1996.07.16_BAA_Minutes_Regular
• TOWN OF HIGHLAND BEACH
BOARD OF ADJUSTMENT
QUARTERLY MEETING
MINUTES
Tuesdav, Julv 16,._1996 1:30 P.M.
Vice Chairman Neil W. Burd called the Quarterly Meeting to order in
Commission Chambers at 9:30 A.M.
Deputy Town Clerk Jane Dillon called the roll. Present were Vice
Chairman Neil W. Burd, Members Richard C. Seguso, Robert F. Selby,
James J. Niehoff and Victor P. Hadeed. Benjamin Cohen and Daniel
J. Loventhal were absent.
APPROVAL OF MINUTES
Upon MOTION by MR. NIEHOFF/MR. SEGUSO the minutes of the April 9,
1996 Quarterly Meeting were unanimously approved.
NEW BUSINESS
Vice Chairman Burd welcomed new board member Victor P. Hadeed.
Election of Officers
• With the resignation of Chairman Harold B. Cohen, the following
board position was open for re-election.
Upon Motion by Mr. Selby/Mr. Seguso, NEIL W. BURR was unanimously
voted CHAIRMAN of the Board of Adjustment.
Mr. Burd, being the former Vice Chairman, opened nominations for
the Vice Chair position.
Upon MOTION by MR. BURD/MR. SEGUSO, DANIEL J. LOVENTHAL was
unanimously voted VICE CHAIRMAN of the Board of Adjustment.
(due to Mr. Loventhal's absence today, attached hereto and made a
part of these minutes is a letter from Mr. Loventhal expressing his
interest in being nominated to serve as Vice Chairman.)
Board Procedures Review
There was discussion on the Florida Sunshine Law and how it
pertains to "executive sessions" prior to a scheduled meeting.
Attorney Sliney stated that under the Law, matters concerning an
upcoming issue cannot be discussed except in the presence of the
other members at a scheduled board meeting.
Attorney Sliney presented an overview on the guidelines the Board
should follow for a Quasi Judicial Hearing. Copy attached hereto
• and made a part of these minutes.
• Board of Adjustment
Quarterly/Workshop Meeting
July 16, 1996 Page 2 of 2
Chairman Burd/Mr. Selby made motion for a resolution thanking
former Chairman Harold B. Cohen for his devoted service to the Town
of Highland Beach and to the Board of Adjustment.
The Board met with unanimous vote.
The next .Quarterly Meeting is scheduled for October 15, 1996 at
9:30 A.M.
With no further business to come before the Board, MOTION to
adjourn was made by MR. SEGUSO/MR. BURR at 2:00 P.M.
APPROVE:
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Neil W. Burd, Vice Chairman
Absent
• Daniel J. Loventhal, Vice Chair
Robert F. Selby
Absent
Ben'amin Cohen
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Richard C. Seguso
James F. Niehoff
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Victor P. Hadeed DATE: ,_ ~~/S- 1G
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QUASI JUDICIAL HEARINGS
BOARD OF ADJUSTMENT PROCEDURE
1. Read Petition/Resolution by summary/title
2. Open the Public Hearing
3. Town Clerk administers oath to all who will speak
4. Town Staff Presentation - Building Official offers Town file
into the record and states file is available for inspection in
the Town Building Department
5. Board questions Staff
6. Petitioner Presentation
7. Public Presentation and statements or questions
8. Petitioner can then question anyone who speaks. Other people
can question.
9. Petitioner's Closing Statement.
10. Board asks questions of Staff, Petitioner, Public.
11. Public Hearing closes
12. Motion to Approve Resolution/Petition and discussion ensues
13. Board Votes on Petition/Resolution.
62912
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tion. Exem~tion from ad valorem ta`" an is based on
use exc,!_usively for governmental purposes and no diver-
.. sion is recognized. City of Corai Gables u. Robbins. 3 Fla.
L. Weekly Supp. 684 (Fla. 11th Jud. Cir. March 26.
1996).
Zq~TG-COUNTY WAS NOT REgUIRED TO PROVIDE
P .C NOTICE BEFORE TERMINATION OF SPECIAL
USE EXCEPTION BASED UPON A VIOLATION OF SPE-
CIFIC CONDITIONS AND RESTRICTIONS TO THE SPE-
CIAL USE EXCEPTION.
Martin County terminated a special exception on a par-
. cel of land under which Scotts Company had been con-
' ducting a mulch manufacturing operation. Scotts Com-
pany filed a petition for writ of certiorari to obtain review
of the decision of the Board of County Commissioners.
After receiving complaints, Martin County conducted an
investigation of the mulch operation. Following the in-
spection, a letter,of notice of violation was sent to Scotts
stating the violations found and further directing Scotts
to cease all activity immediately. Shortly thereafter, Mar-
tin County sent Scotts a letter notifying them of the date
for the evidentiary hearing for the alleged violations. The
County did not give notice to any surrounding property
owners of the date of the hearing, nor did the County
publish in a newspaper that the hearing would be held.
