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2020.09.10_PB_Minutes_Regular TOWN OF HIGHLAND BEACH TOWN VIRTUAL PLANNING BOARD REGULAR MEETING MINUTES Town Hall / Commission Chambers Date: September 10, 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 Building Official Jeffrey Remas 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 called for a motion to accept the agenda, which resulted as follows: MOTION: Vice Chairperson Goldenberg moved to accept the agenda as presented, Seconded by Member Mendelson, which passed (7 to 0) unanimously. 5. SWEARING IN OF THE PUBLIC A. None 6. PUBLIC COMMENT (limited to five (5) minutes per speaker) There were no public comments. Virtual Planning Board Regular Meeting Minutes Date: September 10, 2020 Page 2 of 11 7. APPROVAL OF MINUTES A. August 13, 2020 Chairperson Axelrod asked the board members if there were any corrections to the August 13, 2020 minutes. Vice Chairperson Goldenberg asked that a comment Mr. Touchette made on page 18 with the words him and they, be reflexed to correspond with each other. Hearing no other corrections to the minutes Chairperson Axelrod asked for a motion to approve the minutes as amended, which resulted as follows: MOTION: Member DeMoss moved to accept the minutes as presented, Seconded by Chairperson Goldenberg, which passed (7 to 0) unanimously. 8. UNFINISHED BUSINESS: A. None 9. NEW BUSINESS: A. AN ORDINANCE OF THE TOWN OF HIGHLAND BEACH, FLORIDA, AMENDING THE CODE OF ORDINANCES, CHAPTER 12 “CONSTRUCTION SITES” AND CHAPTER 25 “STREETS, SIDEWALKS AND BICYCLE/WALKWAY PATHS” TO PROVIDE PUBLIC RIGHT-OF-WAY PERMITTING REGULATIONS; PROVIDING FOR THE REPEAL OF ALL ORDINANCES IN CONFLICT; PROVIDING FOR SEVERABILITY AND CODIFICATION; AND PROVIDING AN EFFECTIVE DATE. Chairperson Axelrod read item 9A into records and asked Town Planner Ingrid Allen to present her presentation. Town Planner Allen introduced herself and provided history on the ordinance discussing regulations concerning the use or occupancy of the Public Right-of-way (install, place, construct or replace), any improvement or to locate any equipment in the right-of-way. She advised that the town code currently does not have regulations regarding right-of- way permitting except for telecommunication facilities, which is in chapter 32, for previsions with installing telecommunication facilities in the right-of-way and that this ordinance does not include these types of facilities. In order to ensure that work and the public right-of-way is performed safely and that existing public utilities are protected from damage; staff has prepared the proposed amendment to the code pertaining to this type of right-of-way permitting. This type of permit would require any person or entity who seeks to use or occupy the public right-of-way to obtain, prior to commencement of any type of construction, a right-of-way permit from the Building Department. She noted that the town has a Construction Site Management Handbook and prior to any construction, staff has a pre-construction meeting with the contractor to go over regulations in the handbook. Additionally, at the August 18 2020 Town Commission meeting, a preliminary draft of the regulations was provided to the Town Commission. A motion of 5 to 0 was made to send the item to the Planning Board for review and recommendation. Since that meeting, some Virtual Planning Board Regular Meeting Minutes Date: September 10, 2020 Page 3 of 11 additional provisions were added to the preliminary draft. She discussed those provisions and said she would be happy to address any questions from the board. Member Boden asked if the right-of-way is 50 feet from the centerline of A1A. Town Planner Allen advised that she believed that was correct. Attorney Rubin commented it would be the entirety of the right-of-way, irrespective of if it were A1A or a local roadway. Member Mendelson asked for an example of what a construction project would be that would need a permit? Town Planner Allen commented if someone were carrying out some sort of landscaping in the right-of-way, any type of driveway improvements, and if there was construction in the right-of-way, required a permit. Member Mendelson commented it would be required for landscaping, but not like if a hedge were in the right- of-way and the landscaper was trimming it, watering it or taking care of it. Town Planner Allen said the ordinance read, install, place, construct or replace. She said trimming a hedge, probably not, but she thought it was within the aforementioned descriptions and would trigger a permit. Any type of irrigation improvements and landscaping that might be in the right-of-way, would trigger permits. Member Mendelson asked if there was a map in the three miles of Highland Beach showing every part of the right-of-way, because she thought a lot of people had no idea if stuff they had was in or out of the right-of-way. She is for the ordinance, but if the Town Commission goes ahead and approves it, she thought a map should be prepared along with a notice to everyone in the town, showing people the right-of-way that is now requiring them to obtain a permit. Chairperson Axelrod advised that the ordinance had been defined as basically everything (sidewalk, bike