Petition No. 7--87--32. Upon roll call vote, this MOTION carried unanimously. PETITION NO. 7--87--33, SUBMITTED BY PHILIP COLMAN FOR TOWN LOTS 101 EAST AND WEST • Chairman Cohen noted that Petition No. 7--87--33 was to examine a request submitted by Philip Colman, 2727 South Ocean Boulevard, Highland Beach, Florida 33487, for an increase in the maximum building height, under Section 4.6 (e) (11) of Chapter 30 of the Code of Ordinances of the Town of Highland Beach, Florida, for Town Lots 101 East and West, located in the 3200 block of South Ocean Boulevard. The Recording Secretary attested to the fulfillment of the legal requirements involving the advertising of the Public Hearing. A question arose as to the notification to surrounding properties in that a receipt had not been submitted with regard to Beach Walk West. At- torney Patricia Silver, representing Philip Colman and Concordia Properties, then submitted a letter from Elizabeth Maass, Attorney for Beach Walk West, which waived notice in this matter. Said letter was approved for acceptance by Board Attorney Sliney and is attached hereto and incorporated in these Minutes as reference. It was further noted that although the original return receipts had not been submitted to the Board, copies of same had been. Mr. Colman stated that the original receipts would be submitted immediately following this meeting. Mr. Colman was then sworn in by Secretary Arbetman and gavea description of the subject property and reiterating those requests as made at the July 20, 1987 Workshop Meeting. It was noted that the request was to increase the permissible height from eight floors to • eleven floors on the East side property of Lot 101 and from seven floors to nine floors on the West side property of Lot 101. Mr. Colman BOARD OF ADJUSTMENT Public Hearing -- Minutes • September 22, 1987 Page 3 of 6 distributed aerial photographs showing surrounding properties as well as hand outs depicting the proposed land coverage. Mr. Harbin noted that he was disturbed in the fact that the Town was presently in litigation on this property. Attorney Sliney stated that it was his opinion that even though the matter was in appeal in the courts, the Board of Adjustment did have jurisdiction to hear the request. Attorney Sliney noted that the courts would expect the Petitioner to exhaust all administrative remedies available to him and that the request for variance was properly before this Board. Attorney Silver stated they have stipulated that the appeal, which has now been abated pending this proceeding, will be dismissed if the vari- ance is granted; for all purposes, that means the law suit is over, finished and final. Town Attorney Sliney added that the pendency of this appeal does not really reflect on what is done today; the Board must proceed along the same guidelines (and treat this as it would any other variance) using the same requirements that would be used for any other variance request. Attorney Sliney advised the Members that the appeal is based on a number of factors (height, density, equal protection) and the appellate court must decide if the Town proceeded in a reasonable manner in regard to those factors (the circuit court indicated that the Town did); the issue • of height, which is regulated by the Ordinance passed in 1984, is being separated from all the other issues. When Attorney Silver commented this is an independent variance request which should be separated from the litigation, Town Attorney Sliney said it really can not be separated as this variance application relates to alleged hardship by Mr. Colman whose testimony in the litigation revealed this property was purchased after the zoning was changed. Mr. Colman was aware of the zoning change and the purchase price on the property was adjusted accordingly. In his deposition, Mr. Colman stated that the property could still be developed economically despite the zoning change. Town Attorney Sliney tendered a copy of Mr. Colman's deposition dated February 27, 1987, to the Town Clerk as part of the record and factual basis. Following an in depth discussion by the Board Members of the Town Code of Ordinances, Chapter 30, Section 11, Mr. Arbetman commented that there are legal problems involved and it is not within the province of the Board; and Chapter 30, Section 11 (referred to in Mr. Colman's petition) specifically refers to the present Ordinance. Mr. Arbetman stated the Board does not have the power. The law already existed. Mr. Colman bought the property with his eyes