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2020.08.13_PB_Minutes_Regular TOWN OF HIGHLAND BEACH TOWN VIRTUAL PLANNING BOARD REGULAR MEETING MINUTES Town Hall / Commission Chambers Date: August 13, 2020 3614 South Ocean Boulevard Highland Beach, Florida 33487 Time: 9:30 AM 1. CALL TO ORDER 2. ROLL CALL PRESENT Member Roger Brown (joined the meeting at 9:46 AM) 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 and asked Town Attorney Rubin at what point the postponement request regarding Item 8A should be discussed? Town Attorney Rubin advised during unfinished business. Hearing no additions, deletions or corrections to the agenda, Chairperson Axelrod called for a motion to accept the agenda, which resulted as follows: MOTION: Member Adwar moved to accept the agenda as presented, Seconded by Member DeMoss, which passed (6 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, individually, and state the application they were affiliated with before being sworn in. Deputy Town Clerk Beverly Wright swore in those giving testimonies. Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 2 of 16 6. PUBLIC COMMENT (limited to five (5) minutes per speaker) Chairperson Axelrod advised that the Town Clerk’s Office received multiple public comments for Unfinished Business Item 8A and that those public comments would be read into record during the discussion of the item. 7. APPROVAL OF MINUTES A. July 9, 2020 Chairperson Axelrod asked the board members if there were any corrections to the July 9, 2020 minutes. Hearing none, he asked for a motion to approve the minutes, which resulted as follows: MOTION: Vice Chairperson Goldenberg moved to accept the minutes as presented, Seconded by Member DeMoss, which passed (6 to 0) unanimously. 8. UNFINISHED 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 8A into record. Before proceeding into discussion of the item, he advised board members about the request for a postponement of the item because of a change in Mr. Touchette’s attorney and that Mr. Touchette’s new attorney would be making a presentation today. He requested directive from Attorney Rubin about how the process should be handled? Attorney Rubin guided that Mr. Touchette’s new attorney needed to be given the opportunity to give a reason why the continuance was needed and that if a motion was warranted first, that would be okay. Member Mendelson made a motion to allow an extension and to have the usual board discussion. She said that if they needed to have Mr. Touchette’s attorney make a presentation after the discussion, that is what should be done. There was no second to the motion, so the motion failed. Chairperson Axelrod asked if there was a motion not to postpone the presentation until the next meeting? Vice Chairperson Goldenberg said he would make a motion. Member DeMoss said he would second it. Member Mendelson commented that she had practiced law a long time, had been involved in many court litigations and that it was common courtesy when a new lawyer took over, to allow them to get familiar with a case. That a one-month extension would not be out of the question; she confirmed with Sachs Sax Caplan that there was a totally legitimate conflict and believed an extension should be given. Member DeMoss commented that since there were witnesses and a new attorney, Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 3 of 16 they should at least be heard from. Attorney Rubin advised that the board should hear from the attorney. Chairperson Axelrod concurred and asked Attorney Zachariades for comment. Attorney Zachariades advised that Mr. Weiner was conflicted out and thanked Member Mendelson for mentioning it. She said she had been retained about a week ago, there was a significant backup, that she had done the best she could to prepare for today’s meeting, and that certainly a one-month extension to allow her to digest all the information would be greatly appreciated. Chairperson Axelrod concurred with courtesy and said that an extension should be given. He asked Mr. Touchette and Attorney Zachariades about the questions Mr. Touchette had been presented with at the last Planning Board meeting regarding speaking with his neighbors and a compromise? He said he would vote for an extension, but was not sure what would be gained by the attorney’s evaluation. Attorney Zachariades commented that she was brought up to speed with regard to reaching out to the neighbors, but had not had the time to do so in the week she had been working (inaudible). She said she would absolutely love the opportunity to completely understand what their concerns were and to see if there was any room for negotiation and compromise. However, due to COVID, the meeting would probably be virtual. Member DeMoss asked that the board hear from the witnesses before making judgement? Chairperson Axelrod asked Member DeMoss if he was asking that the motion be held until witnesses and public comments be heard within a motion? Member DeMoss replied, yes. Attorney Rubin commented that the request was possible, but would be cleaner if it were going to be heard, to hear it. If not, then not hear it. Member Mendelson concurred; however, thought it would be a bad idea to hear the witnesses. Attorney Rubin commented that there was no point to it, if the board was not going to make a disposition of the case, he would not. If the board postponed it, the witnesses could of course come back next month. Member Mendelson commented that she would like to hear a cohesive presentation from a lawyer who is prepared and who has had whatever time needed to negotiate. She said it was a case that should be presented like a case and agreed with Attorney Rubin to either hear it or postpone it. Chairperson Axelrod asked Attorney Zachariades if she had any problems with holding off on the presentation until the next meeting? Attorney Zachariades replied that she welcomed the opportunity for a month’s postponement to further grasp the material and invite the neighbors to the table for negotiation and compromise. Member DeMoss asked if Mr. Touchette had reached out to any of the neighbors like the board had suggested? Attorney Zachariades replied she believed there was communication with Mr. Mazzella, the neighbor to the north and correspondence with Ms. Kennedy, the neighbor to the south. Member Boden commented that when the Planning Board closed the last meeting and provided the postponement, he believed that it was the intention of the board to have the principals speak with each other to see if there was a way to solve the problem. He said it was a surprise to him that it was anticipated that the attorneys were the ones to make the communications and suggested the board proceed without postponement, based on the opportunity for that communications to have occurred. Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 4 of 16 Member Adwar asked about the residents that face the ugly lift, the people in Braemer Isle, a few that had sent in emails to Ms. Allen, as well as many others people that were not there that did not like the view that had been there for three years. Chairperson Axelrod commented that the discussion would only come up if the board voted for a discussion on the subject. If there was a postponement, people from Braemer Isle could come in and publicly speak. One problem he had was that all of the current public comments were not there for the initial or second approval. Member Mendelson commented they should not keep talking about it, if they were going to extend it. She said the board members should vote on the motion to not extend it and if it passed, then the board should discuss the entire topic. If it did not pass, they should vote on a motion to extend it. Attorney Rubin concurred in that, any comments now, should be limited to whether it will be continued or not. Chairperson Axelrod welcomed Member Brown to the meeting (9:46 AM). Member Brown apologized for being tardy. Member Brown was brought up to speed on the proposed motion. Chairperson Axelrod reiterated the vote would be a vote to not postpone 1006 Grand Court and the 12-foot pilings. He asked if there were any other comments? Hearing none he called for a motion not to postpone? Motion: Vice Chairperson Goldenberg made a motion to not postpone the discussion of Development Order Application No. 19-0001 as present. Member DeMoss seconded the motion, which passed on a 5 to 2 vote. Chairperson Axelrod and Attorney Rubin remarked proceed. Chairperson Axelrod asked the board members if they had any ex parte communications to disclose? There were none, so he opened the public hearing, calling Town Planner Allen to present her testimony regarding the application. Town Planner Allen spoke about some correspondences that the town had received since the July 9, 2020 meeting. She commented that at the July 9, 2020 meeting, the board made a motion to continue the item to today’s meeting in an effort to have the applicant reach a compromise with his neighbors. She discussed the following: • On July 28, 2020, the town received an email from the applicant's attorney, Michael Weiner, stating that his firm must withdraw from the subject matter, as a result “a recent development creating a conflict of interest” (the email is on page 26 of the agenda packet). • On July 29 2020, the town received an email from the applicant, Mr. Richard Touchette, requesting a postponement of his item in order to give him time to “hire a new lawyer” (the email from Mr. Touchette is on page 27 of the agenda packet). • On August 6, 2020, Ms. Zachariades provided a letter to the town indicating that she was the new attorney for Mr. Touchette and requested the postponement of today's hearing “in order to be provided an opportunity to get up to speed and speak with Mr. Touchette’s neighbors” (Ms. Zachariades’ letter is on page 28 of the agenda packet). Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 5 of 16 Town Planner Allen commented since the July 9, 2020 meeting, the town had received additional public comment on the item, which was attached to the memorandum in the packets. However, since the routing of the packets to the board, Mr. Touchette had provided two additional emails to the town and the board (the emails were received on August 10th and 11th) and had been incorporated into the online agenda packet, available on the town's website, located at the end of the agenda packet, after page 321. Additionally, after the routing of the packets to town staff, other public comments had been received that would be incorporated into the agenda packet at the end of today’s meeting. She advised that there were no additional or revised plans received from the applicant, so the plans submitted as part of the packet for the July meeting still stood and she would be glad to address any questions of the board. Chairperson Axelrod asked the board members if they had any questions of Planner Allen? There were none, so he asked the applicants to provide presentation, their names and their affiliations with the project. Attorney Ele Zachariades introduced herself as (inaudible) 14 S.E. 4th Street and said she was at the meeting on behalf of owner and applicant, Richard Touchette and presented a 16 slide PowerPoint Presentation illustrating and discussing an aerial photo of 1006 Grand Court’s property location and gave Background information on the application, the Application Request, the Proposed Site Plan, Consistency with Town Code, ATM Technical Review, ATM Technical Review: Navigation, Issue at Hand, an aerial photo of Visual Access, and Staff Recommendation. She commented the application had been before the board twice and that this would be the third time for a vote and the fourth time for a hearing, as last month’s meeting was postponed. She commented about the first time they had come before the board and received approval to install the 40,000-pound boat lift, about the eight-post platform boat lift, the amendment for the needed 10 posts, about the stop work order issued because of the beam, the height of the lift post not accurately denoted on the approved plans, and about the resubmittal of the plans that more accurately denoted the height of the lift