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PRR 13-0030
Your original request dated September 18 2013 is reproduced in the space below: From: Joel Chandler [ mailto :joel.chandler @fogwatch.org] Sent: Wednesday, September 18, 2013 11:18 AM To: Rita Taylor; Bill Thrasher Subject: THIS IS A PUBLIC RECORDS REQUEST PUBLIC RECORDS REQUEST —TOWN OF GULF STREAM PRR -0003 ATTENTION: Custodian of Public Records for the Town of Gulf Stream Pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119.07 of the Florida Statutes 1 wish to make a public records request of your agency for the following records: Copies of any minutes created by the Town of Gulf Stream and any transcripts prepared by others of the public meeting, Closed Door Session and resumed public meeting of the Town Commission held on July 24, 2013 regarding Martin O'Boyle; and Copies of any minutes created by the Town of Gulf Stream and any transcripts prepared by others of the Special Session of the Town Commission held on July 26, 2013 regarding Martin O'Boyle; and Copies of any minutes created by the Town of Gulf Stream and any transcripts prepared by others of any Session of the Town Commission where discussions included any reference to Martin O'Boyle; and Copies of any minutes created by the Town or Gulf Stream and any transcripts prepared by others of any Closed Door Session of the Town Commission where discussions included any reference to Martin O'Boyle; and Copies of the settlement agreement including drafts and final versions between the Town of Gulf Stream and Martin O'Boyle If you contend that any of the records I am seeking, or any portion thereof, are exempt from inspection or disclosure please cite the specific exemption as required by § 119.07(1)(e) of the Florida Statutes and state in writing and with particularity the basis for your conclusions as required by § 119.07(I)(f) of the Florida Statutes. Please take note of § 119.07(c) Florida Statues and your affirmative obligation to (1) promptly acknowledge receipt of this public records request and (2) make a good faith effort which "includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, ifso, the location at which the record can be accessed." I am, therefore, requesting that you notify every individual in possession of records that may be responsive to this public records request to preserve all such records on an immediate basis. If the public records being sought are maintained by your agency in an electronic format please produce the records in the original electronic format in which they were created or received. See §119.01(2)(0, Florida Statutes. If you anticipate the production of these public records to exceed S 1.00 please notify me in advance of their production with a written estimate of the total cost. Please be sure to itemize any estimates so as to indicate the total number of pages and /or records, as well as to distinguish the cost of labor and materials. All responses to this public records request should be made in writing to the following email address: joel.chandler@FOGWatch.org Best regards, Joel Chandler (863) 660 -4244 joel.chandler @fogwatch.org www.FogWatch.org TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via e-mail December 2, 2013 Joel Chandler (863) 660 -4244 joel.chandier@fogwatch.org www.FogWatch.org Re: PUBLIC RECORDS REQUEST — TOWN OF GULF STREAM PRR -0003 (a.-e.) a. Copies of any minutes created by the Town of Gulf Stream and any transcripts prepared by others of the public meeting, Closed Door Session and resumed public meeting of the Town Commission held on July 24, 2013 regarding Martin O'Boyle; and b. Copies of any minutes created by the Town of Gulf Stream and any transcripts prepared by others of the Special Session of the Town Commission held on July 26, 2013 regarding Martin O'Boyle; and c. Copies of any minutes created by the Town of Gulf Stream and any transcripts prepared by others of any Session of the Town Commission where discussions included any reference to Martin O'Boyle; and d. Copies of any minutes created by the Town of Gulf Stream and any transcripts prepared by others of any Closed Door Session of the Town Commission where discussions included any reference to Martin O'Boyle; and e. Copies of the settlement agreement including drafts and final versions between the Town of Gulf Stream and Martin O'Boyle Dear Mr. Chandler, This letter is attached to an email that provides you with the full responsive production and estimates of public records requested, as listed below, in your email dated September 18, 2013, that we acknowledged on September 20, 2013. This correspondence is reproduced below for your convenience. Also included is an estimate for production of all remaining documents responsive to your request that are not available in electronic format. Item a. — 68, 8' /Z x 11, one sided pages @ $0.15 per page as per Fla. Stat. § 119.07 (4)(a)l, for a total of $10.20, which are available for you to pick up at Town Hall upon payment of this fee. The documents from the public meeting held on July 24, 2013, are attached to this email. Please open the attached file, which includes the document that is responsive to your request. Item b. — The documents from the public meeting held on July 26, 2013, are attached to this email. Please open the attached file, which includes the document that is responsive to your request. Item c. — In addition to the documents included in Items a., b., and d., there are other responsive documents attached to this email. Please open the attached files, which include the documents that are responsive to your request. Item d. — In addition to the documents included in Item a. above, "Closed Door Session... held on July 24, 2013 ", there are 26, 8' /x x 11, one sided pages from a "Closed Door Session" held on September 13, 2013 @ $0.15 per page as per Fla. Stat. § 119.07 (4)(a)l, for a total of $3.90, which are available for you to pick up at Town Hall upon payment of this fee. Item e. — The "final settlement agreement" and "drafts" versions of the "settlement agreement" are attached to this email. Please open the attached files, which include the documents that are responsive to your request. Sincerely, Town Clerk Custodian of the Records The Town's acknowledgement of the above Public Records Request dated September 20 2013 is reproduced in the space below: TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA September 20, 2013 Joel Chandler (863) 660 -4244 i oel.chandlera,fogwatch.or www.FogWatch.org Re: PUBLIC RECORDS REQUEST — TOWN OF GULF STREAM PRR -0003 a. Copies of any minutes created by the Town of Gulf Stream and any transcripts prepared by others of the public meeting, Closed Door Session and resumed public meeting of the Town Commission held on July 24, 2013 regarding Martin O'Boyle; and b. Copies of any minutes created by the Town of Gulf Stream and any transcripts prepared by others of the Special Session of the Town Commission held on July 26, 2013 regarding Martin O'Boyle; and c. Copies of any minutes created by the Town of Gulf Stream and any transcripts prepared by others of any Session of the Town Commission where discussions included any reference to Martin O'Boyle; and d. Copies of any minutes created by the Town of Gulf Stream and any transcripts prepared by others of any Closed Door Session of the Town Commission where discussions included any reference to Martin O'Boyle; and e. Copies of the settlement agreement including drafts and final versions between the Town of Gulf Stream and Martin O'Boyle Dear Joel Chandler, The Town of Gulf Stream has received your public records request dated September 18, 2013. If your request was received in writing, then the first page of that request is attached to this cover letter. If your request was verbal, then the description of your public records request is set forth in the space below. Our staff will review your request within the next three business days, and we will promptly send you the appropriate response or an estimated cost to respond. Sincerely, Town Clerk Custodian of the Records I SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT (Agreement) is entered into, by and between the parties listed on Exhibit A in the column titled "PARTIES" (hereinafter collectively referred to as "Plaintiffs') and the Town of Gulf Stream, a municipal corporation of the State of Florida, whose address is 100 Sea Road, Gulf Stream, Florida 33483 (the "Town ") and is executed by the Town and the Plaintiffs this _ day of July, 2013 (the "Effective Date "). The Town and the Plaintiffs shall be collectively known as the "parties" WHEREAS, it is the desire of the parties to this Agreement to resolve all disputes, appeals and pending litigation relating to the cases referenced in the column titled "CASES" on Exhibit "A" attached hereto (the "Cases "); and WHEREAS, on behalf of the Plaintiffs, Martin E. O'Boyle (O'Boyle) presented to the Town Commission a proposal to settle the "Cases' ; and WHEREAS, the Town Commission has reviewed the proposal for settlement and wishes to settle the Cases and to resolve other matters as set forth herein on the terms set forth herein: and WHEREAS, it is the intention of the Plaintiffs and the Town to be bound to the terms of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and conditions herein expressed, and for the other good and valuable consideration the receipt and sufficiency of which is acknowledged and confirmed, the parties, intending to be legally bound, hereby agree as follows: F 1. The Town recognizes that the Plaintiff O'Boyle believes that the Town did not apply a correct interpretation of its Code of Ordinances (the Code) as it pertains to 23 North Hidden Harbour Drive, Gulf Stream, Florida (hereinafter the "Property ") and the improvements on the Property (hereinafter the "Improvements "). In particular, Plaintiff, O'Boyle argues that the Town did not correctly apply its Code with respect to his request for Development Approval for, inter alia, a Level 3 Architectural /Site Plan (the Application) and such other permissions, approvals, interpretations, clarifications and authorizations relating to the Property (the "Approvals ") to demolish and construct the Improvements upon the Property as contemplated. . 2. The Town recognizes that its interpretation of the Code, including, without limitation, the current setback regulations established therein may not enable the Plaintiff O'Boyle, or a subsequent purchaser to rebuild or renovate the Improvements, including, without limitation, the home; or enable O'Boyle or a subsequent purchaser to demolish the Improvements, including, without limitation, the home and construct Improvements, including, without limitation, a new home. Accordingly, in order to resolve the Cases between the Plaintiffs and the Town, the Town agrees that the lot coverage, floor area ratio, height, and setback of, inter alia, the home's entry feature shall be permitted in accordance with the plans submitted with the Application a Level 3 n, tit t,,. ve;te plaRG (WhiG atta..tied to the ppliGatien) (the "Plans "), which Application and Plans shall be an exhibit to the Development Agreement (the "Development Agreement "). The purpose of the Town's adoption of the 0 the Development Agreement is to permit, inter alia, the floor area ratio, height of the home's entry feature, and front setback in accordance with the interpretation advanced by O'Boyle counsel in the argument portion of O'Boyle's Petition for Writ of Certiorari. The Development Agreement will also recognize that the Property's (including its Improvement's) setbacks will not be measured from the point of measurement currently established in the Code; but will be measured in accordance with a survey attached to and incorporated into the Development Agreement which establishes ftGm the actual Rproperty lines for building purposes. It is also the purpose of the Development Agreement to facilitate the Plaintiff's or subsequent owner's demolition, rebuilding or renovation of the Improvements, including, without limitation, the existing home, or the construction of Improvements, including, without limitation, a new home. The Development Agreement shall be substantially in the form provided for in Section 163.3220, Fla. Stat.± ^mar ntc of the erFe nta ed he The D 1 t A 1 .,jre �n P^T � i amoRg ether things shell allew the Plaintiff 9F a h^ ^t owneF to d I' h rebuild FP—AGV;3tP- the ImerevementC inGludiRg, without IimitatiGR, the heme t t t GF impFevements, „chiding, without liFnitatiOR, a Rew heMe SUGh that the i ♦ th L ..t m e.1 a nth• established 'n the Gede 3. Both the Town and O'Boyle agree to act in good faith to promptly enter into the Development Agreement p r ent to ce..t•en ,a2 2220 PI -A STAT (2013 3 this AgFeeFneRt Fe aced to the Preperty and so as to facilitate the construction of the Improvements upon the Property as set forth in the Application; and such other terms which are customary for Development Agreements in the Town for similar type Properties and improvements contemplated under the Application. The Town-agrees to execute the Development Agreement as soon as practicable within Floirda Statutes, but in no event later that within 60 days from the date of this Agreement. 4. The Town agrees to waive any fees the Plaintiff might normally incur which are associated with the Development Agreement, the Application, the Approvals and any fines or assessments resulting from any violations existing at the Property, including, without limitation, the alleged violations set forth on the attached Exhibit B. 5. The parties recognize that a complete settlement of the issues associated with renovation reconstruction, or demolition and new construction the rna#pmg GIPfiRP -d AS .,Gent,... ent Mattel :! cannot be achieved unless and until the Town Commission executes the Development Agreement, which the parties agree shall occur on the sooner to occur of sixty days from the day of this Agreement or the date that the Town Commission adopts exeGutes the Development Agreement at a public meeting.The Plaintiffs agree not to proceed with discovery in any of the existing lawsuits, or He any further lawsuits, appeals, or to take any administrative enforcement actions, except in connection with the Plaintiffs enforcement of this Agreement, before the Development Agreement is adopted by the Commision and executed by the parties. 6. Upon the execution of this Agreement by the Plaintiff's, the Town agrees to (within °A h^• Fs) pay O'Boyle $180,000.00 within five days, in readily available funds by Federal Wire Transfer pursuant to Wire Transfer Instructions as designated by O'Boyle, which wire instructions are attached as Exhibit C. . r8ill — our understanding is that the wire must be to Mr. O'Boyle individual and not to one of his corporate entitites — can you confirm ?l 7. Upon execution of this Agreement, the Town agrees that O'Boyle the Plans shall be deemed to have been approved, and O'Boyle may with the Im provements as reflected in the Plans can •^^^°•+ to impFeve the o•^peFty iR 8. Within five days after the execution of this Agreement, the Plaintiffs shall dismiss with prejudice the Cases. 9. Upon execution of the Agreement. O'Boyle shall promptly (a) remove all signs from the Property other than approved address signs, and (b) within twenty days remove all murals on the exterior of his home and return the color of the paint on the home to the color that existed previously. 10. Plaintiffs agree that upon execution of this Agreement, all pending public record requests made to the Town shall be deemed withdrawn. R 11. In the event any of the Plaintiffs or the Town are required to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney fees through the appellate level. 12. RELEASESIAll (A) The Plaintiff's Release of the Town. On the Effective Date , the Plaintiffs shall execute and deliver a general release in favor of the Town, which release is attached as Exhibit "D1" attached hereto (the "Town Release "). (B) The Town's Release of Plaintiff's. On the Effective Date, the Town shall execute and deliver a general release in favor of the Plaintiff's, which release is attached as Exhibit "D2" attached hereto (the "Plaintiffs Release "). 13 Representations and Warranties of the Plaintiff's. Each of the Plaintiffs represents and warrants to the Town as follows: (a) that the representing Plaintiff has not sold, assigned, transferred or otherwise disposed of any claims that any of the Plaintiff's had against the Town before the Effective Date; 0 (b) that the Plaintiffs each represent that they have the full right, power, legal capacity and authority to enter into this Agreement and to consummate the transactions described in this Agreement as they apply to such Plaintiff; and (c) this Agreement has been duly and validly executed and delivered by the Plaintiffs and constitutes a legal, valid and binding obligation, enforceable against the Plaintiffs in accordance with its terms. 14.. Representations and Warranties of Town. The Town represents and warrants to each of the Plaintiff's as follows: (a) that the Town has not sold, assigned, transferred or otherwise disposed of any claims that the Town had, before the Effective Date against all or any of the Plaintiffs; (b) that the Town has the full right, power, legal capacity and authority to enter into this Agreement and to consummate the transactions described in this Agreement; and 7 (c) this Agreement has been duly and validly executed and delivered by the Town and constitutes a legal, valid and binding obligation, enforceable against the Town in accordance with its terms. 15. Covenant Not to Sue. (a) Each of the Plaintiffs covenant and agree not to institute any litigation or arbitration against the Town for any matter or thing which is within the scope of the Town Release, as attached as D1. (b) The Town covenants and agrees not to institute any litigation or arbitration against any or all of the Plaintifs for any matter or thing which is within the scope of the Plaintiff's Release, as attached as D2. 16. Continuation and Survivability of Representations ,Warranties and Covenants. The representations, warranties and covenants contained in this Agreement shall survive the consummation of the transactions provided for in this Agreement 17. Indemnification. The Plaintiffs, jointly and severally, agree to defend, indemnify and hold the Town harmless from and against and in respect of any and all claims, suits, losses, liabilities, taxes, damages, deficiencies and expenses (including reasonable attorneys' fees) of any kind or nature (collectively, "Town Claims') which the Town may suffer, sustain or become subject to by reason of, arising out of, or in connection with: (a) the inaccuracy or breach of any of the representations and warranties of the Plaintiffs set forth in this Agreement; and (b) the breach by any of the Plaintiffs of any provision, covenant or agreement contained in this Agreement or any document, instrument or agreement contemplated hereby. 18. Indemnification. Subject to Section 768.28, Fla. Stat., The Town, jointly and severally, agree to defend, indemnify and hold the Plaintiffs harmless from and against and in respect of any and all claims, suits, losses, liabilities, taxes, damages, deficiencies and expenses (including reasonable attorneys' fees) of any kind or nature (collectively, the "Plaintiffs's Claims ") which any of the Plaintiffs may suffer, sustain or become subject to by reason of, arising out of, or in connection with: (a) the inaccuracy or breach of any of the representations and warranties of the Town set forth in this Agreement; and (b) the breach by the Town of any provision, covenant or agreement contained in this Agreement or any document, instrument or agreement contemplated hereby. 19. Notice of Default. No default shall have occurred under this Agreement until the defaulting party shall have been given 10 -days written notice to cure. If the cure is such that is will reasonably take longer than 10 -days and the defaulting party is pursuing the cure with diligence, then time within which to cure any such default shall be 9 extended for such period as may be necessary to complete the curing of the default, providing that diligence and continuity are being used. 20. No Third Party Beneficiaries. This Agreement shall not create rights in any third -party beneficiary nor confer any benefit upon or enforceable rights hereunder upon anyone other than the parties and the "Releasees" in the Plaintiffs Release and /or the Town Release. 21. Further Cooperation. The Plaintiff's and the Town agree, at any time and from time to time after the date hereof, upon reasonable request, to perform, execute, acknowledge and deliver all such further documents as may be reasonably necessary or appropriate to carry out the provisions and intent of this Agreement and any document, instrument, or agreement contemplated thereby. 22. Specific Performance. The parties each acknowledge and agree that any breach or threatened breach of the obligation to consummate the transactions contemplated by this Agreement will cause irreparable injury to the other parties hereto and the remedy at law for any breach of such obligations would be inadequate. The parties therefore, agree and consent that the remedy of specific performance should be granted in any proceeding which may be brought to enforce any party's obligations under this Agreement without the necessity of proof that such party's remedy at law is 10 inadequate. Such equitable relief shall not be the aggrieved party's sole remedy but shall be in addition to all other remedies available in law or equity. 23. Voluntary Execution of Agreement. Each of the parties affirms that they are represented by counsel in this matter, that they have read and fully understand all of the terms of this Agreement, and that they are entering into this Agreement voluntarily without having been threatened, coerced or intimidated into the signing of this Agreement. It is further agreed that no provision of this Agreement shall be construed presumptively against any party hereto. 24. Headings. The headings and sub - headings contained in the titles of this Agreement are for convenience only and shall not be interpreted to limit or alter any of the provisions of this Agreement. 25. Governing Law. This Agreement shall be deemed to have been made, executed, and delivered in the State of Florida and shall be construed in accordance with the laws of the State of Florida. 11 26. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns. No party hereto may assign its rights or delegate its obligations under this Agreement without the express prior written consent of the other parties hereto. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon any person, other than the parties and their respective heirs, successors and assigns, any remedy or claim under or by reason of this Agreement or any terms, covenants or conditions hereof. All the terms, covenants, conditions, promises and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties and their respective heirs, successors and assigns. 27. Notices. All notices, requests and demands to or upon the parties hereto shall be in writing and shall be deemed to have been duly given or made: if delivered in person, immediately upon such in person delivery; if by nationally recognized overnight courier service with instructions to deliver the next business day, upon delivery to the receiving party; and if by registered or certified mail, return receipt requested, upon delivery to the receiving party. All notices, requests and demands upon the parties are to be given to the following addresses (or to such other address as any party may designate by notice in accordance with this Section): If to the Town: 12 With a copy to: If to any of the Plaintiffs: Martin E. O'Boyle Commerce Group, Inc. 1280 West Newport Center Drive Deerfield Beach, FL 33442 Facsimile: 954-360-0807 With a copy to: William F. Ring, Jr., Esquire Commerce Group, Inc. 1280 West Newport Center Drive Deerfield Beach, FL 33442 Facsimile: 954 - 360 -0807 28. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute a single agreement, with the same effect as if the signatures thereto and hereto were upon the same instrument. Any facsimiles, photographs or photocopies of this Agreement with all signatures reproduced shall be considered, for all purposes, as if it were an executed original counterpart of this Agreement. 29. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the matters covered and the transactions contemplated hereby. No modification or waiver of any provision of this Agreement shall in any event be 13 effective unless the same shall be in writing and signed by the party to be charged, and then such waiver or consent shall be effective only as stated in writing. 30. Severability. If any term, covenant or condition of this Agreement or the application thereof shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition other than those which are held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforced to the fullest extent permitted by law. 31. RfieRA21 AppFeval. Based E)R the law and faGtS, the Town FeGGgRizes and agFees with O'Boyle that its aGtiORS !R Rat aPPFGving the AppliGatien and in netissuing r�n _. ._ ice_ n_.___..__ ...___ ...:al..d V..:. a. ..... ....i a.. .J....:..:.... .. ............4:.... 32. Time is of the Essence. The dates and times for performance of all of the obligations hereunder shall be deemed of the essence of this Agreement. 33. Legal Action. In the event of any action taken by any party, including, without limitation, an appeal of this Agreement or any related applications or 14 agreements, or any part thereof, O'Boyle and the Town agree that they shall each use their best efforts to vigorously defend any such actions. 34. Apology. The Town recognizes the stress and strife that the O'Boyle family has endured as a result of the Town's ia}preper conduct. The Town recognizes that _the O'Boyle home has a value well in excess of $1,000,000, but is uninsurable against wind because of the non - existence of proper protection, which would have been part of the Improvements installed by O'Boyle had the Town not initially denied the Application' . The Town is fi+rl#ef indebted to O'Boyle for the many deficiencies in connection with the Town code that he has identified -peinted out te the Town since his submission of the Application. The Town Commission believes that O'Boyle's actions will ultimately result in Gulf Stream being a better and friendlier place to live. 351A31. Reservation of Rights. NatwithstandiRg laRguage in this Agreement /. _I..J' _!L _ai _L_J 1'1_1 _f1111 _ _• •. • • •. O'Boyle hame on the o.epeFty took ..lace 36. Building Envelope. The Development Agreement which will include a survey that shalt provides #ef a building envelope fonag the pProperty -whieh w9uld and allow the construction of Improvements within the area between intercostal waterway, the private roads and the common property line to the west 15 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of April _, 2013. c1users \ssm \aoodata\ local \microsoft \windows \temoorary internet files \content out1ook \cg3e7fei \1 gs2061 docx 2 .docxpadecs41314A00013 \d ec4tgr6737.deex 16 I i I FF1 'I W,;-OA .A I i�l ' ` II •I \ I7 1 I' ,I I I? DEVELOPMENT APPROVAL SET 1- 15.2013 D[ F-• F�'Fy�1 vp °�1€ eg � ! � 6 �� � 5 N m . I' r � t I 'I W,;-OA .A I i�l ' ` II •I \ I7 1 I' ,I I I? DEVELOPMENT APPROVAL SET 1- 15.2013 D[ F-• F�'Fy�1 vp °�1€ eg � ! � 6 �� � 5 N m . n�i� ETOL-ST -T J3S 9VA0VddV 1N3WdDI3A30 n�i� I qq Fp� Q� W k2 p a eppRi! 6E e a ee3'� =�e5 1;U F ?� i" N N 4 1 pii- MllA ,& F Q P. bB2 °_ ETOL -SL -I J2S lVA011ddV 1N3WdOl3A30 lil 113 e w 5 G ! F 9 �i��`����� I o a u o a Q o a o ETD? SI I135 �tlADNddtl lN3WdDTdA3D 2 O 6 �V 1 I g� �3 Z •3 ! QQ N S: __j1 FF '� � !� PPjjp�pEEPggi 9 � Wn M ETOZ-St -T 135 lVAOVddV 1N3WdOl3A30 'o 'a Er 6 9 l it d A lip �fi BAOI ce �aet rr8� Jib W9�:s3�t: �4e4P�9 �N il� i 49 } 3 sse I I 1 II (rt+ a 11 s30rd 'vr+ wooa rid) 'r I OAI1 lrld tl000tlrH N300+H II 1 107 Z 107 (I lbl ti "s 1 N I rr I 0 5617370189 Fax fitkj�lf 02:15:19 p.m 07 -26 -2013 2122 SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT (Agreement) is entered into, by and between the parties listed on Exhibit A in the column titled "PARTIES" (hereinafter collectively referred to as "Plaintiffs ") and the Town of Gulf Stream, a municipal corporation of the State of Florida, whose address is 100 Sea Road, Gulf Stream, Florida 3303 (the 'Town ") and is executed by the Town and the Plaintrffs this 26 day of July, 2013 (the "Effective Date'). The Town and the Plaintiffs shall be collectively known as the "parties" WHEREAS, it is the desire of the parties to this Agreement to resolve all disputes, appeals and pending litigation relating to the cases referenced in the column tided "CASES" on Exhibit "A" attached hereto (the "Cases'; and WHEREAS, on behalf of the Plaintiffs, Martin E. O'Boyle (O'Boyle) presented to the Town Commission a proposal to settle the "Cases"; and WHEREAS, the Town Commission has reviewed the proposal for settlement and wishes to settle the Cases and to resolve other matters as set forth herein on the terms set forth herein; and WHEREAS, it is the Intention of the Plaintiffs and the Town to be bound to the terms of this Agreement NOW, THEREFORE, in consideration of the mutual covenants and conditions herein expressed, and for the other good and valuable consideration the receipt and sufficlency of which is acknowledged and confirmed, the parties, intending to be legally bound, hereby agree as follows: 561737018B Fax 02:15:31 P.M. 07 -26 -2013 3 122 1. The Town recognizes that the Plaintiff O'Boyle believes that the Town did not apply a correct interpretation of its Code of Ordinances (the Code) as it pertains to 23 North Hidden Harbour Drive, Gulf Stream, Florida (hereinafter the "Property") and the improvements on the Property (hereinafter the "Improvements "). In particular, Plaintiff, O'Boyle argues that the Town did not correctly apply its Code with respect to his request for Development Approval for, inter alia, a Level 3 Architectural /Site Plan (the Application) and such other permissions, approvals, interpretations, clarifications and authorizations relating to the Property (the "Approvals ") to demolish and construct the improvements upon the Property as contemplated.. -The ►earn 11 Zmi1NueMeN4 2. The Town recognizes that its interpretation of the Code, including, without limitation, the current setback regulations established therein may not enable the v Plaintiff O'Boyle, or a subsequent purchaser to rebuild or renovate the Improvements, including, without limitation, the home; or enable O'Boyle or a subsequent purchaser to demolish the Improvements, including, without limitation, the home and construct Improvements, including, without limitation, a new home. Accordingly, in order to resolve the Cases between the Plaintiffs and the Town, the Town agrees that the lot coverage, floor area ratio, height, and setback of, inter alla, the home's entry feature shall be permitted in accordance with the plans submitted with the Application (the "Plans ") (which Plans shall be substantially the same as the Plans), which Application and Plans shall be an exhibit to the Development Agreement (the "Development Agreement"). The purpose of the Town's adoption of the Development Agreement is A3 MO 1N `}'he Sattle+oleri 48MMevt StAli 4150 INCLUk �ui,rae i rn provEM9A;ts +c be cotistn/cteD ar, 4jA Pro fen r . z 50173701 BE Fax 02:15:43 p.m 07 -26 -2013 4R2 to permit, inter alia, the floor area ratio, height of the home's entry feature, and front setback in accordance with the interpretation advanced by O'Boyle counsel in the argument portion of O'Boyle's Petition for Writ of Certiorari. The Development Agreement will also recognize that the Property's (including its Improvement's) setbacks will not be measured from the point of measurement currently established in the Code; but will be measured in accordance with the actual Property lines for building purposes among other purposes, it is also the purpose of the Development Agreement to facilitate the Plaintiffs or subsequent owner's demolition, rebuilding or renovation of the Improvements, including, without limitation, the esdsfing home, or the construction of Improvements, including, without limitation, a new home. The Development Agreement shall be substantially in the forth provided for in Section 163.3220, Fla. Stat The Development Agreement shall include terms customarily used in the Town (but adapted to reflect the agreements of the parties as contained herein). The Development Agreement, among other things, shall allow the Plaintiff or a subsequent owner to demolish, rebuild or renovate the Improvements, including, without limitation, the home or to constrict Improvements, including, without limitation, a new home such that the front setback is not measured as currently established in the Code. 3. Both the Town and O'Boyle agree to act in good faith to promptly enter into the Development Agreement, which Development Agreement shall contain terms consistent with the terms set forth herein as they relate to the Property, including those necessary or appropriate so as to facilitate the construction of the Improvements upon 3 5617370188 Fax 02:15:55 p m 07 -26 -2013 •5/22 the Property as set forth in the Application; and such other terms which are customary for Development Agreements in the Town for similar type Properties and improvements contemplated under the Application. The Town agrees to execute the Development Agreement as soon as practicable within Florida Statutes, but in no event later that 60 days from the date of this Agreement. 4. The Town agrees to waive any fees the Plaintiff might normally incur which are associated with the Development Agreement, the Application, the Approvals and any fines or assessments resulting from any violations existing at the Property, including, without limitation, the alleged violations set forth on the attached Exhibit B. 5. Intentionally Deleted. 6. Upon the execution of this Agreement by the Plaintiffs, the Town agrees to pay O'Boyle $180,000.00, in readily available funds by Federal Wire Transfer pursuant to Wire Transfer Instructions as designated by O'Boyle, which wire instructions are attached as Exhibit C. 7. Upon execution of this Agreement, the Town agrees that O'Boyle can proceed to improve the Property In accordance with the Application and to promptly provide O'Boyle with such Approvals as necessary, 6. Upon the execution of this Agreement, the Plaintiffs shall dismiss with prejudice the Cases. 9, Upon execution of the Agreement, O'Boyle shall promptly (a) remove all signs from the Property other than approved address signs, and (b) within twenty days 4 5617370188 Fax 02:16:07 p m. 07 -26 -2013 6122 remove all murals on the exterior of his home and return the color of the paint on the home to the color that existed previously. 10. Plaintiffs agree that upon execution of this Agreement, all pending public record requests made to the Town shall be deemed withdrawn. 11. In the event any of the Plaintiffs or the Town are required to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney fees through the appellate level. 12. RELEASES (A) The Plaintiffs Release of the Town. On the Effective Date , the Plaintiffs shall execute and deliver a general release In favor of the Town, which release Is attached as Exhibit "Di" attached hereto (the 'Town Release"). (B) The Town's Release of Plaintiffs. On the Effective Date, the Town shall execute and deliver a general release in favor of the Plaintiffs, which release Is attached as Exhibit "D2" attached hereto (the "Plaintiffs Release "), 13 Representations and Warranties of the Plaintiffs. Each of the Plaintiffs represents and warrants to the Town as follows: 5 5657370180 Fax 02:16:16 p m. 07 -26 -2013 .7122 (a) that the representing Plaintiff has not sold, assigned, transferred or otherwise disposed of any claims that any of the Plaintiffs had against the Town before the Effective Date; (b) that the Plaintffs each represent that they have the full right, power, legal capacity and authority to enter into this Agreement and to consummate the transactions described in this Agreement as they apply to such Plaintiff; and (c) this Agreement has been duly and validly executed and delivered by the Plaintiffs and constitutes a legal, valid and binding obligation, enforceable against the Plaintiffs in accordance with its terms. 14.. Representations and Warranties of Town. The Town represents and warrants to each of the Plaintiffs as follows: (a) that the Town has not sold, assigned, transferred or otherwise disposed of any claims that the Town had, before the Effective Date against all or any of the Plaintiffs; Ld 56i73701B6 Fax 02:16:25 p -m. 07 -26 -2013 0122 (b) that the Town has the full right, power, legal capacity and authority to enter into this Agreement and to consummate the transactions described in this Agreement; and (c) this Agreement has been duly and validly executed and delivered by the Town and constitutes a legal, valid and binding obligation, enforceable against the Town in accordance with its terms. 15. Covenant Not to Sue. (a) Each of the Plaintiffs covenant and agree not to institute any litigation or arbitration against the Town for any matter or thing which is within the scope of the Town Release, as attached as D1. (b) The Town covenants and agrees not to institute any litigation or arbitration against any or all of the Plaintiffs for any matter or thing which is within the scope of the Plaintiffs Release, as attached as D2. 16. Continuation and Survivability of Representations .Warranties and Covenants. The representations, warranties and covenants contained in this 7 56 -.73701BB fax 02:15:34 p m 07 -26 -2013 '9122 Agreement shall survive the consummation of the transactions provided for in this Agreement 17. Indemnification. The Plaintiffs, jointly and severally, agree to defend, Indemnify and hold the Town harmless from and against and in respect of any and all claims, suits, losses, liabilities, taxes, damages, deficiencies and expenses (including reasonable attorneys' fees) of any kind or nature (collectively, 'Town Claims' which the Town may suffer, sustain or become subject to by reason of, arising out of, or In connection with: (a) the inaccuracy or breach of any of the representations and warranties of the Plaintiffs set forth in this Agreement; and (b) the breach by any of the Plaintiffs of any provision, covenant or agreement contained In this Agreement or any document, instrument or agreement contemplated hereby. 18. Indemnification. The Town, jointly and severally, agree to defend, indemnify and hold the Plaintiffs harmless from and against and In respect of any and all claims, suits, losses, liabilities, taxes, damages, deficiencies and expenses (including reasonable attomeys' fees) of any kind or nature (collectively, the "Plaintiffs's Claims ") which any of the Plaintiffs may suffer, sustain or become subject to by reason of, arising out of, or in connection with: (a) the inaccuracy or breach of any of the representations and warranties of the Town set forth in this Agreement; and (b) the breach by the Town of any provision, covenant or agreement contained in this Agreement or any document, instrument or agreement contemplated hereby. 5617370188 Fax 02:16:45 p.m. 07 -26 -2013 10122 19. Notice of Default. No default shall have occurred under this Agreement until the defaulting party shall have been given 10 -days written notice to cure. If the cure is such that is will reasonably take longer than 10 -days and the defaulting party is pursuing the cure with diligence, then time within which to cure any such default shall be extended for such period as may be necessary to complete the curing of the default, providing that diligence and continuity are being used. 20. No Third Party Beneficiaries. This Agreement shall not create rights in any third -party beneficiary nor confer any benefit upon or enforceable rights hereunder upon anyone other than the parties and the "Releasees" in the Plaintiffs Release and /or the Town Release, 21. Further Cooperation. The Plaintiffs and the Town agree, at any time and from time to time after the date hereof, upon reasonable request, to perform, execute, acknowledge and deliver all such further documents as may be reasonably necessary or appropriate to carry out the provisions and intent of this Agreement and any document, Instrument, or agreement contemplated thereby. 22. Specific Performance. The parties each acknowledge and agree that any breach or threatened breach of the obligation to consummate the transactions contemplated by this Agreement will cause irreparable injury to the other parties hereto and the remedy at law for any breach of such obligations would be inadequate. The 5617370166 Fax 02:16:57 p.m. 07 -26 -2013 .11 122 parties therefore, agree and consent that the remedy of specific performance should be granted in any proceeding which may be brought to enforce any party's obligations under this Agreement without the necessity of proof that such party's remedy at law is inadequate. Such equitable relief shall not be the aggrieved party's sole remedy but shall be in addition to all other remedies available in law or equity. 23. Voluntary Execution of Agreement Each of the parties affirms that they are represented by counsel in this matter, that they have read and fully understand all of the terms of this Agreement, and that they are entering into this Agreement voluntarily without having been threatened, coerced or intimidated into the signing of this Agreement It is further agreed that no provision of this Agreement shall be construed presumptively against any party hereto. 24. Headings. The headings and sub - headings contained In the titles of this Agreement are for convenience only and shall not be interpreted to limit or alter any of the provisions of this Agreement. 25. Governing Law. This Agreement shall be deemed to have been made, executed, and delivered in the State of Florida and shall be construed in accordance with the laws of the State of Florida. 10 5617370188 Fax 02:17:07 p m, 07 -26 -2013 12/22 26. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns. No party hereto may assign its rights or delegate its obligations under this Agreement without the express prior written consent of the other parties hereto. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon any person, other than the parties and their respective heirs, successors and assigns, any remedy or claim under or by reason of this Agreement or any terms, covenants or conditions hereof. All the terms, covenants, conditions, promises and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties and their respective heirs, successors and assigns. 27. Notices. All notices, requests and demands to or upon the parties hereto shall be in writing and shall be deemed to have been duly given or made: V delivered in person, immediately upon such in person delivery; if by nationally recognized overnight courier service with instructions to deliver the next business day, upon delivery to the receiving party; and if by registered or certified mail, return receipt requested, upon delivery to the receiving party. All notices, requests and demands upon the parties are to be given to the following addresses (or to such other address as any party may designate by notice in accordance with this Section): 11 5617370188 Fax 02:17:19 p,m. 07 -26 -2013 13 122 €to the Toviri' Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Attn: Rita L. Taylor, Clerk Facsimile: 561 - 737 -0188 UVlth a.coeY to: Jones Foster Johnston & Stubbs, P.A. 505 South Flagier Drive, Suite 1100 West Palm Beach, FL 33401 John C. Randolph, Esquire Facsimile: 551- 650 -0465 If to any of the Plaintiffs: Martin E. O'Boyle Commerce Group, Inc. 1280 West Newport Center Drive Deerfield Beach, FL 33442 Facsimile: 954 -360 -0807 With a copy to: William F. Ring, Jr., Esquire Commerce Group, Inc. 1280 West Newport Center Drive Deerfield Beach, FL 33442 Facsimile: 954 -360 -0807 28. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute a single agreement, with the same effect as if the signatures thereto and hereto were upon the same instrument. Any facsimiles, photographs or photocopies of this Agreement with all signatures reproduced shall be considered, for all purposes, as if it were an executed original counterpart of this Agreement. 12 5617370188' Fax 02:17:29 p.m. 07 -26 -2013 14 122 29. Entire Agreement This Agreement contains the entire agreement of the parties with respect to the matters covered and the transactions contemplated hereby. No modification or waiver of any provision of this Agreement shall in any event be effective unless the same shall be in writng and signed by the party to be charged, and then such waiver or consent shall be effective only as stated in writing. 30. Severabilitv. If any term, covenant or condition of this Agreement or the application thereof shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition other than those which are held invalid or unenforceable, shall not be affected thereby and each tens, covenant or condition of this Agreement shall be valid and enforced to the fullest extent permitted by law. 31. Upon execution of the Settlement Agreement, the Town agrees to dismiss with prejudice the asserted violations as set forth on Exhibit B. 32. Time is of the Essence. The dates and times for performance of all of the obligations hereunder shall be deemed of the essence of this Agreement 33. Legal Action. In the event of any actlon taken by any party, including, without limitation, an appeal of this Agreement or any related applications or 13 5617370188 Fax 02:17:39p m, 07 -26 -2013 agreements, or any part thereof, O'Boyle and the Town agree that they shall each use their best efforts to vigorously defend any such actions. 34. APDI0q . The Town recognizes the stress and strife that the O'Boyle family has endured as a result of the Town's conduct. The Town recognizes that the O'Boyle home has a value well in excess of $1,000,000, but is uninsurable against wind because of the non - existence of proper protection, which would have been part of the Improvements installed by O'Boyle had the Town not initially denied the Application. The Town is indebted to O'Boyle for the many deficiencies in connection with the Town code that he has identified since his submission of the Application. The Town Commission believes that O'Boyle's actions will ultimately result In Gulf Stream being a better and friendlier place to live. 35. Reservation of Rights. Notwithstanding language in this Agreement (including the attached Release) O'Boyle reserves all rights and remedies related to any claims which he may have related to the scope and size of Improvements which may be constructed upon the Property, to the extent that the scope andlor size of Improvements are less than the scope and size of the improvements which could have been constructed on the Property on the date when the permits for the existing Improvements (including, without limitation, the home on the Property was originally issued, which date was approximately 1981. Notwithstanding the provisions of this Paragraph 35, O'Boyle shall not construct a home (or retrofit the existing home) on the Property so that it is more than two stories. 14 .15 /22 5617370166 Fax 02:17:52 p.m 07 -26 -2013 16/22 36. Building Envelope. The Development Agreement will: (a) Include a survey provided by O'Boyle, which survey shall provide a building envelope for the Property (as designated by O'Boyle pursuant to the preceding paragraph); and (b) allow the construction of Improvements within the area between intercostal waterway, the private roads and the common property line to the west IN WITNESS WHEREOF, the undersigned have executed this Agreement as of July 26, 2013. TOWN-E) F T EAM By: uj)� yor 0 By: '-ic' /\ Commerce Group, Inc. Mart . O'Boyle, President By: N984AC Caravan, LLC Martin E. O'Boyle, Member By: Airline Highway, LLC Martin E. O'Boyle Managing Member p: ldocs113147100D13Wocl1gt6737 .doa - 15 5617370189 Fax 02:18:01 p.m 07 -26 -2013 ' 17 R2 EXHIBIT' A" CASE NO. 1 e Judiciaf Circuit Palm Beach County, Florida PARTIES SUBJECT 502013CA006750XXXXMBAO Martin E O'Boyle vs Town of Gulf Stream PR #8332 502013CA008125XXXXMBAH Commerce Group, Inc. vs Town of Gulf Stream PR #OOD 502013CAOOBBOPXXXXMBAA N954AC Caravan LLC vs Town of Gulf Stream PR #343 502013CAOOB701XXXXMBAA N9154AC Caravan LLC vs Town of Gulf Stream PR #340 502013CAODB594XXXXMBAG Airline Highway LLC vs Town of Gulf Stream PR #341 502013CA008452)0=MBAG Martin E O'Boyle vs Town of Gulf Stream PR 9336 502013CA008919XXXXMBAD N984AC Caravan LLC vs Town of Gulf Stream PROW 502013CA01 1 12D)DMMBAO Martin E. O'Boyle vs Town of Gulf Stream PR 4363 502013CAD11122XXXXMBAI Martin E. O'Boyle vs Town of Gulf Stream PR Signage 502013CA011411XXXXMBAJ Martin E. O'Boyle vs Town of Gulf Stream P11#398 502013CA011414XXXXMSAI Martin E. O'Boyle vs Town of Gulf Stream PR #407 502013CA011416)0=MBAO Martin E O'Boyle vs Town of Gulf Stream PR #408 502013CA011417XXXXMBAD Martin E. O'Boyle vs Town of Gulf Stream PR # 409 502013CA011421XXXXMBAG Martin E. O'Boyle vs Town of Guff Stream PR #410 502013CAO11423XXXXMBAD Martin E O'Boyle vs Town of Gulf Stream PR # 411 502013CA011424XXXXMBAE Martin E. O'Boyle vs Town of Gulf Stream PR #412 502013CA00638BXXXXMSAY Martin E, O'Boyle vs Town of Gulf Stream Certiorari US District Court Southern District of Florida 13 -CIV -80530 MiddlebrookslBrannon Martin E. O'Boyle vs Town of Gulf Stream Injunction Declaratory Judgment p:Woms 13147100013Wodtgg1763.doa 561737010 Fax 02:18:14 p.m. 07 -26 -2013 16122 Exhibi+ g ! �!�L173 i Town of Gulf Stream i 100 Sea Road ! GulfSneara, PL33nas , CODE MWORCENEWSPECIAI ,MAGIS.I.AATH F°e lis'lj %Dies TO}yN OF OULFSTREAM , FLORIDA CASE NO: CH 2 -13 - STATHMENTOF VIOLATION AND NOTICEOFMARING .! Futsuant to seorle0 2-75 o l We Town of GulfSutam Code Of() rdiaeocg rite uodelsigaed he y notice of unratrecled Violation( Own of the Town of Gulf Sbeem Cade(s) more por0euler c $vas hemia, and requests a PUBLIC )rabe4 MA ISTRATEoftheTown. IUlA1tIIJG b�0� the CODS ENFORCM ENl( CIAL I• L04'e6on4Ad =swheteviols0oa(s)etisi(s): 23 73iddeo [iar•Lvur lltive ! . 2. LegalDoscdptlon: Int 5 Hid`1- Harbour Estate. 3. Name and address ofownadpen;aoi, d.. a, where violadon(s) eocisl(s): E i 0' 1E 23 5 luddsr Marbzm Di,. 4. Violetioa ofTmvn Cade Section s andd SIB. .painted w 6 side'• - SeV cation () esctiption(s):6 mi7.0 alnced '9g 1'� mmY sign not listed es MN sin isa ftce H 5. DateafF=thupee6on: 1 _ Finned =tice Co 5 -1 -73. Re£uyed Co accept band dnliv¢ed eo 5_1 -13 6. Dateaxaer5rstnotified ofviolntioa(s): Accepted =ties at Two Hall on 5 -& 7. Dates wag g1.vea bS ttaisa which srzs 3, 2013 nRry, wbich'violutiom meWbecourected: is me=tine be rfas2d but:• seat •rgnr•!r•4,N,rr••r•,••• 1'18 $at. , IMPORTANTNOIICE+ "wr , rr•..rs + rr,«,•..r.. i ; i Unless the violator contents the violatioa(o) described berain by the date set forth ab ! CONTACTS TBE UNDHRSIGM CODE INSPECTOR AT 561- 276.s716 d AND COMPLIANCE with 0m Town Codes) cited herein, NOTICE IS I verify HEARING WI,G BE CubIDUCfED !or 01e above rakmoced proip�2 y 6Geibe�TdA UEMC Stream CadeEaforctmrnl Special MMaimte an 6- 6_13 , .4f Gulf as 'be case can be heard In the Town Ha0 Co t 2 P.H. oral so m helsa0ei• Sbeam;Floride. =mission Month ]a It at 100 Seo erf, Gulf , YOU ARE REQUIRED TO APPEAR BEFORE TIGI SPECIAL MAGISTRATE of i allSWCr di"atioea that you have v 01etrd 01 above cited sections Df the Code of Otelin'an ' o � *t" TowdofOulf Steam I PYOUx AU. TOATTEND,WeSptolalM&Imtemaybese tia� solely apoa presentation by Um Town Code Inspector . !P 1 r . I Wunuff, 3 Tjaashs5 Tow;Mamger Town ofGalfSheem y i U 56173701BB Fax 02:18:32 p.m 07 -26 -2013 19122 YOU M'= NOTIFY THE TOWN OF GULF STREAMAT (561)276 -5116 ON OIL BEp RE DM—, THAT THE PARCEL OF REAL PROPERTY OwNEO THIS BY DBS HD IN NOT7CB 15 NO LONGER IN VIOLATION U AND OF TOWN CODES YOU ARE REQUESTING REINSFECn0N, THAT IF THE VIOLATION(S) IS/ARE NOT CORRBCTED IN THE TAdE SPE CgRRBC IQN, OR IF TIM VIOLATION(S) WARE CORRECTED AND TM PE CASE MAY BE PRESENIED FOR (SON TO THE SPECIAL MAGISTRATE EVEN IF THE VIOL HAVE BEEN CORRECTED PRIOR TO TTIE SPECIAL MAGISTRATE BEARING. r.scvms NO-7 B-y THE TOWN OF GTILP �WAk IT WILL P!RtS� CODE HNFOR ICIh: SPECIAL MAGISTRATE TEAT Hy THE TEES PARCEIB OF REAL DESCRIBED HEREIN AND OWNED BY YOU CONTINUES PERTY TO BE 1Dl VIOLATION. If the Speeial MagiShvlo finds But you have DOMMIUed a vloli tien, hr/she may order COMPLIANCE with the Cade and if fill m f9DIA7;E you camply with Such ardet wiltdn the lima fmtb thcrelu, he/she can DOOSE AIM OF UPTO 5730.00 PERDAY edad eet ianau-complionce. far each violation 6 If the Town 1s succeattod In prosecution your case befare the Specie) M,&n.,% F,MES UODSED BY THE SPECIAL MAGISTRATE, SUCH FRCS SHALL hML BE CONSTITUM A ANY REAL OR PERSONAL PROPERTY OWNED By YOU. FAILURE TO PAY S(I CANRESULT INFORECLOSOIIEAIM COLLECTION ACTION LIM ON H FINES BYTBETOWN, Ifyou disogree vviW a decision of tho Special Magistmte, you may appeal to the CIBCIIIT C PALM HEACH COUNTY within30DAYS the jURT OF after Special Maglsbvte's Orderls entered. lE youwishto have the SpecildMsgishataRECONSMERyour can hr any reasonorifyo is fine and is now ill Compumm and you wU to r.scvms request a REDUCTION IN APPLICATION AND THE APPROPRIATE FEE MUST BE SUBMITPED Faip, an TO THE T GULF STREAM FOR ANY SUCH REQUESTS. ALL )2EQUMRM$NI'S FOR SUCH I MUST BS MET FOR THE MULL MAOL57RATE TO WN OF RQUEst RECONSIDER YOUR CASE If a pemoa dcadra to appeal Say decision made by the Speeiul Magietmte with respect to considmr;d r1 subject mcetiug, they will need a record of uta pmbeedmgq and fai slap y mautea cony need to ensure 0mt a verbatim record of the precetslmgs is made, upon which Sao teaumoay nod evidence upon which appeal vm'be based IDSc, they iucludc (FS 286.0105). PLEASE GOVERN YOURSELF ACCCOORDINGLY. lC Byr Rim L Taylo ,Town do Town of Oull'Stream IOD ScaRoad GulfStrema ,,FL334&3 .(561)276-5116 5617370188, Fax 02:1 B:48 p.m. 07 -26 -2013 20/22 X11: Wiring Instructions: Branch Banldng and Trust Company 300 Summers Street Charleston WV 25301 Routing # 051503394 Commerce Realty Group Inc Account # 5177704344 Attn: Robert Boder Phone: 304 -341 -1043 5617370188 Fax 02:18:54 p m 07 -26 -2013 81/22 Exhibit "D1" RELEASE This Release, made as of July 26, 2013, is executed this 26th day of July, 2013, is given by the Plainti$s (collectively the "Releasors'� to the Town of Gulf Stream and its employees and elected and appointed officials (collectively referred to herein as the "Releasees'D. In consideration of Ten Dollars ($10.00) and for and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, Releasors hereby releases and discharges of the Releasers from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, or equity, which Releasors had, has or may have, arising from, related to or in connection with the Cases and the matters contained in this Agreement. Notwithstanding anything herein to the contrary, this Release does not include and specifically excludes all obligations Releasees have to the Releasor under that Settlement Agreement dated July 26, 2013 between Releasors and Releasees (the "Settlement Agreement") and arising under all instruments and documents delivered or executed in connection with and in furtherance of the Settlement Agreement Releasors and their respective agents, attorneys, shareholders, officers, directors, employees, heirs, executors, administrators, personal representatives , successors and assigns are bound by this Release. his Release shall inure to the benefit of each of the Releasees and their respeetive heirs, executors, administrators, successors and assigns. This Release is governed by and shall be construed in accordance with the laws of the State of Florida. IN /� 55 WHEREOF, the undersigned have executed this Release as ofthe day and date first tteryabove. Wr N Lin :roe Group, Inc. E. O'Boyle, President E. O'Boyle, Member By. 1-� U Airline Highway, LLC Martin E, O'Boyle Managing Member 56173701BB Fax 02:19:09 p m 07 -26 -2013 22/22 Exhibit "D2" RELEASE This Release, made as of July 26, 2013, is executed this 26th day of July, 2013, is given by the Town of Gulf Stream on behalf of itself, its employees and its elected and appointed officials (collectively the "Releasors'l to the Plaintii£'s (collectively refe red to herein as the "Releasees'�. In consideration of Ten Dollars ($10.00) and for and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, Releasers hereby releases and discharges of the Releasees from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, or equity, which Releasors had , has or may have, arising from, related to or in connection with the Cases and the matters contained in this Agreement Notwithstanding anything herein to the contrary, this Release does not include and specifically excludes all obligations Releasees have to the Relea50r under that Settlement Agreement dated July 26, 2013 between Releasers and Releasees (the "Settlement Agreement'D and arising under all instruments and documents delivered or executed in connection with and in furtherauce of the Settlement Agreement Releasers and their respective agents, attorneys, shareholders, officers, directors, employees, beirs, executors, administrators, personal representatives, successors and assigns are bound by this Release. This Release shall inure to the benefit of each of the Releasees and their respective heirs, executors, administrators, successors end assigns. This Release is governed by and shall be construed in accordance with the laws of the State of Florida. IN 9JITNESS REOF, the undersigned have executed this Release as of the day and date first written abo e. By. yar "JL9 �N 51:0 Bie �i fi Ali �� �Pii 1� If9 o 'S n 00 b to tY a°i n F o .Z u ts m � b s o s �bF.Cc: o m [1 .fir. Hy 4 `n - u CO-1. m � I 7 0 J W 11 530 Yd fl! N. C F I OMI IYid bBO Btl YH N 51 � 1 L 107 N C _ -- -_ ' I - -- -- 1 -- 3 u+ I b n En n 0. d V Q 7� bo o po 6 a"0. v U 6 b a I Fo� "r ° >��Y� idWna : RECORD AND RETURN TO: John C. Randolph, Esquire Jones, Foster, Johnston & Stubbs, P.A. Post Office Box 3475, WPB, FL 33402 -3475 WILL CALL #85 DEVELOPMENT AGREEMENT 111111] Hill IH A III H III II III I 11119 1111111 CFN 20130420056 OR BK 26343 PG 1285 RECORDED 09/24/2013 12:19:13 Palm Beach County, Florida Sharon R. BDck,CLERB C COMPTROLLER Pas 1285 - 1326; (42pgs) THIS DEVELOPMENT AGREEMENT Is made and entered into this !7" flday of Sa 4 -ri 2013, by and between the TOWN OF GULF STREAM, a Florida municipal corporation (hereinafter the 'Town"), whose address is 10D Sea Road, Gulf Stream, Florida 33463, and MARTIN E. O'BOYLE ( "Owner"), whose address is 23 North Hidden Harbour Drive, Gulf Stream, Florida 33483, RECITALS WHEREAS, the Town is empowered and authorized to enter Into Development Agreements In accordance with the Florida Local Government Development Agreement Act, Florida Statutes Section 163.3220 - 163.3243 (2012) ( "Act "); and WHEREAS, Owner filed an application for Development Approval for a Level 3 Architectural /Site Plan Review ( "Application ") seeking permission to construct a new front entry feature to his existing residence located at 23 North Hidden Harbour Drive ( "Property'); and WHEREAS, the Town Manager, acting as the Zoning Administrator ( "Administrator") determined that the proposed design of the new front entry feature would require four variances from the requirements of the Town's Code of Ordinances ( "Code "); and WHEREAS, the Town Commission, sitting as the Board of Adjustment conducted a quasi - judicial proceeding, following which it sustained the determination of the Administrator that four variances from the Code were required, of which only one was granted ; and WHEREAS, Owner appealed the Town Commission's Final Order and subsequently filed a number of public records requests associated with the denial of the Application.. NOW, THEREFORE, the Town and Owner, for $10.00 and other good and valuable consideration, including the terms and conditions of the Agreement, the receipt and sufficiency of which is acknowledged by each party, hereby agree as follows: 1. Recitals. The recitals are Incorporated herein and made a part hereof. 2. Current Zoning. The Property is located within the North /South Zoning District, Section 70-27 of the Code. 3. Future Land Use Plan Designation. The future land use designation of the Property is Single Family. 4. Land uses. The Property is an improved single family home with garages that was constructed in or about 1983. FA 5. Concurrency. The Property meets all applicable levels of service. 6. Comprehensive Plan Consistency. The Property's zoning is consistent with the future land use designation of the Town's Comprehensive Plan. 7. Land Development Regulations. The land development regulations which shall be applied to the Property are contained within Chapters 66, entitled "Zoning" and 70, entitled "Gulf Stream Design Manual" of the Code. (a) The architectural feature shown on the entry feature as shown in the Plans (as defined in the Settlement Agreement attached as Exhibit B) is not an "eave" and therefore shall not be subject to the eave height requirements for structures pursuant to the Code. The result is that when the Code is properly applied to the Application no variance is required; (b) The height of the proposed entry feature for this two story structure is not subject to the eave height requirements contained in Section 70 -100 (c) of the Code. Rather, the height of the entry feature for this structure is governed by Section 70 -100 (a) (4) of the Code. Under a proper application of the Code, the Architectural /Site Plan Application submitted does not require a variance; and (c) With respect to the minimum front yard setback, a proper interpretation of the Code would be that this setback should be measured from the atrium (the wall and trellis system just north and east of the front entry of the home) as shown on the Architectural /Site Plan because the atrium is part of the home. More particularly, the beginning point of the measurement of the front yard set back should be the northernmost point of the atrium. When the atrium is used as the beginning point for measurement no variance is required because there is no encroachment. 8. Term. This Agreement shall have a term of thirty (30) years after the Effective Date; provided, however, nothing shall preclude the parties from modifying or extending the Development Agreement or entering into a new Development Agreement. 9. Authorized Development. The Town agrees: a) that the Property may be developed substantially in accordance with the Application (Exhibit A -1) or substantially in accordance with the Plans (Exhibit A -2); b) to issue (or cause to be issued) such other necessary permits, permission and approvals as may be required to demolish and construct the Improvements upon the Property as set forth in the Application or on the Plans; C) that the height of the home's entry feature may be 30 feet measured from the highest floor elevation to peak of the roof; d) that the front setback for the Property shall be measured from the most northerly portion of the existing atrium to the front lot line.; and e) that the area under the entry feature shall be excluded from the calculation of floor area. P /1101 1C /C/R2012 08.27.13 Page 2 f) that the development, renovation or redevelopment of the Property shall not have more than one residence, which residence shall be a Single Family residence and which residence shall not exceed two stories. 10. Amendments. This Agreement may be amended by the mutual consent of the Town and Owner. 11. Exhibits. The Architectural /Site plan for the Property is attached hereto and incorporated herein as Exhibit A -1. The Plans are attached hereto and are incorporated herein as Exhibit A -2. The Settlement Agreement bearing even date herewith (and which is attached hereto as Exhibit B) shall be incorporated herein and be a part hereof. 12. Termination. This Agreement may be terminated upon the agreement of the parties. 13. Successors in Interest. This Agreement shall inure to the benefit of the parties successors and assigns, and shall run with the land. 14. Recording. In accordance with § 163.3239, Fla. Stat., this Agreement shall be recorded in the Official Public Records in and for Palm Beach County, Florida, within 14 days of its execution by the parties. 15. Governing Law. The laws of the State of Florida shall apply. Venue shall be in Palm Beach County, Florida. 16, Attorney Fees. In the event either of the parties must enforce the terms of this Agreement, the prevailing party shall be entitled to recover its attorney fees and costs through the appellate level. 17. Effective Date. This Agreement shall become effective upon the recording of the Agreement by the parties. 18. Conflicts. If and to the extent that there are any conflicts between this Agreement, Exhibit A -1, Exhibit A -2 or Exhibit B, the provisions of Exhibit B shall prevail. 19. Building Envelope. Attached hereto and incorporated herein as Exhibit C is a copy of a Survey which Survey provides a Building Envelope of the Property (as defined in the Settlement Agreement). The parties agree that O'Boyle (including his heirs, successors and assigns) may construct Improvements in the Building Envelope; provide, however, O'Boyle cannot construct any Improvements within 10' of the west property line without the approval of the Town. P /1101 /C /C /R2012 0827.13 Page 3 WHEREOF, the parties have hereto set their hands and seals this "L day 2013. FORM AND CI TOWN OF GU S E , FLORIDA By: Mayor C. Rardid -l(o Attorney 0'��U U�� Signature ame: LVA14M F 7?wc Signature a I L\ I I Print Name: I to �Y DTI w. kunv« P/1101/C/C/R2012 08.27.13 Page 4 MARTIN E. O'BOYLE CC0p� Townot ulfSUeam Address: PART 1. APPLICATION REQUIREMENTS To ee complaled bf Town Slair dwlnypre•applkafian cvnferenca A. Review and Approval Pncesso. 0 1. 14 Ocean Overlay Permit 0 2, Land Cleadnp Permit 0 3 Annsxafion Review 0 4. Comprehensive Plan Taxi Amendment Review 0 5. Demo4lion Permit 0 D Future Land Use Map Change Review 0 7. Admmisbathu Appeal D 0 Zoning code Text Amendment Review B. Application Materials 0 9. Sign Review 0 10. Site Plan Review, Level III 0 11. Site Plan Revision 0 12. Special Excapgan Review 0 11 Subdivision Review 0 14. Vaianee Review 0 15. Rezoning Review 0 I6. (Olher) NUMBER OF COPIES REQUIRED APPLICATION MATERIAL 1 1: Cempleied Development Application 2, Fee of + .+ — 17 3. General Lecalloh Map Ion ch Ran 17 4. SIie Plan (2 full e&e, l5reduced to I Ix 17') 17 5. Buid�O Elevallons 2 fug she, l5 reduced') 17 6. Floor Plans fu!I Situ; 15 reduced' 17 7. Fear Plans (2 full size, 15 reduced') B Pampedrro antlfor Color rendering (Recommended for meot1q) 1 9, Drainage Plan (Diapered) 17 10. Landscape Plan (2 full she, 15 mduced'I 11. Sepik TenkFarmll 12. DOT Ddvewey Perm6(dun Alo, larery allemilonslodiive) 13. DOTI.andscapa Perml](AIA) 17 14. Survey (1Px 171 15. Subdivision Plal 16. Conzunmeyommuls 1 W. Proof olOwmelslil(warranly dead) 1 16. Agent Algdavp 1 19. List of soon lPm dv Ovmem Envelopes 20. Properly no withrm251300' stamped addressed envekPes, nomlum address 1 21. Pmppdy Owners AWNS 1 Sel 22. Photos of Existing Home @e Imble) 1 23, Consimman Traffic Managamsnt Pin 24. size 124" x 36") dmwlmg which Issigned and sealed. All other copies shell be reduced toil" X W. Please raferlo[he Instruction for man detailed information. Appreaem For0a drynanlAppmnl F=A0A.270 Paae I N nrtel roam ... Town of Gulf Stream TOWN OF GULF STREAM 9 APPLICATION FOR DEVELOPMENT APPROVAL Thb form is to be used for ad development review apptsalluos b be heard by the Town of Gulf Stream AlrbiecWral Aevlaw and Planning Board, Board oFAdpcsimenl, andlmToWn Comm'sslon. To complele the form pmpady, please review the accompanylog imm of Gull Slmam InsOucUon Manual forAppkaHon for Davebpmard Ra*vFarm. Failumlocbmp loteutsfonmpmpmlysvgldeloy ILswnsldere0nn. ARPB Fie # PART GENERAL INFORMATION To be cbmplslad byaiappHpnlx R A Project nfonnallon IAt. projectiOymaY Name MWIi4��n��r IA.2 Pm)ectAddress: Z. RIMN ryv ,R,�2,�(•,(i(pSfP 11r1pFL.3 IS�3 IA3. ProjectPmpedyLegalDescripiowLbl5 1AIM HAt'.W .GTAM. �DkoIN6TnT�t: PLAT"11lE�bf As RL�A INPLWr�K�� I 1Dt rubt.IG RfFUM of PA4n M- 14 iUr4 j I R{ORIVA. 1A4- PmjaaOesalpion (descnlvindalaY,bdudorp�R slodes,etc) MITION K �Ni PFWE e540A f , wrr4♦ KEWPNTVy CdroR+s,eE I.tANT5. IA5. SgumaFaWagcoF NewlibuelurcorAdd0on :1(dZ66.FT.-I)ONOITIONAIL AichRecwralslyle: 16114159 MfblTWAOEW 93MVAA, 1AS. Check ail[hat appiyyNchileccedSile Plan Review 0 (antl Ctsdng O North Overlay(oartyilele sacUy B),�OemoBbn of Slrucbms 0 Nontes'ulentialu s 6Vat ce (e°mplebaarlW GJb/SpecW Ercepllon (mitplelesectionFJ i Al. (a) Proposed F.FE: NO(AANB& i1-8 Type ofFormdallon: &ob Fd 91R(I B. Owner Information 111.1. OwnerAddress: Mtn IR OIgDYI.E LB2 Omer Phone Number, g5N•3lcd)•7113 Paxa5tl- �JaD•OHU� 183. OvmerSlgnolum: C. ABantlnformatlon ICA Agent Nama and Fen Name: ��T�y.�,ppEYfI,OQA4g.1{ V t.I 11A.1 /� -iE dA�1iA(r1,4N6wI�bW& LCZ Agent Address: I'M Ifij. . 2 alvl�LiK FM 'eFaCK11fTiik- {YnA.7V Jf1D71 LO.3. AgenlPhone Number(D -510-& 50 A"-�i{7�F— Ml , -C�O° — 1.CA. AgentOgnw= / U1641 Omci s n IV-� Pre-App Dale: ARPBDeIB: _ App Dale: Recorn endalion: Com Oaloc TCDOZ Declslon: Appiratlon for DevdopreartApprovalForm ADA2000 revBed611310D Page 2 ' TomafGUY64aam PART" PROJECT DESCSIPTION AND JUSTIFICATION To he F AW by OR apPogM* efferpwPpppayn aademn Ift Tavn Staff. pkase be ronc a bf f bdel Affdch ad6T'Ind MY when necessery and Do awe to indWa Ub e gLaUmnumber(areachmsponsa. PPmAdate erM rompleto A Project Desalplion and JuegScagon IIIAt. hwhalaaihre dabklls the pmJedcge lOCaled7 I�SA\I T1 5'_ um IIIA2 Islhepmjfctmmpa5biewdh Oo NledallheanNngdimo)i(YOS ONO Explauc� N�]1I �d1Di`iIPjilfi tilt LfnreC r WITH t 7 flt�fi IIIAO, —4 110 4LLn\l rU !n E'b Land ( QuAeN1e S1M1rp a p � and W r2P #Fi� .O5bl1ocVs ir vIeFs u and pN nD WKaus H�d n th�e CamprehentiPfan7 r ❑Yes ONO Explain. IT Yet F E5 ih P AhhKK75L,tT IIIA4, fmware Ingress and egress to the property to beµovtded7_ 0A5- a 6. IIIAS. II the pmfad ¢wolm theetacaDn of me mmme abdaes, pleaze desu0re hvw dte saudlaes am mndsrml WO, the etisda In Socilon U &144 Of the Town of Onsf Stream Cade. (Allach addifto) sheetilnecessary) ILI! &DITIDN I:I atbi ye TwTIC$ hfTHEBVft Dlhi?t Mg125 IT MbIEE PDgi 'gPIFTIP�IfU11TH ?HFPRE'FERRED 1wealPm/.TkRALSF9(x 5.m t- umINtlPmR(C)tWW PAS ELF PATHAWAG pRO�IES. PARTIV. ADDNIONALINFORMTION Sedkn A Is to he completed by al ap*Ards eMrprs.epfd'ceUro melon nm mU Tam staff, Anavedug 'Yss'tO enygueSHM k SerXmA mquhO: the mmptethm deddMionef S,,U=eskdlcefed. A. Addidanel ApprovaisiRequimmenls NA1 Duaz the proje Ne rood area wlhh MY feet (01 of the A1A (NOM Ocean BoUavwd) iok weyT OYes rNo(II' Yes', secganBofLhlspadmmlhommpleled.) NA2 base the projed hvdve the demolition ofone or mom sbvclures? `iYes 0 N (S'Yef, sec an Corthk pad rein be carno- d.) IVAB Does ft prgtcl h hva the deatng or N6ig of arty portion of an ml vacant lot or mare gran fdiy pencerd(55 %)ohhe landsc aped eme or aderelopodloll ❑Yes NO Qf'Yef, sed On D of Ihfe pad must be eongleted) NAS. D thopmjedmgrbeeppmvelora Spedd Ex p5on7 TYes DNo( g'Pef,secUmEdSupMawAbemnpleled) WAD., )hapm)ed at vaiknce A, any regulations conlabred In Una Zoning Code? Yes 0NO(If'9es', Holton O Of US Poor =1 be conCleted) APphce lm for Develdpmeni Approval FarmADA325Do Page 3 Tovmhl Gugsoeam 8. Pmlecls Requiring North Ocean Boulavud Overlay Permit IV 8 t. What slgnifixenl landscape fealums; or archlledurdl featues ere to be dishrbed ar added and to whal extent? IV.82. Describe the need andluslllkallon for ilia dislushancdaddi5om IVB,3. Wk the dislurbancdaddidon duslmy of serlously Impab visual relalionsMps among bulidngs, landscape features and open space, or Introduce incompalMe landscape features or plant material that destoys or hepatic sgoritanlviaxs or Aisles vdlh4l the North Ocean Boldevard Overlay DbWcl7 Yes No Explain: _ IV8.4 HEN is the deslun conablend Will the AAA Landscape Enhancement Pmlecl7 NB$. Matmjligagon is proposed so that the dsturbancpladdRen has rte least lmpad possiNb to the visual and aoslhe5c quality of the North Ocean Bouiavmd Overlay Millet, D. Projecls Requiring uDemeligon Permit hl M N.C7, When ore Na opcLLig shurAVOS lobe demdshad7� 1115D IV C2. When am the proposedcWdureslobeconsWclai7 Was PKMIT I4D 7 W* IV C,3. What is the landmxt slates of the clientele; to be domabhed7 riwe D. Projects Requiring a Land clearing Permit N 0.1 Oescdoe gsdseveAalatne maledals b15 fiches N dherater end greater to be North Ocean Baulevent IVD2 Oescdbo the need and 051111 olion for the MaluvaVreloia5on: IVD1 Nowt• No removal limn the prated afle of vegeletion to he MGgaled: �— ND .A. How od a mte and ce sg and relocated alNNes and grerea Materiels to be protected and preserved during the N.D5. WhiAMPIMecelmalodalo aroproposedi APPO' ary2W2 avelopinviAppro vat, Fenn ADA32gA0 Page 4 `,• — — fAVE E Ptoleds Requiring a Spndal Eacepllon. N.E1. blie pleposeduseeparmjled Sl= N. alaskepoonusa7 Yes ONo Cod- Sedon: � E2 Ibx 6 the use dealpn -d, bcakd end d we3an; and mT&Abepmlededt PmPmrd l0lie oponsed to Dtal the public health• safely, DN 2 A(- K EGTED AFWtH�7 �i�1JHANCfS IGN IV.E3. Wallho ime causes be bc2ldd7 13 yes (No Im}ay io the vada of olher pmpmty In the nelphbmhood Where it Ic to 6Plaln. MTFS At-uE — H !!