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2020.07.09_PB_Minutes_RegularTOWN OF HIGHLAND BEACH TOWN VIRTUAL PLANNING BOARD REGULAR MEETING MINUTES Town Hall / Commission Chambers Date: July 09, 2020 3614 South Ocean Boulevard Highland Beach, Florida 33487 Time: 9:30 AM 1.CALL TO ORDER 2.PRESENT UPON ROLL CALL Member Roger Brown Member Ilyne Mendelson Member Brian DeMoss Member Harry Adwar Member John Boden Vice Chairperson Eric Goldenberg Chairperson David Axelrod Town Attorney Leonard Rubin Town Planner Ingrid Allen Deputy Town Clerk Beverly Wright 3.PLEDGE OF ALLEGIANCE The Board Members led the Pledge of Allegiance. 4.APPROVAL OF THE AGENDA Chairperson Axelrod asked if there were any additions, deletions or corrections to the agenda. Hearing none he asked for a motion to accept the agenda, which resulted as follows: MOTION: Member Adwar moved to accept the agenda as presented, Seconded by Chairperson Goldenberg, which passed (7 to 0) unanimously. 5.SWEARING IN OF THE PUBLIC Chairperson Axelrod asked those giving testimony to raise their right hands, to state and spell their full names and to give their affiliation with the applications being presented to be sworn in. Deputy Town Clerk Beverly Wright swore in those giving testimonies. Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 2 of 17 6. PUBLIC COMMENT Chairperson Axelrod advised that the Town Clerk’s Office received multiple public comments for New Business Item 9A and that the public comments would be read into the record during discussion of the item. 7. APPROVAL OF MINUTES A. June 11, 2020 Chairperson Axelrod asked the board members if there were any corrections to the June 11, 2020 Minutes. Member DeMoss requested the language of Choeff Levy Fischman Architecture Design regarding building a new seawall in front of the existing seawall with regards to retaining soil, undermining and suction, be added to the minutes. MOTION: Chairperson Axelrod moved to accept the minutes as corrected, Seconded by Member DeMoss, which passed (7 to 0) unanimously. 8. UNFINISHED BUSINESS: There were no Unfinished Business items. 9. NEW BUSINESS: A. DEVELOPMENT ORDER APPLICATION NO. 19-0001 (RICHARD TOUCHETTE) APPLICATION BY RICHARD TOUCHETTE REQUESTING AN AMENDMENT TO A PREVIOUSLY APPROVED TEN POST PLATFORM BOAT LIFT (APPLICATION NO. 39412) IN ORDER TO INCREASE THE HEIGHT OF THE BOAT LIFT FOR THE PROPERTY LOCATED AT 1006 GRAND COURT. Chairperson Axelrod read Item 9A into record and asked the board members if they had any ex parte communications? Member Mendelson disclosed that the firm Sachs, Sax and Caplan, the law firm involved in this case, also represented Toscana South, the development where she and Chairperson Axelrod resides and are both board members. She advised that she had never spoken with any of the attorneys involved in this case and that her statement was not ex parte communication; however, she wanted the disclosure recorded. Chairperson Axelrod corroborated Member Mendelson disclosure and advised that he had never spoken with anyone from the firm either. Member Boden gave ex parte communication that he had visited the site to personally inspect the property. He said he had inspected the site from property address 1005 Grand Court and he had spoken with the property owner of the address at that time. He said he had no indication that there was anything improper action conducted on his behalf. However, he wanted to advise the board about his visit. Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 3 of 17 Town Attorney Rubin commented that Member Boden’s action was okay and that his disclosure was ex parte communication. Chairperson Axelrod opened the public hearing, calling Town Planner Allen to present her testimony and recommendation on the application. Town Planner Allen gave testimony with a brief background of the previous Planning Board approved application No. 39412 for February 8, 2017 and October 11, 2017. She advised the board that the information could be found in Attachments No. 1 and No.2, on page numbers 29 and 74 of the current agenda packets. Member Mendelson asked Town Planner Allen was the construction project halted by the Town and if so, why? Town Planner Allen advised that correspondences from previous Building Official, Jeff Massey, gave an explanation to the stop work order and that she had summarized some of the explanation on page No. 13, in the staff report of the current agenda packet, which indicated the bottom elevation of the boat lift beam was 4-feet and; therefore, placing the bottom of a boat lift beam of any elevation other than 4-feet, whether it were lower or higher, would constitute work not according to the plans, as defined in Florida Building Code 107.4. Member Mendelson asked Town Planner Allen if it meant that notwithstanding all the other approvals the applicant did not receive, that it was not to code (inaudible/unintelligible). Town Planner Allen commented, correct. Member Mendelson asked if in addition to asking for something with more posts and higher up that they wanted and they did not receive permission for, (inaudible/unintelligible/background noise). Town Planner Allen advised that on May 23, 2019, previous Building Official Jeffrey Massey issued a stop work order permit, which is Attachment No. 3., on page No. 109 of the current agenda packet. Town Planner Allen continue with testimony by presenting a PowerPoint Presentation (PPT) of 1006 Grand Court, which depicted aerial photos of the property, the boat lift (taken by the town’s Co-compliance Officer demonstrating its current appearance) and site plans. She read the applicant’s newly proposed Development Order requesting an amendment to a previously approved 10-post platform boat lift and the Code of Ordinance Chapter 30 Zoning language into record. Also read into records was the report from Applied Technology and Management Inc., (ATM) Coastal and Marine Engineering, town’s Consultant Dr. Michael G. Jenkins, the response letter to (ATM) from Mr. David Nutter of B&M Marine Construction, and documents from the Florida Department of Environmental Protection (FDEP) and the United States Army Corps of Engineers (USACE). Town Planner Allen advised that Dr. Jenkins and the town’s current Building Official, Jeff Remas were part of the Zoom meeting and were available to answer questions, if any. Chairperson Axelrod thanked Town Planner Allen for the excellent presentation and asked the board if they had any questions for staff. Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 4 of 17 Member Brown asked for clarification regarding the approvals of the 8 and 10-posts and about a discrepancy with the verbiage about the 30,000 and 40,000-pound lifts. Town Planner Allen advised that on February 8 2017, the Planning Board reviewed a request for an 8-post platform boat lift for a 40,000-pound capacity boat lift and that the DTL document said 30,000 pounds, which was inconsistent. It was 40,000 pounds and that on October 11, 2017, the applicant came back before the Planning Board requesting the two additional posts, which was granted, totaling 10-posts. Member Mendelson asked why construction was stopped on the project. Planner Allen advised that the previous Building Department Official, Jeff Massey indicated that the bottom elevation of the boatlift beam was 4-feet and, therefore, placing the bottom of the boat lift beam any elevation other than 4-feet, whether it is lower or higher, would constitute work and not according to plans, as defined in Florida Building Code 107.4. Member Mendelson commented that even with the approvals of FDEP and the USACE reports, read earlier, the need to change to 12-feet height, it appeared that construction would not be within the Building Department’s town code. She asked how it could be fixed. Town Planner Allen advised it was why the applicant was before the board today. Conversation between them continued. Town Attorney Rubin advised that what was before the board was the height of the piling, not the violation to the town code. If the board determined that at the higher level, it was in accordance with the code requirements; it would not violate the code. Member Brown asked if the 10-posts would be pulled up and relocated (his understanding of page No. 104). Town Planner Allen and Town Attorney Rubin both, answered, no. Town Planner Allen advised that the applicant was looking to get approval for additional height of the 10-posts that are currently at the location. Member Brown advised that page 104 of the agenda said that the 10-post would be relocated. He said that the aerial photograph showing the property lines looked like very little space between the lift and the other property lines, encroaching on the navigable waterway space. Member DeMoss asked about the likes and dislikes of the public comments regarding the project. Chairperson Axelrod advised that public comments were received, but would be discussed later on in the meeting. Member Adwar advised he had been in discussion with Planner Allen for about 1.5 years reference Mr. Touchette’s project and that his neighbors objected to the installation of the large boat lift. Chairperson Axelrod asked if the amendment was specifically for an increase in height. Town Planner Allen responded it was for the lift pilings. Chairperson Axelrod stated that the building permit and the FDEP had expired because of time and the change in the project. That new certifications were needed. He asked if Grand Cay Architectural Board had initially approved the project for it to move forward and if the change in size was approved? Town Planner Allen referred the question to Town Attorney Rubin, who advised that the town does not enforce Home Owner Association (HOA) requirements. Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 5 of 17 He said that the town only enforced town code requirements. That HOA requirements were essentially private contractual rights among the members of the association. Chairperson Axelrod asked Town Attorney Rubin if this could be consideration when the board made their decision. Town Attorney Rubin responded to take it out of public comment, sure, but it is not. He commented that the HOA requirements were not the town’s requirements. Member Brown asked if the piling were being moved. Town Planner Allen advised that the drawing indicated the pilings would not be moved. Chairperson Axelrod asked if there were other choices besides approving or not approving and if the board had the ability to say a new plan needed to be resubmitted, for the board to approve it to go forward. Town Planner Allen asked in terms of what? Chairperson Axelrod answered requesting a plan for the boat dock, with the pilings and everything that had been requested within the consultant’s discussion. He asked if the board could throw out everything and ask the applicant to start over, if so desired? Town Attorney Rubin responded no. That the applicant had valid town approval for 10-pilings. That the applicant would need to get a new building permit and had to go back to FDEP. He said the only issue is whether the board wanted to allow the increase in height because when it was approved, it was called out as 4-feet, now it is 12-feet. That it was the issue before the board today. Chairperson Axelrod said that there was nothing in the code about height of a boat lift. Town Attorney Rubin asked about the height of the pilings, correct. Town Planner Allen advised that there was no maximum height. Vice Chairperson Goldenberg asked if the applicant disregarded the approval for the height of the pilings. He said he was a bit confused about the approval of the pilings for 4, 8, and now 12-feet. Town Planner Allen advised that in the detail sheet of February 8, 2017, the first approval by the Planning Board, showed the lift pilings at 4-feet from the existing dock. Vice Chairperson Goldenberg asked if the application was not approved, if a saw could be taken to the pilings, to bringing them back down to 4-feet? Town Planner Allen advised that as Town Attorney Rubin had mentioned, the applicant had approval for the existing dock. Vice Chairperson Goldenberg stated that basically they disregarded the approval and just went to a higher piling. Town Planner Allen responded yes. Chairperson Axelrod asked if the board had any other questions for Town Planner Allen. Member Brown asked Town Planner Allen was the ATM the consultant she hired? Town Planner Allen advised that the ATM consultant was hired by the town. Member Brown said that page 115, of the ATM’s report, on the navigable waterway, basically said that nobody was paying attention to anything in the canal, so if nobody had paid attention to it in the past, why were they paying attention to it in the future. He said he did not know if he necessarily agreed with that. He said that there were zero lot line homes, which only had one place to put a boat lift and that the applicant’s boat lift goes out 17-feet, which is a really big boat. Chairperson Axelrod advised that Dr. Jenkins from ATM would have the opportunity to respond to questions later on in the meeting and advised that the applicant and the applicant’s assistance could make their presentation. Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 6 of 17 Attorney Michael Weiner thanked Planner Allen and Chairperson Axelrod and advised that before he began his presentation that some things had come out during the conversation that he thought was important to dispel. That it was the third time that this was being evaluated and that Mr. Touchette had really honored and respected the system. He hoped that after he told the board about that, they really understood it. That Mr. David Nutter was on the phone and that he had always put the plans into the town. Mr. Nutter had built numerous docks in the town and felt strongly that the original set of plans were appropriate, correct and called out all the items. The review of the plans was done in such a fashion that information was asked for that had never been asked for before and that this was obviously an important matter to a homeowner’s property. He said for the record, he was not looking to pick a fight, make this personal or find out that there is a good guy and a bad guy; that there is not. That this is third time Mr. Touchette had been back and evidently, as heard, there had been a change in building officials. That one building official noticed a difference in the plans that another building official did not. That the 10-pilings were not installed until permission was received. He said hearings were conducted and the 30,000 to 40,000 was disclosed at the hearings. He wanted to spell for certainty, that no one had tried to do this at midnight; it was just the opposite and that they were here for an additional hearing over a small issue. All the other items had been evaluated. With that, he said Mr. Touchette was there and he said with the greatest respect, they understood that they should go back and discuss the issue. He hoped the board realized that after looking at the record, there was never any pulling the wool over anybody's eyes. In fact, it is the opposite and as the board knew, Mr. Nutter had been before the board on so many other occasions that he would never let his reputation before the town of Highland Beach be that (unintelligible). Attorney Michael Weiner works with the firm Sachs, Sax and Caplan, 6111 Broken Sound Parkway, Boca Raton Florida. Mr. Richard Touchette is the homeowner of 1006 Grand Court LLC and would be joining Zoom momentarily. Mr. David Nutter of B&M Marine was on Zoom and Mr. Peter Gimpel of Winchester Design was in the room with Attorney Weiner. The application was made in August 2019, and they started in December 2016. They were four years in now and they get it; it takes time. That they came back in February 2017 and in October 2017 (unintelligible) issued them a building permit that was later reexamined. If the board took a look at the meetings, they would find out that in the recorded minutes, it precisely said that all requirements were met and approval was recommended. The only difference had to do with the height, so they had to consider all the things, in terms of the height. He advised that then Mr. Massey who replaced Mr. Bower, was the one who noticed that somehow or another there was a discrepancy or that there was missing information in the plans that is when the stop order started. He said as he mentioned, they were not there to relitigate what Mr. Massey found, but that they reserved all rights. They were there on one issue and one issue only. That his client respected the system and had been at it for four years, not complaining. He said that the town of Highland Beach has its code of ordinances, but they were there for that particular issue and were not adversaries, today. He said there are many boat lifts and boats in that particular area. Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 7 of 17 Attorney Weiner said a group of pictures were sent last night and asked that they be displayed in the Zoom meeting. That it was the first time he had done a Zoom meeting with the board. He made reference to the fifth Google picture and a tall building across the canal. He said Mr. Touchette’s house was the parallel line on the easterly side. He asked the board if they were familiar with where the house was or if they needed more information on how to locate it. That it was the straight line that was on the easterly side of the property and that a little blue house could be seen above it. That it was more than 110-feet across to the other side of the building and that certainly the most visual impacting issue is the height of the building across the way. He said that when the picture was taken, the boat that is to the north is moored. That they were told that it is almost a 70-foot boat and that their boat was in the range of 48-feet. He said the waterways substantially narrows as you go out to the west and asked the board to look at their waterway or distance that it was more than 110-feet across to the other walls. That they were going 16-feet, so there is 90-feet of water left to maneuver in. He referred to town code 30-68(g) and 30-68(h) stating that there are a lot of code provisions that does not apply to them. That they were not a boat basin that they were actually in RM zone, not a single-family zone those do not apply to them. That they were not commercial; that the commercial items did not apply to them, but there were certain subjects that do apply to them. That 30-68 (g) (1) (c) had been discussed by the Marine Consultant. He advised that there were other installations already in that area and that there are certainly other much narrower impasses to navigation. That he showed almost 90-feet of water to maneuver around. He said that their installation was along the most westerly face. It points in a north-south direction and that it only adds approximately 16- feet. He advised that they were not doing anything to that. That he did not know anything about the moving. He thought it was just in the older plans, but it had been placed into record that they were not moving the 10-posts. That the only thing that could be consider anyways is how the height might affect navigation. Twice before, the board looked at where those posts were, looked at the 90-feet and said okay on the navigation. He said he did not see how it was possible, how the