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2015.09.02_BAA_Minutes_Regular •�16N(Ayh off•.•'',:°_�.�... •O�1 '•m TOWN OF HIGHLAND BEACH r f MINUTES OF THE BOARD OF ADJUSTMENTS & APPEALS REGULAR MEETING Wednesday, September 2,2015 9:30 AM Members Present: Chair Barry Donaldson, Vice Chair Barry Axelrod, Secretary Evelyn Weiss, Board Member Peter Rodis; Board Member Bryan Perilman; Board Member Edward Neidich. Members Absent: Board Member Joel Lein§on. Also Attending: Town Attorney Leonard Rubin, Building Official Michael Desorcy, Town Manager Beverly Brown, Commissioner Feldman, Commissioner Zelnicker, Town Clerk Valerie Oakes, Deputy Town Clerk Patrice Robinson 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 Deputy Town Clerk Patrice Robinson followed by the Pledge of Allegiance 2. INSPECTION: The Board of Adjustment and Appeals, as part of the public meeting, conducted site inspections at 3008-A S. Ocean Blvd. and 3621 S. Ocean Blvd., Highland Beach, FL. All members of the public and interested parties were invited to attend the site inspection. The Board left the Commission Chambers at 9:32 AM to visit each site. 3621 S. Ocean Blvd.,Highland Beach - Site Visit Discussion: Frank Jichetti — I am the owner's agent. We are proposed to tear this down and put two, three building townhouses and put the AC's on the roof, that's what the variance hearing is for. Chair Donaldson — As an item of curiosity, how much landscaping in front is remaining? Do you know off hand? Frank Jichetti —Richard they want to know about the landscaping in the front. Richard Jones, Architect — Hi, how are you? I'm Richard Jones the architect. How can I help you? Chair Donaldson— I had a question about the extent of the landscape that might be planned to be remaining on the AIA side. Richard Jones — From my professional opinion and looking at the landscape plan, there's a new wall that's going across on AIA and there's a lot of new landscaping that's going to go on the AIA side of the wall as well as on the property side of the wall and there may still be some of that landscaping may be remaining. But I'd have to speak to Mr. Desorcy and look at the landscape plan to accurately answer. Glen Goldman, 3644 S. Ocean Blvd. — My question is how large is this property, the land? Frank Jichetti— 1.05 acres. Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Pace 2 of 27 Member Perilman — What is the height of the building and what's the proposal for how many feet higher it would go for the air conditioning? Richard Jones — The building itself is 35 feet. According to the zoning code, it has a four foot parapet around the perimeter that we're anticipating and you'll see in the presentation that the air conditioning units will be setback in from the street and be at the same height as the parapets so from your line of sight, they will not be visible from AIA. Chair Donaldson—Any other questions? Josh McAleese, General Contractor — To answer the landscape question, all the landscaping on the south property line is to remain, plus several trees specifically along the dune are going to be relocated as well, so there is a combination of existing landscape to remain, existing landscape to be relocated and there is new landscaping as well. Member Rodis — How high above the 35 feet do you intend to go? Richard Jones — Again there are air conditioning units. 35 feet is the height of the deck, we have a parapet wall that's four feet, we have elevator housing which goes up above that as well for the elevator to go to the roof. And we have and the A/C units, we feel they would be at four feet on stands. Member Rodis — So you're asking for an 8 foot addition to the 35 feet? Richard Jones — No, all we're asking is r to allow the air conditioning units to be located on the roof versus an alternate location which right now is very challenging to find because of the unique characteristics of this property. And the fact that we're in a flood zone, not only a flood zone, we're in a high velocity wind zone area and the coastal construction line and what compounds the issue is we have an eight foot dedicated easement along the north side of the property line for the residents that live to the west, with a walkway and a stair. That eight foot easement pinches the sight down as well and we have pool equipment and other things. There's just no room for the air conditioners, so we've located them on the roof which is very consistent with how we would do a multi-family design like this. When we get into the hearing, we have our mechanical engineer here as well to talk about the efficiencies of the AC systems and where these units are best suited to be located. Member Rodis — How many units are you planning and what bedroom configuration is each unit? Richard Jones — There are six townhouses total. I believe they are four and five bedroom each and each unit has four air conditioners per unit, so that means 24 compressors which on a roof are screened by a parapet. Aesthetically it's more desirable than trying to find a location for them at grade where you know there can always be a factor of visibility from AIA and so forth. Member Rodis— So you have six townhouses, there all contiguous? Richard Jones — No, there is two 3-unit townhouse buildings, there is a three unit townhouse building, then there is a setback between, a required setback, and then there is another identical three unit townhouse building, so there are six total, but in two separate buildings. Six total townhouse units, six families. Member Rodis — What is the square footage of each townhouse? Richard Jones — Each townhouse is about 5,000 square feet and you know they're very consistent and similar to a project that was built here in town down the street at 4211 and 4215, which is a six unit project, garages underneath, living on the three floors above and then some of these items on the roof and we'll show you examples of that when we get into the hearing. Town Attorney Rubin — Is there anything else Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 3 of 27 that is related to the site? Because they will get into all of this during their presentation. Member Perilman—Just looking at the ceiling, is this about the height, I mean can you tell what the height of the current ceiling is, are we about that? Richard Jones—This ceiling is probably about 23 feet maybe from where I'm standing, maybe a little bit more from where you're standing. Member Perilman — The new structures will be substantially higher than what we are looking at right here? Richard Jones — Not necessarily. We have to look at where this grade is. The 35 feet is measured from grade and I believe there is going to be a little bit of cutting done so that the finished floor of the townhouses I believe might be slightly lower than this elevation and then you go 35 feet from there. So when you look at this ceiling, yes we might be 8 feet, maybe taller than that, but you have to realize from the exterior there's a roof on top of this house, so the 35 feet townhouse would not be any substantially higher maybe than the top of the peak of this roof. Richard Bailyn, 3622 S. Ocean Blvd. — I have a question about the site. The property appraiser's website indicates this site is 0.8 acres which under the current zoning would only allow four units and I wonder where the discrepancy comes in where you come up with 1.05 acres. Richard Jones — We are basing our 1.05 on a survey prepared by a licensed surveyor, it's signed and sealed. I can't vouch for the Property Appraiser's website. They may calculate land area differently, we know they calculate market rate of real property differently than in you know what is typically the case, so that might be an issue but we do have surveys that substantiate the 1.05 acres. Richard Bailyq—And has that survey been verified by an independent surveyor on behalf of the Town? Frank Jichetti — We have given it to the city. Richard Jones— Yes, it's been, it was prepared by a surveyor, we have a DEP engineer that has verified that and it has also been verified by Mike Desorcy, the building official. Richard Bailyn — A lot of people say trust but verify and I wonder if it's his responsibility to verify that survey and get an independent survey to see if indeed the density is appropriate. Richard Jones — We'll just have the building official address that. Town Attorney Rubin—We can address that in the hearing. There will be plenty of time for public questions. At this time, everyone in attendance went outside the property. Town Attorney Rubin- If you could just state your name once more time. Richard Jones — I'm with Richard Jones Architecture. I would just like to bring everybody's attention to the access to the beach here from Ocean Grande. It's an 8 foot wide dedicated easement. It runs along the north edge of the property so the 8 foot dedicated easement that is shown right here is a perpetual easement, it can never be built on, it can never be changed, but at the same time it pinches our property down by an additional 8 feet. When you see the site plan, you'll see how this access has led to you know some challenges with where some of these AC units can be located, and of course it's very important to keep this access, maintain it and even improve it with some landscaping on the south side of the wall, but I wanted to just bring this to your attention because this is a very important feature of the site. Thank you. Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Pate 4 of 27 3008 S. Ocean Blvd. #A,Highland Beach—Site Visit Discussion: Mike Schultz — I am the homeowner here and what I'm proposing is to extend my pool deck out to the orange area which is within my lot line and to place a sauna, right here a spa and remove the spa from the pool decking to here. Very similar if afterwards we can go over to the other end unit on the other side, identical to his pretty well and the pool area if we can go inside and look, we have the air on in there or we can go this way. At this time, everyone in attendance walked towards the rear of the property. Mike Schultz—And here we are going to take the middle portion of about 12 - 14 feet of the pool within the envelope of the pool deck and turn it into an infinity pool coming down so that the water falls down to the ground. Member Perilman - So the pool's going to be right out this way? Mike Schultz—No, it's going to stay straight within the same envelope. Member Neidich—The stairs are coming down aren't they? It's a waterfall. Mike Schultz—It'll look like stairs, it's a waterfall but it's within the deck. So instead of having the deck in front of the pool right here, that will be the infinity pool appearance, so you will not be able to walk around the deck on this side. So basically from this point here, which is about two feet in from the edge of the pool on the other end on the decking we're going to use that deck space and make it tier down to a waterfall. So we'll redo all the landscaping around the side. B.O. Desorcv—Can we go up on the pool deck? Mike Schultz—Yes, we'll just go inside and we'll walk down. Barry Axelrod, 2908 S. Ocean—While we're out here, the cascade part, the waterfall, is that going to be within that line or is that going to be out here. Mike Schultz — Within that line. Member Weiss— So basically, we're just here for moving the sauna? Mike Schultz— And the infinity pool, because now the new ordinance is water has to be 8 feet, 10 feet from the property line, we're already there because this is older. So we're only right now 3 feet 9 inches from the property line and the envelope of the infinity pool will remain within that range. Member Weiss—Okay. Thank you. Town Attorney Len Rubin — Where is the rear property line? Mike Schultz — The property line is approximately a foot in front of the deck here and the same thing a foot on the side. B.O. Desorcv — That was going to be my question, where is the property line? And you want to extend your deck and your spa to the property line? Mike Schultz— Yes, Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 5 of 27 well within, I'm still within the envelope of where it is now. B.O. Desorcv — On the side? Mike Schultz — Yes. The side right here. B.O. Desorcv — All the way to the property line. Mike Schultz — Right here, I `m just keeping the same line right here, so nothing's going to change, I'm just taking it down further, 16 feet. B.O. Desorcv— So your fence, this concrete, this line is not going to change? Mike Schultz — No. B.O. Desorcv — Okay. Mike Schultz — It's not going to change in the new spa area either. So if we walk up on the deck, you'll be able to see it clearer. Okay. We can go right up through here. Member Perilman — The property line on this side, who owns this common area? Mike Schultz—It's a common area. Each person owns a dock. At this time,those in attendance walked along the rear of the property. Mike Schultz— So right here, within here, is where the infinity pool is going to reside. The steps go right down here and it's not going to go past here. B.O. Desorcv — So this will be the outside edge of the last step at the bottom? Mike Schultz — Yes, the trough. Vice Chair Axelrod — The extension you want to add, that's going to go further out than this area. Isn't that yellow line further out? Mike Schultz—No. If you walk over there you can see a little bit clearer. B.O. Desorcv — So the orange line is pretty accurate? Mike Schultz — Yes, extending this right here, the same line is going to come straight out and then to there. B.O. Desorcv—Okay, Mr. Schultz, you're going to put in a water feature? Mike Schultz — A spa, in here. B.O. Desorcv — A wall? Mike Schultz — Yes, just a wall coming up so it blocks from the neighbor. B.O. Desorcv — How high is that wall going to be? Mike Schultz — 6 feet, 6 inches. B.O. Desorcv- From grade? Mike Schultz—From the deck. B.O. Desorcv—From the deck. Okay. Mike Schultz — It can be whatever, that's what we proposed but I can make it lower. B.O. Desorcv — The code only allows the fence to be six feet high. Mike Shultz — Okay. So we'll make it that. B.O. Desorcv — Six feet from the grade. Mike Schultz—Do you want to go inside, we can still look at everything? At this time,those in attendance went inside from the elements. Mike Shultz — I stand corrected, it's only 4 feet, 6 inches high, is the wall. B.O. Desorcv- We'll talk about that at the meeting about the requirements for a fence. Mike Schultz — So all I'm doing is extending the pool deck to there (referenced a rendering). That is kind of an idea, it won't have that. Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 6 of 27 3. RECONVENE MEETING: Chair Donaldson reconvened the meeting at 10:21 AM and called on the Deputy Town Clerk for a roll call. Members Present: Chair Barry Donaldson, Vice Chair Barry Axelrod, Secretary Evelyn Weiss, Board Member Peter Rodis; Board Member Bryan Perilman; Board Member Edward Neidich. Members Absent: Board Member Joel Leinson. Also Attending: Town Attorney Leonard Rubin, Building Official Michael Desorcy, Town Manager Beverly Brown, Mayor Featherman, Commissioner Feldman, Commissioner Zelnicker, Town Clerk Valerie Oakes, Deputy Town Clerk Patrice Robinson and members of the public. 4. ADDITIONS, DELETIONS OR ACCEPTANCE OF AGENDA: Chair Donaldson called for any additions or deletions to the agenda. MOTION: Member Perilman moved to accept the agenda as presented. Member Rodis seconded the motion, which passed unanimously. 5. PUBLIC COMMENTS AND REQUESTS: None. 6. PRESENTATIONS: None. 7. APPROVAL OF MINUTES: • May 12, 2015 —Regular Meeting Chair Donaldson called for a motion to approve the minutes from the Mayl2, 2015, Regular Meeting. MOTION: Member Rodis moved to approve the minutes from the May 12, 2015, Regular Meeting. Secretary Weiss seconded the motion, which passed unanimously. 8. OLD BUSINESS: Chair Donaldson — I have one floating item that has to do with the townhouse at the end. Have we seen their landscape plans yet? For reference this pertains to an old appeal regarding a townhouse that we asked for them to embellish the landscaping on one side as a condition for the approval of the variance. B.O. Desorcy — I have been in touch with the developer and contractor and he's not quite to that landscaping phase of the construction,just yet. But I have reminded him of the Board's request to add more landscaping on that one side to the south building where they had a problem with the setback. I haven't seen anything current but before they get their certificate of occupancy, it will be enforced. If you'd like to be advised or get a call from me once that landscaping plan does come in, we can bring it to the next board meeting Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 7 of 27 when we have one or you can see it on your own time. That's up to you. Chair Donaldson — I appreciate your diligence on that. Thank you. B.O. Desorcv — You're welcome. 9. NEW BUSINESS: Chair Donaldson closed the regular meeting and opened the public hearing at 10:25 AM. The Chairman read the title and summary of the petition. A. Variance Request: 3008 South Ocean Blvd. #A—Public Hearing Application No. 37999 — RELIEF FROM HIGHLAND BEACH CODE OF ORDINANCES SECTION 30-68 (f)(1)(a)(b)(c), FOR PROPOSED CONSTRUCTION TO EXTEND THE POOL DECK INTO THE (SOUTH) SIDE YARD, CONSTRUCT SPA IN THE (SOUTH) SIDE YARD, AND EXTEND POOL AND DECK INTO REAR YARD SETBACK, AT PROPERTY LOCATED IN THE RML (RESIDENTIAL MULTI-FAMILY LOW DENSITY) ZONING DISTRICT. APPLICANT: Michael Schultz Chair Donaldson called for board members to disclose any ex parte communication. Hearing none, called on the Deputy Town Clerk to administer the oath to all those who would testify for any item. Staffs Presentation: Building Official Desorcv — Chair Donaldson, members of the Board, the first item on the agenda for today is for the property at 3008, Unit A, South Ocean Boulevard, Highland Beach, petition for a variance to extend the pool deck into the south yard and construct a spa on the south yard and extend the pool deck and the pool into the rear yard. The code of ordinances requires a 10 foot setback from the rear and side lot lines and pool decks must be set back at least 4 feet from the rear and side lot lines. If the rear property line borders a public body of water, pool deck or decks may extend to not less than five feet from the right-of-way or the bulkhead line, whichever is further landward. If you look at the plans submitted by the applicant, you can see that the decks, the spa deck on the south side of the building encroaches into the setback. If you look at the survey, it's not clear exactly where it is. We all made a visit to the site and the applicant indicated that the deck is approximately one foot north of the property line on the south side of the property. So his intent is to extend to the east another deck to accommodate the new spa and to put in an infinity pool edge on the west side of the pool, which he indicated at the jobsite, that it would not be any further west than the pool deck that is already there. Also, on his plans, he shows a water feature on the south side of the spa area that he wants to construct and the fencing code for Highland Beach only allows a maximum of a 6 foot fence from grade. I don't know if this would qualify as a fence, it certainly looks like one. If you look at the elevation, the design that's included in your package, there is no page number, but it's toward the end, where you see the, there you go Mr. Perilman, you've got it right there, that one. That's an elevation looking south from the house, if you were in the house looking out, you would see that wall, here he has got it at 4 foot 6, but this deck is elevated. I'm not sure exactly where the height off the ground Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 8 of 27 is, we were all there. I would say it's probably a few feet off of the ground, looks like a fence. I'll read you a copy of the code that talks about fences. Town Attorney Rubin —That's 30-68 (e)(1), fences, walls and hedges. B.O. Desorcv—Height limits, fences and walls in residential zoning districts shall not exceed 6 feet in height, hedges are not subject to the height requirements. The height of the fence or wall shall be measured from the lowest elevation adjoining either side of the structure or landscape materials. So, his intent is to elevate it from the deck up 4 feet 6 and that would be the only part of the code that applies to this construction. Are there any questions? Vice Chair Axelrod — The infinity pool, does that affect the code any? B.O. Desorcv—No sir, it's within the parameters of the pool itself. It's still on the property line. It's going to take the place of the pool deck that extends out to the rear of the property, so it's not going to impact anything outside of what's already there. Chair Donaldson — You referred to a water feature, were you referring to the infinity edge when you mentioned that or is there something else at the spa area? B.O. Desorcv — That wall that I was talking about. (Referenced rendering) This is a water feature, there are outlets here, this is a waterfall type of effect, there are some niches in here for candles and it's a cascading waterfall type of feature on that wall. Member Perilman — Are you saying that the wall that looks to be on the south side is or is not within the code? B.O. Desorcv - It's not. Member Perilman — It's too high? B.O. Desorcv — In the code it says wall or fence, and this I consider it a wall, and the height limitations on a wall are 6 feet from grade or from landscape material which is 3 feet below the deck. This area where the spa is going that he's requesting a variance for, this is at the same elevation as the pool deck which is approximately 3 feet above grade. This wall is to be built on