path, etc.) and that they were not using the actual definition as provided for the right-of-way. Member Mendelson commented the town’s attorney had just said it was the right-of-way. She believes if a new ordinance were being made, it should not be that difficult to make a map so it would be easier for people to better understand it. She asked if it could be done? Town Planner Allen commented that she was unaware of any right-of-way maps that the town had and talked about the Geographic Information System (GIS) consultant the town brought in to bring the town on board with GIS software. She thought it was a good idea. Member Brown Commented that he was trying to understand the purpose of the ordinance because it seemed restrictive. He said that he knows there are very specific restrictions on A1A in reference to parking and vehicles. He inquired about repair or maintenance on side streets requiring permits and now requiring permits for parking. Town Attorney Rubin commented it did not apply to parking in the-right-of-way. It is for improvements or putting something in the right-of-way such as (constructing, utilities or landscaping), that the discussion is not about parking at all. It is about some sort of improvement that is in the right-of-way. Member Brown appreciated the clarification and said he definitively agreed with Member Mendelson that if they were going to restrict what happens in the right-of-way, that people should be told what the right-of-way is. He is a land owner and knows the land could be used by the town and the city and asked a question about the 50 feet centerline on A1A and other streets. Town Attorney Rubin advised that the widths differ depending on (crosstalk). Virtual Planning Board Regular Meeting Minutes Date: September 10, 2020 Page 4 of 11 Member Brown commented that if it did change, he is sure that part of his property belongs to the common city and thinks that people should be told what that is or to at least have a map that is available and then rules could be enforced. Town Planner Allen gave an instance of someone coming in for a driveway permit, noting they would typically need to provide a survey of their property and what would trigger staff’s response to needing a permit. Additional conversation continued. Member Brown said there were instances where people had called Code Enforcement for the most ridiculous things and he could see that it is something that is just going to cause more angst for the town. He asked why waste the town’s resources? Town Planner Allen gave a scenario where people had punctured some sort of utility in the right-of-way and the town had no idea where it had happened. She thought that was pretty much the source of this type of ordinance. Member Adwar asked when was the last time the distance from the center of A1A to the property line of the homes on A1A checked? He stated it should be 50 feet. He commented that many of the property owners had bushes on property they did not owned and asked if they will be made to remove them? Town Planner Allen replied, no. The ordinance would be effective if it is adopted by the Town Commission and on that day, it would become effective. It would be moving forward. It would not necessarily impact property owners that presently have things in the right-of-way. If future changes are made in the right-of-way, it would obviously trigger a permit. Member Boden explained that when he first read through the material, he was thinking A1A, construction, people parking trucks, construction trailer going up and all kind of stuff. He said it was making a lot of sense to make one ordinance that applies to single-family houses down in BelLido that is the same set of rules and regulations for construction on A1A, is maybe why they were getting too involved in one or the other. He asked should they separate the right-of-way regulations and make what is on A1A different than what is on the side streets? He said one is a huge problem and one is very little problems. Maybe they are over regulating in the residential area where they need to be getting more regulations on A1A. Chairperson Axelrod commented that for the most part, they are talking about construction. However, thought one of the major problems in the right-of-way is the sidewalk, when landscapers, as Member Mendelson had mentioned, comes driving in and people are trying to walk up and down A1A, park their vehicles in the middle and do not care. Granted, if they are replanting a palm tree or some bushes that could come into play. He is not sure if a permit is needed to replace bushes or a tree or anything like that. This has to be limited to construction and if something else needs to be looked at regarding other things limiting parking that may be another story. For right now, it should really just be limited to some sort of construction. Member Mendelson commented that what she understood is the conversation should be limited to construction and that Town Planner Allen’s wording was construction, installation, and replacement? Town Planner Allen concurred and added the word place. Member Mendelson said the above were all construction activities and believed that Town Planner Allen said it did not affect parking. The question