1992.04.21_BAA_Minutes_RegularI
TOWN OF HIGHLAND BEACH
BOARD OF ADJUSTMENT
PUBLIC HEARING - MINUTES
Tuesday, April 21, 1992 1:30 P.M.
Chairman Harold B. Cohen called this Public Hearing to order in Com-
mission Chambers at 1:30 P.M., stating its purpose was to hear testi-
mony regarding the following Petition for Variance:
NO. 3-92-44. Submitted by Highland Park Associates, owner,
seeking relief from side setbacks and height requirement for
proposed 4-unit condominium at 3425 S. Ocean Blvd., Lot 90E.
Town Code Chapter 30, Section 4.4(e)(8) & (11).
He advised that a Workshop regarding this petition had been held on
Tuesday, April 7, during which the members and the Town Attorney had
physically inspected the site.
Deputy Town Clerk Doris Trinley called the roll. Present were the
Chairman, Vice Chairman David Augenstein and Members Robert F. Selby,
Jane Rayner, Benjamin Cohen, Daniel C. Stump and Richard C. Seguso.
S Also present were Town Attorney Thomas E. Sliney, Building Official
Harry Heithaus and members of the general public.
The Chairman ascertained that proper legal advertisement had been made,
as well as certified mailings to all residents within 300' of the site.
He then invited the petitioner and all speaking on the project's behalf
to address the Board, after having been sworn in.
The following spoke for Highland Park Associates, petitioner:
Mark Rothenberg, Owner.
Larry Cohan and Guido Brito of Cohan, Brito & Associates,
Architects.
Robert Eisen, Attorney
Mr. Rothenberg recapped the history of his ownership of the lot,
including previously approved plans under a previous Code. He stated
the side setback variance from 20' to 16'6" was needed to accommodate
sub-grade parking and mathematically explained this request, noting-the
parking level would not be visible from AlA. Regarding height, he said
because the penthouse unit was planned to be the finest and most lux-
urious in the building, the variance from 40' to 50'10" was being
requested. He reiterated that Code allowed six (6) units on the site,
while he was downzoning to four (4) units.
Messrs. Cohan and Brito used overlays and artist's drawings during
during their presentation, which included the "pinched in" design of
the building regarding side setback on the upper floors, and build-out
of a 100' wide by 200' deep lot (90E) versus a 150' wide by 200' deep
lot. It was noted that this project would only cover 27$ of the lot
Board of Adjustment
• Public Hearing - Minutes
Aril 22, 1992 Page 2 of 3
while Code allowed 40~ coverage for a 100' lot. Several references
were made to previous Code, notably the allowance of a 10' "bonus" in
height if sub-grade parking was utilized, and the Town's not having a
floor area ratio code, which has to do with lot size and maximum
buildable area.It was stated that a hardship would be incurred if the
penthouse design could not fully utilized as planned. In summation, it
was repeated that the project would cover less of the lot than allowed,
fewer units than allowed would be built and the project would not be
built out to the maximum allowed.
Attorney Robert Eisen spoke to the hardship element of the petition,
noting the restrictions of the CCCL and measurement of elevation; he
remarked that Town Code was not "uniformly and fairly regulated re-
garding configuration and size." He, too, noted the proposed reduction
in density from six (6) to four (4) units.
Mr. Rothenberg then read a prepared statement, a copy of which was not
made available to the members, which summed up his reasons for the
variances requested, and testimony was concluded.
Opening discussion, Chairman Cohen first reminded the petitioner that
the Board sits at the discretion of the Town Commission and is charged
with upholding current Town Code; any variance from that Code could be
granted only if hardship can be proved by meeting certain criteria. In
this case, he noted that repeated references to past Codes would seem
to indicate an enmity toward the Town's governing body; however, the
Board of Adjustment could only make decisions based on zoning
regulations which were in effect at the time a petition for variance
was submitted.
For the record, those who submitted written opposition, all of which
had to do with the height variance, were acknowledged by the Chairman
(copies attached to and made part of these Minutes).