top of that deck. Member Perilman — So it would be approximately, what do you have 3 feet above? B.O. Desorcy—Probably closer to 3 %to 4 feet because of the drop off of the grade. It goes from the house down to the swale, so at that point on the outside edge of the deck it's probably closer to 4 feet, 3 %2 to 4 feet above grade. And this is to be built on top. Member Rodis — Is there any reason to believe that because this is on private property on the south side that it will infringe on anybody else's property or cause any instrumental problems with our community? B.O. Desorcv - I'm not qualified to answer that question. That would be for somebody that lives in close proximity, next door, or across the street to speak to that. I really can't. I have to be objective. I don't know if it would impact the neighbors. Member Rodis — Have you heard of any complaints? B.O. Desorcv — No, not to this point. Member Rodis — Okay. Thank you. Member Neidich — You may have already answered that Mike, but there is a, as we just saw at the site visit, there is a, I believe it's a south side residential neighbor that's very close to where that pool extension would be. Have we heard from that individual? I am assuming that individual is not here today, but I don't know that. Have we heard from that individual on any issue involving this case, to your knowledge? B.O. Desorcv—No one has called the building department. I haven't heard anything. Member Neidich— I probably have to ask the engineer this. There is a waterfall feature like steps going down, I don't know if there would be a noise issue. Is that planned to be on all night or is it just going to be on at certain times? Does it make noise, do we know anything about that? B.O. Desorcv — I haven't checked into that. I would assume that it would be running continuously. The pool pump changes the water out of the pool several times a day and that would be a continuous flow from the top of the pool water edge down to the lower trough. So there could be some bubbling noises, some water falling noises, but I really don't Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Paae 9 of 27 know if it would impact the neighborhood. I haven't checked the decibel level of the water. Member Neidich — Thanks. Chair Donaldson- Mr. Desorcy as I understand it, the nature of the infinity pool that raises the variance is that it's considered part of the body of water with the pool itself and that exceeds the setback. B.O. Desorcy—Right. Chair Donaldson — Okay. Thank you. Any other questions for Mr. Desorcy? Okay. Thank you. At this time, the applicant can make a presentation on the variance. If you would come forward, state your name and address. Petitioner's Presentation: Mike Schultz — Thank you council members. To clarify the wall, it's on top of the pool right now. We already have a fence. That fence line is what's going to continue on. The only difference is behind the spa will be cement and tile, so it won't be a see through fence. I believe the code is that you have to have a four foot fence around all bodies of water in a pool so that's what I'm just extending through the spa. The waterfall feature in the spa will go with the spa turning on and turning off, but it's a very slight trickle,the sound would not intrude to the neighbors. In fact,the neighbors are all waiting for me to get this done because they all want to do the same thing to their property. The infinity edge again is a very slow trickle going down the waterfall steps and that is controlled by the flow of the pool so when the pool turns on then the waterfall will continue on doing that. Any other questions you may have? Vice Chair Axelrod — Are you saying this wall will be the same height as the fence that is there now? Mr. Schultz — Correct. Vice Chair Axelrod — No higher? Mr. Schultz—No higher, which is about 4 foot 6. Your drawing there that I had for you is an earlier drawing, but it's about 4 feet 6 is the railing right now on top of the deck. Vice Chair Axelrod — Do you know the distance from that railing to the ground? Mr. Schultz—Well the ground,the deck to the ground is about approximately 3 '/2 feet, so, currently there's about 7 foot 6 inches from the ground to the top of the fence that goes around the current pool. Member Rodis—Do you have any intent on keeping the waterfall at the spa on all night? Mr. Schultz—No. Member Rodis — So in the event that any neighbor complains, you don't have any problems in adjusting? Mr. Schultz —No. In fact, I will be turning it off to save energy. Chair Donaldson — I have a question for legal counsel. The wall itself is not mentioned as part of the variance, but it is part of the submitted information. How should we consider that? Town Attorney Rubin — I mean do you wish to consider that? I was going to ask the building official that question. Do you wish to amend your request to include the variance for the wall because you're going to need the variance for the wall? Mr. Schultz — I guess so, yes. Town Attorney Rubin — My question to Mike is, if you need four feet, anyway, does he really need a variance? That was my secondary question. B.O. Desorcy — Just to follow up on Mr. Schultz's comments, it is a code requirement, in the interest of public safety that there be a pool barrier around spas and pools minimum of four feet in height. So it is a code requirement, but it's four feet. Town Attorney Rubin— Right, so he would need four feet anyway? B.O. Desorcv- He will need four feet anyway as a pool barrier. Chair Donaldson — Regardless of the grade below? B.O. Desorcy — That's correct. Vice Chair Axelrod — I have one question. The only thing that bothers me, to be honest, is from the outside. B.O. Desorcy — For me or for Mr. Schultz? Vice Chair Axelrod - Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 10 of 27 Well actually both. The outside, this is going to look like a six foot wall. Mr. Schultz — Landscaping it will all be. Vice Chair Axelrod — But it's still going to be a six foot wall even if you landscape it and I don't like setting precedents that may cause future problems for us, people saying well he has a six foot wall, we want a six foot wall. Is it possible? Mr. Schultz — It's going to be a four foot wall if that's what the fence grade is, not six foot, that's an error. Vice Chair Axelrod — From the ground up it's going to be more than six feet? Mr. Schultz —No from the pool deck, I will have to follow the same by law. Vice Chair Axelrod — Right, but that wall is going to go all the way to the ground. Is it not? Mr. Schultz — Well it's going to be hollow underneath just like the pool deck. Vice Chair Axelrod — So it will be an opening? Mr. Schultz — It's on pillars. Vice Chair Axelrod — Oh, it's on pillars, so it's not officially a 7 foot wall or something like that. Chair Donaldson—Just to be clear so I understand it, with amending the petition now you are asking for a wall four foot six inches above the pool deck? Mr. Schultz— Just say four feet, I can make it four feet. Chair Donaldson — 4 feet above the pool deck. Okay. Vice Chair Axelrod — Is there any possibility of putting a couple steps down to that pool deck so that wall now instead of being seven foot above the grade will now be 6 foot which is the town code? In other words, from your pool deck have a couple steps down to your spa deck so you are not exceeding the code for the fence, for the wall. B.O. Desorcv — That would be a design consideration for the owner and his contractor to make that modification or adjustment. I really can't require him to do that. Vice Chair Axelrod —No, but if he does that he no longer needs a variance. Is that correct? B.O. Desorcv — I don't know if he would entertain that idea. Mr. Schultz — Because of spacing, I can't do that because I'll only have 9 feet that I'm going out from the house, so if I have a step down to come off the house patio door to step down, I'm going to have to take 3 feet of that at least, minimum of that space. And I want to keep it parallel with the pool deck so this wall really is instead of being a fence, it's just a solid wall. Vice Chair Axelrod — And it will be hollow underneath? Mr. Schultz — Yes,just like the pool is hollow around the whole entire pool deck. You can go underneath it,just the pool itself sits on the ground. Chair Donaldson— Do we have any other questions of the applicant? Does city staff have any additional questions of the applicant? B.O. Desorcv — Just to clarify, the petition is for encroachment of the deck into the side setback, required setback and the encroachment of the infinity pool edge and the trough into the required setback from the rear property line. Chair Donaldson — To raise the question again, is it the spa itself that's encroaching or the deck or both? B.O. Desorcv—The spa and the deck around the spa and the pool. Chair Donaldson— Okay but on the side, the deck already goes out 10 feet. B.O. Desorcv — The pool deck does go out to within a foot of the property line. Chair Donaldson — So he's proposing to go out 10 feet again? B.O. Desorcv — That was something that another board probably approved at some time in the past. Chair Donaldson— Okay, so it's a noncompliant thing currently. B.O. Desorcv—Nonconforming. Town Attorney Rubin — Building Official I have question. If he continued just using the fence instead of the wall, would he still need a variance for the height? B.O. Desorcv — No, he needs that pool barrier, it's a code requirement that they have, all pools be protected by a four foot fence at minimum. Town Attorney Rubin — So if he's only going four feet above the pool deck, he really doesn't need a variance? B.O. Desorcv—No. Town Attorney Rubin— So then it sort of moots out that whole issue. Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 11 of 27 B.O. Desorcy — On his application he put 4 foot 6. Town Attorney Rubin — Okay, well if you go to four foot then, I'm a little uncomfortable because it wasn't advertised as a variance from height, so my preference would be that it just go to four feet because technically it wasn't advertised that way. And I know Mr. Shultz you kind of agreed to go to four feet, I would stick to it at four feet. And that way we don't have to worry about that provision. Mr. Schultz—Not a problem. Member Rodis — Did you tell us at the site that your neighbor to the north has a similar configuration? Mr. Schultz — Identical. The only difference is he has a fence around his spa area. Member Rodis — Okay. Mr. Schultz— So it's the same height as the fence and I can do this wall the same height. It's just I'd like to do the little water feature, that's all. It's not the height that I'm really looking for. Chair Donaldson — Okay, any further questions? Member Perilman — Have you spoken to your neighbor to the south? Mr. Schultz — Yes. He wants to do the same thing as soon as I get approved and the infinity pool too, both, the two neighbors, on the other side to the north of me. Member Neidich — It's a repeat of the same question. But I was concerned because the neighbor immediately due south of you is very close in terms of feet from where that pool would be, where it would be extended to. You can tell us again under oath that you've had conversations with that lady or gentleman, the owner and they have expressly told you that they welcome this? Mr. Schultz— Yes. Member Neidich— And you showed, you made them aware of the entire package of everything that you are doing? Mr. Schultz—Everything that you have, they have been getting, all of the neighbors. Member Neidich — And they welcome that? Mr. Schultz—Yes, they do. And it's all going to be landscaped. In fact I am going to be talking to him. If you look at my first drawing of how the sidewalk goes, we're going to blend our two properties together and make one sidewalk down the middle to get to the boats and so forth. Chair Donaldson — Under special conditions and circumstances, you mention see attachment 1, no special conditions, circumstances are giving the applicant that other owners currently enjoy seeing attachment number 1, which attachment is that? Town Attorney Rubin — It's the attachment that is opposite that page, that's labeled attachment. Chair Donaldson — So there's no graphic, or photographs or anything of that. Okay. Thank you. Mr. Schultz— I should have taken a picture of that's from my spa but I should have got one of his, it would have been a lot easier. Chair Donaldson — Okay the one that says example only. Mr. Schultz — No, his spa, my neighbor's, that's why I put that in there. Chair Donaldson — It's in here (referenced handout). Mr. Schultz —No it isn't. Chair Donaldson— Okay. Thank you. Any other questions? Okay. Thank you. Do any members of the public have any comments on this application? There being none, I am going to close the evidentiary part of the hearing and ask the board members to deliberate the variance. Bryan, would you like to start? Chair Donaldson declared the public hearing closed at 10:49 AM. Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 12 of 27 Board Discussion: Member Perilman — We've seen the property, we've heard the testimony under oath, and we've heard that there is a similar construction at one of the other buildings just to the north. We understand that the owner to the south is looking forward to this construction, so I don't have any objections at this point. Member Rodis — Yes, as my colleague has said, we have seen the property. It's on private property. And based on the owner's testimony that his neighbor to the south is welcoming the configuration and his testimony that in the event the noise from the waterfall might become objectionable later on in the evening to the south, he would make effort to shut it. I find no problem in the request. Vice Chair Axelrod—I have no objection. Secretary Weiss—Being that the wall has to be four foot around any pool area, I have no objection at all. Member Neidich — I have no objection. Mr. Schultz has answered and Mr. Desorcy has answered my questions very much to my satisfaction. And also I think that it's apparent that if there was any real or even slight hint of an objection we would have had communication or certainly somebody would be here today in opposition and there are none. I have no problem with it. Chair Donaldson—I have kind of mixed feelings about this but in light of the fact that we already have a unit there that has this kind of privilege, I find it difficult to deny this applicant a similar privilege, even though we do not have to go by precedent in our votes. But again, lacking any objections from the neighbors, I believe that I can support this. MOTION: Member Rodis moved to approve the request for variance at 3008 South Ocean Blvd., #A, Highland Beach. Member Neidich seconded the motion. Vice Chair Axelrod—Can we put an addendum in for the four foot wall, not the 4 1/z. Town Attorney Rubin—There is no need to. Mr. Schultz agreed to a four foot wall, so there is no need to address that. He'll be limited to four feet. Roll Call: Member Rodis - Yes Member Neidich - Yes Member Perilman - Yes Secretary Weiss - Yes Vice Chair Axelrod - Yes Chair Donaldson - Yes Motion carried 6/0. Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Pace 13 of 27 B. Variance Request: 3621 South Ocean Blvd.—Public Hearing Application No. 38044 — RELIEF FROM HIGHLAND BEACH CODE OF ORDINANCES SECTION 30-68 (u)(4)(a)(c)(1), THAT STATES TWO EXCEPTIONS ARE ALLOWED TO BUILDING HEIGHT PER DWELLING UNIT. APPLICANT IS REQUESTING TO ALLOW AN ADDITIONAL EXCEPTION TO BUILDING HEIGHT FOR THE INSTALLATION OF AIR CONDITIONING CONDENSING UNITS ON/AT ROOF LINE FOR EACH DWELLING UNIT. SIX (6) DWELLING UNITS TOTAL. APPLICANT: Richard Jones Architecture Chair Donaldson opened the public hearing at 10:53 AM. The Chairman read the title and summary of the petition. Chair Donaldson called for board members to disclose any ex parte communication. He disclosed that the landscape architect on this project is a consultant of his on another project that does not involve landscaping and he has no issues with ruling on this. Staffs Presentation: Building Official Desorcy—Bear with me, I'm going to get to the section of the code that talks about exceptions to the building height before I proceed. Item number 2 on your agenda, today is to request relief from the Town of Highland Beach zoning ordinance 30-68 (u)(4)(a)(c). Two exceptions to the building height are allowed per code, and the design of the building at this time they are requesting to put an elevator enclosure up on the roof and parapet walls which would satisfy that requirement. Those are the only two exceptions to the code that are allowed. The applicant is requesting to put air conditioning equipment up on the roof of these units, there are 3 units per building, two buildings on the lot and he indicated at the meeting that there would be a total of four condensing units per unit, so for a grand total of 24 air conditioning units up on the tops of these two buildings. These air conditioning units will be set up on stands and the code requirement on stands is they be a minimum of 18 inches higher than the roof for maintenance of the roof. Before they put the units up on the stands, they'll already be one foot and a half above the roof. You made a visit to the site and heard from the contractor and developer as to what their requesting to be put up on the roof. Member Rodis — I am concerned because at the inspection we discovered that there was a difference of opinion between what the actual site area is. The difference means that on one there is 6 buildings, thus 24 air conditioners and the other might only mandate 4 buildings, so 16 units. B.O. Desorcy—That's something we can talk about. One of the members of the audience had a question about the size of the lot, I think that's what you're talking about. Can we talk about that now? Town Attorney Rubin — We can talk about that now. It wasn't two surveys. It was just what the property appraiser had on their website as to the size and unfortunately the property appraiser, you can't always rely on their lot lines or their size because you're not always sure Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Pace 14 of 27 where their information comes from. I don't want to speak for the building official, but what he relied on was a signed and sealed survey which is what we generally require. Member Rodis — I am concerned only because it seems that across the country, Highland Beach has become a preferred property for full time living and retirement and I don't want any developer in the country to realize that by adjusting the site and zoning and area they may get additional economic benefit. I would rather stop that now rather than in the future and if in reality there are only 4 townhouses available to be built then so be it and if it's six then so be it, but the economic difference between 4 and 6 is major. We are a wonderful town where people love to live and as we found out last year in the Toscana adjacent property, people from California by the way, looked for an advantage and saw that we were able to be persuaded by nonsensical information that we should give them a greater profit than they really were entitled to and I think it's incumbent upon us as our committee to make sure that everybody understands that we will look at the letter of the law and not let any developer generate a profit beyond which they are entitled. If that makes it more difficult to deal with so be it but we have an opportunity to preserve the code that has been in place and I for one would like to maintain that issue is important. B.O. Desorcv — Just to clarify, the number of units is correct for the size of the lot. The code allows six units per acre and the size of the property is in excess of 1 acre so the number of units is correct. And that information is based on a survey that I received and the coastal engineers received from a certified surveyor and mapper. Member Rodis — So you're comfortable with that survey? B.O. Desorcv — I'm warm and fuzzy. Member Rodis—That's all I wanted. Vice Chair Axelrod—Just to clarify something for me, the code allows 35 feet above the dune height for a building, is that correct? B.O. Desorcv — That's correct. Vice Chair Axelrod — This building is going to be 35 feet? B.O. Desorcv — To the top of the roof slab, correct. Vice Chair Axelrod — And then a four foot parapet above that. B.O. Desorcv — That's correct and that's allowed by code. Vice Chair Axelrod — We had a meeting recently on a house they're building right now, where they wanted to go 2 feet above the building and he came for a variance for that 2 feet and he wound up giving up the right to put the elevator shaft up to get that 2 feet. How come he needed a variance and they don't here for a four foot parapet? B.O. Desorcv — The property and the building that you're talking about, he has a four foot parapet wall that goes all the way around. Vice Chair Axelrod — And this was above at four foot? B.O. Desorcv—It's actually six foot above, well it's an additional four foot above the parapet elevation and that was to construct a wall, to protect the stairwell from the weather. The Board of Adjustment allowed that, 16 feet long by 8 feet high from the top of the roof deck on two sides. I believe it was two sides, so that's what he got the variance for. He went four feet above the parapet wall. He didn't get an elevator, but that was the purpose of that structure. It was consistent with the scale of the building and I think you remember. Vice Chair Axelrod — My confusion was I forgot about that four foot parapet that they had in addition to the (inaudible). B.O. Desorcv — That's why he got the variance. Any other questions from the Board? Chair Donaldson — To clarify, is the nature of the variance caused by a