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2024.01.31_BAA_Agenda_RegularAGENDA BOARD OF ADJUSTMENT & APPEALS REGULAR MEETING Wednesday, January 31, 2024 AT 9:30 AM TOWN OF HIGHLAND BEACH, FLORIDA 3614 S. OCEAN BOULEVARD HIGHLAND BEACH, FL 33487 Telephone: (561) 278-4548 Website: www.highlandbeach.us Library Community Room 1. CALL TO ORDER 2. ROLL CALL 3. PLEDGE OF ALLEGIANCE 4. APPROVAL OF THE AGENDA 5. SWEARING IN OF THE PUBLIC 6. APPROVAL OF MINUTES A. October 07, 2021 7. UNFINISHED BUSINESS None. 8. NEW BUSINESS A. Welcome New Members Joel Leinson Todd Weiss Michael R. Thorson Harris Rosen Page 1 Agenda – Board of Adjustment & Appeals Regular Meeting Wednesday, January 31, 2024, 9:30 AM Page 2 of 2 B. Nomination of Chairperson C. Nomination of Vice Chairperson D. Nomination of Secretary E. Application No. 23-2790 / Frank and Laura Troiano Consideration of Application No. 23-2790 by Frank and Laura Troiano for a variance from Section 30-103(D) and Section 30-64 of the Town Code of Ordinances to create a lot with a minimum lot width of 68.06 feet in lieu of the required 80 foot minimum lot width for a single-family dwelling in the Residential Multiple Family Low Density (RML) Zoning District for the property located at 4611 South Ocean Boulevard (west side of State Road A1A). F. Government in the Sunshine Law Orientation 9. ANNOUNCEMENTS February 01, 2024 6:00 P.M. Palm Beach County Community Meeting hosted by County Commissioner Marci Woodward, District 4 February 06, 2024 1:30 P.M. Town Commission Meeting February 07, 2024 9:30 P.M. Natural Resources Preservation Advisory Board Regular Meeting February 13, 2024 1:00 P.M. Code Enforcement Board Regular Meeting February 20, 2024 1:30 P.M. Town Commission Meeting 10. ADJOURNMENT Any person that decides to appeal any decision made by the Board of Adjustment & Appeals with respect to any matter considered at this meeting, such person will need to ensure that a verbatim record including testimony and evidence upon which the appeal is based. (State Law requires the above Notice. Any person desiring a verbatim transcript shall have the responsibility, at his/her own cost, to arrange for the transcript.) The Town neither provides nor prepares such a record. There may be one or more Town Commissioners attending the meeting. In accordance with the Americans with Disabilities Act (ADA), persons who need accommodation in order to attend or participate in this meeting should contact Town Hall at (561) 278-4548 within a reasonable time prior to this meeting in order to request such assistance. Page 2 File Attachments for Item: A. October 07, 2021 Page 3 TOWN OF HIGHLAND BEACH TOWN BOARD OF ADJUSTMENT & APPEALS REGULAR MEETING MINUTES Town Hall / Commission Chambers Date: October 07, 2021 3614 South Ocean Boulevard Highland Beach, Florida 33487 Time: 9:30 AM 1. CALL TO ORDER Chairperson Pikkel called the meeting to order at 9:30 A.M. 2. PRESENT UPON ROLL CALL Member William Spruce Secretary Eve Rosen Vice Chairperson Fred Rosen Chairperson Bonnie Pikkel Member Barbara Penn Member Joel Leinson (virtually) Member Richard Bailyn Town Attorney Leonard Rubin Town Clerk Lanelda Gaskins ADDITIONAL STAFF PRESENT Town Planner Ingrid Allen 3. PLEDGE OF ALLEGIANCE The Board led the Pledge of Allegiance to the United States of America. 4. APPROVAL OF THE AGENDA MOTION: F. Rosen/E. Rosen - Moved to approve the agenda as presented, which passed unanimously 7 to 0. 5. SWEARING IN OF THE PUBLIC Town Clerk Gaskins swore in witnesses giving testimonies on Variance Application No. 21-0007. 6. PUBLIC COMMENT (limited to three (3) minutes per speaker) There were no public comments. Page 4 Board of Adjustment & Appeals Regular Meeting Minutes Date: October 07, 2021 Page 2 of 4 7. APPROVAL OF MINUTES A. June 09, 2020 MOTION: E. Rosen - Moved to approve the June 09, 2020, Minutes, which passed unanimously 7 to 0. 8. UNFINISHED BUSINESS A. None. 9. NEW BUSINESS A. Welcome New Members Joel Leinson and William Spruce Chairperson Pikkel welcomed Members Joel Leinson and William Spruce to the Board of Adjustment and Appeals. B. Nomination of Chairperson Chairperson Pikkel called for a motion to nominate a Chairperson. MOTION: F. Rosen/Spruce - Moved to nominate Bonnie Pikkel as the Chairperson for a one-year term, ending October 7, 2022. The motion passed unanimously 7 to 0. C. Nomination of Vice Chairperson Chairperson Pikkel called for a motion to nominate a Vice Chairperson. MOTION: Bailyn - Moved to nominate Fred Rosen as the Vice Chairperson for a one - year term, ending October 07, 2022, which passed unanimously 7 to 0. D. Nomination of Secretary Chairperson Pikkel called for a motion to Nominate a Secretary. MOTION: F. Rosen/Spruce - Moved to nominate Eve Rosen as the Secretary for a one- year term, ending October 07, 2022, which passed unanimously 7 to 0. E. Variance Application 21-0007 (Brian and Jennifer Kessler) An application by Smith Architectural Group and Kochman & Ziska PLC for a variance approval to allow a reduction in the width of vehicular access to a public right-of-way from 25 feet to 16 feet for a property located at 2475 South Ocean Boulevard. Page 5 Board of Adjustment & Appeals Regular Meeting Minutes Date: October 07, 2021 Page 3 of 4 Chairperson Pikkel read the title of Variance Application No. 21 -007. She asked the Members to disclose any ex parte communications, and there were none. Chairperson Pikkel opened the item for public hearing. Town Planner Allen presented this item along with a PowerPoint presentation. She indicated if the Board decides to approve the Applicants variance request, the Applicants will be required to obtain a building permit prior to initiation of construction, from the Town of Highland Beach’s Building Department. Following the presentation, discussion ensued by the Board Members and Town Staff regarding the Variance application. Attorney Amy D. Bahl with Kochman & Ziska PLC, the representative for the applicants spoke about the Variance Application No. 21-007 including the Town's code of ordinance and granting of the variance as it relates to the 16-foot driveway. Also present, was Sophia Bacon with Smith Architectural Group, another representative for the applicants. There being no further comments or questions, Chairperson Pikkel closed the public hearing. She called for a motion to approve; a motion to approve with conditions; or a motion to deny the request. MOTION: F. Rosen/ E. Rosen - Moved to approve Variance Application No. 21-0007. Upon roll call: Vice Chairperson F. Rosen (Yes); Members E. Rosen (Yes), Spruce (Yes), Leinson (Yes), Penn (Yes), Chairperson Pikkel (Yes), and Member Bailyn (Yes). The motion passed on a 7 to 0 vote . 10. ANNOUNCEMENTS Chairperson Pikkel read the announcements as follows: October 11, 2021 - Town Hall Closed in Observance of Columbus Day October 12, 2021 - 2:00 P.M. Code Enforcement Board Meeting October 14, 2021 - 9:30 A.M. Planning Board Regular Meeting October 19, 2021 - 1:30 P.M. Town Commission Meeting Page 6 Board of Adjustment & Appeals Regular Meeting Minutes Date: October 07, 2021 Page 4 of 4 11. ADJOURNMENT The meeting adjourned at 10:09 A.M. APPROVED: January 31, 2024, Board of Adjustment & Appeals Regular Meeting ATTEST: Bonnie Pikkel, Chairperson Transcribed by: Lanelda Gaskins Lanelda Gaskins, MMC Town Clerk Date Disclaimer: Effective May 19, 2020, per Resolution No. 20-008, all meeting minutes are transcribed as a brief summary reflecting the event of the meeting. Verbatim audio/video of this meeting can be found on the town’s Media Archives & Minutes webpage: https://highlandbeach-fl.municodemeetings.com/. Page 7 File Attachments for Item: B. Nomination of Chairperson, Vice Chairperson and Secretary Page 8 TOWN OF HIGHLAND BEACH AGENDA MEMORANDUM MEETING TYPE: Board of Adjustment of Appeals Board Regular Meeting MEETING DATE 01/31/2023 SUBMITTED BY: Lanelda Gaskins, MMC, Town Clerk SUBJECT: Nomination of Chairperson, Vice Chairperson and Secretary SUMMARY: On June 09, 2020, Ms. Bonnie Pikkel, Mr. Fred Rosen and Ms. Eve Rosen were nominated as the Chairperson, Vice Chairperson, and Secretary of the Board of Adjustment and Appeals Board; all have served in the positions for the allotted one-year terms. Therefore, this matter is being brought before the Board for discussion and nomination to fill both vacant positions for one-year terms, ending March 01, 2025. Please note, Chairperson Pikkel term will end on June 15, 2024. She will have served t wo consecutive three year terms and is not eligible for reappointment nor eligible to be nominated as the Chairperson. According to Resolution No. 19-029 R, - Advisory Board and Committees Appointment Process Policy, Section 9, it should be common practice that no member shall serve as chair until he or she has served for one full year on the advisory board unless no existing member is willing to serve as chairperson, vice chairperson or secretary. FISCAL IMPACT: None. ATTACHMENTS: Resolution No. 19-029 R RECOMMENDATION: Staff recommends nomination of a Chairperson, a Vice Chairperson and a Secretary to serve for one year, ending March 01, 2025. Page 9 O IGHLgtiO TOWN OF HIGHLAND BEACH' LORt A RESOLUTION 1. 19-029 ' A RESOLUTION OF THE TOWN COMMISSION OF THE TOWN OF HIGHLAND BEACH, FLORIDA, ADOPTING AN ADVISORY BOARDS AND COMMITTEES APPOINTMENT PROCESS POLICY; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the Town of Highland Beach, Florida, is a duly constituted municipality having such power and authority conferred upon it by the Florida Constitution and Chapter 166, Florida Statutes; and WHEREAS, the Town has several boards and committees who fulfill a vital role in assisting the Town Commission with executing Town business; and WHEREAS, although the Town's code of ordinances generally discusses the appointment of board and committee members, the Town Commission finds that it is beneficial to set forth the Town's process regarding the appointment of members in more detail; and WHEREAS, the Policy shall supplement the appointment processes in the Town's code of ordinances. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COMMISSION OF THE TOWN OF HIGHLAND BEACH, FLORIDA, THAT: SECTION 1. The above recitations are true and incorporated herein. SECTION 2. The Advisory Boards and Committees Appointment Process Policy is approved, said Policy is attached hereto as Exhibit A. SECTION 3. This resolution shall become effective immediately upon its passage. Page 10 Resolution No. 19-029 R PASSED AND ADOPTED BY THE TOWN COMMISSION OF THE TOWN OF HIGHLAND BEACH, FLORIDA, ON THIS 3RDDAY OF OCTOBER, 2019. AYE NAY Mayor Zelniker LV'4 Vice Mayor Babij Commissioner Gossett -Seidman Commissioner Donaldson Commissioner David 1% Greg Vice Mayor Barry Donaldson, Commissioner David, Commissioner AT E REVIEWED FOR J_.FG t SUFFICIENCY CLankda Gaskins, Mi. {,,,.,fjen J. Torcivia, Town Clerk - Town Attorney K Page 11 TOWN OF HIGHLAND BEACH ADVISORY BOARD & COMMITTEES APPOINTMENT PROCESS POLICY Approved by Resolution No. 19-029 R on October 3, 2019 1) Purpose: This policy establishes consistent procedures and standards for the appointment of individuals to all town advisory boards and committees, and applies to individuals serving on advisory boards appointed by the Highland Beach Town Commission. This policy does not apply to temporary or ad hoc committees or to appointments made by the commission to external boards, commissions or committees. This policy shall serve as a complement to the City's code of ordinances regulating boards and committees. 