beam, as well as the lift posts, which were before the board today. Ultimately, the lift pilings would be 12-feet tall and that was their actual application request for an amendment to increase the height of the boat lift. She discussed the edge of the property on the water, stating that the shaded area on the aerial photo was all of her client Mr. Touchette’s property. She discussed the town codes and that they had meet every element of them, telling the board they had complied. She communicated that the third-party hired by the town reviewed the codes to make sure everything had been met. She read code section 30-68 into record stating that the town code was silent, as to the height of the lift pilings. It did not mention anywhere in the code what the maximum height of a lift pilings could be, but it did define a boat lift and read that language into record. She talked about visual access to the waterways in that every neighbor had their views to the waterway that was not taken away from them. She believed that Ms. Kennedy’s house was just to the south and densely forested was her backyard and that might affect her view, but clearly the location of their boat lift and their boat were not going to provide restrictions. She read ATM’s letter into record, responded to some of ATM’s questions Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 6 of 16 and read an email provided by Mr. Gimpel (Winchester Design Group), who was not available to attended today’s meeting. She said that while she was not given an opportunity to meet with Mr. Touchett’s neighbors, she wished she would have had the opportunity to and apologized for not being able to do so. As for Ms. Allen's recommendations, if the board so desired to approve, then obviously, they agreed with those and advised she would answer questions. Chairperson Axelrod asked if the board members had any question of Ms. Zachariades? Member Adwar commented that Attorney Zachariades did not show any boats on the Braemer Isle side. Member Mendelson asked for clarification regarding Attorney Zachariades comment about the town code, as it related to high tides. She asked how the town codes section, cannot be higher than one foot higher than the seawall, fit in with the email she read that talked about how the boat sometimes had to be higher or lower? At the last meeting, the board discussed what she sort of alluded to; there was nothing in the code section that specifically dealt with height, but the code section did speak about installation according to plans, that it was her understanding that the plans reflected a lower height for the bottom of the pilings and that did not work for this boat, which is why they said it was a mistake and wanted it raised. It seemed to her that one of the town’s sections said, the installation had to be according to plans and it did not seem like it was, thereby violating the code. Attorney Zachariades answered and asked for Mr. David Nutter assistant. She said the definition of the boat lift referred to the seawall elevation. Whereas, Mr. Gimpel's email referred more to the mean high tide. She believed them to be two different things. In regards to the other question, she said Member Mendelson was absolutely correct. The plans that were originally submitted denoted existing pilings and not the proposed pilings. It was where the confusion came in, which was exactly why they were back before the board (inaudible) of that inaccuracy. Mr. Nutter comment that the original plans showed a height of 4-feet, but it was in reference to the existing dock pilings. Unfortunately, when they drew the plans, they had the lift pilings flush with the same height, which they typically did not. He could not explain why they did that on this one; it was a simple mistake on their part. Typically, the lift pilings were 6 or 7-feet above the decking; not four like the existing dock pilings were and that typically, the lift equipment sat on top of the pilings. However, there were situations like this one where the lift equipment sat in between them and was attached with the brackets shown on the other (unintelligible) section page. As far as the height of the keel above the seawall and the water, what the Naval Architect was getting to, was to keep the motor’s lowest part out of the water at a high tide and that they would need to be about 4½ or 5-feet above the water. He also gave additional comment as to the role of the keel. Member Mendelson asked for clarification from Mr. Nutter that in no event would it ever be raised higher than 1-foot above the seawall? Mr. Nutter replied, correct. Member Mendelson said that she understood now and before what he meant about the mistake and asked if he believed, if the plans were drawn correctly and had shown the 7-feet with the equipment between it, if the earlier approvals might not have been given? That town Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 7 of 16 code said, once approved, it had to be installed that way. Otherwise, the board might not have done what he wanted done and that was her point to his mistake. She was sorry the mistake was made, but she did not know what the conclusion of the earlier board would have been. Mr. Nutter commented that he could not answer that either and he did not know if the earlier board would have said yes or no. Member DeMoss commented that Mr. Touchette had an L-shaped lot and asked why the boat lift did not go down the long part of his property, where he could have driven right in and out, instead of making the right turn, being more exposed to the Marina? Mr. Nutter answered, he needed to ask Mr. Touchette, they drew, designed and installed it where he wanted it. Mr. Touchette responded that it was to maneuver. It was easier to back up the way it is now, than to back up the other way. He said that when you back up the way it is now, you just turn slightly and you go out. When you come back, you just come in (crosstalking). Member DeMoss used a car analogy of driving in and backing out and making a right turn. He said he had looked at some boat lifts on the Braemer Isle side and had