2009.03.06_PB_Minutes_Special
TOWN OF HIGHLAND BEACH
MINUTES OF THE
PLANNING BOARD
SPECIAL MEETING
Friday, March 6, 2009 9:30 A.M
Members Present: Chair Louis P. Stern, Board Member Max Angel, Board Member
Marie Marchesani, Board Member Dennis Sheridan and Board Member Joseph Yucht.
Members Absent: Vice Chair Ken Tapman (excused) and Board Member Patricia A.
Pembroke (excused). Also Attending: Town Manager Dale Sugerman, Building Official
Tom Forbes, Deputy Town Clerk Valerie E. Oakes and members of the general public.
CALL TO ORDER:
Chair Stern called the Special Meeting to order at 9:30 a.m. Roll call was taken by
Deputy Town Clerk Oakes. The Pledge of Allegiance followed.
ADDITIONS, DELETIONS OR ACCEPTANCE OF AGENDA:
• MOTION: Board Member Sheridan moved to accept the agenda as presented. Board
Member Yucht seconded the motion, which passed unanimously.
PUBLIC COMMENTS AND REQUESTS:
None.
PRESENTATIONS:
None.
APPROVAL OF MINUTES:
MOTION: Board Member Sheridan moved to approve the minutes of December 10,
2008. Board member Marchesani seconded the motion with corrections, which passed
unanimously.
OLD BUSINESS:
• 2637 S. Ocean Blvd., Byrd Beach Estates
Review and Discussion for the Construction of a New Single Family House
on Lots 20 & 21 (Developer Lots 6 & 3)
LJ
Planning Board Regulaz Meeting
03/06/09
Page 1 of 2
• Town Attorney George "Rusty" Roberts, Esq. of Roberts, Reynolds, Bedard
and Tuzzio.
NEW BUSINESS:
None.
ADJOURNMENT:
MOTION: Board Member Angel moved to adjourn the meeting at 10:55 a.m. Board
Member Marchesani seconded the motion, which passed unanimously.
APPROVED:
o P. Stern, C r
Vice Chai
TOWN SEAL
Marie Marchesani,
Excused
•
~,
er
Member
Board IV~mber
s Sheridan, Board Member
Jq~eplYS. Yucl~t!~Board Member
T ESTED:
Date: Tuesday, June 23, 2009
Valerie E. Oakes
Deputy Town Clerk
Attached are the minutes verbatim that were done from a private
contractor through an outside agency. •
Planning Board Regular Meeting
03/06/09
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3 TOWN OF HIGHLAND BEACH
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7 PLANNING BOARD
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11 SPECIAL MEETING
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21 Held at 3614 south ocean Boulevard, City of
22 Highland Beach, Town Hall, Highland Beach, Florida 33487
23 on Friday, March 6, 2009 at 9:30 a.m., before Ruthanne
24 Machson, Court Reporter and Notary Public, in and for the
25 state of Florida at large.
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1 A P P E A R A N C E S
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6 ON BEHALF OF THE APPLICANT:
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8 Weiner, Aronson & Mankoff, P.A.
10 S.E. lst Avenue
9 Delray Beach, Florida 33444
BY: MICHAEL S. WEINER, ESQUIRE
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ALSO PRESENT:
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Jason s. Mankoff, Esquire
14 Morris Stoltz
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17 ON BEHALF OF ELIZABETH SUSSKIND:
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• 19 SIEGFRIED, RIVERA, LERNER, DE LA TORRE & SOBEL, P.A.
1675 Palm Beach Lakes Boulevard, suite 500
20 west Palm Beach, Florida 33401
BY: JEFFREY A. REMBAUM, ESQUIRE
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1 A P P E A R A N C E S (continued)
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• PLANNING BOARD:
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Chair Louis P. Stern
9 Board Member Max Angel
Board Member Marie Marchesani
10 Board Member Dennis Sheridan
Board Member .7oseph Yucht
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13 ALSO ATTENDING:
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15 Town Manager Dale Su arman
Deputy Town clerk vagerie Oakes
16 Building official Tom Forbes
Town Attorney George "Rusty" Roberts, Esquire
17 Roberts, Reynolds, Bedard & Tuzzio, P.A.
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1 (Thereupon, the following proceedings
2 were had:)
3 CHAIRMAN STERN: Good morning, ladies and
4 gentlemen of Highland Beach.
5 Could we have a roll call, please.
6 DEPUTY TOWN CLERK OAKES: Chairman Stern?
7 CHAIRMAN STERN: Here.
8 DEPUTY TOWN CLERK OAKES: Vice Chair
9 Tapman?
10 (NO response.)
• 11 DEPUTY TOWN CLERK OAKES: Board Member
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• 12 Angel?
13 BOARD MEMBER ANGEL: Present.
14 DEPUTY TOWN CLERK OAKES: Board Member
15 Marchesani?
16 BOARD MEMBER MARCHESANI: Present.
17 DEPUTY TOWN CLERK OAKES: Board Member
18 Pembroke?
19 (NO response.)
20 DEPUTY TOWN CLERK OAKES: Board Member
21 Sheridan?
22 BOARD MEMBER SHERIDAN: Present.
23 DEPUTY TOWN CLERK OAKES: Board Member
24 Yucht?
25 BOARD MEMBER YUCHT: Present.
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CHAIRMAN STERN: T
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2 that and we do have a quorum and, hopefully, we
3 will get one more member joining us.
4 At this point, can we all stand to pledge
5 allegiance to the flag?
6 (The Pledge of Allegiance is said.)
7 CHAIRMAN STERN: Thank you. Are there any
8 additions, deletions and, if not, can I have a
9 motion for acceptance of the agenda?
10 BOARD MEMBER SHERIDAN: I'll make a motion
11 to accept the agenda.
12 CHAIRMAN STERN: Second?
13 BOARD MEMBER YUCHT: Aye.
14 CHAIRMAN STERN: All in favor?
15 ALL BOARD MEMBERS: Aye.
• 16 CHAIRMAN STERN: Good. At this point, we
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17 could take public comments from anybody who would
18 like to have five minutes and, if not, we will
19 have them again at the end.
20 since nobody is getting up, I would like to
21 -- oh, I'm sorry, Mr. Rembaum?
22 MR. REMBAUM: Hi. Thank you, sir.
23 CHAIRMAN STERN: Go to the microphone and
24 identify yourself and your address.
25 MR. REMBAUM: Hi. My name is Jeff Rembaum.
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1 CHAIRMAN STERN: Wait a second. I think we
2 need to swear you in. Valerie, do you want to?
3 DEPUTY TOWN CLERK OAKES: Raise your right
4 hand. Do you swear to tell the whole truth and
• 5 nothing but the truth so help you God?
6 MR. REMBAUM: Absolutely dear.
7 I just want to clarify when my opportunity
8 to address the counsel will occur. I didn't want
9 to waive an opportunity to speak inadvertently
10 after the applicant addresses the planning board.
11 CHAIRMAN STERN: This is just a catchup
12 meeting, sir, and we will schedule today a regular
13 meeting that will then deal with the issue of Byrd
14 Beach Estates but, in the interim, we have two new
15 board members who were not here when we started
16 this well over two years ago.
17 MR. REMBAUM: And I do have some comments I
18 would like to address at some point, but it will
19 be more appropriate after the applicant.
• 20 CHAIRMAN STERN: Absolutely.
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• 21 MR. RE MBAUM: Thank you, sir.
22 CHAIRMAN STERN: I would like a motion to
23 approve the minutes from December 10th, 2008.
24 BOARD MEMBER MARCHESANI: I second. On the
25 second page, Dorothy's name is misspelled
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1 throughout and I think, for the record, that
2 should be corrected. subject to that, I second.
3 CHAIRMAN STERN: Thank you. So noted and
4 valerie will take care of that.
5 old business. The review and discussion
6 for the construction of a new family single house
7 on lots 20 and 21 developers' numbers 6 and 3
8 located at 2637 south ocean Boulevard referred to
9 as Byrd Beach Estates. I would like to take a few
10 minutes and see if I can bring you up-to-date with
11 a little brief history of where we were a little
12 over two plus years ago.
13 The application and correspondence between
14 all parties involved -- well, the application was
15 originally considered by the planning board on
16 April 12th, 2006 for a preliminary review. Upon
17 consideration, the board recommended the applicant
18 obtain a variance to admit the bridge connection
19 to existing variance east of the subject property
20 on lots 3 and 6 over the internal access road and,
21 if approved, appear again before the planning
22 board.
23 As of duly 10,-2006 at the Board of
24 Adjustment meeting, the board unanimously agreed
• 25 to grant the approval of such variance to
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1 eliminate the attachment to the proposed new
2 dwelling on lots 3 and 6.