2) Duties of Advisory Boards and Committees: Unless otherwise provided for in the City's code of ordinances, all advisory boards and committees (sometimes referred to collectively as "advisory board" or "advisory boards") shall act in an advisory capacity to the Town Commission with the exception of the Code Enforcement Board, the Planning Board and the Board of Appeals and Adjustments, which may have the final decision making authority on quasi-judicial matters. When not acting in a quasi-judicial role, all other matters of the Code Enforcement Board, the Planning Board and the Board of Adjustment and Appeals, are to be advisory. 3) Qualifications and Restrictions: a) Applicants shall be a resident of the Town of Highland Beach and shall maintain residency while serving on an advisory board or committee. Residency for appointment to an advisory board or committee means the individual must be domiciled within the corporate limits and a registered voter of Highland Beach for at least one year prior to appointment. b) No person shall serve as a regular voting member on more than one advisory board unless specific action is taken by the Town Commission and so long as said appointment does not violate Sec. 2- 99 of the code. In no case shall an individual serve on two advisory boards that function as a quasi-judicial board, i.e., (1) Code Enforcement Board, (2) Planning Board or (3) Boards of Adjustment and Appeals. c) Any conflict of interest between an applicant and their proposed role as a member of an advisory board shall be divulged in the application process. A failure to do so may result in removal. d) Persons currently holding any elective municipal, county, state or federal office shall not be eligible to serve in a regular voting position on any advisory board. If a sitting advisory board member is elected to a Commission office, that sitting member shall resign their board position pursuant to Sec. 7-4 of the Town 's code of ordinances. e) Town employees (part-time or full-time) are not eligible to serve on an advisory board, unless serving in an ex officio (non-voting) capacity. Page 12 f) Applicants shall indicate which advisory board they are interested in on their application. If interested in more than one board, applicants shall indicate an order of preference numerically on the Town approved application with 1 being the highest preference and S being the lowest preference if all advisory boards are indicated. 4) Selection Process: a) Twice annually, during the first week of January and July, a notice inviting applications for the Town of Highland Beach shall be placed in the official newspaper of record, online (website), and emailed to Town email subscribers. Potential members will have approximately three weeks to apply, said applications to be due no later than 4:30 pm on the last Friday in January and July. The Town Commission may call for applications at additional times based on need. b) Persons interested in appointment or reappointment to an advisory board shall complete a Town approved application as provided by the Town on its website or at the Town Clerk's Office. Existing members seeking reappointment shall complete a new application to ensure that the Town has the most current information related to the advisory board member. c) Persons interested in appointment shall also submit a completed and signed background investigation waiver form. The simple background investigation would verify employment history, affiliations and memberships, financial/credit report and any criminal convictions. d) Applications shall be received by the Town Clerk on or before the advertised deadline. Late or incomplete applications will not be considered unless an extension is granted by action of the Town Commission. All applications will be held on file by the Town Clerk for a period of two years. e) Town staff will screen all applications for residency and other qualification requirements. The Police Department will conduct the simple background investigation. f) In February and August, Town staff will direct advisory board applications to the appropriate Advisory Board Chairs for screening and recommendation pursuant to Sec. 2-99 of the Town's code of ordinances. Advisory Board Chairs may ask applicants to attend an Advisory Board meeting for an interview conducted by the full board. Advisory Board Chairs may choose to not tormally interview board members seeking reappointment and instead base their review upon the board member's performance and attendance. An Advisory Board Chair's written screening of a candidate may remain in effect for up one year. g) The qualifications for service on an advisory board shall be those that in the judgment of the advisory board chair are representative of the community and are qualified by training, experience, and interest for the fulfilment of the advisory board's responsibility. If the Chair feels that a particular candidate(s) not recommended for selection would be viable alternates to serve in case of vacancy, they may note those applicants to the Town Clerk as part of their report. h) All candidates for advisory boards along with the recommendations of the Advisory Board Chair shall be placed in a candidate pool and when a vacancy becomes available all applications shall be forwarded to Town Commission for selection and approval. The recommending Advisory Board Chair may rank candidates if more than one person applies for appointment. Any Town 21 Page Page 13 Commissioner may then nominate an individual, or a slate of candidates for a public interview at the upcoming commission meeting. Votes via a signed ballot process will be taken by Town Commission until all vacancies are filled. i) The Town Commission has the ability to nominate and appoint any of the candidates within the applicant pool. The Town Commission will make every effort to ensure an advisory board does not a have majority of members from a single neighborhood, condominium association or group of condominium associations collectively referred to as a single condominium association and that advisory board members' background, proficiencies and experiences align as closely as possible to the mission of the assigned advisory board. j) Appointment of a qualified candidate shall be made by an affirmative vote of not less than three members of the Town Commission. k) On the day following Commission action, the Town Clerk shall notify each applicant of the Commission's appointment decision. Letters will subsequently be mailed to each individual appointed to an advisory board stating the name of the board to which they have been appointed, the name of the staff liaison fortheir advisory board, and any other pertinent information relevant to the position and information on ethics, conflicts of interest and open meetings requirements. All first -term appointees need to plan on completing the Palm Beach Commission on Ethics Training and Orientation session within 30 days of appointment. 1) The Town Clerk shall also prepare and mail letters to those not selected for service to express the Commission's appreciation for their willingness to serve the Town of Highland Beach and that application will remain on file for future appointment opportunities for a period of two years, or the remaining period of time since the date of initiation application. m) Should an applicant no longer wish to be considered for appointment, notice of withdrawal of the application shall be made in writing to the Town Clerk with a copy of said written withdrawal forwarded to the Town Commission. 5) Terms of Office: a) Residents are appointed at the pleasure of the Town of Highland Beach, and can be removed or replaced at any given time by the same. b) As set forth in Sec. 2-99, in the Town's code, Terms for all boards shall be three (3) years and no board member may serve more than two (2) consecutive terms on the same board without first taking a one-year hiatus from the board. Appointments for partial terms shall not count toward the two -term limit. c) Expectations: Advisory board members are expected to be prepared for meetings to ensure recommendations, approvals and advisory opinions are well formed to assist the Town Commission in making optimal decisions. Additionally, advisory board members shall act with respectful and professional demeanor at all times. Being prepared includes, but is not limited to: 31 Page Page 14 i) Reviewing background materials (staff reports); ii) Conducting independent research on topics as needed; iii) Understanding ordinances; iv) Staying informed on Town affairs and Town Commission actions; v) Appreciating due process and public comments; vi) Engaging all stakeholders with respect; vii) Being familiar with basic provisions of Robert Rules of Order; and viii) For quasi-judicial boards, strict adherence to criteria established for reviewing petitions and applications. 6) Attendance: a) Advisory board members are required to maintain regular attendance pursuant to Article V — Boards and Committees of the Town of Highland Beach Code of Ordinances. Members who cannot attend a meeting should inform the Town Clerk 24 hours in advance of the scheduled meeting. b) Pursuant to Article V — Board and Committees inadequate attendance is grounds for removal. Inadequate attendance shall mean a member's absence at three (3) or more consecutive regular meetings of a board. 7) Compensation: Members of advisory board and committees are paid $25 per meeting with the compensation amount adjusted periodically by action of the Town Commission. 8) Orientation: Newly appointed members will make every effort to become familiar with all aspects of their particular advisory board. The Town will provide basic information to all advisory board members about the Town, the purpose and responsibility of the advisory board, and additional information to assist members in the performance of their duties. 9) Organizational: It should be common practice that no member shall serve as chair until he or she shall have served for one full year on the advisory board unless no existing member is willing to serve as chair. Roberts Rules of Order (Newly Revised) shall govern all meetings as to procedural matters not set forth in the state statutes or town code. A record via summary minutes shall be kept of all meetings. A verbatim transcript is not required. 