measured the pilings to the dock where the boat lifts were. They measured between 57 and 59 inches; the same height as what the pilings were. A couple other boat lifts were on the Grand Cay side that were compatible with the dock pilings; they were the same height. There is one where the lift equipment is on top of the pilings, as Mr. Nutter mentioned, but it was compatible with what was currently in the Marina. He commented that what they were looking at now was out of the ordinary with what the Marina has. Even at the Marina to the south, a part of Boca Highlands, there is uniformity. What is being proposed is nonuniformity to what is in the Marina to the south or really throughout Highland Beach. It is nonconforming. Chairperson Axelrod asked if there were any other comments? Member Boden reiterate the importance of the piling height not being on the original plans that were approved by the previous board. He commented that the photograph and diagram that showed the original view appeared to be inaccurate, as the view was being unobstructed. The arrow on the chart did not show the boat being there. If the boat had been there, the arrows that were drawn would be inaccurate. Chairperson Axelrod added that the pilings were put in at 12 feet without a permit; to have them at that height was in violation of the board’s approval; that the applicant was now coming back to the board requesting the board accept what was done behind the town’s back, expecting approval. Attorney Zachariades commented that they do recognize that there was a mistake on their part and that is exactly why they were here today. Chairperson Axelrod commented it was not a mistake. It was theoretically illegally and against the town’s code that says, the board has to approve a building permit. Mr. Touchette responded that the 4-feet was for the existing piling. There was no height shown for the pilings to be built and they were going to build it according to the bylaws. They did not do it on purpose. Chairperson Axelrod asked if they thought they should have come back before the board requesting installation of the 12-feet? He reiterated it was known that in the original approval it said 4-feet. That they came back when they wanted to add the extra two pilings, but went ahead and raised it another eight feet, up to 12-feet. They did not request that; they went ahead and did it. Mr. Touchette said that they never put the 4-feet for the pilings to be built. The 4-feet was only for the existing Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 8 of 16 pilings (crosstalking). Member Mendelson advised that it was in Mr. Touchette’s plans that it was a mistake. Chairperson Axelrod said that it was received as 4-feet. Vice Chairperson Goldenberg said he could appreciate Mr. Nutter having an issue with the mistake, but someone should have come back to the previous board and said there was an issue with an unintentional mistake and needed additional approval, but no one did that. It was just done. Now, they were asking the board to approve something additional. He said Mr. Touchette’s attorney was saying they would only raise it 3-feet more for super high tide, which is very rare. He asked how would the board know it would not be more, since they had already tried pushing something else through without approval. In regards to the visual image, Member Boden discussed earlier with the arrows, someone should have put where the lift was and then showed the visual with the lift in it. He said it would be another 12-feet sticking out from the dock. He asked Town Planner Allen if there was a code about how high the posts were allowed to be above the dock? Town Planner Allen advise that there was no code provision with regards to a minimum or maximum height of the lift pilings. Chairperson Axelrod commented that the code did say they cannot visually obstruct. Town Planner Allen replied, correct. Vice Chairperson Goldenberg commented in due respect, how could the board trust Mr. Touchette after they tried to slip this through and say alright, we got it; we will do it 8-feet, 12-feet, 16-feet, 20-feet; what does it matter. Attorney Zachariades provided a point of clarification that the code did not say obstruct views, it said reasonable visual access to public waterways. On public waterways people anticipate boats, boat lifts and is why most people live on the water. She apologized for not superimposing a boat on her aerials, she had just been hired and had to put the presentation together. She commented that whether the boat is there or not, the only views that would be obstructed, even though it was not in the code, would be Mr. Touchette’s view, when the boat was lifted. Ms. Kennedy could sit out in her backyard and visually have reasonable visual access to the public waterways and could see the water. Member Brown asked Mr. Touchette if putting his boat lift at the distal end of his property, because of navigation issues, the only reason it was put there, rather than on the side of his property? Mr. Touchette responded no. He said that when he come with a boat, it was easier for him to dock where it was empty. Member Brown stated that if a boat were being pulled into the lift, it is being pulled in bow first. The only difference is that putting the boat lift at the distal end of his property was pulling it bow in first. He said that Mr. Touchette would actually have to pull into the canal, stop, pivot the boat and pull it in, opposed to pulling it straight into the lift on the lateral side of his property and doing the same thing on the way out, except that would probably block his view. Vice Chairperson Goldenberg concurred. Mr. Touchette commented that he was allowed to dock any boat without a lift. He asked if the pictures he sent could be shown. Member Brown advised that the pictures were not needed. He could dock any boat he wanted as long as it did not encroach on his neighbor’s property lines, in the water. Mr. Touchette said that he did not understand why he was so worried about the lift itself. It was the boat. He could dock any size boat there without a boat