�1 NEA Nowwil the use be mmpap>l Is in be lobnded7 evd;ryd d+dnbp development and the chl -filer of he DbLid where tl ON 0' 9 NEW E� mlL<4F2 1b NEP, PAPEPrig AR NES W4ellandscepinpenJsueenGnpmopmvided7NOAPPIaC -- L9ND plNC7 ND ME S. Does oat, rn mo wi$ all OprcaMe reps qMS pmembg me �Iebict vdsereln II is to be Ineaied7 Dy. No mh�V RALL faFtEiNT Df NEWCfPgN/rWAY LpNFOGJVI 5 B'>b ulprroN. -Tt r EgVE musr �EK 15ED D n 23 251 131t • 7D' gVDID CDNFiICfINIxWfry �}9SflN& plbflNEt AVDID ��EQtooE� F. Non Roddon( lalPro�ecaandResdenpapm )eclsalGaa @rlhan2lnikL�, N.F.1.. NoomnonemafsdldesaebbepfovtJetl, d =h Nom and how lhel'me b be maintained. NF2 II rev9epmt fodlEen mo b be provided demis Diem and IhVr polenual Impacts on s. =Mdtng pmpediea. N.F3. For each oflhe bnftM lslese numb mpmVided end Ue7dhnenebss, Lo,xlmpbpases; Standard Pmhop Sp -cos; Small CarParlJtp Spats; "an ppedpal, uspamr. prNewayslAislea; APplkafiob for Development PPpraval Portn PDA32DDO Pogo 5 EMJAI - 5E -F16A - E Projects Nquidngaspedal Fxcspgon. 'V E' hSts proposed USER permitted spepal0iaeppan, use ?Xyg ONO codesedion: IV El Now to he use designed, forded and k. L 3I tvei,are, end mo*va he pro @dsd? PrePo�tl (o be operaled so that Or' DMus health, sorely, NDS C" AR: AFFr� + - BUT ENHAWF5 --LCS ICrN N.E3. 1hi11hatae causesuh�slpappgJ �I ,fo Iha value of other pmpedy m the nelAmhoodtrhere II is to ha localed7 ❑yam o EaplaSt I-- L ALLM WR ENHANCED Af kAwor t BUILDiN r 111TH Nf6ft9i' mp N.E.4 N HowwID 61e use he mmpalb" With adJolning develo Is helocated7 pmeM and the chamder of the Dlsldq where ll IN S WIU UAWp�� 151 t 6G A NEHI ENNTRANCE �IiS 5(n1f6kR Tn N.E5. What landacaping and 5SIE lag are Provided? NO CRA N6F Tb iAnrn _ 16 PRaPos D tYISrN� GKIf`(bSLAPrtJFi Yr, NEB. Goes the use m fo with Of aPp6g51e mW3110 s goveming the G'ablel whareln It is to be located? 13y I No �pi0�}451CAL gFt BAPK IS Nn i Gf UNDER for OI.A rnpE 6Vr PN4 fiEwCDLE THE ' /k 15 Ur Sr EVEN rHOL&H 611 p 1N6 T Pbc C I 11 UE bf CN N6FD F, Non Rssldenlial ProJecls and Reoden5al ProJegs of Greater than 2 units �w5. NF 1. If common area Ixa80es are to be pmvAed, desamo them and how they are to be maintained. N,F2 II reveallon fediba em N be pmMed, desm3e (hem Rod their pm SIUBI bmpads on sunounding p altar. N.F3, ps each ofthe follmAng,IL•Ilhe mmdrs ptwlded end NCir dmendons. Loading Spaces Slmtdatd Padtfiq spaces: Small carPad61g spa as: �-- Hendcapped Parking Spaces: GMatvayrJNsrem ApptealbnlEFGevelopm mApPmvat FEirnAUA.32050 polls 6 t 'ibwnofcursheam VW1ANCE -ZPiI.M G Projects Requiring aVariance(code Sedfm66- 150lhmuth IM IV.61. From tvhal specgia Zonkp Code rcgule6on isevariansa fequea(edT 1D "IDD IF 15 74'-V W LDWfK.I )1'WDULD PNY516ALLU 3NFLICT WITH E1y5TIN6 SIDE M%. W.U. what does the zoning code require (m ads specific are? THE PRoPM fNTIZAwe bTUR£ IS WITHIN.I 3D' NEfEHT 9cLIAWAt f�E UriFf1 PAVE WDNLDNEED7DLE �- Ill %ITbODMPL IVG3 . What Is proposed? FAA •NE '� B/ „ 11 NT eJ DIC, IV.G.4 Whal fs lino lolalvariarme tequesled7 01AVE FAT423r -0e IVGS. The following a mandatory variance findings from Sector 6515,, must as addres3ad.—(Qgach additional sheet a necessary.) (1) What spedfn conams and circumslamu eylal which are peculiar to the land, structure. Dr building frvelved and which are not spplfcable Is other lands, sh icbims, or holdings in fire same zoning dlsidcl7 6x1sTIr�', &jlLp t RDOF UNE BVILT uNDEl2 PREvIbUS dpD6. (2) Did the special condlGons and cgcurnslancm result from hie actions oft appfcatl? Yes ©a (3) Wiagmnling Nevadanmeanlerupon6ieappf; andanyspecWprl &gethallsd�bythezoning Code b otheriands, buddhgs, or sWdures In me same zonbit dislil: Yes No• Falealm TGF 0gri f t PCNRGDRATIbN DF THIS HDr/9 IS Umm (4) Howwoutd a fleml tnielp,daum d the provisions of the Zoning Ordinance deprive the applicant of dghis commonly enjoyed by Au Rosettes N the same zaning dabid under Ina same terms of are drdmence end wode unnecessary and undue hardship on the applicant? THIS 806E h-516N k HNI4uE 150 K CANTEE ALSTNETICALAW ENNANLED WINDNT 0&811N6 PORMAL LEA- *E AND WT�"ME APPEAWdE Df:a HDIkE — (5) la are Valance requ a minimum valance that wigs possible me reasonable use of the land, hu6dldg orswcWre Ye No Explain: fllhuf IAM VA9)6C9 Tb ENIFAN 6 2 APPFA00 -tb ftIC' W16DRN1 TtTiM NE914&gbfbDD (6) VWi grenWit the vedance permit anyi hWrled use to be uslabished or ne- rstablished: Yes 0 V) is the requesigd valance comislsni wAp4ha goals, poises, and objectives of the lot= Land Use Rap of the adopted Ca�reheoeke Plm? Ya No (a) Will the varba to be in hammnywOh the general indent and purpose of the Zoning �ca end not bek)udous N the meabrvoived or otherwise dobimenleliolhe pubfiowelfare? Yes No Explaku it ENNANCES T1lE AIdnE!' PAML ANb ItSCR>✓A5f!i_TNIS r�ND hI�AP;��3RbPEf2tV _ \ /ALLIES Applkaaon far DavelopmenlApproval, Fmm ADA320aa Page 6 February Z002 ��, ' ' i b w n ' o f G U I f 5 l r e a m U A I Z I A N C > : S E T S G P r o j e c t s R e q u i r i n g a V a r i a n c e ( c a d e 5 e c f i a n 6 1 M O I h m u 0 h 1 5 y ) I V . G 1 . F m m w h a t s p e c r o Z o n i n g C o d e m p d a l t o n i s e v a r b u c e r e q u e s t e d ? I 1 4 5 E T ��r n & , N G . 2 W h a t u s e s t h e Z o n i n g C o d e r e q u i r e f o r t h i s s p e c t f c s i l e 7 a N T B A C K . ^ W F p m " V E C T I V E " t D T W N E l i t � E p n n V E w W f b j K f 4 5 C N A % E D E V E D I T N D U A R f t ) E A N D �� F . I D k A D A R E T N 5 A M I V , G . 3 . W h a t i s p m p o s e d ? J E E R U F F S S I D E A F T H 1 5 r ' A 6 E , . . N G 4 . W h a t i s t h e [ D i a l v a r i a n c e r e q u e s l e d 7 e a w f t o , E N C R D o w r 4 i W I T H t I V . G S . T h e f o l l o w i n g 6 m a n d a t o r y v a r i a n c e f i n d i n g s b e e n f a d l i o n 6 6 4 6 4 , m u e d b e C d d �� d : ( A c h e d d l a o r m l s h e e t I r n e m s s a r y ) ( t ) W h e t s p e c i f i c c o n d i t i o n s a n d c i r c u m s t a n c e s i d s l w h i c h a r e p a c W e r t o ( h e l a n d , s t r u c t u r e , n r b u 6 d i n g I n v o l v e d a n d w h i c h a m n o t a p p l i c a b l e W 0 v a r l a n d s , s h c W r e s , o r b u i l d i n g s I n t h e s a m e t o n i n g d i s t r i c t ? T H E W M 5 C R A I 4 6 M A N D A N O N C ' D N E D R M I N A S ( 2 ) O l d t h e s p e c i a l c o n d i t i o n s a n d c i r c u m s t a n c e s r e s t s f r o m t h e a c t i o n s o f t h e a p p l i c a n t ? Y o u N o ( 3 ) W i l l g r u n t i n g t h e v a r i a n c e c e n t e r u p o n l i r a e p p l ' x a n l a n y s p e c i a l p r i v i l e g e U n i t i s d e ' b y t h a Z o n i n g C o d e t o - o l h e r l a n d s , b u M p a , o r s h d u r e s N t h e s a m e i n n i n g d i s t r i c t ? Y e s N o F a p l e i n : J J H r N e r W I G I A N E f U A f a E W P 5 N A K E D A U . ��I D U S E S 5 l l y l l l x F > ? L W A T E D W D U L D I d E N D N I A N W M O f - ( 4 ) H o w w o u l d a m o r a l l n l e r p r e l a t o n o f t h e p r o v i s i o n s o f t h e Z o n i n g G n f m a n c e d e p r i v e t h e e p p l i c a n t o f r i g h t s c o m m o n l y e n j o y e d b y o t h e r p m p e a l i n s I n t h e s a m e m r i n g d i s h k l u n d e r D i u s o m a l e a n s o f t h e d n f m a n c e a n d w o r k : u n n e c e s s a r y a n d u n d u e h a r d s h i p a n g m a p p l i c a n t ? J U F Q 4 4 V S I C A L f 6 M Y , 1 5 A D . 1 F E E T U N D E R T H E D L D C D C E F a K W A ? p V I 5 j D > y ( K A W 0 S i t I $ K A S 1 1 1 t t E V E N T t t D I X a H N D T N I N a I M P R Y J C A U A P } I A N & E D ( 6 ) I t t h e V a r i a n c e i n q u e s t p d 1 1 1 a m i n l m r m v a r i m e , t h a t r u s h e s p o s s i b l e t h e m a s o n a b l e u s e o f t h e l a n d , b u i d 6 f , o r s l m c l u r e ? C C Y Y a o d d N o E a p 1 a h : 0 4 0 O L D ' N D E ��E E F C t " I V E 0 U N E I R I S M I L ) P E W W L D e w g g m 1 5 E E N 5 M o o t , W R E N T H E R E ( 5 A P 7 9 D x . a D t / F R D M R l i f W I K ( 6 ) N O g i n n i n g t h e v a i i a n c o p e r m i t a n y p m h l h l i e d u s e l o b e e a l a b i i s h a d o r m " a s l o h i s h e d : Y e s ( 7 ) I s t h e r e q u e s t e d v a r l a r o w c o n s i s t e n t v g a n h ' p o l i c i e s , a n d o b j e c t i v e s o f t h e f u l u m t e n d U s e M a p o f t h e a t l e p l e d C O n g r e h e n a l v o P l a n ? 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O P T I O N A L I N F O R N H O N T M s e * ' P a d h a p g a s a l l w a l l a P F f t I l S A p p A c a r d r a r e a n w u r a g e d , b u t n o t r e q u i r e d , t o P r o v i d e a n y e j d d 1 h ' e ' r a l e v e n t i n ( a r m a V a n m g a r d i n g l h e p 4 6 d 0 a 1 u a s n e f s o v a m d e t , c w h 0 m a n g i 4 f o r m O r a n a r y o l W a o l h e r m a t e r F V s s v L V M f a d v a l h t h e a p p 6 o l h n A p P i h v g o n f a r D e v e t o g m e n l A P P r a u a l I ' m A D A . 2 n o u m v I d 6 D W P o g o 7 MINUTES OF THE SPECIAL MEETING AND PUBLIC HEARING BEING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, ON TUESDAY, SEPTEMBER 17, 2013 AT 9:00 A.M., IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. II. Call to Order: Mayor Orthwein called the Meeting to order at 9:00 A.M. Pledge of Allegiance: Mayor Orthwein led the Pledge of Allegiance. III. Roll Call: Present and Participating Via Telephone Also Present and Participating Joan K. Orthwein Thomas M. Stanley Robert W. Ganger Donna S. White W. Garrett Dering William H. Thrasher Rita L. Taylor Thomas Baud Mayor Vice -Mayor Commissioner Commissioner Commissioner Town Manager Town Clerk Acting Town Counsel IV. PUBLIC HEARING: 1. Proposed Development Agreement — 23 Hidden Harbour Dr. Acting Town Counsel Baird read the changes in Exhibit C of the Development Agreement from the first Public Hearing. He reported that the Agreement is now oriented in a manner which allows the reader to more readily read the document. Town Counsel Baud continued that there is now a reference to the water area. He stated that the document was not clear enough in terns of what, if anything, could be put into the water extended from the lot. Town Counsel Baud continued that following the word "water" on the thud line, it now reads "provided that such water structures are approved by the Town of Gulf Stream ", which means that the Town will follow its Code Section 66 -369 in terms of docks. Town Counsel Baud further stated that anything placed in the water will have to conform to the code. He also addressed the change in Exhibit B which is the Settlement Agreement that is incorporated into the Development Agreement on Page 2, Paragraph 1, regarding the term "improvement". Town Counsel Baud continued "as used in the Settlement Agreement shall also include future improvements to be constructed on the property". Vice -Mayor Stanley inquired as to what was being added with regard to the Declaration of Conditions for Hidden Harbor Estates that is enclosed. Acting Town Counsel Baud explained that nothing is actually being added to the Declaration. He continued that Mr. O'Boyle's Attorney, Mr. William Ring, supplied it as further explanation with regard to the structures that will be built on the lot. Vice -Mayor Stanley inquired if the Town assumes that the Town Code is "trumping" the HOA Declaration. Acting Town Counsel Baird replied "Yes ". Special Meeting and Public Hearing Town of Gulf Stream September 17, 2013 — Page 2 Mayor Orthwein asked for any questions or further comments. There were no comments. 2. Resolution No. 013 -04; A RESOLUTION OF THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, FLORIDA, APPROVING AND INCORPORATING THEREIN A DEVELOPMENT AGREEMENT BETWEEN THE TOWN AND MARTIN E. O'BOYLE WHICH AMONG OTHER THINGS GOVERNS THE DEVELOPMENT INTENSITY, LOT COVERAGE, AND HEIGHT OF ANY SINGLE FAMILY RESIDENTIAL STRUCTURE TO BE CONSTRUCTED AT 23 HIDDEN HARBOUR DRIVE WITHIN THE TOWN OF GULF STREAM, FLORIDA; AND PROVIDING FOR AN EFFECTIVE DATE. Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve Resolution No. 013 -04, and further to authorize the Mayor to initial certain changes provided by the Town Counsel in agreement at this meeting. All voted AYE. Mayor Orthwein asked for any comments from the public. There were none. V. Adjournment: Mayor Orthwein adjourned the meeting at 9:10 A.M. Sandra Fein Recording Secretary SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT (Agreement) is entered into, by and between the parties listed on Exhibit A in the column titled "PARTIES" (hereinafter collectively referred to as "Plaintiffs ") and the Town of Gulf Stream, a municipal corporation of the State of Florida, whose address is 100 Sea Road, Gulf Stream, Florida 33483 (the "Town ") and is executed by the Town and the Plaintiffs this _ day of July, 2013 (the "Effective Date "). The Town and the Plaintiffs shall be collectively known as the ,.parties" WHEREAS, it is the desire of the parties to this Agreement to resolve all disputes, appeals and pending litigation relating to the cases referenced in the column titled "CASES" on Exhibit "A" attached hereto (the "Cases "); and WHEREAS, on behalf of the Plaintiffs, Martin E. O'Boyle (O'Boyle) presented to the Town Commission a proposal to settle the "Cases" ; and WHEREAS, the Town Commission has reviewed the proposal for settlement and wishes to settle the Cases and to resolve other matters as set forth herein on the terms set forth herein; and WHEREAS, it is the intention of the Plaintiffs and the Town to be bound to the terms of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and conditions herein expressed, and for the other good and valuable consideration the receipt and sufficiency of which is acknowledged and confirmed, the parties, intending to be legally bound, hereby agree as follows: 1. The Town recognizes that the Plaintiff O'Boyle believes that the Town did not apply a correct interpretation of its Code of Ordinances (the Code) as it pertains to 23 North Hidden Harbour Drive, Gulf Stream, Florida (hereinafter the "Property ") and the improvements on the Property (hereinafter the "Improvements "). In particular, Plaintiff, O'Boyle argues that the Town did not correctly apply its Code with respect to his request for Development Approval for, inter alia, a Level 3 Architectural /Site Plan (the Application) and such other permissions, approvals, interpretations, clarifications and authorizations relating to the Property (the "Approvals ") to demolish and construct the Improvements upon the Property as contemplated. . 2. The Town recognizes that its interpretation of the Code, including, without limitation, the current setback regulations established therein may not enable the Plaintiff O'Boyle, or a subsequent purchaser to rebuild or renovate the Improvements, including, without limitation, the home; or enable O'Boyle or a subsequent purchaser to demolish the Improvements, including, without limitation, the home and construct Improvements, including, without limitation, a new home. Accordingly, in order to resolve the Cases between the Plaintiffs and the Town, the Town agrees that the lot coverage, floor area ratio, height, and setback of, inter alia, the home's entry feature shall be permitted in accordance with the plans submitted with the Application a —(the "Plans") (which Plans shall be substantially the same as the Plans), which Application and Plans shall be an exhibit to the Development Agreement (the "Development Agreement "). The purpose of the Town's adoption of the Development Agreement is 2 to permit, inter alia, the floor area ratio, height of the home's entry feature, and front setback in accordance with the interpretation advanced by O'Boyle counsel in the argument portion of O'Boyle's Petition for Writ of Certiorari. The Development Agreement will also recognize that the Property's (including its Improvement's) setbacks will not be measured from the point of measurement currently established in the Code; but will be measured in accordance with Development gr emeRt Which establishes the actual pProperty lines for building purposes among other purposes. It is also the purpose of the Development Agreement to facilitate the Plaintiffs or subsequent owner's demolition, rebuilding or renovation of the Improvements, including, without limitation, the existing home, or the construction of Improvements, including, without limitation, a new home. The Development Agreement shall be substantially in the form provided for in Section 163.3220, Fla. Stat. The Development Agreement shall include terms customarily used in the Town (but adapted to reflect the agreements of the parties as contained herein). The Development Agreement, among other things, shall allow the Plaintiff or a subsequent owner to demolish, rebuild or renovate the Improvements including, without limitation, the home or to construct Improvements, including without limitation, a new home such that the front setback is not measured as currently established in the Code.. . 3. Both the Town and O'Boyle agree to act in good faith to promptly enter into the Development Agreement, which Development Agreement shall contain terms consistent with the terms set forth herein as they relate to the Property , including those 91 necessary or appropriate - so as to facilitate the construction of the Improvements upon the Property as set forth in the Application; and such other terms which are customary for Development Agreements in the Town for similar type Properties and improvements contemplated under the Application. The Town agrees to execute the Development Agreement as soon as practicable within Floiridda Statutes, but in no event later that 60 days from the date of this Agreement. 4. The Town agrees to waive any fees the Plaintiff might normally incur which are associated with the Development Agreement, the Application, the Approvals and any fines or assessments resulting from any violations existing at the Property, including, without limitation, the alleged violations set forth on the attached Exhibit B. CJ The Y J aFti mr a that a elete ettle nt of the issues eeeer_Iet� �. zj— �' rnz ='5-'z'mcn� at a PUbIiG meeting.-The Plaintiffs agree not—to PFOGeed with diSGeveFy iR aRy of existing lawsuits, 9F file any fuFtheF lawsuits, appeals, or to take aRy adFn n'StFative . _ exeGuted by the pa#�ees 4 6. Upon the execution of this Agreement by the Plaintiffs, the Town agrees to pay O'Boyle $180,000.00 with, „days, in readily available funds by Federal Wire Transfer pursuant to Wire Transfer Instructions as designated by O'Boyle, which wire instructions are attached as Exhibit C. —(Bill GUF UR&FStanding is that the wire Must 7. Upon execution of this Agreement, the Town agrees that O'Boyle can proceed to improve the Property in accordance with the Application and to promptly provide O'Boyle with such Approvals as necessarythe Dlans shall be .deemed to have `- - - 8. Within five days after the execution of this Agreement, the Plaintiffs shall dismiss with prejudice the Cases. 9. Upon execution of the Agreement, O'Boyle shall promptly (a) remove all signs from the Property other than approved address signs, and (b) within twenty days remove all murals on the exterior of his home and return the color of the paint on the home to the color that existed previously. 10. Plaintiffs agree that upon execution of this Agreement, all pending public record requests made to the Town shall be deemed withdrawn. 11. In the event any of the Plaintiffs or the Town are required to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorney fees through the appellate level. 12. RELEASES[All (A) The Plaintiff's Release of the Town. On the Effective Date , the Plaintiff's shall execute and deliver a general release in favor of the Town, which release is attached as Exhibit "D1" attached hereto (the "Town Release ") (B) The Town's Release of Plaintiff's. On the Effective Date, the Town shall execute and deliver a general release in favor of the Plaintiffs, which release is attached as Exhibit "D2" attached hereto (the "Plaintiff's Release "). 13 Representations and Warranties of the Plaintiffs. Each of the Plaintiff's represents and warrants to the Town as follows: (a) that the representing Plaintiff has not sold, assigned, transferred or otherwise disposed of any claims that any of the Plaintiffs had against the Town before the Effective Date; (b) that the Plaintiff's each represent that they have the full right, power, legal capacity and authority to enter into this Agreement and to consummate the transactions described in this Agreement as they apply to such Plaintiff; and a (c) this Agreement has been duly and validly executed and delivered by the Plaintiffs and constitutes a legal, valid and binding obligation, enforceable against the Plaintiffs in accordance with its terms. 14.. Representations and Warranties of Town. The Town represents and warrants to each of the Plaintiff's as follows: (a) that the Town has not sold, assigned, transferred or otherwise disposed of any claims that the Town had, before the Effective Date against all or any of the Plaintiffs; (b) that the Town has the full right, power, legal capacity and authority to enter into this Agreement and to consummate the transactions described in this Agreement; and (c) this Agreement has been duly and validly executed and delivered by the Town and constitutes a legal, valid and binding obligation, enforceable against the Town in accordance with its terms. 15. Covenant Not to Sue. 7 (a) Each of the Plaintiffs covenant and agree not to institute any litigation or arbitration against the Town for any matter or thing which is within the scope of the Town Release, as attached as D1. (b) The Town covenants and agrees not to institute any litigation or arbitration against any or all of the Plaintif's for any matter or thing which is within the scope of the Plaintiff's Release, as attached as D2. 16. Continuation and Survivability of Representations ,Warranties and Covenants. The representations, warranties and covenants contained in this Agreement shall survive the consummation of the transactions provided for in this Agreement 17. Indemnification. The Plaintiffs, jointly and severally, agree to defend, indemnify and hold the Town harmless from and against and in respect of any and all claims, suits, losses, liabilities, taxes, damages, deficiencies and expenses (including reasonable attorneys' fees) of any kind or nature (collectively, "Town Claims ") which the Town may suffer, sustain or become subject to by reason of, arising out of, or in connection with: (a) the inaccuracy or breach of any of the representations and warranties of the Plaintiffs set forth in this Agreement; and (b) the breach by any of the Plaintiffs of any provision, covenant or agreement contained in this Agreement or any document, instrument or agreement contemplated hereby. I 18. Indemnification. Subject to Section 768.28, Fla. Stat., The Town, jointly and severally, agree to defend, indemnify and hold the Plaintiffs harmless from and against and in respect of any and all claims, suits, losses, liabilities, taxes, damages, deficiencies and expenses (including reasonable attorneys' fees) of any kind or nature (collectively, the "Plaintiffs's Claims ") which any of the Plaintiffs may suffer, sustain or become subject to by reason of, arising out of, or in connection with: (a) the inaccuracy or breach of any of the representations and warranties of the Town set forth in this Agreement; and (b) the breach by the Town of any provision, covenant or agreement contained in this Agreement or any document, instrument or agreement contemplated hereby. In addition, the Town, jointly and severally, agree to defend, indemnify and hold the Plaintiffs harmless from and against and in respect of any and all claims, suits losses, liabilities, taxes, damages, deficiencies and expenses (including reasonable attorneys' fees) of any kind or nature (collectively the "Plaintiffs's Claims ") which any of the Plaintiffs may suffer, sustain or become subject to by reason of arising out of or in connection with: (a) the inaccuracy or breach of any of the representations and warranties of the Town set forth in this Agreement: and (b) the breach by the Town of any provision, covenant or agreement contained in this Agreement or any document instrument or agreement contemplated hereby. 19. Notice of Default. No default shall have occurred under this Agreement until the defaulting party shall have been given 10 -days written notice to cure. If the cure is E such that is will reasonably take longer than 10 -days and the defaulting party is pursuing the cure with diligence, then time within which to cure any such default shall be extended for such period as may be necessary to complete the curing of the default, providing that diligence and continuity are being used. 20. No Third Party Beneficiaries. This Agreement shall not create rights in any third -party beneficiary nor confer any benefit upon or enforceable rights hereunder upon anyone other than the parties and the "Releasees" in the Plaintiffs Release and /or the Town Release. 21. Further Cooperation. The Plaintiffs and the Town agree, at any time and from time to time after the date hereof, upon reasonable request, to perform, execute, acknowledge and deliver all such further documents as may be reasonably necessary or appropriate to carry out the provisions and intent of this Agreement and any document, instrument, or agreement contemplated thereby. 22. Specific Performance. The parties each acknowledge and agree that any breach or threatened breach of the obligation to consummate the transactions contemplated by this Agreement will cause irreparable injury to the other parties hereto and the remedy at law for any breach of such obligations would be inadequate. The parties therefore, agree and consent that the remedy of specific performance should be granted in any proceeding which may be brought to enforce any party's obligations 10 under this Agreement without the necessity of proof that such party's remedy at law is inadequate. Such equitable relief shall not be the aggrieved party's sole remedy but shall be in addition to all other remedies available in law or equity. 23. Voluntary Execution of Agreement. Each of the parties affirms that they are represented by counsel in this matter, that they have read and fully understand all of the terms of this Agreement, and that they are entering into this Agreement voluntarily without having been threatened, coerced or intimidated into the signing of this Agreement. It is further agreed that no provision of this Agreement shall be construed presumptively against any party hereto. 24. Headings. The headings and sub - headings contained in the titles of this Agreement are for convenience only and shall not be interpreted to limit or alter any of the provisions of this Agreement. 25. Governing Law. This Agreement shall be deemed to have been made, executed, and delivered in the State of Florida and shall be construed in accordance with the laws of the State of Florida. 11 26. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns. No party hereto may assign its rights or delegate its obligations under this Agreement without the express prior written consent of the other parties hereto. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon any person, other than the parties and their respective heirs, successors and assigns, any remedy or claim under or by reason of this Agreement or any terms, covenants or conditions hereof. All the terms, covenants, conditions, promises and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties and their respective heirs, successors and assigns. 27. Notices. All notices, requests and demands to or upon the parties hereto shall be in writing and shall be deemed to have been duly given or made: if delivered in person, immediately upon such in person delivery; if by nationally recognized overnight courier service with instructions to deliver the next business day, upon delivery to the receiving party; and if by registered or certified mail, return receipt requested, upon delivery to the receiving party. All notices, requests and demands upon the parties are to be given to the following addresses (or to such other address as any party may designate by notice in accordance with this Section): If to the Town: 12 With a copy to: If to any of the Plaintiffs: Martin E. O'Boyle Commerce Group, Inc. 1280 West Newport Center Drive Deerfield Beach, FL 33442 Facsimile: 954 - 360 -0807 With a copy to: William F. Ring, Jr., Esquire Commerce Group, Inc. 1280 West Newport Center Drive Deerfield Beach, FL 33442 Facsimile: 954 - 360 -0807 28. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute a single agreement, with the same effect as if the signatures thereto and hereto were upon the same instrument. Any facsimiles, photographs or photocopies of this Agreement with all signatures reproduced shall be considered, for all purposes, as if it were an executed original counterpart of this Agreement. 29. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the matters covered and the transactions contemplated hereby. No modification or waiver of any provision of this Agreement shall in any event be 13 effective unless the same shall be in writing and signed by the party to be charged, and then such waiver or consent shall be effective only as stated in writing. 30. Severability. If any term, covenant or condition of this Agreement or the application thereof shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition other than those which are held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforced to the fullest extent permitted by law. 31. Prior Approval. Based on the law and facts, the Town recognizes and agrees with O'Boyle that its actions in not approving the Application and in not issuing O'Boyle the Approvals were without basis to support its decision in connection therewith Further, the Town agrees that the asserted violations as set forth on Exhibit B were improperly asserted and the Town further acknowledges that the Town has no basis to sustain the asserted violations and agrees to immediately withdraw and dismiss with prejudice its enforcement actions relative to the asserted violations. 1A21 32. Time is of the Essence. The dates and times for performance of all of the obligations hereunder shall be deemed of the essence of this Agreement. 33. Legal Action. In the event of any action taken by any party, including, without limitation, an appeal of this Agreement or any related applications or 14 agreements, or any part thereof, O'Boyle and the Town agree that they shall each use their best efforts to vigorously defend any such actions. 34. Apology. The Town recognizes the stress and strife that the O'Boyle family has endured as a result of the Town's conduct. The Town recognizes that the O'Boyle home has a value well in excess of $1,000,000, but is uninsurable against wind because of the non - existence of proper protection, which would have been part of the Improvements installed by O'Boyle had the Town not initially denied the Application. The Town is indebted to O'Boyle for the many deficiencies in connection with the Town code that he has identified since his submission of the Application. The Town Commission believes that O'Boyle's actions will ultimately result in Gulf Stream being a better and friendlier place to live. 35JA31. Reservation of Rights. Notwithstanding language in this Agreement (including the attached Release) O'Boyle reserves all rights and remedies related to any claims which he may have related to the scope and size of Improvements which may be constructed upon the Property, to the extent that the scope and \or size of Improvements are less than the scope and size of the improvements which could have been constructed on the Property on the date when the permits for the existing Improvements (including, without limitation, the home on the Property was originally issued which date was approximately 1981. 15 36. Building Envelope. The Development Agreement which -wills include a survey provided by O'Boyle, which survey shallthat provides- a building envelope for the Property (as designated by O'Boyle pursuant to the preceding paragraph); and mallow the construction of Improvements within the area between intercostal waterway, the private roads and the common property line to the west IN WITNESS WHEREOF, the undersigned have executed this Agreement as of April , 2013. cl users \ssm \aopdata\local \microsofl \windows \temporary internet files \content outlook \cg3e7fei\lgs2061 docx meo 1125pm 2 . d ocx p;\ does 113S471BB0931dec4gr673;zdocx III v MINUTES OF THE TOWN OF GULF STREAM TOWN COMMISSION MEETING CALLED BY THE MAYOR PURSUANT TO SECTION 286.011(08), FLORIDA STATUTES ON FRIDAY, JULY 26, 2013, AT 9:00 A.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. 1. Call to Order: blayor Orthwein called the Dlecting to order at 9:01 A.M. 2. Roll Call: Present and Participating Absent w /Notice Also Present and Participating Via Telephone Via Telephone Joan K. Orthwein Thomas D1. Stanley Donna S. White Robert W. Ganger W. Garrett Dering William H. Thrasher Rita L. Taylor John "Skip" Randolph Thomas Baird Keith Rizzardt 1\layor Vice- Alayor Commissioner Commissioner Commissioner Town Manager Town Clerk Town Counsel Nlr. O'Boyle's Attorney Town Counsel Randolph's Assistant Attorney 3. Approval of Agenda: Commissioner Ganger moved and Vice -Mayor Stanley seconded the approval of the Agenda. All voted AYE. 4. Commissioners' Consideration of Settlement Agreement Regarding the Cases Listed in Exhibit A. Attached. Town Counsel Randolph suggested a recess of fifteen (15) to twenty (20) minutes at this time, as Alr. Baud was still in discussion with Dlr. O'Boyle on the telephone, regarding final issues on the settlement agreement. He inquired if the draft copies of the document had been received and distributed as yet, amongst the Commissioners for their review. Town Clerk Taylor responded that the draft documents were just received and being copied, and would be distributed very shortly. Town Manager Thrasher inquired if during the recess, the Commissioners could discuss any document issues. Town Counsel Randolph stated "No ", and to wait until the Commissioners return to session. Mayor Orthwein called for a recess of twenty (20) minutes to review the documents independently. She reconvened the meeting at 9:36 A.M. Town Counsel Randolph discussed the procedure of reviewing the settlement agreement with prejudices. He commented on Mr. Joel Chandler's and Mr. Ryan Witmer's positions with regard to this agreement, advising that they are not a part of the agreement at this point. Special Toun Commission Meeting; Toun or Gulf stream J my 26, 2013 — Page 2 Mr. Baud explained the revisions of the original prepared settlement agreement that he had with Dlr. O'Boyle and N[r. William Ring, Mr. O'Boyle's Attorney, with regard to the Commission's request of Wednesday, July 24, 2013. He read and listed the changes in the draft settlement agreement. Town Counsel Randolph stated that the Special Dlagistrate's case against Mr. O'Boyle will be dismissed with prejudice, and the Town will be dismissing their code violation case, in that regard. Mr. Baud reported that Nlr. O'Boyle has begun repainting his house to conform to the Town's code. He also discussed that Nlr. O'Boyle will have the development agreement for lot coverage with a survey completed, as soon as the settlement agreement has been resolved. Town Counsel Randolph continued discussing Nit. O'Boyle's demolition agreement with his proposed renovations. He further stated that once the settlement agreement has been signed, Nlr. O'Boyle would go forward with the renovations. The diagrams of the property were removed from Town Hall the previous day. Town Counsel Randolph stated that variances were not required, and to interpret the code as allowing the renovations to take place. He suggested the Commission re- confirm to approve the site plan review, as a condition this day, and that will basically be done when the agreement is signed. Mayor Orthwein inquired with regard to the development agreement and the buildable lot, e.g., the submerged property between the lntercoastal and the roadway. Town Counsel Randolph replied that a notable bond will be staked out to know what it is. Mayor Orthwein inquired regarding a resolution if Nlr. O'Boyle asks for one thing and die Commission requests another regarding the canal. Town Counsel Randolph stated that there was discussion on the telephone regarding that issue. He further reported that Nit. O'Boyle felt that he could build whatever was in effect in 1981 or 1983. Town Counsel Randolph also stated that I\lr. O'Boyle agreed that the parties will work together in good faith. Mayor Orthwein commented that better clarification on that issue was needed through Charles Siemon. Mr. Baud stated that he has a lot of confidence in Mt. Siemon, knowing that he is reasonable and a practical lawyer who finds solutions with problems. Mayor Orthwein inquired if it is possible to have 11r. Siemon come up with a buildable lot area and have him in charge of it, instead of Nlr. O'Boyle. She also questioned if Mr. O'Boyle would honor Mr. Siemon's decisions. Vice -Mayor Stanley inquired if there is a project file from 1981, or any notes in the file with regard to this. Town Manager Thrasher responded those files arc no longer available. Special Toan Commission Mccting Taus ufGuifsusmm July w, 2013 — Page 3 Town Clerk Taylor stated that those files were purged after fifteen (15) years, but that the code could be checked and assume that the code was met. Mayor Orthwein suggested thnt the code from that time should be read. Mr. Baud stated that when the settlement agreement has been executed this day, all the cases hill be dismissed. He continued that the issue of the buildable lot will still be worked out between him, Mr. Siemon and their client, Mr. O'Boyle, and he feels it will be acceptable to both the Town and Mr. O'Boyle. Mr. Baird further stated that it was best to know what die buildable lot areas would be. Mayor Orthwein inquired if Mr. O'Boyle is in full agreement in having trust with Mr. Sicmon's opinion in regard to the buildable lot. Mr. Baud commented that the concern of the lot coverage is the mass of the structure therefore a maximum size should be reached. He said that he would obtain an agreement from Mr. O'Boyle regarding not to exceed a defined square footage. Mayor Orthwein responded that n maximum amount that is buildable would be a big help. Vice -Mayor Stanley interjected that the present home on the property is 8,000 sq. feet. Mr. Baud inquired as to the ranges in the cotmnunity. Mayor Orthwein replied that it depended on die size of the lots, the ocean and many other ranges. Vice -Mayor Stanley reported that the properties range from 5,000 to 12,000 square feet. He continued that he did not believe that there was a 15,000 square foot house in that area. Commissioner Ganger gave some history on the homes that Mr. O'Boyle owns. He further stated that Mr. O'Boyle has n home that abuts the Intracoastal and almost abuts the roadway. Commissioner Ganger discussed the proximity of Mr. O'Boyle's home to his neighbors. He continued that he felt that a home could not effectively be built that is substantially larger than what is there at present, in terms of its footprint. Commissioner Ganger stated that it is a two (2) story home. Vice -Mayor Stanley reported that public records show that Mr. O'Boyle's present home is 7,907 square feet, which is listed slightly higher on the application. Town Manager Thrasher discussed the plan that was submitted which asked to increase the footage to 8,110 square feet from 8,001 square feet. He continued that the Town's code (for reference) would allow a home 5,221 square feet. Mr. Baud stated that effectively Mr. O'Boyle would not be able to build die home. Special Toun commission I•leedng Toun or Gulf Swam Jule 26, 2013 — Page 4 Town Counsel Randolph inquired if he was to tear down what is there today, would Nit. O'Boyle be able to reconstruct a home. Mayor Orthwein responded "Yes" up to 8,110 square feet. Town Counsel Randolph suggested recessing around noon to get this final agreement satisfied, and have a final discussion this day. Commissioner Ganger agreed and stated "Speed is good. Let's get this thing done ". Town Counsel Randolph explained in detail the paperwork and time involved to complete this agreement, and gave instructions to his Assistant Attorney, bar. R zzardi. Vice -Mayor Stanley inquired regarding the Witmer case, unrelated to the square footage, whether his letter was going to function as dismissal with prejudice or can a letter be prepared for his signature. Town Counsel Randolph stated a letter of dismissal with prejudice could be prepared especially for him with acknowledgement that he was withdrawing his public record request. Vice -Mayor Stanley added that the Town should be prepared in that Nit. O'Boyle may come back with regard to porches and balconies, whether it is 8,000 or 10,000 square feet. Town Counsel Randolph suggested that die Commission review the site plan on file for approval. Mayor Orthwein reported that she felt that in 1983 three (3) story or higher homes were not approved, and it is important to state at this time that only a two (2) story house is allowed. Nit. Baud agreed that 8,110 square feet and two (2) stories only would be in the agreement. Town Counsel Randolph inquired if the Commissioners have understood everything so far, adding that he felt tat they were moving forward in good faith. Town Manager Thrasher inquired regarding the level 3 plan review process. Town Counsel Randolph responded that it was presented to die Commission when Dlr. Currie was present and Mr. Siemon made his presentation at Town Hall. Town Manager Thrasher inquired regarding the reference to "immediately approving plans ". He added it does have to go through Delray's permitting process which the Town has no control over. Town Manager Thrasher continued that the Town signs off on the building permit application. He questioned if bIr. O'Boyle thought that the Town could waive that requirement that Delray has final approval. Town Manager Thrasher suggested speaking to Mr. O'Boyle regarding that process. Special Tunn Commission Meeting Tunn of Gulf Strom July 26, 200 — Page 5 Vice -Mayor Stanley recapped the building permit requirements that go through extensive review. He continued that the process could take up to 45 -60 days with Delray and that Mr. O'Boyle should understand that it is not the Town's fault. Town Clerk Taylor detailed the Town's process with regard to the zoning part. She continued, Delta), works with the Florida Building Code, which addresses the technical issues and which the Town of Gulf Stream has no control over. Mr. Baud stated he would explain the above information to Mr. O'Boyle. Town Manager Thrasher inquired if Mr. O'Boyle agrees that the wire transfer of monies would be in his name, and not any reference to his Corporation. Town Counsel Randolph questioned the importance of the name on the wiring of monies to the Town. Vice -Mayor Stanley stated that die Commerce Group is not part of die action. He continued Mr. O'Boyle is doing this because of his in -house Counsel and may want to deduct it later. Vice -Mayor Stanley explained further that a letter of approval stating that when the Town wires the monies to ".XYZ" Corporation, that is in satisfaction of this. Town Manager Thrasher discussed 16 Hidden Harbor which has two (2) signs on the property. Town Counsel Randolph stated that the signs will be corning down and that item will be added to the agreement. Commissioner Ganger repeated the importance of only a two (2) story home and the problems with a Higher house. There was a short fifteen (15) minute recess. Town Manager Thrasher made inquiries regarding the wiring of the money and the timeline. Mr. Baud explained the execution of the agreement and of the money which was to be wired this day. Town Counsel Randolph stated that a copy of the final agreement should be in the Commissioners' hands within the next five (5) minutes for their review. Mr. Rizzardi stated he received an email from Mr. Witmer confinning the intent to withdraw everything, and a letter stating that, in addition to the email. He added he did not receive a voluntary dismissal with prejudice document to be filed with the Court that is executed at this point. Special Town Commission Meeting Town nf Gulf Sucam July 26, 2013 — Page 6 Town Counsel Randolph and Mr. Rizzardi discussed their directives for Ashlee to prepare the documents. Mr. Rizzardi distributed copies of the updated final settlement agreement. Town Counsel Randolph and Mr. Baird discussed in great detail all the updated changes to the final settlement agreement. Mr. Rizzardi further described the process of finalizing this procedure and suggested Mayor Orthwein be the only signature on the document. Vice -Mayor Stanley moved and Commissioner Ganger seconded approval for Nlayor Orthwein to sign and bind the agreement. All vote AYE. Town Manager Thrasher and Mayor Orthwein left the premises to proceed with wiring the money. There was another short recess at this time. Vice -Mayor Stanley called the meeting back to order at 2:13 PAL and reported that Mayor Orthwein has left the dais in order to effectuate certain items that related to approval of the settlement agreement. He continued that since there is no other business, the meeting is hereby adjourned. Sandra Fein Recording Secretary MINUTES OF THE SPECIAL MEETING HELD BY THE TOWN COMMISSION AT THE CALL OF THE MAYOR OF THE TOWN OF GULF STREAM PURSUANT TO SECTION 286.011(08),FLORIDA STATE STATUTES, ON WEDNESDAY,JULY 24, 2013 AT 3:30 P.M., IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. E Call to Order. Mayor Orthwein called the meeting to order at 3:30 P.M. Roll Call. Present and Participating: Absent With Notice: Also Present and Participating: II. Approval of Agenda. Joan K. Orthwein Thomas M. Stanley Robert W. Ganger W. Garrett Dering Donna S. White William H. Thrasher John Randolph Rita Taylor Mayor Vice Mayor Commissioner Commissioner Commissioner Town Manager Town Attorney Town Clerk Commissioner Ganger moved and Commissioner Stanley seconded that the agenda be approved and all voted AYE. Attorney Randolph distributed copies of a proposed agreement that had been given to him just before 2:30 this date and suggested that time should be given to read it and the amended Exhibit A that is attached. He stated this matter could be discussed at this open meeting or a Closed Door Meeting could be held. Mr. Randolph reminded that Closed Door Sessions relate only to settlement discussions and litigation strategy related to costs of litigation and will be quite limited. He stated if the Commission decides to go forward with a Closed Door Session, the attached Exhibit has been modified so as to exclude the Chandler, Witman and various corporate court cases and the Petition for Writ of Cert. Attorney Randolph advised that if there is to be a Closed Door Session, the Mayor must read the agenda aloud for the Closed Door Session. Commissioner Ganger remarked that most are not familiar with the cases proposed for settlement. Attny. Randolph stated the cases themselves will not be discussed in closed door session, only settlement matters. He added that the cases, except for 2, are Public Records suits filed by Mr. O'Boyle,, people who work for him or corporations in which Mr. O'Boyle has an interest. The other case is a Federal Law Suit in which he claims his 1st amendment rights have been violated as having been cited for paintings on the side of his hours. Another is a Writ of Cert filed by Charles Sieman who appeared for Mr. O'Boyle at his Special Meeting N , Town Commission -July 24, 2013 page 2 hearing for variances. It is just an appeal of the Commission's decision at that point. Attorney Randolph reminded that individuals do not take notes at the Closed Door Sessions. You give directions to your attorneys at the session but the Commissioners have to come back in an Open Door Session and explain what was done, not the details of the Closed Door Session as those remain private until litigation is concluded. III. Announcements made by Mayor Orthwein. A. Pursuant to Section 286.011(8), Florida Statutes, the Town Commission is adjourning and commencing a Closed Door Attorney Client Session for the purpose of discussing settlement negotiations and /or strategy relating to litigation and expenses in the cases set forth on Exhibit "A" attached hereto. B. The estimated length of the session is approximately one hour. C. Those persons attending the session are: Mayor Joan Orthwein; Town Commissioners Robert Ganger and Thomas Stanley; Town Manager William H. Thrasher; Town Attorneys John C. Randolph and Thomas J. Baird; and Court Reporter from Ley & Marsaa Court Reporters, Inc., Julie Andolpho. D. Attendees will now retire to Conference Room. The Closed Door Session began at this point with only the above named persons present. IV. Reconvene Commission Meeting The Open Meeting reconvened at 5:44 P.M. Roll Call: Commissioner Ganager, Commissioner Stanley, and Mayor Orthwein were present. Mayor Orthwein announced there would be a Special Meeting held on Thursday, August 1, 2013 at 3:00 P.M. to receive a proposed settlement agreement for consideration after Attny. Baird has an opportunity to meet with their attorneys to discuss the clarification. She advised that should the document be available any sooner, the Special Meeting may be moved to an earlier time. She added that Mr. O'Boyle owns two houses and the agreement should include that signs and /or drawings should be required to be removed entirely from both properties and all suits, i.e. Witmer and other corporation suits that O'Boyle is a party to be dropped. Commissioner Stanley asked if Mr. O'Boyle was associated with all of the corporations listed in the suits to which Attny. Randolph replied, yes, and would be included in the settlement. Commissioner Ganger publically thanked those persons that have helped accomplish what has been achieved so far, a classic example of people coming together. E,pecial Meeting Town Commission -July 24, 2013 V. Other Matters. There were no other matters. VI. Adjournment. Mayor Orthwein adjourned the meeting at 5:50 P.M. Rita Taylor Town Clerk page 3 1 Dq NUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, OCTOBER 11, 2013 AT 9:00 A.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order: Mayor Orthwein called the Meeting to order at 9:01 A.M. II. Pledge of Allegiance: The Pledge of Allegiance was led by Mayor Orthwein. III. Roll Call: Present and Joan K. Orthwein Mayor Participating Thomas M. Stanley Vice -Mayor (Via Telephone) W. Garrett Dering Commissioner Robert W. Ganger Commissioner Absent w /Notice Donna S. White Commissioner Also Present and William H. Thrasher Town Manager Participating Rita L. Taylor Town Clerk John C. Randolph Town Counsel Garrett J. Ward Police Chief Danny Brannon of Town Consultant for Undergrounding Brannon & Gillespie Project Christopher O'Hare Resident Charles Veile Resident Carlos Linares Architect — Randall Stofft Maureen Smith Landscape Architect IV. Minutes: A. Regular Meeting and Public Hearing held on September 13, 2013 Commissioner Ganger reported that on Page G, it should state that someone will contact Shelly Himmeltich, not primarily him, regarding her participation on the Ad Hoc Committee. Commissioner Ganger moved and Vice -Mayor Stanley seconded to approve the amended minutes of the Regular Meeting and Public Hearing held on September 13, 2013. All voted AYE. B. Budget Hearing held on September 13, 2013 Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve the minutes of the Budget Hearing held on September 13, 2013. All voted AYE. C. Special Meeting Calling Closed Door Session held on September 13, 2013 Commissioner Ganger moved and Vice -Mayor Stanley seconded to approve the minutes of the Special Meeting Calling Closed Door Session held on September 13, 2013. All voted AYE. D. Special Meeting and Public Hearing held on September 17, 2013 Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve the minutes of the Special Meeting and Public Hearing held on September 17, 2013. All voted AYE. E. Budget Hearing held on September 24, 2013 Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve the minutes of the Budget Hearing held on September 24, 2013. All voted AYE. Regular Meeting and Public Hearing Town Commission Meeting October 11, 2013 — Page 2 V. Additions, Withdrawals. Deferrals. Arrangement of Agenda Items: Town Manager Thrasher reported that Item X -A "Consideration of an Interlocal Agreement with the City of Delray Beach for Engineering Reviews related to permitting" should be withdrawn at this time. Town Clerk Taylor stated with regard to Item X -B "Request for Consideration - Appointment to ARPB" that a letter was received from Mr. Kent. She reported that she would combine this request along with Robert Dockerty's letter for review. VI. Announcements: A. Mayor Orthwein announced the upcoming Regular Meetings and Public Hearings. 1. November 8, 2013 @ 9:00 A.M. 2. December 13, 2013 @ 9:00 A.M. 3. January 10, 2014 @ 9:00 A.M. 4. February 14, 2014 @ 9:00 A.M. 5. March 14, 2014 @ 9:00 A.M G. April 11, 2014 @ 9:00 A.M. VII. COMMUNICATIONS FROM THE PUBLIC (5 MIN. MAXIMUM): Mayor Orthwein asked for any speakers. Mr. O'Hare stated that he asked Town Manager Thrasher if he could include his website on the Town's website. Town Counsel Randolph stated that there should be no posting of private websites on the Town's website. He listed and described the websites that were links to the Town's governmental websites. Town Counsel Randolph advised the Commission that Mr. O'Hare's request was inappropriate to be included on the Town's website. Mr. O'Hare thanked Town Counsel Randolph for the clarification. Mr. Charles Veile stated that he and his friends are very concerned regarding the high taxes, and asked why they have gone up. He further commented that at the original annexation meeting it was reported that the taxes would go down, and that it was stated "a no brainer ". Mr. Veile stated that he realized that Mr. O'Boyle's legal case costs were one of the main reasons. He requested the exact total cost of all legal and Office Staff fees in the preparation of the O'Boyle "deal". Mr. Veile also requested the reason the Town stayed in the lost battle with Mr. O'Boyle. He addressed Mr. O'Hare's website which states that "The only thing the Police do, is drive residents home from cocktail parties ". Mr. Veile continued "That is not true because they never gave me one ". He repeated that he is very concerned for the taxpayers. `t 4 Regular Meeting and Public Hearing Town Commission Meeting October 11, 2013 — Page 3 VIII. PUBLIC HEARING: A. Applications for Development Approval 1. An application submitted by Randall Stofft Architects as agent for Kevin & Michelle Clark owners of property located at 3250 Polo Drive, Gulf Stream, Florida, legally described as Lot 13 and part of Lot 14, Polo Cove Subdivision for the following: a. DEMOLITION PERMIT to demolish existing structures b. LAND CLEARING PERMIT to clear site for new construction c. SPECIAL EXCEPTION #1 to allow 236 square feet of covered, unenclosed area that exceeds the maximum Floor Area Ratio. d. SPECIAL EXCEPTION #2 to permit rear waterfront setback of 30'. e. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit construction of a Bermuda style, partial 2 -story, single - family dwelling with attached garage, pool and pavilion, a total of 7, 552 square feet. Town Clerk Taylor swore in Carlos Linares, Danny Brannon and Maureen Smith. Mayor Orthwein asked for any ex -parte and there was none. Mr. Linares described and displayed the renderings of the new home to be constructed at 3250 Polo Drive. He detailed and displayed the grey slate -like roof sample. Mr. Linares also discussed the colors being utilized, displaying samples colors, and the lighting locations on the exterior. Commissioner Ganger inquired regarding any problems with fading of the grey color on the roof. Mr. Linares stated he believed it did not fade, as it is pigmented into the material itself. Vice -Mayor Stanley inquired regarding any sconces or floodlights on the house itself. Mr. Linares stated that there would be two (2) larger sconces on either side of the entry, smaller ones by the garage, and at the exit. He continued that there would also be smaller ones by the pool area. Mr. Linares reported that they are not for security but for decorative purposes. Commissioner Ganger inquired if they were all electrical and not gas. Mr. Linares responded that was correct. Vice -Mayor Stanley asked for a review of the front and rear setbacks of the structure. Mr. Linares reported the house is located within the setback regulations. He continued that at the front there is a 32' setback, and the Town has given him a floor area increase incentive if the second story is setback an additional 10'. Mr. Linares further reported that at the rear there is a 30' rear setback, a reduction from the required 50' due to a special exception, and the sides are at 22'6" which complies with the Town, as well. Regular Meeting and Public Hearing Town Commission Meeting October 11, 2013 — Page 4 Mayor Orthwein inquired if the pavilion was open, enclosed or shuttered. Mr. Linares replied that it was open on three (3) sides with a small cabana in the back. He continued that there are no shutters but decorative louvers are planned, at the present time. Commissioner Ganger inquired regarding the flood elevation of the house. Mr. Linares responded that the finished floor of the dwelling is 8.5', and the garage is at 7'. Commissioner Ganger asked if the garage is right at the line. Mr. Linares answered "Yes ". Mayor Orthwein asked for any further comments from the Commissioners. There were none. Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve the Demolition Permit to demolish existing structures at 3250 Polo Drive, Gulf Stream, Florida. All voted AYE. Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve a Land Clearing Permit at 3250 Polo Drive to clear site for new construction. All voted AYE. Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve Special Exception #1 to allow 236 SF of covered, unenclosed area that exceeds the maximum Floor Area Ratio. All voted AYE. Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve Special Exception #2 to permit rear waterfront setback of 30'. All voted AYE. Vice -Mayor Stanley inquired if the roof tile that was shown was accepted by the ARPB. Commissioner Ganger asked if the ARPB had seen the actual tile. Town Clerk Taylor responded "No ". They did not bring it to the ARPB Meeting. Town Manager Thrasher stated it was up to the Commission to decide if that rile was approved, as he had no problem with the applicant's decision. Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve Level III Architectural /Site Plan based on a fording that the proposed partial 2 -story Bermuda style single family dwelling with attached garage, pool and pavilion, a total of 7,552 SF meeting the minimum intent of the Design Manual and applicable review standards with the following conditions: I. Regular Meeting and Public Hearing Town Commission Meeting October 11, 2013 — Page 5 1. All dock, boat lift and ancillary fixtures shall conform to Section 66 -369 of the Gulf Stream Code. 2. All utilities shall be underground. 3. Outdoor lighting, color selections and roof materials shall be presented for approval prior to completion of the approval process. 4. Landscaping in the front of home shall all be installed on private property, not in the right -of- way. All voted AYE. Mayor Orthwein asked for further questions or comments. There were none. IX. Reports: A. . Utility Undergrounding — Danny Brannon (Engineer) Mr. Brannon provided an update on the easements with regard to the undergrounding project stating that two (2) are still outstanding and have been contacted. He continued that one (1) is hung up with legal issues for a short period. Mr. Brannon reported that the survey work is completed and they are now in the process of the moving the stakes for clearing. He also detailed the staking process of the entire easement, and explained how the landscaping will remain the same. Mr. Brannon stated he has been in contact with FPL to secure information as to who would be the representative regarding the North Ocean street lighting installation. Commissioner Ganger inquired regarding FPL's employee downsizing and how it will affect this community. Mr. Brannon stated that this was routine in FPL's history, it is nothing new and would not affect the Town. Commissioner Ganger commented on the Town's "itchy" relationship with FPL for the past two (2) years and how the Town is dependent upon Mr. Brannon to keep the "fire" under FPL. Mr. Brannon again reassured the Commission that there will not be a slowdown by FPL. Commissioner Ganger inquired regarding the recently installed electric meters and questioned if there was "double dipping ". Mr. Brannon described the new smart meters colored flashes, adding the new meters will not conflict with our undergrounding project. Commissioner Ganger inquired if there were any manuals for citizens to learn more about the new meters. Mr. Brannon stated that he would obtain information for the citizens explaining the new meters system of current consumption and demands. He continued that these new meters have a lot of capability. Mr. Brannon also reported that all the information is on the website. Regular Meeting and Public Hearing Town Commission Meeting October n, 2013 — Page G B. Town Manager 1. Update Re: Appeal of 2013 Undergrounding Tax Assessment Town Manager Thrasher updated the appeal process with Margo Stahl /Jim Gammon and their Attorney Marci Oppenheimer Nolan. He stated that this appeal process is now complete and not warranted. Town Manager Thrasher reported that it went through the complete bond validation. He also stated that he had reported that the Town's street signs would begin installation on Monday, October 14`h, but that has changed to Wednesday, October 23d. Town Manager Thrasher reminded everyone that Place an Soleil's signs had also been added to the contract. Vice -Mayor Stanley inquired regarding estimated time of street signs' project. Town Manager Thrasher responded "Five (5) working days ". Commissioner Ganger inquired regarding the pole's footer. Town Manager Thrasher stated that the contract includes the footer, a stand and installation of the pole itself. C. Architectural Review & Planning Board 1. Meeting Dates a. October 24, 2013 @ 8:30 A.M. b. November 21, 2013 @ 8:30 A.M. c. December 19, 2013 @ 8:30 A.M. d. January 23, 2014 @ 8:30 A.M. e. February 27, 2014 @ 8:30 A.M. f. March 27, 2014 @ 8:30 A.M. Commissioner Ganger asked for an update on the new Ad Hoc Committee. Mayor Orthwein reported that William (Bill) Boardman is the Chairman and he is in the process of selecting three (3) more applicants. She continued that he is hoping to get started in November. D. Finance Director 1. Financial Report for September 2013 Town Manager Thrasher stated that he will provide the September 2013 Financial Report at the November Commission Meeting, due to year -end adjustments. He also reported that the auditors will be in Town Hall in December for field work. 2. Water Usage as of September 30, 2013 Town Manager Thrasher submitted the Report for September 30, 2013, and it was accepted as presented. Commissioner Ganger discussed how water conservation is improving, and how the residents are taking it more seriously with the costs rising. Regular Meeting and Public Hearing Town Commission Meeting October n, 2013 — Page 7 E. Police Chief 1. Activity for September 2013 Police Chief Ward submitted the Activity Report for September 2013, and reported that at the bottom of the traffic contacts section, that number should be corrected to 99. Commissioner Ganger inquired as to the definition of grand theft. Police Chief Ward responded "Anything valued over $300 ". X. ITEMS FOR COMMISSION ACTION: A. Consideration of an Interlocal Agreement with the City of Delray Beach for Engineering Reviews related to permitting HAS BEEN REMOVED FROM AGENDA. B. Request for consideration- Appointment to ARPB — Robert Dockerty and addition of Hewlett Kent for consideration Commissioner Ganger stated that Robert (Bob) Dockerty was a good candidate for an ARPB Alternate. He also commented how it was a good idea to recycle previous members of that Board, Mr. Kent being one. Commissioner Ganger suggested if there is only one position available on the Board, possibly any other applicants could be considered for the Ad Hoc Committee. There was a discussion amongst the Commission regarding Mr. Dockerty's and Hewlett Kent's availability, experience, and interest. Commissioner Dering stated that alternates were always required on the ARPB. Mayor Orthwein responded that only one was needed at this time. Commissioner Ganger moved and Vice -Mayor Stanley seconded to approve the appointment of Robert Dockerty to the ARPB, as an alternate. All voted AYE. Mayor Orthwein suggested the letter received recently from Mr. Kent be put on file for future consideration. C. Items by Mayor & Commissioners Vice -Mayor Stanley stated that there are a couple of light poles at the parking lot by the tennis courts at the Bath & Tennis Club. He believed that these would be removed due to the undergrounding project. Vice - Mayor Stanley wanted to be sure that adequate replacements would be provided. Commissioner Ganger commented on the citizens' numerous questions that are happening in Town, e.g. the pink ribbons on the staking sticks. Mr. Brannon replied they are markings which he described in detail. He continued by advising they go down 18" and will not hit any lines. Mr. Brannon emphasized that they should not be removed other than by the workmen. Regular Meeting and Public Hearing Toxin Commission Meeting October 11, 2013 — Page 8 XI. ADJOURNMENT: Mayor Orthwein adjourned the meeting at 9:57 A.M. Sandra Fein Recording Secretary MFVIUTESr'OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, MAY 10, 2013 AT 9:00 A.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order: Mayor Orthwein called the Meeting to order at 9:00 A.M. II. Pledge of Allegiance: The Pledge of Allegiance was led by Mayor Orthwein. III. Roll Call: Present and Joan K Orthwein Mayor Participating Tom Stanley Vice -Mayor Muriel Anderson Commissioner W. Garrett Dering Commissioner Robert W. Ganger Commissioner Also Present and William H. Thrasher Town Manager Participating Rita L. Taylor Town Clerk John "Skip" Randolph Town Counsel Garrett Ward Police Chief Shelly & Wm. Himmeltich Town Residents Martin O'Boyle Town Resident Jonathan O'Boyle Mr. O'Boyle's Son Benjamin Schreier Agent for Mark T. Pulte- Member Joe Peterson Landscape Architect for Mr. Pulte & Mr. Ralph MacDonald Joe Pike Civil Engineer for Mr. MacDonald William Wietsma Agent Mr. MacDonald Danny Brannon of Town Consultant for Undergrounding Brannon & Gillespie Project Paul Engle Surveyor Tom Murphy Himmelriches' Legal Representative Martin Minor Urban Design IV. Minutes: A. Regular Meeting & Public Hearing held on April 12, 2013 Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve the Minutes of the Regular Meeting held April 12, 2013. All voted AYE. V. Additions. Withdrawals, Deferrals. Arrangement of Agenda Items• There were none. r 1 Regular Meeting and Public Hearing Town Commission Meeting May 10, 2013 — Page 2 VI. Announcements: A. Mayor Orthwein announced the upcoming Regular Meetings and Public Hearings. 1. June 14, 2013 @ 9:00 A.M. 2. July 12, 2013 @ 9:00 A.M. 3. August 9, 2013 @ 9:00 A.M. 4. September 13, 2013 @ 9:00 A.M. 5. October 11, 2013 @ 9:00 A.M 6. November 8, 2013 @ 9:00 A.M. Town Clerk Taylor reported that both Commissioners Anderson and Dering would not be in attendance for the June 14, 2013 meeting. VII. PUBLIC HEARING: A. Applications for Development Approval Town Clerk Taylor swore in all persons who were going to speak at this hearing: Benjamin Schreier, Joe Pike, William Wietsma, Danny Brannon, Shelly Himmehich, William Himmelrich, Martin O'Boyle, Jonathan O'Boyle, Joe Peterson, Tom Murphy, Martin Minor, and Paul Engle. Town Clerk Taylor asked for Declarations of Ex -parte communication concerning the items being heard during this Public Hearing. Commissioner Dering stated that he had talked to one of the applicants regarding their next application. There was no ex -parte communication. 1. Benjamin Schreier, Affinid Architects, acting as Agent for 3211 N. Ocean Boulevard, LLC LLC, Mark T. Pulte - Member, the owner of property located at 3211 N. Ocean Blvd., Gulf Stream, Florida which is legally described as the North 4.5 ft. of Lot 3 and the S 108 ft. of Lot 4 Gulf Stream Ocean Tracts in Gulf Stream, Florida discussed the project in detail, displayed architectural diagrams and stated codes have been met. He requested the following: a. NORTH OCEAN BOULEVARD OVERLAY PERMIT to install entry gate and piers and supplement existing landscaping within the corridor. Mr. Schreier addressed questions from the Town Commissioners. Mayor Orthwein asked for questions from the audience regarding Mr. Schreier's presentation. Mr. O'Boyle inquired further regarding the entry gate's setbacks along the right of way. He referred to Code 66 -431. Commissioner Dering asked for a clarification of Code Section 66 -431. Town Counsel Randolph read Code Section 66 -431, and described setbacks and gate walls within the district. He also stated that it was appropriate that the gate be placed where it's proposed. Mr. O'Boyle questioned that justification. Reg%& Meeting and Public Hearing Town commission Meeting May 10, 2013 — Page 3 Mayor Orthwein and Vice -Mayor Stanley both asked for any further questions from the public. Mr. Minor discussed in detail the North Ocean Blvd. Overlay Permit, relaying dimensions within Code Section 72 -97A. Vice -Mayor Stanley stated he had no further comments regarding the setbacks. Commissioner Ganger moved and Commissioner Anderson seconded to approve the North Ocean Boulevard Overlay Permit for the property located at 3211 N. Ocean Blvd., Gulf Stream, Florida. All voted AYE. 2. William Wietsma, agent for Ralph MacDonald, owner of the property located at 1410 North Ocean Boulevard, Gulf Stream, Florida, which is legally described in metes and bounds as Lots 1, 1 -A and 2, McLouth Subdivision, Gulf Stream, Florida explained the subdivision of the property. a. SUBDIVISION to divide one, 4.733 acre parcel of land into 3 lots. b. DEMOLITON PERMIT to remove an existing driveway, a garage and shed. c. NORTH OCEAN BOULEVARD OVERLAY PERMIT to remove existing driveway from proposed Lot "C ". d. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit the division of one parcel of land containing 4.733 acres into 3 lots with the existing structures on proposed Lot "B" to remain. Mayor Orthwein inquired regarding ex -parte regarding this application. Commissioner Ganger stated he had several persons in attendance for the purpose of a better understanding of this issue. He continued that it was not for substance. Mr. Wietsma presented a proposal to subdivide nearly 5 acres into 3 lots. Essentially Lot A would be 40,000 square feet. Middle lot would be 80,000 square feet preserving the house and the third lot about 80,000 square feet. They are proposing to keep the existing grade, existing landscaping and preserving the house in the middle. They are not changing the character and structure of the neighborhood. The private yacht basin will be part of the deed to property A. A buffer of landscaping will be provided to eliminate line of sight from the water and road. He also addressed the recent concerns of the neighbors to the south of this property regarding landscape barriers, drainage, and has agreed to accept their issues: drainage inspection every six (6) months, landscape barrier on the south property line, building will access off the private road (not AlA), lower the finished floor elevation of the home two (2) feet, and push the house to the north, require a 50 -foot setback on the south, provide no structures can be built within the first fifty (50) feet, a proposal of two (2) drainage catch systems, one on the present property and a catch basin on the Himmeltich property. Mr. Wietsma stated that Mr. MacDonald wants to exercise his rights regarding a fence along the south property line. He continued that building a fence is the only "bone of contention" between the parties at this time. Rcgular Mccting and Public Hcaring Town Commission Mecting May 10, 2013 — Page 4 1 D Commissioner Ganger inquired further regarding the fence issue. He also asked for a better description of the drainage issue. Town Manager Thrasher asked Mr. Wietsma for better clarification of the setbacks and proposed drainage pipes. Mr. Wietsma responded to Town Manager Thrasher's inquiries by displaying a diagram and stating that they are overlaying the existing driveway on the property, and proposing that the driveway does not disrupt any pipes. Vice -Mayor Stanley asked for further discussion on the landscape or the landscape buffer. Mr. Peterson discussed in detail his changes with regard to the landscape, explaining the addition of new trees and hedges. Commissioner Granger inquired regarding what would be visible by the neighbors to the property. Mr. Peterson responded, the wood fence, an issue which he was not in favor of.. Mr. Himmelrich questioned the diagram stating he did not know anything about a fence until this meeting. Town Counsel Randolph stated that applicants should go forward with their presentation at this time, with no interruptions. All Commissioners viewed the newest landscape diagrams which were created 1 1/2 weeks earlier. Mayor Orthwein asked for further questions regarding landscaping. Commissioner Anderson asked if the neighbors agreed. Mr. Himmelrich stated that he and his wife, Shelly, have not been able to meet with his neighbor, Mr. MacDonald, this past month. He continued that he has been most cooperative with Mr. MacDonald. Mr. Himmeltich further said that due to the changes he just heard at this meeting, he is not properly prepared at this time. He discussed all his efforts, in detail, to be reasonable with Mr. MacDonald. Mr. Himmeltich reiterated Mr. MacDonald's statement "Wanting to exercise his rights ". Mr. Murphy stated that he has been more of a personal friend to the Himmelriches, rather than their legal advisor. He continued to discuss the issues of the selling of the Spence property on the south and the MacDonald's property on the north. He addressed the drainage issue Code Section 49 -93. Mr. Murphy stated the Himmelriches would be adversely affected with regard to any forthcoming storms /hurricanes. He further stated that Mr. MacDonald stated that the "Himmehiches would not have access to his property". Regylar Meeting and Public Hearing Town Commission Meeting May 10, 2013 — Page 5 Mr. Murphy addressed the absurdity and insult of Mr. MacDonald's actions. He stated that it was not the responsibility of the Himmehiches to bring these issues up at Commission Meetings, but rather petitioner Mr. MacDonald's presence was also required. Mr. Murphy addressed the landscape buffer and the fence issues in detail. He continued that the Himmel fiches want this matter resolved in an amicable way. Mr. Murphy said that the Commission has to say "No" to Mr. MacDonald and that he should come up with a better plan, especially the addition of the wooden fence going through the natural vegetation. He concluded with saying don't let this be a project that the Commission will regret. Shelly Himmelrich thanked and commended Mr. Murphy on his presentation. She stated that they were told the previous day, at a meeting, with Mr. Wietsma, that their entire hedge would be undisturbed and maintained. Mrs. Himmel ich stated that at this day's meeting that was not the situation with regard to the fence. She would like for the MacDonald's to keep to their original agreement with regard to undisturbed landscaping. Mrs. Himmelrich remarked on how Mr. MacDonald does not attend meetings and will not release his cell number. Her request is that they receive a guarantee to access to all their property's drains. Mr. O'Boyle requested copies of agent's documentation as related to memos dated December 18, 2012 and April 5, 2013, from Mr. Minor to Town Manager Thrasher. Town Manager Thrasher responded that not all forms were submitted at this time but will be a condition prior to recording of re -plat. Vice -Mayor Stanley inquired if Mr. O'Boyle could state what the requirements were. Town Manager Thrasher stated that he was not prepared to answer, at this time. Town Counsel Randolph stated that these documents set forth by Mr. O'Boyle are required by the Town in order for the Town Manager to advise the Commissioners whether or not all these pre - requirements for their consideration have been met. He continued that the Commission should be aware as to whether or not everything has been filed. Therefore, it is appropriate for Town Manager Thrasher to indicate whether he has received the documents necessary for this to go forward. Town Manager Thrasher responded the answer is "Yes ", so the application could go forward for consideration. Mr. O'Boyle inquired as to which ones were received. Town Manager Thrasher stated that he was not prepared to answer that question, as there was not enough time for preparation. Mr. O'Boyle asked Mayor Orthwein when he would be able to receive a prompt response. Mayor Orthwein stated that he would receive a response within a reasonable length of time, and inquired regarding his availability over the summer. Regular Meeting and Public Hearing Town Commission Meeting May 10, 2013 — Page 6 Vice -Mayor Stanley stated that with the consensus of the Commission, Mr. O'Boyle had another two (2) minutes to speak. He also said that if Mr. O'Boyle did not respect the Commission, he would be removed from the building. Mr. O'Boyle requested an interpretation of Code Section 62 -4 under the Subdivision Provision, and Section 66 -4. Mayor Orthwein asked for any further public comments. Mr. Pike discussed his meeting with Mr. Wietsma and the Himmeliches the previous day. He stated he understood the difficulty with the last minute changes made by his client. Mr. Pike addressed the phrase "adversely affected ". He felt the conflicts will be resolved. Town Manager Thrasher inquired as to the exact directions of the drainage pipes. Mr. Pike stated that the drainage system would be moved further back of the existing vegetation. He also reported that the part that runs east /west will remain the way it is, and it will be kept under the existing driveway. While detailing this inquiry, he was producing a diagram for a better understanding of the location of the drainage pipes. Commissioner Ganger questioned the foliage, and stated that the sea grapes would be totally damaged after a storm. Mr. Pike stated that the drainage system would be inspected every six (6) months. Vice -Mayor Stanley inquired regarding the catch basin's optimal location. Mr. Pike replied the lowest spot of the Himmelrich yard. He again referred to the diagram and agreed with the Himmelriches. Mayor Orthwein inquired regarding the wooden fence. Mr. Peterson detailed all of his efforts on the property and stated that he felt the fence was not a good idea. He re- iterated that no trees will be removed. Town Manager Thrasher inquired regarding the meandering of the fence on the property in relation to protecting the existing vegetation. Mr. Peterson stated that it will be difficult but possible. Mr. Himmchich suggested deferring this item this day to receive more information and answers. Regular Meeting and Public Hearing Town Commission Meeting May 10, 2013 — Page 7 Commissioner Ganger said he was in agreement. He continued that there should be no more surprises. Town Clerk Taylor stated that the next Commission Meeting would be on June 14, 2013. Commissioner Ganger reminded everyone that there will only be three (3) Commissioners in attendance on that day. Town Counsel Randolph reported that since the issues have been identified, it should be narrowed down to not spending too much more time on this. He also said that he would not wish to see this issue finally settled with only three (3) Commissioners. Mrs. Himmelrich requested a deferment until the full Commission is present which would be in August. Town Clerk Taylor asked that if this issue is deferred until the next Regular Commission Meeting, and there is not a full Board, can a Special Meeting be set at that time, without advertising again. Town Counsel Randolph replied "Yes ". He continued that they would have to defer it to a "time- certain ". Commissioner Dering moved and Commissioner Anderson seconded to defer this approval to the next Town Commission Meeting being held on June 14, 2013, with the option of scheduling a Special Meeting, if necessary. All voted AYE. VIII. Reports: A. Utility Undergrounding — Danny Brannon, Engineer Danny Brannon reported that the plans were progressing quite rapidly. Commissioner Dering inquired when the digging would begin. Mr. Brannon responded end of the month and completed by the end of September. Commissioner Dering questioned the height of the street lights being too tall. Commissioner Stanley commented that after speaking to several residents the new lighting project did not "knock their socks off". He also stated that the black color of the poles and black signs were too dark. There was a detailed discussion on the size of the poles and the shades of green to be implemented and it was thought the poles should be dark green. Mr. Brannon stated he will be in contact with Town Manager Thrasher regarding further action. Regular Meeting and Public Hearing Town Commission Meeting May 10, 2013 — Page 8 Commissioner Ganger suggested that the Civic Association be contacted regarding the color and size of the pole the Commission has agreed upon, as the Association is partnered on this project. Mr. Minor stated 12 feet is appropriate for this project. He explained the advantages of that height. Commissioner Ganger inquired as how many lights were required. Mr. Brannon responded eighty-five (85) lights would be needed. Commissioner Stanley suggested a PDF showing a light that has been discussed for the Board of Commissioners to view. Commissioner Dering discussed the difficulty of maintaining the green vs. the black color. Town Manager Thrasher inquired if the PDF presentation would be agreeable, with Commission and the answer was "Yes ". Town Clerk Taylor mentioned a personal example of a perfect street light pole near her home which was 12 feet. B. Town Manager 1. Rules for Meetings — Public Comments Town Manager Thrasher unexpectedly left the dais. Town Counsel Randolph, in Town Manager's absence, provided information on the possible new procedures for the Commission Meetings. He further stated that there should be a three (3) minute limit for the public to make their presentation with no questions or answers. Town Counsel Randolph discussed the other Municipalities he had researched with regard to decorum at their Commissioner Meetings. He continued that due to the recent lengthy Commission Meetings held in Gulf Stream, he was contacted on this subject. Town Counsel Randolph stated that it was up to the Commission on exactly how this change would be implemented. A detailed discussion ensued amongst the Commissioners regarding other nearby municipalities' times allotted for public comments. Commissioner Ganger suggested a new item on the Agenda stating "Communication from Residents ", with a time limit, as he felt they have some wonderful and interesting ideas to offer. He also stated that this new issue should be publicized. There was another discussion on a three (3) or five (5) minute limit per comment. Regular Meeting and Public Hearing Town Commission Meeting May 10, 2013 — Page 9 Commissioner Stanley clarified that the time allotted to the Himmehich comments this day was due to the fact they also had their attorney participating. Commissioner Dering moved and Commissioner Ganger seconded that Public Comment be limited to five (5) minutes and that it be listed at the top of the Agenda, not at the bottom. Town Clerk Taylor repeated the motion. All voted AYE. C. Architectural Review & Planning Board Mayor Orthwein read the upcoming Meeting Dates: a. May 23, 2013 @ 8:30 A.M. b. June 27, 2013 @ 8:30 A.M. c. July 25, 2013 @ 8:30 A.M. d. August 2013 — No Meeting e. September 26, 2013 @ 8:30 A.M. f. October 24, 2013 @ 8:30 A.M. D. Finance Director 1. Financial Report for April 2013 Town Manager Thrasher asked if there were any questions and there were none. Commissioner Dering asked when the new accounting software would be activated and was told it would be on July 1, 2013 as he had requested. Commissioner Ganger inquired regarding two large figures on the list of checks that had been written . Town Manager Thrasher explained that two (2) water bills came in the mail at the same time, both for the water purchased from Delray. B. Police Chief Police Chief Ward read the Activity Report for April 2013. It was accepted as submitted. Regular Meeting and Public Hearing Town Commission Meeting May 10, 2013 — Page 10 DX. Items for Commission Action: Town Clerk Taylor read Resolution No. 13 -2 in its entirety. A. Resolutions 1. Resolution No. 13 -2; A RESOLUTION OF THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, FLORIDA PROVIDING FOR THE APPROPRIATIONS OF BUDGET EXPENDITURES IN THE GENERAL FUND FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2013; PROVIDING AN EFFECTIVE DATE. BE IT RESOLVED BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, FLORIDA THAT THE FOLLOWING REAPPROPRIATIONS BE MADE: Legal Professional Services Unassigned Fund Balance Increase Decrease $ 80,000 $ 20,000 $100,000 Commissioner Dering stated that there was no need to change the budget. He continued that at the end of the year the Town is either over or under. He further stated that the Commissioners should be keep informed every month. Town Counsel Randolph stated that there was a State law requirement if you amend the budget from what you proposed, you must adopt a resolution. Commissioner Dering recommended that the budget not be amended but show the variance. Town Counsel Randolph stated that you have to correct the budget at the end of the year. Town Manager Thrasher stated that when he and Commissioner Dering met the previous day, he tried to prepare for this issue, as best he could. He further reported that the Town was over budget on two (2) line items. Town Manager Thrasher also commented that he did not have the authority to "carte blanche" move forward. He continued that an interim budget adjustment maybe required. Town Manager Thrasher further stated he needed to present the higher amounts to the Commission. Commissioner Ganger stated that things change and he agrees with Town Manager Thrasher. He stated the Town Manager should have the authority to pay the bills. Commissioner Dering agreed with Commissioner Ganger. He added there was no need to amend the budget, but pay whatever has to be paid. Regular Meeting and Public Hearing Town Commission Meeting May 10, 2013 — Page n Town Counsel Randolph stated this Resolution was doing that. Town Clerk Taylor stated that the budget was adopted by Resolution. She continued that at the end of the fiscal year, you have sixty (60) days to amend the budget. She reported that the auditors will not come in and do anything until you have done that. Commissioner Ganger commented that this was an unique process and event. Commissioner Ganger moved and Commissioner Anderson seconded to approve Resolution No. 13- 02. Roll Call: Commissioner Ganger — AYE, Commissioner Anderson — AYE, Vice -Mayor Stanley — AYE, Mayor Orthwein —AYE and Commissioner Dering — NAY. B. Items by Mayor & Commissioners Mayor Orthwein reported that damage resulting from the huge lightning storm that hit the previous Thursday included the Town's telephone equipment, and it was necessary to replace it. Town Manager Thrasher responded that he was discussing the damage with the insurance carrier. Mayor Orthwein asked for any further comments from the Commissioners or the public. X. Public: Jonathan O'Boyle introduced himself stating he earned his Masters of Law Degree. He discussed his opinions on having public comments at the beginning of the Commission Meetings. Mr. O'Boyle announced his reasons for having the public comments either during or at the end of the meetings. He also mentioned that quality is better than quantity. He listed his reasons for being against a three (3) minute comment and also disapproved of a card system being utilized during public comments. Mr. O'Boyle further stated that the card system was not allowed based on the 1" Amendment. He stated that the Commission should be careful about restricting some people to talk at meetings. Town Counsel Randolph stated that being a small town and not wanting to get into a bureaucratically manner of running the meetings, the card system is a moot subject. He also clarified constraining the three (3) or five (5) minute per person public comments. Town Counsel Randolph also offered to meet with Jonathan O'Boyle to discuss these items further. Martin O'Boyle stated he agreed with any time restrictions, as long as it applied to everyone. He also addressed the issue of no questions being asked during public comments. Mr. O'Boyle agreed to accept any new rules if it was uniformly done. Town Counsel Randolph agreed that it would be uniformly applied to everyone. He assured thax everyone will be treated equally. Town Counsel Randolph also said that the Commission has the right to question the applicant regarding a particular case, if necessary. Regular Meeting and Public Hearing Town Commission Meeting May 10, 2013 — Page 12 XI. Adjournment: Commissioner Stanley moved and Commissioner Ganger seconded to adjourn the meeting. Mayor Orthwein adjourned the meeting at 11:19 A.M. Sandra Fein Recording Secretary MINUTES A)I /T14EV REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, SEPTEMBER 13, 2013 AT 3:30 P.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order: Mayor Orthwein called the Meeting to order at 3:35 P.M. II. Pledge of Allegiance: The Pledge of Allegiance was led by Mayor Orthwein. III. Roll Call: Present and Joan K. Orthwein Mayor Participating Thomas M. Stanley Vice -Mayor W. Garrett Dering Commissioner Robert W. Ganger Commissioner Donna S. White Commissioner Also Present and William H. Thrasher Town Manager Participating Rita L. Taylor Town Clerk John C. Randolph Town Counsel Garrett J. Ward Police Chief Danny Brannon of Town Consultant for Undergrounding Brannon & Gillespie Project Thomas Baird Attorney with Jones Foster IV. Minutes: A. Regular Meeting & Public Hearing held on August 9, 2013 Commissioner Ganger moved and Vice -Mayor Stanley seconded to approve the Minutes of the Regular Meeting held on August 9, 2013. All voted AYE. V. Additions, Withdrawals, Deferrals, Arrangement of Agenda Items There were none. VI. Announcements: A. Mayor Orthwein announced the upcoming Regular Meetings and Public Hearings. 1. September 17, 2013 @ 9:00 A.M. —Public Hearing 2. September 24, 2013 @ 5:01 P.M. —Budget Hearing 3. October 11, 2013 @ 9:00 A.M. 4. November 8, 2013 @ 9:00 A.M. 5. December 13, 2013 @ 9:00 A.M. Town Clerk Taylor asked for any absenteeism at any of the meetings. Commissioner Dering reported that he would available by telephone on September 17' and 2e, 2013. VII. COMMUNICATIONS FROM THE PUBLIC (5 MIN. MAXIMUM Mayor Orthwein asked for any speakers. Regular Meeting and Public Hearing Town Commission Meeting September 13, 2013 — Page 2 � rr V , r a Christopher O'Hare discussed his twelve (12) years of residency in the Town of Gulf Stream, and stated that jean Spence introduced him to the Town. He inquired if Mayor Orthwein could meet with him in the future to discuss code enforcement and changes in the Town to which the Mayor agreed to do. VIII. PUBLIC HEARING: 1. Proposed Development Agreement — 23 Hidden Harbour Dr. Mr. Baird discussed his experience in the legal field for thirty (30) years. He stated that this Development Agreement comes out of the settlement agreement between Martin O'Boyle and the Town. Mr. Baird explained that the purpose is to outline what the lot coverage of his lot could be. He continued that Mr. O'Boyle could be permitted to develop as the code existed in 1981, as with his present structure. Mr. Baird further stated that Development Agreements by statute require two (2) Public Hearings, this being the first one. He reported that he will define some clarifications with Mr. Ring, Mr. O'Boyle's Attorney prior to the next Public Hearing on Tuesday, September 17, 2013. Mr. Baird asked for any questions and stated he would be available over the weekend also to address any issues. Town Counsel Randolph reminded everyone that this is a Public Hearing, and that any member of the public can comment. Commissioner Ganger stated that the Commission empowered both Mr. Baud and Town Counsel Randolph to negotiate this issue until closure. Mayor Orthwein also asked for public comments. Town Counsel Randolph reported that the second Public Hearing will be held on September 17, 2013 at 9:00 A.M. He also stated that both hearings have been advertised and no motion was required. IX. Reports: A. Utility Undergrounding — Danny Brannon (Engineer) Mr. Brannon provided an update on the undergrounding project. He discussed the surveyors' staking work at the various locations. Mr. Brannon reported on the bid packages for the landscapers. He continued that he had used Landscapes of Distinction in several other similar projects, but they were higher priced, and the other company, West Construction was less experienced but their prices were cost effective. Mr. Brannon suggested offering both companies contracts to figure out their cost effectiveness. He asked for an agreement for authority from the Commission to enter into a continuing service contract with both landscape companies. Commissioner Ganger inquired if these costs were budgeted. Mr. Brannon responded that it was budgeted but he did not have that figure available. He explained the two (2) phases of the landscape work. Mr. Brannon reported that the initial phase is the clearing of the paths for the equipment to be installed, and not to destroy any landscaping. He continued if it is destroyed, they are Regular Meeting znd Public Hearing Town Commission Meeting September 13, 2013 — Page 3 contracted to restore to equal or to a better condition than the past. Mr. Brannon further stated that the second phase is they go back after the project has been completed and do mediation landscaping. Commissioner Ganger inquired when is this going to start. Mr. Brannon responded that the surveyors do their staking locations first, and described the landscapers staking work process. Vice -Mayor Stanley inquired regarding the residents' issues with large boxes in front of their residents. Mr. Brannon admitted that he has received many calls already regarding that issue, and has agreed to work closely with the residents' inquiries. He also stated that the landscapers are very careful and considerate. Commissioner Ganger inquired regarding the interference with Comcast cable wires, and possibly flagging the line and was advised that contractors may call Sunshine 811 for flagging. Mr. Brannon again responded that the landscapers are very careful, and if necessary they contact Comcast and /or Sunshine 811. Commissioner Ganger moved and Vice -Mayor Stanley seconded to approve the Town of Gulf Stream to enter into a continuing service contract with Landscapes of Distinction and West Construction for landscape work on the undergrounding project. All voted AYE. Mr. Brannon discussed the street lighting in detail staring that Phase 1 would cost $229,000 which is very close to the bidders' prices. He reported that the lighting on AlA is rather expensive at $9,000 each, and the interior ones are $7,000. He inquired if another choice would be feasible. Mayor Orthwein agreed and inquired if there were other companies that could be contacted for other bids. Mr. Brannon explained that the big cost issue is the labor for installation not the lights and poles. He described in detail the installation of the poles and lights. Commissioner Ganger inquired regarding receiving the same service if the present poles were left up. Mr. Brannon stated that FPL would not leave the existing distribution poles along AlA in place. He continued they would new smaller poles in the same locations with the same cobra lights thereon. This would be no cost to the Town. If the lights were changed to viper (LED), it would cost the Town an additional $300,000. However, there will be an increase in the monthly bill form Florida Power & Light. Commissioner Dering pointed out that there will be a period of "no lights" between the time the existing poles are removed and the new ones installed. He continued that it could take 12 months to have all the street lights on. Regular Meeting and Public Hearing 6 Town Commission Meeting September 13, 2013 — Page 4 Commissioner Ganger stated that there should be no compromise in safety and some comprise in esthetics for the residents and that should be communicated to the taxpayers. Mayor Orthwein stated that the viper lights were not pretty. She continued that she does not believe the Commission wants to pay the $300,000 for the viper lights. Commissioner Ganger commented that the new lights on AlA as planned should be addressed in the budget. Town Manager Thrasher stated that the A1A lighting was not anticipated in the budget. Vice -Mayor Stanley inquired if there was a difference in costs if the Town purchased the lights directly instead of through Hypower. Mr. Brannon stated that the Town is paying 20% contractor's price plus tax and the Town could pay 26% to 30% less if the Town purchased the lights themselves. Town Manager Thrasher inquired if there was a public bid process, could the Town take this on themselves. Mr. Brannon stated there would be potential finger pointing if done during the project. He gave examples of times it did not work when purchased by the Town. Commissioner Ganger moved and Commissioner Dering seconded to approve a change order from viper to cobra lights from FPL with the contractor. All voted AYE. Commissioner Ganger inquired regarding the digging that should be started at the end of the month. Mr. Brannon reported that the landscaper will start digging. He continued there is an issue with the street monument lights with DOT. Mr. Brannon stated that DOT maybe a problem in getting started. Commissioner Ganger discussed the Civic Association lights that were stolen soon after they were put in. He also stated the lights he put in, at his own expense, were taken down. B. Town Manager No report. C. Architectural Review & Planning Board 1. Meeting Dates a. September 26, 2013 @ 8:30 A.M. b. October 24, 2013 @ 8:30 A.M. c. November to be determined d. December to be determined Regular Meeting znd Public Hearing Town Commission Meeting September n, 2013 — Page 5 Town Clerk Taylor stated that updated Holiday Meeting Dates will be forthcoming at this coming meeting. D. Finance Director 1. Financial Report for August 2013 Town Manager Thrasher stated that he has provided a Financial Report to all Commissioners. He also commented that there was no motion required for that Report. 2. Clarification of Financial Reporting Format Mayor Orthwein called attention to the several different financial reports that have been considered the last several months. She asked for direction from the Commission as to which one they prefer to receive. Commissioner Ganger stated that it is most important to provide a Financial Report that will reflect variances. Commissioner Dering discussed the obligations of the Town with regard to financial reporting, and addressed the importance of the monthly, year -to -date and variance figures required for the budget. He stated that he has been communicating with Kelly, in Accounting, with his suggestions. He also reported that the new computer software format will generate all the required information with only four (4) pages; first page Balance Sheet, second page General Fund major expense items, third page water account and the fourth page other utilities. Commissioner Dering reported that the software will generate each figure much easier. The Commission favored the report described by Commissioner Dering. E. Police Chief 1. Activity for August 2013 Police Chief Ward submitted the Activity Report for August 2013, and it was accepted as presented. Commissioner Dering inquired regarding the high number of ordinance violations (38). Police Chief Ward responded that they were unregistered vendors and /or vendors working after hours or on Sundays. Commissioner Ganger reported that he was "hacked" by Russians and detailed his Police Department process. X. Correspondence: A. Letter of Suggestions — Sheila Scott Mayor Orthwein discussed Ms. Scott's letter. A detailed discussion ensued regarding policies of the trash /rubbish being put out on the street at certain times. Mayor Orthwein addressed the subject of children driving golf carts in the Town. Police Chief Ward reported that the State Law is 14 years old. Regular Meeting and Public Hearing d Town Commission Meeting September 13, 2013 — Page 6 Town Manager Thrasher stated that he understood that the Civic Association is experimenting with solutions to eliminate the white fly issue. He also stated that he would address the problem, according to the Town's Ordinance, if so instructed by the Commission. Commissioner Ganger discussed the mitigation of the problems of white fly disease, commenting how unsightly it is, and how quickly it spreads. Town Counsel Randolph stated that the Town of Palm Beach enforces their ordinance of dead vegetation and issues citations accordingly. He added that the Town of Palm Beach does not mandate spraying. Town Manager Thrasher agreed to send a compliance courtesy notice to any resident having dead vegetation. Commissioner Ganger suggested putting an item on the website regarding removal of a dead ficus. He also addressed the height of hedges. Mayor Orthwein stated she will respond to Ms. Scott's letter. Town Clerk Taylor stated she has worked for a Town that restrictions on all hedge heights, and that was a real "mess ". XI. ITEMS FOR COMMISSION ACTION: A. Consideration of Appointments — Ad Hoc Committee to Review Land Development Regulations Mayor Orthwein reported that she has two (2) suggestions for appointments for this Committee to update the codes to be more modern and user friendly. She continued that she contacted Benjamin Schreier, an Architect, and gave a description of his work. Mayor Orthwein also suggested Bill Boardman from the Civic Association. She added that they are both willing to serve. Commissioner Ganger recommended Shelly Himmelrich who has a very interesting point of view, is respectful, has fresh ideas when she attends and participates in Commission meetings. He also added that she is "big" into landscaping. Commissioner Ganger stated that he would like to see more public at the meetings to hear this plan. He suggested that perhaps Mrs. Himmelrich should be contacted regarding this matter.. Town Counsel Randolph inquired if all Commissioners were in agreement with the two (2) suggestions made by Mayor Orthwein. They all replied "Yes ". Mayor Orthwein also stated that Mr. Boardman would make a good Committee Chairperson, and the other Commissioners agreed. Regular Meeting and Public Hearing Town Commission Meeting% September 13, 2013 — Page 7 Town Counsel Randolph stated now that two (2) new Committee Members have accepted their positions, he would like the Commission to concentrate on obtaining another three (3) persons for this committee prior to the next Commission Meeting. Commissioner Ganger also suggested past ARRP Board Members for this new committee. Commissioner Dering suggested that the Chairman help choose the members. B. Consideration of scheduling an Attorney /Client session regarding Joel Chandler vs. Town of Gulf Stream, Case No. 2013 CA 007789 3= MB AN, Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida. Discussion of the matter to begin immediately following the 5:01 Budget Hearing on Friday, September 13, 2013, in the Town Commission Chambers, 100 Sea Road, Gulf Stream, Florida. Attorney /Client Session Attendees: Mayor Joan Orthwein; Commissioners Thomas Stanley, W. Garrett Dering, Robert Ganger and Donna S. White; Town Manager William H. Thrasher; Town Attorney John C. Randolph and Court Reporter from Ley & Marsaa Court Reports, Inc. This was requested by Town Counsel Randolph. Commissioner Ganger moved and Vice -Mayor Stanley seconded the approval of scheduling an Attorney /Client session regarding Case No. 2013 CA 007789 3= MB AN, Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida to begin immediately following the 5:01 Budget Hearing on this date, Friday, September 13, 2013, in the Town Commission Chambers. All vote AYE. C. Items by Mayor & Commissioners There were no comments. XII. ADJOURNMENT: Mayor Orthwein adjourned the meeting at 5:00 P.M. Sandra Fein Recording Secretary r . i MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, MARCH 15, 2013 AT 11:00 A.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order. Mayor Orthwein called the Meeting to order at 11:00 A.M. II. Pledge of Allegiance. The Pledge of Allegiance was led by Mayor Orthwein. III. Roll Call. Present and Joan K. Orthwein Mayor Participating Tom Stanley Vice -Mayor Muriel Anderson Commissioner W. Garrett Dering Commissioner Robert W. Ganger Commissioner Also Present and William Thrasher Town Manager Participating Rita Taylor Town Clerk John Randolph Town Attorney Garrett Ward Police Chief Danny Brannon of Brannon Town Undergrounding & Gillespie Consultant Marty Minor of Urban Town Land Use Design Kilday Studios Consultant Martin O'Boyle Applic /23 Hidden Harbour Dr. Charles Siemon, Esq. Rep. Martin O'Boyle Siemon & Larson P.A. Robert Currie, Arch. Rep. Martin O'Boyle Currie, Sowards & Aguila Architects Bill Ring, Esq., of Agent /O'Boyle Commerce Group, Inc. Peter DeLeo of Commerce Proj. Mgr. /O'Boyle of Commerce Group Bernard and Stephanie Applicant /915 Emerald Molyneux Mark Marsh of Digby, Agent /Julien & Bridges, Marsh & Assoc. Grumney Bill Boardman G.S. Civic Assoc. IV. Minutes of the Regular Meeting of February 8, 2013. Commissioner Ganger moved and Vice -Mayor Stanley seconded to approve the Minutes of the Regular Commission Meeting of February 8, 2013. There was no discussion. All voted AYE. V. Additions, withdrawals, deferrals, arrangement of agenda items. There were no changes. VI. Announcements. A. Regular Meetings and Public Hearings Regular Meeting and Public Hearing Town Commission - March 15, 2013 \ A Page 2 1. March 15, 2013 ® Noon - Election Certification 2. April 12, 2013 @ 9:00 A.M. 3. May 10, 2013 @ 9:00 A.M. 4. June 14, 2013 @ 9:00 A.M. 5. July 12, 2013 O 9:00 A.M. 6. August 9, 2013 Q 9:00 A.M. 7. September 13, 2013 a 9:00 A.M. Mayor Orthwein noted the upcoming Commission Meetings. There were no conflicts. B. Mayor's Proclamation -Water Conservation Month, April 2013 Clerk Taylor stated that this Proclamation is at the request of the South Florida Water Management District to proclaim the Month of April, 2013 Water Conservation Month. Clerk Taylor said no Commission Action is necessary. VII. PUBLIC HEARING. A. BOARD OF ADJUSTMENT Clerk Taylor asked for declarations of Ex -parte communication. Commissioner Ganger stated that he drove by the subject property. Clerk Taylor noted a last- minute communication with regard to this appeal which has been placed at the seat of each Commissioner. The Clerk administered the oath to the following: Charles Siemon, Esq.; William Ring, Esq.; Robert Currie, Architect; Peter DeLeo, Project Manager - O'Boyle; Martin O'Boyle, Appellant; Marty Minor, Town Consultant; William Thrasher, Town Manager; Bernard Molyneux, 915 Emerald Row; Stephanie Molyneux, 915 Emerald Row; Mark Marsh, Architect. Mr. Randolph explained that an Appeal of the Administrator's Decision is before the Board of Adjustment today with regard to the application of the Design Manual and the Code. He said an application for variances went before the ARPB where the argument was made that variances were not required. He said the argument was also made that the applicant met the criteria for the granting of the variances. Mr. Randolph said, at that meeting, he advised the ARPB that it was not within their jurisdiction to determine an Administrative Appeal, and he said in the event an appeal is filed it will go before the Board of Adjustment. He said the ARPB did not act on the argument that Mr. Thrasher incorrectly applied the Code and, subsequent to that, Mr. O'Boyle filed an Appeal of the Administrative Decision, which is the matter that will be argued before the Board of Adjustment today. Mr. Randolph said if the Board grants the appeal and finds that Mr. Thrasher was incorrect in his application of the Code, it will not be necessary to go further with regard to the variances. However, he said if the Board finds that Mr. Thrasher was correct in his application of the Code, the Board will go forward with the application for variances. In that case, Mr. Randolph said the Appellant will go first and then Staff will give their opinion on the matter. 1. Appeal Final Action of Planning & Bldg. Administrator a. An application submitted by Martin O'Boyle, owner of property located at 23 N. Hidden Harbour Drive, legally described as Lot 5, Hidden Harbour Estates, Gulf R gul,ar Meeting Town Commission and Public Hearing - March 15, 2013 Page 3 Stream, Florida, appealing the Administrative Decision that approval of four variances would be needed to modify the existing dwelling as requested. Charles Siemon, Esq., introduced himself. He said he is an Urban Planner and Urban Planning Attorney with offices in Boca Raton. Mr. Siemon said he has been doing this work for many years, first in Chicago, and he said he has worked for both the private and public sectors in about 35 states. He distributed a copy of his power point presentation to the Commissioners and Staff. Mr. Siemon's Power Point Presentation will be filed in the Official Records of the Town of Gulf Stream. Mr. Siemon pointed out the general location of the home and boundaries of the property, which is about 39,000 SF, and he said because of the net effective lot area, what remains is 19,000 SF. He noted photos of the existing entryway on Pages 5, 6 and 7, he displayed photos of the existing subject area of the home, and he displayed renderings of the proposed entry feature, which he said is to be a part of a major renovation of re- fenestration of the structure and redoing the landscaping. Mr. Siemon said the home was built in 1983 before the Design Manual was adopted, and he said as a result of the Design Manual the home is non - conforming in many ways, including floor area ratio and setbacks from the road. He said the design of the proposed entryway was prepared within the guidelines of the Code. Commissioner Ganger pointed out an error in the rendering on Page 8 of the Power Point Presentation stating that the sidewalk is drawn into the street. A member of Mr. O'Boyle's team noted that it is an error and has been corrected. Mr. Siemon said this is a matter of interpretation of the Code and the purpose of the Code, particularly the Design Manual, is to insure the compatibility and harmony it governed by Section 70- 100(a)(4) and no other provision of the Code. He said there is a question of the additional height, and he explained that it is to create a focal point and to break up the horizontal character of the home. Mr. Siemon referred to Page 12 of his Presentation, which is a photo of the Gulf Stream Town Hall Entryway, pointing out that the vertical component gives a focal point to the horizontal character of the building. Mr. Siemon referred to Pages 13, 14, 15 and 16 of his Presentation, which identify the four (4) variances that the Planning and Building Administrator determined are required for approval of the entry feature. He summarized each Variance using the renderings to point out each issue. Mr. Siemon said the Appellant will show that the final review authority acted in a manner inconsistent with the provisions of the Code. He said there are some words in the Code that are ambiguous, the determination ignores some architectural matters, and he said the difficulty is working with both the Zoning Code and the Design Manual which have separate and inconsistent definitions that cause uncertainty. Mr. Siemon said there are some principles that should be followed, and Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 4 he said the purpose and intent of the Code is to promote improvement. He read aloud Code Sec. 70 -3(b) Purpose. With regard to Variance #2, Mr. Siemon referred to Page 24 of his Presentation which indicates the location of what Staff identifies as a 1st story eave, which he said he believes is incorrect. He referred to Code Sec. 70 -100 Roof and eave heights (c) two -story homes (3) Prohibited - Eave Heights - All other districts, which states: "Less than eight feet or greater than 12 feet six inches for one -story portions" and he said one -story portions is the critical element. Mr. Siemon said an eave is defined in the Code as the projecting overhang at the lower edge of a roof, but he said there is no floor at that level indicated on Page 24 of his Presentation and it is not a part of a roof. He referred to Page 28 of his presentation which indicates the home having two stories and points out the 1st story eave, the 2nd story eave and the portion of the proposed entry feature that Staff refers to as a 18t story eave. Mr. Siemon said the entry feature is not enclosed, there is no habitable space and it does not have a floor at the point where Staff refers to as a 18t story eave and, therefore, the eave height provisions should not be applied to this decorative feature. Commissioner Ganger asked Mr. Siemon to explain "no floor" and "no windows." Mr. Siemon said when you stand in the entryway it is empty space to the roof of the entryway. It is not a 1st story eave, but it is a decorative feature used to break up the entryway and make it fit into the existing stories. With regard to 2nd story, Mr. Siemon referred to Page 30 of his Presentation and read the definition of "Story" as follows: "Story shall mean that portion of a building included between the surface of any floor and the surface above it . . . " He said the first surface above the floor is the ceiling and, therefore, it cannot be a 1st story eave. Commissioner Dering asked if there is an eave for the roof structure and Mr. Siemon confirmed that. Mr. Siemon said the question is, what is the height and is the height for an entry feature properly considered a two -story eave height when there is only one story? He referred to Page 35 of his Presentation where it quotes Code Sec. 70 -100. Roof and eave heights. (a) Generally (4), and said, what controls the height of an entry feature is as follows: "The height of the entry feature is measured from the finished floor elevation to the upper portion of any balcony railings, Dutch gable or other elements." The top of the element is the peak of the roof and Mr. Siemon referred to Page 37 of his Presentation where it indicates the height of the peak of the roof to be 301. He said if you put the provisions in their proper place, he believes the proposed feature complies with Code Sec. 70- 100(a)(4) because, as shown on Page 25 of the presentation, Town Code has overall height and eave height requirements in three categories: (1) One -story buildings; (2) Two -story buildings, and (3) Overall peak of the house. For eave heights, you must look in either the one -story portion or the two -story portion, which are the only two places that provide a standard applying to eave heights. Further, he said there is no eave height in (a) Generally, or in (c) Two story homes (3) Prohibited, but roof heights are found in (3) Prohibited, which limits Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 5 the height to 30'. Mr. Siemon said there are inconsistent provisions in the Design Manual and the Code. Mr. Siemon referred to Page 36 of his Presentation where it addresses the use of entry features, he read the text aloud and said he believe that is what the proposed design is intended to provide. Mr. Siemon referred to Page 38 of his Presentation where it addresses the meaning of floor area, he read the text aloud and said the feature is not an enclosed area of a building. Mr. Siemon referred to Page 39 of his Presentation where it addresses the definition of a story, he read the text aloud and he said it is possible to say if it is not a two -story provision, it is a one -story provision. He said the language is inconsistent with entry feature language, and he further said that a court of law does not favor nonsensical conclusions. Commissioner Ganger asked Mr. Siemon if the quotes of "nonsensical," "unreasonable," and "absurd" are included in the Code. Mr. Siemon said they are not, but they are his suggestions of what the law would consider in interpreting the Code. He said the proper interpretation of the Code is that the height of the entry feature is measured from the finished grade of the house to the top element of the entry feature. If you properly construe that sub- paragraph (a) controls it you do not have to decide whether or not it is a story because if it is an entry point it does not have an eave height requirement. Mr. Siemon said the Board is required to make a reasonable judgment where there are inconsistencies or questions. He said if you look at the entry feature, it specified a means of height measurement, it makes sense and should not be ignored. With regard to Variance #3, Mr. Siemon referred to Page 46 of his Presentation where a yellow arrow indicates the wall of the entry feature, he referred to Page 7 of his Presentation where it indicates a stone wall structure that is attached to the house and is closest to the setback line (circled in yellow), and he said that wall will be removed. He referred to Page 45 of his Presentation where a yellow arrow indicates a stone wall structure, he said it is closest to the setback line and it is 3'2 ". Mr. Siemon said if you measure the setback from the wall of the entry feature and not from the eave (as quoted from the Code on Page 44 of his Presentation), that front wall is 8M feet from the line from which the setback should be measured. He said the Code provides that the existing minimum setback in non - conforming structures is the setback required for renovations, improvements and additions. Further, he said the structure that is 312" from the setback line is not in violation of the setback requirement, but actually an improvement because the wall will be 8.5 feet from the line from which the setback will be measured. With regard to the issue of the steps, Mr. Siemon said allowing the steps to be more gradual makes sense, and he said they should not be considered as part of the building that extends into the setback area. He said the structure height is measured from the base elevation and anything below that is not considered. Mr. Siemon said the setback is 20 feet less than current Code requirements. Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 6 With regard to Variance #4, Mr. Siemon said it is difficult to construe the entry area to be floor area, and he read the following from the Zoning Code definitions: "Floor shall mean an enclosed area in a building." He said the entry feature is not enclosed and it is not in a building and, therefore, he said if it is not a floor it cannot be considered in the floor area calculation. Further, he said it is not habitable space and it is not a porch or a breezeway, it is a front door entryway with a walkway leading to the front door and it is reasonable and appropriate to not interpret it as being a floor area. Robert Currie, Project Architect, introduced himself. He stated that he is an architect and that he designed a half dozen of the homes in the Community, two of which won AIA awards. Mr. Currie said Mr. Siemon was very clear about the architectural intent and that the purpose of this design is to make the home better. He said there are challenges, one being the height of the roof. Mr. Currie said the height of the roof is allowed and, technically, they could pull it down 2', but he said the problem is the roof in the back that is higher, there would be two different planes and it would not be compatible architecturally. He said the second challenge is the setback, and he said the wall comes out almost to the planter box because it creates other issues if it were flush to the building and, therefore, they pulled it out 2' to 2.51. With regard to the steps, Mr. Currie said that all building codes measure to the building. Commissioner Ganger asked what would occur if a ramp were required to enter the home. Mr. Currie said it would be a very long ramp, but he said, traditionally, stairs and ramps are never measured. Vice -Mayor Stanley asked about the roof in the back of the house and the intersection of the plane. Mr. Currie said the roof is flush to the second story in the back. Commissioner Ganger asked if the existing windows at the entry feature will be taken out to create a solid wall. Mr. Currie confirmed that. Commissioner Ganger asked if the applicant will be changing out all of the windows to hurricane resistant. Mr. Currie confirmed that, but he said it is a separate matter and it has already been approved. With regard to the purpose, Mr. Siemon said he previously read from Code Sec. 70 -3(b) where it states, "The design standards..., by specific intent, illustrative rather than prescriptive. They do not dissect every architectural influence nor do they attempt to prescribe specific, detailed ways to handle every type of alteration to existing structures. They do, however, provide the town with a methodology and common framework for reviewing submissions and attaching conditions, if any, to project approvals." He said the interpretation that requires the four variances treats this as a rigid Code and that is only to be varied in limited circumstances, and he said that is not the intent of the Code. Mr. Siemon said the scale and proportion of the entry feature should consist with the rest of the structure, varying in height just enough to provide a focal point to the front of the home, and he said Mr. Currie - Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 7 explained why the design cannot be smaller and why it will not function any other way. In closing, Mr. Siemon said he hopes the Board will treat this as an entry feature and not by whether it is a one -story or a two story portion of the house because it is not, and he said it leads to a resolution that allows these improvements to be made without a variance. Further, he said he hopes the Board will allow Mr. and Mrs. O'Boyle to improve their property and bring it as far as possible into compliance with the Design Code. Commissioner Ganger said to Mr. Siemon that he uses the word "improvement" and he asked if the neighbors have reacted to the proposed feature. Mr. Siemon said he was informed by Mr. O'Boyle that the developer of the property adjacent to him supports the project, and Mr. Krebbs to his west is also supportive. Commissioner Ganger asked if neighbors on the other side of the hedge will see the entry feature. Mr. Currie said it is very well screened. Commissioner Ganger said that the issue of improvement is most important to the neighbors. He asked if it is still a private road and Mr. Siemon confirmed that saying if you are on the street the house is right there. Commissioner Ganger asked if residents across the water area will see the roof. Mr. Currie said they will see the top of the roof. Mayor Orthwein said it increases the mass of the house. Mr. Currie disagreed. The Board of Adjustment Public Hearing was recessed at 12:00 Noon and reconvened at 12:20 P.M. Mr. Siemon said he hopes the Board will find favor in that the design serves the purposes of the Code, and he reminded the Board that they have the authority and the responsibility to make that judgment of whether it serves the purposes of the Code. He said the language of the Code states it is not intended to prescribe, and he said if you look at the existing conditions, the circumstances, justifications and reasons, the plain language of the Code and the intent when there is some ambiguity, you will conclude an appropriate interpretation and it should be applied to achieve the purposes of the Code. Mr. Siemon asked the Board to address each Variance one by one rather than as a group because there are different ambiguities and constructions. Mayor Orthwein asked for the Staff report from Mr. Thrasher, Town Manager. Mr. Randolph, Town Attorney, stated that, for the record, he will lay some predicate. Randolph: Please state your name. Thrasher: My name is William Harrison Thrasher, Jr. Randolph: State your position with the Town? Thrasher: Town Manager. Randolph: For how long? Regular Meeting and Public Hearing Town Commission - March 15, 2013 Thrasher: Town Manager for about 12 years. April 29th begins my 17th year. Page 8 Employment with the Town, Randolph: During that time as Town Manager have your duties included interpretation of the Zoning Code and the Design Manual? Thrasher: Yes. Randolph: Have you had an opportunity to review other applications similar to this where you have applied the same principles that you are applying today to this particular application? Thrasher: Yes. Randolph: In your opinion have you been consistent in the manner in which you have applied the Code? Thrasher: Yes. Randolph: Will you explain your interpretation as it relates to the application of the Code to the particular application of Mr. O'Boyle which is before you today. Explain why you have interpreted the Code in the way you have. Thrasher: In regard to the first variance listed, the square footage of exceeding 109 SF, I first defined the district in which this property is located and by Sec. 70 -27 it is located in the North South District. I then looked at Sec. 70 -67 in regard to the effective lot area and the various calculations of FAR. In this particular situation, I have an email from Mr. Ring whom I believe is present in which he copied the Site Data Table and in that email he referenced that it was prepared and provided to the Town from their architect, Mr. Currie. I looked for any provisions in the Code that would allow for a special exception in regard to the square footage and there were none. In regard to the sections of the Code that I have cited and the information provided to us from the applicant, it was determined that, indeed, they had exceeded the FAR by 109 SF. Randolph: Is there a particular document that you are referring to that the applicant has submitted that you rely upon to show that the applicant made a determination in regard to the 109 SF? Thrasher: Yes, that is in your packet, it is called the Site Data Table, and I believe the square footage is 8,110, the proposed, and the existing was like 8,001, but that Site Data Table is in your packet. I referred exclusively to that and I also forwarded that Site Data Table to Marty Minor, Town's Consultant, for his assistance. I had discussions with Mr. Ring, Mr. O'Boyle and his various other attorneys and representatives and, based on the fact that I thought there were four variances required, particularly this one, I asked them if they would like to have a third party render a decision. They did, we made Regul,ar Meeting and Public Hearing Town Commission - March 15, 2013 Page 9 available to him a third party outside consultant for a decision, and my decision is consistent with that which he has provided. Randolph: Hold up the table that you would like the Commission to refer to so they can see what you are talking about? Randolph: For the record, I understand each Commissioner has a package that was submitted by Mr. Thrasher in regard to this application, is that correct? Commission: Yes. Mr. Thrasher displayed the Site Data Table. Thrasher: This is the Site Data Table that I am referring to. The email I received from Mr. Ring was dated January 16, 2013, it was addressed to Rita, it says: "Rita, attached is a Site Data Table that was completed by Bob Currie, Architects. This is your FAR calculation sheet..." It says some other things, but that is what we refer to in regard to the FAR. In regard to the second application for the second variance, the entry feature exceeds the maximum discouraged height of 12.5 feet by 2.5 feet. This is again information provided to us from the applicant and his representatives. If you look in your packet you will see that they are outlining or identifying the heights of the various elements, and they specifically identify what I call the second story eave height as an eave height, but they do cause reference to, and draw attention to, the item that I refer to as the first story save height. In that regard, I will say that the nomenclature I used was incorrect, but I will read to you that which was intended, and it is what Mr. Siemon referred to several times: Sec. 70- 100(a)(4), specifically, "entry features are the front portion of the structure which provide door entrance to the dwelling. The height of the entry feature is measured from the finished floor elevation to the upper portion of any balcony railings, Dutch gable or other such elements." So instead of calling this an eave, it is an "other such element" and it should have been properly referred to, but in their application and in their drawings they identify and direct me to this particular element and provide its height. I also looked at Sec.70- 100(c), two -story single family homes, which provided a prohibited height that the one- story portion could not exceed 12.5 feet without being in the prohibited area and the second story, 23' without getting into the prohibited area. Randolph: Before you leave that, what is it about this application that does not meet those two criteria you just referenced? Thrasher: I would refer to the Bob Currie Drawings, A3.02, upper left portion, which identifies what I previously identified as the first story eave, or other element, at the height of 12110" and, as I said, the prohibited range begins at about 1216 ". They have identified and pointed me to an area identifying the height of this element and it is higher than the maximum allowed without getting into the prohibited Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 10 area. Secondly, in that same drawing, they are referring specifically to an eave height, which is 25' ly,," and, again, it exceeds the maximum allowed without getting into the prohibited area of 23'. Randolph: I want you to go through each one of the variances and advise as to what portion of the Code you are relying upon to indicate that they need variances for those. Thrasher: For the second variance I relied on 70- 100(a)(4) in regard to definitions. I also relied on 70- 100(c) which is the two -story single family dwelling, prohibited maximum eave heights of the first story section and also the second story section. Randolph: What do you think of their statement that this is a separate element, that it is not a story and there is no floor between the two? Thrasher: It is paradoxical and also true that there is no second story, but it is a fact that the cornice area as they described it can be considered an eave height based on the definition of our Code. The second story eave height is identified by the applicant himself. Whether you define this as a one -story entry feature or a two -story entry feature, either scenario creates two variances. One in which the overall height of the element exceeds the maximum allowed, and the other is the first story, which is actually the second story, whether defined as a one -story or a two - story, it creates two variances as defined in our Code. Randolph: Were you here when this particular Design Manual was adopted? Thrasher: The original? No. Randolph: You have been administering it for how many years? Thrasher: Approximately 12. Randolph: You know what the intent of the Code is as it relates to entry features? Thrasher: I believe the intent of the Code is to control the entry feature in a manner which limits the massive appearance of the entry feature. At first glance your eyes go to that entry feature and I believe the intent of the Design Manual was to limit the massive look of an entry feature. It does give a break to the horizontal plane of that home, but to be so high overpowers the intent of trying to break up that horizontal plane. Mr. Currie has not said that it is impossible to provide that break of the horizontal plane in some other measure. It may not be the best, but he said it is possible. The expense was thought to be excessive, but I believe information has been given to us that it is possible to break up that plane in some other form or fashion. Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 11 Randolph: That addresses two of the variances. When you first began did you begin talking about the additional 109 SF over and above the permitted floor area? Thrasher: That is Variance #1 as it is presented on the Staff's Report and I have addressed that in regard to the Site Data Table. Randolph: What you did address is that they presented a Site Data Table which seemed to indicate in their application that, some sort of an agreement on their part, that that was over and above the square footage allowed by Code, is that correct? Thrasher: It is correct. Randolph: I want you to explain in your own words why you feel that that is indeed additional square footage that is not allowed by Code without a variance. Thrasher: I would refer to Sec. 70 -70, it is the section which begins to discuss floor area calculations and effective lot area, it follows effective lot area and Unity of title, Sec. 70 -70, the purpose of computing floor area ratio, floor area shall be defined as follows: "Floor area" shall mean the gross floor area of a structure as measured from the outside of the exterior walls and shall include or exclude the following: (1) All floor area under a solid roof, whether or not the area is enclosed with walls, (i.e., porches, balconies, breezeways, etc.) shall be included." By creating an area that is under roof it must be included in the FAR calculations and, based on their presentation of that effective lot area and their square footage, even though we are talking about an area that steps forward a bit, it is still under roof and, therefore, must be included in the FAR calculations. Randolph: At the very least, in regard to that aspect of it, would this addition be considered an expansion of a non - conforming structure in your mind? Thrasher: Yes, the addition would be an addition to a non - conforming structure in that per their Site Data Table they declare that the existing FAR already excludes the allowable and, therefore, any addition of square footage to that increases the non - conformity. In regard to the square footage, the FAR calculations, it has been declared that this home is non - conforming, and to increase the non - conformity is the question and, therefore, to increase the non - conformity would not be something that is allowed, it is prohibited. Randolph: Have you explained your reasoning for three of the variances? Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 12 Thrasher: I have explained three, there is one left which is Variance #4. Variances #2 and #3 have been identified as eave heights, #4 has to do with permitting an additional 2 -foot encroachment beyond the existing 9' 8" in the front set back encroachment. Again, I referred first of all to Sec. 70 -27, which defines the districts within the Town. This again is located within the North South District. Then I referred to Sec. 70- 74, which discusses the setbacks. The front setback as provided for or required in our Code for the structure in the North South Front is 301. This again is a non - conforming structure as it refers to at least the front setback, and it is from their presentation, discussion and drawings that indicate they are extending to the north two additional feet with this entry feature, and it is again extending a non - conformity and thus prohibited by Code. With that said, I will make mention of the walls on the east and west of the existing elevation entry feature. They define these walls as part of the structure and attached. In my drive -by, and others, Rita and I went down to observe that these appear not to be structure walls, but indeed something that is commonly referred to as a garden wall. They are not physically attached by concrete and mortar to the structure and, therefore, cannot be considered the existing wall structure to begin calculations or to determine the distance from the existing wall. Randolph: What part of the entry feature violates the setback, is it just the steps? Thrasher: No, I do not believe so. In discussions with Mr. Ring and in the presence of our Town Clerk they have explained to me that they have to exceed, extend that wall out at entry element further to the north approximately 2 feet. So in regard to the setback it is extending a non - conforming element, the entire structure as it exists in regard to setbacks is non - conforming, and they are proposing to extend that some distance to the north further into the setback. Randolph: You have heard the presentation made by Mr. Siemon and Mr. Currie today. Is there any comment which you have in regard to their testimony? Thrasher: Yes, I would like to refer to their comment in regard to the Town Hall wherein they referred to our second story element here, or whatever it is, and they cited it as an example of why they want to do what is already visible in Town. I would first state that the Town Hall is not located within a single family zoning district, it is in the public zoning district and, therefore, the criteria do not necessarily apply to a Town Hall. I am glad they like our feature, but I had nothing to do with it. Town Hall was dedicated in 1986 and our Code was established in the early 90s, so this building was constructed and finally dedicated in 1986 prior to the Code. The words that Mr. Siemen used in regard to eaves not being part of a roof, no floor, it is an architectural feature, he referred to that as a decorative feature, I believe those were your words, so this is consistent with my interpretation of Sec. 70- 100(a)(4), other such elements. I asked Mr. Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 13 O'Boyle at the ARPB Meeting whether or not he knew of any other such tower entry feature of this height and nature in Town. I do not know if Mr. O'Boyle has since identified something in our Town, but at the time of that meeting I do not believe he was able to reference another facility in Town, other than Town Hall. I have also taken the opportunity on more than one occasion to ask the Town's consultant whether or not he was aware of any similar entry structure feature in Town. He does not know of any such existing in Town. Randolph: What is the significance of that? Thrasher: This is creating a unique situation. It appears to me that in instances of review, the height and these particular entry features as it relates to massiveness were confined smaller so that they don't just stand out as the first thing that you might observe when coming down the road. Another thing is in regard to what your eyes see as you go down the private road. It is indeed a private road, but on the south side, further south, it is a public road. It is private on the east side of his property, private on the north side of his property and across the waterway further south it is a public road. I have never represented myself as a planner or an architect to Mr. O'Boyle, in fact I declared the opposite immediately in our discussions, but in my opinion, because the existing home is so close to the roadway, being so close to that feature as you travel down the road actually exaggerates the feeling or appearance one might observe while driving through the area. Randolph: You are relying on the language in Sec. 70- 100(a)(4) to make a determination that the entry feature is out of scale with the rest of the structure? Thrasher: Yes. I would also say that this Code, this Section of Code, Sec. 70 -100 was changed, modified, updated by Ordinance No. 12 -4 on July 13, 2012. Since that time we have had three applications brought to the Town dealing with the same issues as it relates to eave heights and overall height of the entry feature. One is the Gilman Residence on N. Ocean. In that case the owner asked for a third opinion and as our practice has been we asked Mr. Minor for assistance, we asked for an independent evaluation, he determined it was too high, too massive. We referred that back to the architect of record for that property, they modified the height of that entry feature to conform to Code and it was eventually approved. In regard to Place Au Soleil, there have been two applications since the date of this revision. One was prepared and presented to us by Architect Quinn Miklos and, in that same scenario, it was a single story, single family home. The Code was cited, he also asked for a third opinion and we obligated ourselves to do that. After giving that third opinion and after my initial discussion with him as prohibited, he again modified it. In both cases it has been everyone's opinion that the modifications improved the overall esthetics or appearance of the homes, and also conform to the specific sections of the Code I am referring to. The third review since adoption of this Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 14 revision was Kolea in Place Au Soleil and, in initial discussions we informed him of, and showed him, what the Code says. He accepted that and modified his design accordingly. Randolph: Have you covered what you wanted to say? Thrasher: I would like to repeat that I do not believe these garden walls as defined as structures are indeed attached to the existing structure of the home. They are nothing more than garden walls and should be considered as such, and they cannot, therefore, be establishing what the existing setback is, the distance from the setback lines. Randolph: Did you rely upon the opinion of Marty Minor for any part of the decision you made with regard to this application for clarification? Thrasher: I always do for clarification, but in this case I believe Mr. Ring reached out to Mr. Minor to initiate the initial conversations. I gave okay to it. I do not know whether I gave Marty input, I won't pretend to do that. Mr. Randolph asked the Commissioners if they had any questions of Mr. Thrasher. There were none. He asked Mr. Minor to the podium. Randolph: I will lay a predicate here and let you talk. State your name and your profession. Minor: My Name is Marty Remy Arthur Minor, I am an Urban Planner with the firm of Urban Design Kilday Studios in West Palm Beach, Florida. I am a Certified Planner, certified by the American Institute of Certified Planners. I have my Masters in Urban Regional Planning from Florida Atlantic University. Mr. Randolph asked Mr. Minor to submit his Curriculum Vitae into the Record. Randolph: Does your Curriculum Vitae indicate that you have experience in interpreting design codes? Minor: Yes. As part of my resume, more of a resume than a CV, before joining Urban Design Kilday Studios I worked for the City of Palm Beach Gardens. I eventually governed a Staff of four members, interpreting the code on a daily basis, writing staff reports, making presentations. That was the first half of my planning career, the second half has been largely on the private side, but also doing consultation with the Town of Gulf Stream. I have done work with other towns, i.e.; Tamarac, Ocean Ridge and Royal Palm Beach, with regard to their codes. Randolph: How long have you been a consultant to the Town of Gulf Stream? Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 15 Minor: I started working with the Evaluation and Appraisal Report in 2005. Randolph: Were you and /or your firm involved with the drafting of the Design Manual for the Town of Gulf Stream? Minor: Yes, my firm was. John Carleen was the Planner who worked with Scott Harrington, the Town Manager at the time, along with many people on this Board. It was an extensive process, using lot surveys, lots of workshops to create this Design Manual that won an a national merit award from the American Society of Landscape Architects. Randolph: From time to time were you called upon to give interpretations of the Design Manual? Minor: Yes. Randolph: Were you called upon in this instance to give an interpretation of the Design Manual by either Mr. Thrasher or anyone else? Minor: That is correct, yes, by Mr. Thrasher. I did talk to Mr. Ring and about some of the issues and possibly meeting on the site. We never set a firm date to meet on the site to review, but we did have that conversation. Randolph: What is your understanding of the intent of the Design Manual as it pertains to entry features of homes in the Town of Gulf Stream? Minor: I believe the wording is quite clear with regard to the intent of the Design Manual. The scale and proportion of entry features shall be consistent with the rest of the structure, varying just enough to provide a focal point in front of the house. Randolph: Is that from Sec. 70- 100(4)? Minor: That is correct, it is the last sentence. Randolph: You had an opportunity to look at the four variances that were applied for and are being contested as needing variances today. Give your opinion in regard to each of those variances as to whether or not you feel a variance is needed from the Code. Minor: As a quick background, when I was presented the plans for this I did what I always do when I look at building plans, I look at the Code. I do an analysis of what portions of the house, either existing or proposed, are consistent with our Code. In looking at 23 N. Hidden Harbour Dr., the property in question, I identified six areas that are not consistent with the Code. Those areas are the Floor Area Ratio, the first and second story eave heights for the entry feature, the effective lot area and then the rear and the front setbacks. Some of those with Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 16 this application are not changing and that is permitted. As we all talked about, this is a non - conforming house because of these inconsistencies with the current Code, this makes it non - conforming. Sec. 66 -131 says buildings or structures or uses of the land which are non - conforming shall not be extended or enlarged. However, a special exception may be allowed for additions to structures with existing non- conforming setbacks pursuant to provisions of Chapter 70, Sec. 70 -75. Sec. 70 -75(c) states that existing setback is a minimum setback. You can add with a special exception. This Board, and there is some criteria in there, can grant people to make an addition as long as they do not exceed the existing non - conforming setback. This is not the case here. As evidence indicated, the entry structure extends 2 feet into that setback, it is part of the building, it is part of the structure and that is how we determine setbacks. The entry feature, the garden wall that was mentioned, is almost similar to any other entry features. We do not measure the setbacks for that for the home, for the home we look to the building and the building itself and that's the wall of this entry feature. So that's one setback. Randolph: Why wouldn't that entry feature be considered separate from the structure itself, it seems to me there is some indication that be considered not a part of the structure? Maybe I misinterpreted what was being said. Minor: It does not meet the intent of an accessory structure. It is a structure that is fully roofed and is calculated as part of your floor area of the house. It is identified and because of the height, despite whether or not there is a second floor, our Code determines that that space is counted twice. Anything over 15' in height area, you count that floor area twice and then that between the solid roof and the identification of that area being included in the floor area, that shows the determination that it is part of the house, just as any other roof structure would be. With regard to the enlargement of the property, the non - conforming, Code Sec. 66 -132 says, "shall not be extended or enlarged." From the applicant's own plans and application they are expanding the building by 109 SF. Right now it exceeds the FAR. As per my memo, the FAR permitted for this lot is 5,500 SF, right now it is over 8,000 SF and it is expanding even more. Randolph: What is the date of your memo you reference? Minor: January 25, 2013. Randolph: Has the Commission received it? Minor: It was addressed to Mr. Thrasher. Mr. Thrasher confirmed that the Commission received the memo. Minor: With regard to the entry feature, the language where it says, "Entry features of the front portion of the structure which Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 17 provides door entrance to the dwelling, the height of the entry feature is measured from the finished floor elevation to the upper portion of any balcony, railing, Dutch gable or other such elements." This is language we added last summer because during our Code amendment there was some confusion over the way Code was being read. For example, if you did not have an save you had a Dutch gable, and how do you measure that? There is no save on a Dutch gable. Do you want to create these massive entry features? This is not part of the fabric of Gulf Stream, it is not part of the intent and not consistent with the overall character of this Town. If you look at that element, or if they call it a cornice, that is that finished floor area to that area, and in preferred, save heights, they talk about 8' to 10', discouraged, save heights, 10' to 121. The proposed is approximately 151, and the overall save height on the second floor extends above the second story roof line. I am not aware of any homes in Gulf Stream that have an entry feature eave extending above the second story ridge line. This is approximately 251. I would like to point out to you on Sec. 70 -100 under two story homes, (c)(3) prohibited, Eave heights, for one story portions if the applicant wants to call this a one story entry feature, the height is no greater than 12' for eaves. If he wants to call it a two story feature, the save limitation is 231, anything more is prohibited. They talk about roof heights, where they are at 301, the roof height prohibited is anything greater than 261, so they have exceeded that. Mr. Thrasher asked Mr. Minor to repeat. Minor: This is at Page 70 -48, the top portion, roof heights. If you are going to call this a one story portion, the overall height is limited to 26', they are providing 301. The top of this roof is approximately 8' higher than the existing roof ridge and I believe this challenges the perception or the assertion that this is compatible and a consistent scale of proportion. These are the four variances that have been identified, and when you look at the specific criteria for variances in your Code, Sec. 66 -154, you have to find that on each of these variances they meet the special conditions. Mr. Randolph stated that we are not here on the variances right now, we are here to make a determination on the Appeal as to whether or not the Design Manual was interpreted correctly in making a determination as to whether variances are needed. If and when we get to the second part you can testify in regard to the criteria for variances. Mr. Minor said he would be available for questions. He submitted his Resume /Background for the record. The Resume /Background will be filed in the Official Records of the Town of Gulf Stream. Commissioner Dering asked if it is the roof height or the save height that is allowed a maximum of 26'. Mr. Minor said it is the roof height for one story portions, on a two story structure it is prohibited. The save height for one story portions is 1216 ". Greater than 23' for two Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 18 story. With regard to the breakup on the tower and the delineation with cornice or other element, Vice -Mayor Stanley asked Mr. Minor if he would consider it a gable or a feature or other element. Mr. Minor said he considers it an "other element ", a dividing line where it could have been a faux balcony, a railing, any other kind of feature that breaks up the massing of the tower. Mr. Randolph asked Mark Marsh to answer a couple of questions for him. Randolph: Are you a registered Architect? Marsh: Yes, I am. Randolph: Do you practice architecture in the Town of Gulf Stream? Marsh: I've done so for over 30 years. Randolph: In your opinion has Mr. Thrasher consistently applied the Code to each application that comes before him, at least in regard to your applications? Marsh: Yes. Randolph: Having heard the testimony today, do you have an opinion as to whether or not Mr. Thrasher is correct in his interpretation of the Code as it relates to this application. Marsh: I think it is consistent, in all the years that I've done battle here. I am a little confused because Mr. Thrasher is the point of reference here, but Marty Minor and Urban Design Studios are the consultants that interpret and assist the staff. Randolph: Do you agree with Marty Minor's testimony today. Marsh: Yes, I think it is consistent. Mayor Orthwein asked for Public comment. There were no comments by the Public. Mayor Orthwein asked if there was rebuttal. Mr. Siemon came forward. Mr. Siemon said his client submitted an application for a variance that included certain things on plans and drawings as instructed. He asked the Board to keep in mind the intent of the Code. If you judge that the design of this building is not an improvement and not compatible or consistent, that is a different matter. Mr. Siemon said although other applicants have been willing to modify, you have to judge everyone individually. He said he would like Mr. Ring to explain the basis of what is in the application, but he said what is a matter of law is what the Code says, what its intent is, and how does it apply to these cases. Mr. Siemon said it is important to understand how this application came to be before you, and why they did what they did. Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 19 William Ring, Esq., introduced himself and said he met with the Town Clerk and Mr. Thrasher about a week before the submittal of their application, which was submitted on January 15, 2013. He said they went through a set of plans and a Town of Gulf Stream Site Data Table, which they prepared for that meeting, and they went through plans page by page. Mr. Ring said Mr. Thrasher pointed out on the plans where he wanted certain measurements, and he said the plans were submitted as instructed by Mr. Thrasher. He said the Site Data Table reviewed at the meeting showed not an addition of 109 SF, which is on the application, it showed a subtraction of 209.4', which is correct. Mr. Ring said he was told that his interpretation of the Code was incorrect and that they needed to count the area of the tower double instead of just once. He said that is how they were instructed to do the Site Data Table and that is how it was submitted. Mr. Ring said the problem with Staff's interpretation is it creates a fiction that something is being added when there is nothing being added. He said they are demolishing what is there and something new and prettier will be built, but the dimensions are almost exact. Mr. Ring said the comment that the home is currently non - conforming because the square footage exceeds the FAR, but he said the calculation on the gross lot area shows they are able to add another 2,000 SF to the total, and he said his calculations indicated that if they were using the gross lot area to determine the size of the building they would be entitled to about 10,448.6 SF. However, he said in order to submit the application in accordance with Mr. Thrasher's wishes they acquiesced and submitted an application as instructed. Mr. Ring said he had a conversation with Marty Minor because he wanted to arrange a meeting at Mr. O'Boyle's house, but he was instructed by Mr. Thrasher that he should not have direct communication with Mr. Minor without Mr. Thrasher present. He said due to scheduling, they never had a substantive conversation on the application or on Mr. Minor's report. Mr. Siemon said it was suggested that what is proposed is massive and out of scale and character. He displayed a drawing of what is permitted and compliant, which they feel would be an architectural mistake. He asked the Board for their support that a variance is not required. Commissioner Ganger asked for clarification of why the example of the preferred entry feature is compliant. Mr. Siemon explained saying there are no eaves, it is 30' from the measured area, there is no eave on the roof and there is no eave line, and he said if there is no eave line there is no eave height requirement. There is no eave height requirement in the entry feature section of the Code. Mr. Randolph said the Commission should go into Executive Session, ask questions and make a decision on the Appeal. He recommended dealing with the variances on a section by section basis so that the record is clear as to what you are doing. You are to determine whether Mr. Thrasher was correct in his interpretation of the Code, or incorrect, in which case would make a decision in favor of the applicant with regard to the Appeal. Regular Meeting and Public Hearing . Town Commission - March 15, 2013 Page 20 Mayor Orthwein asked for comments or questions concerning the interpretation of the Code with regard to Variance #1 which is to allow a net addition of 109 SF to the entry. Commissioner Ganger said all are sympathetic with the dilemma to improve a non - conforming home that is out of favor with the architectural style. He said there is some merit in the fact that it is an odd lot and the permitted floor area of the addition of 109 SF is less than 1% of the existing floor area. If it were the only issue, Commissioner Ganger said he may give some credence to this one argument. With regard to interpretation, as interpreted by Staff, this one may have been a tough call and an argument could be made on both sides. Commissioner Dering said the FAR is mathematical according to Code. He said he has heard challenges, but nobody has said why Staff is incorrect. Mr. Randolph said the motion should be to either sustain the decision of Staff, or to overturn the decision of Staff, granting the Applicant's Appeal in that regard. It was the consensus of the Commissioners to discuss all of the interpretations at once and then vote on them one at a time. Mayor Orthwein noted Variance #2 to permit the first -story save height of the proposed entry feature to exceed the maximum discouraged height of 10.5 feet by 2.5 feet to the architectural element. Vice -Mayor Stanley said one of the applicable sections of the Code is Sec. 70- 100(a)(4), he said we discussed the middle of the entry feature, whether it is called a "cornice" or "other such feature" and we have the measurements requested by Staff as presented in Mr. Currie's drawings on Page A3.02. He said given the testimony of Mr. Minor and Mr. Thrasher, along with the measurements provided by the Architect, which are correct, he believes the assertion of Staff on this and applying the variance was correct. Commissioner Dering said if you look at the definition of "story" in Sec. 66 -1, Definitions, "Story shall mean a portion of a building including between the surface of any floor and the surface of the next floor above it, or if there be no floor above it then the space between such floor and the ceiling next above it." He said 70- 100(a)(4) does not mention "story," 70- 100(a)(4) identifies it as "other element" and if this part half -way up the 15' is an element then we are not compliant. Vice -Mayor Stanley said we did not address the term "story" with Mr. Minor. Mr. Minor said if you consider that a one -story eave structure that is part of a two -story building, the prohibited eave height for a one -story portion is anything greater the 121, and this is at the bottom of 70 -47 and they would need a variance from that. If you consider one story or two stories, a variance is required with regard to eave height. Mr. Siemon said he has two points, it says the height of the entry feature is measured from the finished floor elevation to the upper portion of any balcony, railings or other elements. The upper portion of that is 301, there is no mention of eave height in the entry feature provision. He said an eave, as defined in Town Code, is part of a roof and there is no roof there, and he said it is not a two - story, it is an entry feature and Code provides that height is measured from the floor Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 21 to the top of the feature. Commissioner Dering asked the height of the save. Mr. Ring said it does not matter because there is no requirement for eave height, but it is 251. Mayor Orthwein noted Variance #3 to permit the second -story eave height of the proposed entry feature to exceed the maximum discouraged height of 23' by 2'. Commissioner Ganger said whether or not a variance is applicable, if you decide one way on one variance you should decide the same on all four variances because they go together. Mayor Orthwein noted Variance #4 to permit an additional 2 -foot encroachment beyond the existing 918" front setback encroachment. Vice - Mayor Stanley said the analysis on this one is easier because if you have a non - conforming house and the front of the plane is encroaching, the Code does not say, if you have a wall in front that is part of your house, it allows you to continue it so you can bring everything else up to a garden wall. Commissioner Ganger asked Vice -Mayor Stanley if he is saying that there is a 2 -foot encroachment beyond the existing front setback and, therefore, the variance is required. Vice -Mayor Stanley confirmed that. Commissioner Dering moved and Commissioner Ganger seconded to sustain the decision of the Town Administrator regarding Variance #1. There was no discussion. Roll Call: Commissioner Ganger, AYE; Vice -Mayor Stanley, AYE; Commissioner Anderson, AYE; Commissioner Dering, NO; Mayor Orthwein, AYE. The motion passed by a vote of 4 - 1. Commissioner Anderson moved and Vice -Mayor Stanley seconded to sustain the decision of the Town Administrator regarding Variance #2. There was no discussion. Roll Call: Commissioner Ganger, AYE; Vice -Mayor Stanley, AYE; Commissioner Anderson, AYE; Commissioner Dering, NO; Mayor Orthwein, AYE. The motion passed by a vote of 4 - 1. Vice -Mayor Stanley moved and Commissioner Ganger seconded to sustain the decision of the Town Administrator regarding Variance #3. There was no discussion. Roll Call: Commissioner Ganger, AYE; Vice -Mayor Stanley, AYE; Commissioner Anderson, AYE; Commissioner Dering, NO; Mayor Orthwein, AYE. The motion passed by a vote of 4 - 1. Vice -Mayor Stanley moved and Commissioner Ganger seconded to sustain the decision of the Town Administrator regarding Variance #4. There was no discussion. Roll Call: Commissioner Ganger, AYE; Vice -Mayor Stanley, AYE; Commissioner Anderson, AYE; Commissioner Dering, AYE; Mayor Orthwein, AYE. The motion passed by a unanimous vote of 5 - 0. The Public Hearing was recessed at 1:50 P.M. and reconvened at 1:55 P.M. B. TOWN COMMISSION 1. Applications for Development Approval a. An application submitted by William Ring, Commerce Group, Inc. as agent for Martin O'Boyle, owner of Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 22 property located at 23 Hidden Harbour Dr., Gulf Stream, Florida, legally described as Lot 5, Hidden Harbour Estates, Gulf Stream, Florida. (1) VARIANCE #1 to allow a net addition 109 square feet to the front entry feature of the existing non - conforming two -story single family dwelling that currently exceeds the maximum permitted floor area ratio by 2,589 square feet. (2) VARIANCE #2 to permit the first -story eave height of the proposed entry feature to exceed the maximum discouraged height of 12.5 feet by 2.5 feet to the architectural element. (3) VARIANCE #3 to permit the second -story save height of the proposed entry feature to exceed the maximum discouraged height of 23 feet by 2 feet. (4) VARIANCE #4 to permit an additional 2 foot encroachment beyond the existing 9 foot 8 inch front setback encroachment. (5) DEMOLITION PERMIT to remove 229 square feet of gross floor area. (6) LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit an addition for a cumulative increase of 109 square feet to an existing 8,001 square foot, non - conforming, Spanish Mediterranean Revival, two -story single family dwelling. Mr. Randolph stated that this does not require a lot of discussion, other than hearing how the application meets the criteria of the eight standards for the granting of the variance. Mr. Siemon requested that the Board consider the proceeding just held as a part of the record in this matter. Mr. Siemon said a key word in the purpose and intent of the Code that has been over looked is "or" which means that there are two different items. He quoted, "variances are deviations of the terms of this Code that would not be contrary to the public interest when owing to special circumstances "or" when the literal enforcement of the provisions will result in an undo and an unnecessary hardship." Mr. Siemon said the ARPB determined that each variance should be denied because the applicant failed to demonstrate compliance with all eight requirements. He said that is erroneous because all eight provisions do not apply to a variance based on special circumstances. With regard to Standard #1 in Sec. 66 -154, Mr. Siemon said because of the configuration of this property and the non - conformities imposed upon it by the change in regulations, there is very limited utility and, therefore the application complies with #1. With regard to Standard #2, he said Mr. O'Boyle had nothing to do with the Design Manual and the impact of applying it on his house and, therefore, this application complies with #2. With regard to Standard #3, Mr. Siemon said he could not find any existing structure in Gulf Stream built before 1995 that has as many limitations on its potential for either renovation or replacement as .Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 23 this parcel. He said that is why there is a variance provision, to judge whether or not it is contrary to the public interest and, therefore, this application complies with #3. With regard to Standard #4, Mr. Siemon said this applies to a hardship, not to an application for a variance because of special circumstances, but the order issued by the ARPB said it didn't comply with all eight. This one does not apply. With regard to Standard #5, Mr. Siemon said they could leave the height as is, but it would not be a worthwhile investment. He said the property owners have spent a lot of money designing something they feel is a worthwhile investment to the character of the building. Mr. Siemon said this is a minimum variance based on the testimony from Mr. Currie. With regard to Standard #6, Mr. Siemon said there is no question of use here and it cannot possibly apply to the variance before the Board. With regard to Standard #7, Mr. Siemon said this application is consistent with the Land Use Map and it does not violate anything found on that. With regard to Standard #8, Mr. Siemon said it does not give the specific prescriptions, it says the general intent and purpose of this Code and that such variance will not be injurious with the area involved or otherwise detrimental to the public welfare. He said this is the basis of your authority to control what people do with their private property and this is consistent with the general intent and with the specific intent, it is improving the property so that it will be more in harmony with neighbors and the overall community. Mr. Siemon said it will be beneficial to the community, and he said the developer who is building the new homes adjacent to this property is supporting it. He said Mr. O'Boyle's home sits right on the road due to the actions taken by the Town when they changed the regulations and, therefore, condemning this house to remain a 1983 house. Mr. Siemon said granting the variance makes good sense. Mr. Currie said this is a better design than what currently exists, the design is much more appropriate, it is in harmony and will enhance the value of the neighborhood. He said to drop the height down will hurt the design. Mr. Currie said Mr. O'Boyle has followed all of the rules and the rules were changed. Mr. O'Boyle introduced himself and thanked the Board for their time in hearing them out; however, he said he is outraged by the reprehensible conduct of the Board today. He said he has millions of dollars invested here, his taste on his property is his prerogative and the Board does not have the right to impose their taste on his property. Mr. O'Boyle said if the Board does not like this house, he has two houses in Hidden Harbour, he will remodel both of them in full compliance with the Laws of the United States of America, as he said Mr. Randolph is quite familiar with, and they will not be nearly as attractive as what they are offering here. He said his neighbor, Mr. Laudani, who is building six homes on the hill, wrote a letter of approval because he believes the improvements will increase the value of the new homes. Further, he said his neighbor, Mr. Krebbs, wishes him the best on this application. Mr. O'Boyle said there is an old saying, "watch what you ask for, you Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 24 might get it." Mr. O'Boyle said, "watch what you ask for, you might get it." Mr. O'Boyle said he is sincere in saying that he appreciates Mr. Thrasher and he is a good man, but he is not a land planner. He said he made a public records request for Mr. Thrasher's personal file, his experience, his education, and he said his knowledge of this Code is not what it should be, and he said it is not what you think it is. Mr. O'Boyle said there are a slew of real estate signs along AlA, many of them from Mayor Orthwein's firm. He said in Sec. 66 -446, they are prohibited and Mr. Thrasher has driven by them and has missed them for 17 years. Mr. O'Boyle said he pointed out Sec. 66- 446(a) to Mr. Thrasher, which deals with signs on private property. He said many of the signs are on AlA, which is not private property, and he said Mr. Thrasher responded by saying that signs do not have to be on private property. Mr. O'Boyle said the only other property would be public property and, therefore, he assumes that signs can be placed on public property. He said Mr. Siemon used the word "absurd," and he said if we interpret Sec. 66- 446(a)(4) as Mr. Thrasher does, the result is absurd, because then you would allow my application for a West Virginia Corporation to place a sign on the right -of -way in front of Town Hall. Mr. O'Boyle said that is the interpretation we have in this Code. Mr. O'Boyle said there is no rational basis for a cornice to be called a roof. He said the Town Fathers are entitled to vote as they wish, but he said deference should be given to he and his wife, who have lived in Gulf Stream over 30 years, and to his neighbors who have shown appreciation. Further, he said the Code is not the Holy Grail, you enforce it or you throw it in the trash. No real estate signs from Mayor Realtors, no signs from West Virginia people on right -of -ways. Mr. O'Boyle thanked everyone for hearing him out. Mr. Siemon said he read criteria that apply, it is a special circumstance given the punitive nature of the change in regulations that rendered this building non - conforming so much that the setback from the water and from the road would almost intersect in the center of the property. Some of you feel the design is massive and out of scale and character, but Mr. Siemon said he believes the criteria are met and the job is to do what is fair and in the best interest of the community. He said it is appropriate and it should be approved. Vice -Mayor Stanley said when the Board hears variances, one thing they look at is the eight standards. He said they are sympathetic of the fact that the house needs improvement. Vice -Mayor Stanley asked Mr. Currie if there are any alternatives, other than the design displayed as an example of what is permitted. He said it cannot be the only other option. Mr. Currie said there are hundreds of other options, but this character of design is in the owner's taste, and he said in order to do a prominent entranceway it would be a poor solution for many reasons to drop the height two feet. He said this is the minimum they can do, and he explained that they need the cornice dimension to be above the Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 25 intersecting roof in the back, and the minimum standard coming out is to capture the overhang of the roof in front. Vice -Mayor Stanley said the term "massing of the entry feature" has not been used, and he said when reviewing variances and applying the Code, one function is to reduce the massing of whatever you are doing. He said when interpreting and applying the Code we must determine if a feature is too massive or too prominent, and he asked for confirmation from Staff that part of applying the Code is to reduce the size and scale of a feature to comply with Code. Mayor Orthwein and Staff confirmed that is correct. Mr. Randolph said it relates to Mr. Thrasher's interpretation of the Code as it applies and now you will consider the various criteria as to whether literal interpretation of the provisions of the Code will deprive the applicant of rights commonly enjoyed by others. Commissioner Ganger said he feels some deference should be given to the fact that this is an odd lot and non - conforming, he said the house is not as vibrant as it was when first built and other houses have been built around it that are more in character with the Community and the District. He said the Applicant knows what he is proposing is contrary to the overall desire of the Town to reduce mass when they see it, and he said the majority of the people in this community want to see something more elegant and subdued. Commissioner Ganger said he believes that Mr. O'Boyle is trying to improve the look of his home and he believes that Mr. Currie is an outstanding architect. He said it is not an easy decision, he said he would be inclined to approve some of the variances, but he realizes it is a whole package and he would like to hear what the other Commissioners have to say. Commissioner Dering said what they are proposing is a substantial improvement to what exists, there are a lot of special circumstances with the water and the setbacks, he does not find it contrary to public interest and he said the Board should find a way to let him do this. Mayor Orthwein said it is an improvement and it is a difficult lot to do anything with, but she said there is a problem with the mass of the entryway, mass being one of the reasons the Town redid the Code. She said she is not sure the Applicant has met all of the criteria, but this will set a precedence moving forward. Further, she agreed with Mr. O'Boyle's comment that if the Town does not stick to the Code it should be thrown away. Mr. Randolph said the question is whether or not the Applicant has met the standards of criteria set forth in the Code. He suggested the Board start with Variance #1 and make a motion as to whether or not they have met the criteria for that Variance. Further, he said consider the variance, consider the standards, do not give consideration to whether you think it is too massive or that you may not like it, but give consideration to the criteria and vote on that basis. Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 26 Commissioner Ganger moved and Commissioner Dering seconded to grant Variance #1 to allow a net addition of 109 SF to the front entry feature of the existing non - conforming two -story single family dwelling that currently exceeds the maximum permitted floor area ratio by 2,589 SF based on the finding that the Applicant has met the criteria as set forth in the Code. There was no discussion. Roll Call: Commissioner Ganger, AYE; Vice -Mayor Stanley, AYE; Commissioner Anderson, NO; Commissioner Dering, AYE; Mayor Orthwein, NO. The motion to grant passed by a vote of 3 - 2. Vice -Mayor Stanley moved and Commissioner Ganger seconded to grant Variance #2 to permit the first story save height of the proposed entry feature to exceed the maximum discouraged height of 12.5 feet by 2.5 feet to the architectural element based on the finding that the Applicant has met the criteria as set forth in the Code. Roll Call: Commissioner Ganger, AYE; Vice -Mayor Stanley, NO; Commissioner Anderson, NO; Commissioner Dering, NO; Mayor Orthwein, NO. The motion to grant failed by a vote of 4 - 1. Mr. Randolph said an affirmative motion to grant was made by Vice -Mayor Stanley and he voted "NO." Vice -Mayor Stanley confirmed that. Mr. Randolph said someone should follow up with a subsequent motion since that motion failed. He said there must be an action on the record in regard to denial, because the fact that an affirmative motion did not pass is not enough. Mr. Randolph instructed that a follow -up motion to deny must be made and, in the motion to deny, do not state that you do not believe that all of the criteria have been met, but rather specify what criteria have not been met. He asked Vice -Mayor Stanley if it is his intent to make a motion to deny and Vice -Mayor Stanley confirmed that. Mr. Randolph said he must support that motion to deny with a reason being that it does not meet one or more of the criteria set forth in the Code. Vice -Mayor Stanley moved and Commissioner Anderson seconded to deny Variance #2 to permit the first story save height of the proposed entry feature to exceed the maximum discouraged height of 12.5 feet by 2.5 feet to the architectural element based on the finding that it does not comply with special conditions and circumstances that do not result in the actions of the Applicant. DISCUSSION: Mr. Randolph asked about Standard #3. Vice -Mayor Stanley it does not meet Standard #2 and Standard #3. Commissioner Dering asked if these are regardless of special circumstances. Mr. Randolph said you can believe there are special circumstances that are peculiar to the land, but not agree that the variance will not confer a special privilege on the Applicant. You do not need to go through each Standard, you can simply indicate you deny because it does not meet one or more of the criteria set forth in the Code. You have already identified two of the criteria that you believe have not been met, he asked about Standard #5. Mr. Randolph said you do not need to have a consensus for each one of these, but you should at least identify one or Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 27 two of the criteria that have not been met so that the record supports that you have based this on the criteria and are not making a general motion. He said you have identified Standard #2 in the motion that has not been met. Mr. Randolph asked for Staff's opinion. Mr. Thrasher said, based on what he heard from Mr. Siemon, he does not believe that Standards #3, #4, #5 and #8 have been met. Mr. Randolph instructed the Board to keep in mind that the Standards Section says, "When recommending or taking final action on applications for variances, the review authority must find that. . .," and then it lists all eight Standards. He said unless you find that the application has met all eight Standards, you would deny the variance. Further, he said Mr. Thrasher has given Staff's opinion of which criteria have not been met and if you agree you can make a motion on that basis. Vice -Mayor Stanley moved and Commissioner Anderson seconded to deny Variance #2 to permit the first story eave height of the proposed entry feature to exceed the maximum discouraged height of 12.5 feet by 2.5 feet to the architectural element based on the finding that not all of the eight (8) standards for granting a variance have been and at least one of the applicable standards have not been met. Roll Call: Commissioner Ganger, NO; Vice -Mayor Stanley, AYE; Commissioner Anderson, AYE; Commissioner Dering, NO; Mayor Orthwein, AYE. The motion to deny passed by a vote of 3 - 2. Vice -Mayor Stanley moved and Commissioner Anderson seconded to deny Variance #3 to permit the second story save height of the proposed entry feature to exceed the maximum discouraged height of 23 feet by 2 feet of the architectural element based on the finding that not all of the required eight (8) standards for granting a variance have been met and at least one of the applicable standards have not been met. DISCUSSION: Mr. Randolph asked if the Commissions position on this Variance is the same as the previous. Vice -Mayor Stanley confirmed that, being Standards #3, #4, #5 and #8. There was no further discussion. Roll Call: Commissioner Ganger, NO; Vice -Mayor Stanley, AYE; Commissioner Anderson, AYE; Commissioner Dering, NO; Mayor Orthwein, AYE. The motion to deny passed by a vote of 3 - 2. Vice -Mayor Stanley moved and Commissioner Anderson seconded to deny Variance #4 to permit an additional 2 -foot encroachment beyond the existing 9'8" front setback encroachment based on the finding that not all of the required eight (8) standards for granting a variance have been met. Roll Call: Commissioner Ganger, AYE; Vice -Mayor Stanley, AYE; Commissioner Anderson, AYE; Commissioner Dering, NO; Mayor Orthwein, AYE. The motion to deny passed by a vote of 4 - 1. Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 28 Commissioner Anderson moved and Vice -Mayor Stanley seconded a motion for denial to remove 229 SF of gross floor area as the proposed alterations do not meet the minimum intent of the Design Manual and applicable review standards. There was no discussion. Roll Call: Commissioner Ganger, NO; Vice -Mayor Stanley, AYE; Commissioner Anderson, AYE; Commissioner Dering, AYE; Mayor Orthwein, AYE. The motion to deny passed by a vote of 4 - 1. Vice -Mayor Stanley moved and Commissioner Anderson second a motion to deny a Level III Architectural /Site Plan to permit a cumulative increase of 109 SF to the existing 8,001 SF, non - conforming, Spanish Mediterranean Revival, two -story single family dwelling does not meet the minimum intent of the Design Manual and applicable review standards. There was no discussion. Roll Call: Commissioner Ganger, AYE; Vice - Mayor Stanley, AYE; Commissioner Anderson, AYE; Commissioner Dering, AYE; Mayor Orthwein, AYE. The motion to deny passed by a unanimous vote of 5 - 0. Clerk Taylor asked for declarations of Ex -parte communication concerning the remainder of the items to be heard. Both Commissioners Dering and Ganger stated that they drove by the subject property at 915 Emerald Row. Commissioner Ganger asked if the tile is meant to resemble a shake roof. Mr. Molyneux said they chose the particular tile because it was close to the brown shake color. Vice -Mayor Stanley commented that no one wants a shake roof anymore and the brown cement tile is an alternative. He said b. An application submitted by Bernard and Stephanie Molyneux, owners of the property located at 915 Emerald Row, Gulf Stream, Florida, which is legally described as Lot 64, Place Au Soleil Subdivision, Gulf Stream, Florida (1) VARIANCE to allow a roof replacement on an existing Gulf Stream Bermuda style, single family, one story dwelling, of a color and material that do not conform to the provisions of Sections 70 -107 and 70 -238 of the Gulf Stream Zoning Code. (2) LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit the installation of a brown, flat cement tile roof, replacing the existing wood shake roof, on an existing Gulf Stream Bermuda style, single family, one story dwelling Property Owner Bernard Molyneux introduced himself and stated that he is requesting a variance to permit the use of a brown cement roof tile on his home. He displayed the desired roof tile and explained that he currently has a wood shake roof that needs to be replaced and he would like a cement tile that is close to the existing brown color because he does not want to take away from the look of the home. Mr. Molyneux said the roof has been brown since 1984 and it was reroofed in 1995. He explained that he cannot get insurance on the house due to the roof. Commissioner Ganger asked if the tile is meant to resemble a shake roof. Mr. Molyneux said they chose the particular tile because it was close to the brown shake color. Vice -Mayor Stanley commented that no one wants a shake roof anymore and the brown cement tile is an alternative. He said Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 29 he is aware that the ARPB was sympathetic to the situation, but the Code has a provision to allow you to replace what was removed, or it allows replacement on a Bermuda Style with a white cement tile through and through or gray slate tile. Vice -Mayor Stanley noted that the Town is having an on -going battle with cement tile color, but he said the choice is limited to white through and through or gray slate -like cement tile. Clerk Taylor said it can be a darker gray. Mr. Thrasher displayed a sample of the gray slate -like tile that has been reviewed and approved by the ARPB and the Commission. He said there is another sample of a gray tile not reviewed or approved by the ARPB or the Commission. Vice - Mayor Stanley pointed out that the brown cement tile is much bigger that the cedar shake and it changes the dimensions. Mr. Thrasher said he thought Mrs. Molyneux indicated that they can get insurance, but it would be very expensive. Mr. Molyneux it would be $20,000 and from an insurance company no one has heard of. Commissioner Ganger said insurance companies are putting property owners in an awkward position and the Board is sympathetic with the situation. He said Mr. Molyneux could take a chance on letting the Board vote on the Variance now. Vice -Mayor Stanley said we should vote now and get direction from Staff afterward. He said an alternate course would be to work with Staff on this and then come back to the ARPB, and he added that he would have the choice of either white cement through and through or gray slate -look cement tile and maybe a darker gray. Mayor Orthwein said that the Board can approve a gray roof right now. Mr. Molyneux said he preferred the dark gray tile. Vice -Mayor Stanley moved and Commissioner Anderson seconded to deny a variance based on a finding that the proposed brown /tan concrete roof material is prohibited by Gulf Stream Zoning Code Sections 70 -107 and 70 -238. Additionally, none of the required eight (8) standards for granting a variance have been met as defined in Section 66 -134. There was no discussion. All voted AYE. Vice -Mayor Stanley moved and Commissioner Ganger seconded a motion for approval of Level III Architectural /Site Plan to replace the existing wood shake roof with a cement gray slate - colored through and through tile, rather than the brown /tan concrete roof material originally requested. There was no discussion. All voted AYE. Commissioner Anderson left due to time constraints. A quorum remained. C. An application submitted by Mark Marsh, Bridges, Marsh & Associates, Inc., as agent for Mr. & Mrs. Nelson Grumney, Jr., owners of the property located at 2960 Polo Drive, Gulf Stream, Florida, which is legally described as Lot 21 and part of Lot 20 in Gulf Steam Cove Subdivision. (1) SPECIAL EXCEPTION #1 to permit the extension of the non - conforming south wall of the existing structure, that encroaches a maximum Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 30 of 1 foot into the south side setback, to add a master bedroom of approximately 302 square feet to be located on the first floor. (2) SPECIAL EXCEPTION #2 to permit the addition of the proposed 302 square foot master bedroom to extend 20 feet into the 50 foot rear setback. (3) DEMOLITION PERMIT to allow small portion of existing garage to be removed in order to realign the 2 car garage. (4) LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit the addition of a master bedroom, a small addition to the kitchen, a realignment of the 2 car garage and a new front entry, a net increase of 540 square feet on the first floor of an existing partial two story Neo- French Eclectic single family dwelling. Mark Marsh, agent for Grumney, stated that they are applying for two special exceptions that will allow for the proposed additions to the south west corner of the existing Neo- French Eclectic style home, which has already had a number of renovations in the past. He said they are also proposing a new and more elegant entry, and they would like to demolish a portion of the existing garage in order to realign the 2 -car garage and. Mr. Marsh said the extent of that demolition was uncertain when this application was heard by the ARPB, and he said he brought that to their attention at that time. He said he wrote to Staff since the ARPB Meeting to that they would like to demolish the entire north wing, and he said there is a color -coded drawing showing the plan. Mr. Marsh said they are realigning the existing garage because it is at an awkward angle, and he said the purpose for total demolition of that wing is because they are not able to use any of the existing piling or grade beams. Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve a Special Exception to permit the extension of the non - conforming south wall of the existing structure that encroaches a maximum of 1 foot into the south side setback, to add a master bedroom of approximately 302 SF to be located on the first floor. There was no discussion. All voted AYE. Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve a Special Exception to permit the addition of the proposed 302 SF master bedroom to extend 20 feet into the 50 -foot rear setback. There was no discussion. All voted AYE. Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve a demolition permit to allow the entire existing kitchen /garage wing to be demolished in order to realign the 2 -car garage. There was no discussion. All voted AYE. Vice -Mayor Stanley moved and Commissioner Ganger seconded to approve a Level III Architectural /Site Plan to permit the addition of a master Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 31 bedroom, a small addition to the kitchen, a realignment of the 2 -car garage and a new front entry, a net increase of 540 SF on the first floor of an existing partial two story Neo- French Eclectic single family dwelling based on a finding that the proposed construction meet the minimum intent of the Design Manual and applicable review standards. There was no discussion. All voted AYE. VIII. Reports. A. Utility Undergrounding -Danny Brannon (Engineer) Danny Brannon gave a brief Undergrounding update. He said due to current clear zone requirements, there will be about 20 easements along AlA and they are currently gathering the legal information on ownership of the parcels, which is moving along. Mr. Brannon said the Commission asked Mr. Thrasher to take the lead on street lighting and Mr. Thrasher brought Marty Minor in to help coordinate some the street lighting. He said they have some samples to display and he asked Mr. Minor to take over this discussion. Commissioner Ganger asked if the issue of easements will slow down the process. Mr. Brannon said it may slow it down a little, but in similar situations they have found that residents are very cooperative. Mr. Minor said the Town currently has the standard FP &L Cobra lights. He said this is an opportunity to address lighting for the Town with regard to safety and security, but also for esthetics, streetscapes and creating a distinct identity for the Town. Mr. Minor said the Town should keep the sea turtles in mind. He said the Town currently has the high FP &L lights and the new lights will be a bit lower. With regard to crime prevention, white light is preferred, either LED or Middle Haylight, because they show true color. Mr. Minor said there are approximately 88 lights in Gulf Stream and they looked at various types of fixtures to replace them. He said his recommendation is a more traditional lantern style, which is consistent with the Gulf Stream Golf Club and several homes in the area. Mr. Minor said that Keith Hall, Vice - President of Beacon Lighting, and Ryan Hough of Lighting Dynamics were present. He said they are the experts on lighting and can talk about the two fixture samples they brought with them. Mr. Minor said they did a ball park cost estimate for the replacement of 88 lights that includes a 10 -year warranty and installation, which is roughly $380,000. He said there is a decorative light for the Core and County Rd. area off of AlA. On AlA, because of the Australian Pines and the setbacks, the Cobra with a Viper light is being considered. Mr. Minor displayed a sample of the Viper light, which he said Mr. Brannon suggested painting green so that they would blend in. Mayor Orthwein asked if they have to be painted and, if painted, how long will it last. Keith Hall of Beacon Lighting took over saying that Beacon Products is located in Sarasota, Florida, they were founded in 1979 and acquired by Hubble Corporation in 2008. He said being located in Florida, Beacon has always prided themselves on the finish of their product. Mr. Hall said the use a finish process that is approved by Sherwin Williams, they can offer either a 5 -year or 10 -year finish, and he said this area is one of two areas they will consider for a 10 -year warranty. He said the Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 32 sample products shown today are designed with LED, which he said will operate at lower wattage, there is a savings on both electrical and maintenance of fixtures. In addition, he said you get more of a white light source with LED and the color temperatures can be adjusted, depending on what the Town wants with regard to perception. Mr. Hall distributed his presentation and referred to Page 5, which shows a collage of different application shots, and he said they are all LED. Mr. Hall said each LED fixture is designed to give the same distribution and which gives better uniformity. In addition, he said the material specifications are included in the presentation packet. Mr. Hall referred to the two sample lantern fixtures saying they are both available in different sizes, paint applications and wattage. He described one of the lanterns as the Presidential, which is an eight - sided fixture with a crown on the top, and the other is a six -sided lantern called the LaHoya. Mr. Hall said the Viper light is designed to replace the Cobra Head. He said Beacon also has products that are approved by the FWC for sea turtle nesting areas. Commissioner Ganger asked if the government gives energy credit to municipalities who convert to a more efficient lighting source. Mr. Brannon said the FDOT pays the Town a flat amount per light along AlA each year. Mr. Thrasher said the Civic Association has given the Town some examples of what they like, and he said Staff has looked at a number of options and is recommending either of the two samples displayed today. He said these samples have been reviewed by Marty Minor in regard to the esthetics and character of the Town, the Civic Association has given their input and Staff has also provided the cost of the lights, poles and installation. Mr. Thrasher said the sample without the crown is a unique alternative and it is a little different from the other municipalities. Mayor Orthwein said it is very traditional and a little less expensive than the one with the crown. Mr. Hough said that is the LaHoya, and he said the sample is the smaller version, which is generally used on buildings or at an entrance and on a shorter pole. He added that there may be some wattage restrictions with the smaller version. Mr. Hall said the LaHoya also comes in a larger size, which is generally used on the taller 14 -foot pole. In addition, he said they generally use indirect LED lighting in residential area which works better on lower- mounting poles. Vice -Mayor Stanley asked if there was a way to beta test this lantern first, and he also asked if the wattage can be adjusted up and down. Mr. Hall said fixture has different settings with dimming drivers and the wattage can be adjusted. Mayor Orthwein asked if that is an added expense and Mr. Hall said it is not. Commissioner Ganger asked what the biggest complaint is in street lighting. Mr. Brannon said glare is the biggest concern and he said these will not glare. Commissioner Ganger asked about the guaranty on a 10 -year light. Mr. Hall said the guaranty on the LED and drivers is 5 years and 10 years on the finish. He said another concern is power surge and these are protected against things Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 33 like lightning strikes with surge protectors. how many Cobra Head lights are on AlA. It was about 35 lights along AlA. Vice -Mayor Stanley hook up a sample of the decorative lights to gi look like and leave it for a couple of days or could to that. Vice -Mayor Stanley asked determined that there are asked if Beacon could ;t an idea of what it will a week. Beacon said they Mr. Thrasher asked if the Commission is giving direction to hook up a sample and has Beacon agreed to do that. Mayor Orthwein confirmed that. Commissioner Ganger referred to Mr. Thrasher's memorandum regarding financing options for street lighting and signage and commented that Staff's recommendation is very creative. Mr. Thrasher said Staff's recommendation is to borrow money from the Assessment Fund by legal document at an interest rate of .75 %, and he said the General Fund would pay the Assessment Fund back over a period of 2.5 years. He said the project construction will most likely start around July or August, it has an 18 -month timeline, and he said by project completion we will be able to increase the millage rate and pay the Assessment Fund back. Mr. Thrasher said the Assessment Fund is basically "parked" right now and this will increase the income for that money. He explained saying the lower interest rate of .75 %, as compared to the bank rate of 1.85 %, saves the General Fund money, and he said by saving money for the General Fund it generates more available funds for the Undergrounding Special Revenue Fund. Mr. Thrasher said he checked with the Town's accountants and they have no problem with it, he checked with Danny Brannon and he said Jupiter Island did the same, and he said he checked with the Bond Attorney who said nothing prohibits the Town from doing this as long as it is up front and each party is benefiting. Mayor Orthwein asked if there was a consensus to leave the FP &L Cobra Heads on AlA for now with new poles. The Commissioners confirmed that. It was the consensus of the Commissioners to go with LED and the larger version of the simpler LaHoya lantern with 12' or 14' poles. Clerk Taylor wanted confirmation that the street light posts and sign posts will be the same color, which is black. Mayor Orthwein confirmed that. Mr. Thrasher asked the Commissioners if they were comfortable with the recommended financing. Mayor Orthwein confirmed that. B. Town Manager 1. FDOT -Clear Zone Update Mr. Thrasher had no update at this time. 2. Financing Options- Street Lighting & Signage This item was discussed during the Undergrounding Update 3. Analysis /Recommendation Re: Sign Vendor Mr. Thrasher said referred to him memorandum of March 15, 2013 wherein he recommends going with Baron Signs as a sole source vendor for manufacturing the Town's custom street signs. Justification is in the memo as to why they can be considered a sole source provider. Commissioner Ganger asked if Baron Signs has been qualified in a bidding process in Palm Beach County that would determine Baron Signs to be a sole source vendor. Mr. Thrasher said they did a very large custom package in North Palm Beach. Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 34 Mr. Boardman said the Civic Association sat with Chief Ward to identify signs that are not required by law in order to make a conscious decision as to whether or not they should be replaced. Chief Ward said, in terms of safety there are signs, other than stop signs, that are required by law. He explained saying "golf carts sharing streets" signs are required because Gulf Stream has an ordinance that allows them on public streets. School Zone signs are required and he said we currently have less than required. There are "No Outlet" signs on streets such as Polo that are not required, but have been requested. There are "No Parking" signs in areas to protect our utilities. Commissioner Dering suggested that Mr. Boardman and Chief Ward meet to discuss this and determine which signs are not necessary. Mr. Boardman said Chief Ward has a map of where all signs are located and it would be easier if they could circle the signs that are not necessary. Mr. Thrasher said he is asking for a recommendation from the Commission. Commissioner Dering moved and Vice -Mayor Stanley seconded to approved the purchase of street signage, posts and installation services from Baron Sign Manufacturing for an amount not to exceed $80K, and that the funds be provided from "unappropriated" and that the public bid option be waived. There was no discussion. All voted AYE. C. Architectural Review & Planning Board 1. Meeting Dates a. March 28, 2013 @ 8:30 A.M. b. April 25, 2013 @ 8:30 A.M. c. May 23, 2013 @ 8:30 A.M. d. June 27, 2013 @ 8:30 A.M. e. July 25, 2013 @ 8:30 A.M. f. August 2013 -No Meeting The upcoming meetings of the Architectural Review and Planning Board were noted by Mayor Orthwein. There was no discussion. D. Finance Director 1. Financial Report for February 2013 The Financial Report for February, 2013 was included in the Commission Packets for their review and information. E. Police Chief 1. Activity for February 2013 Chief Ward requested that the Activity Report for February, 2013 be accepted as submitted. There was no discussion. The Report was accepted. IX. Corresuondence A. Resolutions. 1. Supporting a ban on texting while driving. a. #11, 2013; City of Palm Beach Gardens b. #13 -08; Town of Lake Clarke Shores Clerk Taylor said that the City of Palm Beach Gardens and the Town of Lake Clarke Shores have adopted Resolutions in support of a ban on texting while driving. She said if the Town of Gulf Stream would be interested in adopting a Resolution in support of banning texting while driving, she would prepare a Resolution to present for adoption at the Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 35 April 12, 2013 Commission Meeting. Commissioner Ganger said he was in favor of a ban on texting while driving and it was the consensus of the Commission to have a Resolution prepared for adoption. B. Resignation from the ARPB -Ann Kasten Aker Mayor Orthwein noted that Ann Kasten Aker has submitted her resignation as Alternate Member of the Architectural Review and Planning Board (ARBP). She asked if there were any recommendations from the Commissioners. Commissioner Dering stated that he spoke to John Kirwan about the possibility of serving on the ARPB and he was interested. Clerk Taylor said that anyone interested in serving on the ARPB is required to submit their Letter of Interest to the Town. She said she would add this as an item for discussion on the April Commission Agenda. X. Items for Commission Action. A. Proposed Donation of a Tree in Memoriam of Mayor Koch From The Pugliese Family Commissioner Dering asked where the tree would be located. Clerk Taylor said it would be in the west corner of the Town Hall lot. Commissioner Ganger said this type of gift is not uncommon and it is a very nice gesture. He asked Clerk Taylor if there is an existing Town policy for accepting gifts. Clerk Taylor said there is no history of the Town receiving gifts. Commissioner Dering felt that the Town would be better off not accepting the gift prior to adopting a policy. Commissioner Ganger suggested that the Town express their appreciation to Mr. Pugliese for his thoughtfulness and let Mr. Pugliese know that the Town will first need to adopt a gift policy. Mayor Orthwein suggested this matter as an Item for Discussion on the April Commission Agenda. B. Proposed Gulf Stream Commission Policy regarding ethics training Re: Palm Beach County Code of Ethics 2- 446(a) Vice -Mayor Stanley moved and Commissioner Ganger seconded to adopt the Town's policy and procedures for providing guidelines to all Town officials and personnel regarding required ethics training as presented. There was no discussion. All voted AYE C. Overlapping Employment to Fill Vacant Police Position Chief Ward explained that at the end of June, 2013, the Police Department's part -time Officer, David Ginsberg, will retire. He said Officer Lawrence Ladd is retiring at the same time and has requested to fill the part -time vacancy. Officer Ladd's transition to part -time creates a vacancy of a full time position and, due to the current limited manpower limitations, Chief Ward said he would like to fill that position as soon as possible to allow for proper training. Chief Ward said, although the early filling of the full time position may result in deficit spending under the current budget for labor allowance, he would like to request consideration for early employment. Chief Ward said the Police Department will have a full time position coming up as of June 31st, which is in the height of summer vacation. He said he would like to hire that person prior to the position becomes vacant for training purposes. Mr. Thrasher said positions will overlap from today through June 31st and there is a minimum of $20,000 that is not budgeted for this purpose. He said he recommends that the Regular Meeting and Public Hearing Town Commission - March 15, 2013 Page 36 Commission approve the sanction and the appropriation. Commissioner Dering asked how long it would take to train a new officer. Chief Ward said there is a lot of technology for a new officer to become familiar with, and he said an officer with 5 years of experience would be observed for a period of 6 - 8 weeks. In addition, Chief Ward said while Officer Ladd is transitioning from full time to part -time, the two positions would overlap for a period of 6 - 8 weeks, from mid May to the end of June. Mr. Thrasher said that period of time would only amount to $10,000, and he said it would not require Commission approval. D. Items by Mayor & Commissioners There were no items by the Mayor or Commissioners. XI. Public. There was no Public comment. XII. Adjournment. Vice -Mayor Stanley moved and Commissioner Ganger seconded to adjourn. There was no discussion. The Meeting was adjourned at 4:50 P.M. Gail C. Abbale Administrative Assistant MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, NOVEMBER 9, 2012 AT 9:00 A.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order 9:03 A.M. Mayor Orthwein called the Meeting to order at II. Pledge of Allegiance. The Pledge of Allegiance was led by Mayor Orthwein. III. Roll Call. Present and Participating Also Present and Participating Joan K. Orthwein Tom Stanley Muriel Anderson W. Garrett Dering Robert W. Ganger William Thrasher Rita Taylor John Randolph Lt. Edward Allen Mark Grant, Esq. of Greenspoon, Marter Tom Laudani of Seaside Builders Richard Jones of Jones Architects Dave Bodker of Dave Bodker Landscape & Architecture Joe Pike of EnviroDesign Martin O'Boyle, Res. Mayor Vice -Mayor Commissioner Commissioner Commissioner Town Manager Town Clerk Town Attorney Gulf Stream Pol. Dept. Rep. Applic. /Developer Tom Laudani Applic. /Developer Architect /Harbour View Landscape Architect/ Harbour View Engineer /Harbour View 23 N. Hidden Harbour Dr. Lisa Morgan, Res. 1140 N. Ocean Blvd. Nancy Touhey, Res. 1200 N. Ocean Blvd. Ben Schrier of Arch. /3333 N. Ocean Affinity Architects Joe Peterson of Landscape Architect/ Peterson Design Prof. 3333 N. Ocean Guy Flora of GC/3333 N. Ocean Mark Timothy Construction IV. Minutes of the Regular Commissioner Ganger moved and Minutes of the Regular Meeting discussion. All voted AYE. of October : ice -Mayor Stanley seconded to approve the of October 12, 2012. There was no V. Additions, withdrawals, deferrals, arrangement of agenda items. There were no changes. VI. Announcements. A. Regular Meetings and Public Hearings Regular Meeting and Public Hearing Town Commission - November 9, 2012 1. 2. 3. 4. 5. 6. Mayor Orthwej December 14, 2012 @ 9:00 A.M. January 11, 2013 @ 9:00 A.M. February 8, 2013 @ 9:00 A.M. March 8, 2013 @ 9:00 A.M. April 12, 2013 @ 9:00 A.M. May 10, 2012 @ 9:00 A.M. n noted the upcoming meetings. 1 Page 2 There were no conflicts. VII. PUBLIC HEARING. Clerk Taylor asked for declarations of Ex -Parte communication concerning the items on the Public Hearing Agenda. Commissioner Ganger stated that he spoke with Lisa Morgan concerning her objections to the N. Ocean Blvd. Overlay Permit request. Commissioner Anderson stated that she walked the strip of the proposed Overlay Request. Mayor Orthwein stated that she had a conversation with Lisa Morgan concerning her objections to the N. Ocean Blvd. Overlay Permit request. Clerk Taylor administered the Oath to Mark Grant, Esq., Tom Laudani, Richard Jones, Dave Bodker, Joe Pike, Martin O'Boyle, Lisa Morgan, Cuppy Kraft, Nancy Touhey, Ben Schrier, Joe Peterson and Guy Flora. A. Applications for Development Approval 1. An application submitted by Seaside Builders LLC, as agent for Harbor View Estates, LLC owners of property located at 1224 N. Ocean Blvd., Gulf Stream, Florida, legally described as Lot 5, Hidden Harbour Estates Plat II, Replat of Golf Course Addn. Lots 4, 5 & N 92' of Lt 6, Gulf Stream, Florida. a. NORTH OCEAN BOULEVARD OVERLAY PERMIT to allow removal of existing nuisance exotics and some native trees providing for a 13' clear zone from edge of roadway. For clarification, Mr. Randolph said the N. Ocean Blvd. Overlay Permit Application is listed as submitted by the Developer, but he said the Town is requesting the Overlay Permit as it relates to the Australian Pines plantings, the Developer is involved because the Town asked if he would sod and irrigate if approved, and the Developer has agreed to do SO. Commissioner Ganger asked Mr. Randolph if that statement was made at the October ARPB Meeting. Mr. Randolph said the statement was not made, but a presentation was made by Mr. Thrasher to that effect. The Developer's Attorney asked if the Commissioners would consider hearing the applications of the houses before hearing the Overlay Permit request. Commissioner Ganger asked Mr. Grant if he made the same request at the October ARPB Meeting. Mr. Grant said he is not taking a position on the Overlay Permit and he did not make the request, someone else requested the Agenda change. Mr. Randolph stated that Mr. Grant's request is appropriate. Mayor Orthwein agreed that the item will be addressed following the presentations of the houses. Attorney Mark Grant introduced himself and stated that he represents the Developer. He said the ARPB recommended approval, with conditions, of the two Level III Applications being heard, he asked that the Commissioners focus deliberations only on what is before them, and he Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 3 reserved the right to respond to any comments or questions concerning either application. Commissioner Ganger said a year ago everyone was concerned with what these six houses would look like and how it the subdivision would develop over time. Mr. Grant said these homes comply with all criteria and they will not have the cookie - cutter look. 2. An application submitted by Seaside Builders LLC as agent for Harbor View Estates LLC, owners of property located at 1220 North Ocean Boulevard, Gulf Stream, Florida, legally described as Lot 4, Hidden Harbour Estates Plat Two, a replat of Lots 4, 5 & 6, Golf Course Addition according to the plat thereof as recorded in Plat Book 15, Pages 173 & 174, Public Records of Palm Beach County, Florida. a. NORTH OCEAN BOULEVARD OVERLAY PERMIT to allow the removal of existing nuisance exotics and extensive planting of native species and the installation of an entrance wall and gates, a portion of which is within the 50' corridor. ITEM WILL BE HEARD FOLLOWING ITEM VII.3.B. b. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit the construction of a partial two -story Bermuda style single family dwelling, 3 car garage with bonus room above, 8,603 square feet, and a swimming pool. Richard Jones of Jones Architects introduced himself, he stated that he represents the Developer and he thanked the ARPB for their approval of the first three houses. He said all six houses in the subdivision will show diversity, they will be an asset to Gulf Stream and there will be nothing cookie - cutter about their design, detail or construction. Mr. Jones described the house on Lot 4 at the SE corner of the property as a partial two -story classic Gulf Stream Bermuda style with white - washed stucco, black shutters and railings, a white flat concrete tile roof with mitered corners and ample balconies surrounding the home on all four elevations. To break down mass Mr. Jones said they have arranged pieces of the structure around central courtyards providing outdoor spaces and they have created buffers with landscaping. He said the theme in the subdivision is carriage homes and all three homes have pool courtyards with ample outdoor living space, varied stepped roof lines and varied massing from one -story to two - story. Mr. Jones said to address the concerns of mass they added two balconies on the south elevation, similar to the balconies on front and rear elevations, and they added one balcony on the north elevation which faces an adjacent lot. He said the existing vegetation in the no -cut zone has been meticulously maintained by the Developer, and the proposed landscaping was designed by Dave Bodker who did the research, tagged the trees and visited the site making sure all species are accurately noted and preserved in the no -cut zone. Mr. Jones said the landscaping was designed to provide a buffer for existing neighbors as well as new residents, and he said this house will hardly be seen from the south elevation along Hidden Harbour Dr. Commissioner Ganger said the Developer assured everyone that he would maintain the character of the Regular Meeting and Public Hearing Town Commission - November 9, 2012 property as well as the neighborhood heavily- wooded property at the outset come back to that with six houses and Page 4 and community, and he said it was a and it is expected that it will heavy landscaping. Mr. Thrasher asked for the front setback on Lot 4 and Mr. Jones said it is very close to 100 feet from AlA and will be consistent with Lot 6. He said they want to recapture the estate -feel of the previous property with long driveways and the houses set back. Mr. Thrasher asked the distance from the home as compared to the front edge of AlA. Mr. Jones said 50 feet from the edge of pavement to the structure would have met Code, but the distance is 1151. He said they pulled the structure back to nearly 100 feet with a straight drive that enters a motor court directly on axis with the front door, through the house, out to the pool and terminates at the 2 -story carriage house /3 -car garage, with no garage entry visible from AlA. Dave Bodker, Landscape Architect, introduced himself. Mr. Bodker said there are 19 existing trees along the south property line of Lot 4 which will be supplemented with a number of Green Buttonwood trees with under - plantings of Green Buttonwood shrubs, Wild Coffee, Silver Buttonwood and a variety of native shrubs along the outside of the retaining wall. He said Fishtail Palms, Alexander Palms, Oak Trees and Podocarpus Hedge will be planted along the interior of the wall. Mr. Bodker said the Podocarpus Hedge will be 4' high at planting and will grow about 6 inches to a foot a year. He said there is a variety of existing trees along AlA which will be supplemented with a large variety of native under- plantings in the buffer between AlA and the proposed entrance wall and gate. Mr. Bodker said they will remove some of the Brazilian Pepper Trees and replace them with Green Buttonwood Trees in that area. Mayor Orthwein asked why they are not planting more Ficus. Mr. Bodker said the nurseries are not releasing it due to White Fly. Mayor Orthwein said she understands that it is the State that mandates the removal of the Brazilian Peppers and other non - native vegetation and wanted everyone to be aware of that. Mr. Bodker confirmed that the State mandates the removal. Lisa Morgan of 1140 N. Ocean Blvd. asked Mr. Bodker to be more specific concerning the State Statute for the removal of Brazilian Peppers. Mr. Bodker said the State mandates that Brazilian Peppers on any property that is to be developed must be removed when the property is developed. He said they will remove some Brazilian Pepper and under -plant with native shrubs from 24" to 48" high. The plantings will be more formal in front of the wall and will include Clusia Hedge and Silver Buttonwood, and on the inside of the gate and around the motor court they will plant Live Oak Trees, Podocarpus Hedge and Mulberry. Taller palms will be planted along the 2 -story portion of the house and smaller native trees along the 1 -story portion on the north elevation, around the courtyard and pool area there will be a mixture of lush vegetation, and they will plant taller palms to soften the impact of the garage on the west elevation. Mayor Orthwein mentioned that this home will have a private driveway from AlA. Mr. Randolph stated that the ARPB raised the question of how to assure the neighbors and residents that the landscape buffer will remain in Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 5 place. He suggested a deed restriction be put in place, which would run with the land, and anyone purchasing the properties would know of the restriction that the buffer will remain in place. Mr. Randolph said the ARPB suggested he meet with Mr. Grant to come to an agreement on this, which he did. He said Mr. Grant has stated that the developer has no objection to a deed restriction which will provide that the buffer will remain in place and, if not, the Town can intervene, replace the buffer and place a lien on the property if necessary. Further, Mr. Randolph said the developer has agreed that this would also apply to Lot 3, which was previously approved. Commissioner Ganger said the Minutes indicate that this is a voluntary decision on the part of the Developer. Mr. Randolph confirmed that. Mr. Thrasher asked for the width of the driveway entrance off of AlA and Mr. Jones said it is 12 feet, and he said the actual motor court is lower than AlA, which will enhance the screening from AlA. Mrs. Morgan asked Mr. Bodker if he guarantees the hedge will grow to completely screen the wall. Mr. Bodker said he cannot guarantee that, but he said Green Buttonwoods will be planted at 32" to 48" on the lower outside of the wall that will grow to 12' in six to eight years. He said there will be a hedge on the upper level with 12' Fishtail Palms, 26' to 28' Alexander Palms on the west elevation to screen the 2 -story garage, and Green Buttonwoods under - planted with Silver Buttonwoods, providing three layers of plant material. Mrs. Morgan asked how far back from the 10' buffer would the improvements start. Mr. Bodker said the wall is 50 feet back from AlA, there are existing trees and they will plant 20' Green buttonwoods, native under - plantings inside and outside of the 10' buffer with a more formal setting near the wall in front of the property. Mrs. Touhey of 1200 N. Ocean Blvd. said she is unhappy over the removal of the Banyan Tree, she said the wall is incomplete, none of the trees have been replaced yet and she asked when replanting will begin. She said the wall stops at her driveway, which is off of Hidden Harbour Dr., there are sticks, under - plantings and debris in that area, and she said the Developer promised that the buffer would be immediate. Mr. Laudani said a lot of the wall is hidden by vegetation, but it extends west down Hidden Harbour Dr. about 30' to 40' to Lot 3. He said tree removal was restricted within the 15' buffer to the north and south and 10' to the west and, therefore, all of those trees remained in place. Mr. Laudani said the Banyan Tree was removed, but it was outside of the buffer zone and they immediately planted larger vegetation when they installed the walls. He said there will be further enhancement to all screening during construction of the homes on Lots 3 and 4 along Hidden Harbour Dr., offered to have Mr. Bodker meet with Mrs. Touhey in private to provide more detail and answer her questions. Mayor Orthwein asked when planting will begin. Mr. Laudani said it is usually toward the end of construction due to grading and physical constraints associated with the foundation, stem wall and lot construction. He said it is practical to plant at that time to ensure the survival rate of the plantings. Mr. Laudani said these trees will be covered under a covenant providing that future owners will be responsible to maintain them. Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 6 Mr. O'Boyle of 23 Hidden Harbour Dr. introduced himself and said there is a private agreement with the Developer providing that the canopy will not be touched, but he said he and Mrs. Touhey know the canopy was touched, and in a letter to Tom Murphy the Mayor acknowledge that it was damaged. He said he understands the Town cannot interfere in private agreements, but he said they are obligated to protect residents and it should be fixed. Mayor Orthwein asked Mr. O'Boyle to restrict comments to the subject of the homes, and she said any other comments can be made during the public portion. Mr. O'Boyle asked if he could talk about drainage. Mr. Randolph said the engineer previously testified that they meet the requirements relating to onsite retention of water for all lots. He said it is a separate matter if Mr. O'Boyle is referring to drainage for the subdivision. Mr. O'Boyle said Mr. Pike also previously testified that the drainage was tied into the Hidden Harbour Estates drainage system for all six houses. Mayor Orthwein said the ARPB recommended approval of this application with conditions. Mr. Randolph said he and Mr. Grant are putting the deed restriction together and he asked the Commissioners if they are satisfied that the plans as presented provide sufficient buffer from Hidden Harbour. Further, he said construction is disruptive and he suggested that the Commission require construction screening be put in place. Mayor Orthwein asked Mr. Laudani about cleaning up the area Mrs. Touhey referred to and about erecting a construction buffer prior to construction. Mr. Laudani said they have done some cleanup and will do more, they will erect a temporary green screen inside the 15' buffer along Hidden Harbour property lines prior to construction, and he said he does not object to that being a condition of approval. He said once they break ground on the two lots the structures will be done in 10 months. Vice -Mayor Stanley asked if a condition should be added relating to the buffer going forward on each house. Mr. Randolph suggested a condition that the deed restriction will apply to Lot 3 and that there will be a sufficient buffer along Hidden Harbour Dr. Mr. Grant said there is a private agreement requiring the 15' buffer on the south to remain. He said they are willing to enter into that agreement with the Town and the Town can enforce the replacement of the 15' buffer, as well as any plant screenings on the lots, if damaged or removed. Mr. Randolph said now is the time for the Commission to require additional landscaping between Hidden Harbour Dr. and the homes it they feel it is necessary to create more buffer. Vice -Mayor Stanley asked about an exhibit to the deed restriction describing what the buffer consists of. Mr. Laudani said the landscape plan will be the exhibit. Vice -Mayor Stanley said that any additional landscaping required by the Commission today must then be added to the landscape plan. Mr. Grant asked the Commission to allow him and Mr. Randolph to work out the terms of the deed restriction for the buffer on lots along Hidden Harbour Dr. He said they are creating a Homeowners' Association that will be responsible for maintaining the private road and the 15' and 10' buffer areas, and the individual homeowners will be responsible for maintaining the landscaping beyond that. Mr. Randolph said as other Regul,ar Meeting and Public Hearing Town Commission - November 9, 2012 Page 7 homes and landscape plans come before the Commission, consideration can be given at that time as to whether or not deed restrictions will be necessary. He asked if the proposed buffer height will be in place at the time of planting. Mr. Grant confirmed that saying that the landscape plan calls for specific vegetation height at planting. Mr. Laudani suggested that Mr. Randolph require that it be in place when the final landscape inspection takes place just prior to Certificate of Occupancy. He said the additional planting next to the canopy are will take place during construction and prior to completion of the homes. Mrs. Morgan said the deed restriction should include the buffer zone along AlA. She said vegetation can be destroyed in a storm or by accident and residents would like to know that what replaces destroyed vegetation will provide sufficient buffer at planting. Mr. Randolph said the intent of the deed restriction is to include the landscape plan as an exhibit and will provide that the owner of the property shall maintain in place the visual buffer in perpetuity and if an act of God strikes down one of those trees that property owner will be required to replace the tree so that the visual buffer remains in place. Mr. Grant added that the property owner will have to replace it with what was originally required in the landscape plan, which will be included as the exhibit to the deed restriction. Cuppy Kraft of 10 Little Club Rd. asked if there will be restrictions as to how high property owners can allow their screening vegetation to grow. For example, she said the Podocarpus Hedge will only be 4' at planting and does not seem sufficient for screening. Mr. Randolph said the deed restriction will provide that if the Town Commission feels there is a break in the buffer and the property owner does not take care of it, the Town can address it and place a lien on the property. He said the Commissioners must make a determination today as to whether the plan meets their satisfaction for screening the property. Commissioner Anderson suggested including an "at least ". Commissioner Ganger said it is important for the Commission to consider screening height. Mr. Randolph said he did not think the Podocarpus was being planted to screen the house. Mr. Bodker explained that the vegetation will be tiered and he said the Podocarpus Hedge is the lower tier with some existing Areca Palms. The next tier of proposed foliage will be planted at 12' and there will be another tier of taller Alexander Palms behind that. He said the plant list is on the plans and include the installation heights. Mrs. Touhey recommended other native vegetation to be used. Mrs. Morgan said the surrounding neighborhood has more variety of vegetation. Mr. Bodker said everything he is using in the buffer is native. Mr. Grant said Mr. Bodker is a licensed landscape architect and has proposed native vegetation that will provide the best screening, and he asked the Commission to approve the plan as presented. Commissioner Ganger said he believes they have presented a good plan and suggested they move on to make a decision. Mr. O'Boyle commented that each Commissioner voting for approval should have reviewed the plan and be satisfied with every aspect and, if not satisfied, they should vote for disapproval. In addition, he said once Mr. Grant and Mr. Randolph have completed the Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 8 deed restriction, residents should be allowed to review and make comments at the next meeting. Mayor Orthwein asked for Commission comments. Vice -Mayor Stanley said in terms of the house he is satisfied with the plan as presented. Commissioner Anderson said she would prefer further definition of screening height and Mayor Orthwein agreed. Commissioner Ganger also agreed that the screening height should be better defined and suggested that it be maintained at 61. Mr. Randolph said the Commission can make a separate motion for the deed restriction and he explained what the deed restriction will provide. He said it can provide that the house will be screened in the manor as stated in the exhibit attached and it can say that the hedge will be maintained to at least 6 feet. Commissioner Dering moved and Commissioner Ganger seconded to approve Level III Architectural /Site Plan based on a finding that the proposed partial two -story single family Bermuda style dwelling, a 3 -car garage with a bonus room, a total of 8,603 SF, and a swimming pool meet the minimum intent of the Design Manual and applicable review standards with the following conditions: 1. The electric service lines shall be buried. 2. The roof shall be white (through and through) un- textured uncoated flat cement tile. 3. Any minor modifications in the landscape plan shall be submitted to the Town Manager for review and approval and any major modifications shall be brought back to the ARPB for review and approval, prior to commencement of landscaping. 4. Wall and /or fences will be measured from the lowest abutting grade with a maximum height of 6' including any lighting fixtures that may be attached. S. All chain link fencing will be screened from neighbor's view. 6. Construction fencing will be erected prior to any work activity. 7. Landscaping, approved as submitted, will provide sufficient screening from Hidden Harbour Dr., and a deed restriction, as drawn by Town Attorney John Randolph and Attorney for the Developer Mark Grant, will apply to ensure the continuation of the buffer. There was no discussion. All voted AYE. Mayor Orthwein called for a 5- minute break at 10:50 A.M. The Public Hearing commenced at 10:55 A.M. 3. An application submitted by Seaside Builders as agent for Harbor View Estates LLC, owners of property located at 1230 N. Ocean Blvd., Gulf Stream, Florida, legally described as Lot 6, Hidden Harbour Estates Plat Two, being a re -plat of Lots 4, 5 & 6, Golf Course Addition, Gulf Stream, Florida. a. NORTH OCEAN BLVD. OVERLAY PERMIT to allow removal of existing nuisance exotics providing for a 13' clear zone from the edge of roadway and extensive planting of native species and installation of a 6'high aluminum rail fence 12' west of the east property line that will be screened with landscape ,Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 9 material. ITEM WILL BE HEARD FOLLOWING ITEM VII.3.B. b. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit construction of an 8,857 square foot Colonial West Indies style partial two - story, single family dwelling, attached 2 car garage with 6' high walls and fences screened with landscape material around the property, and a swimming pool. Mr. Jones described the proposed house on Lot 6 at the NE corner of the subdivision as a partial 2 -story Colonial West Indies style dwelling, providing a variation in design, but with the similar theme of breaking mass by pulling portions of the structure into other structures all connected under roof and forming courtyards. He said this house will have varied roof lines with charcoal gray - colored slate -look flat tile with gable ends. The second level will have lap siding with a slight variation in color from the smooth stucco texture below, which is characteristic of the Colonial West Indies style. Mr. Jones said he received a letter from Marty Minor of Urban Design Kilday Studios addressing how they meet the intent of breaking down mass by alternating the texture of the exterior wall material and variation of color on the second level, and also by exploring an alternative to the half -moon feature window and flattening it a bit, as recommended by Amanda Jones of the ARPB. He said other distinguishing details that have been incorporated is solid wood overlay over the garage doors, the solid mahogany front doors, a series of wood brackets and a consistent, but slightly varied, window design. Mr. Jones said the proposed landscape design for this lot, though more dense, will be similar to the landscape design for Lot 4. Commissioner Ganger asked about the wood on the garage door. Mr. Jones said it is a metal door with a X" solid skin wood overlay with a Cypress or Cedar stain. Commissioner Anderson complimented the alternate half - moon window. Commissioner Ganger said this house has a very unique look and asked if there are any homes in Gulf Stream with a similar look. Mr. Jones said the Colonial West Indies style is very popular in South Florida and there are some in Palm Beach and Delray Beach. Vice -Mayor Stanley asked about the wall around the front of this property. Mr. Jones said there is a wall with very heavy landscape vegetation. He said this house is under contract and they have asked for more landscaping than typical for privacy purposes. Commissioner Dering asked if a deed restriction would be required for the north side. Mr. Randolph said his deed restriction concerns relate to the Hidden Harbour side, not the north. He said the conditions included in the motion require the property owner to go back to the ARPB with major modifications to the landscaping and to the Town Manager with minor modifications. Commissioner Dering asked if we will require future homeowners to maintain the 10, buffer on the north side. Mr. Randolph said only if it is a concern of the Town. Commissioner Dering asked if there are any landscaping restrictions between the west side of Lot 6 and the east side of Lot 1 where they face each other on the inside of the property. Mr. Bodker said there are no restrictions on the inside Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 10 of the property. Commissioner Ganger said this landscaping is very lush and sets the bar pretty high. Mr. Bodker displayed the west elevation of the house showing a fence around the property line with a hedge along the fence. He pointed out the interior spine road coming in off of AlA and turning north where Royal Poinciana and Live Oak trees will be planted around the property. Mr. Bodker said it is not a complete buffer there, but it is adequate for the neighborhood on the interior of the property. Mr. Thrasher asked Mr. Jones to identify the setback of this home from the property line and from paved edge of road. Mr. Jones said the carriage house is quite a bit in front of the main structure and the setback from AlA is 87 feet with an additional 15 feet to paved edge of road making it almost 100 feet. Nancy Wibblesman, a resident of Gulf Stream, asked if the Developer could erect a construction fence on the north side of the property to protect those neighbors. Mr. Laudani said he would be happy to erect construction fencing along the north side property line. Mrs. Morgan stated that Mr. Himmelrich, whose house faces south toward this property, wanted to attend this meeting and had a conflict. On his behalf, Mrs. Morgan said he would ask for the same courtesy of a deed restriction to maintain the buffer on his side. Mr. Laudani stated for the record that he is in the process of meeting with Mr. Himmelrich and Mr. Elmore to address the issue. Commissioner Dering moved and Commissioner Anderson seconded to approve Level III Architectural /Site Plan based on a finding that the proposed partial two -story single family 8,857 SF Colonial West Indies style dwelling, attached 2 -car garage, with 6' walls and fences, screened with landscape material around the property and a swimming pool meet the minimum intent of the Design Manual and applicable review standards with the following conditions: 1. Replace the two half -moon windows as shown on the north and south elevations with the proposed alternative design as presented. 2. The electric service lines shall be buried. 3. Any minor modifications in the landscape plan shall be submitted to the Town Manager for review and approval and any major modifications shall be brought back to the ARPB for review and approval, prior to commencement of landscaping. 4. Wall and /or fences will be measured from the lowest abutting grade with a maximum height of 6' including any lighting fixtures that may be attached. 5. All chain link fencing will be screened from neighbor's view. 6. Construction fencing will be erected along the north side property line prior to any work activity. 7. Landscaping, approved as submitted, will provide sufficient screening along the north side of the property, and a deed restriction, as drawn by Town Attorney John Randolph and Attorney for the Developer Mark Grant, will apply to ensure the maintenance of the 10' buffer on the north side. There was no discussion. All voted AYE. Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 11 For the Record, Mr. Randolph said there will be a deed restriction for Lot 3 for the landscape buffer to the south along Hidden Harbour Dr. He said this was a voluntary from the property owner. Mayor Orthwein called for a motion. Commissioner Dering moved and Commissioner Anderson seconded to impose a deed restriction for the landscape buffer to the south along Hidden Harbour Dr., and along the north property line and the east property line. There was no discussion. All voted AYE. Mrs. Touhey said the hours of construction have frequently been abused and she requested that the Town enforce the construction hours are from 8:00 A.M. to 5:00 P.M. The Commissioners agreed that the Town will enforce the hours of construction. A. Applications for Development Approval 1. An application submitted by Seaside Builders LLC, as agent for Harbor View Estates, LLC owners of property located at 1224 N. Ocean Blvd., Gulf Stream, Florida, legally described as Lot 5, Hidden Harbour Estates Plat II, Replat of Golf Course Addn. Lots 4, 5 & N 92' of Lt 6, Gulf Stream, Florida. a. NORTH OCEAN BOULEVARD OVERLAY PERMIT to allow removal of existing nuisance exotics and some native trees providing for a 13' clear zone from edge of roadway. Mr. Thrasher said the developer has addressed everything west of the clear zone with deed restrictions for Lots 4 and 6 and is not required to present this issue of the clear zone. As a representative of the Town, Mr. Thrasher said he asked the Developer if he would provide the sodding, irrigation and landscaping of the clear zone and he agreed to do so. He said he prepared a simple drawing of the area as it relates to this property for the Overlay Permit and copies are available. Mr. Thrasher said the North Ocean Blvd. Permit would cover an area that is 50' west of the property line, and also running to the other right - of -way line on the east side of AlA, but he said we are talking about approximately 651. He said Town Code prohibits a principal structure to be located in the 50' area from property line west 501, but he said a minor accessory structure can be placed within 30' of that. Mr. Thrasher said he is talking about an area that is abutting AlA as it relates to this property and travels west about 651. He said he identified the clear zone and modified the distance so that the width of clear zone is 11' rather than 131. In addition, Mr. Thrasher said he identified the trees proposed to be cleared to provide for planting of Australian Pines. Mr. Thrasher read a section of Special Act obtained by the Town of Gulf Stream in Chapter 96 -502, HB 1792, which states, "In order to preserve the historic character and integrity of AIA, and notwithstanding the provision of Statute 369.251 FS, the Town of Gulf Stream is hereby authorized to engage in the cultivation of Australian Pine for the purpose of maintaining the historic character of that portion of AlA between Pelican Lane and Sea Road." He said since this Act the Town has placed a condition of approval on every home to allow the planting of Australian Pines. Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 12 Mr. Thrasher said the proposed trees for removal are identified on his drawing, which he summarized, and he explained the mitigation by the Developer. He said the Florida Holly, or Brazilian Pepper, is an exotic invasive species, the Almonds are native and non - invasive. The Developer agreed to mitigate them in like manner /like size, and has the option of providing a minimum of a 4" caliper in the proper number of replanting of trees to mitigate the entire inches of the Almond Tree. Mr. Thrasher said after the removal of trees there will be space between the clear zone and the buffer zone varying in size from 4' on the north lot to 0' in the middle lot, and then 2' to 3' on the south lot. He said there will be an area with some native trees and underbrush, the buffer zone will not be touched, underbrush and 10 trees will remain on Lot 4, underbrush and 8 trees on Lot 5 and underbrush and 1 tree on Lot 6. Mr. Thrasher said the area to be cleared is 11' from the edge of road rather than 13', there will be remaining native vegetation a minimum of 10' from the property line, in some cases extending eastward, which will provide existing underbrush and trees. Mayor Orthtwein commented that this information was not given to the ARPB and that it is a new compromise. Mr. Thrasher said the proposal sent to the ARPB was a 13' clear zone and this proposal is modified to an 11' clear zone. Mayor Orthwein said the Town received several letters concerning this matter and she asked Clerk Taylor to enter the letters into the record at this time. Clerk Taylor said those who wrote letters asked that they be read into the record, and she said some are identical and others are similar. Clerk Taylor read the following letters into the record: 1. James Neeves, of 11 Hidden Harbour Dr., who is in favor of the North Ocean Blvd. Overlay Permit and believes it will resolve an existing safety issue when turning onto AlA from Hidden Harbour Dr.; 2. Tom Smith of 1122 N. Ocean Blvd., a neighbor of the former Spence Property, who expressed his opposition to the removal of foliage along AlA saying it will not be in keeping with surrounding properties and it will accentuate the look of a development. Further, Mr. Smith is concerned with the preservation of native foliage; 3. Letters from Randy Ely of 3311 Polo Dr. and Wendy Overton of 2525 Pelican Way, both opposed to the removal of native natural foliage inside the 13' clear zone from the edge of AlA. 4. Barbara Whitaker of 1120 N. Ocean Blvd. asked the Commission to deny the application for the Overlay Permit for the property being developed at 1220 N. Ocean Blvd., or to approve it without the 11' to 13' clear zone requested. She added that the neighbors and residents do not want the natural hammock destroyed. 5. Patricia Knobel of 1255 opposes the Overlay Permit due to concerns that the natural and native hammock, which has existed for many years, will be destroyed. Clerk Taylor said the letters from George Elmore of 1320 N. Ocean Blvd. and Jennifer Morris of 24 Hidden Harbour Dr. are both in opposition of the Overlay Permit and very similar to the letter from Patricia Knobel, expressing the same concerns for the preservation of the native Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 13 vegetation and natural hammock. All letters received by the Town concerning the North Ocean Blvd. Overlay Permit will be filed in the Official Records of the Town of Gulf Stream. Commissioner Ganger said a considerable number of Australian Pines exist on the east side of AlA and if more are planted on the west side it will eventually create more canopy, but he said it is difficult to visualize now. He expressed concern that we may weaken the program if we do not plant now. From a legal standpoint, Mr. Randolph said the Town must look at each case in the future. Mr. Thrasher said the Sea Grapes are very close to the clear zone and, realistically, they should be removed, but he said the mature canopy Sea Grapes will be protected. He said the trees proposed for removal will come out and the Australian Pines will be planted appropriately. In this program, Mr. Thrasher said almost 100 trees have been planted to date, they are growing and in some cases very successfully, and he said 40 to 60 trees are proposed for this project. He said there are no alternatives in the process other than what has been presented. Mr. Thrasher said it is difficult to visualize what will it will look like, but the bareness will be gone, and he said we should take the opportunity presented to us because it may be the last. Mayor Orthwein said this is a compromise to the proposal presented to the ARPB and everyone has a better understanding now. She said she prefers to stand by ARPB recommendations, but to be responsible the ARPB should be on board with this compromise. Commissioner Ganger said it would be difficult to vote on this today based on the drawing submitted by Mr. Thrasher, but he said we should not ignore this opportunity. Commissioner Dering asked if someone could provide a realistic rendering of the existing appearance, what it will look like at planting and then five years later. He said both the Commission and the ARPB should have an opportunity to see it. Mayor Orthwein suggested a joint workshop or joint special meeting with the ARPB. Vice -Mayor Stanley said there are some issues that are not mentioned in the letters of opposition, such as the area may look too organized rather than natural. Commissioner Ganger asked if the Commission and the ARPB can jointly attend a workshop. Mr. Randolph said they can, but he said it should be a joint special meeting in order to be able to make decisions. He asked if there was a landscape architect who would volunteer to do a rendering. Mr. Bodker said he can do the rendering, but he asked if he could first address some liability issues concerning visibility. He said visibility is a concern at that corner entering AlA, and AIA it is a DOT Road. DOT visibility is based on the designated MPH for AlA. Mr. Bodker said if he agrees to do the rendering he will adhere to all legal aspects of it and will protect DOT visibility lines, which are 450' to 460' based on 35 MPH. Mayor Orthwein stated that she wants the public to be informed of the Joint Special Meeting. Mr. Randolph said the next Commission Meeting is scheduled for Friday, December 14th at 9:00 A.M. and should be advertised as a Joint Commission and ARPB Special Meeting. Mr. Bodker said he can have a rendering prepared in time. Commissioners Dering and Anderson asked if the information can be ready for distribution one week prior to Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 14 the meeting. Clerk Taylor said the Meeting Notices will go out one week prior to the Meeting and the public will be welcome to view the renderings at Town Hall. Vice -Mayor Stanley moved and Commissioner Anderson seconded to defer the North Ocean Blvd. Overlay Permit request to a time certain of December 14, 2012 at 9:00 A.M. when the Town Commission and the ARPB will hold a Joint Commission and ARPB Special Meeting. There was no discussion. All voted AYE. 4. An application submitted by Benjamin Schreier, Affiniti Architects, as Agent for Doris J. Gillman, the owner of property located at 3333 N. Ocean Blvd., Gulf Stream, Florida, which is legally described as Part of Lot 5, Gulf Stream Ocean Tracts, Gulf Stream, Florida. a. NORTH OCEAN BOULEVARD OVERLAY PERMIT to remove existing landscape material and driveway, install new driveway and landscaping and construct5 foot perimeter wall with entry gate within the North Ocean Boulevard Corridor. b. LAND CLEARING PERMIT to relocate /clear existing landscaping material for relocation of driveway, preparation of building site and property beautification. C. DEMOLITION PERMIT to remove existing structures. d. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit construction of a 9,036 square foot Colonial West Indies style partial 2 -stor single family dwelling, 3 car attached garage and a swimming pool. Benjamin Schrier of Affinity Architects introduced himself and stated that he represents the property owner, Doris Gillman. Mr. Schrier described the proposed house as a 9,032 SF 2 -story Colonial West Indies style dwelling with an attached 3 -car garage, a swimming pool, wall and gate. He said it will have white clapboard siding and stucco, a concrete tile roof providing a cedar shake appearance with mitered corners, the window frame will be brown and the body of the house and the shutters will be white. Mayor Orthwein asked about the Coconut Palms in the front that are tagged. The Landscape Architect for the project, Joe Peterson, said the trees are tagged to be removed and Australian Pines will be planted. Commissioner Ganger said he understood that the Town received a grant to plant those trees and they could not be removed. Mr. Thrasher asked Mr. Peterson if any of them are damage or diseased and he said they are not. Clerk Taylor said they can get approval from the DOT when they apply for the DOT permit for the driveway. Vice -Mayor Stanley asked if the gate issue had been resolved. Mr. Schrier said the ARPB recommended approval of the alternate design, which is flat across the top, but he said the owners prefer the originally proposed gate with the elliptical design and he asked the Commission to consider that. Vice -Mayor Stanley explained that it is the elliptical design that appears ornate, which is discouraged, but he Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 15 said it does not have to be flat across the top. Commissioner Ganger commented on another gate issue where the property owner installed a gate with an ornate - looking family crest, it was not approved and he had to take it down and replace it at his expense. Mr. Thrasher said if there are no alternative designs from the original design and that which was recommended by the ARPB, the Commission should go with the ARPB recommendation. Commissioner Ganger said the applicant is welcome to go back to the ARPB with another alternative design for the gate if they wish to pursue the matter. Clerk Taylor said the neighbors on each side of the property were in to see the plans and there were no comments concerning the gate. She said Mrs. Schwartz had other concerns which were addressed by the ARPB. Vice -Mayor Stanley moved and Commissioner Ganger seconded to approval the North Ocean Boulevard Overlay Permit to allow the removal of existing landscape material and driveway, install new driveway and landscaping and construct a 5' perimeter wall with entry gate within the North Ocean Boulevard Corridor. There was no discussion. All voted AYE. Commissioner Dering moved and Vice -Mayor Stanley seconded to approve a Land Clearing Permit to relocate /clear existing landscaping material for relocation of driveway, preparation of building site and property beautification. There was no discussion. All voted AYE. Commissioner Dering moved and Commissioner Ganger seconded to approve a Demolition Permit to remove existing structures. There was no discussion. All voted AYE. Commissioner Anderson moved and Vice -Mayor Stanley seconded to approve Level III Architectural /Site Plan based on a finding that the proposed construction of a 9,036 SF Colonial West Indies style partial 2 -story single family dwelling, 3 -car attached garage and a swimming pool meet the minimum intent of the Design Manual and applicable review standards with the following conditions: 1. The electric service lines shall be buried. 2. Any minor modifications in the landscape plan shall be submitted to the Town Manager for review and approval and any major modifications shall be brought back to the ARPB for review and approval, prior to commencement of landscaping. 3. Wall and /or fence will be measured from the lowest abutting grade with a maximum height of 8' including any lighting fixtures that may be attached. 4. All chain link fencing will be screened from neighbor's view. 5. The landscape plan will protect existing Australian Pine Trees and provide a 13' clear zone where possible allowing for the planting by the Town of two Australian Pine Trees on the south of the existing driveway entrance and up to eight on the north side of the existing driveway. 6. Change the proposed gate design to the alternate gate design that is less ornate. The agent has shown several gates along SR AlA, several of which are fronting homes classified with Mediterranean style architecture. 7. The property owner shall give the neighbor to the south 30 days notice prior to commencement of construction. There was no discussion. All voted AYE. Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 16 Mr. Thrasher made note that beginning December 1st demolition is a restricted activity in Gulf Stream. VIII. Reports. A. Utility Undergrounding -Danny Brannon (Engineer) Mr. Brannon said about half of FPLS cost estimates have been received and they are waiting for their design information. Mayor Orthwein asked how long before we can go to bid. Mr. Brannon said once the designs are received and the plans are synchronized, the Town can issue RFPS. He said he would like to go out for bid in November, but they have been pushing to receive costs and designs. Mayor Orthwein asked about the cost of lighting along AlA. Mr. Brannon said it will cost about $1.2 million if FPL does the work, which is line with what was expected. He said the Town will issue an RFP for construction work, giving them more control over destruction of landscape and hardscape by holding contractors liable. The Town will have the option of using FPL or a secured contractor. Mr. Brannon said the Town will issue an RFP for a Continued Services Contract with a landscape company to clear the areas for placing transformers and switches. With regard to switches, Mr. Brannon said FPL called for the standard switches. He said Vista switches cost about $35,000 more than standard switches, they are resistant to flooding conditions and are smaller in size. It will cost about $140,000 to change to Vista Switches, but Mr. Brannon said he budgeted for Vista switches. Mr. Brannon talked about salvage value which is the value of materials after useful life that can be sold, such as copper wire. He mentioned an ordinance he and Mr. Thrasher discussed which provides that when underground facilities are available, residents shall convert their facilities to the underground and all future facilities shall be underground. In addition, he said if you leave any overhead poles or facilities within the undergrounding area FPL will take back the (Government Adjustment Factor) GAF waiver, which comes to about $1 million for this project. Mr. Brannon said FDOT has a for providing lighting on a per year, and he said if we all of the lights and there still receiving information standard is to have a light to at least replace what is not uniform and he may have provision that will reimburse a municipality State Road at the rate of $201.00 per light use FPL lights the agreement would pay for will be no cost to the Town. He said he is on FDOT requirements, but he said the every 150 feet on each side of the road and removed. Mr. Brannon said the lighting is to discuss redistribution with FDOT. Mrs. Wibblesman asked for the status of laying fiber optics in the trenches so they can update cable. Mr. Brannon said that Comcast has come out with new cable and their service has progressed. However, he said AT &T is trying to figure out what to do with U- Verse, it is still experimental and they will not commit to installation. Commissioner Ganger said AT &T said they will abandon all of their landlines and asked if the Town would be in a position to be obligated to go with Comcast. Mr. Brannon said most of their resources have moved to wireless. Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 17 Mr. Boardman said there is concern as to what the street lights will look like. He said he heard it could cost $3,000 per light if we vary away from the FPL standard lighting to upgrade and he asked if there are options. Mr. Brannon said the standard issue is the traditional light on the fiberglass pole or Cobra Head on a concrete pole, there is no cost for installation and the monthly fee is about $15. He said upgrading through FPL is very expensive, they charge about 40% plus cost to install and there is a monthly fee, which is why almost nobody takes their premium plan. Mr. Brannon said you can upgrade if you buy, install and maintain, which runs from $250,000 to $500,000 and this is the decision the Town has to make. Commissioner Ganger said the cost for lighting could not be included the assessment and he asked if the Town wants to spend $500,000 on fancy lights. He said the Commission will do what is right for the community, but if lighting is that important to the community our residents should attend the meetings. B. Town Manager - No Report C. Architectural Review & Planning Board 1. Meeting Dates a. November 15, 2012 at 8:30 A.M. b. December 27, 2012 @ 8:30 A.M. c. January 24, 2013 @ 8:30 A.M. d. February 28, 2013 @ 8:30 A.M. e. March 28, 2013 @ 8:30 A.M. f. April 25, 2013 @ 8:30 A.M. Mayor Orthwein noted the upcoming meeting dates of the ARPB. D. Finance Director 1. Financial Report for October 2012 2. Optional Format- Financial Report for October 2012 Mr. Thrasher requested that the Financial Report for October be approved as submitted. Commissioner Dering commented that note payable is not right, and he said the report does nothing more for him than the last report. Commissioner Ganger asked when the Town will start to collect property taxes that were paid by taxpayers on November 30th. Clerk Taylor said we have received about $2,900 so far and there is a list of dates when the Town can expect additional payments. She said the payment due at the end of November will be substantial. Commissioner Ganger asked if the Town is reimbursed for locates. Mr. Thrasher said the Town is not reimbursed. Commissioner Ganger moved and Vice -Mayor Stanley seconded to approve the Financial Report for October 2012. There was no discussion. All voted AYE. E. Police Chief 1. Activity for October 2012 Lieutenant Allen requested that the Activity Report for October 2012 be accepted as submitted. The Report was accepted by the Commission. IX. Items for Commission Action. A. Items by Mayor & Commissioners There were no items by the Mayor or the Commissioners. Regular Meeting and Public Hearing Town Commission - November 9, 2012 Page 18 X. Public. Cuppy Kraft of 10 Little Club Rd. said it is difficult to see the drawings and renderings displayed by architects during their presentations. She said it was discussed at an earlier ARPB meeting about architects making their presentations with some of the newer technology and she asked about the status of the Town updating their technology for that purpose. Mayor Orthwein said it is expensive and this year the Town had to replace their accounting software; however, she said they will discuss the matter in the future. Mrs. Kraft said the City of Delray Beach has a new plan for Atlantic Blvd. at Federal Hwy and she asked the Commission if they would consider making a recommendation supporting their plan. Mr. Thrasher said it is a Delray Commission decision. Commissioner Ganger said Gulf Stream residents could show their support as private citizens. Commissioner Dering agreed with Mr. Thrasher and Commission Ganger saying it would not be the Town Commission's place to do so, but he said residents could show their support as individuals. XI. Adjournment. Commissioner Dering moved and Commissioner Anderson seconded to adjourn the Meeting. There was no discussion. Mayor Orthwein adjourned the Meeting at 1:05 P.M. Gail C. Abbale Administrative Assistant 1 r , r MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, MAY 11, 2012 AT 9:00 A.M. IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order. Mayor Koch called the meeting to order at 9:00 A.M. II. Pledge of Allegiance. The Pledge of Allegiance was led by the Mayor. III. Roll Call. Present and William F. Koch Mayor Participating Joan K. Orthwein Vice -Mayor Muriel J. Anderson Commissioner Fred B. Devitt, III Commissioner W. Garrett Dering Commissioner Also Present and William H. Thrasher Town Manager Participating Rita L. Taylor Town Clerk Garrett J. Ward Police Chief John Randolph Town Attorney Lou Roeder, Esq. Rep. O'Hare Mark Marsh, Bridges Agent / Davis Marsh & Assoc. Danny Brannon, Brannon Underground Consult. & Gillespie Marty Minor, Urban Town Consultant Design Kilday Studios Tom Murphy, Esq. Rep. Concerned Residents of Hidden Harbour Estates Martin O'Boyle Hidden Harbour Est. Robert Ganger, Chairman ARPB Margo Stahl Gammon, Mbr. Gulf Stream Shores Condo Association Clerk Taylor asked to let the record show that William Thrasher, Town Manager, and John Randolph, Town Attorney, were present. IV. Minutes of the Regular Meeting of 4- 13 -12. Vice -Mayor Orthwein moved and Commissioner Anderson seconded to approve the Minutes of the April 13, 2012 Commission Meeting. There was no discussion. All voted AYE. V. Additions, withdrawals, deferrals, arrangement of agenda items. There were no changes. VI. Announcements. A. Regular Meetings and Public Hearings 1. June 8, 2012 @ 9 A.M. 2. July 13, 2012 @ 9 A.M. 3. August 10, 2012 @ 9 A.M. 4. September 14, 2012 @ 9 A.M. 5. October 12, 2012 @ 9 A.M. Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 2 Clerk Taylor noted an error in the Meeting Schedule and said the correct date of the June Commission Meeting is Friday, June 8, 2012. There were no conflicts with the Meeting Schedule. VII. PUBLIC HEARING of BOARD OF ADJUSTMENT (Continued from 4- 13 -12) A. Appeal Final Action of Planning & Bldg. Administrator 1. An application submitted by Christopher O'Hare, owner of property located at 2520 Avenue Au Soleil, legally described at Lot 36,Place Au Soleil Subdivision, Gulf Stream, Florida, for the following: a. Appeal of Administrative Decision to deny the installation of a metal roof until such time as a variance to permit such material has been applied for and approved for the dwelling at the location stated herein. Clerk Taylor asked for declarations of ex -parte communication and there were none. Clerk Taylor administered the Oath to Lou Roeder, Esq., Mark Marsh, Danny Brannon, Marty Minor and Martin O'Boyle. Mr. Randolph summarized saying the Board of Adjustment considered an appeal of the Administrative Official's decision at the April 13, 2012 Meeting as to whether or not a variance is required to place a metal roof on a single family structure. They made a motion requesting that the applicant to advise the Town as to whether or not he would allow the Town to select an engineer to verify his engineer's report, and further, if the two engineers disagreed, they would jointly appoint a third engineer to determine whether or not the structure could support a tile roof. Mr. Randolph said since then he received a letter from Mr. Reoder, the applicant's attorney, advising that his client will not allow the Town's engineer to verify under the terms of the motion, and he said it would be appropriate to hear directly from the applicant's attorney with regard to his client's response to the Town's request. He said this is a quasi- judicial hearing and, therefore, the Minutes of the April 13, 2012 Meeting which were just approved should be incorporated into the record of this proceeding. The Minutes of the April 13, 2012 Commission Meeting will be made a part of the record and filed in the Official Records of the Town of Gulf Stream. Mr. Roeder said the Board of Adjustment made their motion before making a decision on the variance appeal. He asked the following questions: (1) Who is responsible for the engineers' fees ?; (2) When will the Town inform his client of the appropriate metal roof if the Town's engineer verifies and his client has satisfied the requirements of Code Section 70- 187(2) ?; (3) Who will accept liability if the Town's engineer and a third engineer disagree with the owner's engineer, the Town forces his client to install a tile roof and the roof fails ?; and, (4) Is there any precedent that has been set where the Town can impose an extra condition beyond the requirements of the Code? Mr. Roeder summarized the chronology of events leading to this hearing, he said the goal post keeps shifting and he stated that his client does not want to allow the Town to have their engineer come in to verify his engineer's certification because he feels it is an unreasonable request. RE,gsla,r Meeting and Public Hearing Town Commission - May 11, 2012 Page 3 Mr. Randolph to Mr. Roeder: It is my understanding that your client, regardless of the answers to the questions you raised at the beginning, has made the determination that he will not allow the engineer's certification to be tested by the Town, and you have already advised us of that, is that correct? Mr. Roeder: That is correct, and it is because of the changing goal post and these unanswered questions. Mr. Randolph: So the answers to those questions are really irrelevant in regard to your client's decision because he has already made that decision. Mr. Roeder: We never had any answers to those questions, it was not evident at the last hearing, and if we had those answers to those questions it may have really helped to go a long way to be able to sit down with my client. Mr. Randolph: Did you ask those questions at the last hearing? Mr. Roeder: No, these are questions that have arisen. Basically, you and I had some discussions after the last hearing where we put forth the question about the liability issue, that's the biggest issue. Mr. Randolph: You are raising questions today that have not been raised in front of this Commission before, yet your client has already made the decision that he does not wish the Town to come in and test the accuracy of your engineer's report. Mr. Roeder: Without the answers to these questions, no he is not. Mr. Randolph: We have had since the last meeting to ask those questions and have them answered and yet your client, without the answers, has still made the decision not to allow the Town to test the accuracy of your report. Mr. Roeder: We are coming to a hearing today to answer why my client will not allow the Town to come in and verify his engineer's certification. We have asked many times at the last hearing, the issue was we appealed the decision that a variance is required. We think Section 70- 187(2) is quite clear, a variance is not required. If the Town wants to address the separate issue as to verifying our engineer's certification, that's a separate issue. We have appealed only the decision that a variance is required and that's what we are still waiting for and we have had other conditions put on us which we are not willing to accept. Mr. Randolph: I just want to speak to the accuracy of at least one of these statements about what you did at the last hearing. I believe the Town Commission was very clear at the last hearing that you are entitled to a variance for a metal roof subject to your meeting the conditions of the Code, and those conditions of the Code were to get an engineer's certification stating that the structure would not support a tile roof, Regular Meeting and Public Hearing Town Commission - May 11, 2012 J Page 4 which you did. However, they have indicated, based upon other information that was presented at the hearing that cast some doubt on the engineer's report that it would be reasonable to allow the Town to just test the accuracy. So that's the issue and that's why they decided that they could not make a determination as to whether you needed a variance until they learned what your client was willing to do with regard to that particular matter. That is what is before this Commission today. Now that your client has refused to allow the Town to test the accuracy of your engineer's report, the matter is still in front of the Commission as to whether or not you need a variance. Mr. Roeder: The Town is putting a requirement on us that is outside the Code and we have asked to keep this a separate issue. We want the Town to decide, is a variance required? The Town is casting doubt on us for reasons we do not know. If you have cause you have to give us that cause as to why you do not think our engineer's certification is not accurate. The Town's motion said we will defer this and not make a decision until you provide our engineer the opportunity to verify your certification. We feel this is adverse to the Code, it is not what the Code says, the Code is very clear, we provided you with certification, we should be able to apply to receive a metal roof. The Town has coupled the two together and that is why my client is refusing the Town to verify the certification. Mr. Randolph: I think now is the opportunity to ask Mr. Roeder any questions in regard to this. Mayor Koch: Does your client, if the roof can hold the type of roof it has now, prefer that over the metal roof or does he really want a metal roof? Mr. Roeder: We put that into the record the last time, my client is not set on a metal roof. It came from the contractor that he wants a metal roof and not concrete tile. My client would love to have a concrete tile roof, but the engineer's certification says it will not handle it. He would like either shingle or shake, but shingle and shake are specifically and without exception prohibited under the Code. At least metal is a light roof which allows for an exception which my client needs and that's why he came in asking for a metal roof. Vice -Mayor Orthwein said the house has held a concrete tile roof for 35 years and maybe it has deteriorated, but we cannot just accept your engineer's report and all we want is for our engineer to go in there and verify and you denied it now. Mr. Roeder: It is a monumental shift because the Code says you will provide A & B and now the Town is saying you provide A, B & you provide C. Mr. Randolph: I don't think you are accurate, I think the Code says you provide A, but that doesn't mean the Town has to accept A without question. Your engineer's report which should be made a part of the Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 5 record says "to the best of my knowledge this structure will not support a tile roof" and, on that basis, the Town has the right to check it. Mr. Thrasher to Mr. Roeder: Could you tell me if your client has spoken to any other structural engineer in regards to the integrity of the roof at 2520 Avenue Au Soleil. Mr. Roeder: At this time I do not know, I have no knowledge if he has or has not received an opinion from any other engineer. Mr. Thrasher: Do you have documentation to Mr. Lunn' Mr. Roeder: I do not have supporting information. I supporting information and report. or have knowledge of any supporting s December 14th engineering report? possession or have seen any of that just know that Mr. Lunn looked at some even inspected the site and came up with this Mr. Thrasher read into the record Mr. Lunn's Engineering Report dated December 14, 2011 and addressed to Christopher O'Hare, 2520 Avenue Au Soleil, Gulf Stream Florida 33483 concerning the O'Hare Residence at that address. He asked Mr. Roeder if what he read was Mr. Lunn's Engineering Report and Mr. Roeder confirmed that. Mr. Thrasher stated that he provided Mr. Roeder with a copy of the Delray Beach Revision Form submitted to the Town on November 15, 2011 by the roofing contractor approximately 30 days prior to Mr. Lunn's certification, and he said the Revision reads: "Customer wants to change to a metal roof" and does not refer to the roof structure. Mr. Lunn's Engineering Report will be filed in the Official Records of the Town of Gulf Stream. Mr. Randolph administered the Oath to Rita Taylor, Town Clerk. Mr. Thrasher to Clerk Taylor: Could you tell me what the conversation was with the roof contractor, I believe her name is Diana, in regards to her providing you this form as a revision to the already permitted concrete roof? Clerk Taylor: She said when she presented it that the owner had decided that he wanted to have a metal roof and the revision was for the previous application that had been submitted several months ago for the concrete tile roof. Mr. Thrasher: To your knowledge was that concrete tile roof permitted? Clerk Taylor: It was permitted by the Building Department in Delray Beach and she went on to say she was wondering why they had not been told to lay the tile because the underlay had been on for some time and that's when they received the revision form to go to metal. Mr. Thrasher to Mr. Roeder: Is it correct to say that your client became aware of the existing roof condition as a result of Mr. Lunn's technical report? Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 6 Mr. Roeder: No. It is quite evident you are asking questions prompted by your attorney. Mr. Thrasher: Excuse me, that is not an assumption that is correct. Mr. Roeder: You made assumptions too, you made an assumption that Diana is the contractor, Diana is not the contractor, she is your contact person. The contractor of record I think is Mr. Maroni for Roofco. She is a contact person so what she says I think is irrelevant. You bring referrals to timelines, December 14th, and I told Mr. O'Hare you better get something in writing. He knew before the 11th that there was a problem, became concerned, he contacted Mr. Lunn who gave him a verbal, and after it was rejected I said I think you better go back and get something in writing, which he did on December 15th. We approached the Town in March saying why can't we do this and we were told you cannot do it period because one part of the Code says it can't be done, and we found out last month that that part of the Code does not apply. Mr. Randolph to Mr. Roeder: Is your client here to allow us to test the accuracy of the statements you are making on his behalf? Mr. Roeder: No, he is not. Mr. Randolph: Is the engineer here that did this report? Mr. Roeder: No, he is not. Mr. Randolph: Did you file for the engineer at the last hearing to allow the counsel to question the engineer in regard to his report? Mr. Roeder: I don't think we were asked to bring the engineer at the last hearing and no, we did not file. Mr. Randolph: Despite the fact that the letter said "if I can answer any other questions" the Town has not had an opportunity to have these questions answered by the engineer. Mr. Roeder: The same thing would be to ask, when we first approached the Town on November 15th about putting on a metal roof and the Town told us that metal roofs were not allowed period, why we were not told about the exception. We were not told about a section in the Code that allows you to have this and my client discovered this on his own. Mayor Koch said the Town would like another engineer to verify whether or not the structure can support a tile roof, and he said they cannot move ahead with the applicant's request until they can do so. Commissioner Devitt said the applicant probably was not told about the exception for a metal roof because he applied for a concrete roof replacement, and he said, with regard to the intent of the manual, a major item was to prohibit metal roofs. Commissioner Devitt said a special provision was written for those with existing shingle or shake roofs that could not later support concrete tiles without having to convert the entire roof system, which would have caused undue hardship. Mr. Roeder said the provision does not state that it applies only to Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 7 those with shingle or shake roofs, he said all roof structures deteriorate over time and the provision should cover all categories. Commissioner Devitt agreed; however, he said the applicant has an existing concrete tile roof and he if the applicant is confident that the structure will no longer support it, he should allow the Town's engineer to verify. There were no comments by the Public. Mr. Randolph said he understands the applicant's position is that he has met the Code exception requiring only an engineer's certification and that there is nothing in the Code requiring a certification to be verified. On the record, Mr. Randolph stated, "Yes, the applicant is entitled to a metal roof without a variance as long as he meets the exception in the Code which requires him to provide the engineer's certification. He said this should set the record straight and it sets the question that may come before a subsequent court in the event the applicant decides to appeal. Based upon those facts, the question before the Board of Adjustment is, does the Board consider a variance to be required on the basis of the applicant's refusal to allow the engineer's certification to be tested ?" Mr. Roeder said the engineer's language "to the best of my knowledge" is standard, and he said if the Board's position is that they doubt the engineer's certification, he believes it should be very specific in the record as to what casts that doubt. He asked, on the record, "What is the real reason as to why the Town is placing the extra requirement, is it because they do not like metal roofs ?" Mr. Randolph said it is not that the Town does not like metal roofs, the Town provides an exception in its Code to allow metal roofs. He said there is a record before you from the last hearing which sets forth facts as to why the Board questions the engineer's report. It is based on previous conduct of your client, and based upon what has gone into the record today that, before getting an engineer's certification, the applicant previously stated that he wanted a metal roof. Mr. Roeder said his client never stated that he wanted a metal roof, that was something written on a piece of paper. Vice -Mayor Orthwein said she stands by the previous request to have another engineer verify the certification. Commissioner Devitt said the Town has questioned submittals in the past and has consulted with their engineer on many occasions to acquire reasonable backup. Commissioner Dering moved to deny the request for a metal roof on the basis that the Town has not been allowed to verify the engineer's certification, and he further moved that the applicant can apply for a variance if he so desires. Mr. Randolph clarified the motion saying that the question before the Board is whether or not they sustain the opinion of the Building Official that a variance is required. He said in the event the Board supports the Building Official's decision that a variance is required for a metal roof, the primary reason is that the applicant has not satisfied that portion of the Code which provides an exception to allow a metal roof because he has not allowed the Town to verify the engineer's report. Vice -Mayor Orthwein seconded the motion. There was no further discussion. All voted AYE. Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 8 VIII. Items Related to Previous Approvals. A. Change of roof tile at 554 Palm Way submitted by Mark Marsh, Agent for Mr. & Mrs. James Davis Mark Marsh said revisions to originally approved plans for this property were approved by the Commission with the exception of the roof tile. He said the applicant wanted a gray tile, the Commission did not object to the color, but they requested to see a sample of the actual tile. Mr. Marsh said he submitted a gray tile to the ARPB at their April Meeting, which is smaller in size and has a different finish than the originally proposed tile, and the ARPB recommended approval. He displayed a sample of the new roof tile to the Commission. Vice -Mayor Orthwein moved and Commissioner Anderson seconded to approve the roof tile. There was no discussion. All voted AYE. IX. Reports. A. Utility Undergrounding Update -Danny Brannon (engineer) Danny Brannon reported that FP &L finally assigned an engineer to the project two weeks ago and his firm has had contact with FP &L several times. He said they have a redline design from both Comcast and AT &T and FP &L will be submitting their redline design. Commissioner Devitt asked if drawings will be available showing placement of the entire infrastructure and Mr. Brannon confirmed that. He said AT &T and Comcast have gone through the route, FP &L will do the same, and if there are no underground issues they will put a detailed construction plan together. Robert Ganger said Jupiter Inlet Colony has less than 1% left to complete their project and are approximately $500,000 ahead in cost. He said Danny Brannon has stayed on top of Gulf Stream's project, any delay caused by FP &L has been solved and, unless something unexpected comes up, the project will be completed on time and probably at a lower cost. Robert Sywolski of Gulf Stream said FP &L was in Town recently to repair a fallen pole, leaving the grounds in despicable condition. Mayor Koch asked Mr. Sywolski to submit photos and he asked Mr. Thrasher to look into this. Mr. Brannon said his firm hires their own contractors who will be responsible for clean up, repair and replacement for any damage due to construction. B. Town Manager 1. Update on Conditions & Progress at 1220 N. Ocean Blvd. Mr. Thrasher said he and others have driven by the site since April 13th and observe a general condition of dust control, noise is not excessive, it is clear of trash and debris, and he said a superintendent has been assigned to the project. Staff has had various communications and meetings with Delray Inspections, Delray Landscaping & Planning, the Developer, Job Superintendent and Subs for site prep and drainage installation, and he said everyone is cooperating. The Gulf Stream Police Department regularly patrols this area and anything out of the ordinary will be reported to the Town Manager. Mr. Thrasher said Staff has received various certifications from Delray Landscape & Planning and the Developer's Landscape Architect stating that, to date, one tree on the eastern buffer has been removed, which should have stayed. He said he just received an email saying Delray's Landscape Planner and Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 9 Certified Arborist have verified Tree No. 167 on the eastern buffer is also damaged, there was visible trunk decay and it fell due to recent storms and termite damage. Mr. Thrasher said Staff has provided timely responses to several information requests, including copies of the approval process, permits, minutes of the subdivision approval process, etc. He said damage in the buffer area will be handled according to the conditions in the Land Clearing Section of the Subdivision Approval. Martin O'Boyle of Hidden Harbour Estates said that he and several of his neighbors are concerned with the removal of the Banyan Tree from Hidden Harbour Drive and he displayed a photo of Mrs. Touhy's driveway that recently appeared in the Coastal Star showing the scope of the damage to the canopy. He said the canopy damage is serious and professionals must come up with a design to close the hole. Mr. O'Boyle said he spoke to Tom Laudani this morning who is the Developer of the property, and he asked him to please work with the neighbors to rectify the situation. He said Mr. Laudani was angry and stated that he did nothing wrong, he did nothing to affect the canopy and he and his partners are ready to litigate. Mr. O'Boyle said loosing the canopy will devalue their property and he pointed out that, during the approval process, the developer agreed to protect and maintain the canopy over Hidden Harbour Drive and the neighbors relied on that statement. He said the neighbors do not want to take legal action, but he believes they are entitled to legal counsel, landscape architects and maybe a certified arborist to help them put the canopy back and he would like the Commissioners to look into this and help them. Mr. O'Boyle said he read the Interlocal Agreement between the Town and Delray Beach and it does not give Delray the right to approve removal of our trees. Tom Murphy, Esq. was present on behalf of the residents and neighbors of Hidden Harbour. He distributed a binder of information to the Commission. Mr. Murphy said when the proposal for the subdivision was presented last Spring, the ARPB was sensitive to the concerns of the residents with regard to the preservation of the canopy and they asked the Developer to meet with residents and neighbors. He said the Developer had a capable and powerful team of attorneys, an architect, a landscape architect and an engineer giving testimony on his behalf, and he said the Developer and his team did meet with residents and neighbors and developed an agreement. Mr. Murphy briefly summarized the information he distributed pointing out that, during original testimony of the Developer and his team, it was presented that a buffer zone and a meandering site wall would be designed for the preservation of the historic canopy. He said their representation that the canopy would not be altered was absolute and if the Commission relied on that, they have the right to force the Developer to rectify this situation. Commissioner Dering asked if there is proof that the tree was outside of the buffer. Robert Glynn of Delray Garden Center stated that the trunk was 50/50 outside the buffer and Commissioner Devitt said he drove by the site, the trunk was there and it was outside of the buffer, but its removal affected the canopy. Mr. Randolph said whether or not the tree was outside of the buffer, it was made clear that the canopy was not to be disturbed. He said the canopy preservation was part of the Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 10 Developer's Agreement between the Developer and residents, it was not part of the Subdivision Agreement between the Developer and the Town. However, he said the 15' buffer and preservation of the canopy was a concern and specifically addressed, and he said the Town has the right to red tag the project until the Developer complies. Commissioner Dering asked what the Town can legally do to assist the residents. Mr. Randolph said if the residents believe there is a violation, they ask the Developer to abide by their agreement and the Developer challenges, the Town will stand ready to testify. Commissioner Dering asked Mr. Randolph if he would look into what the Town can do to assist the resident and Mr. Randolph agreed to do so. C. Architectural Review & Planning Board 1. Meeting Dates a. May 24, 2012 m 8:30 A.M. b. June 28, 2012 Q 8:30 A.M. c. July 26, 2012 @ 8:30 A.M. d. No August Meeting. e. September 27, 2012 at 8:30 A.M. 2. Zoning /Development Code Amendment Recommendations Marty Minor said the ARPB has reviewed multiple provisions of the Zoning Code and have made their recommendations to the Commission. With regard to entry features, he said the Code previously allowed two interpretations which have been clarified to eliminate confusion. With regard to basements, Mr. Minor said they are not included in the FAR in current Code, but he said they are usable space. The ARPB recommends that if a basement can be accessed from the outside of the structure the square footage would count 100% of the FAR and, if not, it would count 75 %. Mr. Randolph said the Commission will not be able to act on this matter today. He asked if they needed more time to review the recommendations and, if so, he suggested scheduling a special meeting for the purpose of discussing and acting on Code Amendment recommendations. Vice -Mayor Orthwein asked about slurry- coated roof tiles and if the ARPB recommends a definite no. Mr. Minor confirmed that. Vice -Mayor Orthwein moved and Commissioner Dering seconded to schedule a special meeting for the purpose of reviewing and acting on Zoning Code Amendments. Clerk Taylor suggested they hold a special meeting as soon as possible and prior to the June 8th Commission Meeting. She said consideration of the Code Amendments ties in with the Comp Plan Amendments, the Ads are set and everything should be complete by the July Meeting. The consensus of the Commissioners was to hold a special meeting on Tuesday, May 22, 2012 at 9:00 a.m. There was no further discussion. All voted AYE. D. Finance Director 1. Cash & Budget Report for April 2012 Mr. Thrasher asked that the Cash & Budget Report for April, 2012 be approved as submitted. Vice -Mayor Orthwein moved and Commissioner Devitt seconded to approve the Cash & Budget Report for April, 2012. There was no discussion. All voted AYE. Commissioner Dering requested a budget report on the Undergrounding Project. Mr. Thrasher said he would provide that. E. Police Chief Regular Meeting and Public Hearing Town Commission - May 11, 2012 Page 11 1. Activity for April 2012 Chief Ward requested that the Activity Report for April, 2012 be accepted as submitted. The report was accepted. X. Items for Commission Action. A. Items by Mayor & Commissioners There were no items by the Mayor or the Commissioners. XI. Public. Margo Stahl of Gulf Stream Shores mentioned the issue of unleashed dogs on Gulf Stream's beaches and the dangers and damage they pose to our protected wildlife. She said the dogs are defecating everywhere and owners do not pick up, they disturb, chase and kill ducks, dig at turtle nests, and they are problematic to the birds. Mrs. Stahl said the Gulf Stream Police Department has been very helpful, but too many people are violating and it is difficult to keep up. She said there many issues degrading the dune area, including swimming pools draining into the ocean. Mrs. Stahl said there are laws and signage is insufficient and she asked the Town for their support in protecting their resources. Commissioner Dering agreed and said County ordinances prohibit dogs on beaches which the Town should enforce. Chief Ward said the Town's current ordinances allow dogs on the beach if they are leashed, but the County and Delray do not allow dogs on beaches. He said the Town can enhance their ordinance to prohibit dogs on the beach or adopt the County's ordinance and the Town will have the authority to enforce. XII. Adjournment. Vice -Mayor Orthwein moved and Commissioner Devitt seconded to adjourn. The meeting was adjourned at 10:55 A.M. Gail C. Abbale Administrative Assistant V MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING BEING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM ON THURSDAY, NOVEMBER 10, 2011, IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to order. Vice -Mayor Orthwein called the meeting to order at 9:00 A.M. II. Pledge of Allegiance. The Pledge of Allegiance was led by Vice - Mayor Orthwein. III. Roll Call. Present and Participating Absent w /Notice Also Present and Participating IV. Minutes. Joan K. Orthwein Muriel J. Anderson Fred B. Devitt, III W. Garrett Dering William F. Koch, Jr. William H. Thrasher Rita L. Taylor Garrett J. Ward John Randolph Beth -Ann Krimsky, Esq. Ruden, McClosky Gary Eliopoulos of GE Architects Dave Bodker of Landscape Architecture Planning, Inc. Joe Pike of Enviro Design Paul Engle of O'Brien, Suiter et al. Tom Laudani of Seaside Builders, LLC Marty Minor of Urban Design Kilday Studios Frank Tabolsky, Esq. Nancy Touhey Martin O'Boyle Scott Morgan Lisa Morgan James Gammon Robert W. Ganger Vice -Mayor Commissioner Commissioner Commissioner Mayor Town Manager Town Clerk Police Chief Town Attorney Rep /Hidden Harbour, Plat II Architect /Hidden Harbour, Plat II Landscape Arch. /Hidden Harbour, Plat II Proj. Engineer /Hidden Harbour, Plat II Land Surveyor /Hidden Harbour, Plat II Agent /Joel T. Strawn PR for Spence Estate Town Consultant Rep /Hidden Harbour Estates Residents & Neighbors 1200 N. Ocean Blvd. 23 Hidden Harbour Dr. 1135 N. Ocean Blvd. 1135 N. Ocean Blvd. 3851 N. Ocean Blvd. 1443 N. Ocean Blvd. A. Regular Meeting & Public Hearing of 10 -14 -11 Commissioner Anderson moved and Commissioner Dering seconded to approve the Minutes of the Regular Meeting and Public Hearing of October 14, 2011. There was no discussion. All voted AYE. Regular Meeting and Public Hearing Town Commission - November 10, 2011 B. Special Meeting of 10 -24 -11 Commissioner Anderson moved and Commissioner the Minutes of the Special Meeting of October discussion. All voted AYE. r Page 2 Dering seconded to approve 24. 