Scotts argued that Martin County had no authority to
hold the evidentiary hearing without public notice. Scotts
claimed the that termination of a special exception is a
zoning decision that requires public notice pursuant to
Sec. 125.66(5)(a) or 125.66(6). Fta. Stat. No violation of
the statutes occurred, since the termination of the spe-
cial exception does not allow a use other than already
pitted under the zoning designation. the rationale for
~quirement of public notice does not exist. The court
further stated that the county was not required to pro-
vide opportunities to cure violations. The Scotts Com-
pany u. ~NartIn County, Florida„ 3 Fla. L. Weekly Supp.
582 (Fla. 19th Jud. Cir. January 19, 1996).
ZONING-CTIY'S GENERAL BAN ON OUTDOOR BUSI-
NESS ACTIVITIES IS CONSTITUTIONAL ENACTMENT
UNDER Cl'I'Y'S POLICE POWER INSOFAR AS Tf IS RA-
TIONALLY RELATED TO CITY'S LEGITIMATE INTEREST
IN FURTHERING COMMUNITY AESTHETICS. THERE
WAS NO FIRST AMENDMENT VIOLATION WHEN T-
SHIRTS WERE SOLD SOLELY FOR PROFIT AND NOT
WITH INTENT TO COMMUNICATE.
After complaints by city residents and a number of busi-
ness owners. the City of Daytona Beach adopted a reso-
lution regulating the activities of itinerant vendors. The
resolution. based on the adverse aesthetic effects on the
community resulting from the activities of these vendors
was incorporated into the city's Comprehensive Land
Development Code. Plaintiff, a local business owner who
also conducts outdoor business activities, claimed that
the city, in enacting the provisions. exceeded the scope of
its lawful police power to regulate land use in further-
ance of the public health, safety, morals and general
welfare. Plaintiff' further azgued that the city's applica-
tion of the code in the circumstances of this case consti-
t an attempt to regulate commercial speech in viola-
ti~f the First Amendment.
The circuit court first stated that it is well settled that the
maintenance of community aesthetics is a legitimate
general welfaze cor."'_ ~ of a municipality and that regu-
lation solely for aesthetics purposes is not outside the
scope of the police power, even as it relates to outdoor
business activities. The circuit court also found that the
city's application of code satisfied the four-prong test
found in Central Hudson Gas, and determined there was
no undue regulation of commercial speech. Plaintiffs
injunction request was denied. Huriey Dodge, Inc. u. City
of Daytona Beach, Florida, 3 Fla. L. Weekly Supp. 623
(Fla. 7th Jud. Cir. February 23. 1996). .
ZONING-STAFF RECOMMENDATIONS THAT ARE
MERELY CONCLUSIONARY IN NATURE DO NOT CON-
STITUTE COMPETENT. SUBSTANTIAL EVIDENCE TO
SUPPORT A CITY'S ACTION IN OVERTURNING A BOARD
OF ADJUSTMENTS DECISION TO DENY VARIANCES.
a
Against the recommendations of the Boar o ~u -
ment. the City of Coral Gables granted three variances to
Milton for his single-family residence. Petitioners filed a
petition for a writ of certiorari from the zoning resolution
of Respondent, claiming their action in granting the vari-
ances is unsupported by competent, substantial evi-
dence of record. The circuit court found merit in
Petitioner s azgument and quashed the City's resolution
which approved the variances. The circuit court deter-
mined that the City's resolution under review was the
result of a quasi judicial process and. as such, should
have been scrutinized by non-deferential judicial stan-
dards. At the circuit court level, the circuit court must
consider whether due process was afforded, whether the
administrative body applied the correct law. and whether
its administrative findings and judgment aze supported
by competent, substantial evidence, in light of all the
criteria in the applicable ordinance. In reaching its deci-
sion to grant the writ. the court concluded that the
record in its entirety failed to contain competent, sub-
stantial evidence to support the granting of the three
variances. The variances were granted based on staff
recommendations. The court stated that while recom-
mendations of the staff ordinarily may constitute compe-
tent substantial evidence, such evidence still must be
fact based as to the matters sufficiently relevant or mate-
rial to the ordinance criteria so that a reasonable mind
would accept such recommendations as adequate to sup-
port the conclusions reached. In the instant case, neither
the recommendations nor the verbal report of the stall'
was fact based. Weiser v. The City of Cora! Gables, 3 Fla.
L. Weekly Supp. 667 (Fla. 11th Jud. Cir. March 26
1996).
ZONING-COUNTY'S ACTION GRANTING REI,~UEST FOR
REZONING TO PERMIT COMMERCIAL DEVELOPMENT
IN A RESIDENTIAL COMMUNITY AND FOR TWO VARI-
ANCES CONSTITUTED IMPERMISSIBLE SPOT ZONING.
A 4.24-acre parcel of land zoned AU was rezoned to a
BU-3, permitting operation of an animal feed supply
business. No land in all of this two-square-mile area was
zoned BU-3. The circuit court further determined that
the benefit to be derived from the change would ensure
solely. to the owner: moreover, the change would hurt the
rest of the residents and the essential nature of the area.
Based on the evidence, it was clear that the changed
zoning was not consistent with the comprehensive devel-
opmentmaster plan and also did not comply with estab-
lished zoning law. The court concluded by stating that,
in addition. such commercial development in a residen-
tial area would only lead to future disintegration of the
area and clearly constituted spot zoning.
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