lift. Attorney Zachariades added that she understood that there were questions as to the location of the boat lift, but the boat lift was approved Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 9 of 16 by the board twice at that location and that the issue was the height of the lift pilings; not the location of the dock itself. Member Mendelson agreed with Vice Chairperson Goldenberg that the board could not approve something and trust that it would only be raised up during certain times. That once an approval is given, it is given. She said that the board was about process and following code and that rules are to be followed or there is anarchy. It was correct that the board approve it, but at a certain level. That he had gone ahead and done it and now wanted the board’s permission. She said that yes, he could go and get any boat he wanted that fit the requirements, but this was not allowed; everyone doing whatever they wanted. A town could not be run like that. Vice Chairperson Goldenberg concurred advising that was his concern. Mr. Touchette commented that usually a boat lift is 8-feet high (crosstalking). Member DeMoss responded, not at that Marina. Vice Chairperson Goldenberg commented that he had been a boater and his boat lift had been in the intracoastal at the Regency, and it was not a no-wake zone and appreciated boats being on a lift, but to Member Mendelson and his point, Mr. Touchette did something that was not approved, and now he was asking the board to sort of approve what he had already done and to increase it even more. He said he found that a little unconscionable. Chairperson Axelrod proceeded to public comments asking those giving public comment to please state their names and addresses for the record and provide their comment. Terisha Cuebas, Assistant to Town Manager advised that Lauren Galvane was going to provide public comment. Chairperson Axelrod advised Ms. Galvane that she was limited to 5 minutes for comment. Ms. Lauren Galvane commented that she was the attorney that represented the homeowners, the trust that owned 1009 Grand Court and the owners of slip 20 and slips 4 through 9, in that Waterway and Marina. She said her clients were extremely opposed to the lift, the height, more so opposed to its location and had informed that they had not been given proper notice of the original meeting that permitted the placement of the lift at its current location. However, they would be in favor of the lift on the other side of Mr. Touchette’s property, which was brought up by various board members today. The notices from ATM, did bring up twice about navigational issues in that waterway. What was stated was, as it stands already, the normal amount of width in the waterway does not comply with the normal town codes and ordinances to begin with. So, on that basis, it could not say that the placement of the lift where it is, was in violation and restricted the waterway because the waterway itself was already restricted. Also, as she represented other slip owners in the marina, they had told her that the placement of the lift and its size does restrict access for their boats and other water toys they have coming in and out of their slips from where it is placed. In terms of following the rules, she knew that Mr. Touchette was in between attorneys, had a conflict issue and had to seek new counsel during this time, but she had to wonder if that did not stop him from personally reaching out to his neighbors for comment and how many did he reach out to. She had to track Mr. Touchette down to speak with him and that ultimately, he did speak with Louis Mazzella, the resident at 1009 Grand Court. Mr. Touchette unequivocally said that he could park the biggest boat that he wanted to at his property and that he would not make any concessions of any kind with regard to his Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 10 of 16 boat lift, its height or its placement. He knew how upset the entire neighborhood was about the lift and he purposefully did not reach out for their comments or approval. Member Goldenberg asked Attorney Galvane how many residents she was representing. Attorney Galvane advised the Mazzella family was the owners of the trust that holds 1009 Grand Court in which Louis Mazzella resided. Mr. Mazzella personally owned slip 20 and slips 4 through 9. Chairperson Axelrod asked if there were further public comments? Terisha Cuebas advised that Ms. Kathleen Kennedy had registered and was in the waiting room; however, was no longer there, so that was all for public comments. Chairperson Axelrod asked the board if they had any questions for staff or for the applicant. Hearing none the board began their discussion. Member DeMoss gave narratives on several videos. On video No. 1, he narrated that coming from the intracoastal into the Marina, two boat lifts could be seen in front and another one could be seen after circling into the Marina, from the Braemer Isle side, at the height of the dock pilings. He said the video gave a good perspective of Mr. Touchette’s property and of the largeness of what he presently has. He noted that the property on the north side of Mr. Touchette’s property could be adequately used for a boat lift. On video No. 2, he narrated about the Marina being a very narrow area for boats and commented that if Ms. Kennedy wanted a boat lift, how would she maneuver in getting it. That about 76 apartment residents that looked down onto the Marina were unhappy about the project. He noted the videos were taken from the rooftop of Braemer Isle and that looking down kind of gave a perspective of the narrowness of the area and the abnormality of the superstructure. That the boat lift and front pilings on the Braemer Isle side, were about 57 to 59 inches tall and conformed with the Marina heights and the dock pilings level. Chairperson Axelrod asked Mr. Nutter what would happen with the 10 pilings that are 12- feet, if the board chose not to allow them. Mr. Nutter said Mr. Touchette’s would need to make a decision on whether he actually wanted to install the lift or not or install the