1986.06.20_TC_Minutes_Special• TOWN OF HIGHLAND BEACH
Minutes of Meeting of Town Commission
SPECIAL MEETING
Friday, June 20, 1986 1:00 P.M.
A Special Meeting was called to order by Mayor Edward J. Sullivan in
the Town Commission Chambers of Town Hall. Also present were Vice
Mayor Mary Louise G. Blosser and Town Commissioners John J. Basso and
William A. Grier. Commissioner Betty Jean Stewart was absent.
Also present were Town Attorney Thomas E. Sliney, Town Attorney David
K. Friedman, Town Manager Hugh D. Williams, Building Official Bruce
Sutherland, Town Clerk Mary Ann Mariano and various members of the
public.
Mayor Sullivan noted that the meeting was called for three purposes,
namely:
1. Town Lots 101E/W (Proposed development by Concordia
Properties, Inc. - Philip Colman)
2. Boca Raton Interlocal Agreement and communications
I antenna
3. Broadview Savings and Loan (Hoffman)
Mayor Sullivan gave a report on the status of the Colman request ~ ;
involving Lots 101E/W. The general public was informed that Mr.
Colman held a contract for the option to purchase Lots 101E/W which r`"-;.
would expire on June 30, 1986. Mayor Sullivan stated that the purpose
of the meeting today would be to again review Mr. Colman's request for F'`
a transfer of density from the west lot to the east lot, after which
comments from the general public would be entertained.
Present, representing Concordia Properties, Inc. were Philip Colman,
Developer, Harry B. Smith, Attorney and Paul Twitty, Architect. Mr.
Colman as well as Attorney Smith and Mr. Twitty addressed the general vn~
public, reiterating the proposals made to the Town Commission and
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Planning Board at earlier meetings. Mr. Colman's request initially ,t
was for a 60 unit building (to be known as Villa Mare) on the east
side of the property and a public Japanese Garden and access to the
Intacoastal on the west. The garden would encompass two hidden
private tennis courts for use by the Villa Mare residents. At the
June 3, 1986 Regular Meeting and at the suggestion of Commissioner
Stewart to provide more assets which would be beneficial to the entire
Town, Mr. Colman offered $100,000 towards the creation of a Town park
behind Town Hall. At this point, Mr. Colman also offered to reduce
the density to 55 units, still providing access on the west to the
Intracoastal, however, elim~ating the creation of the Japanese garden.
Mr. Colman stated his position that lot 101 had been "spot zoned" in
the last zoning ordinance and that 3DS Investments, the present owners
of the property would continue pending litigation. If a resolution of
this matter can be agreed to, Mr. Colman has the authority to dismiss
Town Commission Special Meeting
June 2f~, 1986
Page 2 of 7
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the legal action. Mr. Colman also stressed the fact that the Planning
Board has supported the project calling it "good planning and an asset
to Highland Beach".
Mayor Sullivan then solicited comments from the general public, after
reading letters from Marvin Waldman, dated June 12, 1986 (Planning
Board Member), and Al Schiff dated June lg, 1986 (President of Seagate
of Highland) both opposing the project into the record, copies of
which letters are attached hereto and incorporated herein by refer-
ence.
Mr. Peter Genovese, former Town Commissioner and resident of Aberdeen
Arms, addressed the Town Commission urging their rejection of the
proposal inasmuch as the zoning code states that no transfers of
density are allowed. Mr. Genovese sated that the Town Commission was
elected to uphold the code and therefore must reject the proposal.
Dr. Beverly Clark, resident of Ambassadors East questioned whether the
transfer of title to the property was merely the name with the same
principals involved. Dr. Clark was assured that Mr. Colman had no
affiliation whatsoever with JDS Investments.
Mr. Michael Dent, resident of Bel Lido spoke in favor of the project,
stating his opinion that inasmuch as this property was presently in
. litigation, that the zoning ordinance need not be adhered to.
Mr. Charles Morris, resident of Ambassadors East Building #3 stated
that he was in favor of the project because a taller building would
alleviate the problem of other residents adjacent to the proposed
building having to look down on a rooftop and mechanical equipment.
Mrs. Shirley Burry, resident of Seagate of Highland, did not express
approval or disapproval of the project but requested clarification of
some of Mr. Colman's statements which was provided.