prohibition regarding the placement of AC units on the roof? B.O. Desorcv—No, it's the number of exceptions to the building height. They have 2, the elevator enclosure and the Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 15 of 27 parapet wall. If you look in the code the exceptions to the building height shall include functional and nonfunctional architectural features, chimneys, cupolas, towers, dormers, parapet walls, domes and spires. They could have mechanical equipment and an elevator but in order to put mechanical equipment up there, the code requires a fence, protection for anybody that has to go up to the roof and service the equipment. So within 10 feet of the equipment, you have to have a 42 inch rail to protect the technicians from falling, so that's fall protection. So they're looking for the third exception to the building height. Chair Donaldson—Okay,thank you. Member Neidich—Have we heard at all from the fire department on this issue, if they have any opinion on this one way or another from a safety standpoint of there's going to be 24 of these units, is that correct? B.O. Desorcv — The fire department is not concerned about equipment on the roof, unless it's a commercial building where they have a fire department connection or something up there that they would need access to and if it obstructed their equipment they would have something to say about it. Member Neidich — You wouldn't see any, you're comfortable saying you wouldn't see any concern from them. B.O. Desorcv — No. Chair Donaldson — Any other questions? Member Perilman—Is it 35 feet from the dune line? B.O. Desorcv—No, it's from the finished floor level of the structure, the usable space, the habitable space, the finished floor, first floor if you will, not the garage level. The first habitable floor to the top of the roof slab is 35 feet. Or if it was a sloped roof, it would be the mid-point between the eave and the peak. There's a couple of different ways to look at it. But they have a flat roof. Member Perilman — It has nothing to do with the road grade AIA or anything? B.O. Desorcv-No. Member Rodis — Can we mandate that the developer promise to have the air conditioning units setback so they're not viewable from AIA? B.O. Desorcv — The units are going to be in the back of the building anyway, you would never see them unless you were on the top floor of Toscana or you were on the 10th floor of Toscana, you might be able to see them. Petitioner's Presentation: Michael S. Weiner, 10 S.E. I't Avenue, Delray Beach, FL, Attorney for project—The property is owned by Riverside Realty Trust and as you know the location is 3621 S. Ocean Blvd. in Highland Beach. It has been discussed. It's a 6 unit townhouse. Here is the first rendering. (At this time, he made a PowerPoint presentation, attached as Exhibit A) The plans for the townhouses were submitted to the town and they were reviewed by Mike Desorcy and you know we're going to discuss your ordinance that has to do with variances and interpretations of codes. There are some predicates that I have to lay down and so while you may not be bound by the zoning board in this particular instance, there are somethings that we have to talk to you about, about the history of this particular project within this town. So about May 29, 2015, the Building Official actually reviewed the plans, you're going to see this is not that he did something untoward or incorrect or anything else because I'm going to show you that this has happened on numerous occasions and at least one that we know about in the town. It was an interpretation that was moving along in the town for a period of Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Pate 16 of 27 time and so the air conditioning units really weren't a problem. In fact he wrote a letter saying that the plans were in conformance. And then on July 8`" at the Planning Board everybody looked at it again and they said it was in conformance, no problem, they passed it. And from there it went to a meeting at the Town Council on July 28, 2015, then all of a sudden there was a discussion, and if you read the minutes of what happened because it was twice before your town on the 28h and on the 4t', everyone is talking about ambiguities in the code. No one says that the code means this or that, everyone is talking about the fact that there is ambiguities. The developers are trying to work with the system and when it was postponed August 4t', they decided that we'll try to meet the situation head on and they actually put in a petition for a variance. You are allowed to interpret and grant variances. So the ambiguities in the code still might exist one way or another. In fact on September 10'h we go back to the Town Commission on this. But regardless of this outcome, the application was made by my client and we wanted to come to you discuss these variance and interpretations of the code 36-68 (u)(4) and then there is some sub-provisions from there. So it says, not more than two height exceptions including the elevator housing on a defined roof line. In this case, the roof line allows for air conditioning units, an elevator, and as discussed the parapet wall. Let me show you the next slide. This is your bird's eye view, you know if you were looking down okay. You should note that while the parapet wall, the air conditioning, the elevators and the structures are separated structures, so there is really only two height exceptions. Let me show you a cross section for a moment. So there's the cross section. Again, we have been told that there is an interpretation of the local code that states that each independent improvement would be an exception to height and accordingly we are here to interpret the code. So let's first talk about what a variance is and that's under your section 30-40 and as a basis of consideration, you really need to look at this criteria, special conditions, things that are particular to this land, hardships, you're supposed to look at what literal interpretations do and I think that's what really is the problem here, we've made some literal interpretations. You have to make sure it's not a special privilege. You should only grant the variance that's necessary. You should consider the general intent and purpose of the ordinances and you're supposed to look at public welfare. Well, let's look at our situation, first there is a hardship here, look whatever happened and I don't think there was any mean-spirit with respect to this but whatever happened, a developer marched down the line, was told that things met the requirements, were given approvals and now these plans are done and in place and are approved by your planning board. A reversal now is a hardship, okay, that would be a hardship. If you were to revoke and rescind statements that were previously made, that's a hardship. From your perspective, if you were promised that you could build something and then later told you couldn't build it, you'd say I'm under a hardship. Neighboring properties have an 8 foot easement access to the ocean on the north side. Let me just show you this. I think that this was discussed with you by Rich Jones, the architect when you were making the site visit, under the circumstances no improvement can be placed in this area, the normal area for placing air conditioner pads, if it were to be a single family home, by the way when you do townhomes like this, there aren't any place that has the air conditioning down on the ground. Let's just say it was single family, you'd probably be putting it there, but we don't even have that option available. We can't build anything in that 8 foot easement, so there is something unique about and special circumstances with respect Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 17 of 27 to this property. Now let me just show you one other thing here. So this is 4211 - 4215 South Ocean Blvd., very similar to the project that we have and this is what I'm talking about with the ambiguities, so that's their roof top structure plans, the exact same thing, air conditioning in the back, elevator towers, parapet walls that's built. We were lucky enough to get some photographs. You can see what it looks like. That's 4211-4215 South Ocean. I want to come back here for a moment, you're looking from the street, I see one height exception on one building and one height exception on another building, that's all I see. But the interpretation of the code talks about whether or not there is independent improvements, but as a practical matter. And again being concerned about your neighborhood and I mean you're all volunteers and spend so much time here, I know you're concerned about the Town of Highland Beach. That didn't offend anybody when it was built and it doesn't offend anybody now and I think is an appropriate interpretation of your code, it's not maybe a literal interpretation but it's an appropriate interpretation. It is all the elements you should be considering when you consider a matter like this. Now there are some other things that I need to bring to your attention. And that is well could you do something, I mean it, what could happen here. So for a moment what I'd like to do is talk about the engineering of air conditioning for a moment. Mike Lansing, could you come forward for a moment, please give them your background and then let's talk about air conditioning on the ground in a place this close to the ocean. Michael N. Lansing, 2402 W 31' Street, Boca Raton, FL, Principal at FAE Consulting—I am part owner of a mechanical electrical plumbing fire protection firm. We're located in Deerfield Beach. We have currently about 35 employees and we've been in business for 8 years. I've been doing this for 20 years. Over the years, this style project, the townhouse projects, we've probably completed over 30 of them, same style, 3-story. All the jobs we've done, I can say that, I'm under oath, all the jobs, the compressors have been on the roof. We have not been able to find the areas for the condensing units to take place around the property and most of the sites are exactly the same as this. You know you've got an acre, an acre and a % site, very tight, everything is up on the roof. Some of the other things that have occurred when we were talking about this project and how to make the air conditioning possibly if it could even go ground mounted was we're in a FEMA flood level which means all air conditioning equipment and disconnects, anything electrical has to be raised to above that level. What we'd end up having to do is have to mount the air conditioning equipment off the side of the building, so I mean aesthetically we're talking about having air conditioners hanging off the side of the building on both sides, each one of these buildings. Well we said that doesn't make any sense, they'll definitely have to go on the roof with this. Some of the other stuff that we talked about was even if the equipment