open, continued Mr. Arbetman. When Chairman Cohen inquired if any member of the audience would like to be heard, Mr. Liggett, President of the Monterey House Condominium (Lot • No. 103), addressed the Board and stated an increase in height would be objectionable to most of the owners in Monterey House; and would like BOARD OF ADJUSTMENT Public Hearing -- Minutes • September 22, 1987 Page 4 of 6 the present height restriction mandated. At this point, Chairman Cohen added the applicant is requesting a total height of 122' on the East side and 103' on the West side. Ms. Anne Jones, a member of the board of directors at Beach Walk East, approached the Board and stated that they would object to the height as the new project would be taller than Beach Walk East. Mr. Colman noted that his proposed building would actually be 10' lower than Beach Walk East. Mr. Arbetman noted that according to the Ordinance, anything done prior to 1984 can not be used to a petitioner's advantage. Continuing, Mr. Arbetman stated it was his opinion that the Board can not act in this matter and suggested Mr. Colman continue with his litigation. Mr. Arbetman then asked Town Attorney Sliney if, in the Attorney's opinion, is he interpreting this matter correctly. Town Attorney Sliney said he thinks the Board has the jurisdiction to hear this as a variance and that was why he wrote a letter to Chairman Cohen stating the Board of Adjustment does have the jurisdiction to make a decision one way or another in this matter. Town Attorney Sliney further explained the purpose Adjustment in regard to variance applications is to • the Town's Ordinances should be varied. You are to and make a decision as to whether you want to vary grant this height request; or whether you feel that are such that the Ordinance should not be varied. Adjustment, you have the discretion, authority and should make a decision. of the Board of determine whether review the criteria the Ordinance to the circumstances As the Board of jurisdiction and you Attorney Silver, in her summary, acknowledged that Mr. Colman purchased the property subject to the rules and regulation of the Town and that was why they were seeking relief through the Board of Adjustment. It is the function of this Board to judge the facts and circumstances in each case. She requested that the evidence be reviewed because it is very clear that Mr. Colman met all of the conditions required for this variance and it is in the best interest of the citizens of this Town and the public welfare of this Town that the Board direct coverage on this property, continued Attorney Silver. Mr. Harbin said he does not find going higher to be offensive; if you are using 250 less of the space of the land on one side and 33% less on the other side and you add about 20' to 25' to the building height, that is not the end of the world. When Mr. Augenstein asked if this Board has the jurisdiction to change the zoning, Attorney Sliney stated they could not change the zoning, they have to keep it current. Attorney Sliney explained he brought up the deposition and the information summarized in the deposition because • he felt it was related to the hardship. I am not implying that you make BOARD OF ADJUSTMENT • Public Hearing - Minutes September 22, 1987 Page 5 of 6 a decision because you have the jurisdiction. If you find the requisite hardship in any criteria, you would have the jurisdiction and authority to vary the height, continued Town Attorney Sliney. Mr. Arbetman stated that since this is a change of zoning, the Board does not have the power to do it. He further stated that the ordinance specifically denies relief where 70% or more of the subject is destroyed. Chairman Cohen noted the Board Members covered the facts of this case thoroughly and are ready for a MOTION for any decision made. A MOTION by Mr. Harbin to allow Mr. Colman the variance failed for lack of a second. MR. LORENZ/MR. ARBETMAN MOVED that the petition on increasing the height of the building on both the East and West side be denied. A roll call vote resulted as follows: Mr. Harbin 'against' Mr. Augenstein 'for' Mr. Lorenz 'for' Mr. Arbetman 'for' Mr. Cohen 'for' • Following proper MOTION, Chairman Cohen adjourned the Public Hearing of the Board of Adjustment at 10:45 A.M. • BOARD OF ADJUSTMENT Public Hearing - Minutes September 22, 1987 Page 6 of 6 APPROVED: Harold B. Cohent, Chairman b G. Lorenz, tce Ch. C aflEM Arbetman, Secretary (Absent) A. M. Fo Jr, l D i Augens; in George M,fHarbin (alt. r Date: LLB/i%�r C