2014.11.19_BAA_Minutes_Regular 16N(,�h
10 `` - - �•�° TOWN OF HIGHLAND BEACH
° • _� MINUTES OF THE
BOARD OF ADJUSTMENTS & APPEALS
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PUBLIC MEETING
Wednesday, November 19, 2014 9:30 AM
Members Present: Chair Barry Donaldson, Secretary Evelyn Weiss, Board Member Joel
Leinson, Board Member Bryan Perilman, Board Member Peter Rodis and Board Member
William Weitz. Member Absent: Vice Chair Barry Axelrod (excused). Also Attending:
Town Attorney Leonard Rubin, Building Official Michael Desorcy, Acting Town Clerk
Valerie Oakes, and members of the public.
1. CALL TO ORDER
Chair Donaldson called the Regular Meeting to order at 9:30 AM in the Library's
Goldstein Community Room. Roll call was taken by Acting Town Clerk Oakes
followed by the Pledge of Allegiance.
Chair Donaldson — We are in the regular meeting at this point for those of you who
may not be familiar. We actually have two parts going on today. We have a regular
business meeting of the Board and after that is adjourned we will move into the
public hearings.
2. INSPECTION:
Chair Donaldson announced that per Town of Highland of Beach Code of Ordinances
Section 20 -51, the Board of Adjustment & Appeals conducted a site inspection at
3200 S. Ocean Blvd. and South Ocean Blvd. (parcel no. 24- 43- 47 -04 -00 -001 -0030)
on Monday, November 17, 2014.
3. ADDITIONS, DELETIONS OR ACCEPTANCE OF THE AGENDA:
Chair Donaldson called for a motion to accept the agenda.
MOTION: Member Perilman moved to accept the agenda as presented. Motion
was seconded by SecrejM Weiss, which passed unanimously.
4. PUBLIC COMMENTS:
None were received.
5. PRESENTATIONS:
There were no presentations at this meeting.
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 2 of 40
6. APPROVAL OF MINUTES:
• March 26, 2014 — Regular
Chair Donaldson called for a motion to approve the minutes from the March 26, 2014
regular meeting.
MOTION: Member Weitz moved to approve the minutes from the March 26, 2014
regular meeting. Secretary Weiss seconded the motion, which passed unanimously.
7. OLD BUSINESS:
Chair Donaldson — I have a follow -up to Petition #30298 (4521/4523 S. Ocean Blvd.)
that we heard some time ago where we approved an issue with a setback on a duplex
townhouse that was being built. Building Official Mike Desorcy is monitoring that
for us. We had asked that they provide him with an embellished landscape plan. I
wanted to mention publically that we are keeping an eye on that for the sake of the
neighbors on that property.
8. NEW BUSINESS:
A.) Variance Request: 3200 S. Ocean Blvd. (Parcel Control No. 24-43-46-33-00-
001- 0210); Sea Frolic, LLC — Public Hearing
Application No. 31098 — RELIEF FROM HIGHLAND BEACH CODE OF
ORDINANCES SECTION 30-64 AND TABLE 30 -2 (HIGH -RISE SETBACK),
SECTION 30- 66(a)(3) THAT REQUIRES ADDITIONAL SETBACKS FOR
BUILDINGS MORE THAN 30 FEET IN HEIGHT.
APPLICANT: 3200 Seagate, LLC
Chair Donaldson opened the public hearing.
Acting Town Clerk Valerie Oakes administered the oath to those who would testify
on this petition (3200 S. Ocean Blvd.). This will include the petitioner that will speak
and anyone from the public who will be making a comment.
Town Attorney Rubin called for board members to disclose any ex parte
communication. Hearing none, Town Attorney Rubin went over the procedures for
the public hearing.
Staffs Presentation:
Building Official Michael Desorcy presented the variance petition. The
encroachment is the attached Porte Cochere to the building, which encroaches
approximately 32 feet into the front setback. The eastern most portion of the Porte
Cochere would end up eight feet west of the property line.
Member Rodis — In terms of this issue, have you discussed the approach to the
building from AIA and whether this will create any kind of traffic issues, incoming
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 3 of 40
or outgoing. B.O. Desorcv — The Florida Department of Transportation (FDOT) has
done a traffic study on the driveways that are proposed. There are two driveways
and the FDOT does not have any objections to them. The Porte Cochere variance has
not been approved yet, so we can't discuss site triangles at this time. That will be
another discussion with the Building Dept. and the developer. I do not see any issues
at this time.
Member Perilman — How much closer will this bring the building to the street then
previously planned? B.O. Desorcv — The proposed construction at this time shows
the eastern most portion of the building line at exactly the 40 ft. setback line from the
property line. Member Perilman — Previously how far back was it? B.O. Desorcv —
The Commission approved the extension of the development order back in March of
2013. The approximate plane of the building at that time was 70 ft. That was at the
south end of the building. The eastern most portion of the building was 70 ft. from
the property line. Now they want to put it at 40 ft. Move the building 30 ft. to the
east.
Member Weitz — I understand that the driveways are approved by the Department of
Transportation. In terms of ingress and egress, approximately how many cars can
that handle without cars starting to back up on A I A? Is there a sufficient amount that
numerous cars could move in, or are we going to see backups on AIA in terms of left
or right entrances? B.O. Desorcv — I am recalling what the FDOT calculated for
trips in and out of the building, and I believe it was 14 per day. The driveways
would be adequate to handle the ingress and egress traffic to and from the building.
Chair Donaldson — Mine is more of an observation, even though the building is
moving forward, it is compliant because it is still within the setback that is allowed.
B.O. Desorcv — That is correct. The only issue here today is the Porte Cochere
encroaching into the front setback. I believe the traffic study is in the file.
Petitioner's Presentation:
Chair Donaldson stated that this will include cross examination and questioning of
Town Staff. The presentation will be limited to 45 minutes.
Kolbi Karp, Architect — We made a couple of boards (presented to the Board and the
public) that shows the difference between the Porte Cochere that we are proposing
and what was submitted previously. As the Building Official has mentioned, we are
basically looking to pull the Porte Cochere forward. In essence, as was mentioned,
the driveways entries and exits are the same. We have a total of 20 apartments.
Everything else stays status quo. The garage is the same elevation as the street and
the residences are above that.
Member Rodis — I understand that originally the swimming pool was in the back of
the building and now it is being placed on the rooftop. Mr. Karp — Yes, we felt that
by pulling the building closer, it opens up the space to the backyard and then we have
more open space between our neighbors to the north and south. Also we thought it
would be nicer to put the pool on the roof and it would give us a bit more privacy and
quietness. Member Rodis — When do you expect to start construction on the
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 4 of 40
project? Garrett Graue (Seagate Construction) Maybe 60 to 90 days ideally.
Member Rodis — Do you have a minimum number of units that you have to sell
before you can start construction? Mr. Graue — Yes we do but that is undetermined at
this point.
Chair Donaldson — In moving the pool, that doesn't in anyway affect the size of the
building itself, you are not getting space in units; you are not receiving any benefit
from doing that? Mr. Kam — That is correct. Mr. Graue — We made the building
narrower and by getting rid of that it enabled us to shrink the footprint, so we didn't
have to bring it as far to the east.
Member Leinson — Could you give us your thoughts for the possible relocation of the
existing sidewalk moving it further east? Mr. Kam — We have not changed the
sidewalk. The sidewalk stays as exactly as it is and was previously approved by
FDOT.
Public Comments:
Peter Abatangelo, 3201 S. Ocean Blvd. — As an old time resident of Highland Beach,
I did notice something and I am sure everybody noticed, this village of ours that we
care very much used to be once upon a time the top ten place to desirably reside in the
United States. With so much concrete speculation and greed we have become the top
bottom of the United States. I think we have to take back our village and maintain
green. So therefore let us stay within the code. What the code requires we stay with
it. Let us stop with this variance. We just don't need that. There is too much
concrete. I do beg all of you, please. We have to take it back. As a matter of fact it
would be appropriate for the Township to use eminent domain to take back the piece
of land because we don't have one single piece of land for a chair for when our
grandchildren come so we can sit. We have none in this village. I would appreciate
if this village takes the initiative and the leadership to think along those lines. We
love this village. Let's not make it like Ft. Lauderdale.
Alan Croche, President of the Penthouse Highlands Association — Maybe some
people understood this information beforehand. I came to this meeting to understand
what the proposals are all about. My building is within the 300 feet. First of all how
tall is the building? How many stories? B.O. Desorcy — The height is 7 stories. Mr.
Croche — You are saying that the building is being moved closer to AIA. What is
the variance? Mr. Karp — It is for the Porte Cochere. Chair Donaldson asked if Mr.
Croche had a specific question and allowed him two more minutes at this point. Mr.
Croche stated that he just wanted to understand what the variance was for. What was
it before; what is it going to be; how tall is the building. They talked about ingress
and egress and how many tenants are there. Mr. Kam stated there will 20 tenants.
Mr. Croche — Maybe there would be about 40 people with cars. I just wanted more
information.
Chair Donaldson closed the public comments.
Acting Town Clerk Oakes stated that there were no written communications.
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 5 of 40
Petitioner's Closing Statement:
Kolbi Karp — The only thing is that we have additional landscaping then previously
noted because we were able to increase the green space in the landscaping. We do
want to have a very nice design of green landscaping that ties it all around.
Charlie Isiminger, Professional Engineer for the applicant — The main reason that the
building could not be built further west is because of the wetlands. The wetlands
have encroached landward since the previous application years ago on the property.
Because of the regulations and the strictness of the agencies, we were not even able to
get successfully a six foot encroachment for a wooden deck. Because of the
avoidance and minimi zation requirements of both the federal and state agencies and
the Florida Water Management District at the state level and the U.S. Army Corp of
Engineers at the federal level, they both required you to avoid and minimi impacts
to the extent practicable. Since there were previous uplands filled on this property,
approximately two- thirds of the way back, they say develop on the uplands. That is
what pushes us back from that line.
Board Discussion:
Member Rodis — I heard rumors that with the wetlands you were negotiating with the
Federal Government to make cuts in the wetlands so that you could see the
Intracoastal. Is that true or do you have any expectations that you may be able to
keep the wetlands where they are so that you can create vistas so that the Intracoastal
can be seen from the property. Mr. Isiminger — At the federal level we were only
successful in getting the existing boardwalk rehabilitated. The Federal Government
U.S. Army Core of Engineers does not regulate the trimming of mangroves but the
State does. Through the Water Management District we were successful in getting
authorization to maintain the previously trimmed configuration. Member Rodis —
You won't be able to make any cuts in the mangroves in order to see the Intracoastal.
Mr. Isiminger — All of the resident's floors will have a view; but not if you were
standing on the ground other than the boardwalk itself.
Chair Donaldson reopened the Public portion for any questions of the two petitioners
that spoke during the Petitioner's Presentation.
Public Comments:
Joanne Hutchins, 3114 S. Ocean Blvd — I believe I heard you say that you are you
going to maintain the original dock that is on the property. Will you be opening a
pathway through the mangroves in order to access that? Charlie Isiminger — First of
all it is not a dock. There will be no boats. It is simply a boardwalk. We are
maintaining the same alignment; just replacing the boards. Joanne Hutchins — Will
you also be maintaining the mangroves? Mr. Isiminger — We have contracted with a
professional mangrove trimmer who is going to maintain what was previously done
there and we have to clean out all the debris from the mangroves.
Saul Lambert — We moved here to have greenery and see the ocean. I don't think this
project should be adjusted for builders and other people. We have a lot of beautiful
things in Highland Beach and should try to keep what is left. We don't need
concrete.
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 6 of 40
Sally Celano, Building Manager Monterey House, 3114 S. Ocean Blvd. — The
residents of the Monterey House are primarily concerned with our site views. Our
concern was leaving our building and looking to the right to see if there is anything
impeding in our vision of traffic. We went on site for the inspection on Monday and
everything seemed to be okay. I would like to comment that we would not like the
Porte Cochere to be built out even though it doesn't impede into our site vision.
Anything further out still would be projected. We still would like the open space in
the front instead of the variance being granted. The mangroves are overflowing onto
our property and has not been maintained and I was wondering if that would be done
even before the building is up. Will that be your responsibility? Mr. Isiminger — As
far as the mangroves encroaching over the north property line, I will have to ask our
professional mangrove trimmer. Since that is above uplands, I believe she can trim
that but I will have to consult with her. I will check on that right away.
Board Discussion:
Chair Donaldson — My question is to the architect. In looking at your Porte Cochere,
did you look at any other options that may not require covering both driveways?
Kolbi Kara — We looked at the potential of cutting it back. We met with our sales
and marketing people and the building official. Since the Porte Cochere is a single
story open structure, we felt that would be the most proper and it was the same design
that was previously approved. We did not want to change a design that was
previously approved and wanted to maintain the same. That is the direction that we
went.
Chair Donaldson asked for a motion to close the Public Hearing.
MOTION: Member Rodis moved to close the Public Hearing. Motion was
seconded by Member Weiss which passed unanimously.
Board Discussion:
Member Rodis — It just struck me that people don't understand that the initial
approval of the building was done a year ago, and anybody who had any issues about
the building itself needed to make those issues a year ago. Today we are really only
approving or disapproving the Porte Cochere. Anybody talking about further green
space in this regard might be inappropriate, because we approved that last year. I
wanted to make that point so we understand that Seagate has the authority to build the
building, and the only thing we are deciding today is do we want to add this variance
or not.