3 The planning board again reconsidered the
4 application on August 9, 2006. During that
5 meeting, the board approved a motion due to the
6 complexity of an issue as to whether it was a
7 single-family or multi-family project and agreed
8 with the application and the homeowners to
9 schedule a special meeting on August 23rd, 2006 to
10 continue its consideration of the application.
11 The board also suggested the two opposing
12 sides try to get together to possibly resolve some
13 of these issues that had been brought before this
14 board which were not in our jurisdiction of a
15 planning board.
16 During the August 23rd, 2006 meeting, the
17 board presented a brief history of the town's
18 review of the numerous applications and meetings
19 concerning the entire project with the initial
20 approval of the overall project site plan on
21 December 13th, 1995 and individual approval for
22 lots 1, 2, 4 and 8. Lot 7, was never considered
23 for approval.
24 There was also input by the Delray Beach
25 Fire Department with respect to the egress/ingress
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1 by emergency and fire vehicles to the complex and
2 miscellaneous additions to the additional units in
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• 3 the complex.
4 In a memo dated 12/19/2006, town attorney
5 sliney commented on four issues: one, the
6 planning board has authorization to review the
7 current application; two, required with a complex
8 of private streets, Byrd Beach site plan dated
9 9/29/2006 indicated both east, west and northeast,
10 southwest paved variance are road utilities and
11 landscape easements.
12 Mr. sliney noted that these easements are
13 not private streets and are on original sites
14 approved as an overall layout of the design which
15 was approved by the board on 12/13/1995. The
16 department has provided to the board their concern
17 about the design access. Access was formally
18 approved by the board and executed by Lt. Tom
. 19 Desky (phonetic) of the Delray Fire Department.
20 Due to parking issues, the applicant will
21 look into removal of the guardhouse and placement
22 of angular parking contingent upon the Department
23 of Transportation approval due to encroachment
24 upon AlA authorizing parallel parking within the
25 property lines and a wall separating the parking
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1 lots from 1 and 2, or at least pay the homeowner
2 75,000 less cost of engineering for the homeowners
3 who pay the entire realignment or whatever they
4 wish.
5 Then there was a lot of documentation back
6 and forth with a lot of testimony and, at one
• 7 point, Tom Sliney, who was our town attorney, was
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• 8 challenged for a possible conflict of interest and
9 rather than pursue that, even though he did not
10 feel he had a conflict of interest, he did recuse
11 himself, and the town was able to obtain the
12 services of Rusty Roberts, George Rusty Roberts.
13 Again, the attorneys did question the
14 viability of Mr. Roberts in the possibility of
15 recusing himself but, in correspondence back and
16 forth, he proved to both sides that he was
17 qualified and capable of handling the situation.
18 That said, this is an update for our two
19 new board members, Mr. Angel and Mr. Sheridan. we
20 have, the balance of us, actually done an on-site
21 inspection, and it's something we would want to do
22 before our next meeting just to familiarize
• 23 yourselves with it.
24 If you take the plans and you look at AIA,
25 which is at the bottom of the diagram, at left
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1 where the letter B for Byrd Beach is, currently
2 there is a guardhouse there in total disrepair,
3 and there are two gates, one on either side,
4 chain-link, fence-type gates, which would swing
5 open and allow for the fire equipment to enter.
6 what we noticed when we were there was the
7 fire equipment still had some difficulty, that's a
8 small engine, making its turn around between lot 5
9 and lot 6, and the developer at that time, two
10 years ago plus, said he would correct that. z
• 11 would like to hear today if that's been taken care
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• 12 of.
13 The police department has decided that the
14 best for them would be if the gate could be moved
15 on either side so that it would be an easier
16 access backing their larger truck straight up on
17 either side and then being able to pull out
18 straight.
19 That's pretty much where we left it. we
20 had a meeting planned, and I'm not quite sure, and
21 maybe someone from either side could tell me, why
22 we are two plus years away from not having come to
23 some conclusion. So that's my report.
24 Now, at the special meeting, a number of
25 things did come up. The project, 2637 south ocean
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2 Appraiser web site shows an undeveloped land
3 locked lot. Pursuant to that, certain warranty
4 deed dated September 22nd, 1996, the report
5 recorded in the public records of Palm Beach
6 County, Florida. Official health records 9139,
7 page 1737, A.H. Harris Enterprise conveyed a large
8 piece of real estate included in subject property
9 to Byrd Beach Estates, a limited partnership.
10 As of August 2, 2006, there was no record
11 in the Palm Beach County Appraiser's web site
12 indicating the property was ever conveyed back to
13 the Byrd Beach Estates, Limited. The application
14 indicates that the Byrd Beach Estates owner would
15 be Mark A. Gazeta and Dawn M. Sacco (phonetics) as
i 16 joint owners with rights of survivorship.
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• 17 Public notice, workshops, etc., were all
18 done and we here on this board are just a little
19 confused and, hopefully, that's what we can
20 straighten out today as to who the owner is, what
21 the application is, and what the delay was from
22 2000 plus to two years plus to today.
23 with that, I would like to ask if there's
24 anybody on either side that would like to make a
25 few remarks to try to help let us know where we
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1 are. we would appreciate that.
2 MR. ROBERTS: I guess we need to swear in
3 Mr. Weiner.
4 CHAIRMAN STERN: Do you solemnly swear to
. 5 tell the truth, the whole truth and nothing but
6 the truth?
7 MR. WEINER: I do. I'm Michael Weiner for
8 the applicant.
9 First, I know that Attorney Rembaum came to
10 the public portion of this to make a small
11 statement, but the matter is on the agenda, and
12 you should be considering those things that are
13 before you when we are speaking on this matter.
14 when we last left this, I think it's almost
15 23 months ago, we were to a stage in a
16 quasi-judicial hearing that has a procedure in
17 which I was giving my closing remarks and, as the
18 procedure goes, the applicant has the opportunity
19 to make those last remarks. Now, I know that
• 20 Attorney Rembaum is trying to reverse that now so
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• 21 that he can get up at the microphone after me, but
22 the testimony and that portion of the hearing is
23 already closed.
24 Now, I will, as a courtesy, obv iously,
25 summarize my porti on of the argument and, if it
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1 assists, we can understand the courtesy of wanting
2 to hear a summary from the other side, but I have
3 to insist procedurally that I have the
4 opportunity, because i didn't make my closing
5 argument, to come back to the microphone because
6 that's how judicial hearings are conducted in this
7 particular town.
8 I'm more than willing to, if you agree with
y 9 me procedurally, I'm more than willing to give you
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11 think at the hearing that I think lasted almost
12 three hours if I remember, Mr. Stoltz? And I'm
13 willing to do that quickly, but I want to know
14 that I can, in accordance with the quasi-judicial
15 procedures, be the last person at the microphone,
16 and I respectfully request that.
17 CHAIRMAN STERN: Mr. Roberts, do we have
18 any problem with that?
19 MR. ROBERTS: Well, I don't think the
20 purpose of this meeting is to make a vote and
21 decide upon it, so I think --
22 CHAIRMAN STERN: No, we are not going to
23 have a decision today.
24 MR. RoBERTS: well, it sounds like to me is
• 25 that you want to have a conclusion to the
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1 quasi-judicial hearing here, and I don't think
2 that's the purpose of this hearing because it's
3 not going to properly notice that. You certainly,
4 if you have a meeting, you know, all due process
5 will be afforded and those issues will be decided
6 at that meeting.
7 I think the chairman, at this point, just
8 wanted to have an address to specific issues as to
9 why it has, because I think there's another issue
10 that is going to be brought up about the
11 expiration of the variance.
12 MR. WEINER: If Mr. Rembaum was kind enough
13 to start this discussion, I would like to let him
14 continue the discussion, and I will get to the
15 microphone when he is done making his summary.
16 CHAIRMAN STERN: Thank you, sir.
17 Mr. Rembaum?
18 MR. REMBAUM: Thank you, sir.
19 By way of background -- this is Jeff
20 Rembaum again for the record purposes.
21 At one time, I stood before you as an
22 attorney at Ruden McClosky representing an ad hoc
23 owners' group of the Byrd Beach Estates
24 Homeowners' Association. And we say an ad hoc
25 because the board intuited the control of the
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1 association still rests with the developer of that
2 particular community, and so it would be improper
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• 3 to say I represent the association because I
4 don't. The members themselves don't have control
5 of that association. So at that time, I was
6 representing all owners except one where my firm
7 had a conflict of interest with the exception, of
8 course, of the applicant as well.
9 Fast forward, I guess, almost 23 months ago
10 to present date. I'm now a shareholder at
11 Siegfried, Rivera, still the same practice area,
12 and I got a phone call several weeks ago, and my
13 client, for today's purposes that I need to
14 clarify, is Elizabeth susskind, not the full ad
15 hoc group because, quite honestly, i haven't had
16 time to coordinate with everybody..