Mayor Sullivan then stated that he could not support the proposal as
it was illegal and not in compliance with the zoning ordinance. Mayor
Sullivan stated that the 1984 zoning ordinance was specific in
clarifying language in Section 5.7 not to allow density transfers and
therefore he could not support Mr. Colman's proposal. The Mayor did
note that Mr. Colman had other remedies i.e. buying the property and
building what is allowed, or buying the property and attempting to
have the zoning changed.
Vice Mayor Blosser concurred in Mayor Sullivan's statements further
noting that although Mr. Colman felt his property as unique, Lots 114
and 115 (Holiday Inn) would be in the same position when their 20 year
grandfather limitation expires according to Section 6.4 (f) of Chapter
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June 20, 1986
Page 3 of 7
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30. Vice Mayor Blosser noted that if a possible zoning amendment were
considered, it would have to be made to follow the procedures as
promulgated by local and state laws.
Commissioner Grier read the following statement into the record:
"This Commission has before it a site plan which the Planning Board
has quoted as "representing good planning which would be an asset to
the Town". An asset to the Town, so what are the problems? One is
building height, the other is so-called transfer of density. Now as
to the height, this zoning district on the east side of AlA extends
from Villa Magna on the north through Ambassadors east on the south.
When this zoning was finalized with the passage of Ordinance 503 in
September of 1984, it contained east of AlA just one undeveloped lot,
namely 101E. Every other property within this zoning district east of
AlA was already developed. The one undeveloped lot is sandwiched in
between Ocean Terrace North and Beachwalk East, each a high-rise of 12
stories or more above AlA and the three buildings of Ambassadors East,
each of which is a 12 story building, so this zoning ordinance two
years ago, told the then owners JDS that in between these five tall
buildings the public welfare and the character of the community
mandates that that owner can only go up two thirds as high as the five
buildings immediately surrounding him. To me, that's an anacronism.
The character of this particular part of the community has already
been set. Of the sixteen building sites in this district, one is the
non-conforming use that the Vice Mayor just mentioned. Four of them
are mid-rise or higher, and nine are high-rise. These latter high-
rise include Villa Magna, Highlands Place, Trafalgar and Ocean Dunes,
plus the five immediately adjacent to Lot 101E.
The second question is to the density and the transfer thereof.
Section 5.16 of the Code explicity permits the transfer or combination
of density if the lots being combined are adjacent. If the Colman lot
were adjacent, if the two Colman lot properties were adjacent, there
would be a combined density on Lot 101E/W of 68 units, 13 less than
the 55 which he is presently proposing. However, his lots are not
adjacent, they're on opposite sides of AlA so that the prohibition of
the second section, of Section 5.7 would seem to apply. the problem
here is that Section 5.7 and 5.16 in relation to one another are
extremely difficult to understand or comprehend. Section 5.7
prohibits the combination of opposite lots except where desireable in
relation to yards, setbacks or plot area requirements. However, if
lots are opposite one another, I fail to see how the combination, it
is physically impossible to affect the side yards if they are opposite
to one another it is physically impossible to affect the front yards
and yet the ordinance says in 5.7 says that if it can be done, you can
• do it, but you can't do it. The only thing that can be affected when
the lots are on opposite sides is the plot area and that 5.7 says you
can combine for that purpose, however, Section 5.7 then purports, then
goes on to say, that you specifically cannot transfer density across
the street from one another so therefore, what does 5.7 mean when it
Town Commission Special .Meeting
. June 20, 1986
Page 4 of 7
puts this exception in there? It says you can do these things pro-
vided for one of three purposes, two of them are physically impossible
to do if they're on opposite sides and the third one in one breath
says you can do it and in the next breath says you can't. Now it
seems to me and I think it's fairly axiomatic in the law that every
part of every statute is to be given effect if at all possible, but
the only way that any effect can be given to the three part exception
in Section 5.7 is to eliminate or disregard the very same sentence
that prohibits the transfer of density. Now what's so horrible about
transfer of density, that it's got to be prohibited? The intervention
of a street in between these two lots, does that Affect municipal
services, traffic, safety, welfare and density any more or any less
because there is a street between than if the lots were contiguous? If
the lots are contiguous, transfer of density is okay, according to
5.16, but if a street intervenes, Section 5.7 says no. That I submit
makes little or no sense.