was able to be mounted on the ground for whatever purposes. We just had a new code change about 2 months ago which has made major, I don't want to say hurdles, but it's made major progress in energy, so the energy efficiency of everything has gone up. So when you take air conditioning equipment which used to be able to be 14 sear or 15 sear, we're now looking at having to be 16,17, 18 sear just to be code compliant. The higher the sear equipment, when we're talking DX equipment, air handler and compressor, basically what that means is your line links are extremely limited. We used to be able to go maybe 120 feet, now we're only able to go between 65 and 80 feet to keep you know basically the capacity and keep the Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 18 of 27 systems running. So that in itself places major design concerns if we were able to basically try to put the equipment on the sides of the building, come into the building and go up to the floors if we need to. So really, design wise, we can't make the system work with the DX system unless we have the equipment on the roof. So you say there's other options. Yes we can go to a heat pump system and put in a cooling tower. The cooling tower we're looking at if we went that route, we have to find a place where we can put basically a 9-10 foot cooling tower that basically is 10 foot long and probably 6 feet wide to basically condition the water to give the condensed water system so we can have no condensing units but just a cooling tower. We do all types of projects. We also do high rise projects. We've got a couple 24-story condos down in Ft. Lauderdale, those I mean when you're talking that type of project that's where you have the ability to put large cooling towers up there. But when you're talking those 3 and four story jobs, basically any project under typically 8 stories we have everything up on the roof as a DX condensing unit to style. That's a little bit about our experience. I've done a lot of work with Rich Jones Architecture and all of our projects have been done the exact same way. So I don't know if you have any questions. Mr. Weiner — So you see that you probably have to violate other provisions of your building code in order to attempt to try and put this anyplace else. There was a case, it's an old one, 1951, but it is a Supreme Court case of the State of Florida it's called Troop vs. Bird. In that case there were ugly pits on the property but there was a prohibition against any building on the property and doing anything on the property and the fellow came in and he asked for a variance and he got the variance and other people didn't like the fact that he was doing something on his property. The important point is that the Florida State Supreme Court said you know what living with this awful aesthetic, that's a special hardship. They called it a special hardship. Living with awful aesthetics of cooling towers and on floor air conditioning units that would be a special hardship, that would be awful and I don't think knowing full well that you want your Town of Highland Beach that you would force it especially under the circumstances where we know it already exists. We know, I get it, there's a debate about your code heights, that's why we're here before you. But regardless of how you interpret your code heights, all we're asking is to duplicate what's been done and approved before. So if you take a look at the requirements under your code for interpretations and variances. We were encouraged that it was alright, we saw other people doing it, even if the ambiguities are there and believe me I'm not conceding to them but I understand why I'm here. Even if the ambiguities are there you are doing no harm. In fact you're probably doing less harm than if you required something else to be done with respect to this particular project in the Town of Highland Beach. I hope you find that persuasive. We're certainly not trying to rebuild the city and we're not trying to put any more units than anybody would let us do and that under the circumstances you see the good sense of why it is that we came before you today, we're here to answer any questions you may have and thank you for your time. Chair Donaldson — Does staff have any questions of the applicant? B.O. Desorcy — No. Chair Donaldson — Thank you. Do we have any members of the public that would like to comment on the variance? Yes, sir, please state your name and address. Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 19 of 27 Public Comments: Glen Goldman, 3644 S. Ocean Blvd. — I'm here as a resident and also one of the board members of Ocean Grande Place, the community right next door to you and across the street from the project at 3621. So as a community, we have a few issues we wanted to bring up, and the first issue is that as a community we were not given any notice of this project at all. Our first notice was actually approximately a week ago or 10 days ago when were given a notice of this hearing today for the purpose of the variance. So that's one concern that we have. The second concern that we have that we brought up earlier on the site inspection that Rick Bailyn brought up was the discrepancy. Mr. Rodis you spoke about that a little while ago, the discrepancy between the tax record being 0.8 acres and the survey at 1.05 acres and as a community we would like to have an independent survey by a surveyor of our choosing asking the town if they would be kind enough to pay for that, so that we can see as a community what the actual size of the property is. Because obviously it is an impact on us looking directly across the street, whether it's going to be six units or four units, it does make a difference to us. The third issue that we have a problem with is that we feel like we've heard a lot about it would be a great hardship to put the air conditioning on the ground level and we've heard from the air conditioning contractor and obviously he's an expert in that. We're not here to say put the air conditioning somewhere else, put it on the ground, what we're here to say is that if you make each unit a little bit smaller, than the air conditioning can go on the roof and then they don't need a variance. And that's our position as a community directly across the street from the property. Thank you. Richard Bailyn, 3622 S. Ocean Blvd. — I am the President of the Homeowner's Association of Ocean Grande which is across the street from this project. We, I want to echo some of the concerns that Mr. Goldman just mentioned, we were taken by surprise that the Planning Board had looked at the plans, approved things and nobody had been contacted whether by the contractor, the owner or Highland Beach itself to allow us to at least chime in or be kept abreast of what's going on. Secondly, I certainly agree because I tried to read the building code with Mr. Weiner that it's very hard to interpret and I'm not even close to even being in that sort of profession, however, I do argue that having this hardship issue which apparently is the only reason that a variance can be approved, it really doesn't make a whole lot of sense to me. The project hasn't broken ground. My understanding is that the land hasn't been purchased and that the hardships are relatively nonexistent, except that it may require a redesign of the program. So first that it will allow certainly the right number of units to be put in and secondly to maybe reconfigure the whole project so that these variances aren't necessary. Highland Beach is a beautiful town. I think it's been a little overbuilt. The project that we're looking at over there I think is a little large for its site and that's obviously everybody's aesthetic opinion and I hate to see the congestion, the traffic and the commotion that having six units across the street from our community will bring. The traffic here because of Town Hall, the Fire Department, the Police Department is very difficult especially in the season and having six more units, I think will be a little bit overwhelming to us and I think that is something that has to be considered as well as this so called hardship issue. And I think Mr. Rodis was very eloquent. I've nothing to add in terms of the actual density of the project and I think that has to really be verified before it moves forward and I Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 20 of 27 think that the whole design has to be rethought so that these variances don't have to be approved. After all the building code was created for good reason and I think although some parts are hard to interpret, I think that some of them have been already transgressed. If you look at the volume for example of the elevator buildings, they're huge compared with what the code actually allows and I think that somebody has to really focus on that because it sounds like the two variances have already been exceeded and to apply a third, it doesn't make a whole lot of sense. Thank you for your attention. Chair Donaldson—Anymore members of the public wish to speak? Okay, thank you. Does the board have any questions of the applicant at this time? Mr. Rodis — I'd like to know about the parking, is that going to be underground? Richard Jones, Richard Jones Architecture, 10 SE I` Avenue — Yes the parking is underneath the building. The required parking for the project is at the grade level and garages. Mr. Rodis — And how much parking will that be? Mr. Jones — I believe it meets the code requirement of 2 per unit. I believe for townhouses. There's more than that. There's room for two cars, plus additional storage in that ground level, if someone had a golf cart or something else. Mr. Rodis — In terms of it being on the ocean side, what is the problem of potential water and flooding and all of that? Have you looked at that? Mr. Jones — With respect to the garage level? Mr. Rodis — Yes and the ocean. Mr. Jones — Well the garage level is built into the dune. It is in a coastal construction zone. It is very common to have a lower level parking built into the dune along the beach. Any construction or any structural walls would be adequately waterproofed and would be covered by the dune itself. The building also has to be designed to withstand the wave crests forces should there be a storm surge. What that entails is if the entire dune washes away, that entire level of parking has to be designed to also wash away and the three stories above maintained and be built to withstand the wave forces. So what you end up with is structural columns on that ground level to support the upper level floors, so it is all taken into account. It is all subject to DEP approval, but it's designed appropriately for the coastal location. Mr. Rodis — And in terms of the egress and ingress, have you designed that so that the traffic that's on AIA, which is considerable, is not going to be problematic by cars going in and going out, stopping