Member Weitz — I want to follow up Peter's remarks. I certainly, as a resident for
over 15 years, support the concept of greenery in a small town environment and
certainly to keep the community that everybody has learned to love. The building,
the site plans and the height is not the issue that we will be voting on today. The
issue is whether or not the one section of the building moves forward a little in the
drive space. I was concerned about the visual impact in terms of the turnings from
AIA, the backup of traffic and the safety issues. The other factor is that ironically
there is additional green space because the wetlands have moved inward. They have
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 7 of 40
also indicated that they are putting in additional foliage. I want to make it clear that
my vote today will be based on the particular specific issue around the driveway
access and entrance. I do respect the people of this community who want to keep it
green, but that is not the particular issue we are voting on this morning.
Chair Donaldson — We did look at the site and I observed that the limits of the Porte
Cochere being proposed appeared to be fairly much in line almost with the projection
of some of the balconies in the Monterey House next door. From a standpoint, sort of
where it sets in relationship to the other building, I am comfortable on that. What I
am not comfortable with is whether or not this represents the minimum variance
needed to accomplish this building. I certainly understand the developer and the
architect's thought that they would rather not change the design, but I am not
convinced that it can't be changed.
Chair Donaldson called for a motion to approve the variance.
MOTION: Member Rodis moved to approve the requested variance for 3200 S.
Ocean Blvd. Member Perilman seconded the motion.
ROLL CALL:
Member Weitz - Yes
Member Perilman - Yes
Member Rodis - Yes
Member Leinson - Yes
Secretary Weiss - Yes
Chair Donaldson - No
Motion passes 5/1.
B.) Variance Request: South Ocean Blvd. (a.k.a. Golden City) (Parcel Control
No. 244347 -04 -00 -001- 0030); Golden City Highland Beach, LLC — Public
Hearing.
Application No. 37015 - RELIEF FROM HIGHLAND BEACH CODE OF
ORDINANCES SECTION
30 -64(a) AND TABLE 30 -2, THAT REQUIRES A MAXIMUM BUILDING
HEIGHT OF 35 FEET IN RESIDENTIAL MULTIPLE FAMILY LOW
DENSITY (RML) ZONING DISTRICT.
APPLICANT: Golden City Highland Beach LLC
Acting Town Clerk Oakes administered the oath to those who would testify on the
petition (Golden City Highland Beach LLC). This will include the Petitioner that will
speak and anyone from the public who will make a comment.
After reading the variance application into the record, Chair Donaldson opened the
Public Hearing.
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Pate 8 of 40
Town Attorney Rubin called for the Board Members to disclose any ex parte
communications. Hearing none, he proceeded to ask each Board Member that they
affirm that the decision they make today will be based on the evidence and testimony
presented during the course of the hearing and not any other issue or personal issue
that you may have. As this is a quasi-judicial proceeding, legally you must base your
decision on the evidence presented during the course of the hearing. Town Attorney
Rubin asked Acting Town Clerk Oakes to call each member one by one to say that
they will. He wanted this on the record that it will be based on the evidence. All
Board members replied that they will.
Town Attorney Rubin stated that there are two party interveners which means that
while the applicant is a party, there are two other parties to this proceeding; one is
Toscana Association and the other is Mr. Robins who owns property directly across
the street. They will essentially be given party status. This one will be a little longer
because both the applicant and the two party interveners are going to have a chance to
present evidence in addition to the members of the public. It will start out basically
the way the other one did; Town staff, followed by the applicant, then the interveners
(first Toscana and then Robins) and then members of the public. Just to note at the
onset, we received numerous written communications on this. They have been
distributed to the Board members and will be part of the record of this proceeding.
However if we were going to read them we would be here for hours. So, we are not
going to read them all. The Board members have read them and they have been
provided to them. The Town Clerk will be sure that they are part of the record of this
proceeding.
Chair Donaldson — We are planning on taking a break at noon.
Staffs Presentation:
Building Official Mike Desorcy presented the variance petition. He stated that he
received a survey of the property and a survey of the site plan. The petitioner is
looking to increase the building height from a maximum 35 feet to 209 feet which is
approximately a 16 story building.
Member Rodis — In terms of this property, it is seven acres of which six acres are
mangroves and one acre buildable property? B.O. Desorcy — I don't have the exact
square footage. The property is approximately 7.35 acres. The buildable portion of
the property, the upland portion, I am not sure what the South Florida Water
Management District has determined what could be built upon. I am waiting for the
petitioner to present to the Board exactly what is buildable and what is mangrove.
They are planning on building on the eastern portion of the property. It will be
adjacent to the Toscana property.
Petitioner's Presentation:
Nathan Nason, Attorney at Law for Nason Yeager Gerson White & Lioce, P.A. (for
the applicant) — We have a few preliminary matters we would like to put on the
record. The first is that three residents of intervener Toscana sit on this Board and
would like those Board members to identify themselves. We formally ask that those
Board members recuse themselves from this proceeding. Town Attorney Rubin —
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 9 of 40
Yes there are three Board members (Mr. Donaldson, Mr. Leinson and Mr. Perilman)
and we did know this going into the hearing. We did request an opinion from the
Commission on Ethics (attached to the minutes as Exhibit "A ") about whether there
was a voting conflict. The Commission concluded that, based on the size of the class
of persons affected, there was no special benefit which is what is required for a voting
conflict. So, the members who reside in Toscana will be voting. Your motion is
denied. Att. Nason — We also understand that one Board member has made
comments at a public Commission meeting indicating that the 35 ft. height limit
restriction would be strictly enforced thereby indicating that member may be pre -
prejudice with regard to this particular issue. We therefore request that particular
Board member be identified and that Board member formally recuse him or herself.
Town Attorney Rubin — I believe that was Mr. Rodis and that is why I went through
the procedure I did before. Comments are made and comments are made all the time.
That is why each Board member did affirm that they will base his or her decision on
the evidence presented on the record. Unless Mr. Rodis wishes to recuse himself, that
motion is denied as well. Att. Nason — I would like to place on the record that the
applicant requested individual audiences with the Board members. We received three
responses, each of which respectfully denied that request but we wanted the record to
reflect that.
Members of the Board again my name is Nathan Nason and today you are going to
hear from me; you will hear from George Gentile, Land Planner; you will hear from
Robert Maschue, P.G., Environmental Engineer and you will also hear from Samuel
Swerdlow, who is the owner's representative, here today. This property was bought
by the applicant in 2012. When we bought it we understood that there was a 35 ft.
height limitation; but we also bought it with knowledge that the City had issued a
zoning letter to our predecessor in title which indicated that the property was zoned
for density of 45 units based upon the acreage. My client knew that, relied on that
and proceeded to purchase the property. My client also knew that there was a
provision in the Town Code that allowed the property owner to seek a variance
providing the applicant was able to establish the parameters necessary to receive that
variance. Respectfully we have done that and can do that here today. We will take
you through the factors that you need to consider today as to whether or not this
variance should be granted. The first is the special conditions and circumstances
exist which are peculiar to the land, structure or building involved in which are not
applicable to other land, structures or other buildings in the same zoning district. This
property is the only remaining undeveloped parcel of significance within the zoning
district and it is peculiarly affected because it is basically inundated with mangrove
growth. Mangroves were not always there. We can tell from the aerials that were
attached to the application at Exhibit "C ". Beginning in 1964 or before that, you can
see mosquito ditches which were cut into that property. As time went on, salt water
intrusion occurred and mangroves began to grow. If you look over the time period
you can see that year by year these mangroves increased to the extent where now
there is only .77 acres of upland. It is not a postage stamp block. It exists in a
meandering pattern along the front part of that property and also next to Toscana.
That exists next to Toscana because there was fill that Toscana used historically that
you will see that came over onto our property, and it created what now is an area of
disturbed wetlands. This property got there over the years as a result of mosquito
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 10 of 40
ditches having been cut and we have been left with a property that is essentially
unbuildable, unless some relief is given to this applicant. There is over 90%
mangrove coverage and the dimensions of the property also warrant relief because it
is a narrow piece of property. It is about 300 ft. wide and it goes back maybe 1100 ft.
There is really no ability to develop that property on the backend simply because of
the regulations imposed by the South Florida Water Management District,
Department of Environmental Protection and also the Army Corp of Engineers.
They all require that any development minimize the impact on those wetlands. That
is exactly what this proposed development does. In fact this is the only way this
property can be developed to its full zoned potential of 44 units as what we recognize
now as a result of the acreage calculation. The only way to do it is to go up, and the
only way to do that is put the development on the front part of the property in an area
that is least impactful to the mangroves. The other thing that you need to look at with
regard to this particular piece of property is that you must find special conditions and
circumstances truly represent a hardship and are not created by any actions by the
applicant. Clearly we did not create this situation and clearly it creates a hardship.
We can't build on this property without relief. We certainly can't build on this
property to the extent of its permitted zoning without this relief and the specific relief
we are requesting here today which is to go up 209 feet on the building. The other
thing that you must look at on your criteria is that literal interpretation of the
provision of the code would deprive the applicant of rights commonly enjoyed by
other properties in the same zoning district, under the terms of this chapter, and would
work unnecessary and undue hardship on the applicant. We submit to you that this is
exactly what we have here. If you look at the property surrounding this proposed
development, you have Toscana. Toscana is heavily developed; three towers which
range up to 18 stories. You also have the property to the south that is a 14 story
structure. In fact, if you look at the RML Zoning District, you will find that there are
many buildings that are developed well beyond the 35 foot cap. We are the last
remaining property and we can't achieve zoning density without the relief from that
cap. Clearly, property rights that we would otherwise enjoy would be cut off by a
strict interpretation of the 35 ft. limitation. In fact, you will hear today, that our
Environmental Engineer approached South Florida Water Management District with
a proposal to do townhomes to the density that is required and South Florida Water
Management District basically told them no. There is no way they would consider
that development. Instead they are going to require minimi zation of the impact on the
mangroves. The granting of the variance will not confer upon the applicant any
special right or privilege denied to any other land, building or structure located in the
same district. Not only does this not deny a privilege, to deny our application here
would in fact deny property rights to us. It would deny us the same rights that other
developers and other property owners have enjoyed in the same zoning district. What
we are looking to do is absolutely consistent with how your RML Zoning District has
ultimately arranged itself. There are very few properties that are at the 35 foot
height. Most of the properties in this zoning district are at a greater height than what
we are seeking.
The next factor; the variance granted is the minimum variance that will make possible
the use of the land, building and structure. This is, in fact, the minimum variance that
would be necessary for us to enjoy the zoning potential of the density on this
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Paae 11 of 40
property. The only way to do it is to avoid as much impact as possible to the natural
systems of mangroves, and that is exactly what this proposed development does. We
have also, by virtue of the design of the proposed building, m inimiz ed impact on view
to Toscana. It is a skinny building as opposed to one that would go back or one that
would be more of a block. That profile would minimi impact to views that come
out of the south tower of Toscana. Thought was given to that as well. Although we
are not here on a site plan approval, we are here to indicate the proposed development
for which we seek this height variance is one to the extent that minimize the view
impact to Toscana. The grant of the variance will be in harmony with the general
intent and purpose of this chapter. If you look at this particular provision and look at
the code, you will find that the code provides that the one purpose of Chapter 30 is to
protect and conserve the value of land, buildings and improvements and minimiz
conflicts among uses of land and building. In order to protect the value and
utilization of our property, this variance is required. Also, in order to minimi the
conflict among uses in this district, it should also be granted. Specifically, this is
consistent with what you got in the RML Zoning District. It is consistent to our
neighbors to the north and the two properties to our south. There are two very skinny
properties in between. We are consistent in what has been developed in the RML
District. Recognizing that many of those properties developed before the 35 foot
height limitation went on, it is nevertheless consistent with what you have in the
zoning district.
Next factor; financial hardship is not to be considered as sufficient evidence in
granting a variance. Hardship alone would not do it, but my client paid 1.5 million
dollars in good faith for this property with a zoning letter attached as Exhibit "B" to
our petition indicating that we were entitled to 45 units on that property. We seek to
develop 44 and we think that is entitled under the code. The question is how can we
do it? The answer to that is we have to go up. There is no other way to do that.
The granting of the variance would not be injurious to the area involved or otherwise
detrimental to the public welfare. We are proposing no additional impact other than
what the property is zoned for in terms of units. We are minimizing impact to the
wetland environment. We are putting the development in a manner which is
consistent with surrounding development. The development is proposed to be high -
end. It will attract wealthy individuals to this area. It will be good for the tax base
and the natural systems. The impact on the natural systems will be minim ized by
virtue of the proposal we have here today. To the contrary, this proposed project will
minimize impact, enhance the area involved and it will ensure that the natural habitat
is preserved.
In closing, I will say this is a reasonable variance that we are asking for. It is the
minimum variance required for us to make use of this property in a legitimate
investment back expectations. It is consistent with what you have in the zoning
district; particularly what is in the immediate proximity to us.