Completely aside from height or transfer of density there still is a
third question. Namely, if we allow Mr. Colman to go ahead, are we
setting a precedent for others, will it come back to plaque us in the
future? For example, the Holiday Inn to which the Vice Mayor has
• referred, or in a different zoning district, the relatively mall
buildins that are in between the area of the Clarendon and Villa Nova.
The Holiday Inn, is of course a non-conforming use, presumably it is
profitable and I assume it is going to be profitable and in existence
until the 2fd year period the Vice Mayor referred to. I don't know
what is going to happen down there. I will point out however, that it
has already been surrounded on both sides by high-rise buildings. At
any. rate, I think that's a question for the future. We're dealing
right now with a vacant lot. As to the smaller buildings in the area
of Villa Nova and the Clarendon, they'r~elatively small properties,
they're in a lower zoning district, they probably would have problems
not only as to the height, but also set backs, lot coverage, unit
sizes and so forth, but at any rate, the whole matter of precedent is
a matter of degree. I can paraphrase the Town Attorney, the more
dissimilar the properties and the proposals, the less likely it is
that this Colman thing would constitute a precedent.
Now in relation to the Ocean Terrace East litigation, the Town
Attorney has previously advised that the issues are probably.issues
of "first impression in Florida" and it is therefor "hard to predict
the ultimate decision in this case". If the plaintiffs who are JDS(and
incidentally I was quite amused to find out how that name derived as I
live in Ocean Terrace North} should succeed in their litigation, the
entire zoning scheme could be in jeopardy. Now I question whether
this commission really wants or this community really wants to run
• that risk.
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June 20, 1986
• Page 5 of 7
Finally, do we as a Town have power to compromise or settle zoning
litigation. It seems that we do if there is a basis, if there is a
bonafide controversy and the settlement is made in good faith and not
collusively. To quote from the Town Attorney in rd ation to this
point, "since the possibility exists, thy,court could rule that the
density of the property is zoned too low and that the height restric-
tion is too restrictive". A compromise under which the height
requirement is relaxed and the density is reducedfromthe present
zoning limits to 60 units with all units being located on the east
side apparently would be reasonable. Highlands Plance represents, it
is my understanding, a degree of compromise between the developer and
the Town. The Teron property certainly was a compromise situation, in
this case, judicially induced. I submit that our standing in the
courts as a Town would not be enhanced if we acquire a reputation for
undue rigidity that we accept reasonable compromise only if pressured
to do so by a court. I agree with the Planning Board's resolution
that this site plan as submitted by Mr. Colman represents good
planning that would be an asset to the Town, furthermore, in addition,
th Colman proposal for lot 101 W, namely the park area, constitutes an
important first step to what would be a system of "an attractive open
space" as is recommended in the Comprehensive Plan.
• I therefore would propose to go along with Mr. Colman's proposal."
Commissioner Basso noted that he concurred in the statements of Mayor
Sullivan and Vice Mayor Blosser and therefore opposed the proposal.
Mr. Colman then stated that he would be willing to further reduce the
proposed building to 50 units.
Attorney Sliney stated that all proposals are unique and that th Town
should use its best judgement in each situation. Attorney Sliney
further stated that the Town was not obligated to accept any proposals
which do not conform to the Town Codes.
MOTION was then made by COMMISSIONER BASSO/VICE MAYOR BLOSSER to deny
the proposal as submitted by Concordia Properties Inc. with regard to
Lots 101E/W. Upon roll call vote, Commissioner Grier voted no. Mayor
Sullivan, as well as Vice Mayor Blosser and Commissioner Basso voted
aye. The MOTION carried 3-1.
A five minute recess was taken at this point in the meeting. -__~;
Upon re-convening the meeting, Mayor Sullivan announced that the re- 1--Y'
quest involving the Hoffman property would be taken up at this time -~
and would be limited to discussion of the fill permits. It was -rte,
further noted tha this request originated with a letter from Alan ``~~
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June 20, 1986
Page 6 of 7
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Ciklin, Attorney for Broadview Savings and Loan Association. Also
present were Mr. Paul Hoffman, Ken Slinkman, Attorney for Mr. Hoffman
and Neil Gianov, engineer for Darby and Way. There were other several
unintroduced representatives.