height could even be considered as a problem in navigation. He advised that the board was a lay board that had been appointed and that this was not their jobs. He understood that they wanted to do the best job for the town, but under the circumstances, that they had a very large part of the waterway and that there are other boats that are far more problematic than their boat and that they were only talking about height. That navigation could not get in the way on this particular problem. He said that 30-68 (g) (4) requires that a boat not extend beyond the property lines. They were doing that. That had been approved and had not changed or talked about. He knows that some of the board members had mentioned if they thought the ordinances were deficient and somehow or another boat should be backed away from the edges of the property lines, the ordinances should be changed. It was previously approved and they were not violating it. They were doing it. It is not an issue today. That they were not even closing their facilities, so another provision doesn't apply. He spoke about 30-68 (g) (6) (a), the fact that the USACE are involved. He said that anything that the board did today with respect to this change or any other order, as he will explain later, is going to be subject to some conditions. He said one of those Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 8 of 17 conditions is that they have to get their right to approvals from both (unintelligible) and the USACE that they could not go anywhere without it. He said they had already gotten them and they may have technically expired, but they are reapplied for. He said it is not something that can be denied; they would have to get them and they will be part of the conditions of approval, as was before. That no one was going anywhere. That the ten 10- posts were put in after another consideration, not in the middle of the night, where they showed eight and then they put in 10. The boat was not being parked perpendicular although there are other boats that are. He said 30-68 (g) (7) doesn't apply and that 30- 68 (h) was the one in respect to the height, they had to come back and get a Planning Board approval and that they were here today for that. They had to be located in the canal and they were located in the canal, that is wide enough. They had done that. They had to decide whether or not the extra height could be a navigation problem. That he had already explained that. They had to receive a building permit that would be one of their conditions of approval. With respect to those four items, the four subparts of 30-68 (h) (1), they had met all of the requirements of the town’s code provisions. Attorney Weiner requested the previous aerial photograph be shown again and advised that there were other boats there and that if everybody was having such difficulties, that this boat is not the one which should have inspired the board to say, I don't think my ordinances are enough. We have to do more than what is going on. He said it was smaller than the other boats (unintelligible). It is not as far out in the waterway. You can see the boats that are there. He said that the town’s code says reasonable visual access. He said that photographs had been taken in the middle of their installation and that they were not going to be pretty and said that the town’s ordinance never uses the word pretty and that he was not saying they would be building an ugly one. They were not. Theirs would be similar to the other boats that were there. He said that it talks about reasonable visual access; not how beautiful the boat lifts are. If it was believed that being on the property line was not right, he encouraged the board to take a look at the ordinances. If it is believed that the boat lifts had to be built to some aesthetic standard, that is fine, but take a look at the ordinances. He said that reasonable visual access is 110-feet across. That it is 16-feet and there is 90-feet to be able to see the waterway. It does not block anyone from seeing the waterway and that was the only standard. This is the third time this has been looked at. That even being a little higher is not going to keep from reasonable visual access and those are the words that are used. He said that the boat is moored entirely up to his client’s lot line. It was against the house. If you are looking at it from the west, there is no water on the other side of it, so, you can't be denied visual access to water looking at it. If you look at it from either the north or the south in comparison to the size of the waterway that it is on, you cannot be denied visual access to the waterway. So, the requirements, and the ordinance are met. They had to have a public notice and they gave that public notice. Ms. Allen brought up there is a provision that is 30-68 (h) (3). It states that the Building Official or the Planning Board may request evidence. He said they have that. Attorney Weiner said that Mr. Gimpel and Mr. Nutter would testify, as to the lifts and why they are constructed in that way. He said there was one last provision that had to done with the fact that there were procedures that had to be followed; they had followed every one of them. They continue to follow every one of them. If the board says no, the town’s Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 9 of 17 own provisions say they have to go to court. Considering the fact that they had met everything, he did not think that was what would really happen, but they were following every single procedural provision. Peter Gimpel introduced himself as a naval architect, who has a degree in mechanical engineering and a degree in naval architecture, the designer of boats as compared to a regular architect designing houses or buildings. He has been president of Winchester Design Group for 33 years, much of those 33 years he specialized in the design and detail of the kind of powerboat Mr. Touchette is planning on putting on his property. He gave a detail description of the boat’s model, manufacture, size, parts functions and other particulars. Chairperson Axelrod advised that the board was familiar with Mr. Nutter and that he did not need introduction and would like to move the meeting along. He asked Attorney Weiner to let Mr. Nutter speak for himself without asking him questions. That although the meeting was quasi-judicial, it was not a court. Town Attorney Rubin advised that Attorney Weiner had the right to ask questions of his witnesses. It