George Gentile, FASLA, Senior Partner, Gentile, Glas, Holloway, O'Mahoney &
Associates, Inc. — We were asked to look at the criteria for the variance request
which, under your Section 30 -40, we are permitted to ask for variances for several
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 12 of 40
items. Your code specifically indicates that we can ask for variances on setbacks and
other issues on the property which also includes height. We are here under that
section today to ask for a variance under the criteria of your ordinance and codes for
the height issue. Mr. Nason went through all of the criteria in his opening remarks; I
am going to touch base on the variance request to allow the maximum building height
to 209 vertical feet. We are already allowed 35 feet, so the variance is in the 174
foot criteria. (Mr. Gentile showed a power point presentation) As Mr. Nason
indicated the variance criteria includes special conditions that exist which are peculiar
to the land, structure and building. On this particular case, the RML Zoning District
allowed 45 units on the property by the letter we received or the previous owner
received. We also indicated that the property is 90% wetlands which include
mangroves, habitat and submerged lands. The buildable area of the property has been
severely decreased over the years, and you will see from our Environmental
Consultant how that has happened. The configuration is unique. It is very long and
narrow and warrants a building type that will not only lessen the impact to
mangroves, but will also lessen the impact to the surrounding properties as far as
views and other issues as they go. The property has actually been site planned, even
though we are not here today for site plan to deal with that.
Under criteria 2, the special conditions and circumstances truly represent a hardship.
Mr. Nason indicated that the extensive mangrove coverage has increased. You will
see in the aerials that our consultant will show that it is created towards the east
through the mosquito ditches, which over the years has severely impacted the
property. We talked about the configuration of the property. The RML Zoning
District encourages other than single family units. You have townhouses in there
which is one product type, but you have the majority of the RML Zoning District
developed into what we would consider mid -rise and high -rise structures. One other
item I do want to make comment is that this request would also be consistent with
your Comprehensive Plan and I would like to go into that further in some of the other
areas. The Comprehensive Plan indicates several items; one is compatibility with
your adjacent and surrounding properties. It also requires you to minimize the impact
to wetlands; particularly the mangroves. It also requires you, as a municipality, to
work with the state, federal and local agencies that have jurisdiction over the
mangroves to allow development to proceed based on their permitting and
authoritative criteria, and that would be the Florida Dept. of Environmental
Protection; on a state level the Army Corp of Engineers and South Florida Water
Management District. Currently Palm Beach County does not have jurisdiction for
wetlands throughout the entire county. That was removed in 1989 by action of the
County Commission and the State Legislature.
Under criteria 3, literal interpretation of the provisions of the Chapter would deprive
the applicant of rights commonly enjoyed by other properties in the same Zoning
District under the terms of the Chapter, and would work unnecessary and undue
hardship on the applicant. The standard density is six units per acre. We are
proposing a 44 unit development which, in the overall acreage, is slightly less than
the 6 units per acre. All of the other properties under that zoning category have the
ability to build to 6 units per acre. Most of them that have been built, with the
exception of a few, have gone to that limit under that zoning category. Other
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 13 of 40
properties have gained approval to build higher buildings then the current height
restriction that is in the RML Zoning District. The photograph that you see here and
the property to our south, the mid -rise building which is 14 stories, have other
buildings that are over the 35 foot height towards the AIA corridor. There is the
Toscana property which has 16, 17 and 18 story towers. That is also in the RML
Zoning district and had the opportunities to build to that. Compatibility -wise the
request is for us to do a 16 story building under the dimensioning that we provided,
which in my opinion is compatible to properties around us; particularly, the pattem
that has happened all the way along S. Ocean Blvd. on the Intracoastal side.
Under criteria 4, the granting of a variance will not confer upon the applicant any
special privileges denied to any other owner of land, buildings or structures located in
the same zoning district. As I indicated, we have property owners that have been able
to build and have built to the six units per acre under the zoning code and there are
numerous buildings in that zoning district that are over 35 feet in height.
Under criteria 5, the variance granted is the minimum variance that will make
possible the use of the land, building and structure. Again, this is a unique property.
For us to be able to build, and, you will hear from our Environment Consultant, that
the wetland mitigation potential on this to allow for reasonable development of the
density as long as we go up and avoid and minimi the impact is about an acre and
one -third of mitigation coupled with almost .77 acre existing upland area.. To go
beyond that we have already had indications from the agencies that they would not
entertain mitigation or activities for that. With that and your Comprehensive Plan to
work with those agencies and to allow reasonable use of the property we are again
asking for the variance under your section 3040. (Showing slide of property
configuration). You will see the green area in the front is the uplands. Currently we
would be going into marginal wetland area to about an acre and one - third, maximum,
and the remainder of the property would be totally kept in preservation all the way
out to the submerged land and the Intracoastal Waterway.
The design of the building (showing slide) has been designed linear to AIA so that
the minimum impact to the neighbors, as far as views to the Intracoastal and views to
the ocean are minimized. I want you to understand that we are not here today for the
site plan, but that we are trying to show you that we are trying to do the minimum in
getting the use of the property to allow this and not to impact and minimize the
impact in the Highland Beach Municipality.
Under criteria 6, the granting of the variance will be in harmony with the general
intent and purpose of this Chapter. The Comprehensive Plan encourages
minimization of impacts to wetlands. Again we are avoiding and minimizing by
asking for this variance. We feel we definitely has the right to ask for it and expect
the city to entertain the variance and allow this to happen. The Comprehensive Plan
also states that you should be compatible to the surrounding areas. You do have
single family and other units in the area. There are townhouses, multi - family, but the
immediate area adjacent to the property has properties that have been built in excess
of 12 to 14 stories and I can't feel that we are not compatible with that as far as your
Comprehensive Plan goes. I want you to understand that your zoning does allow us
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 14 of 40
to ask for the height variance in Section 30-40. Again, the Comprehensive Plan under
your housing element will require future housing development to be compatible with
adjacent existing developments. That is in your 2030 plan. Also in the future land
use element, we are to retain as much of the endangered and threatened plant and
animal species as much as possible. This request for variance is allowing us to do
that. Also in the future land use element, the town supports and will coordinate, as I
indicated earlier, the compliance with the local process; all regulatory requirements of
the state, county and other agencies directed towards mangrove protection.
Under criteria 7, Mr. Nason explained this pretty well in regards to us not using the
financial hardship. We are actually using this main criteria; that is uniqueness of the
property, surrounding development patterns, the minim footprint to preserve the
mangroves which is a requirement of your Comp Plan and opportunities afforded to
other properties in this district. The property configuration is approximately 300 ft. X
1060 ft. It is a very narrow piece of property and very long to the Intracoastal
Waterway. In fact, views at the ground level on all those properties are very much
obscured from any Intracoastal views to the west. Mr. Gentile showed slides of the
Toscana property and the Regency Highland with comparison to their proposed
building.
Att. Nason stated that he would like to make Mr. Gentile's slide presentation part of
this record (attached to the minutes as Exhibit `B ").
Robert Maschue, P.G., President of Solutech Environmental Consultants — I was
involved with this property back in 2010 from a prior potential purchaser. The very
first thing I looked at was the letter that was alluded to granting 45 units with a 35 ft.
height restriction. Taking that into account, we decided that we wanted to do some
pre - application procedures with some of the agencies because we knew with that
designation, we would have to use the bulk majority of the site to get the 45 units
with the 35 ft. height restriction. Our first attempt of a site plan (on screen) as you
can see, given a 35 ft. height restriction with 45 units, would impact the majority of
the mangroves on this property. We took this conceptual site plan to the South
Florida Water Management District and they vehemently said "no way, try again, too
much impact." From that point, what we decided to do was a complete wetland
assessment for the property taking into account that we couldn't go that far into the
Intracoastal Waterway. (Showing survey from 2011) We took a 300 foot square
area and it pretty much outlines the areas of the property we would consider to be
marginal uplands. As you can see it is on a grid pattern. If you go all the way to the
left side of the drawing it is 300 ft. into the property. You have a square section that
we surveyed. Within that square section, to keep it simple for everyone, the shaded
area is what we would consider to be the marginal uplands. Area 1, which is along
AIA, is the vegetated buffer that includes an irrigated section of St. Augustine sod in
the northern portion and two control boxes for irrigation which I believe is being
maintained by Toscana right now. Predominant vegetation within area 1 on the map
is cabbage palm, Australian pine, sea grape, oak, saw palmetto, holly and Brazilian
pepper. These are the types of species we would expect to see in a severely disturbed
wetland community. As you can see, area 1 also extends into the property from those
irrigation boxes south, so hopefully I can show you why that is. (Showing aerial
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Patze 15 of 40
photograph from 1975) As you can see, substantial fill has been placed on that front
300 feet of that property, basically encroaching from the Toscana development to the
north. Those areas that you see that are white is fine sand that has been placed on the
property. You can also see the mosquito control ditches that Mr. Nason alluded to
earlier. If you take a look at this aerial, you can see that the disturbed area of the
property is the extreme east end of the property as a result of the placement of this fill
in 1975. The types of vegetation that have grown in here are the types of vegetation
that we would see as an evasive exotic encroachment. (Showing aerial of 1986)
This is after everything grew back in. It is hard to tell with this aerial but if you look
at the mosquito control ditches to the west, you will see that there is a general pattern
to the vegetation. That is a mangrove signature. When you look further over to the
east, you will see that the vegetated pattern is such that it looks fluffy; almost
Christmas tree like. The reason for that is it is primarily Australian pine that invaded
the area and has been filled in during the Toscana project. As a result of our
discussions with the South Florida Water Management District and the Florida
Department of Environmental Protection, what we attempted to do here is avoid and
minimiz the impact to the mangroves as much as possible, providing for 44 units, or
at the time when I was discussing 45 units, with a minimal impact to the wetlands. I
believe this proposal does precisely that. I would like to thank you for your time.
Nathan Nason — I would like to have Mr. Mashue's report made part of this record
(attached to the minutes as Exhibit "C" ).
Samuel Swerdlow, owner of parcel known as Golden City — My father and I bought
this property in 2012 when I relocated from Israel to the United States. As the three
previous professionals just testified, the hardship and the restriction of the land are
why we are petitioning for this variance. In order for us to achieve the same density
as granted to any other properties within the RML Zoning District, we must build
vertically. I will show you today that Golden City, the proposed building, is not a
dramatic change to the area. We are proposing to build two connected buildings
containing only 44 units. The proposed building construction is 12% gross density.
A very small density of the parcel. Each floor contains only two units of
approximately 3,000 sq. ft. This means a maximum of four units per floor across
both buildings. All the units are oriented west to east as you can see on the aerial. If
you observe on the model, the building is very minimal in its depth and is extremely
narrow. The depth of the structure, not including the parking area, is 59 feet. Just to
give you an idea, this is the same depth as a classic single home residential villa. The
same style south of the proposed project. In comparison, we can only look at
Toscana which is four to five times deeper. You can clearly see that on both the
picture and the aerials. We seek to minimalize the impact and this minor depth of the
proposed building achieves that. This design minimizes the impact to the mangroves
and does minimize, as much as possible, the views to Toscana. Be certain that
Golden City will not disturb the impact and views of neighboring properties. For the
owners of Toscana Southern Tower who are afraid of losing their privacy, I can
guarantee you that both elevation, north and south of the building, have almost no
windows. What this means is there will be no direct views from the proposed
building and the Toscana southern tower. On top of that, Golden City being so
narrow, so close to A 1 A and on the same line as the southern tower of Toscana,
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Pate 16 of 40
minimizes any view loss. Those here who think that their view is going to be
impacted, are the ones that have solely a view to the north. To my knowledge, there
are no units in Toscana who have uniquely a view to the north. You can see that
because Toscana orientation is west to east.
This project will not impact protected wildlife. We undertook a protected species
assessment report on this parcel. The report was performed by David S. Whitney, a
Senior Environmental Scientist of the firm Universal Engineering Sciences. I quote
from this summary of his investigation. "Based on the result of the protected species
conducted, there was no evidence of protected wildlife observed on the subject
property at the time of the assessment. It is our opinion that the development of the
subject property should have minim effect, if any, on any species of protected
wildlife."
This project will not cause congestion of traffic on A IA. The density on terms of the
units, does not increase with this variance. It still is a low density variance. AlA is
fully equipped to handle such a limited number of travels per day and a traffic study
can and will confirm this. This variance is not requested for the sole purpose of
financial benefit. The existing hardship found on the land makes us go vertical.
Every real estate professional will tell you that building higher increases the cost, not
to mention the complexity and the engineering challenge that comes with it. If we
could achieve our unit density by any other way than a vertical variance, we would
have done it. The fact is there is no other way but a vertical variance.
On Tuesday we had a site visit and I would like to address a question that was asked
by Member Rodis. He asked if we knew about the town code and the height
restriction before buying the property. I knew I had the right to build three floors. I
had the letter from the town, given to the previous property owner that said the
property was zoned for 45 units. I also knew that I had the right to request a variance
if unusual conditions existed. As we have shown today, this is the case. We relied on
all of this information when we purchased the property. This is a unique parcel of
land equal to none in terms of its hardship composition. This land satisfied the
condition set forth in the code for a variance. So my answer to your question,
Member Rodis, is yes. I knew about all of these rights.
Now let me explain the three benefits if this variance is granted. Number one:
Golden City will increase the value of neighboring properties. This project is by
design, a luxury project with finishes of the highest level. The price of each unit will
be high and therefore will attract residents of high quality. When there is a
substantial investment towards development, this is always a positive thing for the
town and most of all for its citizens. A good example of this is Toscana. Since it was
built, property values have increased north and south. Number two: Golden City will
increase the town revenue. Unquestionably, this project will increase the town's tax
base. It will be marketed to an individual who will make the town their home.