17 My client contacted me and asked me to be
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• 19 here today. However, she is out of the country at
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e moment and will not be back until the end of
20 the month. so there are some logistical issues,
21 but I will be contacting her and my client will be
22 contacting the other owners to determine whether
23 or not my representation will include the full ad
24 hoc group or who's in or who's out and those sorts
25 of procedural issues, and I will report back on
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1 that at our next meeting, but I just wanted to
2 clarify for the record purposes who my client is,
3 at least for today's purposes, is Elizabeth
4 susskind and her husband, sergei.
5 CHAIRMAN STERN: Who is going to represent
6 the other five homeowners?
• 7 MR. REMBAUM: Well, I don't know right now,
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• 8 sir. As I stand here today, I'm not sure.
9 Several people are here and I do believe want to
10 address the planning board. I have no dog in this
11 fight, whether I address the planning board before
12 or after. I'm here for more questioning, so after
13 the applicant, if you have more questions of me,
14 I'll be happy to answer them. And I see that you
15 do have questions.
16 BOARD MEMBER MARCHESANI: Well, which lot
17 is she on?
18 MR. REMBAUM: Elizabeth Susskind, I have to
19 look at my notes.
20 MEMBER OF AUDIENCE: She is on Lot 2.
21 MR. REMBAUM: Moving forward. I disagree
22 with the applicant, obviously. This is a
• 23 continuation of the quasi-judicial hearing. I was
24 informed by the town that the applicant had
25 withdrawn his request and I just assumed this had
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1 all gone away until I got a phone call several
2 weeks ago. so procedurally, I'm not sure what's
3 on file yet with the town. I need to have a
4 planner come down and take a look through the
5 records again as to how that -- what has happened
6 over the last 23 months? what was the purpose of
7 no action on this file for 23 months? I was under
8 the impression that it was a withdrawal of
9 application, which would mean there is no file and
10 the judicial hearing was starting over.
. 11 Be that as it may, let me just jump into
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• 12 the facts to see if I can refresh everybody's
13 recollection. First and foremost, I am glad
14 Attorney Roberts is appointed to this commission
15 as there were some issues on conflict. whether or
16 not they will resurface or not, I don't know if
17 that's resolved or not, sir, but I certainly
18 respect the fact that Attorney Roberts is here,
19 and I know he's a well-respected member of the
20 Florida Bar.
21 That said, the variances that are
22 associated with this community according to the
23 town's code have a life of 18 months. well, we
24 know it's been 23 months since the last action, so
25 it doesn't take a whole lot of math to determine
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2 everything has completely expired as far as
3 building new projects goes. So that issue needs
4 to be looked into.
5 I have prepared a small handout of some of
6 the existing issues, if I may pass this out.
7 lust going back through my notes, this is sort of
8 the issues that never got resolved.
9 Also, Attorney Roberts, I had sent some
10 correspondence to you and I spoke to you but never
11 met. That's probably because the petition, for
12 lack of a better word, was withdrawn. I don't
13 know if it was actually withdrawn, but there was
14 no action, at any rate, but in my correspondence
15 to Attorney Roberts dated Tune 7, 2007, most of
• 16 these issues, if not all of them, are described
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• 17 therein. Attorney Roberts, if you need me to get
18 that letter from Ruden McClosky back over to you,
19 that can be done. we can probably get a copy of
20 that.
21 First and foremost, we retained a planner
22 because when I was with McClosky, we had a
23 full-time planner on board. So I sent her down to
24 this community to do due diligence for us. And we
25 still have those records, but she was unable to
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1 find the true site plan for this community. we
2 did, however, find a true landscape plan. we
3 still don't have, and we have certainly tried to
4 no avail, to get a copy of the site plan for the
• 5 community. Generally, if anything is going to be
6 down, this community needs to be brought current
7 into this town's code. So first and foremost we
8 need to get an accurate site plan.
9 When the community was approved, it seems
10 like at different times it had -- may have had two
11 different types of approvals, one was for the RMM
12 zoning district, the other for the single-family
13 attached, and you see that for the RMM -- and that
14 helps with setbacks, by the way. so if you go
15 with the RMM community, the setbacks were
16 different than for the single-family attached,
17 including lot coverage issues and things like
18 that.
19 so initially, it seems like it was RMM
• 20 attached - I'm sorry, RMM and, then, when it was
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• 21 no longer convenient to be RMM, all of a sudden
22 the town started applying single-family attached
23 to the community and, of course, I can't get back
24 to figure out which one it's supposed to be here
25 because I can't find the approved site plan.
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1 Lot coverage. For lot coverage, if you're
2 building a single-family attached home, according
3 to code, is 8,000 square feet and neither Lot 3 or
4 6 has it, and then you can only have 40 percent of
5 lot coverage. It's inconceivable to me how you
6 can build anything on this particular tract in
7 conformance and in conformity with the code. If
8 it's RMM zoning, then you need two and a quarter
9 spaces per unit for parking and if you've done
• 10 h
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ow t
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s and everybody
11 does have two spaces in their garage, but that's
12 it. But if it is RMM, then we have a parking
13 space problem we need to get our arms around.
14 Again, on point number six, all variances
15 have expired. There was a requirement at one time
16 for a single-family home to have the connecter
17 between each house, the common wall, if you will,
18 and then there was a variance for that that the
19 applicant either was applying for or I'm not sure
20 if it was granted or .not. Obviously, it's expired
21 if it was.
22 The bottom line on the variance application
23 is every situation that now exists on this site, I
24 would bring to your knowledge, that has been
• 25 caused by the developer is the exact same guy that
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1 built all the homes, so it was done on this site.
2 And one of the reasons for the variance together
3 is that he can't participate in the cause for the
4 need. so that's something else to consider if we
5 go through this process again.
6 There is an open space dedication
7 requirement in the town code. well, is that met
8 in this particular community? And I don't think
9 it is but, again, we don't have verification
10 because we don't have a site plan.
11 windows. I'm not sure what the reasons
12 are. Maybe there's a new design for the house
13 and, if that's the case, maybe everybody will work
14 together toward that new design because I know
15 that's a resolution everybody would like to see.
16 But with the plan that was submitted some time
17 ago, and I know my client had an issue with the
18 windows of that home being so close to the
19 swimming pool, and the swimming pool, I think it
20 was like three feet from the wall to the window of
21 her home and she was concerned she wouldn't even
22 be able to open her window exteriorly without
23 hitting a wall to get out in case of afire..
24 And when it comes to fire safety, there was
25 also conversation that because of way the
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1 community was constructed and the roads themselves
2 don't meet the normal road width, etc., and the
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HIGHLAND ZONING BOARD 030609 final draft no audio
3 fire trucks would have a hard time accessing the
4 community, and there was talk about me designing
5 the entry features, and I don't know whether or
6 not that has taken place, I don't think it has,
7 judging by when I drove by this morning, it looks
8 like the same design. so that has to get
9 addressed and we need the fire department back in
10 here.
11 A water impact study. well, we looked for
12 that and we couldn't find it, and that's a
13 requirement of the town code.
14 This is sort of like, you know, a general
15 review of all of the outstanding issues where we
16 left off 23 months ago. My list may not be a
17 hundred percent comprehensive of everything, but I
18 at least wanted to try to refresh your
19 recollection as to some of the larger issues that
20 are out there.
21 And I would also suggest to you that the
22 town has a duty, and the duty is obviously
23 exercising your reasonable business judgment, but
24 to your residents, to the folks that live here,
25 and while I recognize Mr. Sliney is a respectful
24
•
1 business man -- I'm sorry, not Mr. Sliney, the
2 applicant is a respectful business man in the
3 community, the last 23 months ago, he was not a
4 resident of this town. And here are the residents
5 in the city, the neighbors of these lots that are
6 very, very concerned with what's happened in their
7 community already, and we've got to fix the past
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HIGHLAND ZONING BOARD 030609 final draft no audio
• 8 before we can move forward to the future.
9 Thank you, sir.
10 CHAIRMAN STERN: Thank, you, Mr. Rembaum.
11 Before you leave, I want to see if anybody has any
12 questions of you.
13 BOARD MEMBER SHERIDAN: No, sir.
14 BOARD MEMBER ANGEL: NO.
15 BOARD MEMBER YUCHT: I have one question.
16 In your opinion, what is the applicant seeking?
17 MR. REMBAUM: Today or overall?
18 BOARD MEMBER YUCHT: Well, why are we here
19 today?
20 MR. REMBAUM: I think he needs to answer
21 that but, ultimately, I think he wants to build
22 one large mega home that was never contemplated in
• 23 any conversation until this application came in on
24 two lots.
25 BOARD MEMBER YUCHT: IS it your opinion
0
25
1 that the application is still viable and pending
2 before this board?