is a due process. Attorney Weiner advised Chairperson Axelrod that he wanted to give him the greatest amount of respect. He stated that they all knew that it was quasi-judicial, but there were important facts. That if any or all of the other board members had been put in a position where they are in the fourth year of obtaining an approval and had gone through what Mr. Touchette had, they would ask for the record to be right. He realized that the next place is court and that he did not want to go there. He thanked him for his advice and asked Mr. Nutter to talk about what was in the town report. Mr. David Nutter gave testimony on the keel on the motors, the lift carrier beams, the height of the pilings, the original plans and the plans for the first modification when it was changed from an 8-post to a 10-post. The 4-foot dimension was referencing the existing dock pilings. He said that they drew the lift pilings to the same height and that was just a simple mistake on their part. That generally, those lift pilings are always higher than the dock pilings by about 2-3 feet. He said it was just a simple, stupid, mistake on their part; they should have just drawn them higher. It was never their intention to put the pilings to a level of 4-feet above the decking. Chairperson Axelrod asked Attorney Weiner if he was done. Attorney Weiner advised that he knew that the meeting needed to move on, but that he had some other things to say, but had a feeling the public would be speaking, so he requested to reserve some time for rebuttal after that and he would finish all his remarks and he would be quick and to the point. He appreciated the complexity of it, but thought that he could understand under the circumstances why they had made the thoroughness of the presentation and thanked the board for devoting their time. Chairperson Axelrod advised Attorney Weiner that during his comments he would be discussing the height and that he understood where he was coming from regarding that. He said that he wanted town staff to include Dr. Jenkins if they had any questions for the applicant. Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 10 of 17 Dr. Jenkins introduced himself as with ATM. He confirmed some numbers that were given in in the testimony, and commented the design intent was that, while the draft of the (unintelligible) is on the order of 4½-feet. The effective draft; the draft you need to clear including all of the tackle and the props and such, is on the order of 6-feet, is that correct? Peter Gimple advised that what he thought Dr. Jenkins was referring to is the fact that when the lift goes down, the cross beams are going to need to be cleared by the propellers and the skegs when the boat comes off the lift and thus, is correct. With an approximate 4½-foot draft, the top of those beams is going to have to be slightly below that 4½-feet draft before the boat can maneuver in or out of the dock that the underside of the structure at that point when the boats coming in or out the dock would be approximately 6-feet. Mr. Nutter agreed. Dr. Jenkins advised that in part of his review, part of the disconnect was seeing the lift was large. That they all acknowledged that, but it is also somewhat higher than what was typically seen. The justification provided was because of the unique aspects of the boat. That 6-feet is a little more draft than you would see on many boats. He asked if that was the support for the justification of why they needed to have it higher? Mr. Nutter and Mr. Gimpel responded correct. Mr. Gimpel added that in addition to the unusual nature with the third engine on centerline, they were also in the situation where Mr. Touchette is trying to be very cautious and very prudent in terms of looking after both the boat and the dock, in the case of extreme storm surges. Dr. Jenkins noted the point, the language extreme storm surges. He said that in general, and the design guidance in Mr. Gimpel’s response, it was noted that while it is typical to use a lift during most circumstances, when he used the word extreme for a major hurricane, it is not standard practice to keep a boat on a boat lift. He said to just note the terms extreme. He said he is raising his hand on that one, saying that understanding that under most conditions you would be using this lift for a major hurricane and that lifts are not typically designed for that kind of load. Mr. Gimpel responded that he was absolutely correct and he realized that his terminology with the word extreme was never intended because the reality was an extreme tidal surge could be 20-feet and we know that things would be a disaster at that point. He said that yes, the intention is very much to deal with an unexpected minor storm surge, as opposed to if a hurricane was coming through with the projected 16-foot storm surge, the boat needed to move. Dr. Jenkins said that he would also say the structure is designed for typical conditions acknowledging that it is not designed for hurricane wind loads or anything that these kinds of structures are not designed for that. Mr. Nutter commented that typically a boat lift is designed for hurricane winds like up to 155. This particular design because it is slightly different with the carrier beams in between the pilings instead of sitting on top. They might not be able to reach 155. He said in these types of storms, the boats are not going to be there (crosstalking). Dr. Jenkins stated that he was just clarifying that under major hurricanes, boat lifts and it is not just this one, it is other ones in the town too. He clarified a board member previous comment regarding his report. In that his report did not recommend that the town should not consider issues regarding navigation. It was just that the current code did not provide the tools that would really be needed to manage that going forward. In terms of a recommendation, he said that he would completely Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 11 of 17 recommend that the town consider provisions to the code that could address issues with navigation in the town. His point being that the current code does not give the tools to do that. Chairperson Axelrod advised that there were ten people who sent public comments to town staff; that their names and comments would be summarized and read into record, and that the board members had already reviewed them. If the applicant’s attorney had not been presented with them, they could be made available. They