Number three: Golden City will preserve the majority of the mangrove community
and the environment. The building configuration as proposed is the least impactful
on the trees, the vegetation and the mangrove community. It will impact less than
four percent of the mangrove density. Also, the majority of the mangroves impacted
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Paze 17 of 40
are low quality mangroves that have already been disrupted by the development of
Toscana. This variance preserves the majority of the good mangrove habitat and uses
more of the already disrupted mangrove community. This preservation will forever
serve to the pleasure of hundreds of neighbors who will be able to enjoy this benefit
from green views.
To conclude, this project is compatible with surrounding environment and presents a
viable development for the town of Highland Beach. This project will benefit current
and future residents of the town.
Att. Nason is making the Universal Project report part of the record (attached to the
minutes as Exhibit "D "). Town Attorney Rubin asked Mr. Nason to give copies to
the Interveners.
Jim Brady, Intervener Attorney for Toscana Corp — I was asking Mr. Rubin how you
would like to handle the objections. For example, the record that was just introduced
from which Mr. Swerdlow read would be gross hearsay. It is not cooperative of any
other direct testimony and therefore it is not admissible. So, we would object on that
basis and it shouldn't be taken into account. The person who did whatever study is
not here and you are not getting the benefit of direct testimony; nor do we have the
benefit of cross examination. Both things are important to us. Town Attorney Rubin
— Understood. Mr. Nason, for what purpose is this report being submitted. Is it
because he quoted from it? Att. Nason — Because he quoted from it but also because
it goes with his state of mind with connection with the property and its potential uses
and whether it would have any impact to the natural species that do not exist on the
property. He has personal knowledge of this property. Town Attorney Rubin — You
are saying he relied on this report. Is that what you are essentially saying? Att.
Nason — That is what I am essentially saying. Town Attorney Rubin - We are not
bound by formal rules of evidence. We will accept it for what it is. The Board can
give it whatever weight it wishes to. Thank you Mr. Brady. Att. Brady — Does the
Board take quasi-judicial notice of the city code? _Town Attorney Rubin — Yes, you
don't have to introduce that. Every witness who testified needs to stick around
because as part of the Interveners case they may question staff or they may question
the applicant's witnesses.
Nat Nason — We have minimized the impact to this property to its natural systems;
particularly there were some questions about view. If I can (pointing to an area on
the board), if you look to the building configuration of Toscana South, the
configuration is such that it is constructed with a view towards the southwest. We
have attempted to place our building to the south and to get it up towards the front of
the property to minimize the impact to the Toscana south tower. I am not saying that
there won't be some impact to their views. There will be, but that should be expected
with regard to zoning density which is allowed in this particular zoning district. That
is one point I wanted to make in closing. That was perhaps not adequately explained.
We are doing everything we can with regard to this project to maintain our property
rights but to minimize impact not only to the environment but to our neighbors in a
manner that is consistent with the uses that are being made on property in the same
zoning district by our neighbors.
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 18 of 40
Meeting reconvened after a short recess.
Acting Town Clerk Oakes took a roll call to reestablish quorum. Members present:
Member Weitz, Member Rodis, Member Leinson, Member Perilman, Secretary
Weiss, Chair Donaldson and Town Attorney Rubin.
Intervener's Presentation (Toscana HOA Corporation):
Jim Brady, Attorney for Toscana Corp. — I am going to take the opportunity, with the
Chair's permission, to ask a couple of questions of Mr. Gentile and Mr. Swerdlow
and will tie that into my presentation later on. The rest of my presentation will be my
introduction, Ms. Mendelson's testimony, direct evidence, and then I will come back
and try to tie it all in, in terms of what the law is, what your regulations are. I will
then sit down until we have rebuttal at the end. Question to Mr. Gentile — Is the six
units an acre a maximum density? Mr. Gentile — Yes it is. Att. Brady — And there is
no minimum density in the regulation. Question to Mr. Swerdlow — Did you and
your father do a windscreen survey of the property before you bought it. That is, did
you see it with your own eyes? Mr. Swerdlow — Yes we did. Att. Brady — When
you saw it, what year was that? Mr. Swerdlow — That was in 2012. Att. Brady — You
and your father knew at the time that you purchased the property that the mangroves
were there. Is that correct? Mr. Swerdlow — We knew at the time that there was the
right zone by the city by a letter that allowed 45 units on the property. Att. Brady —
Is the answer, yes we knew the mangroves were on the property? Mr. Swerdlow — I
am no expert in trees and vegetation, so I had no idea. I cannot say in hindsight what
I knew or didn't know about it. Att. Brady — Did you pay 1.5 million dollars for the
property? Mr. Swerdlow — That is correct. Att. Brady — I would like to call Ms. Ilyne
Mendelson up as our first witness, Mr. Chairman.
Ilyne Mendelson, 3740 S. Ocean Blvd #1210 — I, together with my husband Steven
Turk, own Unit 1210 at Toscana South Condominium, 3740 South Ocean Blvd. As
you may know, Toscana is a Homeowner's Association comprised of four
associations; Toscana South, Toscana North, Toscana West and Toscana East.
Toscana South, Toscana West and Toscana North are three residential condominium
buildings lying immediately north of the subject property, which is before you today,
adjacent to A 1 A on its westerly A 1 A line and east of the Intracoastal Waterway.
Toscana East is the Toscana Beach Club building on the ocean side and the east side
of AIA in Highland Beach. My husband and I acquired the unit in 2004 and we have
been permanent residents since we moved into the unit in January 2005. Relevant to
the location of the property described in the Golden City application, our unit is
located to the north of the subject property. The subject property is visible from our
unit. As such, I am personally familiar with the subject property as a result of daily
observation. That has been the case since I first became familiar with the Toscana
development in 2004. The Golden City property is located similarly to the Toscana
residential development in terms of its orientation to AIA and the Intracoastal
Waterway. Moreover I am personally familiar by virtue of daily observations with
the unimproved property immediately west of Toscana South and east of the
Intracoastal Waterway. The property immediately west of Toscana South and
connected to the subject property is a protected area owned by Palm Beach County.
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 19 of 40
Both properties are heavily forested with what is commonly referred to as mangroves.
Both properties contain other types of flora fauna and vegetation. The mangroves
have been on the subject property for many years. Based upon my personal
knowledge from observations of these properties, including the subject property, I can
tell this Board that the subject property has been in essentially the same condition
relative to the mangroves and other vegetation and flora since at least 2005. Further,
I consulted the Palm Beach County Property Appraiser's website and printed out
aerial photographs using the layering function going back in time from 2011 through
2004. The aerial photographs confirm my personal observations. Will the Chair
accept copies of the aerial photographs? (attached to the minutes as Exhibit "E ")
Chair Donaldson — Yes. (Copies were distributed to Board members). Mrs.
Mendelson — Thus, the Golden City property in that regard is not unlike the property I
described lying immediately west of Toscana and owned by Palm Beach County. In
addition, I acquired a copy of the Deed of Conveyance by which the applicant before
you this morning acquired the subject property. It is dated April 22, 2013 and
recorded in the public records on April 30, 2013 at Official Records Book 25986,
page 939 of Public Records of Palm Beach County, Florida. I am submitting a copy
of the deed as further collaborative evidence of my testimony before you this
morning. Will the Chair accept the copy of the deed? (attached to the minutes as
Exhibit "F") Chair Donaldson — Yes. Mrs. Mendelson — It is also upon further
investigation of the Palm Beach County website, I noted that Golden City had
received the property in April of 2013, that it was sold to them by Mr. Swerdlow who
received his deed to the property in February 2013. I am opposed to the granting of
the requested variance. Thank you for your collective attention and the opportunity to
address the Board.
Att. Brady — Mr. Chairman, I am not going to take the thunder of your fine attorney
but I will tell you what my view is of the law with regard to variances having been a
city attorney for an aggregate of about 44 years and a practicing land use attorney
doing complex land use litigation for about 42 years. A variance is something the
government can give when the applicant shows, by substantial competent evidence in
the record, that the applicant has met all of the applicable and standard criteria set out
in order to get the variance. Notably, the applicant can't come to the problem and
then claim the problem as the basis for the variance. Of course as your regulations
reflect, economic hardship is not a criteria on which an applicant can rely. It is the
applicant's burden to prove to you that it has met all of the objective standards and
criteria set forth in the code and adopted by Florida law. In this case, the applicant
has simply failed to do that. Therefore the variance should not be granted by this
Board even if you like the architectural style or you like the flavor because you are
sitting in a quasi-judicial capacity. You are the judge and you have confirmed that
you will rely on the evidence before you and the evidence before you simply doesn't
support the application. When you look at the criteria that Mr. Nason went over very
well, are there certain special conditions and circumstances concerning this property
that distinguish it from all the other properties. You can turn and look at the aerial
photograph and answer that question. The answer is no. The mangroves are all along
the Intracoastal Waterway in that area. He evidence before you is that the applicant
paid 1.5 million for a little over seven acres. That is a pretty good deal in anybody's
book. Mr. Gentile has told you that the six units an acre is the maximum; not the
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 20 of 40
minimum. You know from reading the criteria with Mr. Nason, that it is the
minimum necessary to make the land useable in the applicant's hands. The minimum
is certainly something less than the 209 feet; 174 feet more than the law allows. I
submit to you that this is really a request for rezoning; the creation of another zoning
district disguised as a variance based upon some kind of hardship. Simply not the
case. I am reminded of the fellow who took out the insurance policy and then
submitted his house to arson. He then went to the insurance company and collected
his insurance monies for the house that he burned down, and then he came back and
asked for sympathy because he was homeless. This is the same situation you have
today. The applicant comes to the property knowingly with the obligation to
investigate, whether there was an investigation I don't know; but now comes to you
I and says that, because we have all these mangroves, the only thing we can do to get
44 units on the property is to go vertical. I agree, the only thing they can do is go
vertical. A fact known to the applicant when they purchased the property. It came to
the problem and it now comes to you and asks for your sympathy because it came
with the problem. They say that a financial hardship is not part of their presentation,
the platform. I will tell you from my experience in the land use area, the cost per unit
if they could get what they are asking for makes this the best flip deal in Florida and
that is what it looks like to me. Take advantage of the opportunity, ask for everything
you can get that you are not entitled to and then see what you can do. As I said to
some of the other people maybe I should have seen the property first and bought it.
Be that as it may, that is personal aside. Please forgive me. The applicant, and this is
the fundamental basis of the applicant's argument, this is his platform. If I had seven
acres of dirt, and if I applied the code which allows me the maximum of seven units
per acre then I could get 44 units. The fact that I have 7.7 acres of dirt, I am still
entitled to get the 44 units. It simply doesn't work that way. If it did everybody
would be coming in for the maximum and we would have variance requests every
single day. You would be in hearings every single hour. That is not the way zoning
law works. Your criteria says that it is the minimum variance that makes possible the
use of the land, building or structure. I think your backup shows that if they put
townhouses on the land they could get eight townhouse, five townhouses. It is a
question you can ask yourself and I think you can take judicial notice of this. Instead
of sixteen stories, could they build four stories? The answer is yes. If you can build
sixteen, you can build four. Could they build three? If they could build three that
would be 35 feet in height and that would be compliant with the regulations. If they
can build, use that property reasonably at 35 feet then they are not entitled end this
Board should not grant the variance because to do so is in contravention of you own
law and your duties. I am going to give you a typical example of a variance on A IA.
This happened years ago. I come in and buy a piece of property of 7.7 acres. I am
happy, going to build, getting my building permit and in the process the DOT comes
along and takes the west 25 feet of my property. At that point, because there is an
outside influence and the government came in and condemned my property, perhaps I
have the basis for a variance if I can't use my property that is left over. That is
minimal variance reasonable use. In this case there is no taking of the property and
the major words "investment back expectations" have no place here. There is no
vested right, no building permit issued. I haven't heard from the one who has the
burden to tell you that the applicant has gone to the South Florida Water Management
District or any other agency, and asked for a permit and gone through whatever
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Wednesday, November 19, 2014 Paae 21 of 40
available variance process there is, if any, at that level. That is the burden of the
applicant. It is not the burden of the community to come here and do what the
applicant should have done and then show you the result of what the applicant could
have obtained if the applicant did what it should have done. With that Mr. Chairman
I thank you so very much.