To Mr. Augenstein's question about the possibility of eliminating the
top floor, the architect replied it would mean a loss of approximately
2500 sq.ft. Mr. Eisen added that since the top floor was the second
floor of the penthouse unit, it would render the floor below non-
functional and, in theory, two (2) floors would have to be eliminated.
Referring to Mr. Eisen's previous remarks regarding Town Code being
"unfair," Mr. Augenstein asked for clarification; Mr. Eisen replied
that perhaps "lack of uniformity and application" would have been a
better choice of words.
Chairman Cohen next invited members of the general public present to
state their opinions. The following residents spoke in opposition to
the height variance:
• Annemarie Winter Jerry Golden
Joe Lane (prepared statement Michael Dent
attached hereto)
Board of Adjustment
Public Hearing - Minutes
April 21, 1992 Page 3 of 3
After lengthy discussion, during which Attorney Sliney stated that in
• his opinion there was nothing peculiar to this lot to justify the
height variance, Mr. Augenstein/Mrs. Rayner made the following MOTION:
HAVING DETERMINED THAT ONE VARIANCE [SIDE SETBACKS FROM
20' TO 16'6"; SECTION 4.4(e)(8)] MEETS ALL CRITERIA, MOVE
THAT THE AREA FOR THE PARKING GARAGE BE APPROVED AND THE
OTHER VARIANCE [HEIGHT FROM 40' TO 50'10"; SECTION 4.4(e)(11]
BE DENIED.
Roll Call resulted in unanimous favorable vote.
There being no further business to come before the Board, the meeting
was adjourned at 2:45 P.M.
dmt
APPROVE: -.~~"~-'~-ti''~__~'i ~>~~~"~
Harold B. Cohen, Chairm n
`\~
Cum ~ s~~~ J . ~-`--
David Augenstei , Vi~ a Chairman
~.~' --~ ti-lam.-~
bane Rayner
Robert F. Selby
ATTEST:
DATE:
Benjamin Cohen
Ri and C. eguso
Daniel C. Stump
M.s r2 -« o-r (~l a~c~` ~ S
ANNEMARIE WINTER
3505 SOUTH OCEAN BLVD., SUITE 4S
HIGHLAND BEACH. FLORIDA 33487
(407) 276.2866
Town of Highland Beach
3614 South Ocean Boulevard
Highland Beach
Florida 33487 April 19, 1992
Dear Sirs,
Re- Petition For Variance No. 3-92-44 Lot 90 E
Town Code Chapter 30 Section 4.4 (e) 8 & 11
We purchased our apartment at the "Villa Nova" in December 1989. This
is our permanent home now. We bought this apartment specifically for the
unobstructed ocean view it offers. Before deciding on this place of residence
we voiced concern over what kind of building could one day be erected on~ither
side of us. (Villa Nova). We were handed a letter from the Town of Highland Beach
stating, "that any building constructed, cannot exceed the height of 30 feat
and a width of 60 feet.
We are most disturbed to learn about the application you have i.n
hand asking for permission to exceed even 40 feet.
We strongly and respectfully ask you to reject this application.
Yours sincerely, ~ ?
~ I G2'~2~ ~~~
(Annemarie & Martin Winter)
U
i
~! APR 16 '92 15:04
April 16, I99z
Town of Highland Heath, Florida
3b14 South Ocean Boulevard
Highland Beach, Florida 33487
P.02
Re: Public Hearing -- Apxi1 21, 1992
Highland Park Associat~.on
I am a resident of Villa Nova Condominium, Apartment 4N, soutfi side
of the proposed structure at 3425 South Ocean Boulevard, Lot 90 E.
I will not be able to attend the meeting on April 2I, 1992 but would like
to be put on record that Z am opposed to any vax~.ance in the present 40'
heig$t..~restriction.
'Last year, when the approved plans were presented tome by the building
department, I found them to be acceptable, but..I:.hgsre:•.ob;~ections to any
height increases.