lift at a height that the town would allow. Chairperson Axelrod asked if it would be a problem putting it at the original height? Mr. Nutter advised that they still would not be putting it at the 4-feet that the board was reading on the plans because that was the dock pilings, not the lift pilings that are typically 2 to 3-feet above that. So, it would still be higher than that, they would probably have to amend the plans for the pilings to be at a 6 or 7-foot height and hoped they could make it work for the boat. Terisha Cuebas advised that Ms. Kathleen Kennedy was now in the virtual waiting room. That she may have had some technical difficulties, but if it was the pleasure of the board, she could let her in to give comment. Chairperson Axelrod thought it was appropriate. Attorney Zachariades said that she was digesting everything the board had said and in the interest of time, she wondered if there was a compromise of the pilings that the board would be comfortable with, that perhaps Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 11 of 16 they could discuss and move forward. Chairperson Axelrod commented that at the last meeting, Town Attorney Rubin gave counsel that compromising was not appropriate. Member Mendelson commented that Town Attorney Rubin advised the board could not negotiate. Attorney Zachariades said that what she was getting at, was perhaps the board could give a little bit of direction, so they could revise their plans to come back again. Town Attorney Rubin said the applicants were welcome to revise their plans and come back, and that the board could provide some general guidance, but the board was not there to negotiate a compromise. Member Mendelson said that the board should not be throwing out guidance because anything that is more than 4-feet is not what the town’s previous Planning Board members had approved. They should come in with a whole new submission and the board should look at it. She did not want to negotiate against themselves, as a public board, it made no sense to her. Vice Chairperson Goldenberg said that he agreed with Member Mendelson. He asked Mr. Nutter if concrete pilings were stronger than wood pilings and if there were less pilings and less height, would concrete be a better option? Mr. Nutter responded that for this particular lift, it did not make a difference. Terisha Cuebas advise that Ms. Kennedy was in the virtual waiting room and did not believe her video was working, but she did have audio. Ms. Kathleen Kennedy thanked the board for having the meeting. It had been three years; a long time to wait for some kind of resolution. Foremost, what she saw approved in 2017, which noted that there were no other changes, was from an 8-post boat lift to a 10- post boat lift, changing it from concrete to wood pilings. There were no other changes that were noted in the submission and revision. She said the entire lift had moved 15-feet onto her property line and she would like to see where that was approved; it looked to her like it was snuck in. Specifically, with the language (in her notes where it says no other changes) from 8 to 10-pilings. It seemed rather innocent. She said unfortunately, it shifted 15-feet in the opposite direction, so she would like to see that. She said the mailing list was now over five years old and that upon her possession of the house three years ago, notices were sent to the residents prior to her occupancy and that she had received reports from many neighbors of never receiving notices at that time. Regarding the current notices sent in regards to height, she advised that a large portion of the notices were sent to Boca Raton, not Highland Beach and therefore, were never received. If she had not riled her neighbors, she feared that it would have just been pushed through. She had quite a stake in the matter. According to a survey she had conducted, it was potentially encroaching on her property line and that there is less than 9-feet of clearance in a wind tunnel that made it completely impossible for anybody to navigate through. Not only is she destroyed as far as her property value and her access, but her ability to have a boat, which is now off the table. Anybody that is to the south of her is also severely affected. At present, this is not very well demonstrated because the boat that is in the deeded slip across from the canal, had been moved about a year ago and you could not quite get a read on it. She said that what was being viewed in the aerial was pilings, but that the boat was extending significantly over that point and measured 8-feet of space in a wind tunnel to try to get through to her portion of the canal. Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 12 of 16 She hated to be redundant, but she had tried to note all the different guidelines and expirations that had come and gone in the letter she submitted to the town, and hoped that the board had a chance to review it, but it seemed like there was pitfalls everywhere and just discussed the height. She understood it was just a technicality and it was where they were, but she thought a full review was needed of the process. She thought that a look at the different government agencies that had expired permits on this and the self- certification process that got them to this point to begin with, is false. She had the EPA come out and shake their heads. She has had every different environmental company that looked at it, shake their heads and wondered how this got to be where it is. She was trying to sell her house and now her investment is destroyed. Nobody wanted a property on the water that cannot be accessed. She did not understand why three years later, they were here with the issue. Mr. Touchette had made no attempt to contact her. She had reached out to him and had heard that if he did not receive approval, that he, his neighbors on the other side and his friends were going to put the biggest boats in the basin. They were going to do what they wanted. She said her view had been completely abolished, because of unmaintained vegetation and that her foundation and her house had