1994.12.05_BAA_Minutes_WorkshopTOWN OF HIGHLAND BEACH
BOARD OF ADJUSTMENT
WORKSHOP MEETING - MINUTES
Monday, December 5, 1994 9:30 A.M.
Chairman Harold B. Cohen called the Workshop Meeting to order in
Commission Chambers at 9:30 A.M., announcing its purpose was
reconsideration of the following Petition for Variance:
No. 09-94-54. Submitted by M/M Dominick Conte re
Block 2, Lots 17 & 18, Bel Lido. Seeking relief from
Town Code of Ordinances Chapter 30 [Zoning], Section
4.3 (e) 5, & 9 [Residential Multiple Family - Low Density
RML; Lot, Yard & Bulk Regulations].
Deputy Town Clerk Doris Trinley called the roll. Present were the
Chairman, Vice Chairman Robert F. Selby, Secretary Jane Rayner and
Members Benjamin Cohen, Richard C. Seguso, Neil W. Burd and Daniel
J. Loventhal.
Town Attorney Thomas E. Sliney was also in attendance, as were
members of the general public.
Chairman Cohen advised that a previous Workshop had been held on
this Petition (October 18, 1994), which had been cancelled so the
Town Attorney and Mr. Conte's attorney could confer regarding what
effect a Unity of Title would have on the type of project Mr. Conte
proposed. [Three (3) individual patio/villa homes, each with its
own garage, for himself and two children; See Minutes of 10/18/94
Workshop] .
Having previously presented a written presentation on behalf of the
Petition to the panel (attached to and made part of these Minutes),
Attorney Charles R. Morganstein addressed the members as Mr.& Mrs.
Conte's representative and gave a synopsis of his written response.
Included in his remarks was the possibility of considering the open
space between the three individual units as "courts" rather than
sideyard setbacks, which would negate the need for that portion of
the Petition, as no setback requirements were given in Town Code
for such open space(s). The members referred to the plans as Mr.
Morganstein explained this concept. It was noted that as defined
in Town Code [Chapter 30 Zoning, Section 5.11(a)], a "court" is an
"...uncovered open space enclosed on two (2) or more sides by
external walls of a building."
Lengthy discussion took place regarding the two (2) lots being made
into one (1) lot by virtue of Unity of Title and that portion of
Mr. Morganstein's presentation wherein it was suggested that in
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Board of Adjustment
Workshop Meeting - Minutes
Mondav, December 5, 1994 Paae 2 of 2
unrelated unit owners, a small homeowners association could be
formed. The pros and cons of homeowner association versus
condominium association were discussed in depth, with Mr.
Morganstein arguing in favor of a homeowner association, but
advising that should the Board insist on a condominium association,
Mr. Conte was ready and willing to agree. During this time, it was
also noted that legal description of the three (3) individual units
would be recorded by metes and bounds.
Another area that was substantially discussed was the excess
percentage involved regarding allowable lot coverage. Several
figures were mentioned, but it was finally calculated and agreed
that 4.65%, or 116 sq.ft. was correct. It was Mr. Morganstein's
opinion that this was a negligible amount, as there was sufficient
"green space" incorporated into the project to ensure an
aesthetically pleasing effect. Mr. Conte noted that cutting 116
sq. ft. would mean giving up a garage or a patio; however, he said
he would meet with his architect on this matter before the Public
Hearing to determine how the plans might be reduced by 116 sq.ft.
Concluding discussion and review, Chairman Cohen announced the
Public Hearing for this Petition will be held Tuesday, December 20,
at 9:30 AM; he then recessed the Workshop Meeting to allow for a
physical inspection of the sight and adjourned at 10:45 AM.
dmt
APPROVE: (l
Harold B. Coh Chair
ane Rayner, S retary
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ATTEST:
Robert F . Selby, Vice Chair
Benj min Cohen
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Neil W. Burd
~~
Daniel J. Loventhal
DATE:
Richard C. Seguso
Charles R. Morgenstein, P.A.
Attorney
•
Boca Aviation Building
3700 Airport Road, Suite 307
Boca Raton, Florida 33431
December 4, 1994
(407) 750-9284
1-800-635-2979
FAX (407) 750-9289
The Honorable Members of the
BOARD OF ADJUSTMENT OF THE TOWN OF HIGHLAND BEACH
3614 South Ocean Boulevard
Highland Beach, FL 33487
Re: No. 09-94-54 -- Petition of Mr. and Mrs. Dominick Conte
Amendment to Paragraph 4(d) of Petition and
Argument in Support of Petition.
Dear Members of the Board:
This office represents Mr. and Mrs. Dominick Conte. Please
consider this letter as an amendment to the Contes' response to
Paragraph 4(d) of the Petition submitted by the Contes. While the
Contes' response to Paragraph 4(d) is still accurate in every
respect, I feel that the language below is more-responsive to the
question and is more complete. Following the Amendment, you will
find my argument on behalf of the Petition.
AMENDED RESPONSE TO PARAGRAPH 4(d) OF PETITION
According to Paragraph 4.3(a) of the Zoning Code of the
Town of Highland Beach, the purpose of an RML Zoning
District is "to encourage alternative housing styles,
such as townhouses and patio house, at low densities."
Section 4.3(e)(5), if read literally, would prevent the
lots owned by Petitioner from being developed as
townhouses or patio homes, thus frustrating the intent of
the zoning code in establishing the RML Zoning District,
merely .because the petitioner could not provide 12 feet
between each of three attached-but-free-standing dwelling
units.