had all requested the application be denied. Their names are as follows: Kathleen Kennedy, Marc Siegel, Geri Verola, Phyllis Gendal, Connie & Anthony Strianese, Kathy & James Gurrieri, Paul Resnick, Keith Newfield, Steven Pastor and Lauren Galvane. Public comment summaries were that there was visual blockage, the boat lift would be an eyesore, a question of navigation, a question of reduced property value, and that Mr. Touchette was selling the property, so why was he doing this. Chairperson Axelrod asked the board if they had any questions or comments for staff or the applicant. Member Mendelson commented that she did not know a lot about boat lifts, but when she read Dr. Jenkins’ report about what was necessary, it seemed that it had been answer that it was necessary because it is an unusual boat and it had to be higher than most boats. She asked about the time of purchase of the boat, about the 4 feet height change, of the boat lift and other peculiarities of the boat. Mr. Nutter said that the mistake they made was drawing the new pilings at a level even with the old pilings. He said that typically, they draw them so that they look like they are higher and for whatever reason, they did not do it this time. He said they do 10 or 15 plans a week and they do not catch everything on their plans. Member Mendelson advised that that whole chronology did not make a lot of sense to her that he knew he wanted to buy that boat, but he did not get it yet because he wanted to get permission to have it. But three years ago, he knew he was going to get the boat, but did not make provision for how it had to be. Town Planner Allen advised that the original approval, attachment No. 1, on page 29 of the agenda packet, the first approval on February 8, 2017, did not reference a specific boat type. And in the staff report, it stated 40,000 pounds 8-post and that there was no reference to the actual boat. Chairperson Axelrod asked if there were any other questions? Member Brown reference slide No. 3 of the Town Planners PPT, Papa Maps measuring tool and that the other property lines were actually 20-feet away from the point of the southwest point of Mr. Touchette’s property. The lift is 17-feet wide. In order to go around Mr. Touchette’s lift, somebody would have to go over another person's property line. He asked if the board was just approving only what Mr. Weiner had been trying to narrow the point down to, the lift of the base beam of the lift. He said it is 90- feet to the other building, but it is actually 20-feet to the other property line. Town Planner Allen read the zoning code that it is a residential multifamily zoning district, so there is no side yard setback that applies here. If you are a single family, the code says Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 12 of 17 you have to have that 25-feet, but the code clearly says that multifamily residential zoning districts are exempt from any type of side yard setback, so they can go up to the property line. Member Brown commented that if you can go up to the property line, then the property lines opposite Mr. Touchette’s property, others would be able to build a lift up to their property line, correct? Town Planner Allen advised that they would have to get approval through FDEP and the USACE. That they regulated that waterway and look at navigation impacts. Those agencies would have to determine that. Member Brown asked if Mr. Touchette is not getting an approval for a lift in his property line or in the waterway, which is common area. Town Planner Allen read code section 30-68 (g)(4), that when moored, any portion of a boat shall not extend beyond any property lines. She made it clear that there is a code provision regarding any type (unintelligible) boat extending into a property line. Member Brown stated that apparently his boat does not extend beyond the property line, correct? Town Planner Allen according to the plans submitted by the applicant, right. Chairperson Axelrod commented that the board was only looking at the height. Town Attorney Rubin and Town Planner Allen concurred. Vice Chairperson Goldenberg referenced slide No. 3 of Town Planner Allen’s PPT stating the most south piling versus the north piling. He asked if Mr. Weiner was trying to say that there are 90-feet from the south piling or from in general. He asked if there were any boats that were traversing south of the dock. Member DeMoss advised that there is one; a lift just south of Mr. Touchette’s property. Vice Chairperson Goldenberg asked about what the clearance from the southernmost post is to the building across the way and does the boat outdrives extend further than the post? Member Brown commented the outdrives are on the north side not the south side, according to the drawings and measuring tool on Papa Maps. From the south southernmost point of Mr. Touchette's property to the seawall of the building, across the way it is 70-feet to the seawall and it is 20-feet to the property line. Vice Chairperson Goldenberg asked if when the boat is lifted up, on what he presumed was a cradle lift, how tall would the boat be above the pilings? He asked if there was a Tuna Tower on it or was there going to be any additional structures? Mr. Nutter advised that the top of the super structural would be about 12-inches above the top of the (inaudible). Chairperson Axelrod asked if any other members of the board had questions? Member Boden said that he understood that the issue relies only on the change that had to do with the piling, but it is his judgment that by increasing the height that they do, thereby, infringe on some of the other issues such as the few and some of the more aesthetic types things for the neighbors. So, considering only the height without considering the effects of this additional height, is not appropriate in his mind. Member Brown said that according to the Palm Beach Property Appraiser’s Office that waterway is owned by Gordon Homes Inc. Town Planner Allen concurred. Member Brown asked if it is owned by Gordon Homes Inc., is approval needed by them as well? Town Planner Allen advised, no. That Member Brown’s was correct in that it is owned by Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 13 of 17 that property owner; however, that is a totally separate issue than what is before the board today. She reiterated that the board was looking at an amendment to a previously approved boat lift. Member DeMoss asked if the house was up for sale? Attorney