about maps was mention and she gave an instance of a hedge at Toscana in the right-of-way that was installed and is Virtual Planning Board Regular Meeting Minutes Date: September 10, 2020 Page 5 of 11 now grandfathered in. If part of the hedge dies and needs to be replaced, a permit would now be needed, and the town would consider approval. She said that people might want the same hedge like at Toscana, but approval might be denied. She talked about the basis of denial of construction in the right-of-way and the lack of some sort of criteria in this. She did not understand how it works. The reason she said you need to start with a map is because if the ordinance was adopted tomorrow, Toscana would not have known the hedge was in the right-of-way. She does not believe the ordinance is thought through thoroughly. Vice Chairperson Goldenberg commented he did not see what the difficulty would be, and echoed Members Mendelson’s and Brown’s suggest that a map should be made depicting the right-of-way that the whole town could see. He gave an example of past verses present right-of-away allowed and commented on side streets relating to the erection of a gate in that people would understand they were impeding on the towns right- of-away. Additional comment followed about the right-of-way and the town’s consultant outlining a simple app like Google maps that shows the town's right-of-way. Member Brown commented that the only reason Toscana was able to put up the hedge was because it was just put up and nobody complained about it; however, somebody else is going to try and put up a hedge and maybe have a neighbor that has a problem with it, call to complain and then the city would come out. He suggested somebody explain how this is not a waste of judicial assets and resources. He did not understand why they wanted to create more of a problem for the town to get more phone calls and complaints. He does not agree with wasting more judicial resources. Member DeMoss asked if there were any issues in the past that had come up relative to this subject? Town Planner Allen replied, yes and explained some instances where some work had been done in the right-of-way, some pipes were disturbed, town staff not knowing where it had happened, did not know of any plans for the work and staff having to react. She described the permit as being pretty straightforward. Her explanation continued mentioning that staff could now be proactive and would know where work is happening. The premise of the right-of-way permit is just to be advice as to what is going on in the town, and to know where work is happening in the right-of-way. Member DeMoss commented that for the past couple of weeks, he had seen a survey crew out on A1A, particularly in Highland Beach; surveying waterlines, telephone lines and etc. He asked if it was tied to this. Chairperson Axelrod commented that Terisha Cuebas had explained that the surveyors were looking at the three projects that are going on in the future; the repaving and etc. Member DeMoss asked Town Attorney Rubin is A1A the centerline and 50 feet on each side? Town Attorney Rubin believed it is thorough. Member DeMoss asked if he knew what it is on the side streets (30 feet). Town Attorney Rubin replied it is generally 50. He said that when Member Brown was talking about his property, he looked up Tranquility and it is a 50-foot right-of-way. Member Mendelson commented that she understood now; that the sole reason for the permit is so that the town is aware of constructing, that the contractor has insurance, that no waterlines would be broken and for accountability. She asked if there is any discretion Virtual Planning Board Regular Meeting Minutes Date: September 10, 2020 Page 6 of 11 in saying no you cannot do that in the right-of-way? She was trying to understand that if someone did everything that is mentioned in the statue, could the permit be denied? Town Planner Allen gave her understanding of the ordinance stating it is solely about allowing the construction to be done in the right-of-way. Member Mendelson asked about something that is brought that had no other component of a permit. It is just in the right- of-way, like the hedge was, can it be denied? Town Planner Allen advised there could be many different scenarios. Town Attorney Rubin commented if it does not violate any other code prevision. Member Mendelson commented that it is only the right-of-way. Town Planner Allen replied, yes and reiterated that in the ordinance it talks about the Public Works director reviewing the plan. It depends on the Public Works director determination. Member Mendelson asked what if the Public Works director says it conflicts with some improvement that is already in the right-of-way or something, he notices that he thinks is bad, and he says you cannot do this. What is their recourse? Where do they go? Chairperson Axelrod commented they appeal. Member Mendelson asked if they come to the Planning Board or appeals for a variance? What do they do and how do they fight it? Town Planner Allen asked Town Attorney Rubin if something to with this nature was included in the ordinance. Town Attorney Rubin advised that it was only really included revocation, but if they wanted to, they could