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2015.05.12_BAA_Minutes_Regular -•�%6NL���� • «.,M :- ••m TOWN OF HIGHLAND BEACH i�r'• '=•s MINUTES OF THE fff,,•••. .•••= BOARD OF ADJUSTMENTS & APPEALS fLOfl10�- REGULAR MEETING Tuesday,May 12,2015 9:30 AM Members Present: Chair Barry Donaldson, Vice Chair Barry Axelrod, Secretary Evelyn Weiss, Board Member Joel Leinson, Board Member Peter Rodis; Board Member Bryan Perilman; Board Member Edward Neidich. Also Attending: Town Attorney Leonard Rubin, Building Official Michael Desorcy, Administrative Assistant Rosalie DeMartino, Town Manager Beverly Brown, Commissioner Stern, Commissioner Feldman, Commissioner Zelnicker and members of the public. 1. CALL TO ORDER: Chair Donaldson called the Regular Meeting to order at 9:30 AM. Roll call was taken by Administrative Assistant DeMartino followed by the Pledge of Allegiance and a moment of silence for our fallen soldiers. 2. INSPECTION: The Board of Adjustment and Appeals, as part of the public meeting, conducted a site inspection at 2348 S. Ocean Blvd., Highland Beach. All members of the public and interested parties were invited to attend the site inspection. The Board left the Commission Chambers at 9:37 AM to visit the site. 2348 S. Ocean Blvd., Highland Beach - Site Visit Discussion: Vice Chair Axelrod—I thought there were two boat lifts. James Long, 2348 S. Ocean Blvd., owner— The other was not a boat lift but a jet ski ramp, and it was never built. Member Rodis — Are we only talking about one boat lift today? James Lona — This is the only boat lift, but we never purchased a boat to put on this lift. We added the ramp for the jet skis and this is all it has ever been used for. Member Rodis—What is it that you want us to consider? James Lona—The plan that was submitted showed a 20 foot setback. It is actually 21 feet. We never had the permit closed out for a variety of communications issues on our part. We are moving and found that we needed to close this permit. In doing so, we found that we were four feet in violation of the code. The code states that there is a 25 foot setback needed and we have a 21 foot setback. We would have to incur a great deal of expense if we had to tear this down and rebuild it to meet the code. In the eleven years that we have had this boat lift, there has never been a complaint from any of our neighbors. We are asking for consideration to let the boat lift stay as is. Board of Adjustment& Appeals Regular Meeting Tuesday,May 12,2015 Page 2 of 10 Rim MacLaren, Attorney for James Long—We cannot close out the permit that is still open until a variance is granted authorizing the boat lift to be in this location. Mr. Desorcy can then reactivate the permit and let it be concluded at this location. Member Perilman — If we were not to grant the variance, you would have to move this entire boat lift. James Long — We would have to tear out the piers and the lift and move it four feet. Member Axelrod — The drawing shows 20 feet. It said it was approved by a town official, but I never saw anything on the paperwork giving that approval by a town official. Was there a Highland Beach permit issued? Town Attorney Rubin — We should get into that at the meeting. If there is anything else you would like to ask about what the site looks like, this is what this is for. They will have an opportunity to present and answer those questions. Member Rodis — Is there anything the Building Official wants us to observe? Building Official Desorcy—The boat lift was never closed out. Member Rodis—Do you have any issues if we close it out as is? B.O. Desorcy— It is up to the Board of Adjustment to make that decision. I do not make any recommendations. Town Attorney Rubin—If the Board grants the variance he can close out the permit. Member Lienson — I am getting conflicting measurements. What is the code? B.O. Desorcy — It is 25 feet. The edge of the dock is correct. The boat lift would have to be in line with the dock. There is approximately a four foot overhang. Member Neidich—Is the encroachment actually 4-1/2 feet? B.O. Desorcy—I looked at the outside line of the dock and came up with 4-1/2 feet. Member Lienson — What is the largest size boat you could put on the lift? James Lona — I would think 30 feet. Member Lienson — Would the boat extend over the property line? James Long—No it would not. 3. RECONVENE MEETING: Chair Donaldson reconvened the meeting at 9:58 AM and called on the Administrative Assistant for a roll call. Members Present: Chair Barry Donaldson, Vice Chair Barry Axelrod, Secretary Evelyn Weiss, Board Member Joel Leinson, Board Member Peter Rodis; Board Member Barry Perilman and Board Member Edward Neidich. Also Attending: Town Attorney Rubin, Building Official Michael Desorcy, Administrative Assistant DeMartino, Town Manager Beverly Brown, Commissioner Stern, Commissioner Feldman, Commissioner Zelniker and members of the public. 