been destroyed because of a Ficus tree that Mr. Touchette had nestled in the corner of his property, abutting hers. She has had to replace her pavers, and her foundation. On a regular basis, Mr. Touchette’s water dumps on her property, her view is destroyed and she has no water access. She is sure that Mr. Touchette is a nice person to the right people, but he had certainly not been the neighbor she had anticipated in moving to Highland Beach. She was hoping that the board would stand by the town’s code and do a full review. This was unacceptable. Chairperson Axelrod asked Town Planner Allen if Ms. Kennedy’s comment about going over property lines had been looked into. If Mr. Touchette was over the property line, it was a violation of code. Town Planner Allen read code section 30-68 (g) (4) into record. When moored any portion of a boat shall not extend beyond any property line (unintelligible). Chairperson Axelrod asked what happens down the line, if Mr. Touchette put up the boat lift and they suddenly find that the 50-foot boat that he is intending to buy, hung over the line. Town Attorney Rubin and Town Planner Allen replied that it would become a Code Enforcement issues/violation. Chairperson Axelrod asked if everything was in the code about the statement Ms. Kennedy made about the boat lift in relation to boundary. Town Planner Allen responded that the boat lift as provided in the plans by the applicant, was within their property line. Vice Chairperson Goldenberg stated that is what he was trying to understand. Ms. Kennedy said that it extended 15-feet onto her property. Is that as if there would be a 50- foot boat or is it the lift that is extended onto her property? Is there any documentation on that (crosstalking)? Chairperson Axelrod asked if there was a way, they could get documentation on what a 50-foot boat would require and commented that the board was only voting on the height. Town Attorney Rubin replied, correct. Chairperson Axelrod made a request that the Town Planner go back and evaluation some of the points regarding the boat. Town Attorney Rubin advised that he was correct, but he believed that the town had already determined that the actual Marine structures were within the property line extended. Town Planner Allen replied, correct. Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 13 of 16 Chairperson Axelrod asked if there were any comments from the board. Member Mendelson Had some skepticism about the notice statement because the town usually sent them out, but said it was possible. She went back to her earlier thesis of if the applicants wanted to come back and build the lift exactly the way it was in the plans, they were entitled to do that. If they wanted to rip down the whole thing and put the biggest boat that is allowed in the code and subject to navigation, it was their right. That all the neighbors could go to the EPA and the agency that deal with waterways to discuss that and navigation issues. Otherwise, she would not want to go and give someone taller things that were not on their plans, that would just make that kind of behavior something that everybody would want to do. It is not a good program. Vice Chairperson Goldenberg commented that he would make a motion that they disapprove the presentation as presented and that after the motion was approved or disapproved, they could come back with a different presentation. Member Mendelson said that she seconded the motion and that she had already give her comment. Member Boden comment that if the board denied it and voted negatively, would it require the pilings be removed? How long would be provided for the remedy? Town Attorney Rubin replied, yes. If they did not have an approval, they would have to be removed. If they were going to submit another application, then they would need to be given time to do that. They were not approved right now, so if the board did not approve the application, they are not approved at the height they are, so they would have to eventually be removed. If there is another application pending, he thought that they would be reasonable, but eventually, yes. They would have to be removed. Chairperson Axelrod commented or cut down to size. Town Attorney Rubin replied, exactly. If they were going to be cut down in size or if there is some lower height that they want to come back in with an application. He understood about the residents being concerned about the length of time and that they did not want it to drag on because it had been quite a lengthy period of time. Member Boden asked if the board voted no again and the solution was to come in with a chainsaw and cut down the pilings to the legal size, was that deemed as a remedy? Town Attorney Rubin advised that if it can be constructed as approved, in accordance with the prior approval, that was perfectly fine. Yes, it is a remedy, but would have to comply with what was already approved. Chairperson Axelrod commented or Mr. Nutter might want to come back and say it cannot safely be done. At which point, they would have to make a reapplication of the size they thought was appropriate. Town Attorney Rubin replied, correct. Member DeMoss comment that on page 189 and 190 of the agenda packet, it showed how the lift was going to be. It showed two, two, and one piling like on each side for a lift and what was out in the water now, but spaced much further apart. He asked if there were two mechanisms raising the boat? Mr. Nutter explained that on each side of the boat, there were two lifting beams, two carrier beams and they were placed in between the two sets of (unintelligible). Member DeMoss asked if there was just one lifting mechanism? Mr. Nutter advised that there were two lifting beams. There are two on each side of the boat. Member DeMoss asked if that was why the original one had the beams back quite a way and the other one is right next to the property line? Mr. Nutter explained the original plan was for an 8-post lift and then two mooring pilings down at the end, just for extra tie- Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 14 of 16 off points and that