include a provision for appeal of denial. It should probably go to the Town Commission. It is where revocation would go. Member Mendelson commented unless anyone else had comments, she had a certain motion she wanted to make. Chairperson Axelrod advised that they would still have a discussion after the motion. Member Mendelson made a motion that we approve this ordinance subject to having a map done of the town's right-of-way, so that everybody knows where their right-of-way is and subject to there being something added that if you are denied your permit after you comply with all the insurance and the contractor and all that, that there be a way of appealing it or fighting it; that it goes somewhere that somebody can hear your complaint. Chairperson Axelrod asked Member Mendelson if he wanted to add to her motion Member Brown’s comment about some way separating the rules for side streets and A1A, would that be possible? Town Attorney Rubin commented that he did not see that there is any differentiation. The public right-of-way is the public right-of-way that all right-of-way have utilities and that is what they are sort of guarding against. Member Mendelson commented she would not add that to her motion because if they do a map, each right- of-way is already defined as how many feet. Chairperson Axelrod asked Member Mendelson if she include adding a map. Member Mendelson and Attorney Rubin advised, yes. Chairperson Axelrod asked for a second to the motion? Vice Chairperson Goldenberg seconded the motion. Member Brown and Town Attorney Rubin had a discussion about the centerline and right of way on his street up to the foundation of his house, about a permit for work done in the right-of and if there were damages caused to the city's property, who is financially responsible. Member Mendelson commented it is why insurance is required. Town Attorney Rubin concurred. Member Brown comment that he understood what is being Virtual Planning Board Regular Meeting Minutes Date: September 10, 2020 Page 7 of 11 done, he is all for having permits to do work, but is against the terminology of the ordinance that is very restrictive; especially on the side streets. Member Goldenberg commented that the town owns the land, not speaking of only Member Brown, but for the grace of the higher authority, that he had built on the land he does not own, which is fine. But if something needed to be done with it in the future, he did not own the land. It is the right-of-way of the town. He said that not just Member Brown, but anybody building on property. Member Brown discussed being able to access maps from the Palm Beach County Property Appraiser’s website. Member Mendelson commented that she did not believe that everybody would go on the site; that the map should be like a tool that the town has, like a zoning map, that people can just go and refer to in a simple easy manner. Chairperson Axelrod asked if there was a way of having the motion of Member Mendelson’s, but also a notification to the Town Commission that there is some concern of what is going on? Is there a way of doing that separately? In other words, approve the motion, but with an add-on. Can that be done? Town Attorney Rubin replied of course. Member Mendelson commented that they vote on it and if there is a majority vote, it means that a majority of them agree that it should go forward. Chairperson Axelrod agreed they should vote on the motion, but thought there should be an add-on about what Member Brown had passed on. Member Brown and Attorney Rubin had additional conversation regarding centerlines specific to A1A’s 50 and 100 feet. Member Brown asked if the proposed ordinance distinguished between the 50 and 100 feet. Town Attorney Rubin advised that it just says in the public right-of-way, whatever that width might be. Vice Chairperson Goldenberg said this would be solved for everybody with the map. Town Planner Allen’s only concern with the map is the scale. She said it would be nice to have something that people can go to on the town’s website. Member Mendelson advised that would be fine. She was just advising that the town has tools for people and that this could be another tool. Member Boden commented that there is a tremendous difference between the issue that is about the right-of-way, the construction, and things that are going on, on A1A versus the side street. He recommended that they look at two sets of regulations. One that affects A1A and one that affects the side streets, he thinks there are mix ups between the two and they are not doing enough to protect the situation on A1A and that they are doing way too much to over protect the situation on the side streets. Town Planner Allen advised the board to look at the application for right-of-way permit, on page 24 of the ordinance that it gives very straightforward information. She conversed on some of the contents. Member Boden continued with comment about regulation, the actual presentation, and major projects on A1A. Member Mendelson agreed with Town Planner Allen; however, there should be an avenue for those who thought it was incorrect, which is why it was a part of the motion she made. Town Attorney Rubin comment that he thinks that is valid. Member Mendelson thinks