Intervener's Presentation (Mr. Andrew Robbins):
Harvey Over, III, Partner for Shutts, Bowen, LLP (Attorney on behalf of Andrew
Robbins, the property owner directly across the street from subject property) — It is a
single family home lot that is vacant and due east from the subject property. At 209
feet the proposed condominium complex is the equivalent of a 20 story building. I
just want to point that out. While they are proposing a 16 story building, 209 feet is
what we would typically associate with about a 20 story building. I would like the
Board to bear that in mind. The proposed project will materially and adversely harm
Mr. Robbins; the value of his property; the quiet and enjoyment of his property and
the resale value of his property. Granting of the variance would effectuate a taking of
Mr. Robbins property by the Town. Mr. Robbins purchased his property with the
expectation that a building of no more than 35 feet would be built across the street
from his property. Not in his wildest dreams, or should I say nightmares, that a 209
foot building shading his home, blocking afternoon sunlight and preventing him from
witnessing a sunset would ever occur. The applicant is seeking six times the height
permitted by the town's code. I also think, and I would like to make the record
clear, that the applicant has somewhat misled this Board regarding the other
developments in the area. There were several statements admitted this morning that
there are other projects within the RML district that have achieved greater than a 35
ft. height. That is absolutely true; but to my best knowledge, most, if not all of those,
achieved height greater than 35 ft. under a prior different zoning code. Not through
the granting of a variance by this Board. In fact, if you have lived here for any length
of time and 1 have, not in your town but in southern Palm Beach County, I was born
here 46 years ago, I remember very well what happened. When Toscana was built, it
was built after protractive litigation with the Town and the Town Council very
affirmatively and intentionally changed the code on the subject property so this would
not happen again in the future. I want that to be clear. Others have not to my best
knowledge received the extraordinary relief that the applicant is seeking from you this
morning. As you well know, prior to your Board granting a variance, the applicant
has to present competent substantial evidence that meets all eight standards for
granting a variance. This applicant has failed to do so as Mr. Brady has already
pointed out. This fictitious created hardship. The applicant purchased the property
with full knowledge of the 35 ft. height limitation. The applicant has no reasonable
investment backed expectations which is the Supreme Court's Litmus test of
exceeding 35 ft. in height. This town is under no compulsion to grant the variance
and if the town were to do so it would only expose the town to the legal terms of
adversely affected property owners like my client, Mr. Robbins. The applicant is
attempting to contort the town's code to suggest that, because the applicant cannot or
simply does not want to meet one portion of the code's requirements, the town should
provide some additional extraordinary relief from other provisions of the same town
code. The applicant is not seeking the minimum variance that would make use of his
land possible as standard five requires. In fact, just the opposite. The applicant is
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Paae 22 of 40
seeking the absolute maximum variance possible. The applicant already has more
than a reasonable use of this property. The applicant simply want to make much
more money and wants to do so at the expense of my client and the other taxpayers in
this community. For these reasons, I urge the Board's denial of this variance request.
I would now like to a lot the remainder of our time to my colleague and partner
Alfred LaSorte, Jr., Partner of Shutts & Bowen, LLP who is going to introduce some
additional testimony.
Alfred LaSorte, Jr., Partner of Shutts & Bowen, UP — I would like to call Andrew
Robbins to give some very brief testimony.
Andrew Robbins, 3821 S. Ocean Blvd Att. LaSorte — Mr. Robbins do you own
property here in the vicinity of the property we are talking about today? Mr. Robbins
— Yes I do. Att. LaSorte — When did you buy it? Mr. Robbins — Approximately six
months ago. Att. LaSorte — How much did you pay for it? Mr. Robbins — 3.75
million. Att. LaSorte — Did you consider any other ocean front lots before landing on
this one? Mr. Robbins — Several. Att. LaSorte — Tell me what, if any, differences
there were between this lot and other lots that caused you to choose this one. Mr.
Robbins — I passed on the lots directly across from Toscana in search of a home.
Those lots were 1 million dollars less in value. Att. LaSorte — The price that you paid
for your lot was 1 million dollars more than the lots across the street from Toscana.?
Mr. Robbins — Roughly, yes. Att. LaSorte — What was it that caused you to consider
this lot which was at that time a maximum of 35 feet in height and primarily
mangroves across the street to the west? What is it about that situation that caused
you to feel that your lot was worth 1 million dollars more than other less advantage
lots? Mr. Robbins — I didn't have the high rises directly in front of me; peaceful; not
all the people that would be in that building; actually preserve the mangroves and
peaceful sunsets. Att. LaSorte — What is your plan with this property? Mr. Robbins —
To build my dream house. I was born and raised in Coral Springs, Florida. Att.
LaSorte — Would this constitute your life savings that you put into this property? Mr.
Robbins — Correct. Att. LaSorte — Do you feel that you would be damaged if the
variance the applicant is asking for is granted? Mr. Robbins — Without a doubt.
Financially my property would decrease in value. It would be much harder for resale
if I chose to sell. There are endless reasons. Att. LaSorte — Did you rely on the
conditions and the limitations on building that the code has for the property across the
street in your decision to pay that substantially higher sum for that property? Mr.
Robbins — Correct and we also went to Town Hall and looked at the zoning map
which was at 35 ft.
Al LaSorte called Mr. Swerdlow for cross examination. Att. LaSorte — I would like
to ask you a few questions about the due diligence that you and your father and your
company did in deciding what to offer and pay for the property that we are talking
about here today. Have you ever developed any other condominium projects? Mr.
Swerdlow - Before answering your question, for the record I said the property was
purchased in 2012. The negotiations began in 2012 and was titled in 2013. This is
my first condominium project within the United States. Att. LaSorte — You have
bought other land that you developed into condominium projects? Mr. Swerdlow — In
the United States, No. Att. LaSorte — As part of your due diligence process did you
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 23 of 40
attempt to determine what the cost per unit would be for the land and factor that in
whether it was a viable deal if you go forward with it? Mr. Swerdlow — Can you
repeat the question. Att. LaSorte — Let me ask you a different question. You were
here when the 3200 property was discussed. In your due diligence that went into the
statement in your application that you intend to be above market here at $650 to
$1,000 per foot, in order to come to that determination did you look at other potential
condominium projects that would be your competition to see what they were
charging? Mr. Swerdlow — When doing the due diligence, I knew that every parcel
had the right to build. This is the right that every property owner enjoys in the Town
of Highland Beach. To your question, there is an established market value and
neighboring properties such as Toscana and others were used to establish market
value. Att. LaSorte — Were you aware when you purchased this property in 2013 of
what was going on with the 3200 property; there development plans to build a high -
end condominium right down the road from you? Mr. Swerdlow — I was not aware of
this at the time. Att. LaSorte — Were you aware that when they paid 5 million dollars
for their property that they were paying in essence around $225,000 per unit? Mr.
Swerdlow — I was not aware of that. Att. LaSorte — Would you agree with me sir,
that in your experience building condominiums elsewhere, that is in the ballpark with
what developers such as yourself will pay for units in a high -end area such as
waterfront in South Florida? Mr. Swerdlow — We are here talking about the rights to
build. Att. LaSorte — Excuse me sir that is not to my question. Were you not aware,
that is a simple question yes or no, what other developers were paying per unit for the
right to build 20, 30, 40 condominiums in South Florida along the water? Certainly
that was part of your due diligence. Was it not? Mr. Swerdlow — I was aware of
what was going on in the Town of Highland Beach, but again it is not about what one
neighbor pays or what the other pays. It is about the right to build. Att. LaSorte —
Fair enough. Would you agree that, if you were granted 44 condominium units for a
purchase price of 1.5 million dollars, you will have gotten those units for around
$34,000 per unit? I have a calculator if you don't trust my math. Mr. Swerdlow — I
trust your math but again I am not doing the accounts of my neighbors in the city and
not doing the accounts of any property. If you are doing your math, maybe that is the
case. Att. LaSorte — Would you agree with me that if you were to build the eight
units that your own application says you would be permitted to build that it would
work out to about $187,000 per unit? Less than they paid down the street at 3200 for
theirs. Mr. Swerdlow — Why would my property have less rights than any
surrounding property. Att. LaSorte — Is that a yes? I have nothing further.
Mr. LaSorte — I would like to sum up just a little bit. I have about three minutes of
comments. I have handed Mr. Rubin our packet of documents (attached to the
minutes as Exhibit "G ") which consists merely of corroborative documents that have
to do with the purchase price of 3200 down the street at 5 million dollars, a letter in
their 3200 application that confirms 22 units for that price and similar information for
this property showing 1.5 million and the build ability of eight units. You can do the
math yourselves. It comes to $187,500 per unit less than is paid down the street. I
would like to adopt rather than repeat everything Mr. Brady so eloquently said. We
believe that of the eight requirements the burden, keep in mind on the applicant, has
not been met as to requirements, two, five, six, seven and eight. This is not going to
be a harmonious project without damage to the neighbors. The talk was made during
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Wednesday, November 19, 2014 Page 24 of 40
the presentation about the neighboring properties to the north and south. What about
the property to the east. What about my client's property. The evidence here is that
he paid a significant seven figure amount for the fact that his property, unlike all the
others, is in front of property that could never exceed 35 feet. We have all seen
homes along AIA there. Giving him a beautiful view of a sunset for his dream home
that he spent his life savings to try and be able to build here. That will be taken away
from him. That in of itself disproves at least one of the elements which is the
harmony and lack of injury to the remainder of the property. The minim variance
that would be needed would be a variance, if in fact the eight units that the applicant
admits they could build, couldn't be built unless you gave them some relief. There
has been no evidence here, because there can't be since it simply is not true, that the
applicant isn't right now capable of building eight units on that property. You saw a
plan where the Environmental Engineer indicated that they tried to build (you saw
that townhome plan that went all the way out near water) which of course was shot
down. What you didn't see was a plan for eight townhomes or eight single family
homes within the upland area on which they now want to build 209 feet for 44 units.
We submit that those could be built and if they could be built, that is a second
dispositive reason why this variance must be denied because the code requires that a
variance could be granted only if it could be demonstrated that there is no use of the
property. It is not to absolute pack as many units as you can into the property use, but
no use of the property? That would mean the eight units that they admit could be
built, couldn't be built. On that basis alone, it needs to be rejected. Most
importantly, from our client's standpoint, this self - created hardship of buying low to
sell high and God Bless them for trying; it is the American way and maybe under
other circumstance it might have been appropriate to do it. It is not appropriate here
because from our client's standpoint it will devastate the value of his property that he
paid significant sums to attain and we ask that the variance application be denied. I
want to be sure our documents are submitted into the record.
Town Attorney Rubin — Mr. Nason, did you want to question any of the Intervener's
witnesses because I think that would be appropriate before we move into the public
statements?
Att. Nason — Mr. Robbins, when you purchased the property were you aware of the
provisions in the zoning code that allowed property owners to seek variances? Mr.
Robbins — Yes I was. Att. Nason — Were you also aware that those variances
included, not only setbacks aside, but also variances that would impact the height of
structures? Mr. Robbins — Not to height, no. Att. Nason — Are you aware that the
variance provision expressly allows for variance of heights as you stand here today?
Mr. Robbins — I am aware now. Att. Nason — I have no further questions of this
witness.
Chair Donaldson — We will now move into questions and comments from the Public.
This will be limited to three minutes. We have a sign -up sheet that people signed in
on at the beginning of the day. We are going to go down through this list. Some of
you may choose not to comment. Don't feel obligated. We will just keep moving
down the list until we find someone who would like to. Some may be from the prior
petition and decided not to comment. What we are going to do is go through these
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 25 of 40
and when they are finished, anyone who did not sign up and wishes to be
acknowledged, they will be extended a three minute period to ask questions and make
comments. Pardon me if I mispronounce any names.
Public Comments:
Mamie Glasser, 3720 S. Ocean Blvd — I am here as a concerned Highland Beach
resident. I want to share my thoughts and observations with the Board. I am strongly
opposed to the application to increase the height and number of stories of the
proposed development. Several years ago the Town Commission correctly saw fit to
revise the regulations to limit the height of buildings in this zoning district to 35 feet
or three stories. To approve this application would, in effect, nullify those well
thought and appropriate regulations. Based upon the information provided, I
conclude that there is absolutely no legal hardship present. The applicant merely
wants the town to grant a multi - million dollar gift to it in the form of allowing
construction of a high -rise building that will materially and forever alter the nature of
the town, harm it's residents and irretrievably impact the sensitive ecological balance
present in the mangrove area abutting the Intracoastal Waterway. The application
should be denied and I would like to give you some reasons why. One, the current
height restrictions are there for good reasons to preserve the nature of Highland
Beach. Two, the subject property is in the central area of the town. A massive
construction project will interrupt traffic, create noise, generate dust and debris and be
a traffic hazard for years. Three, it will materially impact the environmentally
sensitive mangrove area. A matter that needs a close look and will be impossible to
reverse if allowed. The town needs to preserve its priceless nature heritage. Four,
Golden City sites, the present array of buildings is a reason for its application to be
approved. To the contrary, the heavy concentration of condominiums in the areas is
why it should not be approved. The town is already built out. A 1 A is stretched to its
limits. Another major turnout for vehicles can only serve to hinder traffic and create
pedestrian and bicycle accident possibilities. Five, the period within construction
going on is a massive negative impact on all of Highland Beach as well as the
essential traffic that presently transits AIA, 24 hours a day, all year long. Six, has
beach access for this building been considered. Its residents and guest will need to
cross AIA. Highland Beach already has major auto and pedestrian issues. This
proposal will only exasperate an already perilous condition. Seven, Golden City is a
sophisticated out -of -town investor. They knew exactly what they were buying when
they acquired the property. Unlike the present taxpayers of Highland Beach, they do
not live in the boundaries of what they have acquired; nor will they be required to
deal with the aftermath of their ill- considered proposal. For all these reasons and
many left unsaid, the Board of Adjustment should deny in its totality, the application
for variance. Generations to come will cherish the wisdom and foresight of the Board
of Adjustment and how it thoughtfully preserved the tranquility and environment of
our beloved town.
Donald Rex, 3805 S.Ocean Blvd. — My wife and I moved into Highland Beach 45
years ago. We have seen the town grow. It is still a great town and I expect it to be
great for years to come. The question I wanted to bring up was amply covered just a
few minutes ago when what could the land that they bought be used without going up.