10) Advisory Boards and Committees Enabling Sections: Authorization of advisory boards and committees are duly constituted pursuant of the Town of Highland Beach Code of Ordinances. a) Chapter 2: Administration, Article V i) Division 2 — Code Enforcement Board (Sec. 2-110 — 2-134) ii) Division 3 — Natural Resources Preservation Advisory Board (Sec. 2-135 — 2-154) iii) Division 4 — Financial Advisory Board (Sec. 2-155 — 2-160) b) Chapter 20: Planning and Development, Article II — Planning Board (Sec. 20-26 — 20-45) & Chapter 30: Zoning (Sec. 30-22) c) Chapter 20: Planning and Development, Article III — Board of Appeals and Adjustments (Sec. 20- 46 — 20-100) & Chapter 30: Zoning (Sec. 30-23) 41 Page Page 15 BOARD OF ADJUSTMENT & APPEALS Regular Meeting – 3rd Tuesday – 9:30 AM (as needed) Names Date of Appointment Date Term End Bonnie Pikkel, Chairperson (Nominated as Chairperson 06/09/2020) 6/15/2021 Reappointed 6/15/2024 Fred Rosen, Vice Chairperson (Nominated as Vice Chairperson 06/09/2020 6/4/2019 Reappointed 10/18/2022 10/18/2025 Joel Leinson 9/21/2021 9/21/2024 Todd Weiss Appointed 9/5/2023 9/4/2026 Michael R. Thorson Appointed 12/5/2023 12/5/2026 Harris Rosen Appointed 12/5/2023 12/5/2026 One Unexpired Term Vacancy 9/21/2024 Page 16 File Attachments for Item: E. Application No. 23-2790 / Frank and Laura Troiano Consideration of Application No. 23-2790 by Frank and Laura Troiano for a variance from Section 30-103(D) and Section 30-64 of the Town Code of Ordinances to create a lot with a minimum lot width of 68.06 feet in lieu of the required 80 foot minimum lot width for a single-family dwelling in the Residential Multiple Family Low Density (RML) Zoning District for the property located at 4611 South Ocean Boulevard (west side of State Road A1A). Page 17 Board of Adjustment and Appeals STAFF REPORT MEETING OF: January 31, 2024 TO: BOARD OF ADJUSTMENT AND APPEALS (BOAA) FROM: INGRID ALLEN, TOWN PLANNER SUBJECT: APPLICATION BY FRANK AND LAURA TROIANO FOR A VARIANCE FROM SECTION 30-103(D) AND SECTION 30-64 OF THE TOWN CODE OF ORDINANCES TO CREATE A LOT WITH A MINIMUM LOT WIDTH OF 68.06 FEET IN LIEU OF THE REQUIRED 80 FOOT MINIMUM LOT WIDTH FOR A SINGLE- FAMILY DWELLING IN THE RESIDENTIAL MULTIPLE FAMILY LOW DENSITY (RML) ZONING DISTRICT FOR THE PROPERTY LOCATED AT 4611 SOUTH OCEAN BOULEVARD (WEST SIDE OF STATE ROAD A1A) APP23-2790 Applicant (Property Owner): Frank P. and Laura Troiano 4611 South Ocean Boulevard Highland Beach, Fl. 33487 Applicant’s Agent: Not applicable. Property Characteristics: Comprehensive Plan Land Use: Multi Family Low Density (west of State Road (SR) A1A). Single Family (east of SR A1A). Zoning District: RML Residential Multiple Family Low Density (west of SR A1A). RS Residential Single Family (east of SR A1A) Property Location: 4611 South Ocean Boulevard I. GENERAL INFORMATION: HIGHLAND BEACH BUILDING DEPARTMENT 3614 S. Ocean Boulevard Highland Beach, FL 33487 Ph: (561) 278-4540 Fx: (561) 265-3582 Page 18 Parcel PCN#: 24-43-47-09-00-001-0040 Adjacent Properties: Proposed parcel west of SR A1A PARCEL ZONING DISTRICT FUTURE LAND USE DESIGNATION North Residential Multiple Family Low Density (RML) Multi Family Low Density South Residential Multiple Family Low Density (RML) Multi Family Low Density East Residential Single Family (RS) Single Family West Residential Multiple Family Low Density (RML) Multi Family Low Density Adjacent Properties: Proposed parcel east of SR A1A PARCEL ZONING DISTRICT FUTURE LAND USE DESIGNATION North Residential Multiple Family Low Density (RML) Multi Family Low Density South Residential Single Family (RS) Single Family East NA NA West Residential Multiple Family Low Density (RML) Multi Family Low Density Background: According to the Palm Beach County Property Appraiser, the existing single-family home located on the portion east of SR A1A was built in 1959. The portion of the property west of SR A1A is currently vacant. At the May 16, 2023 Town Commission meeting, the Commission considered a request by Laura Troiano to approve the division of a parcel of property located at 4611 South Ocean Boulevard into two separate lots. Town Commission direction was to have staff attempt to develop language that would address this type of situation. At the July 18, 2023 Town Commission meeting, a memo prepared by the Town Attorney was provided to the Commission (see attached). The Commission agreed that this matter should go before the Board of Adjustments and Appeals for a recommendation via the submittal of a variance application by the property owner. Request and Analysis: The Applicant is requesting a variance from Sections 30-103(d) and 30-64 of the Town Code of Ordinances to create a lot on the west side of SR A1A with a minimum lot width of 68.06 feet (as provided on the Applicant’s survey) in lieu of the required 80 feet minimum lot width for a single- family dwelling in the Residential Multiple Family Low Density (RML) zoning district (see Table 1). Section 30-103(d) of the Town Code of Ordinances states that a division of any parcel shall not be made which creates a lot which does not conform to the requirements of Chapter 30 (Zoning Code). As noted above, at the July 18, 2023 Town Commission meeting, consensus from the Page 19 Commission was that the matter go before the BOAA (for a recommendation) via a variance application. According to the Applicant’s survey of the proposed lot on the west side of SR A1A, it contains 8,187 square feet. Given the maximum density for the RML zoning district is six (6) dwelling units per acre, the maximum number of dwelling units permitted on this lot would be one (1) dwelling unit (8,187/43,560 X 6 = 1.13 units) TABLE 1 Minimum lot width RML Zoning District (feet) Single-family dwelling 80 Two-family dwelling 80 Multifamily dwelling 100 Source: Section 30-64 of the Town Code of Ordinances As a basis for consideration of an application for variance approval, the BOAA must determine an application is consistent with the criteria below as provided in Section 30 -40(e) of the Town Code. The Applicant provided responses to these variance criteria as part of their variance application (see attached). (1) Special conditions. Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district. (2) Hardship. The special conditions and circumstances truly represent a hardship and are not created by any actions of the applicant. (3) Literal interpretation. Literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of this chapter and would work unnecessary and undue hardship on the applicant. (4) Special privileges. The grant of a variance will not confer upon the applicant any special privilege denied to any other owner of land, buildings, or structures located in the same zoning district. (5) Minimum variance. The variance granted is the minimum variance that will make possible the use of the land, building, or structure. (6) Purpose and intent. The grant of the variance will be in harmony with the general intent and purpose of this chapter. (7) Financial hardship. Financial hardship is not to be considered as sufficient evidence of a hardship in granting a variance. (8) Public welfare. The grant of the variance will not be injurious to the area involved or otherwise detrimental to the public welfare. There are currently two (2) other properties within the Town that are bifurcated by SR A1A in the same manner as the Applicant’s property (see Table 2). An additional property located at 3833 South Ocean Blvd is also bifurcated by SR A1A (RML on the west side of SR A1A and RS on the east side); however, the portion west of SR A1A is located approximately 150 feet south of the portion east of SR A1A. All of these bifurcated properties are in compliance with the minimum lot width requirement for the corresponding zoning district . Page 20 TABLE 2 Property Zoning District 3901 South Ocean Blvd. RML (west side of SR A1A) RS (east side of SR A1A) 2425 South Ocean Blvd. RS (west side of SR A1A) RE (east side of SR A1A) Pursuant to Section 30 -40(g) of the Town Code, the vote of at least four (4) members of the BOAA or a majority of the Town Commission is necessary to grant a variance from the requirement s of Chapter 30 (Zoning Code). According to Section 30-40(h) of the Town Code, a variance when implemented in accordance with the approval granted by the BOAA or the Town Commission shall run with the land in perpetuity unless a lesser time is approved by the BOAA or the Town Commission. A variance that is not implemented shall expire eighteen months following approval. Should you have any questions, please feel free to contact me at (561) 637-2012 or iallen@highlandbeach.us Attachments: Variance Application Aerials Surveys July 18, 2023 Town Attorney memorandum. Applicant’s submitted materials Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 4611 South Ocean Boulevard Palm Beach CountyNone January 18, 2024 0 0.015 0.030.0075 mi 0 0.025 0.050.0125 km 1:1,128 Created by: Palm Beach Countyµ 4611 4611 Page 27 3901 South Ocean Blvd Palm Beach CountyNone January 16, 2024 0 0.03 0.060.015 mi 0 0.055 0.110.0275 km 1:2,257 Created by: Palm Beach Countyµ lot width approx. 100 feet 3901 RSRML Page 28 2425 South Ocean Blvd.Palm Beach CountyNone January 16, 2024 0 0.015 0.030.0075 mi 0 0.025 0.050.0125 km 1:1,128 Created by: Palm Beach Countyµ lot width approx. 100 feet 2425 RS RE Page 29 3833 South Ocean Blvd.Palm Beach CountyNone January 16, 2024 0 0.03 0.060.015 mi 0 0.055 0.110.0275 km 1:2,257 Created by: Palm Beach Countyµ lot width approx. 100 feet. 3833 RS RML Page 30 Ro b e r t L Th o m p s o n Dig i t a l l y s i g n e d b y R o b e r t L Th o m p s o n Da t e : 2 0 2 3 . 1 2 . 0 4 1 1 : 1 2 : 3 8 - 0 5 ' 0 0 ' Page 31 Ro b e r t L Th o m p s o n Di g i t a l l y s i g n e d b y R o b e r t L Th o m p s o n Da t e : 2 0 2 3 . 1 2 . 0 4 1 1 : 1 8 : 4 8 - 0 5 ' 0 0 ' Page 32 TOWN OF HIGHLAND BEACH AGENDA MEMORANDUM MEETING TYPE: Town Commission Meeting MEETING DATE July 18, 2023 SUBMITTED BY: Leonard G. Rubin, Town Attorney SUBJECT: Request for Lot Split (Troiano Property – 4611 South Ocean Boulevard) SUMMARY: Background: At its May 16, 2023 meeting, the Town Commission considered a request by Laura Troiano to approve the division of a parcel of property located at 4611 South Ocean Boulevard (“Troiano Parcel” or “Parcel”) into two separate lots. As discussed at the meeting, the Troiano Parcel is bifurcated by A1A. The portion east of A1A is improved with a single -family residence and has a zoning designation of Residential Single-Family, and the portion west of A1A is vacant and has a zoning designation of Residential Multiple-Family Low Density. Splitting the Troiano Parcel into two separate lots would violate Section 30 -103(d) of the Town Code, which expressly provides that “a division of any parcel shall not be made which creates a lot which does not conform to the requirements of this chapter.” If the portion west of A1A became a separate lot, it would be only sixty-eight (68) feet wide. Section 30-64 of the Town Code (Table 30-2) requires a minimum lot width of eighty (80) feet. Discussion and Recommendation: The Town Commission directed Staff to attempt to develop language that would address this type of situation. While there are two other parcels in the Town bisected by A1A, the Troiano Parcel is the only parcel where the division of the parcel int o two separate lots would be prohibited due to the creation of a non -conforming lot. Consequently, after consultation with Town Staff, this office does not recommend amending the Town Code to address a single parcel of the property within the Town. At the Commission meeting, Laura Troiano represented that her family wished to construct a single-family home on the portion of the parcel located west of A1A. Given the nature of the request, this office recommends that the Troiano family be encouraged to app ly for a variance from Sections 30-103(d) and Section 30-64 of the Town Code. The unique conditions applicable to the Troiano Parcel appear to justify the grant of a variance. Because the variance application will need to address both the non-conformity and lot width provisions, the variance 136 Page 33 request should go before the Board of Adjustment and Appeals for a recommendation and the Town Commission for final consideration. Utilizing the variance process would allow the Commission to impose reasonable conditions on the grant of the variance. Such conditions could include limiting the new parcel to the construction of a single-family residence, approving the actual footprint of the proposed residence, and imposing a time -frame in which the residence must be constructed. Should you have any questions relative to the foregoing, please do not hesitate to contact me. FISCAL IMPACT: N/A ATTACHMENTS: Letter from Mrs. Troiano dated May 10, 2023 Aerial Maps RECOMMENDATION: Commission discussion. 