that you should not differentiate because invariably, when you legislate and the statute that you are legislating has differences for different people. There will be people with differing opinions, is dependent on what you are doing, how far your right-of-way is Virtual Planning Board Regular Meeting Minutes Date: September 10, 2020 Page 8 of 11 and how detailed your work is. If you have an avenue to complain, she thinks that is good that everybody has that same avenue. Building Department Director Jeffrey Remas commented about the utility easement being a part of the right-of-way. The property is not owned by the property owners, it is owned by the town, but property owners are allowed to use it for such things as, driveways, sidewalks, and some landscaping. He said when companies or others who wants to tunnel underneath the right-of-way or cut the pavement, that right now, there is nothing in place to tell them about the work done; that workers do not have to tell them and there is nothing in place to protect the town/utilities. The town needs to know, which is really the whole idea behind this. He thought the board was getting hung up on landscaping, which of course is relevant, but at some point, the line needed to be drawn to change things as they move forward. It is about awareness and informing the Public Works director to be fully aware of where people are working in town for emergency situations. Chairperson Axelrod asked that Member Mendelson’s motion be restated. Town Attorney Rubin reiterated the motion the way he understood it. It is a motion to recommend approval of the ordinance provided that the town creates a map of the town right-of-way and that the town provides a mechanism to challenge the denial of a permanent application. Member Mendelson concurred. MOTION: Member Mendelson moved to recommend approval of the ordinance provided that the town creates a map of the town right-of-way and that the town provides a mechanism to challenge the denial of a permanent application, Seconded by Chairperson Goldenberg, which passed (5 to 2). Although the board approve the motion with the recommendations, Chairperson Axelrod wanted to make sure it is stated that there was further discussion regarding A1A and side streets, so the Town Commission can see there was. Additional discussion continued about the manner in which the Town Commission should be notified regarding the topic. B. Discussion on piling height limits and Town Code deficiencies pertaining to Accessory Marine Facilities. Chairperson Axelrod read item 9B into records and asked Town Planner Allen to give an update to the board members on what happened, as a result of the last meeting? Town Planner Allen provided status and read a letter into record regarding address 1006 Grand Court advising that on September 1, 2020 the town’s building official provided a letter indicating that the property has 30 days from the date of the notice of violation to remove the boatlift and associated structure/pilings and that failure to comply with the notice will result in further action in accordance with chapter 162 of the Florida statutes, Chapter 113 of the Florida Building code and Chapter 17 of the Town of Highland Beach ordinances. She commented that the building official states at the end of the letter that he will consider a new building permit application that is consistent with the original approval, which if the board recalls, was the four feet piling height from the Planning Board, provided Virtual Planning Board Regular Meeting Minutes Date: September 10, 2020 Page 9 of 11 that they have an active and approved FDEP and Army Corps of Engineer permit. The property owner has not submitted anything to the town as of yet. Chairperson Axelrod commented that the piling had not been removed as they speak? Town Planner Allen according to the letter, they have 30 days. Vice Chairperson Goldberg said from what he understands, they do not have to be removed, they have to be cut down to the approved height. Town Planner Allen asked Building Official Remas if they have an approval for the four feet and if they can be cut down? Building Official Remas advised that right now they do not have an active building permit. Their permit has expired again and it will not be renewed. They do not have a legal building permit and do not have approval for what they currently have. So, in order to cut them down and build it the way that they were originally approved by the Planning Board, they will have to submit for a new building permit, which will include all the required approvals from DEP and Army Corps. Member Brown commented that on page 35 where it talks about the height limits of the pilings. In section 3.07F.