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 26 of 40
What is wrong with 35 feet? The plan that they have, the ones that they have shown
us in the picture, they have 300 feet across the front and they have gone back 240
feet. We have not seen anything that would indicate what one might do with that
piece of property if they could get a variance to cut down the mangroves to use 300 x
240 feet. What could they do with it? It would seem that you could make a find
profit on a piece of property like that without going over the 35 foot limit. There is
no hardship to them. They have just chosen to do something different. They make it
sound like that the only thing that they could possibly do is go up. It isn't and the
land usage gentleman that was here before that showed something that went way back
into the mangrove has nothing to do with today. Take the land that they are planning
to use, 300 x 240 and make a heck of a profit. I am sure of that and keep the town a
lot more like we would all like to have it.
Steve Terk, 3740 S. Ocean Blvd — When I look at this project I see that there has
been no change in the property condition or the zoning since it was purchased by the
current owner. The developer should or would have known had he done research into
the property, what he could build on the property, based on the land condition and
current zoning rules including the claim narrowness of the property. None of this has
changed since they have purchased it. They have no hardship. They knew what they
were purchasing and knew, or should have known, the rules and what can be built. It
should not be the town's responsibility to create a windfall for this developer. If a
windfall is created, it will be to the detriment of the existing residents. A high rise
will be restricting light and air to many residents of Highland Beach. Zoning for this
property has been in place for a substantial period of time and has not changed. The
application does not mention anything about the developer's ability to get a
reasonable return with the existing height restrictions. I believe that based on very
conservative assumptions, including the actual land costs that the purchaser paid, that
he could get at least a 25% return. I will share my assumptions with you. Assuming
he can use only .77 acres as they claim in their variance request even though the
building that they set forth is using more than .77 acres; assume that they can actually
build on one -third of that it is 11,230 sq. ft.; assume they can go up three stories that
would give them 33,000 sq. ft.; assume they can build only those eight units that they
said they could build, that means that if you would assume construction cost of $200
a foot which I have been told is reasonable, and that the land cost $44 per foot that
means that the total cost for these eight units, assuming that is all they can build, will
be $244 a foot; assume that they can sell this thing at $300 per foot, which I think is a
very conservative number in Highland Beach, they would make a $56 profit which is
greater than a 25% profit. If they would get more in sale price or be able to build
more units than they say they can build, they would make more money. For example,
if you look at the two attached houses directly south of Ocean Cove that were built
around 2010, those units sold for an average price of around $320,000 which was five
years ago. If you look at what Seagate sold for, the worse units at Seagate that do not
face the water and are on the ground floor and look at the back sold for $450 per unit
whereas the average unit back there on the ground floor sold for $600 per unit; so
therefore $300 is very conservative.
Thomas Kaminski, 3740 S. Ocean Blvd. — I am a retired physician from Western
Pennsylvania who moved here three years ago with my wife Marcia. We purchased
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 27 of 40
property in Toscana South and I volunteered to speak today. At our HOA meeting
they asked for volunteers and I am glad to talk about this. One thing which nobody
brought up is the close proximity of this proposed building to the one, two and three
stack. They are talking about building 12 feet from the property line. The Toscana
south tower, the one stack, is approximately 20 to 25 feet from our property line
which means the two buildings are going to be literally smacked together; about 37
feet is what I estimate. The fact that they are saying that it has no impact on Toscana
South is total baloney because when you build two buildings that close together, their
building is going to be as tall as our building and you are going to wipe out the view
of everybody in the one stack and two stack going south. All those apartments along
the backend have terraces and those terraces have a wide panoramic view. They look
towards the Intracoastal; they look south and also towards the ocean. You will wipe
out the ocean view for the one, two, three and four stack. For them to say that they
are minimizing the effect on the community and other properties nearby, I don't know
where that comes from. There is no documentation on that. I don't think they went
and looked at any of the buildings in our building. What has been said up to now,
that they bought the property knowing what they can build on it, and they had a letter
that the previous buyer had doesn't mean a thing because he did not have a letter
given to him when he bought the property that he could put in 45 units. You can't go
by what the previous owner had. A lot of the things that they have said is just here
say. They have no documentation. The two houses built right here (pointing to map)
with all the construction vehicles and the backup of traffic last week alone, right in
front of Toscana, right in front of my unit, there were two automobile accidents. One
was an owner from Toscana pulling out. He got slammed by a car and had to go to
the hospital. Somebody was pulling out of the construction area, stopped and backed
up traffic and there was a collision. I want to impress on everybody that everything
that has been said up to now from Mr. Robbins and Toscana, I concur with.
Robert Pershus Attorney on behalf of Robert Kennedy who is a resident on the ocean
side at 3813 S. Ocean Blvd. slightly to the south of the project. His property will be
impacted. It will be hit financially as you have heard before. It disturbs the
enjoyment of the property and the ability to see out to the west. In fact it is putting a
200 foot wall in front of the property so that it is really material to the enjoyment of
the property. In addition, it was noted that they keep saying 16 stories, it is really a
good 20 story building because these are elongated or enlarged heights for the typical
floor. What they have done is make it more attractive and in the ability to sell, they
make the units larger and higher and then they say it is only 16 stories. By that
theory, they can make this a 300 foot building and still be 16 stories. That is a
fallacious argument in terms of it is only 16 stories. It is another fallacious argument
that in fact they didn't know what they were doing. In fact, they clearly knew what
they were doing. I think all the material given to you by Mr. Brady is accurate on
how to view the property and the requirements, at law, of you acting as judges to be
able to come to a determination on what you have seen today. There is nothing to
show that there was any expectation to put 44 or 46 units on that property. The
zoning code is a maximum. It doesn't guarantee, and they are asking you to
guarantee that if the zoning code has a high number, you are guaranteed and ignore
the rest of the regulation. On that theory, every house on the beachside should be torn
down and you are going to have another high rise being requested because it is much
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 28 of 40
more profitable. The result will not be what the Town Commission wanted when
they changed the regulation to the 35 foot height which was an open air beach town.
You will be in the league of Miami Beach, Aventura, Gulf Ocean Mile building the
canyons that this town said we do not want. Preserve your town.
Jeffrey Sandelman, 3905 S. Ocean Blvd. — Mr. Bernstein submitted a brief on my
behalf and am in full support of Mr. Robbins objection to this and am objecting to
this as well. I live at 3905 S. Ocean Blvd. just to the south of Mr. Tibor Toth (3901
S. Ocean Blvd.) who did build a home directly to the south of this project with the 35
foot height limit. I believed Mr. Toth also filed a brief in opposition to this. For
many years my neighbor to the north, Mr. Pector wanted to build something across
the street and after many years of discussion with the town and Tallahassee they
allowed him to build this very small, nor more than 35 ft. high house. I am in support
of Mr. Robbin's brief and in support of all of the opposite attorneys. My builder, Al
Giachetti, is here who is also building Mr. Robbin's house and I am sure he can speak
to this. At one point I had a right to utilize the land across from my own home and
was not allowed to do anything. So, we ended up doing nothing. I have been here for
20 years in this town and hope they deny the petition.
Robert Mot, 3912 S. Ocean Blvd. — I am the Vice President of the Regency
Highland Condominium Association. We had submitted a letter ratified by the Board
accompanied by a petition. I did check with the committee members and verified that
you did receive that. I appreciate your taking that under advisement in addition to all
of the materials you have already received. I am not going to belabor some of the
points that have already been made. I would like to touch on a few things. One, I
heard reference to a variance for these 44 units. As I understand it, a request was
made for how many units can be built on 7 some odd acres and they were told they
could do the 44. It was never a variance granted for that as I understand it.
Representation made by Counsel in their initial presentation seems inaccurate to me.
It is very important not to mix metaphors here. They talked about the property
construction helping property values. I can tell you anecdotally as somebody who
does the interviews in our building, we almost lost a sale two weeks ago because of
this proposed property. We had to supply materials to them and the unit owner
finally decided to acquiesce and continue with the sale. We have this 35 ft.
requirement and many people in my building who are not contiguous but adjacent to
this property would have an adverse effect to their views as well. I wanted to
comment on that. To my way of thinking, his next door neighbor who utilized the
property for a 35 ft. home, is appropriate. It seems to me, if you do the math, he
spends 1.5 million or whatever the cost are to construct a home, the average home in
the area sells for 7 or 8 million dollars because I don't see a hardship there. If he does
a couple of townhouses and it fits within the requirement, again not a hardship. He
talks about the proposed structure encroaching on 1.3 acres of wetlands. Those
wetlands, because I live and enjoy the estuarine environment of Highland Beach are
inundated with manatees and all types of fish and fauna. Any type of villainous
impact to our pristine area I take personally as well as the 250 signatures on the
petition we submitted. It is a very interesting proposition. In the law there is a
common phrase known as caveat emptor. We talked about what due diligence was
done or not done. A comment was made about adjacent properties being granted a
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 29 of 40
variance. I could tell you that my building was built in 1978. As I understand the
law, the height requirement was changed in the early nineties. So anybody who
purchased in my building from the 90's and thereafter bought there with the
reasonable expectation that the Core of Engineers, the South Florida Water
Management District and other bodies that legislate and magistrate over these areas
would enforce those rights. In closing these are obvious by their presentation and
power points sophisticated buyers. When we got here we pledged to that flag. You
guys are bound as representatives of our government. We had a lot of bad raps lately.
I would like you to stand up and do the right thing for our community and our
country.
Robert Milavetz, 3740 Ocean Blvd. — I agree with all the points made by the
objectors to the petition to the variance. I would like to mention a couple of things
that maybe should be emphasized more. I think one of the biggest issues is the public
safety and every city has provisions providing for the public safety. Toscana has a
number of cars entering and leaving quite a few times a day. It is to determine the
traffic. It is not taking the number of units and saying that one car is entering and
leaving every eight hours or two cars whatever. We have the residents there; plus we
have the Toscana employees; plus we have the visitors, children, grandchildren with
rental cars. So, my unit has more than one car a day. We not only have Toscana
employees but our own employees who come in and clean. When you are talking
about entering and leaving Toscana to have another entry way a few feet from our
entryway will cause a greater danger and congestion. I would like this to be
considered. The second thing besides the safety is the claim, which is also erroneous,
that this is going to help the city increasing property taxes. It is going to decrease
property taxes. There is no evidence that this is going to increase the amount of
revenue because as that property is more valuable with a building on it, other property
becomes less valuable. So, I don't think there is any evidence that the property value
and property collected is going to increase by this one little project. Also, it will be a
bad precedence for the city because then other people will want variances and it will
be more difficult.
Marcia Kaminsky, 3740 S. Ocean Blvd — I don't think anybody, as long as I have
been here, has pointed out the fact that the building is not to scale with the picture. It
makes it look so tiny. If that building is truly almost as tall as Toscana South, one,
two tower, that should go out back here (pointing to drawing). I am not a
mathematician, not an attorney, I am not educated but I am so upset by this whole
building because I live right there (pointing again to drawing). If my young fellow
here who wants to develop that, I want to know my neighbor that purchases that
balcony across from me so I can play ping pong. That is how close your building will
be. I want to invite you all here to my apartment and come to my balcony, see my
kitchen window, and see what your building is going to do to me. The fauna and
flora in there is unbelievable. So for you to say it is not worth anything, in the
evenings I can sit there and watch the flocks of birds come in; the migratory birds. I
am very dead set against the whole building but especially that tall monstrous thing
that you have designed. I am sorry. I know that upsets you, but take heart for the
people in this country who came here to retire and enjoy their lives.
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 30 of 40
Meeting reconvened after a short recess.
Acting Town Clerk took a roll call to reestablish a quorum. Members Present:
Member Weitz, Member Rodis, Member Perilman, Member Leinson, Secretary
Weitz; Chair Donaldson.
Chair Donaldson — We have to take a hard break at 1:45 so we will have to move
through this as expeditiously as possible but we do have time allocations for the
presenters and the responders. At this point I want to say do we have any other
members of the public who wish to give a three minute for a quick address.
Al Giachetti, 1118 Bel Air Dr. — I have been a resident of Highland Beach for over 20
years. Also for 30 years I am a licensed Florida real estate sales person and a licensed
building contractor state wide. I know this property personally because I used to own
a 1,000 ft. strip 20 years ago. Twenty years ago I was told it was unbuildable. I
developed the piece on the ocean side which I sold to Mr. Sandleman when I built his
house. They don't mention it but I also know Mr. Siegel who lives across the street
and how their property would be detrimentally affected economically by the building
they want to build across the street. I really want to speak for Mr. Robbins who did
recently by that property and I know it is his dream home. He is not a builder; he is a
layman. He took it from the town's representation that it can only be 35 feet across
the street. Now he is putting his plans on hold because even Regency Highland also
said it could affect some sales. The only other thing I want to say as far as this letter
is concerned, if I bought that property today and asked for a letter, they would give
me the same letter. That is the zoning; seven units per acre or six units per acre. It
doesn't mean you can get it. Anybody who is a developer knows you have uplands;
you have buildable property; property you may have that you have to give back to the
DOT right -of -way. I haven't personally seen the letter so it may be unfair for me to
pass judgment on that. I could tell you that if I asked Michael for a letter he would
tell me what the zoning is. Variance by definition, a hardship has to exist and the
petitioner didn't do anything to cause that hardship. Based on when he bought the
property and what has happened, everything speaks for itself. I could tell you as a
developer and as a real estate professional, you could definitely build something and
make money there.