3 MR. REMBAUM: No, sir.
4 BOARD MEMBER YUCHT: I'm a little confused.
5 I'm a little confused. Fires are a very dangerous
6 issue. I am led to believe that the fire engines
7 have to back into the property. Now, backing in
8 obviously costs time. A matter of minutes can
9 cause lives to be lost. I don't understand how
10 this was approved initially. I would never vote
. 11 for an applicant to say, well, we'll back in the
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HIGHLAND ZONING BOARD 030609 final draft no audio
• 12 fire engines.
13 CHAIRMAN STERN: I don't think anything was
14 approved. I think it was just the testimony of
15 the fire department that they could egress and so
16 forth.
17 BOARD MEMBER ANGEL: I would look at this
18 plan site and say it's all illegal. It should
19 never be issued.
20 CHAIRMAN STERN: That's not the issue
21 because it was all approved in 1995 and the only
22 thing they had to do in order to complete was to
23 have a bridge removed which was part of a code in
24 order for this to be built. Beyond that, now
25 we're into the Witty-gritty as to the homeowners
0
26
• 1 h
h
f
w
o
ave sent a ton o
correspondence, and a ton
2 for both sides, but we are 23 months, if that's
3 the correct number. I'm not quite sure, but I
4 believe Mr. Dorcin, at the time, was our building
5 inspector, and when we didn't hear anything, we
6 just assumed it was a sleeping dog because we
7 didn't know. so I guess we were a little
8 surprised when this came up again, and we now have
9 not only two new members, we have a new building
10 inspector, and I'm sure he's been studying
11 overnight, but we all need to get caught up.
12 MR. REMBAUM: I would like to address one
13 question that the commissioner had, and we're at a
14 planning board meeting today and the planning
15 board member has it, and that is that I know the
• 16 minutes show there was an approval in 1995.
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HIGHLAND ZONING BOARD 030609 final draft no audio
• 17 There's no site plan for this community.
18 CHAIRMAN STERN: That's absolutely correct.
19 MR. REMBAUM: The applicant is the same.
20 Therefore, before we can do anything, before we
21 move forward an inch, we need the site plan on
22 file with the city so we all know what we're
23 working with. Are we working with an RMM
24 community or are we working with a single-family
25 attached? until we get those questions answered,
0
27
1 I don't know how we can do anything moving forward
2 into the future.
3 BOARD MEMBER ANGEL: I just had to express
4 myself to clear my conscience.
• 5 CHAIRMAN STERN: Thank you, sir.
6 Yes, sir?
7 MR. CALDWELL: Can I just clarify something
8 real quick?
9 CHAIRMAN STERN: You're a homeowner?
10 MR. CALDWELL: My family owns a home at
11 2635 South ocean Boulevard.
12 CHAIRMAN STERN: Can you save your remarks
13 until a little bit later?
14 MR. CALDWELL: I just want to clarify that
15 the fire engines cannot get into the community.
16 CHAIRMAN STERN: That's not an issue right
17 at the moment.
18 MR. CALDWELL: I just need to clarify that
19 they cannot get in there.
20 BOARD MEMBER ANGEL: If you're addressing
Page 23
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HIGHLAND ZONING BOARD 030609 final draft no audio
• 21 me, thank you.
22 CHAIRMAN STERN: Could we hear from the
23 opposing counsel, please. Please identify
24 yourself and your address.
25 MR. WEINER: Michael Weiner, 10 S.E. 1st
0
28
1 Avenue, Delray Beach, Florida for the applicant.
2 I really don't have to say much more as to
3 why it's taken all the time it's taken, just to
4 summarize the arguments that the homeowners have
5 pages just for summary. And that's the way it's
6 been since the very beginning. My summarization
7 of this situation will be very short and to the
8 point.
' 9 There are six homes that were built in
• 10 h
f
h
l
'
t
ere. one o
t
e
ast was Mrs. susskind
s home
11 which she built herself somewhere between 2000 and
12 2003. A seventh homeowner has asked to build in
13 the same manner under the same rules that have
14 been applied over now 15 years, and all that that
15 particular homeowner wants to do is the same thing
16 Mrs. Susskind did.
17 Now, notice, first of all, we haven't
18 withdrawn it. second of all, we have no problems
19 with Attorney Roberts handling this matter.
20 Note, in summary, it was said we have to
21 fix the past before we move into the future. so,
22 in other words, we can all build our six houses
23 under the rules that were applied by the Town of
24 Highland Beach fairly and procedurally done in
25 accordance with its code, but the seventh house,
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HIGHLAND ZONING BOARD 030609 final draft no audio
29
•
0
•
1 because he's not a citizen of the Town of Highland
2 Beach, and because he may be associated with the
3 original developer, no, now it's time to change
4 all the rules. Didn't cause us any problem that
5 we didn't have a site plan on file. we can build
6 our house, but it can cause a problem for that
7 seventh one. we have been up against this for
8 years.
9 They want to bring up building code
10 problems when we're talking about the zoning code.
11 Your previous zoning board -- your previous
12 planning and zoning board director said this meets
13 the zoning requirements. They didn't want to
14 believe that. They wanted to redesign all the
15 things that had served them so well, and in which
16 they fell in love, own their residential home, pay
17 the purchase price, enjoy the property, but when
18 the seventh person wanted to build his home, no.
19 And we can only see one reason for that because we
20 don't think you should tear down Mrs. susskind's
21 home. we don't think you have to fix the path.
22 Mrs. Susskind's home is fine. If you want to fix
23 the path, well, then I guess those other six homes
24 are going to come down.
25 with respect to Board Member Angel, in a
30
1 sense I understand what you're saying in the year
2 2010, but understand the import of what you are
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HIGHLAND ZONING BOARD 030609 final draft no audio
• 3 saying because there are six homes that don't
4 deserve to be there.
5 BOARD MEMBER ANGEL: May I respond to that?
6 CHAIRMAN STERN: Absolutely.
7 BOARD MEMBER ANGEL: Are you suggesting
8 that because errors were made in the past they
9 should continue even though we can look for a
10 solution to the problem?
11 MR. WEINER: Errors, there's an interesting
12 question. I don't believe that any errors were
13 made. You are assuming that six homes were built
14 in error. I don't believe, just the testimony as
15 an attorney, I don't believe that there were any
16 errors made and, moreover, in the building of one
17 single-family home, if there are quote unquote
18 errors, even if your argument is right, those have
• 19 t
d
i
h
d
h
h
i
o
o w
Byr
t
Beac
Estates. It
as noth
ng to
20 do with the building of one single-family home.
21 so can the corrections be done with respect to
22 what we're here before you? No, it can't be done.
23 we can't build a house in a different way so the
24 fire trucks can come in. we are doing some things
25 with the curb and some things like that in order
31
1 to make it more accommodating with things we can
2 control, but we can't do it.
3 So the argument, while I understand what it
4 is you're saying, and all of us want the best
5 Highland Beach we can have, the application for
6 one single-family home is not the situation. You
• 7 want to begin another matter and look into Byrd
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HIGHLAND ZONING BOARD 030609 final draft no audio
• 8 Beach Estates as a totality, is another day and
9 another meeting and, quite honestly, it's what's
10 happened and why this has taken so long.
11 People are attempting to assert what they
12 think are important arguments and grab one
13 homeowner who wants to build a home by the toe and
14 make this last for years and years and years as
15 pressure to get things done that are better done
16 cooperatively, possibly in the private courts,
17 that is, outside of the Town of Highland Beach,
18 but in other forums and in other manners but, no,
19 they want to do it by making all the burdens fall
20 on one homeowner over getting one building permit.
21 That's what's so unfair. Despite those tactics
22 and methods which have clogged this up for these
• 23 last years, we have still continued to talk to
24 them, negotiate with them and speak to them about
25 various items.
0
32
1 So for me, the summary is really quite
2 short. we want to do what six homes did before.
3 CHAIRMAN STERN: I do remember something
4 from the past that possibly you could enlighten us
5 on and that is these people bought -- the
6 homeowners bought their lots based upon the fact
7 that the maintenance would be divided by eight and
8 if you put up one home, then their costs are going
9 to increase to be divided by seven. Is that
10 something that has been addressed?
• 11 MR. WEINER: Do you want to testify?
Page 27
•
•
HIGHLAND ZONING BOARD 030609 final draft no audio
12 MR. STOLTZ: Eight. Just say eight.
13 MR. WEINER: Based on eight.
14 CHAIRMAN STERN: So the home that's going
15 to cover two lots will pay double?
16 MR. WEINER: Correct. Let the record show
17 my client is shaking his head yes.
18 CHAIRMAN STERN: Because that never came
19 out before, sir.