Petitioners' lots were not originally zoned as RML, but
as former designation RM-10, which allowed 8 units per
acre and which contained subtle differences in dimensions
and setbacks. By rezoning Petitioners' lots and placing
an RML District classification on those lots in an
existing higher-density area, the Town has created a
situation where minor modifications to the literal
requirements of RML, specifically the "side-yard" set
. backs (if indeed the areas involved are truly "side
yards" at all) are necessary if the Town is to obtain the
benefit of RML-type zoning ( as opposed to RMM or RMH-type
structures) on Highland Beach Drive, and if the
Petitioners are to be able to benefit from an RML
designation as opposed to an RE or RS designation.
The Petitioners, if relief were denied, would be forced to develop
their lots either:
1) as two, rather-large, single-family residences, or
2) as two multi-family buildings of higher density than that
contemplated by the Petitioner's current plan, or
3) as one single family home and one multi-family structure.
Due to the current composition of the completed construction on
Highland Beach Drive, it is obvious that large single-family homes
really do not "fit in" and would be out of place in the resale
market as well. If Petitioners were to elect this choice, they
would, in effect, be voluntarily subjecting themselves to RE or RS
zoning requirements, even though they is technically allowed the
benefit of RML zoning. This would be substantially more-
restrictive and would also be significantly more expensive (not to
mention totally cost-ineffective). (There is only one large
single-family home. on the street -- the rest of the homes are
developed as triplexes or fourplexes). Continuing to develop
triplexes and fourplexes on Highland Beach Drive will tend to give
the street more of an RMM or RMH appearance, rather than the RML
appearance which is intended by the current level of zoning.
Other owners of properties zoned RML do not have to contend with
the unique makeup of Highland Beach Drive or with the fact that
adjacent properties were developed under much-more liberal zoning
codes.
***END OF PROPOSED AMENDMENT***
ARGOl~NT IN SDPPORT OF PETITION
Petitioners have worked with the Building Official in determining
whether they are even in need of a variance to begin with.
Petitioner is planning to build a small group of one-story, single
family dwelling units, physically attached to each other by a
common wall, and conceptually attached to one another by common
architectural and aesthetic appearances to form a recognizable
multifamily building. Each dwelling unit will have its own egress,
• parking and essential facilities. Such a project falls squarel
within the definition of a "Town house, patio or villa apartmenty
as defined in section 13.10 of the Code.
Grassed areas internal to this special kind of multifamily
structure are not specifically regulated by the Code. The closest
definition given to such areas by the Code would be a "court" as
defined in section 5.11(a). In an abundance of caution, and acting
on the advice of the Building Official, however, Petitioners are
requesting a variance from the setback requirements regarding "side
yards" even where the grassed areas which are here being called
"side yards" may not actually be side yards at all.
Petitioners would first point out that they have provided a 12-foot
setback on the east side yard of their property, and a 13.5-foot
setback on the west side yard of their property -- both clearly
meet the zoning code setback requirements.
The grassed areas flanking the middle of the three proposed
dwelling units of this patio villa complex do not clearly fall
within the definition of "side yard" found in Section 5.11(c) of
the Code. Rather, these grassed areas are more like "courts" as
that term is defined in Section 5.11(a), inasmuch as the. Units are
all attached by a common wall, resulting in four uncovered open
spaces, each of which is enclosed on either two or three sides by
exterior walls of a building. There are no specific setback
requirements for "courts" in the Code.
Giving. further credence to the idea that these areas are really
only "courts" -- and not "side yards" -- section 13.2 of the Code
provides:
Where a structure is attached by a wall or
walls to the principal building, it shall be
considered a part thereof, and not an
accessory building.
The dwelling units in Petitioners' plan are attached to each other
by a wall as part of a single project, thus falling squarely within
the definition of "town house, patio aid villa apartment" found in
section 13.10 of the Code. This section provides that such a
dwelling is:
Low-rise, one (1) or two (2) stories,
attached, single-family dwelling units
constructed as part of a series or group
forming a recognizable multifamily building,
each unit having walls and/or property lines
separating it from any other unit and each
having individual means of exterior egress,
parking, and other essential functions.
It is instructive to note, however, that even if these dwelling
units were considered to be "accessory structures", as defined in
section 5.2(a) and (c), such
• separated from the buildings
plan provides twelve feet
dwelling units.
structures are only required to be
they serve by 5 feet. Petitioners'
of separation between each of the
While a 12-foot setback from side yard to side yard might be
preferable in true single-family zoning (RE or RS), there is not a
good reason to require 12 feet between the dwelling units of
related parties (as this project will start out initially), or the
dwelling units of a group of villa apartments occupied by parties
whose only other alternative would be to live in a structure which
shares party walls with the neighboring homes.
In order to minimize any conflict between unrelated persons owning
dwelling units developed on this site, the Petitioners have agreed
to subject the property to the jurisdiction of a small ham~eeowners
association which would:
1) make the courts ("interior side yards") the common
property of the homeowners association for the benefit of
all owners of dwelling units on the property;
2) provide for restrictions on the use of these courts
by one neighbor without the consent of the others;
3) provide for common maintenance of the courts by the
homeowners association, and
4) require that the architectural and aesthetic
appearance of the dwelling units remain harmonious, so as
to continue to allow the project to be identified as a
multifamily building in perpetuity.
This Declaration will be a Covenant Running With The Land which
will obligate all future owners to abide by its terms even in the
event that any or all of the Conte family chooses not to continue
to reside on the property.
The project, as submitted, will enhance the appearance of Highland
Beach Drive because it will give more of a single-family "feel" to
the street while still remaining in character with the existing
multi-family triplexes and fourplexes.
On behalf of the Contes, I wish to express my appreciation to the
Board for having considered their Petition.
Very truly yours,
CHARLES R. MORGENSTEIN, P.A.
%~
Charles R. Mor stein