Very u1y yours,
Don Kle la
GERRY GOLDEN PAGE 01
04115!' 19a~ 15:13 40 r "?'55808
V~.
TOWN OF HiQHLAND BEACH FLORIDA 0Y FAX
ATTENTION: tONINQ BOARD
PLEASE CONSIDER THIS i~.ETTER A$ EXPRESSINti THE UNANIMOUS
FEELlNQ OF ALL 1AEM0ER$ OR THE VILLA NOVA CONDOMiNIUIiA
ASSOCIATION RELATIVE TO THE REQUESTED VARIANCE IN THE
YONING ON THE PROPOSED STRUCTURE AT 375 SOUTH OCEAN
BOULEVARD, LOT ZOE.
WE $TRON4LY OPPOSE THE VARIANCE WHICH WOULD ALLOW ANY
HEIC~MT OVER THE CODE 40 FEET.
VERY TRULY YOURS,
VIt.LA NOVA CONDOIAINIUM ASSOCIATION
RA D LD N
E81 EN
FiP - 1 -O= FR I S= 1 4 gPE I DER
~~ ~~5
~ ~
Stuart M. Speller
3505 South Ocean Blvd, Apt.14N • Highland Beach, FL. 33487 • Telephone (40?) 272.1239 • Facsirru~e (407)272.7924
Apri117,1992
FAX to Town of Highland Beach
3614 South Ocean Boulcvard
Highland Beach FL 33487
Re: Public Hearing, Apri121,1992
Highland Park Association
Dear Sirs:
I reside in Villa Nova Condominium, Apartment 14 N, north side of the
proposed stzvcture at 3425 South Ocean Boulevard, Lot 90E.
I agree with the views set forth by Vito J. Lupo in his letter to you dated A~ri1
16, 1992. The lvt is too small to support a 50-foot-high building, and the building
would overpower it. Therefore, we request you to retain the 40 foot height restriction
and refuse to grant any variance.
Sincerely yours, ~~., ~~
j 1~
Stuart M. Speiser
•
FAXFsD APRIL 17, 1992
April 17, 1992
Town of Highland Beach, Florida
X614 South ocean Boulevard
Highland Peach, FL 33487
RS : PUBLIC HEARING APRIL 21. , ~.9 9 2
HIGHLAND PARK ASSOCIATION
I d.ctt a resident of villa Nova Condominium, Apart~ttent 3N, north side
of the proposed structure at 3425 south Ocear. Hloulevard, Lot 9QE.
I have reviewed the rendering and plane as have; my neighbors, and
we are all in agreement that the concept and des~.gn of the building
are acceptable. However, we are adamantly opposed to the height
of Che structure being 50 feat.
At this hw~ght, the building will appear top h~dvy and unsightly
on the small building lot, and for L-hia reason, tfhe variance is .not
acceptable.
I am o:E the opinion that the 40 foot restriction be maintained.
Sincerely,
~~
~Tnhn FarlningC
President
JF/sam
•
Southoastarn Ftegianei Offlca - 301 Yamato Road. Suite 4t8Q, Boca Aeto~e,, FL 33431 • {40n 9@4.8500
FAX (407) 9g7-2563
ASR-_rl-9'~ MQN 15 :_~ T. Wi=~L.TEP.. ICi=~`r'E: M. D. 2M31313=Fo---•
J. WALTER ,~K'AYE, M.D.
8 G,LE'NWOOA DRJvE
S~lDALE RIVER, N.J. o74S8
FAX
.lpri120, 1992
?'own of Highland Beach, Florida
3614 South Ocean Boulevard
Highland Beach, FL 33487
RE: PUBLIC HEAlll1VG -APRIL 2I, 1992
HIGHLAND PAR% AS,50CIATION
1 am an owner of apartment 3 South of Villa Nova, 3505 S, Ocean Boulevard, Highland
Beach. 1 concur with my neighbors who are expressing their firm opposition to changing
the 40' height restriction to SO' on the proposed structure immediately to the north of us
at 34ZS South Ocean Boulevard, Lot 90E.