4. ADDITIONS, DELETIONS OR ACCEPTANCE OF AGENDA: Chair Donaldson called for any additions or deletions to the agenda, hearing none, the agenda was accepted as presented. Board of Adjustment& Appeals Regular Meeting Tuesday,May 12,2015 Page 3 of 10 5. PUBLIC COMMENTS AND REQUESTS: None. 6. PRESENTATIONS: None. 7. APPROVAL OF MINUTES: • January 20, 2015 —Regular Meeting Chair Donaldson called for a motion to approve the minutes from the January 20, 2015, Regular Meeting. MOTION: Member Perilman moved to approve the minutes from the January 20, 2015, Regular Meeting. Member Rodis seconded the motion, which passed unanimously. 8. OLD BUSINESS: Chair Donaldson — I have one housekeeping item for Building Official Desorcy on the house that we approved a variance for some time back. They were going to bring in an enhanced landscape plan and I wanted to know if you have an update for us. B.O. Desorcv — At this time we do not have a revised landscape plan, but it will be submitted before the house receives its Certificate of Occupancy (C.O.). Would you like to see it before the final inspection? Chair Donaldson—We as a Board delegated the intent of compliance to you. As an individual I would like to see it. B.O. Desorcv — I will remind the developer to submit the revised landscape plan before we move on. 9. NEW BUSINESS: Chair Donaldson closed the regular meeting and opened the public hearing at 10:04 AM. The Chairman read the title and summary of the petition. A. Variance Request: 2348 South Ocean Blvd.—Public Hearing APPLICATION NO. 37531 —RELIEF FROM HIGHLAND BEACH CODE OF ORDINANCES SECTION 30-68(g)(6)(d)(1), THAT STATES A MARINE FACILITY(LIFTING DEVICE),SHALL BE SET BACK AT LEAST 25 FEET FROM SIDE LOT LINES. APPLICANT: JAMES & BRENDA A. LONG Chair Donaldson called for board members to disclose any ex parte communication. Hearing none, called on the Town Attorney to administer the oath to all those who would testify. Board of Adjustment& Appeals Regular Meeting Tuesday,May 12,2015 Page 4 of 10 Staffs Presentation: Building Official Desorcy — The item on your agenda is a petition to request relief from the side yard setback for a marine facility that is already installed. When the applicants and owners of the house needed some seawall cap work done, it was observed at that time that the boat lift was not in compliance with the town code. The permit for the seawall cap was issued June of 2014. At that time, I had no knowledge that there was an open permit. The boat lift that you observed at the site inspection at 2348 S. Ocean Blvd. was applied for in 2005 by Admiral Boat Lifts. At that time, the former Building Official requested a revision and asked that an additional copy of the site plan, page A-1 be submitted. His plan review comments dated January 20, 2015 were that the Highland Beach zoning ordinance requires a 25 foot setback each side, and please revise plans to show they are in compliance. Two inspections were made in April 2005. A building final was to be made on August 4, 2005, but was never done because there was no access. A notice was left for the contractor to reschedule. That was never done. The boat lift sat there until I made the observation that it was non-compliant when I went for inspections of the seawall and seawall cap. B.O. Desorcv addressed Permit No. 19780 dated January 5, 2005 and the revised A-1 plans. The revised A-1 sheet does not show the boat lift. Member Leinson — The drawings that are included in the package received by the Board members isn't really the dock that is there. B.O. Desorcv—They show the old dock which is 10 feet. The new dock which you saw at the site inspection is 25 feet. Member Leinson — We cannot rely on any of the dimensions that are on this particular drawing. B.O. Desorcv—No, the dock is in compliance. It is the boat lift that is not. Vice Chair Axelrod — It says under special circumstances "the boat lift was installed at the location authorized by the appropriate representative of the Town of Highland Beach". The only drawing we have is the original drawing that shows 20 feet. Is there an approval or a permit from the Town of Highland Beach that we have not seen? What they put in here