20 MR. WEINER: And, again, this is typical of
21 what's occurring here. A planning board -- and I
22 don't mean to take all the technicalities and push
23 them on you. I understand. But this is what's
24 happening. You're asking questions about fairness
25 and we're answering them fairly but, typically,
33
1 you're looking at zoning issues and yet you want
2 to know how it is in the future that we're going
3 to bear the burden of some payments. I understand
4 and we have to accommodate, but at some point we
5 do have to draw the line and say look, it's not
6 fair just because we need an entitlement through
7 the Town of Highland Beach for us to be constantly
8 pestered and badgered over things that, quite
9 honestly, are not falling fairly on all of the
10 members of Byrd Beach Estates.
11 CHAIRMAN STERN: Does your client have
12 plans to turn the Homeowners' Association over to
13 the homeowners if and when this is completed?
14 MR. WEINER: Skip, do you want to answer to
15 that question?
16 MR. STOLTZ: You have to as a matter of
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HIGHLAND ZONING BOARD 030609 final draft no audio
• 17 development, once the last house is sold.
18 MR. WEINER: It's in the documents that
19 once the last house is sold, it will be turned
20 over.
21 CHAIRMAN sTERN: Thank you. That answers
22 my question. I believe Mr. Yucht has a question.
23 BOARD MEMBER YUCHT: I've always thought
24 that it was incumbent upon the applicant to pursue
25 the application, and there has been a 23-month
D
34
1 hiatus here. why didn't you pursue it? why are
2 you putting the blame on the other owners that
3 opposed it?
4 MR. WEINER: Because the blame is on the
• 5 other owners. They made an objection at that
6 meeting that we quite honestly thought was totally
7 and completely unfounded which turned the Town of
8 Highland Beach upside down, required them to get
9 rid of their attorney who had been their attorney
10 for many, many years and, from what I understand
11 is still your attorney, go out and, in accordance
12 with the procedures for a government to hire a
13 professional, hire a professional. That
14 professional then had to be brought up to speed,
15 familiarized with the case and made aware of the
16 situation.
17 During that period of time, we .never
18 objected to Attorney Roberts. There's nothing in
19 the file that says we objected. There were
20 objections to Attorney Roberts along the way. It
Page 29
HIGHLAND ZONING BOARD 030609 final draft no audio
• 21 took 23 months in order for this to occur. we
22 were never involved in, did not make the
23 objection. we're looking forward to that day,
24 23 months ago, of having a ruling on this matter.
25 BOARD MEMBER YUCHT: In my mind, you just
0
35
1 slept on your rights. When you file an
2 application, you have a duty to pursue it or else
3 withdraw it.
4 MR. WEINER: Quite honestly, once again, I
5 would say to you that it took 23 months.
6 BOARD MEMBER YUCHT: To do nothing.
7 MR. WEINER: Well, that's because the
8 objection that was raised was raised by the
9 homeowners, and having had the difficulty of an
• 10
attorney being disqualified, we did not want to
11 get involved in the selection of the next attorney
12 because if we did, then there would be objections
13 that somehow, once again, we have poisoned the
14 well. under those circumstances, we were left
15 with no choice -- let me continue. we were left
16 with no choice, unfortunately, but to stand aside
17 until such some time as this particular issue was
18 solved. I can't do anything more than that.
19 BOARD MEMBER YUCHT: Let me ask you another
20 question. Don't you see the difference between
21 six individuals wanting to build a home on six
22 different lots and one individual wanting to build
23 a home on two lots?
24 MR. WEINER: NO.
• 25 BOARD MEMBER YUCHT: No difference?
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HIGHLAND ZONING BOARD 030609 final draft no audio
36
•
D
1 MR. WEINER: The only difference I see is
2 less density, less intensity. what difference is
3 there? They are both single-family homes. They
4 both meet all the same rules. There's just one
5 less house.
6 BOARD MEMBER YUCHT: Don't different rules
7 apply?
8 MR. WEINER: NO.
9 BOARD MEMBER YUCHT: You are saying no.
10 MR. WEINER: Unqualifiedly. It's very
11 easy. No. Same rules apply.
12 BOARD MEMBER YUCHT: My understanding is
13 that the amount of square footage is different,
14 setbacks could be different.
15 MR. WEINER: No, setbacks are measured the
16 same way.
17 BOARD MEMBER YUCHT: Same way, you're
18 saying?
19 MR. WEINER: Yes. Measured from the ends
20 of the property lines.
21 BOARD MEMBER YUCHT: Didn't I read
22 something about 40 -foot setbacks and you want
23 25-foot setbacks?
24 MR. WEINER: The setbacks are in accordance
25 with those standards that are applicable. That's
37
1 what they are.
2 BOARD MEMBER YUCHT: Have you ever proved
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HIGHLAND ZONING BOARD 030609 final draft no audio
• 3 who the owner of the property is?
4 MR. WEINER: Yes, we have, and it was in
5 the former hearing, but we're not having a
6 quasi-judicial hearing today. And I would say to
7 all the board members that with respect to any new
8 testimony you might be hearing today, that be
9 disregarded. I assume that we're going to be
10 having a continuation of the old hearing. I
11 myself am trying very hard not to testify to new
12 matters. If I'm asked questions, I will answer
13 them, but I would say to you that while it may not
14 be the most official thing in the in the world, we
15 will go back over those issues when the
16 quasi-judicial hearing is continued.
17 BOARD MEMBER YUCHT: Mr. Rembaum has given
18 us a document here with 14 statements on here, and
19 if
f
h
t
d
any o
t
ese statements are
rue an
correct,
20 isn't it incumbent upon the applicant to prove
21 that you comply with the ordinances?
22 MR. WEINER: No. Your question is is it
23 incumbent upon the applicant to comply with the
24 ordinances? The answer to that is yes. Do the 14
25 items which are on that memorandum go to your
0
38
1 ordinances? The answer to that is no. They are
2 raised solely for purposes of trying to improve
3 the position of those people who want a reward and
4 don't deserve it at this particular juncture and
5 point. They do not go to the question of whether
6 or not we deserve an entitlement to build a
. 7 single-family home from this planning board. All
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HIGHLAND ZONING BOARD 030609 final draft no audio
• 8 we want to do is stick to the issues. Those
9 issues can be addressed in other ways and we are
10 not hardhearted. They can be addressed at other
11 meetings, under other considerations addressing
12 Byrd Beach Estates. They can be addressed in our
13 civil courts. There are all sorts of different
14 ways.
15 Look, you are a planning commission, but
16 that doesn't mean that you, when you sit and talk
17 about a single-family house take on your traffic
18 lights, your sewer and water, your problems with
19 your water contracts. You know that you can't
20 take on everything in the world when you consider
21 this.
22 You are considering a particular issue.
• 23 The particular issue you are considering is
24 whether or not a single-family house can be built.
25 Now, unfortunately, this is why it's taken so
0
39
1 long. They continue to raise issues that have
2 nothing to do with the granting of a permit for a
3 single-family house.
4 BOARD MEMBER YUCHT: If they raise the
5 issues, wouldn't this be the proper forum to raise
6 it?
7 MR. WEINER: NO.
8 BOARD MEMBER YUCHT: You're saying that if
9 you want to build a single-family home and you
10 represent the applicant, that you can sit back and
11 do nothing? what's going to happen during that
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HIGHLAND ZONING BOARD 030609 final draft no audio
• 12 period of time with the application?
13 MR. WEINER: I don't know what community
14 you live in but, for example, if you want to put a
15 new patio fence on your condominium, you come in
16 to get a building permit, all right? If at that
17 point, they said you know what, we don't think the
18 parking garage has worked very well. We're not
19 going to give you that building permit for your
20 new fence and for your patio until such time you
21 make sure that parking garage works. would you be
22 outraged? I think you would.
23 BOARD MEMBER YUCHT: Yeah, but what are you
24 going to do about it? dust let the thing die?
25 MR. WEINER: No, no, no. Some of them,
0
40
• 1 th
th
t
li
bl
th
it
ti
t
ose
a
are app
e s
ua
on, we
ca
e
o
2 have already made changes based on the radius of
3 the curbs. we have done all sorts of changes.
4 BOARD MEMBER YUCHT: Oh, you have done the
5 changes?
6 MR. WEINER: Some changes.
7 BOARD MEMBER YUCHT: Let me ask you one
8 thing. Have you presented any information to this
9 board with regard to your application other than
10 what was presented more than 23 months ago?
11 MR. WEINER: No change has occurred in the
12 23 months. we have designed -- the negotiations
13 -- look, I think it's unfair that I be interrupted
14 at this particular point. In a quasi-judicial
15 hearing, everyone will have their opportunity.