Rhoda Zelniker, 3912 S. Ocean Blvd., Regency Highland — I am also on the Board of
the Beaches & Shores for the Town of Highland Beach. I just want to confirm that
you received the letter from the Beaches & Shores Committee opposed to this
particular property. I also, on a lighter note, would like to address the owner of the
property. You are telling us that you have no financial hardships at all. I will tell you
that, if you really love Highland Beach, I suggest that you keep this piece of property
as a nature preserve for all of the town to enjoy. I think if your financial position is
very good and you really want to do something for the good of our town, it would be
the perfect solution to this problem. As a person on the Beaches & Shores
Committee, when there is building around the animals in the sanctuary, yes they are
disturbed. When you say that you are not going to impact the environment,
unfortunately it is not true. When there is jack hammering and construction, I can tell
you my building is going to shake. I have been in situations in Regency Highland
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 31 of 40
and it shakes like crazy. It is going to disturb our nature and our nature is very, very
important to us. Again, I would highly suggest making it a nature preserve. We will
put your name on it and we will love you.
Leonard Townsend past Chair of the Highland Beach Planning Board, A Board
Certified Real Estate Attorney, licensed architect and I live in Toscana South. One
thing that I don't think has ever been checked, normally when I approach a project I
try to do a zoning analysis, I found that the minimum width of units in this RML is
100 feet. That looks a little bit more than 100 feet. It appears that they would
actually have to apply for two variances. One in height and one in width but that is
something for the Board to consider. In analyzing their zoning application, when
they say the property is 90% wetlands, there is a letter dated October 14, 2014 from
the South Florida Water Management District determining that almost 100% of the
subject property is wetlands. I don't think that is what is being considered in this
application but it has been bantered around many times. They say the town is
virtually built out. As a result very little privately owned land in the town remains
undeveloped. I found four parcels: unimproved parcel found west of the Casuarina
Condo Complex also owned by Palm Beach County and appears to be in a similar
wetland surface condition; unimproved parcel west of Toscana South that is owned
by Palm Beach County also appears the same way; unimproved parcel located north
of the Regency Highland Complex at 3912 S. Ocean Blvd. owned by Sam & Simon
Spiegel also appears to be in a 100% wetland surface water condition; finally,
unimproved parcel located south of the Ocean Cove complex owned by the Gardens
of Highland Beach, Limited and also appears to be in a 100% wetland surface water
condition. They also say that the unique physical dimensions of the property
represent a hardship. Per the specific purpose survey dated March 14, 2014,
obviously the property is 300 ft. in width. Ordinance 30 -64(a) Table 3.2 of the
Highland Beach Code of Ordinances states that the maximum width of the building is
100 ft. So you have approximately 276 feet to play with of theoretically buildable
area. They say that the RML Zoning District is not intended for single family or
duplex style development. However, single family residence are effectively all that
can be built on the property. I am talking about their No. 2 in their zoning
application. Per Ordinance 30- 62(c), the purpose of the RML Zoning District is to
"encourage alternative housing styles such as townhomes and patio homes at low
densities and to allow compatible exception uses. This doesn't seem to contort with
what this purposes is. No. 3 — The requested variance will allow Golden City to
develop property utilizing the density of RML. Finally, numerous properties in the
RML Zoning District throughout the town have exceeded 35 feet. I found five. Each
one was determined or built in the 1970's or 1980's; Toscana, Regency Highland,
Braemer Isle and Dalton Place Condo.
Chair Donaldson closed the public comments.
Acting Town Clerk Oakes read letters received into the record (attached to the
minutes as Exhibit "H ").
Meeting reconvened after a recess.
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 32 of 40
Roll call was taken by Acting Town Clerk Oakes to reestablish a quorum. Members
Present: Member Weitz, Member Rodis, Member Leinson, Member Perilman,
Secretary Weiss, Chair Donaldson and Attorney Rubin.
Chair Donaldson — We are moving on to final argument, closing statements by the
Petitioner and the Interveners. We are limiting that to five minutes each.
Petitioner's Closing Statement:
Nat Nason — Let me address a couple of things that came up during the course of the
Intervener's presentation. First, with regard to allowable density on the site, let me
quote for you the Town of Highland Beach letter to my client's predecessor and title.
"We have confirmed that the acreage for this site is 7.43 acres. Therefore the town's
code will allow construction of six units times 7.43 acres equals 4.58 units; round it
up to 45 units. Please understand that this letter is for the purpose of confirming the
number of units that would be allowed on that site. The letter is not approval to
construct." I think it is clear with regards to the discussions minimum versus
maximum, we are entitled to 44 units on that property and that is exactly what we are
trying to do. Mr. Brady indicated to you that anytime a new owner comes in, that
destroys the ability of the owner to seek a variance for pre - existing condition. That is
not the law and specifically not in your code. You have to apply the factors that are
in your code and that factor does not appear. The other factors that are there do
appear and they are satisfied. We have given you everything that you need that you
need to find for a variance to be granted here. There was a discussion about we
admitted that we could build eight units on the property in our application. That is
not true. If you read our application what it says is with the current buildable area,
which is 7.77 acres, only eight units would be permitted. So eight units on a 7.35
acre tract, it is approximately one unit per acre. What we said was if you took 7.77
acres of our upland, then that would yield only eight units. It didn't say that we
admitted we could do eight units and that would be fine; nothing of the case. That
was a distortion of what my petition said in that regard. Let us talk a little bit about
the 35 ft. height limit that Mr. Oyer talked about. Let's understand exactly how that
came into fiuition. We took a look and examined the town's records and history and
here is what we found. We conducted a review of some of the city's filing regarding
the neighboring 17 story Toscana project. Here is what we learned from a review of
these records. The project was steeped in litigation from the mid 1980's to the mid
1990's. A series of successor developers claimed that the town failed to recognize
the town approved PUD which would have allowed high rise development densities
of between 24 and 30 units per acre all consistent with the existing zoning code at the
time. The development did not proceed and the town later took the position that the
PUD had expired. The code was amended in 1990 to reduce density and to impose a
three story height limitation. That was in response to the Toscana development. The
developers at the time claimed that there was no expressed time limitation on the
PUD and they were therefore not subject to the new zoning restrictions. The town
sued for declaratory judgment and the developers counterclaimed for declaratory
judgment and damages based on several constitutional claims including inverse
condemnation. Ultimately in the mid 1990's, the claim was settled allowing the
building that are there today. They were allowed there today after imposition of this
35 ft. height limitation as a result of settlement of litigation. I want to make sure that
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 33 of 40
the record is clear on that point. Just as financial hardship is not a consideration for
us in connection with the zoning issue, nor should financial benefit be taken into
consideration. My client bought the property; they are entitled to take that risk and
did so. From what we have heard, you are not entitled to take financial hardship into
account. The same time you can't take financial benefit that might otherwise flow to
my client if this variance is granted into account either. We heard some discussion
about the setback between our property lines next to Toscana. Plans have been
submitted as part of the application showing a 47 ft. side setback on that side of the
property not a 12 ft. side setback which is on the other side of the property. We then
come back to the code factors. Did we meet them or not. We clearly did. There are
special conditions and circumstances that exist on that property and they are peculiar
to this land. That's the mangroves; that's the shape of this property; the coverage of
the mangroves. As a result we are left with the inability to develop this property in
accordance with the zone potential. The special conditions and circumstance truly
represent a hardship that are not created by the applicant. Certainly we did not put
those mangroves there. The fact that we bought that property knowing that they were
there does not delete this fact or take away from this fact because we also knew that
we had the right to seek a variance. In the list of factors in the variance you do not
find that, if you come in to a pre - existing condition, you cannot raise that condition.
That is not one of your factors; so as a result I would submit that you should not be
considering that. In closing I would simply say that we have met all of the factors
required and as a result of that we are entitled to this variance. Thank you very much
for your time.
Intervener's Closing Statement (Toscana HOA):
Jim Brady — On behalf of the Toscana Homeowner's Association I would like to
thank you for the time you spent. It is a duty today that you have served very well. It
has been a long hearing, maybe one of your longest for most of you. I remind you of
the affirmation that each of you took when Mr. Rubin asked. If you find that the
evidence before you today does not support any one of the criteria that are set forth in
your code or that I reminded you of relative to Florida law, then the answer is
disapprove. I couldn't, notwithstanding Mr. Nason's excellent presentation, I could
not find five of the criteria satisfied by any competent evidence put before you today.
I would ask you to look at those criteria, take into account what you have heard that is
competent evidence, and make your decision accordingly. Thank you so much for
your time.
Intervener's Closing Statement (Mr. Andrew Robbins):
HarveyOyer, III, Partner for Shutts, Bowen, LLP — I had no intention of even giving
a summary because I think we all spent enough time on this today. However, I did
hear things from Mr. Nason that I would like to address in the record. One is he read
verbatim the April 26, 2011 from the town addressing the density issue but he failed
to read in the last sentence of the letter which I think is important. "You or your
client will need to apply for a building permit and will be responsible for complying
with all other provisions of the town code related to the development of this parcel."
So the very letter he recited to you as justification for his variance request left out a
very important part of that letter and that is his client was on notice that he needed to
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Paee 34 of 40
comply with all other portions of your town code which includes the 35 ft. height
limitation. Mr. Nason also pointed out, correctly, that by the time Toscana was
constructed the code had changed. So, officially it was constructed when there was a
35 ft. height limitation in place. What he did not share with you is that was an
approval that predated the code change. So, it was a vested right to build Toscana
and during this long protracted mid 1980's to mid -1990 litigation, that is precisely
why your community is saying that we never want one of these again. We are going
to change the code but you could not deny the vested right to the developer of
Toscana who already had a right to do so. He is technically correct, but I want you to
understand the context in which that occurred. I too want to thank you for your time
and deliberation. I do agree with Mr. Brady that I also could not identify more than
two or three of the eight requirements that the developer's presentation meets. In fact
I counted five that they presented no competent substantial evidence and it requires
competent substantial evidence on all eight for you to grant.
Board Questions:
Member Rodis — Question for Mr. Swerdlow. I am interested, if you would, give me
your state of mind before you purchased the property and after you purchased the
property when you understood that, of the seven acres, only one acre was buildable. I
would like to know if your experts did their work for you after you purchased the
property or before you purchased the property. Mr. Swerdlow — This is a three part
question. The first part was what my state of mind was before purchasing the
property. My state of mind was there was the right to build 45 units that every single
resident of this town is entitled to. My state of mind, after, knowing the condition of
the land is that still we have the legal right to seek a variance. This is precisely what
we have done here today. The last question was when the work was performed.
Work was performed before we purchased the property by our Environmental
Specialist and work was performed after in or to prove and give evidence to the
Board that we satisfy all the criteria to the variance.
Secretary Weiss — First of all I would like to thank everyone who did speak for and
against. You did an excellent job and I want to thank the audience as well. My
concern is for the mangrove. You had said, in your presentation, that you would
protect and preserve the natural habitat as well as the mangroves. How are you going
to do that? Robert Maschue — What we are planning on doing is take the balance of
the mangroves that are left, go in and clean it out, enhance that area and we are going
to put a declaration restrictive covenant over it for perpetuity so it will left like that
forever. Then there are areas of sea grass that are submerged areas in the Intracoastal
and we will go in there and enhance those as well. In addition to that we will have to
go off site to mitigate the balance of whatever credit we can't get as far as credits are
concerned for enhancing the on -site wetlands that will remain. Secretary Weiss —
There is a tremendous override when the boats go by and the water splashes up. Are
you planning on putting any rocks in front of the mangrove? Mr. Maschue — I believe
that the county has already mandated it. I think they are planning on doing that
portion of the Intracoastal as well. We have a letter to that regard saying they are
planning on doing that.
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 35 of 40
Member Rodis — Does the developer intend to preserve the mangrove regardless of
what the outcome here is? If he gets the variance you have answered the question. In
the event he doesn't get the variance and he decides to build the mandated usage of
35 feet, will he continue to protect the mangroves? Mr. Maschue — It will still be
required by the South Florida Water Management District, the Florida Dept. of
Environmental Protection and the Army Corp of Engineers to do precisely that.
Member Leinson — Could you tell us if there is any beach access planned for the
property? Mr. Swerdlow — Currently there is no beach access from the property.
Member Leinson — Do you think that will deter from the value of the units, being a
beach community? Mr. Swerdlow — I have no idea if that will deter the value of the
property. However, it is the work of the town if access were to be provided to the
beach. Member Leinson — Highland Beach has no public access to the beach
currently. Referring to the Town of Highland Beach's April 26 letter of which was
presented to Ryan J. Mueller, the prior owner, I assume that you relied on this letter
as part of your decision making process when you purchased the land. Mr. Swerdlow
— That is correct. Member Leinson — As I read the letter, I get the general impression
that Highland Beach is telling Mr. Mueller that in a perfect world you could build up
to 45 units, but we know that it is not a perfect piece of land. Anyone looking at this
couldn't necessarily rely on the fact that 45 units would be available. I am making an
observation. Is this the position you took when you looked at the property. Mr.
Swerdlow — When I took on the property, I looked at every residence in Highland
Beach. I have seen that many owners here have taken their rights to build. The same
rights to Toscana in the RML zoning. The same right was granted to our parcel. This
is why we are here and seeking this variance. Member Leinson — I have heard this
line before today and you certainly have the right to put forth that position. What I
am really asking you is, that anybody looking at this property, wouldn't a reasonable
man say well I could probably build eight units without a hassle without a variance.