137 Page 34 November 14, 2023 Board of Adjustment and Appeals Town of Highland Beach Town Hall Dear Board Members, My husband Dr. Frank Troiano and I are requesting that the parcel, addressed 4611 S Ocean Blvd., to the west of A1A be recognized by the Town of Highland Beach as a separate lot, than the lot, addressed 4611 S Ocean Blvd., to the east of A1A. We would like to build a family home on the west side parcel in the future. Due to the construction of A-1-A and the adoption of the Highland Beach Comprehensive Plan the lots became separate and distinct lots. Both lots have always been given different land use and zoning classifications in the Highland Beach Comprehensive Plan. RMI - multi family land use on the west side and single family land use on the east side. Palm Beach County recognizes the lots as being separate on our/their county record card, specifically, lot size designation, tax billing and zoning. The zoning for the lot is complimentary and in keeping with the zoning of all the other lots around it (north, south and west). There has been some question regarding non-conformity which calls for conforming lots to be 80’ wide. Our lots are 68.06’ wide which is considered non- conforming; however, this non-conformity is benign and does not have a negative impact on the health and safety of the public. Our lots are less than 12 feet shy of the 80’ conformity. Another reason to further our case, was pointed out by Mr. Labadie and that is our lots are the only lots in Highland Beach that are of this particular type and therefore they are unique and the situation is unique. No case law has been discovered that would negatively apply to our circumstance. Conclusion: The two separate lots are physically divided by A-1-A. Both lots have separate zoning classifications. The county record card recognizes the lots as being separate as defined by lot size, tax billing and zoning classification. All of the other lots around our west side lot are zoned the same as ours. There is no negative impact on the health and safety of the public by recognizing the lots as distinct and separate. By recognizing that the lots are separate our family would potentially be able to build a beautiful home on the west side lot. Thank you for this opportunity to meet with you. Respectfully, Laura and Frank Troiano Page 35 11/14/23, 10:14 AM PAPA Maps https://maps.co.palm-beach.fl.us/cwgis/papa.html?qvalue=24434709000010040#1/1  Owners Property Detail Sales Information Sales Date Price 1 Appraisals Search by Owner, Address or Parcel Page 36 Page 37 Page 38 Page 39 does your community distinguish between detrimental and benign nonconformities? Zo n i n g Pr a c t i c e AM E R I C A N P L A N N I N G A S S O C I A T I O N 12 2 S . M i c h i g a n A v e . Su i t e 1 6 0 0 Ch i c a g o , I L 6 0 6 0 3 17 7 6 M a s s a c h u s e t t s A v e . , N . W . Wa s h i n g t o n , D . C . 2 0 0 3 6 zONING Practice NOvEMbER 2009 AMERICAN PLANNING ASSOCIATION 11 issue number 11 Practice nonconformities 11 Page 40 zoningpractice 11.09 AmericAN PlANNiNg AssociAtioN | page 2 Distinguishing Between Detrimental and Benign nonconformities With the adoption of new standards for use and development, many existing uses, struc- tures, site design features, and lots may no longer meet the current standards. The concept of nonconformities arises from adopting new codes for areas that already have some development, which is the case for almost every jurisdiction in the country. When land is used for activities that are no longer permissible under the zoning regulations, the local government typically allows the preex- isting use to continue if it was permissible when it was first established. Likewise, when development is in place and the provisions of the zoning regulations render the lot or one or more site design features out of compliance with current standards, the local government typically “grandfathers” the development if it was in compliance when first established. grandfathering is another word used to de- scribe nonconformities, which means the local government is granting legal status to the use or development, but with limitations. By V. Gail Easley, f a i c p , and David A. Theriaque Local governments routinely adopt new or revised zoning regulations to establish minimum standards for the use of land and standards for development on the land. ties and those that existed would naturally go away over time. Because of the nonconformi- ties’ protected status as grandfathered uses, however, they continued to prosper due to the prohibition on other such uses in that zoning district. in essence, such nonconforming uses were provided with monopolies. Additionally, zoning was perceived as a prospective matter that would not apply to uses which were already in existence. Moreover, in light of the uncertainty regarding whether the courts would uphold zoning regulations, any attempt to apply the new zoning regulations to existing uses and development was perceived as increasing the likelihood that a court would inval- idate such regulations. Allowing nonconformities to continue also reduced the amount of public opposition to the concept of zoning regulations. These concerns hold true today. From a public policy perspective, local governments are rightfully concerned about the public outcry that would occur if grandfathered status was not ap- plied to existing uses and development. imagine An existing use or development that was not in compliance when a local government enacts new regulations is not eligible for grand- fathered status. indeed, each claim of grandfa- thered status must meet this threshold ques- tion: Was the use or development in compliance with the existing regulations? if not, such use or development is not entitled to any protection from the new regulations. Rather, it is subject to code enforcement proceedings to bring it into compliance with the newly adopted regulations. This issue of Zoning Practice addresses legal nonconformities of use and development standards, but does not address signs. There are many issues pertaining to signs, including First Amendment rights, which are too complex to include in this article. Code enforcement of unlawful uses is also a topic for another issue. Why do LocaL Governments Grandfather Uses and strUctUres? When zoning was in its infancy, planners ex- pected that there would be few nonconformi- A nonconforming lot does not comply with current dimensional standards such as minimum area, width, depth, or frontage. Dav i d M o r l e y Page 41 Ask The AuThoR Join us onLine! About the Authors V. gail easley, f a i c p , is an adjunct lecturer in the urban and regional planning program at the university of Florida. in her work as a local government and consulting planner, she has provided services to local, regional, and state governments for 30 years, including growth manage- ment, comprehensive planning, and the creation of award-winning land development regulations in unified codes and individual ordinances. she frequently provides training in seminars, conferences, and publica- tions, and is the author of previous Zoning Practice articles. David Theriaque is an attorney representing private-sector and governmen- tal clients regarding land-use planning and growth management law at the state and federal levels. he has been an adjunct professor at Florida state university Department of urban and Regional Planning and is a frequent lecturer at various conferences on planning and growth management is- sues. he is a charter life member of the Florida Wildlife Federation and was selected by 1000 Friends of Florida as a “special Friend of Florida.” the uproar that would occur if all existing noncon- forming uses were required to cease immediately upon the adoption of new zoning regulations. similarly, even though the concept of zon- ing is well established in the court system, the courts protect existing uses and development from immediate compliance with the adoption of new zoning regulations through various legal doctrines such as takings law, vested rights, and concepts of equity and justice. Despite these good reasons to allow non- conformities to continue, nonconformities of- ten undermine what a community is seeking to achieve when it establishes specific allowable uses and development standards for a zoning district. Therefore, it is important to determine the best way to eliminate, reduce, or continue nonconforming situations. UnderstandinG the JarGon in order to be clear about the concepts, a few terms pertaining to nonconformities are ex- plained here: Nonconforming use. use means the activity carried out on the land. When a use is nonconforming, it means that the existing use is not authorized for the zoning district in which it is located. however, even when the use is nonconforming, the structure housing the use is not necessarily nonconforming. in fact, there may be no structures involved at all. For example, a field in an agricultural zone might be used for parking although parking is not an authorized principle use. zoningpractice 11.09 AmericAN PlANNiNg AssociAtioN | page 3 A review of the Planning Advisory service Report 521/522, A Planners Dictionary, reveals that many local governments include struc- tures, lots, and site design features within the definition of nonconforming use. however, we make a clear distinction between use and site design or development standards when • accessory structures, such as dumpsters, pools, pool enclosures, sheds, recreational facilities, or greenhouses. When new design standards are adopted to govern the location, height, dimensions, number, or other design requirements, existing development may no longer conform to one Go online from November 30 to December 11 to participate in our “Ask the Author” forum, an interactive feature of zoning Practice. V. Gail Easley, f a i c p , and David Theriaque will be available to answer questions about this article. Go to the APA website at www.plan- ning.org and follow the links to the Ask the Author section. From there, just submit your questions about the article using the e-mail link. The author will reply, and zoning Practice will post