and what have you? Mr. Jones—(referencing the site plan on PowerPoint) As a matter of fact that is a very important point that you brought up. In fact the site is designed to minimize the amount of ingress and egress out onto AIA. As you'll notice, we have 6 two-car garages. One might say, why not just have each with six individual driveways where people can come and go out of each driveway. But taking traffic into account, what we have is just two ways in, actually one way in. It's in and one-way traffic and one egress so it's only one way into the community of six and one way out and there are gates and a solid wall along the property line. So you're not going to have a series of townhouses with people backing out onto AIA. You will have people driving in one location head in, driving out in one location egressing. It's probably the safest way to get in and out of the site and control traffic at the same time. Mr. Rodis — And I'm sure the police would be concerned about how much of a backup there would be on AlA. So how many cars are potentially going in before there is a problem on AIA? Mr. Jones — Well again, there's only 6 units, so you know it's based on the number of cars that someone might Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 21 of 27 have and the number of trip counts of people coming and going at the same time. As you know not everybody's going to leave and come back to their unit at the same time, so I would imagine you wouldn't have any more than maybe 2, maybe 3 cars at the most wanting to all get out at the same time through that one way exit. So there's very adequate stacking distance inside the community, not in a public right-of-way and so that you would only get one car egressing at a time. Mr. Rodis — Except at a parry where people are going to be coming in and going out. I just want to make sure that you are looking at that in an appropriate way. Mr. Jones—Absolutely, I think the way it's designed is the optimal site planning method to control the amount of cars coming and leaving. Chair Donaldson — If I can interject here, we're here to consider the variance on the air conditioning, we're not the Planning and Zoning Board. Member Rodis, I appreciate your questions but we need to tie this together to whatever they have to do with the variance that is before us today. Board's Discussion: Member Perilman — I agree with you. Can we go back to the slide that showed the roof area? So the air conditioning units are on the ocean side? Mr. Jones —No, they are on AIA side. Member Perilman — The area behind the air conditioning, those are the elevators? Mr. Jones—That's correct. Member Perilman— Okay, and the elevator area is going to far exceed in height or will exceed in height of the air conditioning units. Mr. Jones — It will exceed in height, the air conditioning units and this (referenced presentation) can give you a good representation of what that would be. Again this line of sight is roughly 50-60 feet above grade. You can see the four foot parapet, there's air conditioning units that would be behind that parapet. Essentially it would be screened by the parapet wall and then you can see the elevator housings there that stick up above that, but again the elevator housings and the parapet are. Member Perilman — Is there a living level at that very top or is that just the elevator? Mr. Jones No, that's just the landing coming out of the elevator then to go outside. On the ocean side there is a 225 square foot terrace that's shown in gray which again is consistent with the requirements of the code. Member Perilman —Again,just to be absolutely clear, the elevator shafts are going to be substantially higher than the air conditioning units which we're being asked to give you an exception for? Mr. Jones— That's correct. Vice Chair Axelrod — A comment was made about the elevator shafts being far in excess of what is needed, can you address that? Mr. Weiner — Well, actually your code calls out exceptions for elevator shafts. It's one of those things that are listed, the code understands the building of townhouses and so it's attempted to clarify probably not as well as it should have, but it's attempted to clarify what's going to happen on a roof, so one of the things they have said realizing of course elevator shafts take some space above the roof line that it's alright to have a height exception of an elevator shaft. Vice Chair Axelrod — Yes, that was mentioned, but what the other gentleman mentioned is that these are very large, much larger than needed. The code has nothing? Mr. Weiner— Your code doesn't. No, the code does not. It doesn't say it can only be 6 feet high or only four. It just says elevator shafts. Vice Chair Axelrod— So you can make that shaft the whole size of the building? Mr. Weiner— Well, but it has to relate to what it functionally and mechanically does. Mr. Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 22 of 27 Desorcy is a very bright man. He is not going to let us come in here and allow us to build three stories above and have no elevator equipment in it and for us to come in with a straight face and say that's an elevator shaft. There is some plain language that's given to your code and that's in protection. I mean if you, hold on let's see here (scrolling through PowerPoint). Vice Chair Axelrod— So in other words, what you're saying is these elevator shafts are not in excess of what is needed? Mr. Weiner — They're not in excess. You see this is the problem with your code, your code talks about height exceptions and then we get into a lot of lawyering. I was not there, I was not hired at the time with respect to the hearings that were held before. You're dedicating so much time to this I'm not trying to bog you down, but the point is up until a certain point, namely the approval of this project, the interpretation of what height exceptions were was one way and then all of a sudden there were ambiguities and that's what was discussed about height exceptions. Maybe we were wrong and we took the easy way out. We came to you and said look we know and this I think goes to the reason that you as a Board make the findings you do. We know that we aren't doing any harm to anything and we know that we have had hardships, we've had difficulties, so rather than get bogged down in legal interpretations forever and ever, let's just tell our case to this Board and under the circumstances, especially when we're not doing any harm, they'll see that we've got an 8 foot easement, we were approved, our plans are on the way. You'll see the good reasons for moving forward. To cheapen these units or try to make them less expensive and actually bring down the Town of Highland Beach in terms of the kind of presentation that it makes to those people who come along AIA doesn't solve anything. It won't take a unit away and won't decrease the traffic. Vice Chair Axelrod — No, but we have a neighbor that has given a reason to oppose this and we have to address that issue because that's what we are supposed to do. And you haven't answered my question. You keep talking about height. I'm not talking about height. I'm talking about size. He said these buildings, these shafts are way bigger than needed, way in excess. I'd like to have that addressed, not the height of it. Mr. Weiner — Right, for a moment that's different than the code and I apologize if I didn't get the nature of your question. But the first point is that the code doesn't talk about it can only be 8 foot high or it doesn't have that, the bigger than needed. We only want what's needed for that. As you saw on the other buildings, it's not so offensive. We don't have to be any higher than 4211. If for some reason that is designed a little bit higher than it should have been, I'm sure Mr. Desorcy and Rich Jones can talk about that. Vice Chair Axelrod—Again, we are not talking about height. When I looked at the picture of the other building, that shaft looked much smaller in width than what you're (inaudible). Mr. Weiner — Do you mind if I talk to the architect, again I'm not the builder, developer or architect, is there some leeway in that? Mr. Jones - There is literally no difference between what you see here and what's depicted on this drawing of 4211 where you have the elevator. It has a landing coming out of the elevator. It's not living space. It's not even air conditioned space. Vice Chair Axelrod — You have windows, a bunch of windows in your picture you just passed. Mr. Jones — We do, and the windows were discussed at the Planning Board. They are not windows that you can see out of. They are accent windows. They let light in. When you come out of the elevator you can see them here. When you look at the elevator itself, the elevator door opens up to a landing, non-air conditioned, that landing then goes to the exterior to the roof top terrace. Again, in Florida, and especially on the beach, you Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 23 of 27 cannot have an elevator door, especially in residential like this, that you're just going to open up and you walk out onto an exterior surface. There has to be some barriers of protection for the elevator shaft itself. So what we have here is our elevator, which is a minimum size residential elevator. I believe it's 4x4 the shaft and you come out of the elevator onto a landing and from there proceed to the roof top terrace. Again, non- air conditioned and non-habitable. Vice Chair Axelrod—How big is that landing? Mr. Jones — That landing is maybe 42 by 6 feet, 42 by 5 feet. Vice Chair Axelrod — 42 feet? Mr. Jones — 42 inches. It's basically. Vice Chair Axelrod — I have no objection to that, but it was mentioned by a resident and we have to answer their objections too. Mr. Weiner— One thing I will say because I know Chairman Donaldson is interested in this. We have to go back on September 10, 2015. What if in your notes, sir, your recommendations, you want to ask the Board to look into whatever issues that were brought here today. I understand it, but there is another meeting which is probably the meeting at which issues such as the size of the survey, which we have total confidence in. But I don't want to start speaking on it because I know that your time is precious and that's not what this is about. But if you need more information, believe me, we have it. But those issues might be addressed and in terms of intensity, traffic or things like that that is what that particular town council addresses and we're happy to hear about them. But nothing that's been suggested will reduce the number of units in any way shape or form with respect to this particular project no matter how you decide to reconfigure it. Chair Donaldson—Thank you. Any other questions? Member Rodis —With all due respect to your point of view about ambiguity and lawyering. Unfortunately, lawyering is something that every community has to be concerned about