The 40' restriction is already borderline as far as the esthetics of squeezing a building of
that height and size into the available small lot is concerned. Highland Beach has the
option of safeguading its natural beauty and protecting its open space -both horizontally
and verticatly - or turning itself into yet another Floridian cement carryon. 40' is quite
enough - SO' is deemed totally unacceptable.
Kindly maintain your sense of proportion in this matter!
Si erely,
~.
J. Walter Kaye, M.,D, '
JWK: maa
~J
JACK LUPO
April i6, i992
Town of Highland Beach, Florida
3614 South Ocean Blvd.
Highland Beach, Florida 3348'
In re: Public Hearing - April 21, 1992
Highland Park ASSOI:iaClOll
Being a reside~,t of Villa Nova Condominium, Apartment 3I3, nortiz
side of the proposed structure at 3425 South Ocean Blvd., Lol 90F,,
my neighbors and ~I reviewed the rendering and plans at city Hall
and it is our opinion that the concept and design of the building
are acceptable.
We firmly oppose the height of the structure from 40' to SO'.
The building lot is small in size and the building is overpowering
and top heavy, therefore the variance is unacceptable.
Please maintain i:he 40' restriction which will be aesthetically
desirable.
Very truly yours,
Vito J, Lupo
•
l90 W, GLADES ROAD. SUITE C. BOG- BATON, FLORIDA 334 3 ~-}O i l ~ 9I -t~34-} (:051 436-3055 FAX (407) 391-SSS~
04%20/1992 20:00 4.072786808 GERRY GOLDEN PAGE 01
~ M/LTOIY AND FLORENCE SHERIN
VILLA NOVA CONDOIN/N1t/M 8.N
3505 SOUTH OCEAN BOULEVARD
HIGHLAND BEACH FLORIDA 33487
TO: 20NING BOARD
RE: VARIANCE REQUESTED AT 342b SOUTH OCEAN 80ULEVARD
PLEASE BE ADVISED THAT WE STRONGLY OPPOSE ANY VARIANCE
TO THE HEIGHT, AS 20NED, OF 40 FT.
TO INCREASE THE HEIGHT BEYOND 40 FT 18 UNACCEPTABLE.
1Y11LTON AND F1~ORENCE SHERIN
APR-21-1'3x2 11=32 FROM FRENCH MAID LINGERIE TO 140726535$2 P.01
~J
Em~.rt J. Saykaly
3305 South Ocieatt Blvd
,4p~rtrrtent 9,tV
HrghXarld ~ea~cl~ ~',G 33457
April 2i, X992
Town of ~-Iighlaud )aeach, Florida
364 South Ocean Blvd.
Highland Beach, Florida 3348?
.Refer~ce: Public T.~eariu~g
Highland Park Association
As residents of Apartment 9N in the Villa Nova Condominiums, facing the
proposed structure at 3425 South Qceaza Blvd., we strongly abject to the variance
in the height of the building, from 40' to 50'. Tlae revised flans acre therefore
totally unacceptable to us.
Flease maintain the original. 40' concept, which we find to be much more feasible.
Yours very truly,
Ernest & Vivian Saykaly
407-276-5648
~.,w~ ,~~
. ~
• TO: Highland Beach Board of Adjustments
FROM: Joe Lane
Casuarina Condominium, #801
3450 S. Ocean Blvd.
Highland Beach, FL 33487
DATE: April 21, 1992
SUBJECT: Opposition to the Setback and Height Variances requested for Lot #90E
located at 3425 S. Ocean Blvd., Highland Beach, FL 33487
The Casuarina is a 54-unit, ocean-view condominium located across the street from
oceanfront Lot #90E. Of the 54 units, 18 are located on the north side of the building
and are not affected by Lot #90E. The 36 units on the south and east overlook Lot
#90E for some or most of their view of the ocean. These 36 apartment owners have
invested in excess of ten million dollars in these units, and any building Larger or
higher than allowed by Chapter 30 of the Highland Beach Town Code will diminish the
enjoyment of these home owners and decrease the value of their ten million-dollar
investment. It is a weH-known real estate fact that much of the value of an ocean view
property is generated by the size of the unobstructed view: shrink the view and you
shrink the value.