due to the size of the boat, Neptune, the manufacturer, made a few customizations to it turning it into a 10-post lift. So, that is how all 10-posts were included in the lift. Member Boden asked if that meant that the new plans had two more additional pilings to be installed? Mr. Nutter said no, they were always included. They were included as the mooring pilings. Town Planner Allen clarified that the two pages referenced by Member DeMoss (page 189 and 190) were the plans that were provided to the Planning Board at the October 2017 meeting, part of attachment No. 2. The plans before the board today, date stamped June 22, 2020, started on page 209. Member DeMoss asked if the lift diagram on page 190 was the same as the one on page 207. Town Planner Allen advised, yes. That there are some lines that do not extend all the way, but basically it looked like the posts were in the exact same spot. Page 190 was part of attachment No. 2, which went before the board in October 2017. The actual proposed plans before the board today, stamped June 22, 2020, started on page 208 through 210, might be a good sheet to look at as well. Chairperson Axelrod asked if there were any further comments? He advised that the motion before the board was to deny the various requests to raise the pilings to 12 feet. Motion: Vice Chairperson Goldenberg moved to disapprove Development Order Application No. 19-0001 presentation as present. Member Mendelson seconded the motion, which passed unanimously, on a 7 to 0 vote. Attorney Zachariades thanked the board for their time and asked for clarification on if they were to go back to the 4-feet, they did not have to come back before the board again? Member Mendelson advised that the post would need to be taken down. Chairperson Axelrod and Attorney Rubin advised that as long as they met the original approval as modified, yes that was correct. 9. NEW BUSINESS: A. DEVELOPMENT ORDER APPLICATION NO. 20-0006 (CONDE JANE LOEFFLER) APPLICATION BY DAVID NUTTER, BOAT LIFTS & DOCKS OF SOUTH FLORIDA, FOR A SPECIAL EXCEPTION APPROVAL TO INSTALL A 20,000 POUND CAPACITY BOAT LIFT FOR A PROPERTY LOCATED AT 4318 SOUTH OCEAN BOULEVARD. Chairperson Axelrod read Item 9A into record and asked the board members if they had any ex parte communications? There were none, so he opened the public hearing, calling Town Planner Allen to present her testimony on the application. Town Planner Allen provided background information on the application, stating that it was a 20,000-pound elevator-styled boat lift and that the applicant’s application exhibited that there was an existing wood dock, which would remain and that there would be no new pilings installed for the lift. She presented a PowerPoint presentation which depicted aerial photos of the site and dock (found on page 310 in the agenda packet). She advised that the applicant had obtained (Florida Department of Environmental Protection) FDEP Virtual Planning Board Regular Meeting Minutes Date: August 13, 2020 Page 15 of 16 approval and that the approval number was in the staff report. According to the FDEP approval, the request did not require a separate permit or authorization form the US Army Corps of Engineers (USACE). She read sections 30-68 (g) (6) (d) (2) and 30-131 of the town codes into record and discussed slide No. 19, which showed the existing dock that would be remaining, slide No. 20, the perspective of the southern and northern property lines and the proposed boat lift and slide No. 21, the DTL one top of the lift measuring 7- feet 3-inches from the existing wood dock. She advised the superstructure of the boat when lifted, is 8-feet, 8-inches from the existing wood dock. She read section 30-36 (a) of the town code into record. The Planning Board is the final authority on special exceptions and have the authority to either approve, approve with conditions or to deny the application. She said staff found that the project was consistent with the town’s code and the Comprehensive Plan and recommended approval of the request subject to the following conditions and based on the plans that were submitted by the applicant date stamped July 27, 2020: Approval by the Planning Board and prior to initiation of construction, the applicant submit for a Building Permit from the Town of Highland Beach Building Department, and pursuant to section 30-21 (g), the town’s code commencement of construction shall be initiated within two years, following the date of approval by the plan completion of all conditions of approval shall occur within two years, following the date of approval by the Planning Board. She said she would be glad to address any questions the board had of her. Chairperson Axelrod asked if there were any question of staff? Hearing none he asked if the applicant wanted to make any presentations? Member Mendelson commented that Town Planner Allen said the approval was recommended, but said that they had the right, like a special exception. She was confused about it. Town Planner Allen advised that the code indicated that for boat lifts and other accessory facilities that the process to bring it forward to the Planning Board, would be a special exception. Member Mendelson asked if it was a regular boat lift request and if it met the town’s code. Town Planner Allen and Attorney Rubin replied, yes. David Nutter advised that it was extremely standard. It was a typical elevator lift. There was nothing special about it. He said they had done elevator lifts in Highland Beach a thousand times. Member Brown stated that he was glad that the applicant chose to put in an elevator lift instead of a four-post lift. That he owned the home directly across the canal from the applicant. Town Planner Allen advised that staff did not received any public comment regarding the lift. Chairperson Axelrod asked the board if they had any discussion regarding the subject? Having none, he asked for a motion. MOTION: Member Mendelson made a motion to approve Development Order Application No. 20-0006 as present. Vice Chairperson Goldenberg seconded the motion, which passed unanimously, on a 7 to 0 vote.