Weiner asked Mr. Touchette was the house up for sale? Mr. Touchette commented (inaudible). Attorney Weiner advised that Mr. Touchette said that he had a listing and that he said he is not renewing it. Attorney Weiner asked Mr. Touchette to come over to put his comment on record. Mr. Touchette advised that he was a little bit discouraged about what was happening and that for him having a boat lift was important and it is why he bought the house. He said that he decided to sell it, but now he is not selling it anymore because he decided to stay there. He said that he is not renewing the listing; that the listing is ending this month. Member DeMoss asked Mr. Touchette about a comment made regarding the boat not being purchased yet and wanted to know if the comment was correct. Mr. Touchette said he made an offer on a boat when he made the application for the boat lift, but it took so long that he could not use the lift, he canceled the purchase. He said he still wanted to buy that boat. Member DeMoss asked if they had discussed the boat lift with the neighbors and how did the neighbors feel about it. Mr. Touchette said that Ms. Kennedy is against it, but she is against a lot of things. That she is complaining about (unintelligible) the city. Member DeMoss (unintelligible) the board received a lot of other negative comments about the boat lift. Mr. Weiner said visual to the waterway, but aesthetically looking probably to your neighbors. Mr. Touchette stated that any boat lift may not be attractive, but they were in the state (Florida) where they have boat lifts and that some people do not like them. Member DeMoss advise that in his little marina there are some boat lifts, but in his opinion, they are reasonable, aesthetic. Member Mendelson advised that when Mr. Touchette is talking about reasonable visual access, she did not think it was aesthetics. That it might play into it, but everybody had to live with their property rights and everybody buys their houses knowing that their property rights can be affected through existing zoning. She thought that what was happening is that the height of Mr. Touchette’s lift to accommodate a specific boat, is running afoul of the reasonable visual access of his neighbors. And she believed that was what the board had to take into account. She asked if there was some way that he could somehow come to terms with his neighbors, so that it is not something that has to go to litigation. Mr. Touchette said if the neighbors are completely opposed to it, he could not come to terms. He asked what would be an acceptable height? He said they were following the law. That the law says that when the boat is raised 1-foot above the dock, they can go as high as the height of the superstructure, and asked what would be reasonable. Member Mendelson asked Town Planner Allen what was her understanding of the code and how it would have to work? Town Planner Allen advised that it is not staffs responsibility to tell the applicant what height. She said that Dr. Jenkins had pretty much provided guidance, as far as the justification for those impacts. That he was asking for additional information. That justification needed with regards to the lift pile elevation, the occlusion of the lift beam, and to all those things that Dr. Jenkins pointed out are things that (unintelligible). Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 14 of 17 Chairperson Axelrod advised Mr. Nutter that he had looked at the picture and it looked like there were an awful lot of boats in the marina area. That he did not see any of them that had pilings that high and asked him was that correct? He asked Mr. Nutter about the 70-foot boat that he believed Mr. Weiner spoke about that was across the way and how high was the pilings on that lift? Mr. Nutter advised that he did not know the height of the pilings specifically on any other lifts. He said that he would say that they are probably not this high because he did not think the boats were that big (crosstalking). He did not even know if it was on a lift. Chairperson Axelrod commented that looking at the photos of all the other boats, all of the pilings are much shorter. He said that it was also mentioned in one of the public comments that there are 50 other boats in that area and that unless he could tell him there are other 12-foot pilings there, this would be an exception. He asked if he was correct. Mr. Gimpel made comment that he had to believe, and had not seen it in person just on photographs, that when that 70-foot boat is in the water, he was assuming it was not on a lift. When it is in the water floating on its normal water line, that superstructure, he believed, was going to be considerably higher than Mr. Touchette’s boat when Mr. Touchette’s boat is on the lift. Member DeMoss disagreed. He said that he sees that boat. It sits in the water and yes it does rise above the dock, but his personal opinion was that it was not going to raise 12-feet like Mr. Touchette’s. That it is a whole different element taking the boat out of the water where people are looking at it. Mr. Gimpel said that when he talks about the additional height beyond Mr. Touchette’s boat, he was talking the superstructure, not the top of the foredeck. Chairperson Axelrod asked Mr. Touchette’s why when the stop order was put into effect in May 2019, it did not come before the board until a year and a half later. He asked was it because he was trying to sell his house? Mr. Touchette responded, no. That he put the house up for sale recently, and at that time, it was not for sale. He said that he was going to keep it. Chairperson Axelrod asked Mr. Touchette why was there a delay? Mr. Touchette said it was because he had extension on the permit to keep it enforced. The delay was because he was negotiating the price with the builder because there was some increase in the price and they had to adjust for the price and that was the only reason and that there was no delay beyond that. Chairperson Axelrod commented that he had also mentioned Ms. Kennedy, but his next- door neighbor, he believed 1004, Mr. Pastor, had also made a complaint regarding it. He asked Mr. Touchette if he had spoken to him. Mr. Touchette said that he did not know him and has never spoken to him. Town Attorney Rubin advised that Mr. Pastor is on the other side of Ms. Kennedy. Chairperson Axelrod asked if there were any other questions or comments. Member Mendelson commented that she was trying to figure out, because no one