A building on Lot #90E 25% higher and 67 % wider than allowed by Chapter 30 is
contrary to the public in#erest (especially since the subject regulations are less than
two years old) and injurious to the neighbors across the street.
i respectfully request tha# you uphold the integrity of these newly adopted regulations,
that you adhere to Section 11 of Chapter 30, and that you strictly follow the well-
established Florida Law concerning "unnecessary and undue hardship."
In that regard !would like to refresh your recollection of three very recent and pertinent
Florida court decisions:
2
• 1. Thompson v. Planning Commision
H64 So 2d 1231 (Fla. 1985)
A. Facts: Plans for atwo-story office building were developed by Owners' architect
which plans did not contain the required number of parking spaces. Rather than
redrawing the plans to conform to code they applied for a variance to reduce the
number of parking places. A variance was granted because of the odd shape of the
lot. The owners of the property across the street appealed.
B. Issue: Was the office building entitled to a variance?
C. Decision: Appeal sustained because of the lack of hardship.
D. haw: Property owners across the street have a right to rely on existing zoning
conditions in the absence of a proper variance.
If the variance is improper, the owners across the street will be irreparably harmed.
The necessity of proving unnecessary hardship in order to obtain a variance is well
settled in Florida. The requisite hardship may not be found unless there is a showing
that under present zoning no reasonable use can be made of the property.
A sei#-created hardship cannot constitute the basis for a variance. The owners
designed a building which was too large for the lot. The alleged hardship arose solely
#rom their own conduct so there is no unnecessary hardship.
' 3
2. Town of Indiaiantic v. Nance
485 So 2d 1318 (Fla. 1986)
A. Facts: Oceanfront landowner applied for a variance to construct an eight-story
motel which was higher than allowed in the code. The owners' architect testified that a
lawer motel could be built on the land in accordance with the cads but the lower
building would not be as aesthetically pleasing.
B. Issue: Was the owner entitled to a variance?
C. Decision: landowner was nat entitled to variance because there was no hardship
unique to his land.
D. Law.• Prerequesite to granting of variance is presence of exceptional hardship to
individual landowner, unique to his parse! and not shared by other property awners in
• the same area.
Hardship warranting variance must be such that it renders it virtually impossible to use
land for purpose for which it is zoned.
3. Bernard v. Town Council of Town of Palm Beach
569 So 2d 853 (Fla. 1990)
A. Facts: Palm Beach landowner applied for a variance to construct a bedroom and
bath addition to her home. She had received prior approval of the project but she did
not proceed because of the death of her husband. Now she has remarried and
desires to proceed with the project. She claims the hardship runs with the land
because of the peculiar shape and size of her lot.
,~ 4
B. Issue: Was the landowner entitled to a variance?
C. Decision: Variance denied.
D. Law: In order to qualify for a variance a "hardship" may not be found unless no
reasonable use can be made of the property without the varriance. The hardhip must
be such that it renders it virtually impossible to use the land for which it is zoned.
I am not going to bore you with a litany of cases involving economic advantage
because I'm sure that you are aware that it is now etched in stone that the loss of an
economic advantage does not constitute "unnecessary hardship" and that a
landowner is not entitled to a variance because it woutd permit a more profitable use
of the land or would produce a greater return or would make the property more
valuable. (82 Am Jur 2d, Zoning, #272).
Obviously, a 50-foot high condo should produce more revenue than a 40-foot high
condo and surely an 80-foot high condo would produce even more revenue; so how
high should we go?
The answer is simple: build a 40-#oat high building according to code. This will
provide the landowner with a reasonable and beneficial use of his property and that is
all that any property owner is entitled to.
Respectfully submitted,
~~
o bane