Is that a reasonable approach? Mr. Swerdlow — Let me return the question. Why is
one right, the right to units is higher than the right to the variance? Member Leinson
— You continue to go back to the work "rights ". You certainly have the right to ask
for a variance and that is the reason why we are all here today. It doesn't mean that a
variance would be granted but that remains to be seen. I can't see that you have gone
to the powers to be representing the Army Corp of Engineers, the South Florida
Water Management District to probably go through your proposal to see if, in fact,
they are going to buy into it. You are basically using this Board as a spring board to
support your next proposal to those people who basically have to be part of this
decision making process. Att. Nason — I wish to address that issue. In order to know
what we have to ask South Florida Water Management District for in terms of
mangrove impact, we need to know what the town is going to permit with regard to
the development of this site. That is why we have to start somewhere. We have
approached South Florida Water Management District to begin that discussion.
However, without knowing what is going to be allowed and permitted with regard to
this site, we are not in a position to continue with the District at this time. Member
Leinson — I was reading a letter presented to the Board by Paul B. Bernstein, Attorney
at Law representing his client who I believe lives across the street. One of the
questions that he raised is "no special privilege could be realized by Golden City with
the granting of a variance with the knowledge that the current code limits the building
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 36 of 40
height to 35 feet." How do you justify that no special privilege would be received if
the variance were to be granted? Att. Nason — We believe that no special privilege
will be received as a result. We think that is what we are here to show you. Let me
try to address the question I think you are asking which is, with a 35 foot limitation
on there, how you could possibly come to us and ask for a variance. The answer to
that is your code expressly allows me to do so. Your code also tells me what the
zoning density is supposed to be for that property. Your code is written that allows us
to have calculated density based upon, nor only usable uplands but also wetlands and
submerged lands. So we get to use the entire aspect of that. Had you wish your code
to read other than that it could have; but it didn't. So it allows us or any developer the
ability to seek that permitted density. If it runs into a special problem with regard to
the land, which the mangroves here clearly constitute; if it does run into that kind of
problem, it's permitted to come here and show you we have satisfied these eight
factors, which I believe we have. If we do that we are entitled to proceed with the
variance. Member Leinson — In the RML Zone that currently exists in Highland
Beach, are there any building above 35 feet that have been built since the passing of
this code? Att. Nason — The only one that would qualify potentially would be
Toscana. Member Leinson — Assuming that was pre - permitted prior to the code. Att.
Nason — If we take that off the board, then the answer is no. However, when you put
the zoning district overlay on there, you chose to overlay that RML Zoning District
on properties that already had that height exceeding it. So, if you were going to have
a separate zoning district, which is really what you are telling me that is what you
wanted, you should have had a separate zoning district and you didn't. You put us in
RML with everybody else who had these rights. From a standpoint of code
interpretation, I think we are on pretty good ground. I see your points, but I think we
are correct in that. Member Leinson — They had these rights of construction prior to
the existing code being adopted. Is that correct? Att. Nason — They did. Member
Leinson — We can't punish them after the fact. Att. Nason — That is correct.
However if you chose to include in that zoning district another piece of vacant land,
and one of the things your Comprehensive Plan says is that we have the right to be
compatible with those areas, then yes we can consider the fact that those buildings
exist. I think that you have to when you apply your Comprehensive Plan to the
zoning code at issue here.
Member Rodis — You bring forth the whole issue of Toscana. Are you aware that it
was the Federal Government, during the litigation for ten years that they mandated we
make a determination or else suffer the consequences of the 35 million dollar
judgment? In reality, Toscana was never built based on any zoning of ours. It was
based on the forceful prosecution of the Federal Government in order to mandate that
we exceed to their wishes. Ultimately, the determination was made so that the
lawsuit was settled and the 35 million dollars we would have had to pay to the
Federal Government was never paid. As long as you are aware that Toscana was a
very special situation mandated by the Federal Government which, in all respect,
trumps any state or local government. Mr. Nason — I am not sure about the
involvement of the Federal Government, unless you are talking about a ruling from a
Federal District Judge which could have been the case with regards to this aspect. I
will say this, we do know from a review of the Town's files that the litigation was
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 37 of 40
settled and that litigation was actively pursued between the town and the developer
regarding that project. I fully understand that.
Member Perilman — One question for Mr. Swerdlow. Based on all that you have
heard here today, review of the record and listening to the comments of many of the
citizens who spoke here today, would you concede that a lot of residents of Toscana
and Regency Highlands will have their view affected and their property values would
be diminished. Do you agree with that? Mr. Swerdlow — I believe that the project
proposed, in my opinion, minimizes any view impact to any neighboring properties.
Member Perilman — Actually I think that all the comments on all sides have really
exposed all the arguments very well and I would like to thank everyone for offering
their opinions. I think I have all my questions answered.
Chair Donaldson — In going over your drawings, I have sort of a technical question of
the two design firms that are listed on your drawings. Which one is the registered
Florida architect? Mr. Swerdlow — Since the design is only able to be fulfilled by a
variance of the Board, there was a conceptual design. We used two firms that are not
registered in Florida. If there is approval and there is any planning, we will employ a
local company such as the presenter, Joe Gentile, who is a local Florida certified.
Chair Donaldson — Just so I can get clear in my mind where we are on the
percentages, if I am understanding it correctly, there have been a couple of references
to the property being 90% wetlands. You have indicated on your plans 55,200 in
square feet of grounds in improvement that are not part of that wetlands. That would
take it down to around 83 %. Is that correct? Is it more like 83% based on your
plans? Mr. Swerdlow — I will direct this question to the Environmental Engineer.
Robert Maschue — It was my understanding that the entire acreage of the property
included the uplands, the mangroves and the submerged area of the land should be
around 7.35 acres. The uplands that I mapped were 0.77 acres of the 7.35 total. So,
you have to take the submerged portion which is around two acres, I think 2.35, and
subtract that from 7.35 and then do your percentage calculation. I believe it is very
close to 90 %. Chair Donaldson — Your plan shows a path out to the Intracoastal
Waterway. Can you tell me what your plans are at the end of that path? Mr.
Swerdlow — At this moment, we did not plan anything at the end of this pathway.
There are possibilities to put a dock as has been put at Toscana and the neighboring
Regency project. Chair Donaldson — In your submission you note the need for a
typical 13 foot 1 inch floor to floor height as necessary and consistent with the
surrounding properties. Toscana is typically in the 10 foot floor to floor range. Using
that standard for the minimum height for the variance, it would appear, and I have
done some very quick sketches here, if I gave you your 24 and 7 -1/4 on those first
two levels which makes up your basic taller piece on the bottom; if I gave you the
next two levels at 26 ft. 3, I assume you have some sort of lobby or need for some
extra height. The penthouse we will give you the 13 ft. 1, obviously you want them
to be nice and you would want a little extra room on top hopefully to conceal
mechanical equipment; because, in one of the letters we received, someone had asked
about that and I hope if some variance of some sort is granted you will take that into
consideration. If you take all those floors in between, down to a more minimal depth,
a reasonable depth, you can knock off 40 ft. 6 in. I am trying to understand, what the
compelling reason is to have a 13 ft. typical floor. In my mind I am having trouble
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 38 of 40
squaring that with the minimum variance that you are supposed to be coming to us
with. So what is the rationale on the 13.1? Mr. Swerdlow — The rationale in
choosing the current building configuration was to be mindful of the property line of
Toscana and consistent with the surrounding environment. As you have mentioned,
we have a mechanical roof and there are lobbies. The first two floors are parking
structures. There are actually only 13 stories of condominiums. Given that, we
believe that this height was the most comprehensive in the surrounding environment
and in regards to Toscana. Also, one other aspect that wasn't talked about, and you
mentioned 10 feet for Toscana, does that include all mechanical areas, all electrical or
is it just the height of the ceilings? Chair Donaldson — They are very typically about
10 ft. 1 from floor to floor. So within that vertical volume they do have contained the
necessary duct work, mechanical systems and electrical systems. Some areas are
dropped to facilitate those; others are left right up against the slab and finished off
and dropped slightly for improvements. I happen to know that because I live there.
Mr. Swerdlow — I believe that if there is a reasonable way to achieve the density
vertically by going with the surrounding environment, an architect are the ones that
need to look at the plans. There are creativity. We can be creative. We cannot be
creative on the vertical variance but we can be creative with the building. That is
why we approached Toscana and talked with them. We talked with a contractor
saying here is what we can do; what is your opinion. What do you think about the
building? Att. Nason — I would like to clarify that the applicant is stating that we
would consider reducing the middle floor heights in order to have a height impact of
less than what we sought in this particular variance.
Chair Donaldson declared the public hearing closed.
Board Discussion:
Member Weitz — First of all I would like to thank the public for turning out today. I
know people turn out for vested interest, but the fact that it was public
acknowledgement of an issue the residents turned out. This is a special community.
People came to express their views both in letter and in person. I value that. I think
this town needs representation from the community and, whether it was responsive to
this one issue, I want to thank the developer for bringing the town out. The second
thing I want to comment, a point of personal privilege, I do want to comment about
the remarks. I understand the legal responsibility of the attorney and he did a fine
job; but of asking some of the Board members to recuse themselves at the beginning
of the meeting. I have only been on the Board for one year and it has some of the
most intelligent, fair minded, conscientious people I have ever worked with. The fact
that they live in a residence, clearly that is the case, but the reality is that we are all
volunteers on this Board. I as a health care professional would much prefer to be in
the billable hour's category of your people here today and the other attorneys because
I can see this as a highly successful day for me. I do think that the volunteerism of
this Board, an honorable Board, needs to be highlighted and I am glad to do that. My
reasoning, in terms of my decision which I will vote on, is based on it seems to me
that this is kind of like a biblical thing that "And God created the earth ". He created
this property with seven acres or so and one acre is barren; the rest of the acreage is
mangroves, and if he wanted you to build on it he wouldn't have put the mangroves.
The bottom line is to compare density for the buildable land based on the entire land
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 39 of 40
space, in my mind, doesn't make a lot of rational sense. Given that all this
information was pre known, was knowledgeable, people were aware of it, the fact of
the matter was all of the information you brought today was known relevant, people
were aware of. You certainly have the right to apply for a variance. Anybody has the
right to sue. It doesn't mean that it is a reasonable suit or a reasonable request. The
statement you made about you not impinging on the mangroves or making minimal
impact, this case defines me as the mangroves impacting on you. The mangroves
were there. Your land usage is determined by where the mangroves do not remain.
Therefore you are being captured by the foliage and the environment of the
community rather than you making less impact on it. Finally, I do respect your right
to want to build in this community. It is a great place. In fact I will invite you to
move here. People are really friendly, nice, accommodating, not under the
circumstance; but if you moved here and showed yourself to be a good guy you
would have a great time here. However, just as you have a right to ask for a variance,
this town has the right to set height limitations and code. This is a small communal
beach town. We want to maintain that. That is why the codes are in place. I wasn't a
member of any organized community when these rules were in place; but when you
talk about consistency, I will tell you one thing. I will be consistent. If those rules
were in place and I was on this Board, I would vote against those projects.
Member Perilman — I concur with everything you said. I read the application and
explanations carefully; read the Highland Beach Code 30-40; looked at the letter of
April 26, 2011 and read it carefully in context; reviewed the 150 or so petitions and
letters that came in from people in the community; listened carefully to the testimony
given and presentations given which were excellent; visited the site and I think we
have all the information need to make a decision.
Secretary Weiss — I totally agree with what has been said.
Member Rodis — I am very appreciative of everybody who is here and for all the
attorneys who represented our neighbors. I am very impressed with your point of
view. As our town only has a limited number of neighbors, it is important for every
neighbor to show their point of view. I am very respectful of the fact that so many
people came out today to show their point of view and I encourage you to continue to
do that even on the bi- monthly meetings that the Town Council has when they go all
over various different issues. I learned an enormous amount today that I didn't know
and I appreciate all of the attorneys who brought forth those points of view. I am
happy to make my point of view known in my vote.
Chair Donaldson — To the general comments, I would also like to extend my thanks to
the city staff who put in countless hours getting ready for this petition. I congratulate
both the attorneys and the public for good comments. Both sides scored good points
in my mind. I am ready at this point to take a vote on it.
Chair Donaldson called for a motion to approve the variance. No motion was made.
Board of Adjustment & Appeals Regular Meeting Minutes
Wednesday, November 19, 2014 Page 40 of 40
Chair Donaldson called for a motion to deny the variance.
MOTION: Member Weitz moved to deny the request for variance at South Ocean
Blvd. (a.k.a Golden City) Highland Beach. Motion was seconded by Member
Perilman.
ROLL CALL:
Member Weitz - Yes
Member Perilman - Yes
Member Rodis - Yes
Member Leinson - Yes
Secretary Weiss - Yes
Chair Donaldson - Yes
Motion carried 6/0.
9. ADJOURNMENT:
Being no further business, Chair Donaldson called for a motion to adjourn the
meeting at 3:03 PM.
MOTION: Member Weitz moved to adjourn the meeting at 3:03 PM. SecrPIM
Weiss seconded the motion, which passed unanimously.
APPROVED:
B on son, Chair
Absent
TOWN SEAL Barry Axelrod, Vice Chair _
6 v*elynW$071 Secretary
ATTESTED; Joel L s oard
L � B an B ar em
Valerie Oakes, CMC i
Acting Town Clerk
Pet r Rodis, Board member
W
Date: lb 6 / � z
William Weitz, Board Member