• 16 I'm not saying we made any changes in the last
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HIGHLAND ZONING BOARD 030609 final draft no audio
17 23 months. There have been many efforts, many
18 meetings and many of them that are detailed in the
19 pages and pages of testimony that are before you
20 with respect to Mr. stoltz's cooperation with
21 those other homeowners and with respect to the
22 design of this particular building until it
23 reached a point where it was submitted. we
24 believe that based on the submission and we took
25 into consideration what was done and we had
0
41
1 different designs for this house prior to the one
2 that we submitted, we submitted one we believe
3 meets all the requirements. It's not our favorite
4 design. It's not the design we necessarily
• 5 wanted, but we realize that there are some rules
6 that apply now and we made the appropriate
7 changes.
8 BOARD MEMBER YUCHT: Are you stating that
9 the submission to date is what we are going to
10 consider as the application for our approval?
11 MR. WEINER: Let me look at my client.
12 MR. STOLTZ: No, but we did alter --
13 MR. WEINER: You want to come to the
14 microphone?
15 MR. ROBERTS: I don't think swearing is
16 necessary.
17 MR. STOLTZ: My name is Morris Stoltz. I'm
18 the president of Byrd Beach Estates. Number one,
19 I apologize for the 23 months, but let me say
20 this. Our hearing was over. Our public hearing
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HIGHLAND ZONING BOARD 030609 final draft no audio
21 was terminated. The planning board had gone into
22 -- I don't know what the technical term is,
23 executive session. Mr. Sliney was asked to give
24 his legal opinion. Mr. Sliney was in the midst of
25 giving his legal opinion when Mr. Rembaum
0
42
1 challenged Mr. Sliney as having a conflict of
2 interest in this matter. we were through. we
3 were done. It was up to the planning board to
4 vote and Mr. Sliney decided that even though he
5 felt he didn't have a conflict of interest, that
6 he was going to withdraw and a new attorney was
7 going to be appointed.
8 so we waited. The new attorney is going to
9 be appointed. Then I called Highland Beach and I
• '
10 said well, what
s going on with the new attorney?
11 well, he's catching up etc., etc., but there may
12 be a problem because Mr. Rembaum has raised or
13 someone has raised a conflict of interest for the
14 new attorney. I said well, fine, let's see how
15 that goes and, you know, get back to me. Nobody
16 got back to me.
17 Finally, you know, it reached a point and I
18 said to Mr. Weiner, you know, let's go back, I
19 think the new attorney must have been okayed by
20 this point or they must have another attorney.
21 There's been sufficient time to review this
22 transcript. Both these fine attorneys, mine,
23 Mr. Rembaum, submitted briefs on this matter this
24 thick. we submitted evidence that we owned the
• 25 lot which we always did, not Mark Gazetta. we
Page 36
• O
HIGHLAND ZONING BOARD 030609 final draft no audio
43
•
0
•
1 submitted briefs, exhibits, proof that the plan
2 had been approved by Highland Beach, signed off by
3 Highland Beach. All of which is in your record.
4 And all I'm saying to the new planning board
5 members is we have a record that thick, and we
6 didn't have one hearing, I think we had four
7 hearings, four public hearings most of which
8 Mr. stern may remember that were at least two
9 hours in length, if not longer than that.
10 Therefore, I apologize on the 23 months but, you
11 know, frankly, we didn't know if we were waiting
12 for Highland Beach, you know, to get an attorney.
13 we've even had discussions with a couple of
14 homeowners about, you know, buying, you know, the
15 lot, but, they, you know, they, you know, didn't
16 pan out.
17 I also want to point out to the new members
18 that as part of the record, which is already in
19 the record before, I had offered, on behalf of the
20 developer, that prior to a Certificate of
21 occupancy being issued for this new house to
22 change the entrance ways of Byrd Beach Estates to
23 the south side and the north side. After the
24 meetings, there was a lot of discussions with the
25 homeowners. some of the homeowners wanted the --
44
1 didn't want the guardhouse taken down, some of the
2 homeowners did want the guardhouse taken down. I
Page 37
HIGHLAND ZONING BOARD 030609 final draft no audio
• 3 can't, you know -- you can approve with
4 conditions. I offered to change the entry ways,
5 you know, to Byrd Beach Estates if I'm permitted
6 to build, you know, this home. It was in the
7 record. And, again, I apologize for the 23 months
8 but, you know, finally I said frankly, after
9 Mrs. susskind didn't get back to me on an offer I
10 made to her with regard to the acquisition of
11 lots, I said, you know, I guess I've just got to
12 build a house, and that's why we're here.
13 CHAIRMAN STERN: As president, are you a
14 homeowner there, sir?
15 MR. STOLTZ: No. I'm president of Byrd
16 Beach Estates, but we pay approximately $25,000 a
17 year in taxes on those lots, so I contribute to
18 Highland Beach the same as any other resident.
•
19
CHAIRMAN STERN: Okay, sir. Thank you.
20 Anyone else?
21 MR. WEINER: I had Mr. Stoltz come here
22 because I'm merely the lawyer but, as you heard,
23 Commissioner Yucht, we really have things
24 unassociated -- and it troubles me to talk about
25 things unassociated because, truly, I just want to
0
45
1 look at this as a single-family house but, beyond
2 that, Mr. Stoltz has come forward and said I hear
3 you, even though I am the last one in and I should
4 be treated as the other six.
5 BOARD MEMBER ANGEL: Sir, should you change
6 the entrance way by moving the entrance to the
• 7 left or to the right, will that change the fact
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HIGHLAND ZONING BOARD 030609 final draft no audio
• 8 that the fire engines -- and I'm hot on the fire
9 vehicles because I think that's one of the most
10 painful issues involved here. If you moved the
11 guardhouse or the gates, will the fire engines be
12 able to pull in directly without backing in and
13 losing time?
14 MR. WEINER: Yes, that was the approach --
15 BOARD MEMBER ANGEL: Not the approach. Is
16 that a fact?
17 MR. WEINER: Well, I can't testify for the
18 fire department, but I know there was testimony
19 that the situation was remedied. Maybe Mr. Stoltz
20 can enlighten us further.
21 MR. STOLTZ: I wish in a way Mrs. Susskind
22 was here, but she and I had a discussion with the
23 Delray Beach Fire Department. What we were
24 talking about is taking the entrance and exit for
25 the property, which is in the center of the
0
46
1 property, and changing that to a horse -- to a U,
2 not a horseshoe, but a u, a northern exit and a
3 southern entrance, I believe it was. we both
4 spoke with Delray Beach and they said that they
5 could drive up, you know, either side with their
6 big engine.
7 CHAIRMAN STERN: But they could not make
8 the turn with the big engine, as I remember.
9 MR. STOLTZ: They didn't need to make a
10 turn with the big engine because if they brought
• 11 it up on one side or they brought it up on the
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other side, they could reach either house on the
end.
BOARD MEMBER ANGEL: is there paperwork to
that effect?
CHAIRMAN STERN: We have testimony from the
fire department, yes.
MR. WEINER: Whatever it is, it will be a
better solution than what is there right now,
that's for sure.
BOARD MEMBER YUCHT: Do we have a record
anywhere of all these documents?
CHAIRMAN STERN: Absolutely. Yes.
MR. ROBERTS: I just want to ask a
question. was there a transcript prepared of
47
these previous hearings?
MR. WEINER: Yes.
MR. ROBERTS: Has that been submitted to
the town?
MR. WEINER: I don't know if the town has a
transcript. I know that we have a transcript. we
will certainly be happy to give you a transcript
of everything that we have. There were multiple
meetings. I don't know if there's a transcript of
each and every one of them. some of them started
with thinking we were just asking for a
single-family home permission and then as things
got more complicated, I do believe there's a
transcript of it, but we will send you all our
transcripts.
MR. RoBERTS: You had said previously at
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• 17 the outset that it was your view that there was a
18 quasi-judicial hearing --
19 MR. WEINER: Yes I have a transcript of
20 that.
21 MR. ROBERTS: And that was in August --
22 MR. WEINER: April of '07, it was my
23 understanding. There was a preliminary meeting to
24 that in August of '06.
25 CHAIRMAN STERN: August 23rd, 2006.
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1 MR. WEINER: Okay. I was correct on the
2 month. August of '06 was the first hearing and
3 then April '07 was the second hearing, and I
4 believe we have transcripts of both of those. My
. 5 associate is shaking his head yes.
6 Thank you for your time, and I'm looking
7 forward to you setting the quasi-judicial hearing
8 and appreciate your deliberations and we're
9 thankful for your time and we look forward to it.
10 Thank you.
11 CHAIRMAN STERN: Is there anything further
12 we need to do before setting a date for the next
13 hearing?
14 BOARD MEMBER MARCHESANI: What about the
15 objective, would that be clearly stated in the
16 next meeting and, if so, I think you need to
17 review some of the transcripts.