because the smarter the lawyering, the more the fees, which you're entitled to. But the more the developers say we can do that or we want to do that and our community and our residents who are concerned ask us to protect them from those issues. We have no problem in dealing with the air conditioning variance, however, when there is a new project that has not been built, if we don't, if we are not the first line of defense than the lawyering, as you see in Washington and wherever, will overwhelm us. So we want the people, the residents, the community and our neighbors in rest of the country to understand that we're not pushovers for the ambiguities. We will look at them. We will deal with them. And the time to deal with them is before they're built, not after they're built. Because in the same way that the Mayor may get a call in a year saying there's a backup across the street because there are 12 cars trying to get in and 4 cars trying to get out, it's too late. I appreciate your point of view and I appreciate the ambiguities of the planning board, but it's also our responsibility in 2 years when somebody comes and says well they built it, why can't we build it. So as you're saying, I understand all that and as long as everybody is following our code, which was created for a reason and I think the ambiguities were maybe the fact that we didn't have the equivalent lawyering that you are responding to. So with all of that being said, when developers understand that they will have to come before us if they want to do something bigger and better and what have you and we are all. Chair Donaldson—Member Rodis, do we have a question? Member Rodis — I just wanted to make the point that we are all residents and we don't get paid and we are concerned about the community and our neighbors. Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 24 of 27 Chair Donaldson—Any other questions? Member Neidich? Member Neidich— Piggybacking a little bit on what Member Rodis just said and I'll turn this into a question in a moment. I'm sorry I didn't get your name. Mr. Weiner I would like to ask the two residents who spoke to come up to the lectern for a second. Anyway,just reminding everybody that you're still under oath from before. What I'm having trouble wrapping my mind around and I want to be consistent with what I think Chairman Donaldson is telling us or inferring is that we are to limit our scope to the immediate issue in terms of the air conditioning heights and overall size and whatsoever. However, at the same time as a hopeful protector of the Town of Highland Beach which we all live in, most people in here live in, and the audience live in, wouldn't I be right in assuming or maybe I'm not right that you would rather while driving down A 1 A and more specifically, looking from your homes on the other side of AIA, you'd rather see a beautiful stately mansion than you would this project? Mr. Bail yn — Absolutely, no question about that. Mr. Goldman — And I totally agree as well. Member Neidich—And I would think virtually a 100 %, it's not 101% that the people would agree with that. That's what's problematic for me, far in excess of anything else we're dealing with here. It seems to me that's such an overriding issue. Maybe it's for the planning board. Chairman, maybe we should not be considering that. I don't know. Town Attorney Rubin — We should not be. You don't have control over that. Those were all site planning issues and there's code requirements. You know Mr. Desorcy testified that all the code requirements were met, so that's not the issue, the site planning issues are really for the planning board and for the Commission. You are just concerned with the variance. Member Neidich —Then I'll withdraw that from our attorney's comments. Member Perilman— I have a question that may be best directed to Mr. Desorcy. How many feet are we being asked to give an exception for? What's the size? B.O. Desorcy— You're not asked to give an opinion or render a decision on the amount of feet. The building height is 35 feet. You're allowed two exceptions to the building height. They are asking for a third. It has nothing to do with the height or the overall dimensions of the air conditioning equipment. It's just the exception to the roof height. But like I indicated before, the stands that these pieces of equipment are going to be mounted to will be 18 inches off the roof. So the equipment is going to be higher than 18 inches. Member Perilman — Another 4-5 feet above the stand? B.O. Desorcy —I haven't seen the specifications on the equipment so I can't tell you how wide or how high they are going to be. Member Perilman—Thank you. Chair Donaldson — I'll ask that question to the architect, obviously that does leave you with 30 inches to work within. I think we'd like a comfort/cover level that you'll be able to do that with the equipment you have in mind. Mr. Jones — If I may, there are two methods for attachment of rooftop equipment. One is as Mr. Desorcy had stated a minimum of 18 inch stand requirement. That requirement is to allow somebody to reroof. That code requirement if you have to reroof your roof allows you to get in underneath the stand equipment. That would leave 30 inches for the equipment itself to be mounted on the stands. There is a second method, which is to have a 6 inch secondary slab poured and roofed to that and then just mount the AC Board of Adjustment& Appeals Regular Meeting Wednesday, September 2, 2015 Page 25 of 27 equipment directly on the 6 inch slab. But we feel confident, although we haven't decided on which of those two methods we are going to employ. We feel confident that both of those methods will in fact give us the desired intent of what we show in this plan that the top of the AC units will be screened by the parapet wall which is at its maximum height of 4 feet and already one of the exceptions that we're taking according to the code. We are confident that those two, that those AC units as shown in this line of sight cross section which has been submitted to the town and the DEP as well that they will not be within the line of sight and will be screened by the parapet wall, in our professional opinion. Chair Donaldson—Okay. So my question is if you're looking directly at the plan of the parapet that the unit may be higher than the parapet but it would be out of the line of sight, is that where you're going with it? Mr. Jones — If we employ one of the two methods, we may be 6 inches above, if we go with the 6 inch slab mounted support, we're confident that we'll be in line with the parapet as shown. But in either case, again that would be as you had mentioned, if you were at 39 feet eye level looking straight across at the building, but again the majority of the residents will be viewing this building from the street and we feel that either method would properly screen the AC units and the slab mounted method could ensure maximum height of 4 feet. Chair Donaldson—Okay. Any other questions? Vice Chair Axelrod— One more question. Mr. Desorcy, what I'm getting from this is that the Planning Board has some problem with this project, is that correct? B.O. Desorcv — Initially when I reviewed the plans for the Planning Board hearing, there were some issues with the things on the roof. They had come in with a larger observation deck. They had some other things up on the roof, a planter, an extra wall and the parapet wall was at 5 feet. So they had to modify their plans. They had to give me a revision. The Planning Board did not have a problem. One of the Planning Board members brought up the fact that there might be some ambiguity and that there were some other things that we needed to look at as far as other exceptions to the building height, so that's why we're here. Vice Chair Axelrod— Okay, well my basic question is if we grant this variance, are we tying the hands of the Planning Board? B.O. Desorcv—No. The next step would be to take it to the Town Commission. They have the final approval because it's a multi-family project. That's why there's 6 units allowed on that piece of property. It's not residential single family zoning, its multi- family low density, which allows 6 units on a parcel one acre. Member Rodis — It's not our purview, but one of our neighbors asked to have a new survey done. Again that's not our issue, is that an issue for the Planning Board or an issue for nobody? B.O. Desorcv — No. It's a non-issue as far as I'm concerned. I'm satisfied that they submitted the correct documentation like I said by a state certified surveyor and mapper and the Property Appraiser's website is full of mistakes. I've caught many mistakes. Mistakes on the zoning classification for instance where the zoning would be low density and then you know the property appraiser said it's medium density, as far as the square footage on the property. I don't know where they get their information or what they base that 0.8 acres on. But I did look at the survey and it is spot on. So that's the information I rely on. I'm not a surveyor, I'm not a mapper, that's why we rely on other design professionals and experts, engineers, and Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Paee 26 of 27 architects. They're very skilled at what they do, so that's where we get our information from. Member Rodis—Okay. Thank you. Chair Donaldson—Any other questions? Okay. Thank you. At this time, somebody in the audience wished to speak. Chair Donaldson — Sorry, we have closed that part. I'm sorry. We're going to close the evidentiary part of the hearing and I'm going to ask if the Board has any further deliberation that they would like to consider or discuss. Chair Donaldson declared the public hearing closed at 11:55 AM. Chair Donaldson called for a motion to approve, approve with conditions, or deny the variance request. MOTION: Member Perilman moved to approve the request for variance at 3621 South Ocean Blvd., Highland Beach. Member Rodis seconded the motion. Roll Call: Member Perilman - Yes Member Rodis - Yes Member Neidich - Yes Secretary Weiss - Yes Vice Chair Axelrod - Yes Chair Donaldson - Yes Motion carried 6/0. Board of Adjustment& Appeals Regular Meeting Wednesday, September 2,2015 Page 27 of 27 10. ADJOURNMENT: There being no further business to come before the Board, Chair Donaldson called for a motion to adjourn the meeting at 11:55 AM. MOTION: SecrelM Weiss moved to adjourn the meeting at 11:55 AM. Member Neidich seconded the motion, which passed unanimously. u APPROVED: Barry Don so , C air Barry Axelrod, Vice Chair CEvelyn iss, Se re Absent Joel Leinson, Board Member B an Peril , Boardmb 'i f 7 TOWN SEAL Pe, /'Rodis, h6ard Me"niiber ; I ATTESTED: , �`. Edward Neidich, Board Member Patrice Robinson, CMIC Deputy Town Clerk Date: 13( - 1t)-a015 N i+ 7 t !.45 i L fi.f J Ij' t 4 Ot kl . ,} G Wd d x F ti s r n r 41 r. r� # ! 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