the answers cumulatively on the website for the benefit of all subscribers. This feature will be available for selected issues of zoning Practice at an- nounced times. After each online discussion is closed, the answers will be saved in an online archive available through the APA zoning Practice web pages. A nonconforming structure fails to comply with current dimensional standards such as setbacks, lot coverage, or height. applying the term nonconformity. We believe it is important to distinguish between the activity (use) and the design standards that apply to buildings, structures, site features, and lots. Nonconforming development standards. site development standards pertain to: • lots, meaning the area or dimensions; • structures, primarily the principal building(s) on a site; • required design features, such as parking lots, loading areas, or stormwater facilities; and or several standards. Local governments often define a series of terms, such as nonconform- ing lots, nonconforming parking, nonconform- ing dimensional requirements, and so forth. The key factor is that all such nonconformities pertain to development or design standards, as distinguished from use. Detrimental nonconformities. Many people believe that nonconformities are inherently detrimental or cause harm in some way. how- ever, based on our experiences and discussions with practitioners over the last several years, it seems clear that nonconformities may or may not be detrimental. Consequently, we believe that nonconformities should be separated into two categories—“detrimental” and “benign.” D a v i d M o r l e y Page 42 zoningpractice 11.09 AmericAN PlANNiNg AssociAtioN | page 4 Detrimental nonconformities are those that have a negative impact on the health and safety of the public. examples include uses in- volving hazardous materials, such as gasoline stations in single-family neighborhoods; uses that produce significant noise, such as body shops or paint shops; uses that have been deemed incompatible, such as adult entertain- ment establishments near schools; or uses that have large trip generation characteristics, such as drive-through restaurants. Detrimental nonconformities clearly have the potential for harm and should be subject to limitations leading to their eventual removal or not a single concept to be routinely cited as the basis of regulation. Rather, health and safety are the basis of protection from injury, illness, danger, and other harm. Public wel- fare is concerned with nuisance, economic interests, convenience, and community character. While benign nonconformities may have some negative impact, the local govern- ment has determined that the negative impact is small and does not threaten the public health and safety. For example, the amount of deviation from a dimensional requirement may be so small as to be unnoticeable, such as an encroachment of only a few inches into compliance with all remaining development standards. such exceptions are not consistent with the idea that the nonconformity should be eliminated eventually. • Prohibiting or limiting a change of use except when the new use is considered con- forming or less nonconforming, often based on development standards to support the use. in this latter situation, a good example is parking. When the use requires the same or fewer park- ing spaces, the impact from the change of use is not increased. • Requiring the combination of adjacent non- conforming lots. When a lot has less area than Detrimental nonconformities threaten the public welfare. nearby residents no longer have the quiet enjoyment of their homes due to noise, lights, odor, or increased traffic. modification into compliance with current stan- dards. This concept forms the basis for most regulation of nonconformities. Benign nonconformities. When develop- ment fails to meet current design standards but the nonconformity is not harmful, there is little or no need to limit the development from expansion, redevelopment, or other activities. Local governments often struggle with this issue because, in most cases, all nonconfor- mities are treated alike. The authors recom- mend that local governments establish a second category of nonconformities—benign nonconformities—with different standards that do not necessarily lead to eventual re- moval of the nonconforming situation. A non- conformity is considered benign when it does not have a negative impact on the health and safety of the public but may have a negative impact on the public welfare. examples may include a lack of landscaping, too few parking spaces, or minimal deviations from dimen- sional standards. The separation of nonconformities into detrimental and benign is based on the idea that “public health, safety, and welfare” is a required setback. A benign nonconformity can also arise from inconvenience, such as too few parking spaces. The local government should categorize a nonconformity as benign when there is no need to eliminate it to pro- tect the public from harm. cUrrent approaches to reGULatinG nonconformities Most regulation of nonconformities is based on the eventual elimination of the situation. This approach leads to regulations such as the following: • Prohibiting or limiting the expansion of a building when the building itself is noncon- forming or when the building, even though meeting the development standards, houses a nonconforming use. The idea is that, while routine maintenance is permissible, such a limitation will prevent continued investment into a situation that should not exist. however, many local governments allow a building’s expansion if it does not increase the degree of nonconformity. An example is a building with a nonconforming front setback where an expan- sion is proposed to the rear of the building in required for development, and the same owner has two or more contiguous lots, a typical regulation requires the lots to be combined to create one conforming lot. on the other hand, many regulations allow the development of a lot that is nonconforming as to area, provided that all other standards for development are met. This latter situation is a good example of the concept of a benign nonconformity. • Providing that a discontinued nonconform- ing use cannot resume. Local governments set a time limit on the ability of an owner to resume a nonconforming use. Typical regula- tions allow six months or one year of cessation; at the end of this time only a conforming use is permissible. During the latest economic downturn, however, many nonconforming uses went out of business. To avoid empty proper- ties and encourage another similar—even if nonconforming—business to move in, some local governments have looked for ways to extend that time limit. one way is to consider the use “continuing” if the property is actively offered for sale or rent. • Providing that a nonconforming building that is vacant for a specified period of time is Ph o t o s b y J o h n svo b o d a Page 43 zoningpractice 11.09 AmericAN PlANNiNg AssociAtioN | page 5 not reoccupied until the nonconformity is elimi- nated and the entire site is brought into compli- ance with the standards. Again, typical regula- tions allow six months or one year of vacancy before requiring that the building or other development features are brought up to current standards. similar to the cessation of use situ- ation, many local governments are extending the time limit if properties are actively offered for sale or rent. • Requiring that buildings and other de- velopment features that are destroyed are reconstructed only in compliance with current standards. Most local governments allow re- construction to the current conditions if there is a determination that the loss of the building is not due to an act of nature and that the loss is less than 50 percent of the value of the building. Therefore, a partially destroyed building can be rebuilt in its same nonconforming situation. • Amortizing the nonconformity. in some in- stances, a local government establishes a time frame within which the nonconformity must cease. The basis for doing so is to allow the property owner an opportunity to recover his some nonconforming uses create detrimental impacts to their neighborhoods due to noise, traffic, electronic interference, lights, and odors. These impacts can be compounded by structural nonconformities such as inadequate parking, setbacks, buffers, and landscaping. economic investment before being required to cease the nonconformity. This approach has been used for many different types of uses, such as gas stations in residentially zoned areas, adult entertainment facilities, junk yards, concrete plants, commercial uses, and billboards. The length of the amortization pe- riod is based frequently upon the economic life of the nonconformity. reGULatinG BeniGn nonconformities The distinguishing characteristic of the benign nonconformity is that the type and degree of nonconformity are not considered harmful or use of flexible design standards and overlay districts. A neighborhood or other identifiable geographic unit may contain uses that would be nonconforming in a traditional zoning dis- trict, which seeks uniform uses. however, when nonconforming uses are desirable, the govern- ment should consider a mixed use district. This avoids the creation of nonconforming uses and may also achieve a vibrant, diverse neighbor- hood that benefits the community. Planning practices include many ex- amples of flexible design standards, such as context-sensitive standards, performance stan- dards, or compatibility standards. such stan- and expand, the nonconforming situation. Flexible standards may not be a good fit in this situation. however, the creation of the “old neighborhood overlay,” with standards that recognize the existing situation, keeps a stable neighborhood in conformance and allows prop- erty improvements with no special procedures or requirements other than compliance with the overlay standards. some practitioners have argued that flex- ibility is the necessary ingredient in regulating nonconformities. however, we believe that a local government does not need to examine nonconformity on a case-by-case basis. instead, unsafe by the local government, with the result that elimination or reduction of the noncon- formity is not the goal. Further, as planning practice moves away from the rigid separation of uses for the sake of strict uniformity within a district, we recognize that variation is not only acceptable but also is often desirable. Com- patible development does not demand same- ness. Rather, the public seeks and planners provide mixed use options in modern zoning codes. increasingly, we see the need to focus on impact, character, compatibility, and urban form—which means that a nonconformity may not be unwelcome in a neighborhood. A local government may wish to avoid the creation of nonconformities through greater attention to creating mixed use districts or the dards are intended to reflect urban form rather than prescriptive and uniform dimensions. This contemporary approach avoids nonconforming uses and provides diversity and variation in design rather than the sameness planners and the public seek to avoid. Another approach that we often use is