18 MR. ROBERTS: If I could. In my view and,
19 of course, I have been retained by the town to
• 20 represent the board in this matter, and I have
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• 21 clearly reviewed it and that review was concluded
22 in September of 2007. Actually, in August
23 of 2007. I met with you after Chairman Townsend
24 had resigned and we discussed that and, frankly, I
25 suppose that there is some miscommunication about
D
49
1 how we go forward. I think that you and I
2 discussed that we were waiting to hear back from
3 them as to what they were -- but on the other
4 hand, I don't know that there was any
5 communication to either of these two parties does
6 not mean that concluded our review of that.
7 so as I see it from what I reviewed and
8 what has been presented here, it appears that the
9 quasi-judicial hearing on this application was
• 10 t thi
d h
d
d
d
d
d b
journe
an
s
an
een a
, a
commence
a
11 point, the board would just reconvene that
12 quasi-judicial hearing. Of course, that presents
13 somewhat of a problem because we have new members
14 here and it's obviously been 23 months since that
15 has been started. In April of 2007 there was
16 another meeting and I don't know what,
17 specifically, transpired because I have not
18 reviewed the transcript.
19 I would suggest that to reconvene that
20 meeting, it would be required, if not at least
21 helpful, that those transcripts be provided to the
22 board for review, obviously, to refresh those
23 people who were there and to also bring up to
24 speed to those people who were not there.
• 25 Because of the period of time, I think that
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50
0
•
1 the hearing should be at least at the stage that
2 if there are further questions and further
3 evidence to present, I would suggest that you
4 proceed forward with the quasi-judicial hearing to
5 leave that possibility open to give notice to the
6 two parties or any parties there and, obviously,
7 the public that we will consider more. we are not
8 going to rehash what was done before if we have a
9 transcript, but certainly leave it open.
10 Because it seems, in my review, that the
11 application has been submitted, the consideration
12 has started. As to the issues, some of the issues
13 that have been brought up, those will have to be
14 resolved by the board.
15 Certainly, in my review of it, there
16 appears to be a number of home sites already
17 built, and they were built pursuant to a plan, a
18 site plan, that was approved in 1995, and they
19 were built -- that site plan, even though one
20 might consider it a landscape plan, it is approved
21 by the board in the back of the original documents
22 in the file, and those homes were built within the
23 parameters of that approval, and it certainly is,
24 I guess, one might consider it a hybrid because it
25 has some features of RMM and it has some features
51
1 of RPV and it has some features of single family.
2 But I think it's clear to the record of this that
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• 3 there has been a certain set of parameters
4 accepted for the building of these homes.
5 The question for the board to consider in
6 my view is simply to decide whether this
7 application fits within those parameters and if
8 there are other problems that exist with this
9 application within those parameters, they need to
10 be addressed. They can be addressed by approval
11 or denial or approval with conditions or however
12 the board generally determines that.
13 Certainly, the fire issues are the same,
14 too, to the extent that those have been raised
15 today or continue to be raised. Certainly those
16 can be decided and, I think, incumbent upon either
17 side to this controversy to .present at this
' 18 quasi-judicial hearing any views that they have
•
9 h
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1 oar
on.
w
respect to t
at
or t
e
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ec
s
t
20 I think that one of the questions that has
21 come up as well is the issue of the variance.
22 Previously, when the application first came before
23 the board, one of the issues was this bridge
24 between this unit and the other unit, which I
25 think is -- it's on the thing here. And the board
0
52
1 at that time suggested that a variance be obtained
2 because of the fire-safety issue to remove that
3 bridge, and the applicant did go to the Board of
4 Adjustment and Appeals, who is the agency and
5 entity here that considers those matters, and on
6 7uly, 2006, the Board of Adjustment and Appeals
• 7 granted a variance to remove that attachment
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• 8 because of the fire-safety issue.
9 Now, in that conclusion or in that granting
10 of that variance, it very clearly says that this
11 variance lasts for 18 months, and if the work is
12 not commenced within 18 months then it expires.
13 That variance then, by its very terms, indicates
14 it expires. The Board of Adjustment and Appeals
15 doesn't have the ability to extend that. It says
16 that in the code and in the variance itself as
17 granted. So it appears, from my review of this
18 once this issue came up, that that is an issue
19 that has to be addressed by the board one way or
20 the other and I think by the occupant as well. It
21 may mean that a new application for variance is
22 submitted to the Board of Adjustment and Appeals
• 23 and that would certainly be one way to resolve
24 that issue because, again, previously the board
25 had recognized that as an issue and without that
0
53
1 variance, I suspect it would be recognized as an
2 issue again. So I guess the notification to those
3 people that that certainly is an issue that would
4 have an impact upon the consideration of the
5 board.
6 with that said, I think that my
7 recommendation to the board is to proceed with and
8 set a quasi-judicial hearing to consider within
9 the parameters of the original site plan as is
10 established by the building of the residences that
• 11 are there.
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• 12 BOARD MEMBER YUCHT: Mr. Chairman, I have
13 to raise a question here. I don't know if I have
14 a conflict of interest or not in this case. May I
15 ask Mr. Stoltz, if I'm not mistaken, you're from
16 Wilmington, Delaware, correct?
17 MR. STOLTZ: Yes, I am, and your wife was a
18 law librarian?
19 BOARD MEMBER YUCHT: That is correct.
20 MR. STOLTZ: And I think we're both members
21 of the Delaware bar and I think your wife is doing
22 well, but I don't think we've seen each other for
23 over 30 years.
24 BOARD MEMBER YUCHT: That is correct, but I
25 probably have done more business with your
0
54
• 1 brother, lack, or possibly your father?
2 MR. STOLTZ: Yes.
3 BOARD MEMBER YUCHT: I wonder whether that
4 creates a conflict or not. I represented a
5 tenant, Happy Harry, and we negotiated a lease
6 against, I think, a company that you were involved
7 with and his father was a real estate agent before
g him and I did some settlements involving him as a
g seller, but I have not seen or done any business
10 with Chip that I know of for --
11 MR. STOLTZ: NO.
12 BOARD MEMBER YUCHT: -- thirty years,
13 something like that. so I just want to raise that
14 to see if I have a conflict and, if I do, I will
15 recuse myself.
16 CHAIRMAN STERN: Does either side have any
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• 17 problem with Mr. Yucht sitting on this board?
18 BOARD MEMBER YUCHT: Do you have a problem?
19 MR. RoBERTS: well, I think you have to
20 explore greater the particulars of it. what I'm
21 hearing, it doesn't sound to be but, then, again,
22 you might want to check with the Florida Ethics
23 Commission.
24 BOARD MEMBER YUCHT: Well, I just want to
25 protect the record here and didn't want somebody
0
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1 to come up later and raise that question. To
2 recognize it from the beginning if I have a
3 conflict. I don't think I have a conflict, but if
4 anyone does, I will recuse myself.
• 5 MR. ROBERTS: I think that's the important
6 thing to do. Obviously, any potential conflict
7 can be waived by the interested parties, and if we
8 consider the public an interested party and
9 someone makes that objection based upon what you
10 have disclosed, your disclosure is full and fair,
11 then I will recommend that you recuse yourself. I
12 mean, there are how many people on the board?
13 CHAIRMAN STERN: Seven.
14 MR. RoBERTS: so it's not like it ends the
15 quorum. I don't know that needs to be decided
16 now.
17 CHAIRMAN STERN: The application that we
18 have for site plan review, is that still valid,
19 Mr. Roberts?
• 20 MR. ROBERTS: You know, I haven't quite
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• 21 looked at that, but I don't recall seeing anything
22 that says that if it's not decided within a
23 certain period of time, then it's withdrawn. I'm
24 impressed that it's still valid because of the
25 fact of there being a hearing that started on it,
0
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1 and that was adjourned for certain purposes and is
2 to be reconvened. My view is once you start the
3 actual consideration of it, then, certainly,
4 unless there is some written documents saying I'm
5 withdrawing it, which I don't believe there is,
6 then it's still valid.
7 CHAIRMAN STERN: So I guess the problem
8 before us today is the possibility of the
9 18 months having expired on the Board of
• 1 d
0 A
justments?
11 MR. ROBERTS: Again, I don't think you have
12 to -- again this is not a quasi --
13 CHAIRMAN STERN: No, I'm just asking my
14 board members of their feelings.
15 MR. ROBERTS: Well, I don't know that a
16 decision could be made on that issue. I simply
17 presented that as an issue that has been raised
18 and the facts, and I think that at the time of the
19 quasi-judicial hearing it's certainly not going to
20 be brought up but, again, I would advise against
21 prejudging that issue before it is actually
22 brought to you in the proceedings.
23 CHAIRMAN STERN: I did not want to set a
24 new date if, in fact, that had to be done first.
