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2007.04.25_PB_Minutes_SpecialTOWN OF HIGHLAND BEACH • PLANNING BOARD SPECIAL MEETING MINUTES Wednesday, April 25 2007 8.45 a m Chairman Leonard O. Townsend called the Special Meeting to order in Commission Chambers at 9:30 a.m. Present were Chair Townsend, Louis Stern, Ken Tapman, Patricia Pembroke, Marie Marchesani and Kurt Kalberer. Town Attorney Tom Sliney and Building Official Bob Dawson were also present. OLD BUSINESS FINAL REVIEW FOR CONSTRUCTION OF A NEW SINGLE FAMILY HOUSE FOR PROPERTY LOCATED AT 2637 S. OCEAN BLVD.; BYRD BEACH ESTATES/LOTS 20 & 21 (Developer lots 6 & 3). APPLICANT/OWNER: BYRD BEACH ESTATES. Chair Townsend noted that this was a Special Meeting for above referenced application. Chair recessed the meeting to conduct a site visit, at which time thereafter the meeting will be reconvened in Commission Chambers. The Planning Board Meeting was reconvened at 9:31 a.m. Chair noted that the Board visited the Byrd Beach Estates site, and read a procedure which the Town Attorney • distributed to the board called the "quasi judicial hearing procedure". Deputy Town Clerk swore in all who would be testifying. Chairman Townsend offered a brief history of application and correspondence between parties involved. The application was originally considered by the Planning Board on April 12, 2006 for preliminary review. Upon consideration the Board recommended the applicant obtain a variance to omit the bridge connection to existing residences east of subject property (lots 3 & 6) over the internal access road, and if approved, appear again before the Planning Board. At the July 10, 2006 Board of Adjustment meeting, the board unanimously agreed to grant the approval of a variance to eliminate the attachment to the proposed new dwelling on lots 3 & 6. The Planning again reconsidered this application on August 9, 2006.. During that meeting the Board approved a Motion, due to the complexity of an issue as to whether it was a single family or multi-family project, and agreed with the application and homeowners to schedule a Special Meeting on August 23, 2006 to continue its consideration of the application. The Board also suggested the two opposing sides get together to possibly resolve some of the issues that had arisen which were out of the jurisdiction of the Planning Board. During the August 23, 2006 meeting, the Board. presented a brief history of the Towns review of the numerous applications and meetings concerning the entire project, with initial approval of the overall project site plan on Dec. 13, 1995 and individual approval for lots 1,2,4,5 & 8. Lot 7 was never considered or approved. There also was input by • the Delray Beach Fire Department with respect for ingress by emergency and fire Planning Board • April 25, 2007 Page 2 of 6 vehicles to the complex and miscellaneous additions to the individual units in the complex. In a memo dated 12/19/06, Attorney Sliney commented on four issues: 1) The Planning Board has authorization to review current application 2) Required width of complex's private streets -Byrd Beach site plan dated 9/29/2006 indicated both East West and NE/SW paved area are road utilities and landscape easements - Mr. Sliney noted that these easements are not private streets and are on original plans, approved as an overall layout design which was approved by the Board on 12/13/1995. The Fire Department has provided to the board their concern about design access. Access was formerly approved by the Board and executed by Lt. John Tomaszewski, Delray Fire Rescue Due to the parking issue, applicant will look into removal of guardhouse and placement of angled parking contingent upon DOT approval due to encroachment upon A1A. If applicant cannot obtain approvals for perpendicular parking, the homeowners may authorize parallel parking within the property lines, and a wall separating the parking from lots 1 & 2, or pay the homeowners $75,000 less cost of engineering for the homeowners to pay for entry realignment or whatever they wish. (copy of Mr. Townsend's overview attached and also in main file.) • John Tomaszewski, Delray Beach Assistant Fire Chief, testified that during their site test going back as early as 1997, they were able to move small rescue trucks in and around the subdivision without too much difficulty. The ladder truck cannot make it around the N.E. corner of the property. If it went against the normal flow of traffic (going in North entrance), it could access N.E. corner house. The site probably will never meet access requirement of current fire codes. He will address existing situation with reasonable degree of cost to improve the access to the site overall so access can be made to every structure in the site. Mr. Tomaszewski answered Chair's question that if a house is built on the gravel lot (3&6), the fire department would still be able to access all the homes on the site, but noted if one car is parked in the roadway, the trucks would not be able to get around complex. (i.e., service vehicles, pool maintenance trucks, etc.). He noted that this site plan was approved in the late 90's over the Fire Dept's. objections, and are now trying to make a bad situation a little better. Attorney Michael Wiener asked to cross examine Mr. Tomaszewski, as he needs to leave by 11:00 and the testimony appears to be different than what was offered at an earlier hearing. Mr. Sliney said that opportunity should be granted. Jeff Rembaum, rep for homeowners noted that he had no objection. Mr. Wiener crossed Mr. Tomaszewski asked if Mr. Tomaszewski was