to create an overlay for a specific neighborhood. A typical example is an older subdivision, established when lots and yards were smaller. The current residential zoning district requires a larger lot area, greater lot width, and larger setbacks; all the older houses and lots become nonconforming. under typical nonconforming standards, additions to the houses are not allowed because the purpose of the noncon- forming provisions is to eliminate, not continue A local government may wish to avoid the creation of nonconformities through greater attention to creating mixed use districts or the use of flexible design standards and overlay districts. Ph o t o s b y kri s M o r l e y Page 44 zoningpractice 11.09 AmericAN PlANNiNg AssociAtioN | page 6 it can decide up front which situations are det- rimental and which, even if not sought out, are at least benign in their impact on the neighbor- hood. Again, the distinction is that detrimental nonconformities are harmful to the public health and safety while benign nonconformities have a potential negative impact on the public welfare. examples of benign nonconformities include: • De minimis (i.e., negligible) deviations from a dimensional requirement, such as encroach- ing a few inches into a required setback, with no resulting negative impact on neighborhood character. • A lot that fails to meet a dimensional or area requirement, but the deviation is small enough that the shortfall does not affect the neighbor- hood character. • A change in the list of permissible or con- ditional uses, or eliminating an existing use that is not, in fact, objectionable. it may seem that the change in listed uses is an indication that those not listed are now objectionable. however, unless every existing lot with its existing use is examined during revision to the list of permissible uses, it is often the case that uses become nonconforming not as a matter of policy, but as a matter of oversight. often, a use considered objectionable at adoption is no longer considered objectionable in later years as times, customs, and lifestyles change. • nonconformities arising from a government action, such as the loss of a required front yard for road widening. While the district regula- tions may require the yard, most properties along the road have the same situation, so the encroachment does not negatively impact that portion of the neighborhood. • De minimus deviations from a standard, such as required parking spaces, which do not create a negative impact on the surrounding area. A local government must decide for itself the degree of deviation from a standard that is de minimis. it must also decide how to define the character of a neighborhood and how much change to a lot, its use, or development would have a negative impact. All such determina- tions are based on impact to public welfare and not public safety or health, where a stricter standard applies. such a determination is not unusual for a local government, as the consideration of impact on neighborhood character and deviation from required standards is routine in variance requests and consideration of con- ditional uses. in fact, we believe that benign nonconformities are similar to variances in that the end result authorizes a deviation from the standards in a manner consistent with the public interest. distinGUishinG BetWeen detrimentaL and BeniGn nonconformities in the reGULations Many local governments adopt regulations for nonconformities and include exceptions to those regulations, as described earlier. This approach does not establish clear bases for the exceptions, which are often added on a piece- meal basis to address a particular situation. We recommend the creation of two categories of nonconformities at the outset. such distinctions make it clear when the nonconformity must be eliminated to protect the public health and safety and can provide a basis for amortizing the nonconformity. The second category, benign nonconformities, still requires specific consider- ation, but is not intended for elimination. Regulations that are adopted after a delib- erative process can clearly describe those situ- ations which are both nonconforming and detri- mental. in such cases, it should be the policy and goal of the local government to eliminate such nonconformities. A detrimental nonconformity is presumed to be harmful to the abutting proper- ties, the surrounding neighborhood, or the com- munity as a whole. if this is the case, regulations should clearly lead to elimination of the noncon- formity for the protection of the public. Therefore, appropriate regulations for detrimental nonconformities would do the following: • Prohibit any expansion of the principal build- ing, accessory buildings, or site features. Con- tinued investment in the property is contrary to the intent to eliminate the nonconformity. This massage parlor in a low-density residential neighborhood is a detrimental nonconforming use. The traffic, lights, and noise generated by this use can have a harmful effect on the surrounding neighborhood. Benign nonconformities are often unnoticed because the nonconformity is so similar to surrounding uses. Thus, there is no harm to the public in the continuation of the nonconforming situation. Jo h n svo b o d a kri s M o r l e y Page 45 VoL. 26, no. 11 zoning Practice is a monthly publication of the American Planning Association. subscriptions are available for $85 (u.s.) and $110 (foreign). W. Paul Farmer, f a i c p , executive Director; William R. klein, a i c p , Director of Research zoning Practice (issn 1548–0135) is produced at APA. Jim schwab, a i c p , and David Morley, a i c p , editors; Julie Von Bergen, Assistant editor; Lisa Barton, Design and Production. Copyright ©2009 by American Planning Association, 122 s. Michigan Ave., suite 1600, Chicago, iL 60603. The American Planning Association also has offices at 1776 Massachusetts Ave., n.W., Washington, D.C. 20036; www.planning.org. All rights reserved. no part of this publication may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the American Planning Association. Printed on recycled paper, including 50-70% recycled fiber and 10% postconsumer waste. zoningpractice 11.09 AmericAN PlANNiNg AssociAtioN | page 7 Cover photo collage designed by Lisa Barton; photos (clockwise): gas sign, © istockphoto.com/Paul hart; house, © istockphoto.com/jtc215; liquor store, John svoboda; auto repair shop, kris Morley. • Prohibit any addition of site features, unless such features actually reduce the nonconformity. An example of this would be adding parking when part of the nonconformity is that there are too few parking spaces. Another example is the addition of landscaping, either to the parking lot or the entire site, when part of the nonconformity is failure to have required landscaping. • Prohibit any extension of the use to other parts of buildings or the site that were not occu- pied by the nonconforming use at the time the regulations changed. • Prohibit a change of use to any use that is not permissible in the zoning district. • establish the shortest feasible time for va- cancy before new occupancy requires compli- ance with the current standards. • establish the strictest feasible limit on re- construction after a disaster to ensure that the reconstruction conforms to current standards. • establish the strictest feasible limit on re- construction following voluntary demolition to ensure that the reconstruction conforms to cur- rent standards. This procedure ensures an opportunity for public participation and allows for the ad- dition of conditions to approval. For example, a property that is nonconforming due to a de minimis setback deviation and lack of adequate landscaping is eligible for expan- sion. however, the board can require that the landscaping be brought to current standards as a condition of approval of the building ex- pansion. The setback nonconformity continues unchanged. The public welfare is improved and the property owner can make economic use of the property. Thus, appropriate regulations for benign nonconformities would do the following: • Allow expansions of the principal building, accessory buildings, or site features, provided that the expansions are conforming to current standards. • Allow the addition of site features that con- form to current standards. • Allow extension of the use to other parts of buildings or the site. increasingly, we see the need to focus on impact, character, compatibility, and urban form—which means that a nonconformity may not be unwelcome in a neighborhood. georgia, also has an overlay district to avoid creation of nonconformities, although it is not labeled a nonconforming overlay, as is the case in san Leandro. Lompoc, California, clas- sifies nonconformities into groups A and B to distinguish detrimental from nondetrimental situations. concLUsions This article makes the case for two categories of nonconformities—detrimental and benign— with separate regulations for each category. While the initial basis for nonconformities continues to exist, many local governments are seeking ways to retain and even encour- age the continuance of nonconformities that are not harmful or unsafe. The distinction between nonconformities that are detrimental and destined for elimination and noncon- formities that are benign and even desirable renders the regulations more meaningful for property owners and easier to administer by the local government. in contrast, the local government may determine that a benign nonconformity is not harmful to the abutting properties or surround- ing neighborhood, but is contrary to the public welfare in some way. Just as a variance is a pro- cess to authorize a deviation from development standards, recognition of a benign nonconfor- mity authorizes a deviation from development standards and does not require elimination of the nonconformity. We further recommend that changes to benign nonconformities should not be permis- sible by right, but rather must be authorized by a board of adjustment, similar to the process for authorizing a variance. The justification for granting a variance is different than the justifi- cation for changes to benign nonconformities. Therefore, a change to property categorized as a benign nonconformity should not be authorized as a variance. however, we recommend that the process for the two situations, variances and modifications to benign nonconformities, could be similar. • Allow a change of use to a permissible or conditional use in the zoning district. • Allow vacancy of the property for any period of time, provided that the property is properly maintained to ensure safety. • Allow reconstruction to restore existing con- ditions following a disaster. The idea of categorizing nonconformi- ties as detrimental and benign is a new way of labeling nonconformities, but it is not an altogether new idea. For example, Cape Canaveral, Florida, allows some noncon- formities to be modified through a special permit. in establishing this provision, the city recognizes that some nonconformities do not have a detrimental impact on the com- munity. san Leandro, California, has a list of exceptions to nonconformity provisions along with an overlay district for nonconform- ing situations. identifying exceptions to the nonconformity provisions is a typical method of addressing benign, or nondetrimental, nonconforming situations. Lowndes County, Page 46 does your community distinguish between detrimental and benign nonconformities? Zo n i n g Pr a c t i c e AM E R I C A N P L A N N I N G A S S O C I A T I O N 12 2 S . M i c h i g a n A v e . Su i t e 1 6 0 0 Ch i c a g o , I L 6 0 6 0 3 17 7 6 M a s s a c h u s e t t s A v e . , N . W . Wa s h i n g t o n , D . C . 