is approval from the Environmental Protection Agency. There is nothing in here about the Town of Highland Beach. B.O. Desorcv—I think that is an assumption. I have not seen any documentation that support any of the town officials approving the boat lift at 20 feet off the property line. Vice Chair Axelrod — On the front page of their petition it reads "if this petition is granted, the affect will be to reduce the side yard from seven feet to two feet." Where does that come in? B.O. Desorcv—That is just an example. Member Rodis — In as much as the four feet is within the property line, and no neighbor has complained, is there any reason in your judgement that we shouldn't approve this variance? B.O. Desorcv — That is entirely up to the Board. I am an objective party. I present the code the way it is written in the ordinance. A boat lift or a dock on that size lot has to stay outside of the side yard setback 25 feet. Member Perilman — What is the distance from the center of the boat lift to the property line? B.O. Desorcv — I have not measured the center of the boat lift. I just take dimensions from the outside that is encroaching into the setback which is four feet six inches. Member Perilman—Do you have any opinion as to the size of a boat Board of Adjustment& Appeals Regular Meeting Tuesday,May 12,2015 Paze 5 of 10 that can be placed on that boat lift? B.O. Desorcv—The code also calls for a boat not extending beyond the imaginary line that goes into the Intracoastal. No vessels can extend over the property line. Member Neidich — Has this Board, or prior Boards, approved similar encroachments and granted variances on that. B.O. Desorcv —Not that I am aware of. I have been working here almost six years and we have never had a variance for a boat lift encroaching into the setback. Member Neidich — If this Board were inclined to approve this variance, you don't envision any extreme difficulties that we might not be seeing that could cause a problem. B.O. Desorcv—All the petitions for variances are based on the individual request. I can't say that it will create a problem for anything that comes before the Board in the future. Member Neidich—Do you know for a fact that there has been no neighborhood complaints? B.O. Desorcv—Not that I am aware of. Member Rodis —A question for the Town Attorney. Can we approve a variance and indicate that we don't want a boat larger than a certain size to be placed on that lift. Town Attorney Rubin—You could post conditions on a variance. As Mike explained the code, it can't go pass the property line extended, but if the Board believes that is an appropriate condition, yes it can. Prior variances have no precedential value so you can't consider a prior variance in granting a variance before you. Everyone is considered unique and based on the facts and circumstances. Chair Donaldson — I noticed when we were in the field that the second boat lift was not constructed as shown on the plans. I believe it was for the jet skis. The Town asked for a revision to those plans but did not receive them. Would they have been under any obligation to file for a second permit for the boat lift that is there now? B.O. Desorcv—Both lifts were on the original application. The revised plans were to show that the boat lift and the dock comply with the setbacks, and the building department did not receive them. As Mr. Long indicated, the smaller boat lift was never put in. Member Leinson—Without seeing the final plan that was approved, we are looking at drawings which are not necessarily pertinent to the construction that we saw. My question to the attorney is, if the new owner wants to put in a jet ski lift and it is 10 feet from the property line, can he claim that Mr. Long had permission to do that and it passed on with the property? Town Attorney Rubin —No, your order will only be for this specific boat lift and would not allow them any benefit to have anything else that may violate the code. B.O. Desorcv — Once this permit is closed out, anything that is on here and has been applied for will satisfy the requirements of the building department. If they wanted to put in a new jet ski lift, they would have to reapply for a new permit. Chair Donaldson — If we deny this, they would have to start all over again with the Department of Environmental Protection. B.O. Desorcv — They already have a permit. I don't know the status of that permit or whether it has to be reactivated. Once the project is complete, they are supposed to notify the DEP (Department of Environmental Protection) or