likes litigation and there are 10 comments that it was a mistake, that it was not clear, and that it was a violation of our building permit, if there was some kind of deal that could be made that would satisfy some of the neighbors that it is not so totally unreasonable with their Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 15 of 17 visual access and that would satisfy Mr. Touchette to litigate it or start all over with a new permit. She said that she was just seeing if there is any room here. Mr. Touchette commented that nobody builds a lift with 4-feet height piles. He said that it does not exist. That 4-feet did not apply to the new piling; it applied to the old pilings that is usually around 8- feet. Chairperson Axelrod commented that there was some mention that it was not 4-feet it was really 7-feet. He did not know if it could be done as a board, but if within safety reason, the pilings were brought down to a size of 7 to 8-feet, would it be acceptable? Mr. Touchette asked if 10-feet could be agreed on. Town Attorney Rubin advised that it was not negotiable. Chairperson Axelrod commented that he was making a suggestion based on the rebuttal remarks of the consultant that they were dealing with 7 to 8-feet, not 4- feet. Vice Chairperson Goldenberg commented that the board was not in a position where they should negotiate. Town Attorney Rubin advised that we do not negotiate. Vice Chairperson Goldenberg suggested that the item is tabled until the next meeting to let Mr. Touchette and his neighbors try to come to some accommodation and then come back to the board. Chairperson Axelrod asked Attorney Weiner if he wanted to respond to the comment? Town Attorney Rubin advised that it was up to the applicant. Attorney Weiner asked Mr. Touchette if he wanted to postpone. Vice Chairperson Goldenberg commented postpone, not for approval or disapproval, but to see if negotiation or compromise can be reached with the neighbors. Attorney Weiner requested to hear from Town Attorney Rubin. Town Attorney Rubin advised that what could be done is continue it one month till the next meeting to afford Mr. Weiner some time. Because it is being continued there was no need for re-advertisement. That time used to reach some sort of compromise is up to the applicant. Attorney Weiner asked Mr. Touchette if he wanted to hear from the board or would he like it postponed. He said that if Mr. Touchette decided to hear from the board, he would need to make his closing remarks. Mr. Touchette advised that his only concern was that if it were discussed and if an agreement was not reached, what happened then? Vice Chairperson Goldenberg advised that the board would come back and vote on it. Mr. Touchette agreed to the postponement. Attorney Weiner commented that Mr. Touchette did not have great confidence that he would have a good result from his neighbors, so he advised that he would like to make his closing remarks at that meeting. He said that if an agreement was not reached, his closing remarks would take less than five minutes. Attorney Rubin advised that if the board was going to continue, a motion was need to continue to the next meeting. Chairperson Axelrod asked for a motion to continue the discussion to the next meeting. MOTION: Vice Chairperson Goldenberg made a motion to continue the 9A to the next meeting, Seconded by Member Mendelson, which passed (7 to 0) unanimously. Virtual Planning Board Regular Meeting Minutes Date: July 09, 2020 Page 16 of 17 B. DEVELOPMENT ORDER APPLICATION NO. 20-0004 (DAVID & DANIELLE SCHNEID) APPLICATION BY SEATECH CONSTRUCTION FOR A SPECIAL EXCEPTION APPROVAL TO REMOVE A 160 SQUARE FOOT EXISTING DOCK, INSTALL A 820 SQUARE FOOT MARGINAL DOCK, INSTALL A SEAWALL CAP ALONG AN EXISTING 200 LINEAR FOOT SEA WALL, AND INST ALL TWO (2) SEAWALL RETURNS FOR THE PROPERTY LOCATED AT 4410 TRANQUILITY DRIVE. Chairperson Axelrod read Item 9B into record and asked the board members if they had any ex parte communications? There were no ex parte communications, so he opened the public hearing, calling Town Planner Allen to present her testimony on the application. Town Planner Allen presented a PowerPoint Presentation depicting aerial photos of the property and read the staff report into record that on June 13, 2019 the Planning Board approved a new two-story, approximately 7,136 square-foot single-family residence, for application No. 19-022 and that on September 5, 2019 demolition permit No. 19-0598 was issued to demolish the existing single-family home. At present, the site is under new construction. She read Code of Ordinance Chapter 30’s Zoning language into record and advised that staff recommended approval of the request subject to approvals outlined in the sec. 30-21’s code of ordinance. She advised that she would be glad to address any questions. Chairperson Axelrod asked if the board had any questions regarding the item? Vice Chairperson Goldenberg asked if there had been any objections from any of the neighbors? Town Planner Allen advised that there had not been any public comment on the item. Chairperson Axelrod asked the board if they had any questions for the staff? Hearing none he asked the applicants to make their presentation. Town Planner Allen advised that the applicant’s authorized agent Mr. Joe Gillio was on the virtual meeting. She asked if he wanted to make a statement? Mr. Gillio advised they were basically looking to adhere to all the guidelines and improve the existing property that is there. He said that the house is currently under construction, which the board had seen under previous board approval. That the last site plan previous to this one, he believed, was about one year ago, June 19. He said that the board had seen the rest of the project and that it had been a little bit of a hurdle, but they were looking to get this part of the improvement completed. Vice Chairperson Goldenberg commented that he noticed on the photo that the dock was being taken down and if the new dock was going to extend further into the waterway or if it was going to be a foot or 2-feet more? Mr. Gillio advised that the new dock is not extending any further at this point. He said that they were not putting a new seawall or anything in front of it, but the seawall cap is being raised based on existing and that they are currently going (unintelligible). He said that there was an upper and lower section. The upper section is called 7-feet. The lower section is called out as 4-feet distance out,