2 0 0 3 6 zONING Practice NOvEMbER 2009 AMERICAN PLANNING ASSOCIATION 11 issue number 11 Practice nonconformities 11Page 47 Page 48 Page 49 37204018 3510 4800 4510 4800 3921 4801 3510 24 5 5 28092809 24 3 5 24 4 5 23 5 5 23 5 9 23 6 3 23 6 5 23 6 7 23 7 5 23 9 5 24 2 5 24 7 5 25 2 5 46 1 2 25 4 5 36 2 1 41 2 1 41 1 7 24 4 4 41 0 1 41 0 5 45 2 1 1 41 1 5 40 2 3 42 0 1 41 1 1 40 1 9 5 40 1 5 11 40 1 1 46 2 1 40 0 5 39 0 7 40 0 1 39 2 1 24 7 4 39 0 5 3100 39 0 1 42 0 5 35 1 1 38 1 7 2 1125 23 3 2 38 1 3 7 37 1 5 37 1 9 290838 0 9 3620 46 1 1 8 37 2 3 10 9 26 3 3 1119 38 0 1 38 0 5 26 3 5 36 1 5 10 0 6 1008 3612 43 0 1 4229 3 23 4 2 24 2 5 23 4 8 24 3 4 4 3620 4201 23 5 2 42 1 7 24 5 4 23 5 8 4400 4104 4400 1 0 1 8 4300430647 1 3 23 6 2 1014 4316 1096 4408 1 0 1 9 4312 4411 1112 1070 1015 4410 42 2 1 4326 1012 2920 4750 4416 35 1 9 35 1 5 4320 35 2 1 4206 1124 4203 3101 4308 2700 4403 4217 4326 4426 4400 4325 1108 4211 4307 4204 1011 4409 4226 1010 4321 4430 101 6 4210 4230 4216 4302 4220 4304 4308 2809 1088 25 4 0 4205 1116 1118 4207 4323 4315 4307 42154225 4319 4221 35 6 7 35 6 9 1 0 0 5 1 0 0 4 4202 35 7 1 42294301 4313 4425 4420 4325 4220 4317101810201022 4212 4208 4320 1114 4216 4314 35 7 3 25 6 4 6 3114 47 1 5 1092 10 0 3 1091 35 7 5 1 0 2 0 1009 1084 1087 4200 1120 4112 41084118 4221 10 0 2 4201 1083 10 0 1 10 1 7 4044 40 2 6 46 1 1 1121 40 2 8 4720 3636 2809 3620 42 1 4 42 1 6 43 1 8 43 2 0 4042 4012 4008 4030 4010 40144032 4040 40364038 26 4 0 3638 26 2 4 3654 472647244722 45 1 5 1138 3622 1100 36243626 3628 3634 3652 3640 3642 3644 3646 2641 3648 1018 45 1 9 2639 1101 1105 37 0 1 2629 3004 1123 2627 3012 3008 1043 10201022 10 2 1 10 0 8 1057 1041 10 2 5 1030 1112 11261122 1026 11 1 6 1101 45 1 7 1053 10 2 3 1028 1124 11 1 4 1045 1106 110010421047 1010 1103 10 0 0 1051 10141012 1016 10 0 2 10 0 4 44 2 0 1115 44 1 8 45 0 6 45 0 4 1113 1049 10 0 6 1113, 1115 1109,1111 111 7 111 9 45 0 0 45 0 2 1123 34 1 9 1137 34 2 1 1027 11181120 1024 11291127 113511331131 1125 10331031 103910371035 1029 11361134 1038 11061104 1036 1032 1132 1108 1130 1040 1110 1102 1128 1034 1005 1109 1107 1111 1123 1017 1023 1055 4006 23 6 6 2575270127112727 290129092917292130093015311532013211 3407 33213401 34 2 5 35 0 5 3301 35 2 5 37 1 1 4211,4215 43 0 7 4401 4511, 450545 1 3 4605 1110 11091115 10241028 1105 1101 1019 1015 1023 1019 10101015 1000100410081010101210141016 100310051007100910111013 4404 4410 4408 4404 4324 4316 4310 4222 4218 4210 4206 4200 1104 1102 1103 1105 1107 4034 4016 40044002 3904 3912 3650 3632 3630 35 9 4 3450 321 2 - A 3400 32103908 39 0 8 3700 3740 3614 3616 3618 359836003602 36 0 4 36 0 6 35 9 6 3420 3310 3 3 0 0 3224-B 32153221 29 1 2 29 1 4 29 1 6 2565 3200 23 8 8 GSD GSD GSDGSD GSD RE RMH RMH RML RML RML RML RML RMM RMM RMMRS RS RS RS RS 601 7 7 2 8 7 FO R S Y T H S T R E E T GRAND CT. 40 2 4 40 2 2 40 2 0 S OCEAN BLVD S O C E A N A L Y BELLIDODR HIG H L AND B E A C HDR INTRACOASTAL DR TRANQUILITY DR BOCA COVELN G R AND CT S OCEAN BLVD RU S S E L L D R S OCEAN BLVD BE L A I R D R N OCEAN BLVD S OCEAN BLVD LEGEND - HIGHLAND BEACH ZONING CODE GSD Government Services District RE Residential Single Family Estates Lots RMH Residential Multiple Family High Density RML Residential Multiple Family Low Density RMM Residential Multiple Family Medium Density RS Residential Single Family TOWN OF HIGHLAND BEACHOFFICIAL ZONING MAP A T L A N T I C O C E A N I N T R A C O A S T A L W A T E R W A Y B O C A R AT O N D E L R AY B E A C H TOWN COMMISSION -----------------------------------------------BERNARD FEATHERMAN, Mayor -----------------------------------------------WILLIAM WEITZ, PhD, Vice Mayor -----------------------------------------------LOUIS P. STERN, Comm. -----------------------------------------------CARL FELDMAN, Comm. -----------------------------------------------RHODA ZELNIKER, Comm. PLANNING BOARD ------------------------------------------------CAROL STERN, Chair ------------------------------------------------ILYNE MENDELSON, Vice Chair -------------------------------------------------RONALD CLARK -------------------------------------------------STEPHEN GOLDING -------------------------------------------------HARVEY MART -------------------------------------------------CHARLES SHANE -------------------------------------------------WILLIAM SVENSTRUP ATTESTATION -----------------------------------------------VALERIE OAKES, Town Clerk ADOPTED ----------------------------------------------- ORDINANCE NO--------------------------------------- THIS IS TO CERTIFY THAT THIS IS THE OFFICIAL ZONING MAP OF THE TOWN OF HIGHLAND BEACH AS ADOPTED BY ORDINANCE NO. 594, AND IS AN AMENDMENT OF THE OFFICIAL ZONING MAP REFFERED IN SECTION ONE OFORDINANCE NO. 503 OF THE TOWN OF HIGHLAND BEACH, FLORIDA. SCALE µ 0 500 1,000 1,500 2,000 2,500 3,000Feet 1 inch = 500 feet Print Date: July 17, 2015 1001 /4 5 2 3 38 3 3 -------~-- / I I I _J_ i----T-=-;;:_=-=-=r~~--l~L=-~~__g=~~ [ ----------- /'(~ ---- Page 50 Page 51 VACANT PARCEL 4611 S OCEAN BLV. Charles Putman & Associates, Inc. Land Planning Services PLANNING ‐ ZONING ‐ PERMITTING   NORTH4611 S OCEAN BLV. Page 52 Sold To: Town of Highland Beach - CU00398185 3614 So. Ocean Blvd. Highland Beach,FL 33487 Bill To: Town of Highland Beach - CU00398185 3614 So. Ocean Blvd. Highland Beach,FL 33487 Published Daily Fort Lauderdale, Broward County, Florida Boca Raton, Palm Beach County, Florida Miami, Miami-Dade County, Florida State Of Florida County Of Orange Before the undersigned authority personally appeared Rose Williams, who on oath says that he or she is a duly authorized representative of the SUN- SENTINEL, a DAILY newspaper published in BROWARD/PALM BEACH/MIAMI-DADE County, Florida; that the attached copy of advertisement, being a Legal Notice in: The matter of 11720-Notice of Public Meeting , Was published in said newspaper by print in the issues of, and by publication on the newspaper¶s website, if authorized on Jan 21, 2024 SSC_Notice of Public Meeting Affiant further says that the newspaper complies with all legal requirements for publication in Chapter 50, Florida Statutes. Signature of Affiant Sworn to and subscribed before me this: January 22, 2024. Signature of Notary Public Name of Notary, Typed, Printed, or Stamped Personally Known (X) or Produced Identification ( ) Affidavit Delivery Method: E-Mail Affidavit Email Address: lgaskins@highlandbeach.us 7564777 SUN-SENTINEL Page 53 Order # - 7564777 SUN-SENTINEL Page 54 SUN-SENTINEL Page 55 Page 56 TOWN OF HIGHLAND BEACH NOTICE OF PUBLIC HEARING APPLICATION NO. APP23-2790 500 Ft Public Notification Boundary January 15, 2024 Dear Property Owner: This is to notify you that the BOARD OF ADJUSTMENT AND APPEALS of the Town of Highland Beach will conduct a public hearing on Wednesday, January 31, 2024 at 9:30 AM and the Town Commission will conduct a public hearing on Tuesday, February 20, 2024 at 1:30 PM in the Community Room of the Town Library located at 3618 South Ocean Boulevard, Highland Beach, Florida to consider the following application: APPLICATION NO. 23-2790 BY FRANK AND LAURA TROIANO FOR A VARIANCE FROM SECTION 30-103(D) AND SECTION 30-64 OF THE TOWN CODE OF ORDINANCES TO CREATE A LOT WITH A MINIMUM LOT WIDTH OF 68.06 FEET IN LIEU OF THE REQUIRED 80 FOOT MINIMUM LOT WIDTH FOR A SINGLE-FAMILY DWELLING IN THE RESIDENTIAL MULTIPLE FAMILY LOW DENSITY (RML) ZONING DISTRICT FOR THE PROPERTY LOCATED AT 4611 SOUTH OCEAN BOULEVARD (WEST SIDE OF STATE ROAD A1A). The application is available for inspection in the Town Clerk’s Office at Town Hall, Monday through Friday during normal business hours of 8:30 a.m. to 4:30 p.m. and will be on the Town’s website at https://highlandbeach-fl.municodemeetings.com/ no later than Friday, January 26, 2024. Any person that decides to appeal any decision made by the Town Commission with respect to any matter considered at this meeting, such person will need to ensure that a verbatim record of the proceeding is made, which includes the testimony and evidence upon which the appeal is based. The Town of Highland Beach does not provide such a record. In accordance with the Americans with Disabilities Act, persons who need special accommodation to attend or participate in this meeting should contact the Town Clerk’s Office at (561) 278-4548 at least 48 hours prior to the meeting. If you are hearing or speech impaired, please contact the Florida Relay Service at 1-800-955-8770 or 1-800-955-8771. For additional information, please contact the Town Planner at (561) 278-4540. TOWN OF HIGHLAND BEACH, BUILDING DEPARTMENT Page 57 Additional Information for Item 8.F January 31 , 2024 Board of Adjustment and Appeals Meeting TORCIVIA, DONLON, GODDEAU & RUBIN, P.A. 701 Northpoint Parkway, Suite 209 West Palm Beach, Florida 33407-1950 561-686-8700 Telephone/561-686-8764 Facsimile www.toreivialaw.com Glen J.Torcivia Jennifer H.R.Hunecke Lara Donlon Susan M.Garrett Cluisty L.Goddeau* Elizabeth V.Lenihan* Leonard G.Rubin* Ruth A.Holmes Ben Saver *FLORIDA BAR BOARD CERTIFIED Tanya M. Earley CITY COUNTY AND LOCAL GOVERNMENT ATTORNEY Daniel Harrell,OI'Counsel TOWN OF HIGHLAND BEACH BOARD OF ADJUSTMENT AND APPEALS ORIENTATION GOVERNMENT IN THE SUNSHINE LAW What is the Government in the Sunshine Law? The Government in the Sunshine Law, as codified in section 286.011, Florida Statutes, provides a right of public access to governmental proceedings at the state and local levels. When does the Sunshine Law apply? A. The Sunshine Law applies to any gathering of two or more members of the same municipal board to discuss some matter which foreseeably may come before that board for action. B. The Sunshine Law applies to advisory boards created by the Town Commission, even when the recommendations of such boards are not binding on the Commission. What are the basic requirements of the Sunshine Law? As applied to municipal boards, the Sunshine Law has three basic requirements: A. All Meetings Must be Open to the Public (1) Public meeting cannot be held at any facility that discriminates on the basis of sex, age, race, creed, color, origin or economic status, or which operates in such a manner as to unreasonably restrict public access. Additional Information for Item 8.F January 31 , 2024 Board of Adjustment and Appeals Meeting (2) Public has right to record public meetings (video and audio) so long as such recording is not disruptive. B. Public Must be Given Reasonable Notice of Such Meetings (1) No "bright line" test for what constitutes reasonable notice. Type of notice required depends on the particular facts and circumstances. In some instances, posting is sufficient. In others, publication in a newspaper may be necessary. (2) The Sunshine Law does not require that a public agency provide notice of each item