the Army Core of Engineers that the job is complete Board of Adjustment& Appeals Regular Meeting Tuesday, May 12,2015 Page 6 of 10 and then they would issue a close on their permits. I don't know if they were closed or not. Petitioner's Presentation: Rim MacLaren, Attorney for Mr. & Mrs. James Long — Based on the information as we understand it, and it was attached to the petition for the variance, the permit was issued on March 7, 2005, Permit No. 00019780. It indicates that it was approved on that date. Pursuant to that authorization, the boat lift was installed by Mr. Greg Valli of Admiral Boat Lifts Marine who is here today to answer any questions you might have. He would not have gone forward had he not thought he had the authorization to do it. It may well have been a mistake, but nonetheless no one did it with ill intent or purpose. It was consistent with the location shown both on the application that was submitted to the Town and the Department of Environmental Protection (DEP) Army Core of Engineers' authorization, which had to be obtained in order to submit the building permit application to the Town. In looking at those authorizations, it shows the location of the boat lift in question 20 feet off the property line. The boat lift has been there for over ten years and have never received any comments or complaints from any of the neighbors. The special conditions that exist, which are peculiar to this situation, is that to the best of our knowledge the installation was consistent with the permit. There was no mal intent in proceeding to install the boat lift where it has been during that period of time. If the variance is granted,the conditions do not result from Mr. & Mrs. Long's action. In contrast he didn't issue the permit, submit the application or install the lift. He paid for everything and retained a very reputable contractor who is here today to testify to his work and what he did. He instructed Mr. Valli to install it consistent with the permit, plans and regulations. The granting of this variance will not give Mr. Long any special privilege denied to others. The boat lift conforms to the regulations of the Town with the specific exception of its location. It does not intrude upon the neighbors in any way, and there is no evidence of any intrusion upon the quality of life and enjoyment of the other residents of the Town. If it is required to be removed, it would visit unnecessary and undue hardships on the Longs without any corresponding benefit to the community. James Long, 2348 S. Ocean Blvd. — Building Official Desorcy made the point of the annotation on the drawing calling for revised plan. I asked Mr. Valli and he said he never received any notification, and neither did I. There is no letter or any documentation in the file. I can only conjecture that it was intended by whoever the engineer or the party was back then. You could see when you visited the site that there would be no reason why we wouldn't have moved it four feet further south. We had the space. This was done precisely to what we filed and what we had approved. It would cause considerable hardship for us because we are trying to sell our home. If we have to go back to the Army Core of Engineers and everyone else, it would take six months or so and cause a tremendous financial hardship. I petition your grace on letting it stand as it was built. Member Rodis — Assuming we approved the variance, do you have a problem indicating that the variance would include a boat no larger than 30 feet be placed on the lift. Mr. Long — I have no problem with putting some language in there, but I would rather have the language state whatever the ordinances are. It was mentioned Board of Adjustment& Appeals Regular Meeting Tuesday, May 12,2015 Page 7 of 10 that it couldn't go beyond our property line. Member Rodis — The point is that the size of the lift determines the size of the boat that can be placed there. Mr. Lona — I have no problem saying anything that goes on it cannot exceed the property line according to the Town's ordinance. Vice Chair Axelrod — Mr. MacLaren, you made mention of a permit from the Town of Highland Beach but you cannot produce it. Mr. MacLaren— It was attached to the petition. (Mr. MacLaren produced the petition and presented it to the Board). Vice Chair Axelrod—You keep referring to the Town of Highland Beach having approved it. Mr. MacLaren — There is an open building permit. If something hadn't been authorized and approved by the Town of Highland Beach, there wouldn't be an open building