at previous hearings to testify to this particular issue. He stated he was not, and does not have • personal knowledge if others from the Fire Dept. were present. Mr. Wiener noted for the Planning Board • Aril 25, 2007 Page 3 of 6 record, that there were others who had testified. Mr. Wiener asked if the house not encroaching on the street and increasing the radius of the driveway has any impact with respect to the existing street and access to reaching the houses. Mr. Tomaszewski stated that the Fire Dept. has no objection to another house on Lots 3 & 6. Atty Rembaum crossed Mr. Tomaszewski noting that the community could be made safer by putting in the proposed exit at the North end to allow ladder truck access to the house on the North side of the complex. Michael Wiener, applicant's attorney, asked the board to consider some things that are not necessarily on the plans. Considering that we did not believe additional testimony from the fire dept was necessary, as they did testify at an earlier hearing, non the less the applicant-would be happy to offer an entryway on the north side. We would say that makes the turning radius superfluous so the radius should not be granted. However, after a certificate of occupancy for the house is issued applicant would be happy to put in the north entrance similar to the breakaway south entrance which we are already voluntary improving. If that helps in deliberations, applicant willing to offer. The south roll back chain fence will be changed for a better decor and for .the north entrance would work with the fire department to insure that the gate is appropriate for their use. There would be a • straight-a-way on the North, South and the main entrance, and the radius would not be necessary. Attorney Wiener presented his Legal Brief (in main file) and commented that no less than 13 different hearings on this matter have been. conducted on this issue. Mr. Wiener addressed the fire services issue (page 4 of report). aesthetics and the size of the house were discussed (page 5, section 20). He commented that he found it astounding that as there would be less "human beings" in the house and less dwelling units, and that there are still complaints about construction of this single family house, whereby the plans call for two separate homes which would use more ground space, and allow more density. Chairman Townsend recognized members of the public. John Caldwell, 2635 S. Ocean (Byrd Beach Estates) asked to clarify some items within the project's timeframe, one of the items noting the connection of the homes and parking spaces. Chairman noted that under the old code, the Town Commission has jurisdiction except for single family homes, and this was applied for eight single family homes. Mr. Sliney noted that "old" correspondence .provided to him from recording secretary on any home that was approved, was 8 single family homes, and the approval from the "get-go" was • for eight single family homes. All the persons. who have purchased in that sub-division Planning Board • April 25. 2007 Page 4 of 6 were given approval on single family homes. Mr. Sliney reinstated that the correspondence he received references to single family homes, and approvals have always been for a single family residence on a specific lot. Mr. Townsend noted that the application before the Board is for final approval of a single family home on lots 3 & 6. Mr. Townsend commented that the complex was approved December 13 1995, it is was his belief that the old code was in effect, and the new code was in effect July 25, 2005. Bob Dawson clarified difference between zoning codes and ordinances and building codes. Zoning deals with issues of parking, set backs, etc. Building codes have to do with construction of a structure. He noted that this project was approved under the old zoning code, although all that was signed off was the landscape plans. Elizabeth Suskind, 2629 S. Ocean Blvd, (BBE) spoke on safety issues and felt they are being disregarded by the Planning Board, and noted for the record that from the beginning, in August,"we" never, ever said that we would be against building. a house on "that" property. The issue is, what kind of house, how to fit aesthetically into the neighborhood, how can we build it and still maintain safe standards for our community. Concerned when found letters from fire dept in file, letter of April 5 from Harvey Greenberg which clearly says the fire dept will not condone anything until the safety issues are solved. She noted that "we" are not against Mr. Stoltz building his house, but • would like him to come go an agreement with the homeowners on their concerns, but went on to .say that the homeowners are against the proposed house and that they offered $850,000 to buy the lot for parking purposes but Mr. Stoltz turned the offer down. Atty. Jeff Rembaum introduced himself into the record, as the attorney representing the homeowners in Byrd Beach Estates with the exception of Anthony (Ziconi(sp). Mr. Rembaum reiterated the safety issues, and that the Board has four "police powers" of which he spoke on safety and that the board has a right to deny petition under the power of safety. Moving front gates is a good idea, but one car parks in driveway by gate, the fire truck will have a hard time accessing the site. He stated that if the project deemed single family, it will go before planning board, but if deemed a townhouse community, project must go before Town Council. Wants to get something in writing that. works for everybody. Mr. Rembaum brought up an issue, noting that it "was nothing against. the Town Attorney, but that he should not be advising this board on any issue whatsoever regarding this community from years ago up until today, and that he needs to raise this for appellate purposes. 