to be discussed at a public meeting via a published agenda. Such a requirement would preclude access to meetings by members of the general public who wish to bring specific issues before a governmental body. C. Minutes of the Meeting Must be Taken (1) Minutes of public meeting, including workshop meetings, must be promptly recorded and open for public inspection. (2) The use of the term "minutes" contemplates a brief summary or series of brief notes or memoranda reflecting the events of the meeting (also known as "action minutes"). (3) No requirement that meetings be recorded; however, once recordings have been made, they are public records and subject to public records retention schedule established by the Department of State. What are the practical applications of the Sunshine Law to members of municipal boards? A. Two or more members of the same board cannot privately "discuss" any matter that will foreseeably come before the board for official action, regardless of when or where the discussions take place. ALL CONVERSATIONS REGARDING BOARD BUSINESS MUST OCCUR DURING THE COURSE OF A PUBLIC MEETING. (1) This prohibition includes conversations at informal gatherings, all telephone conversations, and all exchanges of written communications, including e- mails and texts. (2) Members of the same board may not have any private discussions or communications relating to issues before the board before or after the board meeting. Additionally, such discussions are prohibited during the meeting Torcivia,Donlon,Goddeau&Rubin,P.A.,701 Northpoint Parkway,Suite 209,West Palm Beach,Florida 33407 (561)686-8700-(561)686-8764(facsimile) Additional Information for Item 8.F January 31 , 2024 Board of Adjustment and Appeals Meeting (including recesses) if such discussions are not audible to the public attending the meeting. Such discussions or communications violate the letter and spirit of the Sunshine Law. Note: This prohibition specifically includes any "off-microphone" discussions between board members and the exchange of written notes, e- mails, or text messages during the course of a meeting. (3) Members of the same board are not precluded from attending social or business functions together so long as board matters are not addressed at such functions. (4) Members of one board are not prohibited from attending meetings of another municipal board and commenting on agenda items that may subsequently come before their board for final action so long as the members do not discuss the items among themselves. For example, members of the Town Commission may attend advisory board meetings and comment upon items. AGO 00-68. B. Board members may discuss board matters with the Town Manager, members of Town Staff, legal counsel, or a member of a different board (including members of the Town Commission). However, the Town Manager (or any other non-board member) may not act as a liaison for board members by circulating information and the thoughts of the individual board members. AGO 74-47. C. Members of a municipal advisory board are not prohibited from conducting "inspection trips" to view properties or other matters that are the subject of board action, but members may not take such trips together or discuss such inspections prior to the public meeting. E. A member of a Town board who is present at a meeting of that body at which an official decision, ruling or other official act is to be taken or adopted may not abstain from voting. A vote shall be recorded or counted for each such member present, except when there is or appears to be a conflict of interest or voting conflict. §286.012, Fla. Stat. Failure to vote, however, does not invalidate the proceeding. City of Hallandale v. Ravel Corporation, 313 So. 2d 113 (Fla. 4th DCA 1975). Note: When a member of a local advisory board is required to abstain, the member is disqualified from voting and may not be counted for the purposes of determining a quorum. AGO 86-61. 5. What are the consequences for a violation of the Sunshine Law? A. Criminal penalties: A knowing violation of the Sunshine Law is a second-degree misdemeanor and is punishable by up to 60 days in jail and/or a fine not exceeding $500.00. Torcivia,Donlon,Goddeau&Rubin,P.A.,701 Northpoint Parkway,Suite 209,West Palm Beach,Florida 33407 (561)686-8700-(561)686-8764(Facsimile) Additional Information for Item 8.F January 31 , 2024 Board of Adjustment and Appeals Meeting B. Civil penalties: Noncriminal violations of the Sunshine Law are punishable by a fine not exceeding $500.00. The state attorney may pursue such actions on behalf of the state. AGO 91-38. C. Attorney's fees: Attorney's fees may be assessed against both the board and the individual members when sued for a Sunshine Law violation (except that the individual board members are not liable for attorney's fees where the board sought, and took, the advice of its attorney). D. Effect on board action: Any action taken by a board in violation of the Sunshine Law is invalid and of no effect. A violation can be cured by independent final action (as opposed to mere ratification) in the sunshine. Tolar v. School Board of Liberty County, 398 So. 2d 427 (Fla. 1981). E. Civil action for declaratory or injunctive relief: A civil action for declaration or injunctive relief can be pursued by any citizen of the state. The mere showing that the Sunshine Law has been violated constitutes "irreparable injury." PUBLIC RECORDS LAW 1. What are public records? A. Public records include all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. §119.011(11), Fla. Stat. B. This definition encompasses all materials made or received by the Town or Town officials in connection with official business which are used to perpetuate, communicate, or formalize knowledge. Shevin v. Byron, Harless, Schaffer, Reid and Associates, 379 So. 2d 633 (Fla. 1980). All such records, irrespective of whether they are in final form, are open to public inspection unless the Legislature has exempted them from disclosure. Wait v. Florida Power& Light Co., 372 So. 2d 420 (Fla. 1979). 2. How does this apply to communications by members of the Board of Adjustment and Appeals? A. Notes and Draft Documents The scope of the Public Records Act includes any materials received or created by a member of the Board that relate to Town business, including draft documents and hand-written notes if intended to communicate, Torcivia,Donlon,Goddeau&Rubin,P.A.,701 Northpoint Parkway,Suite 209,West Palm Beach,Florida 33407 (561)686-8700-(561)686-8764(facsimile) Additional Information for Item 8.F January 31 , 2024 Board of Adjustment and Appeals Meeting perpetuate or formalize knowledge of some type. See AGO 05-23 (handwritten notes prepared by assistant city labor attorney during interviews with city personnel are public records when those notes are used to communicate information with the labor attorney). Notes are only exempt if they are designed for the employee's or officer's own personal use. Coleman v. Austin, 521 So. 2d 247 (Fla. 1st DCA 1988). B. Mail All materials received by the Town or by a member of a Town Board that relate to official Town business are public records and subject to disclosure and inspection by members of the public in the absence of an exemption. Note: Once mail addressed to a member of a Town board is received by the Town, the Town has an obligation to open such mail and determine whether it constitutes a public record. If it does constitute a public record, the Town must maintain a copy. See AGO 2004-43 (mail addressed to a mayor or city council member at city hall and received at city hall may not be forwarded unopened to the private residence of the mayor or council member). C. Electronic Mail and Text Messages Electronic mail or text messages made or received in connection with official business are public records and subject to disclosure in the absence of an exemption. E-mail addresses are public records once they are received by a public agency, public employee, or public official in connection with agency business. Note: The Florida Supreme Court has ruled that private e-mail stored on government computers does not automatically become a public record by virtue of that storage. State v. City of Clearwater, 863 So. 2d 149 (Fla. 2003). D. Attorney-Client Communications The Public Records Act applies to communications between attorneys and government agencies; there is no judicially created privilege that exempts these documents from disclosure. City of North Miami v. Miami Herald Publishing Co., 468 So. 2d 218 (Fla. 1985). There is a limited exemption for attorney work product, specifically defined as: A public record that was prepared by an agency attorney or prepared at the attorney's express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared Torcivia,Donlon,Goddeau&Rubin,P.A.,701 Northpoint Parkway,Suite 209,West Palm Beach,Florida 33407 (561)686-8700-(561)686-8764(facsimile) Additional Information for Item 8.F January 31, 2024 Board of Adjustment and Appeals Meeting exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial proceedings. § 119.071(1)(d)1, Fla. Stat. Note: Work product developed by the public employer in preparation for collective bargaining negotiations, and during negotiations, shall be confidential and exempt from disclosure pursuant to the Public Records Law. §447.605(3), Fla. Stat. D. Contact Information Home addresses and telephone numbers of members of the Board are not exempt from disclosure unless another exemption applies, such as the exemptions applicable to current or former law enforcement personnel, state attorneys, or human resource personnel. However, social security numbers held by an agency are exempt. PARLIAMENTARY PROCEDURE All Town boards operate in accordance with the basic principles of parliamentary procedure. All actions of the Board must be accomplished via motion. A motion requires two people: a "mover" and a "seconder." To the extent possible, motions should be clear and concise and follow the following basic steps: 1. A member is recognized by the Chair. 2. The member makes a motion. 3. The Chair asks if there is a second to the motion. 4. A member seconds the motion. 5. The Chair repeats the motion (and may restate the motion for clarity). 6. The Chair opens the floor for discussion. 7. All members should be given a chance to discuss the motion and no member should speak for a second time until all members have had a chance to speak. Torcivia,Donlon,Goddeau&Rubin,P.A.,701 Northpoint Parkway,Suite 209,West Palm Beach,Florida 33407 (561)686-8700-(561)686-8764(facsimile) I Additional Information for Item 8.17 January 31 , 2024 Board of Adjustment and Appeals Meeting 8. If there is an amendment proposed to a motion, it should also be accomplished by motion (requires a motion to amend and a second). In the alternative, the mover and seconder can agree to the amendment. If the amendment is passed or agreed upon, discussion on the motion, as amended, can continue. 9. When everyone has had a chance to speak, the Chair should restate the motion and call for a vote by the Board (often a roll call vote), Torcivia,Donlon,Goddeau&Rubin,P.A.,701 Northpoint Parkway,Suite 209,West Palm Beach,Florida 33407 (561)686-8700-(561)686-8764(facsimile)