permit which is the issue that caused this matter to come to our attention to need the variance in order to be permitted to close out the open building permit. Attorney Rubin—There was an oversight in including the permit in your packet. We have the permit in our file and will pass it on to the members for their review. B.O. Desorcv — The permit application was approved March 07, 2005 by the former Building Inspector Robert Dawson to install a 24,000 lb. topless boat lift, 6,000 lb. boat lift and a 6 ft. x 32 ft. wood dock. The only inspections every made were on the dock. There were never any inspections made on the boat lifts which I find unusual since I do boat lift inspections all the time. There is an application that was made to the Town. There are also some notes that the Building Department was looking for, a revision which I have not seen evidence of on this application and the attached documentation. Town Attorney Rubin marked the entire variance application as Exhibit "A". Vice Chair Axelrod—In your opinion, do you feel the Town did give an approval, or is there any indication that they had an approved building permit. Even if it was by mistake, if the Town gave it, then it is not their fault. B.O. Desorcv — There was application made to the Town for two boat lifts and a wood dock and signed by former B.O. Dawson. Vice Chair Axelrod — Was it approved with the dimensions from the Department of Environmental Protection? B.O. Desorcv — The DEP and the Army Core of Engineers do not regulate zoning requirements. Vice Chair Axelrod— If we approved what they drew, no matter if it was a past employee, then the Town made a mistake. Mr. Long is not at fault at all, and he should be granted this variance. If that did not happen, then it becomes a question as to whether he should get this variance. B.O. Desorcv— I am not sure who made the mistake. I was not here at that time. The only thing I can do is present to you what documentation was given to the Town. There is an application approved by the Building Department in March of 2005. Chair Donaldson — Am I understanding correctly that there is a clear distinction between the plans that were issued by the DEP and the plans received and issued by the Town of Highland Beach? Town Attorney Rubin — I believe so. We have no control over the DEP. B.O. Desorcv — When a contractor applies for a permit, he submits to the DEP, Army Core of Engineers and the Town exactly the same paperwork. Again, the DEP and Army Core of Engineers are not concerned with zoning requirements. It is the Town's position to enforce the setback requirements. Board of Adjustment& Appeals Regular Meeting Tuesday,May 12,2015 Page 8 of 10 Mr. MacLaren — To make certain where there is clarity on that issue, we couldn't submit for a building permit until we had the authorization from the DEP on behalf of the Army Core. The approval is part of the record. As I said before, there has never been any drawing showing the location of the boat lift in question other than 20 feet off the north property line. Chair Donaldson — Regarding the close out of the permit, we heard from B.O. Desorcy that notices were given that they needed to do a close out on the inspection. Can you explain why that was not followed up on by ownership? Mr. MacLaren— It is my understanding that in 2014 B.O. Desorcy noted to the realtor that there was an open building permit. That is when Mr. Long began the process of attempting to close this permit. At that time, he discovered that he couldn't process the building permit to completion with the boat lift in its present location until a variance was granted. B.O. Desorcy had no authority under the Town's Code of Ordinances to close out a building permit for a boat lift that was not located within the parameters dictated by the Code of Ordinances. Chair Donaldson— I am actually going back to August 4, 2005 when we heard earlier that a final building inspection was arranged but no access was able to be made to the property. At that point, the owner was given notice that they needed access. Mr. Long — We were never notified of anyone coming for an inspection. If they came we were most likely out of town, and if a notice was placed on the gate something might have happened to it. We never received a letter, and you are telling me something that I know nothing about. As far as I know, there is nothing in the file to that affect and I was never notified of the setback issue either. I would have no motivation to have it four feet out of code. As you could see during the