(b), it says no boat exceeding 31 feet in overall length shall be hoisted or davited from the water unless approved by the Impact Review Committee. Is that existing now or is that proposed? Town Attorney Rubin and Town Planner Allen comment it is for Jupiter Island. Town Planner Allen discussed the item stating that on August 15, 2020 the Chair of the Planning Board reached out to staff with two inquiries. The first one was whether other municipal codes provide height limits on pilings and whether there are other deficiencies in the town code, as it pertains to the Accessory Marine Facility provisions. She did meet with Town Manager Marsha Labadie to discuss the inquiries made by the Chair and he gave her directions to proceed with preliminary research on the inquiries. She also made the board aware that she takes directions from the town manager. He is the one that directs her with regards to her workload. She advised the board of the agenda memorandum in their packets, which provided her findings. She read the findings of Boca Raton, Delray Beach, Manalapan, North Palm Beach, Ocean Ridge, Sanibel, Cape Coral, Jupiter Island, and Lighthouse Point into record stating there were a lot of very interesting provisions regarding pilings. She read the deficiencies of town code 30-68 (g)(6)(d)(2) into records. She thinks it would be very easy for the town to address the conflict in provisions independently from the rest of the Accessory Marine Facility provisions, but staff suggest that a marine consultant be brought on to look at the section to look at it holistically and not piecemeal changes or revisions to the code. She thinks that some of the things that the marine consultant can look at is lift piling heights, whether hoisting of boats or some sort of threshold, to look at corresponding definitions and to determine whether they should be incorporated into the code. Dr. Michael Jenkins of ATM, for Coastal and Marine related services that the town has a professional services agreement with, confirmed he would be willing to do a courtesy presentation via zoom at the next Planning Board meeting to advise the board of some of the issues that he sees with the Accessory Marine Facility provisions that are in the town’s code. She concluded her findings and was open to address any questions of the board had. Virtual Planning Board Regular Meeting Minutes Date: September 10, 2020 Page 10 of 11 Member Boden commented that having somebody come talk with them is an excellent idea, but to tie it in with that, perhaps they need to survey the existing dock situation in town, which go from A to Z. Not being an expert in the area, but for instance do the multi- family docks fit the code or do not fit the code? How far are they? They are trying to make rules about what the docks should be and how they should be built and they really do not have an inventory of what exists. He is not adamant about it, but it seems like knowing what they have would be an important place to begin. Member Mendelson said that she likes the idea of having a consultant. The consultant could look into Member Boden’s suggestion, at other things and make recommendations. She is sure this is something that the Town Commission has to decide because it probably costs a lot. She complimented Town Planner Allen on her report, and said she knew nothing about boats and had it been in any form, she would have gotten the same thing out of it. Member DeMoss commented that he liked what Lighthouse Point has done and certainly Jupiter with the 31-foot limits, but he thinks that having a consultant come in would certainly give them a lot better feel for the situation and what they have in docks now, would probably certainly be grandfathered in with whatever they do. Vice Chairperson Goldenberg said it goes back to what they discussed and that the Town Commission discussed on setbacks for the length of boats versus height and that it could all be incorporated into one presentation. Chairperson Axelrod commented that a motion was probably not needed on the item. He said they would love to have Dr. Jenkins come back to discuss it, but also wondered if Town Manager Labadie would have to direct an actual consultation regarding the situation? Town Planner Allen advised that she had already discussed it with the town manager that Dr. Jenkins is willing to do a courtesy presentation to the board and that the town manager was okay with it. Chairperson Axelrod said that he would like to see more than just a courtesy discussion. He would like the consultant to consult with some actual recommendations, which may require him to do somewhat of what Member Boden suggested, to take a look at the area in general. It may be more deficiencies regarding that. Obviously, it could be very difficult looking at the different towns. They are all very different and really there is only one or two in the findings that actually give a height of pilings and not necessarily for boat lifts. He asked if a motion was needed. Town Attorney Rubin advised just a consensus. A formal motion was not needed. Chairperson Axelrod believes there is consensus. Member Goldenberg commented that Member Brown was the active boater on the board right now and asked him for his thoughts? Member Brown commented that the height of the boat and the pilings are probably more important because that is the most obtrusive. He did not think the length of the boat really made that much of a difference, but if he were to hoist his boat five feet higher than what it is now, he thinks it would be really obtrusive to neighbors. It is probably the reason why he had an issue at the last Planning Board meeting because the height of that boat was going to be excessively high. The height of pilings is relative to the height