'We' understand that Mitchell Frishner (sp) who is a partner in Mr. Sliney's firm, either represented in the past, or continues to represent,. the developers in or some of the (inaudible). So it may be going on now, but it certainly went on in the past and it is my understanding, I have no first hand knowledge, but need to bring it to the board. We discussed it once and Mr. Sliney did not believe. there . was a conflict. The minutes of the 1995 Planning Board Meeting reflect that then Town Planning Board • April 25, 2007 Page 5 of 6 Attorney Mr. Sliney sent minutes to a lawyer in his firm for purposes of clarification. That to me is a "red herring", I'm sorry that is a (inaudible) conflict in my opinion.. (inaudible). At one time, Hodgson Russ was the registered agent for the developer who controlled entity of the association, and finally has been involved in the closing of some of the lots. But again, don't know if that was mearly acting as closing agent or providing legal services. At any rate, there is enough there to throw caution to the flag.. If I were in those shoes I would probably withdraw my representation and ask that this issue, separate counsel be appointed. I don't know if there is actual conflict there, but there is enough that the issue needs to be addressed by independent with legal opinion provided to this board, looking at all the facts as to whether or not there was a conflict. If there was a conflict, it takes all the legal advice given to this board - is this single or multi-family? He noted that his clients do not object to "something" being built, as long as it is not a mega-mansion or something that already exasperates an already (inaudible) position. Town Attorney responded as follows by noting that "I has been trying for a very long time to deal with this situation which has not been an easy situation to deal with and, I have been trying to be fair to everyone involved. I do not feel I have a conflict of interest, but will recuse myself, as I don't want any implication that I have a conflict of interest because I want this issue decided fairly. There are a lot of facts that we can't recreate • and we can't start all over again, and I think that if people really want to come together, they would come together, and that is what I have been trying to do in working with the Planning Board. I will ask the Town to get independent counsel to resolve this matter, and I will not opine on the subject anymore since you raised what you consider to be a conflict of interest." Atty Rembaum -noted that there was a letter from the Town of Highland Beach addressed to Boca Contracting stating that the Building permit expired on May 17, 1999 and an extension was granted which has expired as well as of January 23, 2002. Attorney Wiener's closing statement stated that the applicant will construct a north gate, and address the following issues; add crash gate, add parking, decide what was done in 95; improve single family home and improve complaints of the residents or turn down and take "ten" years of decisions where in fact there has not been any consistency in any of the logic presented to the Board so far with respect to the attorneys or residents testifying - "I think it's an easy decision." Mr. Sliney suggested the Board postpone any decision, in that "Mr. Rembaum is implying that my...what I told you is colored by what he says, which I disagree with, but I don't know if this thing will go on appeal, and you may want to have somebody either confirm or not confirm .what I have told you." • "I don't know that any decision you make is going to please both parties, and it's likely • Planning Board April 25. 2007 Page 6 of 6 that one party or the other will take an appeal, and I don't want this to be an issue on an appeal." After further discussion, the following MOTION was made by MR. KALBERER/MRS. PEMBROKE as follows: TABLE APPLICATION UNTIL SUCH TIME OF EXPEDIENCY UNTIL SUCH TIME THAT THE BOARD CAN OBTAIN LEGAL COUNSEL AND THAT THERE IS NOT ANY QUESTION OF POSSIBLE CONFLICT. The following rollcall vote was taken: Mr. Tapman oppose Mrs. Marchasani agree Mr. Kalbereer agree Mrs. Pembroke agree Mr. Stern oppose Mr. Townsend agree Motion carried 4/2. The Board member requested that any information re this application be distributed to the members on a timely fashion for their review prior to a scheduled meeting. ADJOURNMENT With no further business to come before the Board, MOTION to adjourn was made by MR. TOWNSEND/MR. STERN at 1:00 P.M. APPROVE: Leonard O. Townsend, Ch Louis Stern Patricia A. Pembroke Ken Tapman Marie Marchesani Kurt Kalberer Open C • Attest: . Date: ~~ • • • QUASI JUDICIAL HEARINGS/PROCEDURE 1. Read Petition/Resolution by Summary/Title 2. Open the Public Hearing 3. Town Clerk administers oath to all who will speak 4. Town Staff Presentation -Building Official offers Town file into the record and states file is available for inspection in the Town Building Department 5. Board questions Staff 6. Petitioner Presentation 7. Public Presentation and Statements or Questions 8. Petitioner can then question anyone who speaks. Other people can question. 9. Petitioner's Closing Statement 10. Board asks questions of Staff, Petitioner, Public. 1'l. .Public Hearing closes 12. Motion to Approve or Disapprove Resolution/Petition and discussion ensues 13. Board Votes on Petition/Resolution 0]2577/00000 FLADOCS 321406v1