inspection, it would have created no obstacle for us to have it four feet further to the south. I think there has been a big gap in communications somewhere. Chair Donaldson — I would like to ask the contractor if they received any notices on the revisions or closing out for final inspection. Greg Valli, Owner of Admiral Boat Lifts Marine Construction — It was eleven years ago and I don't remember. We are not in the habit of pulling a permit, going through the DEP and the Army Core of Engineers which is a very long and costly process, doing the job incorrectly and having to tear it down and do it all over again. Vice Chair Axelrod — Do you normally check to make sure that building permits are closed out? Mr. Valli — Our Office Manager calls for an inspection and I don't honestly know what happened eleven years ago. Member Perilman—Were you aware, at that time, as to what the setback had to be for a boat lift from the end of the property? Mr. Valli — Of course we were aware. We submitted the plans and I assume they were approved. Member Leinson — How long do you maintain your files? Mr. Valli — We have our files going back about 25 years. Member Leinson—Did you bring any files with you on this particular project? Mr. Valli—We do not have any of the information you are looking for with reference to this as far as the permits go. Board of Adjustment& Appeals Regular Meeting Tuesday,May 12,2015 Page 9 of 10 Member Neidich — Mr. Valli, it is my understanding that Mr. Long stated to you to install the boat lift consistent with all regulations. Mr. Valli — It was so many years ago I cannot remember if he said those exact words to me. Member Neidich — Basically, Mr. Long told you to do your thing and do it legally. Mr. Valli — When you are pulling a permit you are doing it legally according to the plans. You call your inspections and do what is right. As I said, this is basically a mistake or miscommunications. I know you want to prevent this from happening again in the future, but we don't have the proper paperwork or the same employees, and I am not putting fault on anyone in particular. Mr. MacLaren — We respectfully ask that you grant the variance that has been requested. Chair Donaldson declared the public hearing closed at 10:57 AM. Board Discussion: Vice Chair Axelrod — From what we have heard today, by no means is it any fault of Mr. Long's. Member Rodis—I would like to add to the variance that a boat not larger than 30 feet be allowed on the boat lift. Secretary Weiss — Doesn't that already exist in our ordinance? Is it necessary to add that? Town Attorney Rubin—No matter what you add, it still cannot go past the property line. What Member Rodis is saying is that it would minimize the potential of that happening. Member Rodis— If they should put in a 50 foot boat that would pass the property line, what would our course of action be? Town Attorney Rubin—It would be a code enforcement issue. Member Neidich — Could we still put in the condition that would limit the size of the boat? Town Attorney Rubin—You have the authority to do that. Chair Donaldson—I understand Mr. Rodis' concern, but we do have a code already in effect. I think it would be very difficult to enforce a boat limitation and would probably end up causing Mr. Long an additional hardship. Member Perilman — I agree that we should not add the length of the boat to the petition. Member Leinson — The applicant comes before us today without any engineering drawings to show what the center line of the current platform is. If the new owner has a boat 31 feet 6 inches and doesn't extend over the property line, then any amendment to 30 feet would limit his ability to have that boat there. MOTION: Vice Chair Axelrod moved to approve the request for variance at 2348 South Ocean Blvd., Highland Beach. Member Rodis seconded the motion. Board of Adjustment& Appeals Regular Meeting Tuesday,May 12,2015 Page 10 of 10 Roll Call: Vice Chair Axelrod - Yes Member Rodis - Yes Member Neidich - Yes Member Leinson - Yes Secretary Weiss - Yes Chair Donaldson - Yes Motion carried 7/0. 10. ADJOURNMENT: Being no further business, Chair Donaldson called for a motion to adjourn the meeting at 11:05 AM. MOTION: Member Leinson moved to adjourn the meeting at 11:05 AM. Secretary Weiss seconded the motion, which passed unani APPROVED: Barry Donaldson r Barry Ax d, V ce Chair Avel�;neeiss, ecretary Joel ns o,-rd Me r 2 B erilm' and ember TOWN SEAL P er Ro , B and Memb r ATTESTED: ' Edward Nei ich, Board Member Rosalie DeMartino Administrative Assistant Date: /.�/