Attorney Ciklin noted that pending DER and Army Corps of Engineers
permits for dredging and filling on the Intracoastal side of the lot
were to expire on August 1, 1986 and October 1, 1986. The Army Corps
letter cited a starting date of August 16, 1986 and further stated
that no more extensions would be given. Attorney Ciklin stated that
this permitting process had taken years and therefore a request was
made for the Town to issue the dredge and fill permits to avoid
expiration of the DER and Army Corp permits. Attorney Ciklin stated
that this clients felt that all requirements under Chapter 15 1/2 had
been met and therefore a permit should be issued.
Substantial discussion ensued regarding several Code Sections prohib-
iting the issueance of separate permits, including Section 8.1 of
Chapter 3P! and Section 15 1/2-3 requiring the concurrent issuance of a
building permit. Section 8.1 of Chapter 30 cites "piling permits"
while Section 15 1/2-3 cites "finger canals, lagoons, or yacht
basins". It was contended that the request involved the construction
of a barrier island and not the cited prohibitions. Attorney Ciklin
further contended that his clients had attempted to deliver plans
within the past 60 days for the construction of a permanent recreation
building on the east side of AlA to tie the dredge and fill permit to
a building permit, which plans had not been accepted by the Town.
The Town Manager noted that the plans as submitted larked information
and therefore were not accepted. Confusion arose as Attorney Ciklin
noted the information had been submitted to the Town's attorney
several months ago. This information had not been given to Town Hall.
There was confusion as to a lack of communication inasmuch as litiga-
tion had been instituted by Broadview Savings, thereby creating a
stall in communications between the applicants and Town stall except
through legal counsel.
Mr. Williams also contended that a report from himself as chief admin-
istrator was called for in the Code, which report had not been
prepared due to the lack of information, which he was unaware was in
the possession of the Town Attorney.
Further, Mr. Williams reminded the Tdi~ Commission that the Town's
water main ran under the Intracoastal Waterway in close prominity to
th proposed dredging. Mr. Williams further recommended that an
opinion be obtained from engineers representing the Town as to
possible detrimental effects on this water main. Neil Gianov, of
Darby and Way, stated that he would be happy to make all their records
Town Commission Special Meeting
June 20, 1986
Page 7 of 7
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available to the Town's engineers. Inasmuch as Camp Dreser & McKee
have prior knowledge in this area, they will be requested to provide
the Town with an opinion on this.
Commissioner Basso raised the issue as to whetl~ the Hoffman repre-
sentatives would construe the issuance of the dredge and fill permit
as approval for the construction of any marina, docks, buildings, etc.
on the property. Mr. Hoffman, as well as Attorney Slinkman and
Attorney Ciklin all contended that any approval of a dredge and fill
permit would in no way be construed as entitling them to approvals for
other matters in the future. At the request of Commissioner Basso, a
statement in writing to this effect will be provided to the Town.
With regard to the semantics regarding the type of permit being
requested versus the prohibition in the Town Code of separate permits
being issued, the Town Commission authorized the Town Attorney to
obtain an expert opinion from Gee and Jensen, planners familiar with
this project.
Mr. Williams and Attorney Sliney will attempt to have all the documen-
tation necessary at the July 1, 1986 Regular Meeting, at which time
this matter will be re-addressed.
The final matter discussed at this Special Meeting was the Interlocal
Agreement between the Town and the City of Boca Raton for police
communications services. The Town Attorney noted that language in
Paragraph 11 regarding indemnification had been amended by Boca Raton.
Attorney Sliney stated that even with the amended language, the Inter-
local Agreement adequately protected the Town and therefore
recommended its approval. MOTION was made by VICE MAYOR BLOSSER/
COMMISSIONER BASSO to approve the amended Interlocal Agreement between
the Town of Highland Beach and the City of Boca Raton for police
communcations services, which MOTION carried unanimously.
Due to the lateness of the hour, the matter of the placement of a
communications antenna will be taken up at a Special Meeting to be
held on Tuesday, June 24, 1986 at 1:(30 p.m. prior the Workshop
Meeting.
This meeting was duly adjourned at 4: 5 p m.
APPROVED:
Edward J. ullivan, Mayor
Mari Louise G. Blosser, Vice Mayor
Jghn Basso, Com ~ssioner
~ q/ ~ ~~~~~ ~,
ATTE T: William A. Grier, Commiss~.oner
OW C RK ~~~
DATE• ~--„~-$~p Betty Jean Stewart, Commissioner