• 25 MR. ROBERTS: Well, I think that it's
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57
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1 incumbent as a board because you have commenced
2 consideration of this and someone, the applicant,
3 has requested a conclusion of that, that it is
4 incumbent upon the board to set a hearing for the
5 conclusion of it to try to resolve the application
6 here. I simply brought that out because it is an
7 issue, I think, of import. It is up to, I think,
8 the applicant to satisfy the board, one way or
9 other, whether or not that is going to present an
10 issue and, then, at that quasi-judicial hearing
11 resolve that issue.
12 CHAIRMAN STERN: okay. Do we have any
13 other comments from the board members?
14 okay. so the procedure, Mr. Roberts, is to
15 set a date for a new hearing?
16 MR. ROBERTS: Correct. Sure.
17 CHAIRMAN STERN: To continue this?
18 MR. RoBERTS: well, to set a quasi-judicial
19 hearing to continue and conclude the consideration
20 of the application for site plan review of Byrd
21 Beach Estates and, of course, I think that as has
22 previously been involved in this case, I suspect
23 it will take some time and, therefore, an
24 appropriate amount of time be set forth for the
25 conclusion of this quasi-judicial hearing in
58
1 keeping with what your procedures are to do that.
2 CHAIRMAN STERN: Well, our monthly meetings
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• 3 have been very light because we have not had too
4 many applications to deal with. So I'm wondering
5 if our next scheduled meeting, which is April 8th,
6 I think we would have enough time to devote to it
7 at that point.
8 BOARD MEMBER MARCHESANI: What about the
9 public hearing being held?
10 MR. ROBERTS: Again, I apologize, I don't
11 know what sort of notice you have in advance. I
12 think April 8th should be enough time to notice it
13 for that time. So sure.
14 CHAIRMAN STERN: So it would be a public
15 hearing as well as --
16 MR. ROBERTS: Absolutely. It's a
17 quasi-judicial hearing.
• 18
19 CHAIRMAN STERN: So does everybody agree
h
t
at April 8th will work?
20 BOARD MEMBER MARCHESANI: As long as we
21 have the transcripts.
22 MR. ROBERTS: Yes. Can you provide those?
23 MR. WEINER: Yes. No problem.
24 BOARD MEMBER ANGEL: In view of what
25 transpired with Milani Park, we were told it was
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1 included in the bond issue by Mary McCarthy and it
2 wasn't. If we could get verification that the
3 fire department feels it could pull through that
4 area, I would appreciate it.
5 CHAIRMAN STERN: That's true, we do have
6 some written copies that started out at the
• 7 beginning and have been updated, but maybe it
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. 8 would behoove us to update it one more time.
9 BOARD MEMBER ANGEL: I would appreciate it.
10 CHAIRMAN STERN: If the applicant would
11 contact Delray again and ask them to please do
12 another updated letter for us, we would appreciate
13 that. That would help us make our decision and a
14 couple of our board members a little more
15 comfortable.
16 BOARD MEMBER MARCHESANI: What about
17 another site meeting for the new board members?
18 BOARD MEMBER YUCHT: We could do it after
19 the hearing.
20 CHAIRMAN STERN: We could d0 it before the
21 hearing. we could call the hearing to order, go
22 to the site and then come back as we did the last
• 23 time.
24 BOARD MEMBER YUCHT: We could do that.
25 CHAIRMAN STERN: So we will call the
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1 meeting for 9:30 on our regular date. we will
2 have a recess. we will go to the pro perty with
3 the owner who will allows us in, and we will come
4 back here hopefully before 10:00 and continue the
5 hearing.
6 MR. ROBERTS: What is your time frame on
7 your packets in advance? You want to establish
8 some deadline?
9 CHAIRMAN STERN: Yes. I think two weeks
10 prior, so we would like to have them I think
• 11 April 1st would be enough time.
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• 12 MR. RoBERTS: I would suggest that there be
13 some scheduling order, so to speak, set out that
14 today is March 6th that, you know, by some time at
15 the end of March that if there's going to be any
16 written submissions and certainly the transcripts,
17 that they be provided by a certain date.
18 CHAIRMAN STERN: would it be appropriate to
19 hear from a couple of homeowners today?
20 MEMBER OF THE AUDIENCE: You said we would
21 have five minutes.
22 MR. ROBERTS: You certainly did indicate to
23 them that there would be public input. I would
24 suggest that things -- for instance, Friday is --
25 March 27th is Friday. That's two weeks from
0
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i
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d
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1 on t
at any party
to
ay. T
at any
ocumentat
2 wants to submit, you know, for instance, a
3 transcript, things of that nature.
4 CHAIRMAN STERN: Is that agreeable to the
5 attorneys on both sides?
6 MR. REMBAUM: No, sir. My Client won't
7 even be back in the country.
8 MR. WEINER: It's agreeable to us. This is
9 what has been going on for a long time.
10 MR. ROBERTS: Let's do it this way. We
11 would like to have it by the 27th. we will not
12 deny anybody the right to submit anything
13 thereafter.
14 BOARD MEMBER ANGEL: So when is the meeting
15 time now?
• 16 CHAIRMAN STERN: Let's make it 9:00.
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• 17 April 8th at 9:00 o'clock for the site meeting.
18 so call it to order, then go out and come back and
19 continue. So we will meet here.
20 MR. REMBAUM: If it's agreeable to the
21 board and the applicant, anything I send to you, I
22 will also send to them. In exchange, anything
23 that they send to you, I would ask that they send
24 to us.
25 MR. WEINER: That's fine.
0
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1 MR. REMBAUM: Thank you.
2 CHAIRMAN STERN: All right. I'm going to
3 grant a few of the gentlemen in the audience to
4 come speak. Please identify yourself and your
• 5 address.
6 MR. CALDWELL: Good morning. Brandon
7 Caldwell, 2635 south Ocean Boulevard.
8 I don't understand how the board can
9 actually review or consider anything without
10 having a site plan. I have looked for the
11 original site plans for that property for so long
12 and I can't find it. I can't find the
13 construction documents for the homes in that
14 development. I know our house doesn't conform to
15 the plans that we have. You know, there's an
16 error. There are errors. You've got to look at
17 the entire site plan. You mentioned the site plan
18 that was appraised in 1995. I found a site plan
19 for that property that was considered for an
• 20 82-unit condo building in 1996 which happened to
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21 be a landscaped plan, too. You've got to get
22 these documents in order to review and consider
23 anything that goes on with that property, and that
24 should be included with the documents that you get
25 on the 27th.
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1 CHAIRMAN STERN: We haven't been able to
2 find it unfortunately. we are all working from
3 the same plan.
4 MR. CALDWELL: Yeah, but that plan is going
5 to denote what zoning you're working with. You
6 can't mix and match. This is what is happening.
7 You can't mix and match. One way or the other, it
8 has to be, and the only way you're going to find
9 it is through that site plan. You've got to find
• 10 h
i
i
l
i
d
h
t
ose or
g
na
construct
on
ocuments. Per
aps
11 the developer can provide those, I don't know, but
12 I know our house does not conform to the plans of
13 record that we have from the architect and we have
14 issues with that, okay, big issues.
15 BOARD MEMBER ANGEL: You may have to move
16 out.
17 MR. CALDWELL: We have moved out. Nobody
18 lives there. we have moved out, okay? until we
19 get to the bottom of what is going on in this
20 complex, you know, we can't move back in, my wife,
21 me, my kids, we can't move back in, all right?
22 You've got to find the site plan. It is the duty
23 of the town here to keep these records. You have
24 to have the site plan. You have to have the
• 25 original construction documents including all
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64
•
1 acceptance, notice of acceptance. You know, these
2 things are very, very important to the
3 construction of our house, and they're missing,
4 and they're missing. So let's get these things in
5 order and then perhaps we can continue with what's
6 going on in the development.
7 CHAIRMAN STERN: Thank you. I see no more
8 hands. I thank you.
9 I would like to have a motion to adjourn.
10 BOARD MEMBER ANGEL: I'll make the motion
11 to adjourn.
12 BOARD MEMBER MARCHESANI: Second.
13 CHAIRMAN STERN: All in favor?
14 ALL COMMITTEE MEMBERS: Aye.
15 (Thereupon, the proceedings were concluded.
16 at 10:50 a.m.)
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HIGHLAND ZONING BOARD 030609 final draft no audio
The State of Florida, )
County of Palm Beach. )
I, RUTHANNE MACHSON, Court Reporter and Notary
Public in and for the state of Florida at large, do
hereby certify that I was authorized to and did
stenographically report the foregoing proceedings, and
that the transcript is a true and complete record of my
stenographic notes; and that the foregoing pages,
numbered from 1 to 65, inclusive, are a true and correct
transcription of my stenographic notes.
The foregoing certification of this transcript
does not apply to any reproduction of the same by any
means unless under the direct control and/or direction of
the certifying reporter.
DATED this 22nd day of March, 2009.
RUTHANNE MACHSON, Court Reporter
Notary Public - state of Florida
Commission No. DD 774525
Expires March 31, 2012
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