2011. There was no V. Additions, withdrawals, deferrals, arrangement of agenda items. Mr. Thrasher stated that a new item VII.A.l.b.(2) titled Extension of Demolition Restriction will be added to the Agenda. VI. Announcements. A. Regular Meetings and Public Hearings 1. December 9, 2011 @ 9 A.M. 2. January 13, 2012 @ 9 A.M. 3. February 10, 2012 @ 9 A.M. 4. March 9, 2012 @ 9 A.M. S. April 13, 2012 @ 9 A.M. 6. May 11, 2012 @ 9 A.M. There were no conflicts. VII. PUBLIC HEARING. A. Applications for Development Approval 1. An application submitted by Tom Laudani of Seaside Builders, LLC as Agent for Joel T. Strawn, Successor Trustee of Regina W. Spence Revocable Trust and as Personal Representative of the Estate of Regina W. Spence that includes property located at 1220 N. Ocean Boulevard, Gulf Stream, Florida, legally described as Lots 4, 5, and 6 of Golf Course Addition and Tract A of Hidden Harbour Estates Subdivisions, Gulf Stream, Florida, for the following: a. SUBDIVISION REVIEW to permit the division of the above described property into six (6) single family lots to be known as Hidden Harbour Estates -Plat II Subdivision. b. DEMOLITION PERMIT to demolish existing structures on this property. (1) Subdivision Agreement c. NORTH OCEAN BOULEVARD OVERLAY PERMIT to permit alterations within this Overlay District to create three of the proposed six lots in Hidden Harbour Estates -Plat II Subdivision. d. LAND CLEARING PERMIT to allow excavation for installation of drainage and utilities \easements. e. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit the subdivision of the property at 1220 N. Ocean Blvd. into 6 single family lots to be known as Hidden Harbour Estates -Plat II. Vice -Mayor Orthwein stated that she will recuse herself from the hearing of this matter due to an active real estate license she holds with William F. Koch Realty. She turned the gavel over to Commissioner Devitt. Clerk Taylor asked if there were any ex -parte communications concerning this matter. Commissioner Dering stated that he drove by the subject property. Commissioner Anderson stated that she spoke with Mr. Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 3 and Mrs. Neeves who reside at 11 Hidden Harbour Drive. Clerk Taylor read the application submitted by Tom Laudani of Seaside Builders, LLC. Beth -Ann Krimsky, Esq., of Ruden, McClosky, stated that she and her partner, Mark Grant, Esq., represent the applicant and said they were here today for the plat approval and the approval of related permits only. She said she provided each Commissioner with a binder of material in order to expedite her presentation which consists of applicable law, such as F.S. Chapter 177, sections of Town Code and material previously provided to the Town. Ms. Krimsky said since the ARPB's recommendation of approval of the plat there were minor changes requested by the Town and neighbors and she included those details and letters to the Town Clerk at Tab 7. Ms. Krimsky displayed the plat showing lot sizes and roads and said the experts will summarize the plat during the discussion. She said the ARPB recommended approval of the subdivision when they met on September 27th because they found that the plat meets Town Code. Ms. Krimsky said that Florida Law under Broward County v. Narco and Broward County v. GBV is very clear and states that once the objective criteria have been met then approval is required for purposes of plat. She said they are here today to describe the graphical depiction of the land only, which potentially impacts the neighboring parties. The Town requested that the applicant meet with the neighbors to respond to their concerns, which they have done extensively and have accomplished a great deal. Ms. Krimsky stated that a subdivision agreement which was developed with the assistance of the Town Attorney is at Tab 30 of the binder and, at Tabs 22 & 26, there is an agreement with most of the neighboring parties. She said Frank Tabolsky, Esq., who represents many of the neighboring parties, will go over the items included in that agreement, such as tree preservations and installing the meandering wall. Gary Eliopoulos of GE Architecture, the Project Architect, stated that this has been an important project for the Town and he realized they needed to acknowledge the community and their concerns. He introduced the Project Team, all of whom are based in Delray Beach and includes the following: Tom Laudani of Seaside Builders, the Developer; Paul Engle of O'Brien, Suiter, O'Brien, the Surveyor; Joe Pike of Enviro Design, the Civil Engineer; and, Dave Bodker of Bodker Landscape Design & Planner, the Landscape Architect. Mr. Eliopoulos said that a plat of this size and nature may never occur again in the Town, which is why they took everyone's concerns into consideration. He said they have had countless meetings and telephone conversations with the Town's consultants, including Marty Minor of Urban Design Kilday Studios and Brian LaMott of Wattman Engineering. Mr. Eliopoulos said this project began in the Spring, they presented a plat to Town Staff and went over everything that needed to be done to meet Town Code before presenting the project to the Architectural Review and Planning Board on July 28, 2011. He said the plat presented in July and the plat presented today meets all Town Codes and zoning. Mr. Eliopoulos displayed the plat presented in July saying the original project consisted of six lots ranging from 36,000 SF to 60,000 SF, all Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 4 with private driveway entrances as follows: Two private entrances off of AlA, which is the east side of the site, two private entrances along Hidden Harbour Road and two private entrances along the west side of the site. He said the plat has single family zoning, which is compatible with all surrounding properties in the Ocean West District and added that the plat meets all criteria with respect to setbacks and lot size. He explained that the ARPB listened to their presentation in July, they listened to the public and then tabled the matter and asked the Project Team to meet with the neighbors and address their concerns. Mr. Eliopoulos said that Tom Laudani, the Developer, gave his contact information to anyone who wanted to meet about the project and he listened and did his best to respond to all concerns. There were several meetings with neighbors and staff resulting in several changes and Mr. Eliopoulos commended the ARPB, Town Staff and their consultants who worked with the Team to be sure all changes met with zoning codes. Mr. Eliopoulos referred to the current plat and highlighted the changes that were made since the July ARPB Meeting. He said one of the biggest concerns the neighbors had was traffic circulation and wanted to eliminate the private driveway entrances. He said they redesigned and created a hammerhead which is an internal road that comes off of AlA, heads west and then Ts north and south, servicing the properties from the internal portions, leaving Lot 4 with an entrance off of AlA and eliminating the majority of traffic to the other five lots. Mr. Eliopoulos said they reduced the size of the sites, now averaging from 30,000 SF to 46,000 SF, which is above the minimum and meets all of the lot size criteria. Mr. Eliopoulos said the Town Code calls for a 3 -foot landscape buffer around the perimeter of the property. He said they are proposing a 15- foot landscape buffer along the south side of the site, they will maintain the canopy as it is today and they are proposing a 10 -foot buffer along the north, east and west sides of the site. Another issue was the site drainage and how it would impact other surrounding properties. Mr. Eliopoulos said their drainage design satisfied the site, but they were made aware of other conditions along the north and south side of the property and their engineer redesigned the plan to double up the drainage and alleviate some of the existing conditions which abut the property. He said both their original plan and the redesigned plan meet South Florida Water Management District (SFWMD) criteria, which is a No Notice General Permit. He explained that SFWMD states if you have pervious and impervious you must be under two acres of impervious area, and both designs satisfy that, being under two acres. Mr. Eliopoulos said they will go before SFWMD with a Standard General Permit because they doubled up on the capacity of their drainage to alleviate other issues on the abutting properties. Hidden Harbour was concerned about the look of the proposed retaining wall around the site, which ranges from 4 feet to 11 feet in height. Residents did not want to see a fortress and they want to preserve the trees. Mr. Eliopoulos explained that the redesigned retaining wall will meander through the site, preserving the trees. Another issue was the Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 5 intrusion of headlights from traffic moving through the hammerhead. Mr. Eliopoulos said the retaining wall will be higher in those areas to eliminate that issue. There were concerns about the internal road and whether it meets the criteria for emergency vehicles. Mr. Eliopoulos said the internal road plan was submitted to the Delray Beach Fire Department, it met all of their criteria and was stamped as approved. He said the internal road plan also satisfies OSHA criteria and exceeds them meeting the 33' radius. At previous ARPB meetings, Chairman Ganger made reference to the historic structure of the property saying it was very important to maintain a record of the history of this site and the developer agreed to create documentation for the historical archives at no charge to the Town. Mr. Eliopoulos said the existing structure on the site was built in 1937 and the original architect was John Volk, a prominent Palm Beach Architect. He said they have already started documenting and have contacted the Delray Beach Historic Preservation, the Delray Beach Historical Society, the Palm Beach Preservation Foundation and Lori Volk, John Volk's daughter. Mr. Eliopoulos said Lori Volk is looking through her archives and records, they will meet with her in the coming week and submit any records attained from that meeting to the Town. Ms. Krimsky asked Mr. Eliopoulos the following questions: Have you met with Marty Minor, the Town's Consultant? Has Mr. Minor confirmed to you that the plat meets Town Code? Is the applicant prepared to meet all conditions set forth in writing by the Town on October 4th and since that time? Mr. Eliopoulos replied "Yes" to all of the above. The drainage plan was another concern of the neighboring parties and the Civil Engineer on the project, Joe Pike of EnviroDesign Associates introduced himself and said he would summarize the drainage requirements and enhancements which are set forth at Tab 13 of the binder. Mr. Pike explained that SFWMD drainage requirements, in their simplest form, state that after development the project can shed no more water on the surrounding areas than prior to the development. He said their plan meets their criteria with ease because, as part of the enhancements, they have throttled back the flow of water and, therefore, the rate of discharge from the site at any given storm event will be less than in its present condition. Mr. Pike said they modified the way the water leaves the site by directing the flow through pipes underneath the road to avoid flooding, which will show a tremendous improvement to the neighbors to the west. He said the road will be disrupted to lay piping underneath and, as an added benefit to Hidden Harbour residents, the Developer has offered to overlay the north /south roadway for the extent of the property frontage, enhancing the esthetics and the structural stability of the roadway. In addition to the enhancements to the west, Mr. Pike said they are putting in a separate piping system which will take care of the low spot and address the drainage issues of the north and south neighbors. Ms. Krimsky introduced the Project Surveyor, Paul Engle, and asked him the following questions: Are you a professional surveyor? Are you aware of the contents of Chapter 177 Florida Statutes? Mr. Engle Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 6 replied "Yes" to the above. Ms. Krimsky asked Mr. Engle to define a plat. Mr. Engle said it is a graphical representation of a property of land that is being subdivided and presented to an agency for approvals. Ms. Krimsky asked Mr. Engle the following questions: Does the plat being presented as part of the application being heard today satisfy all the requirements of Chapter 177 in your professional opinion? How about the Town's Code requirements? Mr. Engle replied "Yes" to the above. Ms. Krimsky called the Landscape Architect, Dave Bodker, to the podium and asked Mr. Bodker to explain the landscape plan for the project, specifically as it relates to the agreements by the Developer as opposed to plat requirements. Mr. Bodker introduced himself and stated that the Developer has agreed to retain 10 feet of landscape area on the north, east and west property lines, retaining 10 feet where 3 feet is required, he has agreed to retain 15 feet of landscape buffer along the south property line and he has agreed to maintain the canopy over Hidden Harbour Drive. He said a wall is required in order to save some of the existing trees along the perimeters and to allow for the interior grading. As previously mentioned by Mr. Eliopoulos, the wall was originally straight and it has been redesigned to meander around the property to preserve the specimen trees. Ms. Krimsky asked Mr. Bodker if a wall is required by platting or is it a Town requirement. Mr. Bodker said it was a request from neighboring parties. Ms. Krimsky asked if the applicant agreed to provide the meandering wall. Mr. Bodker said "yes." Ms. Krimsky asked Mr. Bodker if he has ever addressed tree preservation at the plat stage of a hearing. Mr. Bodker said "No." Ms. Krimsky asked to hear from Frank Tabolsky, Esq, Counsel for neighboring parties. Mr. Tabolsky stated that he is a Florida attorney and his primary office is in Philadelphia. He said he has worked extensively with the developer, Tom Laudani and with Beth -Ann Krimsky, Esq. and Mark Grant, Esq., Counsels for the developer. Mr. Tabolsky said there have been meetings, discussions, negotiations, revisions to documents, email and a flurry of correspondence. He also worked closely with his consultants, Peter DeLeo and Greg Fagan, who are engineers. Mr. Tabolsky said he represents five of the neighbors, three who live in Hidden Harbour Estates, and they include Martin O'Boyle, George Elmore, Mr. Krebbs, Mr. and Mrs. Neeves and Mr. Himmelrich. He stated that he will summarize what the developer has agreed to and Ms. Krimsky stated that the information is at Tab 26 of the binder. Mr. Tabolsky said a signed agreement is being held in escrow and will be recorded. He said the developer will not use the name of Hidden Harbour Estates in their marketing and promotions. Mr. Tabolsky explained that there will be one access onto AlA and a hammerhead, or internal road, will be installed. He said there will be no access to the lots from Tract R, and the only access along the Canal Road will be for pedestrians and golf carts from Lots 1, 2 and 3. Ms. Krimsky stated that Tract R will be dedicated to the Town of Gulf Stream. Mr. Tabolsky said Hidden Harbor Estates will be required to pay for maintenance, repair or replacement of the drainage infrastructure along the access road (Tract R) and the developer, through their Homeowners' Association, Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 7 will bear 50% of those costs. The developer and the Homeowners' Association are indemnifying the neighbors in the event of an improper design installation, repair or maintenance of the drainage system. He said the plans and specifications have changed and will continue to do so, but the drainage, septic and retaining walls that affect this development are subject to the approval of the neighbors and the developer has agreed to work with the neighbors allowing them to review and discuss the plans. Mr. Tabolsky said the developer is installing the retaining wall which will be higher in some areas, specifically in the area where headlights from moving traffic will intrude on the Morgan property. He said drainage will be installed under the canal road and the developer has agreed to minimize any disruption or interference with the neighbors in connection with that work and upon completion of that work they assure it will be uniform and esthetically appealing. Mr. Tabolsky said he wrote a letter to the Florida Department of Transportation (FDOT) on behalf of the neighbors informing them that the originally proposed access from the public thoroughfare is no longer the case and that the neighbors no longer object to the proposed hammerhead access. Ms. Krimsky stated that the letter to the FDOT is at Tab 15 of the binder. Ms. Krimsky said that many of the engineers have testified and asked the Commissioners to consider everything they heard today when making their decision. She said Staff Consultant Marty Minor testified before the ARPB that the plat did not require any variances and it comports with the Town's Code requirements subject to drainage being approved by SFWMD and the conditions that have been imposed. She said the plat will be subject to certain conditions which have been discussed with the Town Attorney and Mark Grant who have entered into and prepared a subdivision agreement which is set forth at Tab 30 of the binder. Ms. Krimsky requested rebuttle time following comments from the Staff and the Public. Acting Chairman Devitt asked if Staff had any comments. Mr. Thrasher said he did not. Acting Chairman Devitt requested that Staff Consultant Marty Minor of Urban Design Kilday Studios give his presentation. Mr. Minor introduced himself and said when this project was first was presented in the Spring, some of the initial concerns were the buffering around the roadways, the nature of the neighborhood and the potential impacts created by the subdivision. He said a larger landscape buffer was requested and the applicant has provided that. Mr. Minor said another concern was the grading of the site and how it will develop and affect the drainage on the site. He said Town asked the developer to work with the neighbors on the drainage plan, they worked through many revisions and the plan is now consistent with the Town's applicable requirements and Comprehensive Plan. Mr. Minor said he worked closely with Staff and consultants and a lot of time and information went into the conditions of plat approval to ensure that this property is developed in a way that lessens the impact to neighbors while providing protection to the Town. Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 8 Acting Chairman Devitt asked for Staff comment and there was none. He asked for public comment at this time. Ms. Nancy Touhey of 1200 N. Ocean Blvd. introduced herself and said she was appalled to hear that six lots are planned for this subdivision. She said it is a beautiful and cherished piece of property filled with wildlife and birds. Ms. Touhey said everyone has worked very hard to make it possible for the community to accept this. She said the woods have protected them and is very important to the community and thought the meandering wall will be too close to the wooded area. She asked what the wall will be made of, what it will look like and how it will meander. Ms. Touhey said they were in need of drainage improvements and was pleased about the drainage plan. She inquired about the guidelines for setbacks and the style of homes for that subdivision. Mr. Randolph stated that this hearing was only for plat approval and not for construction of homes on the site. He explained that the drawings depicting homes are only for the purpose of computing drainage. He said the developer would have to come back to the ARPB for construction of homes and, at that time, the Board would look at the mass, style and setback of the proposed homes. Scott Morgan of 1140 N. Ocean Blvd. introduced himself and stated that his property is south of the proposed subdivision. He said both counsels have gone to great lengths to indicate that this is a plat approval only, but Gulf Stream is unique in that they do not consider a site plan development along with a plat and it is up to the Commission to project what this plat will look like. Mr. Morgan said this is a subdivision within one of the five neighborhood districts with its own name and mini governing rules and regulations, a homeowners' association within an existing district and bears the signs of a South Florida subdivision. He pointed out that the plat shows six long rectangular - shaped lots, each of which will most likely have a long rectangular - shaped, two -story home on them. Mr. Morgan said Mr. Hutton, the original owner, had one single - family home on the property. To keep with the character of the Town and the nature of the Ocean West District, he had a deed restriction stating that the there could never be more than three homes on the property. He said it carried down from Hutton to Webb to James and then through the decades, but he is told there is a Florida Statute which purportedly eliminated that deed restriction. Mr. Morgan said it is important to know what that subdivision represents. He said he met with the developer to resolve some of the issues and he opposes his development. Mr. Morgan said the developer was straightforward and honest with him, but Seaside Builders is a business and their purpose is to turn a profit and three homes is not as profitable as six. He said this type of subdivision is acceptable in other municipalities like Ocean Ridge and Highland Beach, but there are no subdivisions in Gulf Stream and he suggests there should not be. Martin O'Boyle of 23 North Hidden Harbor Drive introduced himself and stated that he has lived at this address for 30 years. He said Mr. Tabolsky, who represents him and other neighbors, worked with the developers and their counsel and has reached an acceptable agreement as it applies to the neighbors. Mr. O'Boyle said the residents of Hidden Harbour have made such a win because taking down the canopy would .Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 9 destroy the property and, although the developer is not obligated to maintain the canopy, he has agreed to do so. He has agreed to prevent vehicular traffic access onto the road to Hidden Harbor and has agreed to many other things that goes far beyond what is required to preserve the property values of Hidden Harbour. Mr. O'Boyle said it should be a six -lot subdivision and it lays out well. He said it is a different world where people do not build small anymore. Robert Ganger of 1443 N. Ocean Blvd. introduced himself and said it would be very helpful to the neighboring parties if it was explicit in the development agreement that the Town and the developer will follow the design guidelines for this project. He said the development will look like a subdivision, but the Ocean West District is an estate area and the criteria must be met. Mr. Ganger said it will be a milestone and the community will lose a treasured home, but nobody will be permitted to create a project that does not belong in Ocean West. In response to Mr. Ganger's concerns, Mr. Randolph stated that anyone who builds in the Town would have to comply with the Town's regulations. He said in addition to the subdivision agreement there is a section called Zoning Construction Requirements which reads, "the Town acknowledges and agrees that under the current applicable zoning ordinance one single family residence and appurtenances as defined and permitted under the Town's Code of Ordinances may be constructed upon each lot within the plat subject to all applicable ordinances and regulations of the Town. Mr. Randolph said this language addresses those concerns. Ms. Krimsky said the experts and the neighbors have commented they have discussed all of the steps taken by the developer to work with the Town and the Town Attorney to meet and go beyond the requirements of the law. She said even Mr. Morgan's letter states that the application complies with a strict reading of the Town's Code. It also stated that the black letter Code allows a developer to insert six large 8,000 to 10,000 square foot homes into this tract. Ms. Krimsky said the applicant has gone far above the Town's Code to address any concerns of the property owners. She asked the Commission to follow the law that is applicable to the plat and other permits on the agenda and approve and follow the September 22nd recommendation from the ARPB. Ms. Touhey asked what road will be used once construction begins. Mr. Tom Laudani of Seaside Builders, the developer of the project, stated that access to the property for construction purposes will be through one access point on AlA. He said the only additional construction activity that will take place will be the installation of the drainage that will cross the easement property on what is referred to as the Canal Road. There will be no construction vehicles on Hidden Harbour Drive or the canal road. Lisa Morgan of 1140 N. Ocean Blvd. commented on the Australian Pine Trees and how they are part of the character of Gulf Stream. She said what makes Gulf Stream unique is the estate district she believes Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 10 developing a property in this manner with six homes will change the character of the Town and it should not be allowed to happen. Jim Gammon of 3851 N. Ocean Blvd. (Gulf Stream Shores) introduced himself and said he understands the drainage is going to be improved to decrease discharge into the Intracoastal and he said he assumes there will be more runoff into the ground. He said he also assumes that the six homes will have septic systems suggested that the developer look into whether the ground will be able to absorb the sewage when the water lever is higher during the rainy season. In closing, Ms. Krimsky said Mr. Pike has addressed the drainage plan which meets all of the requirements and enhances the existing conditions. She again asked the Commission to consider the requirements for the subdivision plat approval before them and know that when individual site plans come in they will have the opportunity to consider the specific construction at that time. Ms. Krimsky thanked the Commissioners for their consideration. Acting Chairman Devitt closed comments from the public and consultants. Commissioner Anderson moved and Commissioner Dering seconded to approve division of property at 1220 North Ocean Blvd. into six (6) single family lots based on a finding that the proposed subdivision meets the minimum intent of the applicable review standards with the following condition: 1. Prior to the recordation of the plat, the property owner shall obtain all necessary permits for development from the applicable regulating and permitting agencies. Septic tank permits will be applied for and obtained by the individual lot owners prior to the construction of the homes. There was no discussion. Roll Call: Commissioner Anderson, AYE; Commissioner Dering, AYE; Acting Chairman Devitt, AYE. The motion passed 3 - 0. Commissioner Anderson moved and Commissioner Dering seconded to approve a demolition permit based on the finding that the proposed demolition meets the minimum intent of the applicable review standards with the following conditions: 1. Prior to the demolition of the existing house and clearing of the site the applicant shall post a surety in an amount determined by a licensed engineer and confirmed by the Town engineer to be sufficient to ensure that required improvements shall be completed if the developer does not or cannot make the improvements in accordance with the approved plans. The improvements shall include drainage improvements, private roads, structural walls, water mains and appurtenances, site grading and stabilization of the site. The surety shall represent 110% of the estimated costs for the improvements. 2. Prior to the demolition of the existing house and clearing of the site, the property owner shall enter into a developer agreement/ subdivision agreement (copy attached) with the Town to address the provision of services to the site and development parameters. Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 11 There was no discussion. Roll Call: Commissioner Anderson, AYE; Commissioner Dering, AYE; Acting Chairman Devitt, AYE. The motion passed 3 - 0. Clerk Taylor stated that a motion will be required for the subdivision agreement. Commissioner Dering moved and Commissioner Anderson seconded to approve the subdivision agreement. There was no discussion. Roll Call: Commissioner Anderson, AYE; Commissioner Dering, AYE; Acting Chairman Devitt, AYE. The motion passed 3 - 0. Clerk Taylor called attention to a letter from the applicant requesting an extension of the demolition restriction until December 15, 2011. She said the demolition is prohibited from December lot until May lot. Clerk Taylor explained that due to the delay of approval for the project, the applicant requests that the December lot deadline be extended until December 15th. Commissioner Dering moved and Commissioner Anderson seconded'to approve the extension of the demolition restriction until December 15, 2011. There was no discussion. Roll Call: Commissioner Anderson, AYE; Commissioner Dering, AYE; Acting Chairman Devitt, AYE. The motion passed 3 - 0. Commissioner Anderson moved and Commissioner Dering seconded to approve the North Ocean Boulevard permit based on the finding that the proposed permit meets the minimum intent of the applicable review standards. There was no discussion. Roll Call: Commissioner Anderson, AYE; Commissioner Dering, AYE; Acting Chairman Devitt, AYE. The motion passed 3 - 0. Commissioner Anderson moved and Commissioner Dering seconded to approve the land clearing permit based on the finding that the proposed land clearing meets the minimum intent of the applicable review standards with the following condition: 1. Within ten (10) days of the clearing of the site, the property owner shall stabilize the soil and undertake all necessary soil erosion prevention actions. There was no discussion. Roll Call: Commissioner Anderson, AYE; Commissioner Dering, AYE; Acting Chairman Devitt, AYE. The motion passed 3 - 0. Commissioner Anderson moved to approve the Level III Architectural Site Plan of the proposed subdivision at 1220 North Ocean Blvd. into six (6) single family lots based on the finding that the proposed subdivision meets the minimum intent of the applicable review standards with the following conditions: 1. Prior to the demolition of the existing house and clearing of the site the applicant shall post a surety in an amount determined by a licensed engineer and confirmed by the Town engineer to be sufficient to ensure that required improvements shall be completed if the developer does not or cannot make the improvements in accordance with the approved plans. The improvements shall include drainage improvements, private roads, structural walls, water mains and appurtenances, site grading and Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 12 stabilization of the site. The surety shall represent 110% of the estimated costs for the improvements. 2. Prior to the issuance of the first building permit for vertical construction on the site, the grading of the entire site and completion of the required improvements shall be completed and accepted by the Town engineer. In addition, the applicant shall provide evidence that all required utilities have been released for operation prior to the issuance of the Certificate of Occupancy for each home. 3. Prior to the demolition of the existing house and clearing of the site, the property owner shall enter into the enclosed developer agreement /subdivision agreement with the Town to address the provision of services to the site and development parameters. 4. Within ten (10) days of the clearing of the site, the property owner shall stabilize the soil and undertake all necessary soil erosion prevention actions. 5. The existing vegetation along the existing roadways shall be maintained, if and where possible, as indicated on the submitted subdivision plans. If a portion of this buffer of existing vegetation has to be removed during the development process, the developer will create the required landscape area along the roadway with native shrubs planted 2 feet on center and native canopy trees 20 feet on center. In addition, where vegetation is removed the surrounding soils will need to be stabilized and erosion control devices installed to prevent the erosion of soils off -site. 6. Prior to the recordation of the plat, the property owner shall obtain all necessary permits for development from the applicable regulating and permitting agencies. Septic tank permits will be applied for and obtained by the individual lot owners prior to the construction of the homes. Mr. Randolph clarified the word "surety" saying that he usually hears the word "surety" in connection with bonds. He said the subdivision agreement which was approved indicated that they can post a bond or a clean irrevocable letter of credit and he wants to be sure for the record that it is understood in the approval of the motions made that talk about surety that the Town has given either the option of a bond or a clear irrevocable letter of credit. Commissioner Dering seconded the motion. There was no discussion. Roll Call: Commissioner Anderson, AYE; Commissioner Dering, AYE; Acting Chairman Devitt, AYE. The motion passed 3 - 0. Acting Chairman Devitt stated for the record that a letter from Patricia Randolph was received just prior to this meeting and it has been circulated among the Commissioners and read. Mr. Randolph said it was appropriate to mention Ms. Randolph's letter because it would be considered ex -parte communication. Acting Chairman Devitt turned the gavel back to Vice -Mayor Orthwein at 10:20 A.M. Vice -Mayor Orthwein requested a short break to clear the room. The meeting reconvened at 10:30 A.M. Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 13 VIII. Reports. A. Town Manager Mr. Thrasher stated that he will provide an update on the Undergrounding Project and Ned McDonald who represents the Place Au Soleil Homeowners, Association and residents will give an update on the improvements to their entrance. 1. Undergrounding Project Update Mr. Thrasher reported that the project is proceeding as planned, the consultants are engaged in the field work, identifying where easements are necessary, obtaining easements and placing equipment. He said he expects we will be able to advertise this project for public bid in the first quarter of 2012, but it depends upon FP &L and how fast they respond to the information we are requesting of them. The project is still on target and the Town was able to obtain easements for the project as it relates to the recent approval and development in Hidden Harbour. Mr. Thrasher said the project cost is $5 million and Town received approximately $3.2 million in prepayment money from residents. He said the prepayments came in very fast, an account was opened to deposit these funds and Staff did an excellent job carrying out this task. Vice -Mayor Orthwein asked if the money was in an interest - bearing account. Mr. Thrasher said it is not. Commissioner Devitt asked where such a deposit is made to secure the funds. Mr. Thrasher said the amount is beyond the FDIC limits, but through Florida Statutes the Public Depository System states that if one bank fails all others that are members of that depository system guarantee the value of the funds to the greatest extent that can be. 2. Place Au Soleil Entrance Improvement Update Ned McDonald, a member of the Place Au Soleil Homeowners, Association, introduced himself and stated that he lives at 2538 Avenue Au Soleil. For the benefit of Commissioner Dering, Mr. McDonald gave a brief history of this project saying that there was a special homeowners, meeting which resulted in a near unanimous vote in favor of making an assessment request of the community. He said they gave their presentation to the Commission and the ARPB in August where they received unanimous support to move forward. Mr. McDonald said that construction is going on and they just began excavation on the north side of the Guard House. He said the cement will be poured and pavers placed to complete the north side, they will begin on the south side next week, they will begin work on the Guard House on November 30th and the landscaping the following week. Mr. McDonald said that with this construction there has been one lane of traffic used to enter and exit Place Au Soleil and, therefore, they have had flagmen out there 24/7. He said somewhere between December 15th and December 22 "a, the project will be complete, which includes the landscape, pavers, roof cleaning and new facing on the Guard House and new paint above the facing. Mr. McDonald said that following the permit approvals from the City of Delray Beach, a new security system will be installed which will bring peace of mind to their community. He said the system includes four cameras, giving them the ability to capture license plates. Mr. McDonald thanked the Gulf Stream Police Department saying they have Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 14 provided great coverage during this process and have been passionate about what is going on there. B. Architectural Review & Planning Board 1. Meeting Dates a. November 17, 2011 @ 8:30 A.M. b. December 22, 2011 Q 8:30 A.M. c. January 26, 2012 @ 8:30 A.M. d. February 23, 2012 Q 8:30 A.M. e. March 22, 2012 Q 8:30 A.M. There were no conflicts with the meeting schedule. C. Finance Director 1. Financial Report for October 2011 Mr. Thrasher requested that the Financial Report for October 2011 be approved as submitted. Commissioner Dering moved and Commissioner Anderson seconded to approve the Financial Report for October 2011. Roll Call: Commissioner Devitt, AYE; Commissioner Anderson, AYE; Commissioner Dering, AYE; and, Vice -Mayor Orthwein, AYE. D. Police Chief 1. Activity for October 2011 Chief Ward explained that "Burglary Residence," which is about six (6) lines down on his report, was changed to "Criminal Mischief." He requested that the Activity Report for October 2011 be accepted as submitted. The Commission accepted the Activity Report for October 2011. E. Water Cost Comparison -FL Coalition for Preservation -R. Ganger Robert Ganger, President of the Florida Coalition for Preservation, prepared and distributed 7 -page Water Overview Report and the Report will be filed with the Official Records of the Town of Gulf Stream. Mr. Ganger said the data in this report was compiled for the Florida Coalition because they are looking at services provided to, and enjoyed by, all of the municipalities on the Barrier Island. The report includes the comparison of water consumption and the cost of water between the Town of Gulf Stream and other municipalities on the Barrier Island. He said the Coalition is looking for opportunities for municipalities to become more efficient and effective with their investments and, while the information was not compiled for the Town, it does answer some of their questions. Mr. Ganger talked about the amount of potable water the Town buys from the City of Delray Beach and how that water is used. He said 80 -90% of the Town's water is used for irrigation purposes and South Florida Water Management District (SFWMD) allocates 227 million gallons a year to the wells and pumps that service golf courses and schools for their irrigation. Mr. Ganger said golf courses have plenty of water, but they have been under restrictions. He said there are numerous private wells that are still in use, more in Ocean Ridge than in Gulf Stream, but Gulf Stream is unique because it is a green community. Mr. Ganger talked about reclaimed water for irrigation and said there is a County facility, it is jointly operated by Boynton Beach and Delray Beach, it has a capacity of 25 million gallons per day and there are no Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 15 current plans to pipe reclaimed water into the Gulf Stream - Manalapan corridor. He said Delray will eventually allocate 1 million gallons a day of reclaimed water to Delray Barrier Island customers and Boynton Beach is exploring a pipe to service St. Andrews, The Little Club and condominiums west of the Intracoastal. The introductory pricing makes it an attractive option and Mr. Ganger suggested that Gulf Stream bring back reclaimed water in the future for irrigation purposes. Mr. Ganger said that during this process he discovered how well the Town of Gulf Stream calculates their use of water. He added that the Town's billing policy is the most comprehensive on the Barrier Island. He said the typical monthly usage is about 50,000 gallons per account, which equates to about 18,500,000 gallons per year per account. Mr. Ganger said it has been publicized that Palm Beach Island uses more than 500,000 gallons per capita per year. Gulf Stream is the largest user of water on the Barrier Island due to irrigation, using in excess of 300,000 gallons per capita per year, and the second largest user on the Barrier Island is Ocean Ridge. Mr. Ganger explained that the Town buys their water from Delray Beach for about $2.50 per gallon and sells it for about $4.50 per gallon to cover operating, administrative and transfer costs, just breaking even. He said the costs for pipe repair and replacement are currently covered under the General Fund and there are no provisions for a reserve fund to cover those costs at this time. Because all costs are covered through their billing, Gulf Stream has the highest water rate on the Barrier Island. He said when Boynton Beach bills the municipalities they serve they add on a 10t tax for water usage only and they return 9% of that money to the municipality which goes into their general utilities account. Mr. Ganger said Gulf Stream has a handle on their real water costs, but many of the communities do not. Different distribution models are provided on Page 8 in the Report, starting with Manalapan who serves Hypoluxo. Mr. Ganger said some models produce their own water, extract it from the ground, export it to another community as a profit center and advertise the debt service on those expensive plants in the customer billing. He said the plants are expensive, but there is a benefit to producing your own water. Kristine de Haseth of the Florida Coalition commented that Delray Beach recently instituted a policy requiring anyone applying for a permit for new irrigation on sprinkler systems must use the conservation heads. In closing, Mr. Ganger said there will be many questions that will come from this data. Vice -Mayor Orthwein said the Commission must make a decision as to whether they will charge water to replace pipes or continue to take it from the Fund Balance. She said the Commission will need to give a lot of consideration to this matter because Gulf Stream pipes are very old. IX. Items for Commission Action. A. Resignation of Charles Frankel III from ARPB Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 16 Vice -Mayor Orthwein noted that Charles Frankel has submitted his Letter of Resignation from the ARPB due to the sale of his home and his relocation to the Town of Palm Beach. B. Vacancies on Architectural Review & Planning Board 1. Regular Member Term Ending March 2012 2. Alternate Member Term Ending March 2012 a. Letters of Interest (1) Paul A. Lyons, Jr. (2) Thomas M. Stanley Vice -Mayor Orthwein noted that there are two vacancies on the ARPB, one for a Regular Member with a term ending March 2012 and one for an Alternate Member with a term ending March 2012. She said letters of interest were received from Paul Lyons and Thomas Stanley and they are included in the Commission packets. Commissioner Anderson said she was impressed with the letter from Mr. Lyons because he spends most of his time in Gulf Stream. Mr. Lyons was present and introduced himself stating that he lives at 2549 Polo Drive and has a home in the Hamptons. He said he sits on many Boards and his intention is always to attend the meetings. He said Gulf Stream is his primary residence, he has family here and he is interested in seeing that traditions are preserved here. Vice -Mayor Orthwein said she does not know Tom Stanley personally. Commissioner Devitt said he knows Mr. Stanley personally and said he is an attorney in the area, he ran for City Commission in Delray Beach, he is married and lives directly south of the School. Commissioner Devitt said he would be a great addition to the ARPB. Commissioner Devitt moved and Commissioner Anderson seconded to appoint Paul A. Lyons, Jr. as the Regular Member of the ARPB. There was no discussion. All voted AYE. Commissioner Devitt moved and Commissioner Anderson seconded to appoint Thomas M. Stanley as the Alternate Member of the ARPB. There was no discussion. All voted AYE. C. Resolutions. 1. No. 11 -16; A RESOLUTION OF THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, FLORIDA PROVIDING FOR THE APPROPRIATIONS OF BUDGET EXPENDITURES IN THE GENERAL FUND FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 2011; PROVIDING AN EFFECTIVE DATE. Clerk Taylor read Resolution No. 11 -16 being presented for adoption this 10th day of November, 2011. She explained that there are adjustments in the Police Department: Salaries, $7,000; Benefits, $2,000; Vehicle Maintenance, $2,000; Fuel, $4,000. Clerk Taylor said these are increases which will be replenished by removing $15,000 from the Unreserved Fund Balance. Commissioner Devitt moved and Commissioner Anderson seconded to adopt Resolution No. 11 -16. There was no discussion. All voted AYE. 2. No. 11 -17; A RESOLUTION OF THE TOWN COMMISSION OF THE TOWN OF GULF STREAM, FLORIDA PROVIDING FOR THE APPROPRIATIONS OF BUDGET EXPENDITURES IN THE WATER FUND FOR THE FISCAL ,Regular Meeting and Public Hearing Town Commission - November 10, 2011 Page 17 YEAR ENDING SEPTEMBER 30, 2011; PROVIDING AN EFFECTIVE DATE. Clerk Taylor read Resolution No. 11 -17 being presented for adoption this 10th day of November, 2011. She explained the re- appropriations being made: Depreciation, an increase of $50,000 and $50,000 decrease unreserved retained earnings. Commissioner Devitt moved and Commissioner Anderson seconded to adopt Resolution No. 11 -7. There was no discussion. All voted AYE. D. Items by Mayor and Commissioners. Vice -Mayor Orthwein said that at some point the Commission needs to talk about water. Commissioner Devitt agreed and said it should be an agenda item each month. Vice -Mayor Orthwein asked if it could be included on the next meeting agenda. Commissioner Devitt said the primary purpose is to find a way to build a reserve fund. Commissioner Devitt suggested putting a long term plan in place for water usage. X. Public. Ned McDonald commented on the letter Mayor Koch sent to the former Mayor of Boynton Beach and said he believes his letter played a strong part in the improved outcome of the new WalMart. He commended Mayor Koch for his initiative. Commissioner Devitt requested to have the Water Overview Report included in the Commission packets until such time that a plan is in place. XI. Adjournment. Commissioner Anderson moved and Commissioner Dering seconded to adjourn the meeting. The meeting was adjourned at 11:20 A.M. Gail C. Abbale Administrative Assistant MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE ARCHITECTURAL REVIEW AND PLANNING BOARD OF THE TOWN OF GULF STREAM, FLORIDA ON THURSDAY, JULY 28, 2011 AT 8:30 A.M., IN THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order Ganger at 8:30 A.M. II. Roll Call. Present and Participating III Mr. of no Absent w /Notice Also Present and Participating Minutes of The meeting was called to order by Chairman Robert Ganger Scott Morgan Charles Frankel, III Malcolm Murphy Thomas Smith Amanda Jones William H. Thrasher Rita L. Taylor John Randolph Ned McDonald Gary Eliopoulos of GE Architects Mark Grant, Esq. Ruden, McClosky Joe Pike of Enviro Design Marty Minor of Urban Design Kilday Studios Martin O'Boyle Robert Krebbs Jim Neeves Lori Volk Tom Laudani of Seaside Builders, LLC Mark Marsh of Bridges, Marsh & Associates Jane S. Day, President Research Atlantica Inc. Jacqueline Albarran of SKA Architects Meeting and Smith moved and Vice - Chairman Morgan the Regular Meeting and Public Hearing discussion. All voted AYE. Chairman Vice - Chairman Board Member Board Member Board Member Alternate Member Town Manager Town Clerk Town Attorney Place Au Soleil HOA Architect /Hidden Harbour, Plat II & Agent /Miller Rep /Hidden Harbour, Plat II Engineer /Hidden Harbour, Plat II Town Consultant 23 Hidden Harbour Dr. 19 Hidden Harbour Dr. 11 Hidden Harbour Dr. Historian Agent /Joel T. Strawn PR for Spence Estate Consult /SKA Architects Historical Consultant/ Brown Application Agent /Brown Public Hearing of 6- 23 -11. seconded to approve the Minutes of June 23, 2011. There was Chairman Ganger asked for disclosure of any ex -parte communication concerning Item V. B. Proposed Alterations to Place Au Soleil Entrance. Chairman Ganger stated that, on behalf of the Gulf Stream Civic Association, he participated in discussions concerning this matter and participated in the vote of the PAS property owners for this project. Mr. Murphy stated that he attended the July 25, 2011 Place Au Soleil Association Meeting and asked a question concerning this matter. Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 2 IV. Additions, withdrawals, deferrals, arrangement of agenda items. There were no changes. V. Announcements. A. Meeting Dates 1. Regular Meeting & Public Hearing C-, a. No meeting in August 2011 b. September 22, 2011 @ 8:30 A.M. c. October 27, 2011 @ 8:30 A.M. d. November to be determined e. December 22, 2011 @ 8:30 A.M. f. January 26, 2012 @ 8:30 A.M. g. February 23, 2012 @ 8:30 A.M. Chairman Ganger asked Clerk Taylor about meeting date announcements. Clerk Taylor said she would like to establish a November meeting date at this meeting. She said the regular November meeting date falls on Thanksgiving Day and in past years the ARPB would hold their November meeting on the 3=d Thursday of that month. Clerk Taylor mentioned that the November Town Commission date is in conflict with a holiday and they have not yet confirmed a new November date. Chairman Ganger requested the November Architectural Review and Planning Board (ARPB) meeting be tentatively scheduled for Thursday, November 17, 2011 at 8:30 a.m. He said, in the event that date must be changed to accommodate the November Town Commission Meeting, Clerk Taylor could contact ARPB members via telephone. Clerk Taylor asked everyone who will be speaking during the remainder of the Meeting and during the Public Hearing to stand and raise their right hand and she administered the Oath to the following: Ned McDonald, Gary Eliopoulos, Attorney Mark Grant, Joe Pike, Martin O'Boyle, Robert Krebbs, Jim Neeves, Lori Volk, Tom Laudani, Mark Marsh, Dr. Jane Day and Jacqueline Albarran. B. Proposed Alterations to Place Au Soleil Entrance Chairman Ganger asked if this matter is a Staff item. Mr. Thrasher said this project requires Commission approval because the improvements are in the right -of -way and Staff recommended that the plans be brought to the ARPB for their endorsement or recommendations prior to going before the Commission for their approval. He said a resident of Place Au Soleil (PAS) is in attendance to give a brief presentation of the proposal. Mr. Ned McDonald, the Liaison for the PAS HOA for the WalMart Project, the F.I.N.D. Project and the PAS Front Entrance Project took the podium and stated that this project has been in the planning stages for the past year and a half. He said safety, security and aesthetics are the three broad reasons for these improvements. Mr. McDonald said that over the years the curbs have been broken as a result of large delivery trucks making the turn into the entrance of the community while attempting to avoid hitting the roof overhang of the guardhouse. The guardhouse roof has taken several hits and is in need of repair. He said the HOA engaged an architect and a landscape /front entrance designer over a year ago and they prepared the renderings which were Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 3 distributed to Staff and the ARPB. Mr. McDonald said landscaping is represented in the renderings; however, to minimize expenses they are not planning to change the landscaping at this time. He said the renderings reflect only the hardscape, the guardhouse and the lanes, and how the lanes will be reconfigured to avoid traffic hitting the guardhouse roof. The contractor has promised they will not destroy any of the existing landscape, except for that which is wrapped around the guardhouse. Mr. McDonald said they advertised the July 25th HOA Meeting and eligible residents voted 54 - 6 in favor of the project, which represents 90% in favor. He said because the work is in the right -of- way, it will require Commission approval and they will go before the Town Commission on August 16, 2011. Mr. McDonald said they would like the support of the ARPB or any recommendations they may have to improve the project plans. 1. Comments and Recommendation Chairman Ganger confirmed the damage to the guardhouse roof. Mr. Smith asked if there will be any changes to the guardhouse. Mr. McDonald said there are no changes to the guardhouse and the biggest expense will be the hardscape, they will change the landscape wrapping around the guardhouse and the facing of the guardhouse. He said they are accepting bids for a security system with cameras that will pick up license plates and people entering and exiting the subdivision. Vice - Chairman Morgan asked about opposition to the proposal. Chairman Ganger said the opposition was primarily based on economics because homeowners will be assessed $800 to pay for this project and there are a few who are in arrears with their mortgage payment and normal assessment. He said the PAS HOA expects that some will not pay this assessment and they have worked that into their budget. Chairman Ganger said there were some questions as to whether the security system would be adequate, but Chief Ward has worked with the HOA on this project from the beginning and they have looked at all of the security options. Mr. Thrasher said the HOA is not submitting an application to the ARPB, but they are asking for their support or their advice so they may prepare their presentation to the Commission and to assure them that this proposal has been reviewed by the ARPB. Mr. Smith moved and Mr. Frankel seconded to endorse the proposed alterations to Place Au Soleil entrance and to recommend approval of the project to the Town Commission. There was no discussion. All voted AYE. VI. PUBLIC HEARING. A. Applications for Development Approval 1. An application submitted by Tom Laudani of Seaside Builders, LLC as agent for Joel T. Strawn, Successor Trustee of Regina W. Spence Revocable Trust and as Personal Representative of the Estate of Regina W. Spence that includes property located at 1220 N. Ocean Boulevard, Gulf Stream, Florida, legally described as Lots 4, 5 & the northerly 92' of Lot 6 of Golf Course Addition and Tract A of Hidden Harbour Estates Subdivisions, Gulf Stream, Florida, for the following: Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 4 a. SUBDIVISION REVIEW to permit the division of the above described property into six (6) single family lots to be known as Hidden Harbour Estates -Plat II Subdivision. b. DEMOLITION PERMIT to demolish existing structures on this property. C. NORTH OCEAN BOULEVARD OVERLAY PERMIT to permit \ alterations within this Overlay District to create three of the proposed six lots in Hidden Harbour Estates -Plat II Subdivision. d. LAND CLEARING PERMIT to allow excavation for installation of drainage and utilities \easements. e. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit the subdivision of the property at 1220 N. Ocean Blvd. into 6 single family lots to be known as Hidden Harbour Estates -Plat II. Chairman Ganger asked for any disclosures of ex -parte communications concerning this matter. Vice - Chairman Morgan, an adjoining property owner, stated he had a discussion with another neighbor concerning a preference to re -plat the property into 3 lots rather than 6. Mr. Frankel stated he communicated with Staff. Chairman Ganger stated he drove into the driveway to view the property. Mr. Smith recused himself from discussion and voting, stating a conflict due to his firm being the accountant for the Spence Estate. Gary Eliopoulos of GE Architecture introduced himself as the architect for this project which he described as a re -plat of the Spence property into six (6) single family lots. Due to the location of the property and the surrounding roads, Mr. Eliopoulos asked the project team to attend this hearing to answer questions. Team members include: Tom Laudani of Seaside Builders, the proposed buyer of the property; Attorney Mark Grant of Ruden, McClosky, who will handle legal issues; Civil Engineer Joe Pike of Enviro Design, who is designing the drainage plan; Dave Watkin, Landscape Architect; Paul Ingle of O'Brien, Suiter, O'Brien. Chairman Ganger asked if the property has been purchased and if there has been a closing. Mr. Eliopoulos said there has not yet been a closing. Mr. Eliopoulos displayed an existing survey showing the property as it relates to AlA along the east side, the existing southern roadway, the private roadway on the west side, the private driveway leading to Hidden Harbour and the canal leading to the Intracoastal. He displayed a drawing showing the proposed 6 lots, saying that 3 lots will face AlA, 2 of them will be accessed from AlA and the 3=d southernmost lot will be accessed from the south side roadway. Going east to west from that point are the 3 remaining proposed lots, the lower lot being accessed from the south side roadway and the remaining 2 lots having access from the private road on the west side of the property which runs north and south. Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 5 Mr. Eliopoulos said the drainage history of track A is a concern because it handles drainage from Hidden Harbour. He said the property is heavily landscaped, Code requires a 3' landscape buffer and they are proposing a 10' landscape buffer around the property. The road along the southern portion of the property will be given to the Town and the landscaping along the private road, which is along the western portion of the property and currently maintained by Hidden Harbour, will be maintained by the owners of the proposed 6 lots. The road maintenance will be shared by Hidden Harbour and the owners of the 6 lots. Mr. Eliopoulos said they have been working with Marty Minor of Urban Design Kilday Studios, and Brian LaMott, an outside civil engineer with Wattman Group, and each have submitted comments concerning the project which will be addressed by the project team. Chairman Ganger asked about the easement to the ocean and how it lines up with the proposed lots that will face AlA. Mr. Eliopoulos said it exists to the north side of the property on the east side of AIA adjacent to the Knobel property. Chairman Ganger asked if the Town owns the road on the south side of the property through to the bird sanctuary. Mr. Thrasher said this is a gray area and, in the past, the Town has positioned themselves as owning the roadway, it is on the Town's road survey and it is reported to the State for road tax revenues. Chairman Ganger asked if the south road was now owned by Hidden Harbour. Mr. Thrasher said it is. Attorney Mark Grant of Ruden, McClosky introduced himself and said the 30' on the south side of the property is an easement to the Town and will remain so. It will be called Tract R on the proposed plat which will be dedicated to the Town of Gulf Stream and the underlying fee title would go to the Town on that road. Martin O'Boyle of 23 Hidden Harbour Dr. introduced himself and said he is familiar with the underlying documents, explaining that the southern road off of AlA leading to Hidden Harbour Estates splits the Johnson and Hutton properties and was given to the Town of Gulf Stream by way of an easement. He said, however, in the declaration, which is a recorded document of the Hidden Harbour Restrictive Covenants, the municipality gave the rights and obligations back to Hidden Harbour Estates. Mr. Frankel asked if there is an existing contract to purchase the property which may be subject to the approval of this project. Mr. Grant said there is an existing contract, it does not include a contingency based on approval of the project and closing is scheduled for mid - August. He said Mr. Joel Strawn, personal representative for the Spence Estate, has assigned Mr. Tom Laudani of Seaside Builders as the agent. Mr. Strawn has given his authorization to proceed with this approval process and that authorization has been submitted to the Town. Joe Pike with Enviro Design introduced himself saying he is the civil engineer on this project. He said when this site is developed the drainage will be improved and the rate of discharge from the western third of the property will be reduced by over 85 %. The current topography of the property is uneven, being high along AlA, dipping Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 6 heading west and rising at the western third of the property. He said they are proposing to cut out the high area at the western portion, which will reduce the rate of discharge, and they will create a berm to capture the water and avoid drainage into the Intracoastal. Chairman Ganger asked if it is necessary to fill in the low spot in order to develop the property. Mr. Pike said there are several options, but this was the safest approach to allow them to capture water and contain �_. it. He said it is not mandatory, but it is a very low elevation and the minimum home site elevation required by FEMA is at least 7 feet. Vice - Chairman Morgan asked about sewer /septic plans for the proposed lots. Mr. Pike said they have bored for a septic analysis, but have not yet looked at septic design for each lot. A resident asked about percolation rates and Mr. Pike said they have terrific percolation rates up on the ridge and they are putting in clean fill which will be acceptable for septic. Vice - Chairman Morgan asked about dock issues and what they are proposing. Mr. Grant said there are 4 existing docks on the site and the Town has a limitation of 3 docks. When they seek a permit, they will work it out so there will be only 3 docks. Mr. Grant said they are not seeking waivers or variances for this project and all plans meet Code. Mr. Grant said the 2 lots that will use the private roadway running north and south through Tract A as their primary means of ingress and egress to AlA will be obligated to contribute to the maintenance of that road, which they are aware of as part of the recorded document referred to by Mr. O'Boyle. He said Tract A, which is the drainage area, will become part of the 3 western lots and those property owners will be responsible for maintaining the landscape area, taking the burden off of Hidden Harbour. Mr. Grant said they will discuss all of this with Hidden Harbour Estates as a private matter. Chairman Ganger asked if the owners of the 6 proposed lots will be a part of the Hidden Harbour Estates HOA. Mr. Grant said according to their title, the Hidden Harbour Declaration does not create a HOA, but does create a Committee made up of the eight lot owners. They do not have a right to force themselves as members and the Committee cannot demand that they join, but they realize if, for example, they propose installing a dock, it will require approval of the Committee. If title on this property passes prior to the assessments for undergrounding taking place, Chairman Ganger asked if we would re- assess for each new lot or would it be the obligation of the current owner. Mr. Thrasher said it is his opinion that the assessments are based on property as they exist today and there is consideration in the methodology for lot size. Mr. Randolph said it will run with the land and each new property owner will be responsible for their proportional share of that assessment. Mr. Thrasher said the assessment was based on the fact that there has been no construction on that property and it is locked in. Chairman Ganger said there are many people in Town who will find the demolition of that property unsettling and he asked if there has been Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 7 adequate analysis for restoration and if anyone has given thought to restoring the property. Mr. Eliopoulos said they have not yet considered restoration and would prefer to reserve comment until after closing when he will have an opportunity to enter the house for observation. Marty Minor, Senior Project Planner with Urban Design Kilday Studios, prepared a Staff Report for the Hidden Harbour Estates Plat II Application and was present to summarize the report. Mr. Minor described the site as 6 �i acres within the Ocean West single family residential zoning district, which is currently 3 lots as part of the old Golf Course Addition Plat, and the Tract A portion, which was originally platted with the Hidden Harbour Project. The proposed lot configurations and sizes and proposed setbacks are all in conformance with Town Code. He said what they focused on for their review was access, landscaping and drainage. This property is within the North Ocean Boulevard Overlay and requires permission to amend anything along the roadway, including attaining additional access from N. Ocean Blvd. Chairman Ganger asked if FDOT would have the final word regarding additional access. Mr. Minor said FDOT has final word and there are no issues. He said there is no proposed construction of homes at this time, but it is reflective in their recommended conditions for approval that when grading begins in preparation for construction, it must be done all at one time and completed. The conditions of approval are listed on Page 6 of the Staff Report from Marty Minor dated July 21, 2011 which will be made a part of the record and filed with the Town of Gulf Stream. Mr. Minor summarized saying Condition 1 requires the applicant post a surety in an amount determined by a licensed engineer, approved by the Town and shall represent 110% of the estimated costs for improvements. Condition 2 provides that prior to issuance of the first building permit for vertical construction on the site, grading of the entire site and completion of the required improvements are required. Condition 3 provides that they maintain 10 feet of the existing vegetation around the entire site and along all roadways. Mr. Minor said the existing landscaping is dense with a variety of vegetation and whatever is removed must be replaced as it was. Tom Laudani of Seaside Builders introduced himself and said Dave Watkin, Landscape Architect, was present to answer any questions. He said they realize that the lack of vegetation would have an impact on property value and they intend to fully maintain the landscaping around the property. Mr. Thrasher said he has a modification to Condition 4 and the addition of a Condition 5. Condition 4 will be modified to read: Site plan to provide lot line projections into the waterway in order to determine if there are any non - conforming docks as defined by Section 66 -369. All docks determined to be in conflict with Section 66 -369. Docks. shall be removed prior to demolition of the structures. Mr. Randolph recommended Condition 5 to read: Applicant will, on the Plat, dedicate the entrance road on the south side of the property to the Town of Gulf Stream for public roadway and utility purposes. Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 8 Chairman Ganger said the Board would like to give members of the public an opportunity to comment. He asked Clerk Taylor if there were any public comments submitted in writing. Clerk Taylor said there were none in writing; however, two residents of Hidden Harbour Estates visited Town Hall to review the proposed project plans. C' Clerk Taylor administered the Oath to Jim Neeves. Mr. Neeves said he resides at 11 Hidden Harbour Dr. and is a member of the Hidden Harbour sub - committee. He said he discussed the proposed plans with neighbors and, although they would love to see the house remain, they recognize that the property will be developed and do not have a lot of problems with the plans. Mr. Neeves said they will meet will the new owner and discuss the Covenants, but they would like to see 15 feet rather than 10 feet along the road because, to them, the entrance to the Harbour is the most valuable part of the property. Lori Volk introduced herself as the daughter -in -law of John Volk, the architect of the home, saying that Seward Webb went to Mr. Volk as a personal friend in 1937 and then built the house in 1939. She said the property is at the tail end of the Appalachian Trail and the topography is unique and unusual, and if the Town had a historic preservation ordinance in place they would be looking at whether the elevation is natural or if it might be built on an archeological or Indian burial site. Ms. Volk had concerns about the developer leveling the property all at once before a preservationist could observe the house, and she was also concerned with the increase in the trip schedule with 4 additional houses using one ingress and egress. She said there are many gray areas with this proposal and recommended having a title search done on the road to clarify whether the Town owns the road or if it is a private road as posted. Mr. O'Boyle said many questions concerning this proposal have not been answered and he suggested the Board table any action, request that the developer meet with residents of Hidden Harbour Estates and any other interested parties in an attempt to work out some issues, and then come back to the ARPB for review. He said there is a Deed dated 1937 from E.F. Hutton to Seward Webb recorded in O/R Book 513 /Page 394, which states on Page 2 of the Deed, "Conveyance of Lots 4, 5, & 6 of the Golf Course Addition, "not to erect upon each of the above lots more than one residence." Mr. O'Boyle said if he is reading correctly it would be inappropriate for the ARPB to grant approval to subdivide into 6 lots. Chairman Ganger asked if anyone had knowledge on this property. Mr. Randolph said the Town searches for every property, but it is their Town zoning ordinances providing for lot size requirements. He said it is up to individual protect themselves against deed restrictions. is correct about a deed restriction requiring divided into 3 lots, Mr. Randolph said if the of a restrictive covenant cannot engage in title responsibility to enforce and drainage property owners to In the event Mr. O'Boyle the property only be Town were to grant a Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 9 subdivision for 6 lots, an injunction would have to be filed to prohibit development of the other 3 lots. Mr. O'Boyle asked if the drainage in Tract A of Hidden Harbour will change. Mr. Pike said they will not alter the grading of the existing drainage in Tract A, but they will place pipe beneath the roadway to connect to the existing inlet which currently falls into the canal and over to the Intracoastal. Mr. O'Boyle said, in Para. 12 of the Declarations and Establishment of Conditions, Restrictions, Limitations, Reservations and Easements of Hidden Harbour Estates, a Subdivision, it states, "no existing drainage systems can be changed without the expressed consent of all parties involved, including the owner of Tract A. He said there is a Hidden Harbour Restrictive Covenant in O/R Book 3097 /Page 0824 which states, "the trimming of the foliage over the paved road is left to Hidden Harbour" and, therefore, nobody has the right to take over landscaping or remove foliage along the road that was given to the Town and then turned back to Hidden Harbour. Mr. O'Boyle said they want to move forward and be good neighbors, but they have rights. He suggested the Town perform due diligence and look at these documents before approving the proposed changes. Mr. Grant said they want to meet with the residents to work it all out and he confirmed that these are private restrictions that do not come under the jurisdiction of the Town. They found the 1937 Deed in O/R Book 513 /Page 394 in their initial title search, but the Market Records Title Act states that this type of deed restriction terminates after 30 years if not re- established and the title company agreed that these deed restrictions have terminated under Florida Law. He said the document that continues to exist is the Declaration referred to by Mr. O'Boyle which clearly states that if dwelling units are built on the existing Lots 4, 5 & 6, the allocation to maintain the road will be based on the number of dwelling units or separately owned properties that have access to, and routinely use, such road for their primary means of ingress and egress. Mr. Grant said the subsequent document contemplated there being more than one dwelling using the road and sharing the cost and the old document no longer exists. He said they have until August 9th to respond to any comments and they will do so, such as the dedication of the road, the landscape buffer and maintaining the landscaping on Tract A. Chairman Ganger asked Ms. Volk to explain her concern with flattening the top of the hill. Ms. Volk said she believes Mr. Volk built the elevation maybe for a view of the ocean or to take cross breezes, but you would usually dig to be sure there is no Indian burial there. Chairman Ganger asked if the State or County have anything that would dictate that. Dr. Jane Day stated that Palm Beach County has an archeological ordinance in place and if development is proposed on an archeological site the County can require a Phase I Survey prior to any development. She said there are State and Federal Statutes which provide that if human remains are detected on a site, the State must be brought in and all components of the Phase I Survey must be complete. Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 10 Mr. Murphy asked Ms. Volk what makes her believe there is a need for excavation. She said the topography is unique, but the elevation of that site is an indication to her. Tom Laudani commented that the criteria requiring excavation does not exist on the site. Mr. Laudani said that pre and post drainage conditions will have no negative impact on Tract A. He said they are offering a 10 foot buffer around the entire property and when they take title of the property they will have the right to maintain the vegetation. Mr. Laudani said Mr. Thrasher has asked that they dedicate an additional 5 feet of the southern portion of the property to the Town of Gulf Stream to provide for additional right -of -way and he is not adverse to that as long as it does not impact the setbacks for construction of the homes. Chairman Ganger said he spoke with Seward Webb to let him know that the family home may be demolished and said he would make every effort to provide historic record for the archives with regard to the family history and the architectural style of the house. He asked the developer if they would allow access to the home prior to demolition to take photos for the archives. Mr. Grant said he was sure Mr. Strawn would work with him and they do not intend to demolish the home immediately after closing. Mr. Laudani suggested that they could incorporate something into the architecture of the new homes that would reflect the historic architecture. Mr. Eliopoulos offered his firm to assist in the documentation at no charge. Robert Krebbs of 19 Hidden Harbour Drive stated that he agrees with Mr. O'Boyle in that the Board should table the matter until some issues are worked out. Chairman Ganger asked for comment from the Board. Mr. Murphy said he suggests a formal condition be imposed that discussion between the developer and interested parties take place, but he is concerned that the dialog from these discussions will not be passed on to the ARPB prior to the Commission meeting. Mr. Randolph said this will not come back to the ARPB unless the Board postpones this matter with a condition that certain discussions take place before coming back before the ARPB. He said they could also place a condition concerning the historic record of the property as suggested by Ms. Volk. Vice- Chairman Morgan said he would like to pause on this matter because of the difference of opinion between the developer and Mr. O'Boyle's reading of the restrictive covenant which he suspects is not clear. He said it is unusual for an application for development of a subdivision to come before the ARPB, but their responsibility is to evaluate the architectural integrity of the proposal to maintain the continuity of architecture, landscape and the plan of the various neighborhoods. Vice - Chairman Morgan said the 6 platted lots is out of character with the rest of the neighborhood and recommends tabling the mater. Mr. Frankel said he is not clear on the legal matters, but agreed with Vice - Chairman Morgan saying he would prefer the property remain as 3 lots to maintain the unique topography. Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 11 Mr. Laudani said he is confident that in discussions prior to August 9th Attorney Grant will be able to satisfy all concerns from interested parties. He said he has history with the Town and has been under close scrutiny concerning architectural style in the past, but he will have the opportunity to come before the ARPB and Commission when he is ready to develop each of the homes on the property. Mr. Laudani said he realizes that the final approval will come from the Commission and �•' right now he is looking at this as a plat process and would like a recommendation of approval to the Commission so he can move forward. He said they are not asking for waivers, they are conforming to regulation and what is prescribed for that zoning district and he believes they have the right to develop 6 lots. Vice - Chairman Morgan wanted to point out that the must be viewed as a whole and as a concept within the Board has the discretion to view it that way. many different styles of homes, landscaping and r, comes down to the Board's perception of what Gulf and design should be. entire subdivision the neighborhood and He said there are Dad patterns and it Stream's continuity Chairman Ganger said because there are some uncertainties it is very important to the ARPB that the developer have these discussions with all interested parties and the Board can impose a strong condition that the Hidden Harbour residents and neighbors must concur with the proposal for this to happen. Mr. Randolph said this comes before the Board as a subdivision and the Board is obligated to review the proposal to determine if Code requirements have been met and to make their recommendations to the Commission. The Board can place a clear condition that the developer must meet with residents to attempt to resolve some of the issues, but it is not required that the residents and neighbors concur. Chairman Ganger said there is the potential for a motion to defer. Mr. Randolph said a motion to defer should be accompanied by what the Board would like to see done before coming back to the Board. Vice - Chairman Morgan moved and Mr. Murphy seconded to recommend approval for subdivision review to permit the division of the above - described property into six (6) single family lots to be known as Hidden Harbour Estates -Plat II Subdivision with the following conditions: 1. Prior to the issuance of the first building permit for the site, the applicant shall post a surety in an amount determined by a licensed engineer and confirmed by the Town engineer to be sufficient to ensure that required improvements shall be completed if the developer does not or cannot make the improvements in accordance with the approved plans. The improvements shall include drainage facilities and the grading of the site. The surety shall represent 110% of the estimate costs for the improvements. 2. Prior to the issuance of the first building permit for vertical construction on the site, the grading of the entire site and the completion of the required improvement shall be required. In addition, the applicant shall provide evidence that all required utilities have Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 12 been released for operation prior to the issuance of the Certificate of Occupancy for each home. 3. With the development of each home, the 10 feet of existing vegetation along the existing roadways shall be maintained, if and where possible. If a portion of this buffer of existing vegetation has to be removed during the development process, the developer will create a 10 -foot wide landscape area along the roadway with native shrubs planted 2 feet on center and native canopy trees 20 feet on center. 4. Site plan to provide lot line projections into the waterway in order to determine if there are any non - conforming docks as defined by Section 66 -369. All docks determined to be in conflict with Section 66 -369. Docks. shall be removed prior to demolition of the structures. 5. Applicant will, on the Plat, dedicate the entrance road on the south side of the property to the Town of Gulf Stream for public roadway and utility purposes, plus an additional 5 feet, a total dedication of 35 feet. 6. Applicant shall have discussions with the property owners to address their issues to present to the Town Commission. Chairman Ganger stated that it should be written into the minutes that it was recommended that the developer make the best attempt possible to preserve the history of the property. Mr. Frankel said he will vote no discussions with property owners resolved before it was submitted goes before the Commission. because he would have preferred that took place and most of the issues to the ARPB and before the application Roll Call: Mr. Frankel, NO; Vice - Chairman Morgan, NO; Mr. Murphy, NO; Chairman Ganger, AYE. The Motion failed 3 - 1. Mr. Frankel moved and Mr. Murphy seconded to defer consideration of this application until the next meeting of the Architectural Review and Planning Board which is scheduled for Thursday, September 22, 2011 at 8:30 A.M., with the direction that the applicant meet with the neighbors and attempt to resolve disputed issues between now and that date. There was no discussion. All voted AYE. 2. An application submitted by Gary Eliopoulos of GE Architecture, Inc., as agent for Robert & Barbara Miller, owners of property located at 960 Emerald Row, legally described as Lot 59, Place Au Soleil Subdivision, Gulf Stream, Florida, for the following: a. DEMOLITION PERMIT to remove existing 567 square foot covered porch on the south side of the existing Mediterranean style single family dwelling. b. LEVEL 2 ARCHITECTURAL /SITE PLAN REVIEW to permit the removal of the existing covered porch on the first floor and replace with a new two (2) story addition, consisting of 894 square feet, on the existing Mediterranean style single family dwelling. Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 13 Gary Eliopoulos of GE Architects stated that he is the Agent for the applicant and he displayed the existing site plan of the Miller residence. He explained that at the south end of the house there is an existing covered porch and they plan to remove the covered porch and create a two -story Florida Room, with an exercise room on the 2nd story. Mr. Eliopoulos displayed the existing floor plan and pointed out an existing bedroom on the second floor of the home that will lead to the new exercise room on the 2nd level of the Florida Room. With regard to the windows on the south side elevation, he said Staff commented that the amount of undivided glass must be reduced. Mr. Eliopoulos stated that the windows on the south side elevation will be divided, which will reduce the square footage of glass by 4 inches, and the awnings which were originally proposed will be omitted. He said the drawings are being revised to reflect those changes and will be delivered to the Town in time for the next meeting. Mr. Thrasher said Staff's comment concerning the windows was that they will conform to the Town's Design Manual Section 70- 101(5)(7), which limits the size of the opening, and the agent is stating for the record that their design will conform to that Section of the Code. Chairman Ganger asked which neighbor will see the south elevation of the home. Mr. Eliopoulos said the south elevation is on the curve of the Intracoastal and there is probably someone on the opposite side of the canal who will view a portion of this elevation. Chairman Ganger pointed out, for future information, that the ARPB is now requesting a streetscape for applications which entail building upward to get an idea of the difference in roof heights between the new structure and the rest of the neighborhood. He also asked Mr. Eliopoulos if he has shared these plans with the Place Au Soleil Homeowners' Association and Mr. Eliopoulos said he had not, but he would get input from the HOA. Clerk Taylor reminded the Board that this is a Level II application and will not go to the Commission for approval, but Staff has approved the plans. Mr. Smith moved and Mr. Frankel seconded to approve a demolition permit based on a finding that the removal of the existing 567 SF covered porch on the south side of the existing Mediterranean style single family dwelling meets the minimum intent of the Design Manual and applicable review standards. There was no discussion. All voted AYE. Mr. Smith moved and Vice - Chairman Morgan seconded to approve the Level II Architectural /Site Plan based on a finding that the proposed two - story addition, consisting of 894 SF, on the existing Mediterranean style single family dwelling meets the minimum intent of the Design Manual and applicable review standards with the following conditions: 1. That the windows in the final plan shall conform to Code Section 70- 101(5)(7). 2. The Town shall receive input from the Place Au Soleil Homeowners' Association in consideration of this application. There was no discussion. All voted AYE. Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 14 3. An application submitted by Jacqueline Albarran as agent for W. L. Lyons Brown, Jr., owner of property located at 1 and 3 Driftwood Landing, legally described as Lot 11 Driftwood Landing Subdivision, Gulf Stream, Florida, for the following: a. DEMOLITION PERMIT to demolish 215.9 square feet of the existing Minimal Traditional style single family dwelling. b. SPECIAL EXCEPTION #1 to permit replacement of existing non - conforming windows with sizes and styles of windows that are prohibited. C. SPECIAL EXCEPTION #2 to extend the existing non- conforming west walls of the existing Minimal Traditional style dwelling that encroach a maximum of 18.9 feet into the required 30 foot rear setback. d. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit replacement of existing non - conforming windows with windows of a size and style that is prohibited, and to permit additions consisting of 862.28 square feet to the existing Minimal Traditional style single family dwelling. Chairman Ganger asked for disclosures of ex -parte communications concerning this matter. Mr. Frankel stated that he has discussed this application with Staff. Chairman Ganger stated for the record that he attended the Commission Meeting and Public Hearing for the Appeal of the Town Manager's decision that this application should be submitted as a variance. He said he stated during the public hearing that nothing he heard nothing would influence his decision regarding this application. Mark Marsh of Bridges, Marsh & Associates introduced himself and stated that he is not the agent for this application. He said he is acting as the consultant to Jacqueline Albarran of SKA Architects, who is the architect and agent for Brown. Mr. Marsh said the home, which is at the end of a private road in Driftwood Landing, was built in the 40's and the Brown Family has owned the property since the 501s. He said he was asked to get involved because of a conflict of opinion between Staff and the applicant as to how they would approach this project. The applicant attempted to submit an application which included special exceptions and Staff believed it would require a variance. Mr. Marsh said the applicant appealed to the Town Commission and the Commission took the position that the ARPB should evaluate the application and make their recommendations. He said the application has been submitted to the ARPB as a special exception. Dr. Jane Day introduced herself and distributed a handout summarizing her presentation. She said the style of the Brown house is Minimal Traditional, which started in 1935 and went into the mid -50's, and she found the style in a book entitled Field Guide to American Houses. This style is referenced in the Gulf Stream Design Manual Bibliography and many of the sketches in the Manual were taken from this book. Dr. Day said the Minimal Traditional style home in Florida is usually smaller, Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 15 the predominant style is a front facing gable and decorative vents at the top and other elements of this style are decorative shutters and outriggers, both of which are on this house. Air conditioning was not as prominent through South Florida years ago and the predominant windows of these houses were aluminum awning and jalousie which let the outdoors in and allowed people to enjoy the Florida breezes. Dr. Day said her handout includes photos of the basic window facades on the western elevation, which faces the Intracoastal, and it shows the original fenestration and openings. There is also an illustration of the Garage Penthouse with the original aluminum awning windows. Dr. Day said the Gulf Stream Manual is a methodology and a common framework and on Page 5 -8, with regard to what is preferred for windows, it states that they should reflect the architectural style of the original house. She said the original windows were designed to get the greatest view of the outside from the inside and she believes what is being proposed replicates the original intent by allowing for the greatest views from the inside out. Technology changed after Hurricane Andrew, impact windows were developed and people want to change windows to impact, not jalousie to jalousie, and they want to get the same effect as far as view and light. Dr. Day said she will be available to answer any questions. Mr. Marsh said they also have a request for demolition of an existing one -story shed and does not know what would cause denial since the shed is an appendage with no aesthetic or functional value. He said the primary issue is the window replacement and they have an existing collage of different window types, including jalousie, picture windows, awning windows and single hung. They want to bring it to hurricane code and stay in keeping with the style of the home. The bird sanctuary is the only neighbor and is the most attractive view from the home. Mr. Marsh said Staff has determined from Code Section 70 -101 that their proposal for the replacement of 4 picture windows is prohibited due to the maximum width of undivided glass. He explained that there is an existing picture window in the dining room and the existing sitting room has an octagonal end which the owner would like to square off with a picture window. There will be two additional picture windows on the north and south elevations. He said the total fenestration will be replaced and every other window opening complies with all criteria in 70 -101, but the issue is the four undivided picture windows. Mr. Marsh said Staff has taken the correct approach according to the Manual, but they want to propose that the picture windows in the sitting room and dining room be maintained along with the addition of the two side picture windows. They are requesting this under Code Section 70 -126, Special Exception to Architectural Standards, which talks about value of replacement, or upgrade of conformity. The Design Manual guidelines primarily address new construction and do not address this type of situation where all fenestration will be replaced. Mr. Marsh explained that Special Exception #2 concerns the proposed expansions of the dining room and a bedroom and Staff advised Ms. Albarran that it is standard for the ARPB to approve minor building Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 16 expansions as long as they are within the shadow of the furthest encroaching element. He said the closest current setback is 11.03 and the proposed setback 11.07, which is a minor expansion of a total of 650 SF of proposed addition and meets the special exception criteria. Jackie Albarran of SKA Architects, introduced herself as architect and agent for Brown and briefly summarized the Level III Architectural /Site �_- Plan and display. She said property is large and the hardscape is at a curve, and they are proposing minor expansion of the home and the addition of a patio, which will have a straight view from the dining room through to the pool area. Chairman Ganger said Mrs. Brown was a horticulturalist and a tree lover and he asked if any of the proposed picture windows look out on that. Ms. Albarran said all landscaping will be kept and the proposed covered terrace on the south side will have a view of the plantings, but the picture windows look out on the preserve that Mrs. Brown purchased. She said the entire fenestration will be changed, the old sliders will be French doors and jalousies will be impact casement with shutters. Ms. Albarran said the shutters will be white and the exterior color will be changed to a light green. Vice - Chairman Morgan and Mr. Frankel both asked if the proposed windows are to have muttins or to be divided in any way. Ms. Albarran said they were never divided and divided windows are not proposed. Mr. Marsh said they want to preserve the charm and the property is very unique and private and they want to maintain their privacy. Vice - Chairman Morgan commented to Dr. Day that the jalousie window style appears to break up the light and it seems that the evolution of design would lend itself to muttins. Dr. Day disagreed saying you were not supposed to see the bars at the bottom of the jalousies and they were designed to be kept open while it was raining, but we no longer do that. Mr. Marsh said jalousie was the original style and the awning window was to be an improvement to avoid leaks. Chairman Ganger asked Dr. Day if there are other Minimal Traditional style homes in Gulf Stream and Dr. Day did not know. He wanted to be sure that, after the proposed restoration, the home would be a style of South Florida architecture and the changes will be aesthetically correct. Dr. Day said it will because they are keeping some of the characteristics of the Minimal Traditional style, such as the front - facing gable with the decorative attic vent. Vice - Chairman Morgan said the windows, under 70 -126 are permitted with a special exception and the testimony supports the modifications to be consistent with the Minimal Traditional style. Mr. Frankel agreed, saying he discussed the matter with Staff and he fully understands their position because of how the Code is written. He said the Board has the discretion to view it as a gray area rather than black and white. Mr. Frankel said he believes they owe the Brown Family something and maybe the Board could add a restriction that if the property is sold out of the family, the buyer would be required to meet the current Code. Architectural Review and Planning Board Regular Meeting and Public Hearing - July 28, 2011 Page 17 Chairman Ganger said if the Board chooses to approve, the motion should clearly reflect the Board's agreement with Staff's position because of the way the Code is written. Mr. Frankel moved and Vice - Chairman Morgan seconded to recommend approval of a demolition permit. There was no discussion. All voted AYE. Mr. Frankel moved and Mr. Smith seconded to recommend approval of the special exception for the replacement of existing non - conforming windows with sizes and styles of windows as presented in the application. There was no discussion. All voted AYE. Mr. Frankel moved and Mr. Smith seconded to recommend approval of the special exception to extend the existing non- conforming west walls of the existing structure as presented in the application. There was no discussion. All voted AYE. Mr. Frankel moved and Vice - Chairman Morgan seconded to recommend approval of Level III Architectural /Site Plan as presented in the application. There was no discussion. All voted AYE. Mr. Frankel moved and Vice - Chairman Morgan seconded the affirmation that the Board totally applauds and reinforces Staff findings in this matter and states that the approval of this application was a judgment call on the part of the Architectural Review and Planning Board. There was no discussion. All voted AYE. VII. Items by Staff. There were no items by Staff. VIII. Items by Board Members. There were no items by Board Members. IX. Public. There were no items by the Public. X. Adjournment. Chairman Ganger adjourned the meeting at 11:55 A.M. Gail C. Abbale Administrative Assi tant MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE ARCHITECTURAL REVIEW AND PLANNING BOARD OF THE TOWN OF GULF STREAM, FLORIDA ON THURSDAY, SEPTEMBER 22, 2011 AT 8:30 A.M. IN THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order 8:30 A.M. II. Roll Call. Present and Participating Absent w /Notice Also Present and Participating Chairman Ganger called the meeting to order at Robert W. Ganger Scott Morgan Charles Frankel, III Malcolm Murphy Thomas Smith Amanda Jones William H. Thrasher Rita L. Taylor John Randolph Gary Eliopoulos of GE Architects Mark Grant, Esq. Ruden, McClosky Beth -Ann Krimsky, Esq. Ruden, McClosky Dave Bodker of Landscape Architecture Planning, Inc. Joe Pike of Enviro Design Paul Engle of O'Brien, Suiter et al. Tom Laudani of Seaside Builders, LLC Jim Neeves Bill Himmelrich Scott Morgan Lisa Morgan Frank Tabolsky, Esq. Marty Minor of Urban Design Kilday Studios Chairman Vice - Chairman Board Member Board Member Board Member Alternate Member Town Manager Town Clerk Town Attorney Architect /Hidden Harbour, Plat II Rep /Hidden Harbour, Plat II Rep /Hidden Harbour, Plat II Landscape Arch. /Hidden Harbour, Plat II Proj. Engineer /Hidden Harbour, Plat II Land Surveyor /Hidden Harbour, Plat II Agent /Joel T. Strawn PR for Spence Estate 11 Hidden Harbour Dr. 1304 N. Ocean Blvd. 1135 N. Ocean Blvd. 1135 N. Ocean Blvd. Rep. Martin O'Boyle of 23 Hidden Harbour Dr Town Consultant III. Minutes of the Regular Meeting and Public Hearin of 7- 28 -11. Mr. Smith moved and Mr. Frankel seconded to approve the Minutes of the Regular Meeting and Public Hearing of July 28, 2011. There was no discussion. Roll Call: Mr. Frankel, AYE; Vice - Chairman Morgan, AYE; Mr. Smith, AYE; Mr. Murphy, AYE; Chairman Ganger, AYE. The motion passed 5 - 0. Chairman Ganger commented on the Commission Minutes which the ARPB now receives from the Town Clerk and, for the record, he wanted to offer his appreciation to Commissioner Wheeler's comment thanking the ARBP for their diligence in the Brown matter and the Staff for the way they C_ Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 2 thought it through and presented the facts to the ARPB and to the Commission. IV. Additions, withdrawals, deferrals, arr Clerk Taylor requested to move Public Hearing first due to a possible quorum issue later in accepted the change in the Agenda. V. Announcements. A. Meeting Dates 1. Regular Meeting a. October 27, b. November 17, c. December 28, d. January 26, e. February 23, There were no conflicts in the ngement of a Item VI.A.3 the meeting. i The Board & Public Hearing 2011 @ 8:30 A.M. 2011 @ 8:30 A.M. 2011 @ 8:30 A.M. 2012 @ 8:30 A.M. 2012 @ 8:30 A.M. Meeting Schedule at this time. VI. PUBLIC HEARING. Chairman Ganger announced that he will ask for ex -parte communications to be declared prior to each application. He asked those planning to testify during any portion of this Hearing to stand and be sworn in. Clerk Taylor administered the Oath to: Mr. Gary Eliopoulos of GE Architects, Mark Grant, Esq. and Beth -Ann Krimsky, Esq. of Ruden, McClosky, Frank Tabolsky, Esq, Mr. Dave Bodker of Landscape Architecture /Planning, Inc, Mr. Joe Pike of Enviro Design, Mr. Paul Engle of O'Brien, Suiter & O'Brien, Mr. Tom Laudani of Seaside Builders, LLC, Mr. Marty Minor of Urban Design Kilday Studios, Mr. Jim Neeves, Mr. Bill Himmelrich, Mr. Scott Morgan and Ms. Lisa Morgan. A. Applications for Development Approval 3. An AMENDED /DEFERRED application from the Public Hearing of July 28, 2011 submitted by Tom Laudani of Seaside Builders, LLC as agent for Joel T. Strawn, Successor Trustee of Regina W. Spence Revocable Trust and as Personal Representative of the Estate of Regina W. Spence that includes property located at 1220 N. Ocean Boulevard, Gulf Stream, Florida, legally described as Lots 4, 5 & 6 of Golf Course Addition and Tract A of Hidden Harbour Estates Subdivisions, Gulf Stream, Florida, for the following: a. SUBDIVISION REVIEW to permit the division of the above described property into six (6) single family lots to be known as Hidden Harbour Estates -Plat II Subdivision. b. DEMOLITION PERMIT to demolish existing structures on this property. C. NORTH OCEAN BOULEVARD OVERLAY PERMIT to permit alterations within this Overlay District to create three of the proposed six lots in Hidden Harbour Estates -Plat II Subdivision. Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 3 d. LAND CLEARING PERMIT to allow excavation for installation of drainage and utilities \easements and streets. e. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit the subdivision of the property at 1220 N. Ocean Blvd. into 6 single family lots to be known as Hidden Harbour Estates -Plat II. ARPB Member Tom Smith recused stating his firm is the accounting firm for the Spence Estate. ARPB Vice - Chairman Scott Morgan recused stating he is an adjoining property owner of Hidden Harbour Plat II and could be affected by the proposed subdivision. A quorum remained. Chairman Ganger asked if there were any ex -parte communications concerning this application. Mr. Frankel stated he communicated with Staff concerning the proposed subdivision prior to the previous meeting. Chairman Ganger stated he had discussions following the last meeting with Mr. O'Boyle regarding the process and, with the approval of parties related to this project, he made a site visit with Bob Carr, an archeologist who was aware of the interest in the historic status of the home and grounds, and did an informal walk through of the property with Mr. Carr. Beth -Ann Krimsky, Esq., of Ruden, McClosky, stated she was here with her partner, Mark Grant, Esq. in relation to the application set forth on the Agenda as Item VI.A.3. concerning the Spence property. She said they are seeking Plat Subdivision approval, which is required to be given under consideration of F.S. Chapter 177 and the objective criteria set forth the in the Code, which they believe they meet. Ms. Krimsky said she prepared a binder for each member of the Board and Staff which includes depictions of the plat, various letters received from the City of Delray Beach, traffic engineering reports and drainage calculations, all of which support the applicant as having met all objective criteria set forth in the Code. It also supports that there is no basis to deny plat approval once the objective criteria have been met under Broward County vs. Narco and other applicable law. Mr. Grant distributed binders to the Board and Staff. Ms. Krimsky said she understands the development review process mixes site plan characteristics. She stated that the Applicant is here today to address some of those items and comments, but they do not waive any rights or objections to the inclusion of any characteristics that are not objective criteria set forth in the plat requirements. Ms. Krimsky introduced the project team, as follows: Gary Eliopoulos, Project Architect, will explain the Plat and some changes made as a result of comments made by the Town and by neighbors who met with the Team; Mark Grant, Esq., will explain the Memorandum of Understanding at Tab 18 of the binder which was prepared in conjunction with meetings with the neighbors; Joe Pike, Project Engineer, will explain some of the improvements to the drainage from the property; Dave Bodker, the Landscape Architect, will explain the preservation of a landscape buffer Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 4 and the canopy; and Paul Engle, Plat Surveyor, will testify that the plat meets all requirements of Chapter 177. Chairman Ganger asked if there was anything in the binder that the Board did not receive as part of their meeting packets. Ms. Krimsky said the day before this meeting they received a letter from the Town of Gulf Stream dated September 15, 2011 which is included in the binder, along with the Memorandum of Understanding. She said they are presenting these documents to be part of the record of this Quasi Judicial Proceeding. Ms. Krimsky said there are no changes to the Plat other than those requested by the Board at the previous meeting. Mr. Thrasher said some of the binder information, such as drainage calculations, were not previously provided to the Board and he asked Joe Pike to comment on that. Ms. Krimsky said that during the Quasi Judicial Hearing they will be presenting evidence supporting this application and showing they meet the plat requirements. Chairman Ganger said we are here today primarily because the neighbors felt they did not have adequate opportunity to review the project and meet with the developer. Mr. Grant stated that he and Mr. Tabolsky, who is Mr. O'Boyle's attorney, worked out a written Memorandum of Understanding which has been signed by his client and Mr. Tabolsky's client, and he will summarize the Memorandum of Understanding to explain all issues they have agreed upon. Ms. Krimsky commented that some of the changes they made are related to addressing the neighbors' concerns. Gary Eliopoulos of GE Architecture, 205 George Bush Blvd., Delray Beach, introduced himself. He said this is an important project for Gulf Stream and thanked the Board and the community for an opportunity to present this project again. He said, for the record, he believed the last project did meet the Town's LDRs, but felt if it did not fit within the community they needed to look at it again. Mr. Eliopoulos said since July they had several meetings with surrounding neighbors to address their concerns. He said the original drawings indicate each of the six lots having their own driveway entrance, which met all of the criteria. Mr. Eliopoulos referred to new drawings indicating an internal driveway, commonly called a hammerhead, and explained that as a result of trying to satisfy certain concerns of the neighbors Lot 4 in the southeast corner has its own driveway coming off of AlA and as you come between Lots 6 and 5 the road Ts to service the back three lots. He said many services come into play such as fire, emergency and trash pickup and this new design has been stamped by the City of Delray Beach Fire Department as meeting their criteria to service these homes. Part of their criteria is that the portion of the hammerhead going north and /or south must be a minimum of 45 feet and he said they clearly exceed this by going south 166 feet and north 78 feet. In addition, the radius of the asphalt must be 33 feet. Mr. Eliopoulos thanked Staff and Urban Design for looking at the project and providing comments. He said the Town Manager was concerned with setbacks and he explained that the first three lots have certain setback criteria which needed to be met. Lot 4 met the setback requirement and Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 5 they shifted the setbacks on lots 6 and 5 to meet the minimum 30' setback requirement. In addition, he said the rear of lots 4, 5 and 6 meet the minimum 30' setback from the driveway and he has a signed and sealed document confirming that which he will provide to the Town. Chairman Ganger asked Mr. Eliopoulos about a "turnaround" which was �. discussed in one of Urban Design's documents providing room for fire trucks to turn around. Mr. Eliopoulos explained that the City of Delray Beach has criteria for different means to access and exit a site and a turnaround was one of the options. He said they submitted a document from the Fire Department showing that this was the option chosen and it was approved. Mark Grant, Esq. of Ruden, McClosky, introduced himself and summarized the Memorandum of Understanding, as follows: 1. The name "Hidden Harbour Estates" will not be used, but the Plat will be called Hidden Harbour Estates Plat II. The name of the community will be Harbour View Estates, which will appear on all marketing materials. 2. They will assist the neighbors in engaging an engineer to review the septic and drainage designs which are now being finalized and, in addition to meeting South Florida Water Management District (SFWMD) requirements, their engineer will have an opportunity to confirm that the proposed drainage system will improve their drainage situation. Chairman Ganger said he thought the drainage plan was incomplete. Mr. Thrasher said the information required by the Town and the Town Engineer was not included in the earlier document and he was verbally informed that the calculations would be provided. He imposed a condition stating that the Town Engineer must have an opportunity to review and approve the plan. Mr. Thrasher said changes have been made since the conceptual drainage plan was submitted to the Town and the plan is favorable. Mr. Randolph commented that any recommendations by the ARPB to the Town Commission would be subject to the Town Engineer's final approval of the drainage plan. Mr. Joe Pike of EnviroDesign explained that they have been meeting with property owners and surrounding neighbors taking all of their concerns into consideration and they have made changes to the plans as recently as this week to improve their situation. He said all calculations are preliminary in that they have not yet been permitted by SFWMD. Mr. Pike said that everything is subject to approval, but they are only asking for approval of the Plat Subdivision at this point and not engineering approvals. 3. There will be no vehicular acces road to the west. The new hammerhead roads, other than those that purchase western road with golf carts to carry Chairman Ganger asked if the new road Grant said it will be private and the s to the road to the south and the design does not make use of those Lots 1, 2 and 3 can use the supplies to their boats. was going to be a Town road. Mr. six lot owners will form a Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 6 Homeowners' Association and will be responsible for maintaining the road, drainage system and landscape buffers. He said it will not be gated and the easement on the plat will be open for public services. 4. The tree canopy on the south road will be maintained and they will create a 15 -foot buffer on the property covering that road. 5. In the event of drainage problems on the south road, Harbour View lot owners will contribute 50% of the repair cost. Currently, the recorded document shows all drainage repair to be covered by Hidden Harbour Estates. 6. They agree to indemnify Hidden Harbour lot owners in the event Harbour View lots cause any drainage or septic issues. 7. They agree to coordinate and review the landscaping design and site grading with Hidden Harbour lot owners. 8. They agree to take over maintenance costs of the area adjacent to the canal which is Tract A and will be a part of new Lots 1, 2 and 3. 9. They agree that Hidden Harbour lot owners have no personal liability with respect to this Memorandum of Understanding. Mr. Tabolsky, Esq., of Philadelphia, PA introduced himself and stated that he represents Mr. O'Boyle, Mr. and Mrs. Neeves, Ms. Gibson and Mr. Krepps. He said they worked extensively with Mr. Grant and his client over the past two weeks and they are very pleased with the work that was done. Mr. Tabolsky confirmed that they have signed the Memorandum of Understanding, he has the originals and a copy will be submitted to the Town for the record. Mr. Paul Engle of O'Brien, Suiter & O'Brien Land Surveyors introduced himself and displayed the Plat for which they are requesting approval and he stated that it meets all plat requirements of F.S. Chapter 177. Chairman Ganger inquired about the return of Tract R to the Town. Mr. Engle confirmed that Tract R will be dedicated to the Town and Marty Minor added that Tract R will be dedicated to the Town as road right -of- way. Dave Bodker of Dave Bodker Landscape Architecture introduced himself and stated that, as depicted on the plan submitted to the Town, they propose to maintain the 15 -foot buffer along the south roadway. Chairman Ganger said the canopy is part of the natural appearance of this property and asked Mr. Bodker to elaborate on the landscape plan. Mr. Bodker said all trees that hang over the wall creating a canopy will be maintained and they will do whatever they can to protect the root systems, possibly by creating a tree well. Mr. Thrasher asked if any root systems will extend beyond the buffer and Mr. Bodker said there is one that may lie on the 15' buffer. Ms. Krimsky asked what Code requires for a buffer zone and Mr. Bodker said 3 feet. Ms. Krimsky asked about the width of the buffer zone on the plat and Mr. Bodker said it is 15' on the south side. Mr. Randolph asked if the HOA will be responsible to maintain the buffer zone and Mr. Grant confirmed that. Chairman Ganger asked how the HOA will maintain the buffer zone if there are no lot owners. Mr. Grant explained that the developer will own all 6 lots initially and will Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 7 maintain the buffer. As lots are sold they will each pay their share and the developer will continue to pay for the unsold lots until buyout. Ms. Krimsky said although they understand there are many concerns of the ultimate project, today they are seeking approval of the plat only. Chairman Ganger said this is a very important project for the Town and one that could be launched today and he asked the project team to be patient with questions they may have already answered. He said it appears that some homeowners have signed a document and are okay with the project and other homeowners that still have concerns. Mr. Randolph asked if there were comments from the public. Ms. Krimsky said they would like an opportunity to cross examine individuals who plan to comment. Jim Neeves, Representative of the Control Committee of Hidden Harbour Estates, stated that he has consulted with a number of property owners in Hidden Harbour Estates and none are in disagreement with what has been done. Property owners that could not be contacted have expressed no objections to date. Bill Himmelrich of 1304 N. Ocean Blvd. introduced himself and stated that he participated in three separate meetings with his neighbor, George Elmore, Tom Laudani of Seaside Builders and Joe Pike, the Project Engineer. He said everyone is confident that Seaside Builders will perform as promised and any issues brought forth in the future will be addressed at that time. Mr. Himmelrich said he wanted to go on record at this Quasi - Judicial Hearing that neither he nor Mr. Elmore have signed any agreements, but they are dedicated to cooperating in this matter. He said he has a verbal commitment from Mr. Laudani that the same benefits regarding indemnification will apply to surrounding neighbors. Lisa Morgan of 1140 N. Ocean Blvd. introduced herself and said her property borders the south side of the Spence property. Ms. Morgan said she did not attend the previous meeting and has not met with the developers. She said she has several concerns with the project as it stands and believes it should be seriously considered by the Board and the community. Although it may technically meet with Code, she said she feels it is not consistent with the intent of the development of the area. Ms. Morgan said she agrees that the canopy is an integral part of Gulf Stream and expressed her concerns with the hammerhead saying she would like some guarantee from the developer that vehicles will not exit through the canopy. She said it would be dangerous due to poor visibility and headlights would aim directly into their home. In addition, she said there is no height guarantee for the 15 -foot buffer zone and is concerned about canopy trees coming down in the road in a storm, and she is concerned with drainage because their property has the natural swale and they already have drainage issues. She said if this plan is approved today the drainage plan will follow and asked if adjoining property owners will have an opportunity to comment on the drainage plan and will they be indemnified and guaranteed that the Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 8 drainage will not affect them. In closing, she asked if the developers will be sharing in the undergrounding project fees and, if so, will that reduce the fees for Hidden Harbour Estates property owners and those to the south. Mr. Thrasher said the estate is responsible, but the assessment goes with the property. Chairman Ganger asked Ms. Morgan to elaborate on the natural swale. Ms. Morgan said it runs down the AlA side and is within 5 feet of there home. She said they have not seen the drainage plans and she would like to have the indemnification extended to their property. In cross examination, Ms. Krimsky asked Ms. Morgan if she lives directly south to the area which is being platted. Ms. Morgan said "yes." Ms. Krimsky asked Ms. Morgan if she is married to a member of the Board. Ms. Morgan said "yes." Ms. Krimsky asked Ms. Morgan if she has discussed with Mr. Pike the concerns she has about the swale in relation to her property. Ms. Morgan said "no." Ms. Krimsky asked Ms. Morgan, in relation to the hammerhead turn and a preference to having an entrance onto your road, is any of that depicted on the plat being presented today? Ms. Morgan said "no, but her understanding is that any governmental agency servicing that area has the ability to say that it is not sufficient and therefore the access could be opened up down the road and that is her concern." Mr. Krimsky asked Ms. Morgan where she obtained that understanding. Ms. Morgan said "from basic research and phone conversations." Ms. Krimsky asked Ms. Morgan if she spoke to the Delray Fire Department. Ms. Morgan said "no because she has not had the opportunity, but she believes it goes beyond the Delray Beach Fire Department." Ms. Krimsky said the architect and the engineer will address approvals, but the plat they are seeking approval for has no entrance onto Tract R, which is a road to be dedicated to the Town. Mr. Pike said he did not have the opportunity to meet with the Morgans and welcomes the opportunity to do so. He said the low spot is through the natural swale and there are standing water issues on the north side. Mr. Pike said the plans are subject to approvals, but SFWMD and other jurisdictional agencies dictate that we are to protect neighboring properties and cannot shed water on them or impair there drainage. Mr. Pike addressed the issue of headlights aiming directly at the adjoining property saying that there will be a permanent site wall with 15 feet of buffer. Chairman Ganger said the Project Team should meet with the Morgans before moving ahead with this. Mr. Pike said they extended the offer to all of the neighbors to answer any questions they may have. Ms. Morgan asked the Board to request that the developer state on record that they will extend the indemnification of drainage to the adjoining neighbors as a good will effort in the event the Board passes this plan today. Ms. Krimsky said when the developer understands the scope of that indemnification they will be happy to address the matter, but the developer will take all steps to avoid making drainage situations any worse than they are at this time. Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 9 Mr. Randolph stated that the Architectural Review and Planning Board is an Advisory Board to the Town Commission. He said when the Town Commission hears the application, they will have the opportunity to place any reasonable conditions upon the application as they see fit and they will make the final decision. Ms. Morgan asked Mr. Randolph if the Board would make their own investigation as to whether or not the covenant is expired. Mr. Randolph said they would not because the Board l does not enforce private declarations of properties. He said the covenant was represented to the Board by the Marketable Record Title Act as being expunged. Mr. Scott Morgan of 1140 N. Ocean Blvd. introduced himself and stated that his property is adjoining to the south of the subject property and he is an ARPB Member on recusal. Mr. Morgan said the standard of review is important here because this is a subdivision and plot plan in an area that has seen nothing like it before. He said there are Code requirements and the Design Manual gives instructions to the Board and Commission as to how they should view applications. At Section 70 -4(c)3 the goal is to maintain the consistency of neighborhood character. At Section 70 -26 it explains in detail that the uniqueness of Gulf Stream is its five neighborhoods, each of which is different and defined. He said in determining neighborhood districts it looks at parcel size, vegetation and other issues. Section 70 -27 says that any proposed project must be compatible with, and complimentary of, the overall character of that neighborhood district, which is the Ocean West District. The Design Manual defines these properties as being quite large with setback -rate distances from the road and creating an estate - like feel that is unique to this neighborhood. Mr. Morgan said this should guide the Board and the Commission in their determination as to whether this fits within the Design Manual. He displayed an aerial photograph submitted by the applicant which he believes gives the best visual of what this subdivision will look like within the district. Mr. Morgan said it is a shoehorned development of six lots in an area of a large estate -like feel with long road driveways to large parcel properties. Mr. Morgan said it does not fit within the context of the neighborhood. Mr. Marty Minor of Urban Design Kilday Studios introduced himself and stated that he has been retained by the Town of Gulf Stream to help in the review of this application. He said the hammerhead issue is the first thing he picked up on and recommended they get approval from the City of Delray Beach, and he also recommends they seek approval from Waste Management. Mr. Minor said the largest concern is that the developer is showing many improvements to walls and roads and, before the first application for elevations is submitted, more information is required and a plan must be in place indicating when these improvements will be completed. He said these conversations have begun and there is continuing dialogue concerning the process of phasing of improvements. Mr. Randolph said all of this information would typically be included in a development agreement. He said if the ARPB recommends approval to the Town Commission and the Town Commission approves this application he Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 10 recommends that the Town enter into a development agreement which indicates when the development will be completed. Mr. Randolph explained that the developer must post a bond of 110% or 125% of the cost and the development agreement would prove that a bond was posted. If the improvements are not completed as indicated, the Town can use the bond to complete the improvements. i Mr. Minor said these are some of the issues they are still working through. Ms. Krimsky asked Mr. Minor if the plat comports with all of the Town Code requirements. Mr. Minor said "yes, for this initial plat approval and the development agreement that will tie into it, but we still need more information regarding drainage calculations and how everything works." Ms. Krimsky asked Mr. Minor if any variances were being requested in connection with the plat approval. Mr. Minor said "no." In closing, Ms. Krimsky asked the Board to please consider this plat application as it is under the law using the objective criteria that are actually applicable to a plat application. She said they understand that at site plan and further development processes the Board will have the opportunity to address issues such as permanency of the walls, certain swales or other items that would appropriately be in a development agreement, which will come at the next stage of this process. She thanked the Board for their consideration. Chairman Ganger asked for comments from the Board. Mr. Murphy stated that an incredible amount of work has been presented and what must be considered is the element of objective criteria and also the intangible elements of what Gulf Stream is about. He said there are a number of concerns that can be addressed as the project moves forward. Mr. Frankel referred to Mr. Morgan's comment about the area and the estate -like feel of it. He said the lot sizes to the south are either comparable or smaller than the proposed lots and there is already a precedent for lots of this size. Chairman Ganger commented that Mr. Frankel voted against an approval at the previous meeting because the neighbors had not been given the opportunity to express their concerns, but now they have. He said he _ does not want to see the property go and the natural beauty of the site change, but there are some compromises to be made, being that the property will never be the same, but it may add value to the community. Chairman Ganger reminded Mr. Eliopoulos that, if this is approved by the Board and the Commission, he offered to help the Town with some form of architectural history. He said the archeologist said the property was once under water and he felt that the property is a unique example of what was once a dune with a lagoon. Chairman Ganger said the Town should have a historical record of the geology of the property performed by a professional so that it will be known what it was at one point in time. Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 11 Mr. Frankel moved and Mr. Murhpy seconded to recommend approval of a demolition permit to demolish existing structures on this property, with the condition that prior to demolition the new owner will agree to allow the Town to do a photographic survey of the house as part of the historic record. There was no discussion. Roll Call: Mr. Frankel, AYE; Mr. Murphy, AYE; Chairman Ganger, AYE. The motion passed 3 - 0. Mr. Frankel moved and Mr. Murphy seconded to recommend approval to permit the division of the described property into six (6) single family lots to be known as Hidden Harbor Estates -Plat II Subdivision subject to an agreement with the homeowners, subject to a development agreement being prepared and agreed to by the Town Commission and subject to finalization of the drainage plan. Roll Call: Mr. Frankel, AYE; Mr. Murphy, AYE; Chairman Ganger, AYE. The motion passed 3 - 0. Mr. Frankel moved and Mr. Murphy seconded to recommend approval of a North Ocean Boulevard Overlay Permit to permit alterations within this Overlay District to create three of the proposed six lots in Hidden Harbour Estates -Plat II Subdivision. Roll Call: Mr. Frankel, AYE; Mr. Murphy, AYE; Chairman Ganger, AYE. The motion passed 3 - 0. Mr. Frankel moved and Mr. Murphy seconded to recommend approval of a Land Clearing Permit to allow excavation for installation of roads drainage and utilities /easements, subject to performing a geological survey prior to excavation. Roll Call: Mr. Frankel, AYE; Mr. Murphy, AYE; Chairman Ganger, AYE. The motion passed 3 - 0. The Public Hearing recessed at 9:45 A.M. and reconvened at 10:00 A.M. ARPB Member Malcolm Murphy was excused, Vice - Chairman Morgan and Mr. Smith returned to the Hearing. 1. An application submitted by Robert E. Fetrow, Gator Engineering, as agent for George & Mary Morris, owners of the property located at 4 Little Club Road, Gulf Stream, Florida, which is legally described as Unit #4 of Las Casitas, Inc., to consider the following: LEVEL 2 ARCHITECTURAL /SITE PLAN REVIEW to permit a room addition consisting of 336 square feet to an existing Bermuda style single family dwelling and an 80 square foot patio deck. There was no ex -parte communication declared. Mr. Fetrow of Gator Engineering, agent for Mary and George Morris, said they are proposing a one -room addition consisting of 336 SF to the existing Bermuda -style single story structure and a patio deck consisting of 80 SF, extending the exterior elevation 10 feet from the existing structure. Mr. Frankel moved and Vice - Chairman Morgan seconded to approve Level II Architectural /Site Plan based on a finding that the proposed 336 SF addition to an existing Bermuda style single story dwelling meets the minimum intent of the Design manual and applicable review standards. There was no discussion. Roll Call: Mr. Frankel, Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 12 AYE; Mr. Morgan, AYE; Mr. Smith, AYE; Chairman Ganger, AYE. The motion passed 4 - 0. 2. An application submitted by Richard H Brummer as a t gen for Mark and Lynn Brody, owners of the property located at 2765 Avenue Au Soleil, Gulf Stream, Florida, which is legally described as Lot 92 Place Au Soleil Subdivision and a parcel described in metes and bounds in Section 4, Township 46 South, Range 49 East, to consider the following: LEVEL 2 ARCHITECTURAL /SITE PLAN REVIEW to permit construction of a Bermuda style detached cabana and summer kitchen consisting of 660 square feet. There was no ex -parte communication declared. Richard H. Brummer of Urban Design in Boca Raton, FL, agent for Mark and Lynn Brody, said they are proposing construction of a Bermuda style detached cabana and summer kitchen consisting of 660 SF next to their swimming pool. Chairman Ganger asked if the plans had been reviewed by the neighbors. Mr. Brummer said he has only discussed this application with Staff. Clerk Taylor said the neighbors were notified and there have been no inquiries or objections. Mr. Smith asked if this property was two lots and Clerk Taylor confirmed that. Chairman Ganger asked why Lot 92 is circled on the survey. Clerk Taylor explained that additional property was added, but a utility easement was a part of the plat and, therefore, could not be built on. The two parcels had to be unified to accommodate this improvement. Vice - Chairman Morgan moved and Mr. Smith seconded to approve Level II Architectural /Site Plan based on a finding that the proposed Bermuda style detached cabana and summer kitchen consisting of 660 SF meet the minimum intent of the Design Manual and applicable review standards. There was no discussion. Roll Call: Mr. Frankel, AYE; Vice - Chairman Morgan, AYE; Mr. Smith, AYE; Chairman Ganger, AYE. The motion passed 4 - 0. VII. Items by staff. A. Proposed Amendments to Comprehensive Plan & Land Development Regulations Re: Annexed Property -Urban Design Kilday. Marty Minor of Urban Design Kilday Studios introduced himself and said when the 16.6 acres were annexed into the Town they began a series of analysis. He said there are 12 properties, 102 dwelling units with another 34 dwelling units approved but not built. Within the purpose of this discussion is the procedure of how the Town will incorporate this property into the Comprehensive Plan and the Town's zoning code. Mr. Minor said he has made several recommendations as a means of opening up this discussion. He said they first looked at the surrounding land use maps and that area did have a Palm Beach County HR12 designation which had a minimum of 5 DUs per acre up to 12 DUs per acre. There is single family development within the Town and multi - family to the south with high density residential development that is up to 10 units per acre. Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 13 Within the Town, multi - family has a maximum density of 5.7 units per acre. Within the existing development we have a range of developments anywhere between 8 to 16 units per acre. He said they looked at setbacks and they can create either a new category or bring them into existing categories already established by the Town. He said he is recommending the latter and has a way to address the non - conforming densities within these properties. Mr. Minor said in updating the comprehensive plan they did population projection estimates and estimated that within 102 existing units there are 131 residents. He said this was done by taking Census information of persons per unit, which is 2.15 for the Town of Gulf Stream, and a 40% seasonal variation. Because of the seasonal nature of some homes in Gulf Stream we come up 131 residents. Chairman Ganger asked Mr. Minor how they treated Gulf Stream Manor. Mr. Minor said it was treated as not a unit and it was not included within the 131 number because it is commercial, which is a non - conforming land use. Under the Town's conformed land use and zoning regulations, if that use ceases for 90 days it would have to come into conformance with Town Code. With regard to the overall population for the Town of Gulf Stream, Clerk Taylor said she just received correspondence from the University of Florida about their 2010 Census. She said they have officially certified the Town at a population of 885 which includes the annexed area and, therefore, that figure should be changed. Chairman Ganger said it is difficult to get an accurate population count in a seasonal community and you must take into account that some residents are not US citizens and would not be included in a Census. Mr. Frankel pointed out that Gulf Stream Manor is not included in the district list. Mr. Minor said they should be on the list and Chairman Ganger said they are not residents. Mr. Frankel wanted to clarify that if Gulf Stream Manor were destroyed by an act of God it could be reconstructed even though it is not in compliance with the Code, but if a developer came in and demolished it they would not be able to reconstruct it. Mr. Minor confirmed that. He said there is language currently under non- conforming that says if a hurricane blows down one of these buildings under the current Code and if more than 50% is destroyed, they would have to meet current regulations which is a change in density. Mr. Minor said the language he is proposing is similar to language used in Delray, Boca and Ocean Ridge which says, if any building or nonconforming residential density located in a residential district is damaqed by flood, fire, explosion or any other casualty, act of God, or the public enemy, the buildings may be repaired or reconstructed and the residential density shall not be increased The repaired or reconstructed residential building shall be of a no greater height, no reduction in nonconforming setbacks and no greater square footage or total living area in existence in the building prior to the rdless of the extent of the damage. Reconstructed units ject to the applicable fire and building codes at the time nce of the building permits for the reconstruction. He said a safety net for people who have these units. Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 14 Mr. Frankel left the meeting at 10:10 a.m. and a quorum remained. Chairman Ganger asked Mr. Minor what would happen if 4001 N. Ocean, for whatever reason, was not completed. Mr. Minor said if site plan approval expired there would be no development approvals for that property and it would have to comply with Town Code. His recommendation is that it be a multi- family land use district, as the other multi- family buildings in the Town, and a multi - family residential east for that property to incorporate within the existing framework of the regulations. Mr. Smith asked what that density would drop to. Mr. Minor said right now it is at 9.7, it would drop to 5.7 maximum and they would have to come back to the Town to request development approval. He said they would have to come back to the Town for development approvals for the western properties also. Chairman Ganger asked the Board and Staff if they are comfortable designating the western side as a multi- family for the future. He asked Mr. Minor if there is a mixed use category allowing single family and multi - family in the same district as there is now along County Road. Chairman Ganger said as a long -term hope he would like to see more single family in that district. Mr. Minor said when they did multi - family regulations single family is permitted and there are several encouragements for single family homes in the multi - family district. He said in the multi - family west district for example, instead of the standard 20,000 SF lot size a single family can go to 16,500 SF as a smaller lot depth. Chairman Ganger asked Mr. Minor to define the yellow building at the beginning of County Road and AlA which was just resold and appears to be three dwelling units. Mr. Minor said it is multi - family because they are somewhat interrelated. Chairman Ganger asked about the units next to that building saying they are non - conforming and now that they are in Gulf Stream they could be demolished and rebuilt. Mr. Minor said there are 4 units and it is a little more than 1/5 of an acre. Mr. Thrasher said he spoke to the owners during the annexation and they believe what they have is valuable and do not plan to change their lifestyle. Chairman Ganger asked if they are shown on PAPA as individual owners and Clerk Taylor confirmed that. Vice - Chairman Morgan said the rules are in place so the prospect damage from an act of God damage would allow the owner to rebuild only to the density they are at now. Chairman Ganger expressed concern with Gulf Stream Manor because it is a timeshare saying that it is non- conforming because it is commercial property in a Town that does not permit commercial property. He asked, if the owner decides to sell the building would whatever replaces it have to conform to our 5.6 density. Mr. Minor said if they decided to renovate they would be limited to the 5.7 units per acre to make it a residential use. Chairman Ganger asked if it could convert back to a motel. Mr. Minor said no, unless it is destroyed by an act of God. Mr. Thrasher asked Mr. Minor to talk about the specific zoning for the 4001 N. Ocean west property and what will happen there. Mr. Minor said under the recommended standards, the minimum lot size being proposed, which was previously proposed to the County and never approved because it was just before the annexation, is now the Town's decision. They Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 15 propose 4 lots and under these regulations with the minimum lot size of 16,500 SF for a single family home they would only be able to get 2 lots. He said, like any property owner in Gulf Stream, they could request a variance, but as of now they are limited by Code to 2 lots. Mr. Thrasher asked what the density would be for multi - family on that property and how many units would fit. Mr. Minor said the density is 5.7 and they could possibly fit 4 units if they can provide enough parking and meet other requirements. Chairman Ganger said the Town is obligated to protect the rights of those living behind that property and asked Mr. Minor what the height restriction would be if it is a multi - family. Mr. Minor said up to maybe 40 feet. Mr. Smith asked if the units had to be joined in some manner if there were 2 or 4 units and Mr. Minor said confirmed that. Chairman Ganger asked if there has been any discussion as to what their intent may be to develop that property. Mr. Thrasher said there has been discussion and the Town has stated that there is zoning in progress and we are in the process of developing our LDRs and comp plan changes. He said the Town has asked the neighbors and representatives of 4001 N. Ocean to attend meetings and they realize we are not able to answer their questions, but we are preparing to do so. Chairman Ganger asked if the property could be used for recreational purposes and Mr. Thrasher said it could not. Clerk Taylor said they are considering their options, they have contacted her for interpretation of multi - family code and they have a problem with minimum lot sizes. Chairman Ganger asked if Boynton Beach ever gave them water and Mr. Thrasher said they had to. Chairman Ganger asked for how many units and Mr. Thrasher said he thought it was for 2 units. Mr. Randolph asked if we are making some amendments in the comp plan requiring traffic and school concurrency since the state no longer requires concurrency. Mr. Minor said yes and it ties in with the County's provisions. Mr. Thrasher asked the Board if they were ready to recommend to Commission that we move forward on this. Chairman Ganger said the population numbers need to be adjusted a bit and entertained a motion. Mr. Smith moved and Vice - Chairman Morgan seconded to accept the recommendations under Section 66 -131, Required conditions for continuance under item (6)2, and that we forward to the Commission our recommendation to accept the language as underlined at the last part of paragraph 2. Roll Call: Vice - Chairman Morgan, AYE, Mr. Smith, AYE; Chairman Ganger, AYE. The motion passed 3 - 0. Chairman Ganger asked if there is anything in the current ordinances that disallows cell phone mounds on top of tall buildings along the Intracoastal. Mr. Randolph said there is a height restriction. Clerk Taylor said the Town has an ordinance on cell towers which states that they can be had under certain conditions. Mr. Thrasher said the ordinance restricts them to governmental properties. Mr. Randolph and Mr. Minor both agreed that it would fall under the governmental preference. Chairman Ganger commented that cell phone service in the Town is terrible and maybe the ordinance can be changed. Mr. Randolph said that Palm Beach has the flexibility in their ordinance that states Architectural Review and Planning Board Regular Meeting and Public Hearing - September 22, 2011 Page 16 if they try it on governmental property and it does not provide the service they can go elsewhere and we may have incorporated that into our ordinance. Chairman Ganger said this should be addressed because many citizens have complained about cell phone service. Mr. Thrasher said there are other issues to be addressed in the code, such as the height of grottos and clarity of an entry feature and this can be another item for discussion. VIII. Items by Board Members. IX. Public. There were no public comments. Administrative Assistant C Ganger adjourned the meeting at 10:35 A.M MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE ARCHITECTURAL REVIEW AND PLANNING BOARD OF THE TOWN OF GULF STREAM, FLORIDA ON THURSDAY, SEPTEMBER 27, 2012 AT 8:30 A.M., IN THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order. The meeting was called to order by Vice - Chairman Morgan at 8:35 A.M. II. Roll Call. Present and Scott Morgan Vice - Chairman Participating Tom Smith Board Member Malcolm Murphy Board Member Amanda Jones Board Member Absent w /Notice Paul Lyons Board Member Ann Aker Alt. Member Beau Delafield Alt. Member Also Present and William Thrasher Town Manager Participating Rita Taylor Town Clerk John Randolph Town Attorney Martin O'Boyle, Resident Hidden Harbour Est. Representing Tom Laudani Developer Robert Jones of Architect Jones Architects Dave Bodker of Landscape Arch. Dave Bodker Landscape & Architecture Mark Grant, Esq. Atty. For Seaside Vice - Chairman Morgan welcomed the return of Amanda Jones, who has moved from Alternate Member to Member of the Architectural Review and Planning Board. III. Minutes of the Regular Meeting and Public Hearina of 7- 26 -12. Mr. Smith moved and Mr. Murphy seconded to approve the Minutes of the Regular Meeting and Public Hearing of July 26, 2012. There was no discussion. All voted AYE. IV. Additions, withdrawals, deferrals, arrangement of agenda items. Mr. Thrasher requested that Item VI.A.4 be heard first and Item VI.A.1 will replace Item VI.A.4. V. Announcements. A. Meeting Dates 1. Regular Meeting & Public Hearing t._ a. October 25, 2012 @ 8:30 A.M. b. November 15, 2012 at 8:30 A.M. c. December 27, 2012 @ 8:30 A.M. d. January 24, 2013 @ 8:30 A.M. e. February 28, 2013 @ 8:30 A.M. f. March 28, 2013 @ 8:30 A.M. Vice - Chairman Morgan asked if there will be applications for public hearing for the October meeting. Clerk Taylor said there will be one application, possibly two. There were no conflicts declared. Architectural Review and Planning Board Regular Meeting and Public Hearing - September 27, 2012 Page 2 VI. PUBLIC HEARING. There were no declarations of ex -parte communication. Clerk Taylor administered the Oath to Robert Jones, Dave Bodker, Mark Grant, Martin O'Boyle and Tom Laudani. Clerk Taylor stated that she received an email addressed to the Town Commission and Architectural Review and Planning Board from Mrs. Nancy Touhey of 1200 N. Ocean Blvd. The letter was read into the record. In her letter, Mrs. Touhey said she is unable to attend public hearings concerning applications for new homes in the subdivision. She said she believes the developer failed to live up to the agreements that supported the Town's approval of the subdivision, specifically the stipulation that the arbor canopy would not be destroyed. Mrs. Touhey said she might have been more supportive of the project if the Banyan tree across from her driveway had not been cut down. She requested that any approved plans and construction of the six homes be frequently inspected by the Town to be sure the builder is abiding by conditions of approval. The letter will be filed with the Official Records of the Town of Gulf Stream. Mr. Thrasher responded to Mrs. Touhey's comments saying that he has been watching the property very closely, he has done daily inspections during business hours, after hours and on weekends. He said he also inspected the property at 2:00 A.M. during Tropical Storm Isaac. Mr. Thrasher said he has observed nothing that was not approved or permitted. A. Applications for Development Approval (In order of Agenda rearrangement). 4. An application submitted by Seaside Builders LLC as agent for Harbor View Estates LLC, owners of property located at 1222 North Ocean Boulevard, Gulf Stream, Florida, legally described as Lot 3 Hidden Harbor Estates Plat Two, according to the plat thereof as recorded in Plat Book 15, Pages 173 and 174, Public Records of Palm Beach County. a. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit the construction of a partial two story single family Bermuda style dwelling, a 3 car garage with guest suite, a detached outdoor seating area, a total of 9,229 square feet, and a swimming pool. Richard Jones of Richard Jones Architects introduced himself and noted his team members, including Tom Laudani, the Developer, Mark Grant, Esq., and Dave Bodker, the Landscape Architectect. He said the six lots are ready for development and each are similar in their narrow width and depth, which has created challenges with regard to buffers, setbacks and rights -of -way. He said they looked at similar communities and found ways to minimize mass and size and capture courtyards and create outdoor living space. Mr. Jones described Lot 3 as situated in the southwest corner of the subdivision with a unique view of Hidden Harbour. The proposed 2 -story Bermuda Style structure is long and narrow with an east /west orientation. It is broken up into various masses, including a detached carriage home connected by an exterior breezeway, a pool deck terrace and loggia connected to a boat house featuring a small pavilion above with views of the harbor and storage below, and balconies on the Architectural Review and Planning Board Regular Meeting and Public Hearing - September 27, 2012 Page 3 front and rear of the home. Mr. Jones said the materials are common, including smooth stucco and a mitered hip roof. Mr. Smith asked about the proposed storage area under the boat house. Mr. Jones said there is 6.5' of headroom under the sitting pavilion for miscellaneous boating storage. Mr. Smith asked about a meandering wall on the south side of property. Mr. Jones said it is an existing retaining wall which was required for subdivision approval. Mr. Smith asked where Mrs. Touhey's property entrance ties into this property. Mr. Bodker said it is near Lot 4 at the southeast corner of the property. He said the tree in question was not within the 15' buffer, it was a rotted Ficus tree with a lot of vines and it will be replaced with six native trees which will block views of the property. Vice - Chairman Morgan asked if there are additional walls planned for this property. Mr. Jones said there will be 3' entry walls at the front driveway, 3'4" welcome walls near the front of the home, and terrace walls at the pool deck that will be 2' at the base with 42" of railing above, and the piers are 6' tall, but he said 3.5' of that is decorative railing. Vice - Chairman Morgan commented that the three proposed homes will be similar, but he said this design is the most attractive because it is better balanced. Mr. Smith said the landscaping is the biggest concern for the neighbors. Mr. Bodker said there are 11 existing trees on the south side, two that are 40' in height and spread. They will supplement the existing with 12' high Buttonwood and Fishtail palms on the south side and they will supplement the landscaping on the west side with hedging and trees. He said there will be layering and overlapping of vegetation for additional screening around the pool area. Vice - Chairman Morgan opened the hearing to public comment. Martin O'Boyle of 23 Hidden Harbour Drive asked Mr. Randolph if the Applicant's statements made under oath are binding. Mr. Randolph said the ARPB and the Commission make decisions based on statements made under oath and if something is done that was not approved it can be revisited and additional conditions can be imposed. Mr. O'Boyle said he believes the developer is not abiding by the Agreement between the developer and the neighbors. He said the canopy was damaged and nothing has been done, and he said he requested different material for the meandering wall because it has a commercial look and is not fitting for the Hidden Harbour Development. Mr. O'Boyle was also concerned with the drainage saying there has already been flooding on the Himmelrich property. He said there were modifications to the drainage, it ties into Hidden Harbour and any drainage modification or tie -in to that community is subject to a majority vote of its residents. Mr. O'Boyle said there is no positive drainage, meaning there is no place for the water to go, it uses Hidden Harbour facilities and their covenants do not allow that. Another concern is the Interlocal Agreement with Delray Beach. Mr. O'Boyle said that Delray should have no say in the removal or installation of trees on the property. He said he has spoken to Mr. Thrasher and he wrote a letter to Mark Grant, Attorney for the Applicant concerning these matters. Architectural Review and Planning Board Regular Meeting and Public Hearing - September 27, 2012 Page 4 Mark Grant said he disagrees with Mr. O'Boyle concerning a majority vote requirement; however, he said these are private matters and not the subject before the Board at this time. He explained the flooding issue on the Himmelrich property saying that a temporary cover was in place over the drain to avoid blockage and when the cover was removed the water was gone within an hour. Mr. Grant also said the one tree that / was removed was outside of the 15' landscape buffer and it was rotted and dangerous, but he said it will be replaced. Mr. Laudani introduced himself, he said he has made great strides with the property improvements and would like to address these matters with Mr. O'Boyle privately. Mr. Laudani said he spoke with Mr. Himmelrich about the flooding weeks ago and since the drain was uncovered there has been no further water accumulation, even after Tropical Storm Isaac. He said Mr. Himmelrich called him to thank him and to say there are no issues. Mr. Laudani said everything has been approved by South Florida Water Management District and other appropriate authorities and both systems are working perfectly. He described the stucco meandering retaining wall as small and low, 24" above grade with aluminum rail above, and he said there will be lush vegetation and landscaping masking the wall. Mr. O'Boyle distributed some documents to the Commissioners for their information concerning changes to the Hidden Harbour Declaration and how the changes pertain to the required signatures for approval. Vice - Chairman Morgan asked Mr. Randolph if there are legal issues beyond the ARPB that would call for a legal halting of the subdivision and does it mute what the ARPB is doing today. Mr. Randolph said the Commission gave final approval of the project and they will make that decision. He said the ARPB is only required to make a decision based on the application before them today and not to hear concerns relating to violations of the subdivision agreement or the agreement with the neighbors. Mr. Randolph said Staff has looked at many of these issues, particularly the canopy and drainage, but he said they do not relate to the architectural review. If the ARPB recommends approval of this application, he said the Commission will determine if there have been violations and they will deal with that. Mr. Randolph said the issue of the western wall may relate to this application, and he said he is reviewing the agreement between the neighbors and Harbour Estates. He said where it talks about the retaining wall it states that it requires the approval of the neighbors. He said documents such as this may come before you, but the Town does not have the jurisdiction to enforce covenants. Vice - Chairman Morgan said he agrees; however, he said the subject agreement was made a part of the subdivision approval by the ARPB and Commission. Mr. Randolph commented on Vice - Chairman Morgan's statement that the ARPB and Commission asked for an agreement between the developer and the neighbors. He said the request specifically concerned the 15' landscape buffer, the canopy and drainage, but the agreement also talks about the western wall and the neighbors having an opportunity to approve it. Mr. Architectural Review and Planning Board Regular Meeting and Public Hearing - September 27, 2012 Page 5 Randolph said the ARPB and Commission may or may not have commented on these matters, but he said he believes it is beyond the authority of the Town Commission to enforce an agreement that never came before them. However, he said the Commission does have the authority to speak out if they believe the agreement has been breached. Mr. Smith asked Clerk Taylor if the neighbors and Mrs. Touhey were notified of the applications before the ARPB. Clerk Taylor confirmed that. She explained what the Code requires concerning notification and stated that she went beyond Code requirements to cover a larger area. Clerk Taylor said that Mrs. Touhey received a notice and responded. Mr. Smith moved and Mrs. Jones seconded to recommend approval of Level III Architectural /Site Plan based on a finding that the proposed partial two -story single family Bermuda Style dwelling, a 3 -car garage with guest suite, a detached outdoor sitting area, a total of 9,229 SF, and a swimming pool meet the minimum intent of the Design Manual and applicable review standards with the following conditions: (1) The electric service lines shall be buried; (2) The roof shall be white (through and through) un- textured, un- coated flat cement tile; (3) Any minor modifications in the landscape plan shall be submitted to the Town Manager for review and approval, and any major modifications shall be brought back to the ARPB for review and approval prior to commencement of landscaping; (4) Wall and /or fences will be measured from the lowest abutting grade with a maximum height of 6' including any lighting fixtures that may be attached; and (5) All chain link fencing will be screened from neighbors' view. There was no discussion. All voted AYE. 2. An application submitted by Seaside Builders LLC as agent for Harbor View Estates LLC, owners of property located at 1220 North Ocean Boulevard, Gulf Stream, Florida, legally described as Lot 4, Hidden Harbour Estates Plat Two, a replat of Lots 4, 5 & 6, Golf Course Addition according to the plat thereof as recorded in Plat Book 15, Pages 173 & 174, Public Records of Palm Beach County, Florida. Vice - Chairman Morgan stated that he would rather not address the Overlay Permit at this time and just concentrate on the house. a. NORTH OCEAN BOULEVARD OVERLAY PERMIT to allow the removal of existing nuisance exotics and extensive planting of native species and the installation of an entrance wall and gates, a portion of which is within the 50' corridor. (THIS ITEM DEFERRED TO THE OCTOBER 25, 2012 MEETING.) b. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit the construction of a partial two -story Bermuda style single family dwelling, 3 car garage with bonus room above, 6,603 square feet, and a swimming pool. Robert Jones said Lot 4 is similar to Lot 3 in width and depth, but he said it is the only lot with a direct access driveway onto AlA. He said there is a formal entry driveway through the motor court, detached structures connected by covered breezeways, multiple outdoor sitting Architectural Review and Planning Board Regular Meeting and Public Hearing - September 27, 2012 Page 6 areas, and the house wraps around the pool area. This is a four - bedroom home with the potential for a fifth bedroom above the garage, which is a detached structure with a carriage house above. Mr. Jones said Lots 3 & 4 are spec homes and will have some flexibility. He said this application meets all of the Gulf Stream Code criteria. Vice - Chairman Morgan said the north and south walls go straight up and he asked if there is any jogging back between the first and second floors of the main house. Mr. Jones said the north and south end walls are continuous, but he said there is a balcony feature extending 4' from the wall with columns and a shed roof above. Vice - Chairman Morgan said there are other walls that go straight up without deviation which gives a massy and unbalance appearance, and he said the garage is also box - shaped. Mr. Jones said the H -shape of the plan provides stepping and there are three balconies that offset. He said there is a stairway on the courtyard side of the garage leading up to the carriage house and there are small architectural details that wrap around the structure and break down mass. Mr. Bodker said there will be a tremendous amount of trees reaching 50' in height which will block the view of the house. In his review, Mr. Thrasher said he concentrated on second story coverage in comparison to first story, but did not apply the newer portion of the Code. He said there have been recent Code changes and there is a requirement upon the applicant to incorporate certain architectural features in the design. Mr. Thrasher read from Code Sec. 70 -73, Two -Story Structures (a) In order to limit the construction of bulkier homes in districts with full second stories with small to medium lot sizes, the following restrictions shall be used: Ocean West - .70 of first floor area, (b) The use of architectural design features to provide variation among two -story single family homes is required One or more of the following features shall be incorporated within facades facing public or private roadways on any new two -story single family home in all zoning districts: Second -story setback (minimum 5' setback in addition to round level front setback); Front porch (minimum 8' depth; Balcony (minimum 24 SF); Arcade. The Town Commission may waive this requirement within subsection (b) if the applicant can demonstrate that these features are inconsistent with the home's architectural style and that the desired visual variation is provided throuah other measures. Mr. Thrasher said one of these elements must be incorporated in the design and if not, you must demonstrate why. He said a front porch with a depth of B feet, or a balcony of 24 SF, qualify as a necessary element. Mr. Jones said there is an entry portico that is 5 feet deep and could be 8 feet, and he said there are balconies on the east and west facades, but not on the north and south facades. Mr. Smith said the homes are too close to each other without incorporating some design features and he suggested they do more work with the walls and come back to the ARPB for review. Mr. Thrasher said one option is that the second story would be set back 5 feet from the first story. Vice - Chairman Morgan agreed that this application should be withdrawn and revisited. Mr. Jones said he can incorporate some stepback on the north side. Mr. Architectural Review and Planning Board Regular Meeting and Public Hearing - September 27, 2012 Page 7 Randolph said an appropriate motion would be to defer to a time certain to eliminate the need to advertise, and to have the applicant return with some of the recommended changes. He suggested the architect meet with the Town Manager to be sure they are in compliance with the Code. Mr. Smith moved and Mr. Murphy seconded to defer this application and have the applicant return to the ARPB with the recommended changes at a time certain of Thursday, October 25, 2012 at 8:30 A.M. There was no discussion. All voted AYE. Mr. Jones asked if the Board wished to discuss the Overlay Permit portion of this application. Vice - Chairman Morgan stated that two of the Board Members will be leaving at 10:50 A.M., which would result in the lack of a quorum. Mr. Laudani asked the Board to take a quick look at Lot 6. 3. An application submitted by Seaside Builders as agent for Harbour View Estates LLC, owners of property located at 1230 N. Ocean Blvd., Gulf Stream, Florida, legally Described as Lot 6, Hidden Harbour Estates Plat Two, being a re -plat of Lots 4, 5 & 6, Golf Course Addition, Gulf Stream, Florida. a. NORTH OCEAN BLVD. OVERLAY PRMIT to allow removal of existing nuisance exotics providing for a 13' clear zone from the edge of roadway and extensive planting of native species and installation of a 6'high aluminum rail fence 12' west of the east property line that will be screened with landscape material. (THIS ITEM DEFERRED TO THE OCTOBER 25, 2012 MEETING.) b. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit construction of an 8,857 square foot Colonial West Indies style partial two - story, single family dwelling, attached 2 car garage with 6' high walls and fences screened with landscape material around the property, and a swimming pool. Mr. Jones said there are similarities to Lots 3 and 4, such as a detached garage with a carriage house above, loggia connections, entry wall features and lush landscaping. He said there is a homeowner involved with this lot and, therefore, this will be a custom home of Colonial West Indies architecture, there will be different window articulation and different roof lines, and he said the roof material l_ will be gray slate -like tile. Mr. Smith said the north elevation has great setbacks and features and he asked if the north elevation has straight up walls. Mr. Jones confirmed that, but he said that can be adjusted. He said Marty Minor reviewed this design and found it to be in compliance with Code. Mr. Morgan asked if they were changing the half -moon window. Mr. Jones said Mr. Minor found this window to be inconsistent with Gulf Stream Architecture, but he said they feel it works well with the architectural style. Vice - Chairman Morgan commented that the garage doors open to the streets, Code requires that they be blocked, and he asked how they will accomplish that. Mr. Jones said there will be gates. Architectural Review and Planning Board Regular Meeting and Public Hearing - September 27, 2012 Page 8 Mr. Murphy asked that the roof material be referenced when the application comes back to the ARPB for vote. Mr. Thrasher said there will be a sample to view. Mrs. Jones asked the applicant to submit a second drawing showing an alternative to the half -moon windows on that particular fagade. The applicant agreed. Mr. Randolph suggested that before this Meeting is adjourned a motion be made to defer the remainder of these items to the October 25th Meeting. Mr. Murphy moved and Mr. Smith seconded to defer this application and the remaining applications to the October 25, 2012 Meeting. There was no discussion. All voted AYE. 1. An application submitted by Seaside Builders LLC, as agent for Harbor View Estates, LLC, owners of property located at 1224 N. Ocean Blvd., Gulf Stream, Florida, legally described as Lot 5, Hidden Harbour Estates Plat II, re- plat of Golf Course Addition Lots 4, 5 & N 92' of Lot 6, Gulf Stream, Florida. a. NORTH OCEAN BOULEVARD OVERLAY PERMIT to allow removal of existing nuisance exotics.and some native •trees providing for a 13' clear zone from edge of roadway. (THIS ITEM DEFERRED TO THE OCTOBER 25, 2012 MEETING.) VII. Reorganization of ARPB. A. Election of a Chairman Mr. Smith moved and Mr. Murphy seconded to elect Scott Morgan as Chairman of the Architectural Review and Planning Board. There was no discussion. All voted AYE. B. Election of a Vice Chairman Mr. Smith moved and Mr. Murphy seconded to elect Amanda Jones as Vice - Chairman of the Architectural Review and Planning Board. There was no discussion. All voted AYE. VIII. Items by Staff. There were no items by Staff. IX. Items by Board Members. There were no items by Members of the Board. X. Public. There were no public comments. XI. Adjournment. Mr. Smith moved and Mr. Murphy seconded to adjourn the meeting. There was no further discussion. All voted AYE. Chairman Morgan_,aojourned the Meeting at 10:50 A.M. 6 Administrative Assistant l MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE ARCHITECTURAL REVIEW AND PLANNING BOARD OF THE TOWN OF GULF STREAM, FLORIDA ON THURSDAY, OCTOBER 25, 2012 AT 8:30 A.M., IN THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order 8:35 A.M. II. Roll Call. Present and Participating Absent w /Notice Also Present and Participating Chairman Morgan called the Meeting to order at Scott Morgan Amanda Jones Malcolm Murphy Paul Lyons Beau Delafield Tom Smith Ann Aker William Thrasher Rita Taylor John Randolph Hope Calhoun, Esq. of Greenspoon, Marter Tom Laudani of Seaside Builders Richard Jones of Jones Architects Dave Bodker of Dave Bodker Landscape & Architecture Joe Pike of EnviroDesign Martin O'Boyle, Res. George Elmore, Res. Bill Himmelrich, Res. Lisa Morgan, Res. Ben Schrier of Affinity Architects Chairman Vice - Chairman Board Member Board Member Alt. Member sitting As Board Member Board Member Alt. Member Town Manager Town Clerk Town Attorney Rep. Applic. /Developer Tom Laudani Applic. /Developer Architect /Harbour View Landscape Architect/ Harbour View Engineer /Harbour View 2300 N. Hidden Harbour Dr. 1320 N. Ocean Blvd. N. Ocean Blvd. 1140 N. Ocean Blvd. Arch. /3333 N. Ocean Joe Peterson of Landscape Architect/ Peterson Design Prof. 3333 N. Ocean Guy Flora of GC/3333 N. Ocean Mark Timothy Construction Tom Murphy, Esq. Rep. Audrey Schwartz Audrey Schwartz, Res. 3265 N. Ocean Blvd. ?I. Minutes of the Regular Meeting and Public Hearin of 9- 27 -12. Mr. Murphy moved and Vice - Chairman Jones seconded to approve the Minutes of the Regular Meeting and Public Hearing of September 27, 2012. There was no discussion. All voted AYE. IV. Additions, withdrawals, deferr Mr. Thrasher requested to re- arrange heard as follows: Item VI.A.2.b., VI Item VI.4.a.,b.,c.,d. There were no als, arrangement of agenda items. the Public Hearing Agenda to be .A.3.b., VI.A.l.a., 2.a., 3.a., objections. Chairman Morgan noted Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 2 that Tom Murphy, Esq., is involved in Item VI.4 and has to be in court this morning. He said, depending on how the meeting goes, Mr. Murphy may be taken out of turn to make his presentation. V. Announcements. A. Meeting Dates 1. Regular Meeting & Public Hearing a. November 15, 2012 at 8:30 A.M. b. December 27, 2012 @ 8:30 A.M. c. January 24, 2013 @ 8:30 A.M. d. February 28, 2013 @ 8:30 A.M. e. March 28, 2013 @ 8:30 A.M. f. April 25, 2013 @ 8:30 A.M. Chairman Morgan noted that the November Meeting will be held early in the month and asked if anyone had a conflict. There were no conflicts with the Meeting Dates. VI. PUBLIC HEARING. Chairman Morgan asked if there was Ex -parte communication concerning any of the items being heard today. Mr. Morgan stated that he spoke with Mr. Laudani last week regarding some of the matters discussed at the previous meeting explaining why items were deferred to this meeting. There were no further declarations of Ex -parte communication. Clerk Taylor administered the Oath to the following individuals who were planning to testify during this Public Hearing: Hope Calhoun, Esq., Tom Laudani, Richard Jones, Dave Bodker, Joe Pike, Bill Himmelrich, George Elmore, Martin O'Boyle, Tom Murphy, Esq., Audrey Schwartz, Lisa Morgan, Ben Schrier, Joe Peterson and Guy Flora. Hope Calhoun, Esq., introduced herself and said she is present on behalf of the Applicant. She thanked the ARPB for their consideration and said they have gone through many drafts working with Town Staff and they believe the application has satisfied all architectural requirements. Ms. Calhoun stated that, due to possible time constraints, all testimony should be focused primarily on architectural review and then the overlay. She said issues of the plat were heard previously and are not necessarily relevant today. Ms. Calhoun requested the opportunity to re- address the Board following the presentation to respond to any questions or comments. A. Applications for Development Approval 2. An application, deferred from Public Hearing held September 27, 2012, submitted by Seaside Builders LLC as agent for Harbor View Estates LLC, owners of property located at 1220 North Ocean Boulevard, Gulf Stream, Florida, legally described as Lot 4, Hidden Harbour Estates Plat Two, a replat of Lots 4, 5 & 6, Golf Course Addition according to the plat thereof as recorded in Plat Book 15, Pages 173 & 174, Public Records of Palm Beach County, Florida. a. NORTH OCEAN BOULEVARD OVERLAY PERMIT to allow the removal of existing nuisance exotics and extensive Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 3 planting of native species and the installation of an entrance wall and gates, a portion of which is within the 50' corridor. b. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit the construction of a partial two -story Bermuda style single family dwelling, 3 car garage with bonus room above, 8,603 square feet, and a swimming pool. Richard Jones introduced himself and thanked the Board for recommending approval of Lot 3 and said it did go through the Commission and received approval. He said they received good comments from the ARPB at the last meeting relating to the Town's new ordinance addressing two -story mass and the appropriate methods of addressing the issue. Mr. Jones said the proposed 2 -story Bermuda Style structure will sit on the southeast lot. He said they addressed the issue of mass by breaking down the house into various portions interconnected by covered roofs, and they created courtyards to capture outdoor space. He said the color scheme is the traditional off -white with black shutters and white mitered roof. To address mass on the second floor, two balconies were added on the south elevation facing the private road and one on the north elevation facing another lot, all of which are a minimum of 24 SF and consistent with the two proposed balconies on the east elevation. In addition, they did overlays of the existing landscape and Mr. Jones said Dave Bodker created elevations showing the existing 15' no -cut zone landscaping as well as the proposed new landscaping, which will screen the entire south elevation of the home and provide ample screening on the north, east and west elevations as well. Mr. Jones said that Dave Bodker will review the proposed landscaping, Joe Pike will address any drainage questions, and the Developer, Tom Laudani, will any questions. Chairman Morgan asked what the distance will be from AlA to the gate and then to the house. Mr. Jones said it will be 50 feet to the gate and 9819" feet to the house. Chairman Morgan asked if the additional balconies are identical and asked for their depth. Mr. Jones said they are identical and they are 4' deep by 6' wide, 24 SF. Chairman Morgan asked if the addition of the balconies meets Code. Mr. Thrasher confirmed that saying Section 70 -73, Two - story, provides four options that can be used to break massing of the fagade and one option is the use of balconies that are a minimum of 24 SF. Dave Bodker introduced himself. He said they depicted the proposed and existing vegetation to show how all elevations will be seen from different property lines. Mr. Bodker said there are 19 existing trees along the south property line which will remain and any gaps will be filled in with Buttonwood trees or Fishtail palms, and a series of under plantings with various hedging. On the north elevation which faces the interior, they will plant tall Sable palms at higher elevations of the house and smaller trees throughout. The west elevation will also be seen from the interior and shade trees will be planted in several locations to break up the garage. The east elevation will be seen from AlA, there are a large number of existing trees along the east elevation Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 4 that will be filled in with additional plantings and there will be additional vegetation on the north side of the entrance gate to provide sufficient screening. With regard to the wall on the south elevation as you drive down Hidden Harbour Road, Mr. Lyons asked if existing vegetation will block the wall on the south elevation. Mr. Bodker said they have already planted a 5' high Buttonwood hedge along the wall which will eventually block the wall, and he said there is also hedging on the top of the wall and along the interior of the wall. George Elmore introduced himself and questioned the Minutes of the 9/27/12 ARPB Meeting where on Page 4, Paragraph 2, it says Mr. Himmelrich is happy with the drainage and there are no issues. Mr. Elmore the drainage system works, but he said there are issues if it is not properly maintained everyone in the 1300s will be flooded and it must be resolved. He said Mr. Laudani is working on it and informed him that documents were sent to his attorney, but they have not been received. Chairman Morgan noted that this was covered in the last meeting and the conclusion was that it should be brought to the Commission for further pursuit. He said Staff will make record of Mr. Elmore's comments in the Minutes of this meeting. Ms. Calhoun confirmed that documents were sent to Mr. Elmore's attorney about two weeks ago. Lisa Morgan introduced herself and said she would like to address landscape issues exclusively and asked if the Board would hear her presentation at this time or wait until after the building has been addressed. Chairman Morgan said they will address the buildings and the immediate landscape designs first. He said there is a separate application for the overlay permit with the Australian Pines, which will be addressed separately at the conclusion of the building. Mr. Thrasher said there are two actions to be taken, one of which is on Level III and the other is a portion of this property abutting N. Ocean Blvd. where there is request for the creation of a clear zone on the east side. Chairman Morgan recommended addressing all questions on building and then move into the Overlay Permit. Vice - Chairman Jones commented that she really liked the addition of the balconies, which improves all facades of the building. Martin O'Boyle introduced himself and asked if there is a requirement under the Code for positive Drainage. Mr. Thrasher said the requirement is for the individual lots and properties to retain the first 1" of runoff on their site by either positive outfall or exfiltration trenches, or a combination of both. He said Delray Engineering will be verifying that, but he said the requirement is not restrictive to just positive outfall. Mr. O'Boyle agreed saying there are two alternatives, positive outfall and retention, and asked if runoff will be retained on site. Mr. Laudani asked Mr. Pike to answer the question and Ms. Calhoun stated that Mr. Pike can answer the question generally because drainage is not before the Board today. She said drainage issues were handled with respect to the plat during a previous hearing. Chairman Morgan said much of this was covered at the last meeting, but he said it involves our Code, which relates to ARPB activity. He asked Mr. O'Boyle to make Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 5 his points so they are of record and then Mr. Pike may give a brief response; however, he said it may or may not impact the Board's decision today. Mr. O'Boyle asked Mr. Pike if the drainage required under the Code is positive or retained on site. Further, Mr. O'Boyle said there is no positive drainage, the drainage system installed is hooked into the drainage of Hidden Harbour Estates, and he said there is a declaration of record prohibiting any modification without agreement of the property owners. He expressed concern for the new homeowners who may later find out they have no rights, and he said, after what Mr. Elmore and Mr. Himmelrich experienced, he does not believe there is positive drainage and they should take a closer look. Mr. O'Boyle said the ARPB is obligated to protect homeowners and he asked if anyone present could show they have positive drainage. Mr. O'Boyle mentioned three large signs on the property between his home and the property previously owned by Mr. Wheeler property that were erected by the Developer and are prohibited. Chairman Morgan said the issue of signs should be brought to the Town Manager. He said the point raised with regard to drainage is legitimate and it should be brought before the Town Commission. Mr. Randolph said it is relevant to the ARPB that the first 1" of rainfall is retained on the property because it deals with individual lots, and he said Mr. Pike may want to address that. Mr. Pike introduced himself and said that legal positive outfall and outside retention meet the requirements of the City of Delray Beach, South Florida Water Management District (SFWMD), the Town of Gulf Stream's Engineering Consultant and two independent drainage engineers hired by the neighbors. He said there is a series of on -site collection inlets and two positive outfall pipes to the Intracoastal, which is State water. Mr. Pike said Hidden Harbour has a drainage easement, but they tied directly into the waters of the State. He said they are working on a maintenance and inspection schedule and have covered everything required by law and then some. Mr. Himmelrich introduced himself and stated that he did tell Mr. Laudani the system is working, but he said his concern is whether it will continue to work. He said there is an agreement between the neighbors and the Developer and he is concerned about the Developer honoring the agreement with regard to drainage, landscaping or any other issue. Mr. Himmelrich said he discussed this with the Town Manager and the general response is that it is not a matter of the Town, but rather a civil matter. He said he would like to go on record saying that if the Town approves any changes in the buffer it would specifically contradict the agreement the neighbors have with the Developer because the buffer is outlined with measurements. Mr. Himmelrich said he disagrees with Mr. Pike in that the drainage they installed was not set forth to the neighbors prior to installation. He said they are satisfied the system is currently working, but it was not approved as it was supposed to have been done according to the agreement. He said it may be seen as a civil matter and not a matter of the ARPB or the Commission, but it is important to know that the agreement between the neighbors and the Developer is in place. Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 6 Tom Laudani introduced himself and said he would like to address Mr. Himmelrich's comments. He said his attorneys supplied Mr. Elmore's and Mr. Himmelrich's attorney with a draft of the drainage agreement for maintenance two weeks ago. He said he signed a private maintenance agreement with Centerline Utilities for semi - annual maintenance of the system due to concerns of drains clogging with leaves, etc., and he said �- he will continue to work with Mr. Himmelrich and Mr. Elmore to satisfy their concerns of drainage system maintenance. In addition, Mr. Laudani said the signs that are in place were approved by the Town in terms of location prior to their installation. Chairman Morgan suggested moving on with the architectural review of Lot 4, and he said the next point in the application is the Town's requirement of planting Australian Pines. Mr. Thrasher asked that the Board take action on the Level III at this point due to some concerns regarding the clear zone. To clarify, Mr. Randolph asked Mr. Thrasher if he is suggesting all matters relating to the clear zone come at the end of the Agenda and that the Board vote on the Level III first. Mr. Thrasher confirmed that. Chairman Morgan said the Level III relates strictly to the architectural plan before the Board and the immediate landscaping of the structure. Mr. Lyons moved and Mr. Murphy seconded to recommend approval of Level III Architectural /Site Plan based on a finding that the proposed partial two story single family Bermuda Style dwelling, a 3 -car garage with a bonus room, a total of 8,603 SF, and a swimming pool meet the minimum intent of the Design Manual and applicable review standards with the following conditions: 1. The electric service lines shall be buried. 2. The roof shall be white (through and through) un- textured, uncoated flat cement tile. 3. Any minor modification in the landscape plan shall be submitted to the Town Manager for review and approval and any major modifications shall be brought back to the ARPB for review and approval, prior to commencement of landscaping. 4. Wall and /or fences will be measured from the lowest abutting grade with a maximum height of 8' including any lighting fixtures that may be attached. 5. All chain link fencing will be screened from neighbor's view. There was no discussion. All voted AYE. 3. An application, deferred from Public Hearing of September 27, 2012, submitted by Seaside Builders as agent for Harbor View Estates LLC, owners of property located at 1230 N. Ocean Blvd., Gulf Stream, Florida, legally described as Lot 6, Hidden Harbour Estates Plat Two, being a re -plat of Lots 4, 5 & 6, Golf Course Addition, Gulf Stream, Florida. a. NORTH OCEAN BLVD. OVERLAY PRMIT to allow removal of existing nuisance exotics providing for a 13' clear zone from the edge of roadway and extensive planting of native species and installation of a Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 7 6'high aluminum rail fence 12' west of the east property line that will be screened with landscape material. b. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit construction of an 8,857 square foot Colonial West Indies style partial two- story, single family dwelling, attached 2 car garage with 6' high walls and fences screened with landscape material around the property, and a swimming pool. Ms. Calhoun said their Architect will present the architectural features of this home and reminded the Board that all non - related issues should be considered, but that the focus remains on what is before them. She requested time to re- address the Board at the conclusion of this presentation to respond to any questions or comments. Mr. Jones said this particular home is under contract, and he described the proposed structure as a long and narrow Colonial West Indies Style, changing mass from one -story to two -story with a garage connected by a loggia and a carriage house above. He said they contacted Marty Minor of Urban Design Kilday Studios and Mr. Minor corresponded by letter with his interpretation of the Code regarding two -story mass. Mr. Jones said the Code provides options to address second -story mass, one of which allows the applicant to propose an alternative in the event the other options are not consistent with the architectural style. He said they are proposing an alternative that is consistent with the Colonial West Indies style. Mr. Jones explained that the second story will be a different color and will have a clapboard -look siding, and the roof will be a gray flat slate -look tile with mitered ridges. Mr. Jones said at the last meeting Vice - Chairman Jones commented on the half -moon window and felt it was not consistent with the architectural style, and he said they are now proposing an alternative half -moon window with a flatter arch. Mr. Jones summarized the landscape overlay saying they presented the existing 15' no -cut zone landscaping with the proposed additional landscaping. He said you will barely see the home on the north elevation, the south elevation is internal to the community and you will see a mix of landscape and architecture, and the east and west elevations are the same. Chairman Morgan said the wall along the north elevation appears to be uneven. Mr. Bodker said it is existing vegetation which is up to 18 feet high, and he said there is a gap where the drainage swale to the catch basin goes through where they are �. proposing new trees of about 20 feet high to plank the swale and to block the house. Mr. Lyons asked if the gap along the north elevation will be closed. Mr. Bodker said there is an easement there, but he said the proposed additional plantings will eventually close the gap. Chairman Morgan asked if the Board Members had questions or comments. Vice - Chairman Jones said she likes the flatter- arched design of the half -moon window. Mr. Lyons expressed concern about possible loss of existing vegetation and vegetation put in place to screen architecture in both the buffer zone and throughout individual lots. He said he would like to have something put in place to enforce replacement to Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 8 maintain the approved landscape plan. Mr. Himmelrich stated that he lives very close to the property and expressed similar concerns with regard to open spaces and gaps in the landscaping. Mr. Laudani and Mr. Bodker assured the Board and Mr. Himmelrich that there will be sufficient landscaping for screening and it will be maintained in the future. Mrs. Morgan requested that the ARPB make a specific recommendation to the Commission concerning maintenance of the buffer -- around the entire development. During this discussion concerning the protection and maintenance of existing and new vegetation both in the buffer area and throughout the property, it was suggested that a landscape agreement could be put in place or deed restrictions applied to individual lots. Mr. Randolph said he would work with the Applicant's attorney, Mark Grant, to put documentation together. Mr. Murphy moved to recommend approval of Level III Architectural /Site Plan based on a finding that the proposed partial two -story single family 8,857 SE Colonial West Indies style dwelling, attached 2 -car garage, with 6' walls and fences, screened with landscape material around the property and a swimming pool meet the minimum intent of the Design Manual and applicable review standards with the following conditions: 1. Replace the two half -moon windows as shown on the north and south elevations with the proposed alternative design as presented. 2. The electric service lines shall be buried; 3. Any minor modifications in the landscape plan shall be submitted to the Town Manager for review and approval and any major modifications shall be brought back to the ARPB for review and approval, prior to commencement of landscaping; 4. Wall and /or fences will be measured from the lowest abutting grade with a maximum height of 6' including any lighting fixtures that may be attached; 5. All chain link fencing will be screened from neighbor's view; and, 6. A recommendation to the Town Commission to set a condition through documents and provisions that the landscaping in the buffer areas as prescribed in the landscape plan is maintained. Mr. Randolph asked the Board if they are satisfied with the landscape plan as presented and that it provides the necessary buffer. Chairman Morgan and Mr. Thrasher said they are not satisfied. Chairman Morgan suggested including a recommendation of a deed restriction to the lots, to be incorporated in both the homeowners' association agreement and also in the individual property deeds, that the buffer property as defined in the landscape plan be maintained at the homeowners expense, that the lot foliage abounding each individual lot be maintained at that individual homeowners expense, and that it be subject to approval and supervision by the Town. Ms. Calhoun asked if the recommendation could be for appropriate documentation determined by Attorneys Randolph and Grant as opposed to a deed restriction. Mr. Randolph asked the Board if they are saying they approve the landscaping and want it to be maintained in the future and, if so, is the Board satisfied that the Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 9 landscaping as shown does create a screen along the road to the abutting properties. Chairman Morgan said he does not see that on the plan, but he said there is a representation that it will create the buffer and he will accept the representation and turn it over to the Town to enforce it. Mr. Randolph explained that the deed restriction would apply to the properties themselves and provide a restriction so that the purchaser would be aware of their obligation to maintain a site screen along the boundary of their property in perpetuity. Chairman Morgan said this recommendation to the Commission should apply to all the properties and all applicable landscaping and buffer zonings, not just Lot 6, and it would be the entire responsibility of the homeowners' association. Mr. Murphy asked if the ARPB could make a recommendation that the condition to maintain the landscaping is by way of documents and provisions to be determined in discussion between Attorneys Randolph and Grant. Mr. Randolph said it requires a strong recommendation to the Commission saying that their approval is subject to there being binding provisions in place that will assure the buffer will be maintained into the future. Mr. Himmelrich commented that the site screen language is important because they have already agreed to the buffer, but he said it is important that they agree to maintain what the Board is approving from the drawings, which is a full screening of 80% of the structure. Chairman Morgan asked how they could make the recommendation apply to all of the lots, since two of the lots have already been approved without it. Mr. Randolph said he would discuss the matter with Mr. Grant. Mr. Murphy amended Condition 6 to read as follows: 6. A recommendation to the Commission to set a condition by way of binding documents and provisions that the prescribed landscaping in the landscape plan be maintained in a way to be determined through Attorney Grant and the Town Attorney. Mr. Randolph said he would recommend adding the Applicant's promise that there will be a site screen of hedging or plantings that would fully screen the property. Mr. Murphy added Condition 7, as follows: 7. The site screen as detailed in the plans which were presented to the ARPB will be provided by the Developer to the best of his ability. Mr. Lyons seconded the motion. There was no further discussion. All voted AYE. Chairman Morgan asked for a motion to incorporate the conditions made on ( Lot 6 to all of the lots in the subdivision. Mr. Dela£ield moved and Mr. Murphy seconded to recommend to the Commission that the conditions imposed on Lot 6 in terms of site screening and illustrations of the landscaping will be consistent with all of the lots in the subdivision, including Lot 3, which has already been approved by the Commission, and Lot 4, of which the ARPB has recommended approval to the Commission, by way of binding documentation and restrictions imposed by the Town Commission. Mr. Randolph said the Board can make this recommendation to the Commission, but he said he does not know how enforceable it will be based on the fact that there Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 10 has already been an approval by the Commission of one of the lots. Chairman Morgan said it would be an advisory to the Commission. Mr. Randolph stated that he will be working with Mr. Grant to come up with a provision that holds the homeowners' association responsible for maintaining the buffer. There was no further discussion. All voted AYE. Chairman Morgan asked Attorney Tom Murphy to make his presentation to the Board. Mr. Murphy introduced himself and stated that he represents Audrey Schwartz who resides at 3265 N. Ocean Blvd. He said Mrs. Schwartz is looking forward to meeting her new neighbors, Mr. and Mrs. Gillman, who have purchased the property at 3333 N. Ocean Blvd. Mr. Murphy said Mrs. Schwartz has no objection to the proposed improvements on the Gillman property; however, he said it is important to her that her trees are protected during construction. He said Mrs. Schwartz would like to have her representative present when they begin removing trees and she is requesting a 30 -day notice of commencement of construction. Mr. Peterson of Peterson Design Professionals, who is the landscape architect for 3333 N. Ocean Blvd., stated that he would be happy to provide Mrs. Schwartz with 30 days notice. Chairman Morgan called for a short break at 10:15 A.M. The Public Hearing continued at 10:25 A.M. Chairman Morgan recused from this portion of the hearing because Mrs. Morgan would be making a presentation to the Board with regard to the existing canopy and buffer area of the subdivision. He turned the meeting over to Vice - Chairman Jones. Mr. Randolph asked Mr. Thrasher to give his presentation before discussion. 1. An application, deferred from Public Hearing held September 27, 2012, that was submitted by Seaside Builders LLC, as agent for Harbor View Estates, LLC owners of property located at 1229 N. Ocean Blvd., Gulf Stream, Florida, legally described as Lot 5, Hidden Harbour Estates Plat II, Replat of Golf Course Addn. Lts 9, 5 & N 92' of Lt 6, Gulf Stream, Florida. a. NORTH OCEAN BOULEVARD OVERLAY PERMIT to allow removal of existing nuisance exotics and some native trees providing for a 13' clear zone from edge of roadway. There was no application for a Level 3 Architectural Site Plan Review at this time, only consideration of the clear zone. Town Manager Thrasher explained that the Florida Department of Transportation right -of -way west of the pavement on AlA is included as a part of the North Ocean Boulevard Overlay District and as such he would like to address this area in relation to all three lots, numbers 9, 5 and 6. Mr. Thrasher displayed a survey of the entire plat and one of just the area along AlA and pointed out that the proposed 13' from the edge of pavement was shaded in red pencil. He further called attention to the fact that the west line of the 13' is almost the same as the easterly property line of the three lots. Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 11 Mr. Thrasher advised that he had asked the developer if he would be willing to clear this area of existing plant material, some of which is nuisance exotic growth, sod and install irrigation in the 13'so the Town could plant Australian Pine trees in this area. He explained that the Town had been successful in having the State declare AlA a historic and scenic highway because of the Pine canopy and a Special Act of the State Legislature had given Gulf Stream the authority to restore and extend the canopy along both sides of AlA on the right -of -way, provided they were planted beyond the clear zone. Mr. Thrasher stated that the Town has planted over 90 additional trees since the Special Acts were enacted. He pointed out that the clearing would not encroach into the landscape buffer area that the developer had provided on the private property. Lisa Morgan, the property owner south of the development, made a presentation with regard to the importance of the preservation of the natural hammock and canopy along AlA, the existing vegetation at the entrance of the subdivision and the buffer area. She said she has lived in Gulf Stream since 1996 and she supports the Australian Pines; however, she said not every project can be approved before considering the properties to be affected by removing nuisance and non- native vegetation and planting Australian Pines. Mrs. Morgan provided photos of what exists and was particularly concerned that there is very little existing vegetation to the south of the entrance of the subdivision and in the buffer area. She said taking down any of the native landscaping to make room for the Australian Pines would be a mistake. Mrs. Morgan said if it is possible to maintain the 15' buffer and plant Australian Pines in front of it, she would be all for it. She said she would hope that the ARPB would recommend to the Commission that this is not the right location to do this. Mr. Thrasher said they are not suggesting the removal of some of the large trees. He said at the request of the Town, the Developer's plan is to mitigate the trees that were native and accidentally removed. He said the DOT requirements were not as strict years ago as they are today and he said we are obligated to the 11' clear zone. Mr. Thrasher said it is true that a lot of the vegetation behind the hammock was removed, but he said there will be new plantings and screenings behind that. He said the Australian Pines do give the Town some protection with regard to the widening of the road, adding bike lanes and /or sidewalks, since they are somewhat protected by the Special Acts. Mr. O'Boyle asked if there was a requirement that none of the foliage along AlA be touched. Mr. Bodker said there is a 10' buffer. Mr. O'Boyle said Mr. Thrasher pointed out that the DOT has control over their property and he asked Mr. Thrasher why the DOT would come in now. Mr. Thrasher said there is nothing preventing them from doing what they want with property in their jurisdiction, but he said he is not implying that they are going to do that now. Several neighbors of the subdivision and Board Members expressed their concern over disturbing the vegetation along AlA in this location. Mr. Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 12 Lyons said if the community does not want this he would suggest not recommending approval. Mr. Thrasher said if this is not approved the Developer would move on. Mr. Laudani said he is more than happy to comply with the wishes of the neighbors, the Town and its residents. Clerk Taylor said that it is her understanding that a motion will be required to approve the N. Ocean Blvd. Overlay Permit with the exception of the 13' clear zone, due to the fact the Overlay District extends an additional 50' onto the private property. Mr. Lyons moved and Mr. Dela£ield seconded to recommend approval of the North Ocean Boulevard Overlay Permit excluding the 13' clear zone with regard to Lots 4, 5 and 6. Mrs. Morgan asked about a fence 12' in from the property along Hidden Harbour Rd. Clerk Taylor said the Code mandates that any walls or fences in that zoning district facing AlA must be 12 feet back, whereas along the Beachfront District walls and fences can be along the property line, but she said it meets Code. There was no further discussion. All voted AYE. Vice Chairman Jones returned the gavel to Chairman Morgan. 4. An application submitted by Benjamin Schreier, Affiniti Architects, as Agent for Doris J. Gillman, the owner of property located at 3333 N. Ocean Blvd., Gulf Stream, Florida, which is legally described as Part of Lot 5, Gulf Stream Ocean Tracts, Gulf Stream, Florida. a. NORTH OCEAN BOULEVARD OVERLAY PERMIT to remove existing landscape material and driveway, install new driveway and landscaping and constructs foot perimeter wall with entry gate within the North Ocean Boulevard Corridor. b. LAND CLEARING PERMIT to relocate /clear existing landscaping material for relocation of driveway, preparation of building site and property beautification. c. DEMOLITION PERMIT to remove existing structures. d. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit construction of a 9,036 square foot Colonial West Indies style partial 2 -stor single family dwelling, 3 car attached garage and a swimming pool. Ben Schrier introduced himself and briefly presented the project proposed for 3333 N. Ocean Blvd. He said the new structure will be 9,036 SF, it is a Colonial West Indies Style home with clapboard style siding, a gray slate tile roof and brown windows. Mr. Schrier asked for consideration of the front entry gate which was originally proposed with an elliptical element in the center and Staff was not happy with that. He said they are proposing an alternative design which is horizontal at the top, but he said that Mr. and Mrs. Gillman would still like the Board to consider the original design. Chairman Morgan asked about shutters. Mr. Schrier said there will be some white Bahama shutters. Chairman Morgan asked about the doorway on Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 13 the balcony above the entrance and asked if there was a purpose for the clumping of windows. Mr. Schrier said it will bring light into the interior. Mr. Lyons asked what the view would be from the street. Mr. Schrier said you would only see the structure as you enter through the driveway, but he said you would not see much from the street. Joe Peterson, the Landscape Architect, said there will be a 6' high privacy wall in front with trees and plantings along the wall, C, throughout the interior and against the home. He said there will be layers of shrubs in front and along the walkway, hedging along the sides and in the back and Coconut Palms around the pool and deck. Mr. Peterson said the existing Ficus hedge on the north elevation will be removed and replaced with a new Ficus, and he said the existing Sea Grapes will remain with additional plantings around them. Mr. Peterson said that very tall Sea Grapes will be planted along the side property lines for additional screening. He said there are some very overgrown Sea Grapes that will be removed and replaced with much denser Sea Grapes. Mrs. Schwartz mentioned the privacy wall they are proposing along N. Ocean Blvd. and was concerned about the column on her property line. She asked if the wall would meet her column and Mr. Peterson it would be about 4' from her column. Mr. Lyons was concerned with protecting the neighbors to the north and south during demolition and construction and he asked Mr. Peterson if they were going to remove all of their vegetation immediately. Mr. Peterson said they are only removing the cluster of Sea Grapes to the south and the existing Ficus hedge to the north. He said the neighbors to the north have a 6' high screen wall on their property. Mr. Peterson said there may be some period of time when there would be openings. Guy Flora of Mark Timothy Construction stated that he would be responsible for the property during construction. He said the Australian Pines will be removed immediately and they will install a screened privacy fence, and they will put up the privacy wall in the front as soon as possible. Chairman Morgan said Mrs. Schwartz asked for a 30 -day notice before commencement of construction and he asked Mr. Flora if he can do that. Mr. Flora said he can do that. Chairman Morgan asked Mrs. Schwartz if she had any other comments. Mrs. Schwartz said she would like them to do the screening to protect her property and her vegetation. Mr. Flora said they would install a chain link fence with a green shade for protection. Chairman Morgan asked Mr. Thrasher for Staff's analysis of the roof tile. Mr. Thrasher said it is consistent with the architectural style. Clerk Taylor noted that the neighbor to the north was by Town Hall to look at the plans and there were no objections. Mr. Lyons moved and Vice - Chairman Jones seconded to recommend approval of each of the following: Regular Meeting and Public Hearing Architectural Review and Planning Board - October 25, 2012 Page 14 North Ocean Boulevard Overlay Permit to allow the removal of existing landscape material and driveway, install new driveway and landscaping and construct a 5 foot perimeter wall with entry gate within the North Ocean Boulevard Corridor. Land Clearing Permit to relocate/ clear existing landscaping material for relocation of driveway, preparation of building site and property beautification. Demolition Permit to remove existing structures. .' Level III Architectural /Site Plan based on a finding that the proposed construction of a 9,036 SF Colonial West Indies Style partial 20story single family dwelling, 3 -car attached garage and a swimming pool meet the minimum intent of the Design Manual and applicable review standards, with the following conditions: 1. The electric service lines shall be buried. 2. Any minor modification in the landscape plan shall be submitted to the Town Manager for review and approval and any major modifications shall be brought back to the ARPB for review and approval, prior to commencement of landscaping. 3. Wall and /or fences will be measured from the lowest abutting grade with a maximum height of 6' including any lighting fixtures that may be attached. 4. All chain link fencing will be screened from neighbor's view. 5. The landscape plan will protect existing Australian pine trees and provide a 13' clear zone where possible allowing for the planting by the Town of two Australian pine trees on the north of the existing driveway entrance and up to eight on the north side of the existing driveway. 6. Change the proposed gate design to the alternate gate design that is less ornate. The agent has shown several gates along SR AlA, several of which are fronting homes classified with Mediterranean style architecture. 7. The property owner will give the neighbor to the south 30 days notice prior to commencement of construction. There was no further discussion. All voted AYE. VII. Items by Staff. There were no items by Staff. VIII. Items by Board Members. There were no items by Board Members IX. Public. There were no items by the Public. ournment. Chairman Morgan adjourned the meeting at 11:45 A.M. I Raministrative Assistant REGULAR MEETING AND PUBLIC HEARING HELD BY THE ARCHITECTURAL REVIEW AND PLANNING BOARD OF THE TOWN OF GULF STREAM, FLORIDA ON TEMSDAY, DECEMBER 27, 2012 AT 8:30 A.M., IN THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order 8:33 A.M. II. Roll Call. Present and Participating Absent w /Notice Also Present and Participating III. Minutes. Chairman Morgan called the Meeting to order at Scott Morgan Malcolm Murphy Paul Lyons George Delafield Tom Smith Amanda Jones Ann Aker William Thrasher Rita Taylor John Randolph Quinn Miklos of Miklos & Associates Greg Young Rene Tercilla of Tercilla Courtemanche Peter Carney James Boyce Chairman Board Member Board Member Alt. Member sitting As Board Member Board Member Board Member Alt. Member Town Manager Town Clerk Town Attorney Agent /Clippinger G. S. School Agent /G.S. School Arch. Agent /Kolea Agent /4001 N. Ocean OK Seahorse LLLC A. Regular Meeting & Public Hearing of 10- 25 -12. Mr. Lyons moved and Mr. Murphy seconded to approve the Minutes of the Regular Meeting and Public Hearing of October 25, 2012. There was no discussion. All voted AYE. B. Joint Meeting with Town Commission of 12- 14 -12. Mr. Murphy moved and Mr. Lyons seconded to approve the Minutes of the Joint Meeting with the Town Commission of December 14, 2012. There was no discussion. All voted AYE. IV. Additions, witk There were no changes. deferrals 'ement of agenda items. V. Announcements. A. Meeting Dates 1. Regular Meeting & Public Hearing a. January 24, 2013 @ 8:30 A.M. b. February 28, 2013 @ 8:30 A.M. c. March 28, 2013 @ 8:30 A.M. d. April 25, 2013 @ 8:30 A.M. e. May 23, 2013 @ 8:30 A.M. f. June 27, 2013 @ 8:30 A.M. Mr. Murphy asked if applications have been submitted for the January Meeting. Clerk Taylor said there will be two, possibly three Regular Meeting and Public Hearing Architectural Review and Planning Board December 27, 2012 Page 2 applications on the January Agenda. There were no conflicts in the Meeting Schedule. VI. PUBLIC HEARING. A. Applications for Development Approval Chairman Morgan asked for declarations of Ex -parte communication with regard to any of the applications being heard. Chairman Morgan said he had a telephone communications with Greg Young, who will speak on behalf of Gulf Stream School, with regard to the attendance at this meeting and to set forth the itinerary of their presentation. There were no other declarations of Ex -parte communication. Clerk Taylor administered the Oath to the following individuals: Quinn Miklos, Architect representing Clippinger; Greg Young representing Gulf Stream School; Joe Zelewski, Principal of Gulf Stream School; Rene Tercilla, Architect representing Gulf Stream School; Charles Frankel, former resident present on behalf of Gulf Stream School; Peter Carney, Agent for Kolea; and, James Boyce representing OK Seahorse LLLC, 4001 N. Ocean Blvd. 1. An application submitted by Quinn Miklos, Miklos & Asssoc. as Agent for Gerald & Sharon Clippinger, the owners of property located at 2538 Avenue Au Soleil, Gulf Stream, Florida, which is legally described as Lot 48 Place Au Soleil Subdivision. a. SPECIAL EXCEPTION to permit the extension of an existing non - conforming wall that encroaches 4.2 feet into the required 15 foot south side setback. b. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit additions consisting of bathroom, covered entry and additional living area, a net total of 716.6 square feet, to the existing one -story single family dwelling and an exterior renovation to smooth stucco with the addition of quoins on the corners. A new brick driveway will also be a part of the renovations. Quinn Miklos of Miklos & Associates introduced himself and stated that the existing structure is a brick Ranch style home consisting of 2,700 SF. He said they are proposing an addition of 1,716 SF to the existing structure and updating the style of the home to a Gulf Stream Berumda. Mr. Miklos displayed a drawing of the existing floor plan indicating the addition of square footage in both the front and rear of the home. He said the existing portion of the home was dominated by a large roof and a flying beam with the house tucked in. Mr. Miklos said in keeping with the Gulf Stream Bermuda style architecture they have created a clear center and a clearer front entry, the windows have a more symmetrical pattern and the roof will be appropriate to the neighborhood. Chairman Morgan asked if the windows will be changed. Mr. Miklos said they will be changed to a clear muttin pattern. Mr. Murphy asked if there has been feedback from neighbors. Clerk Taylor said Mr. and Mrs. Adams were in recently and had no objections and she said there has been Regular Meeting and Public Hearing Architectural Review and Planning Board December 27, 2012 Page 3 no other feedback. Mr. Miklos said he is a neighbor and has no objection. He said the neighbors are excited when there is any improvement to properties. Chairman Morgan asked Mr. Miklos to address the requested Special Exception. Mr. Miklos said the Special Exception is for the addition of square footage which will extend an existing non- conforming wall to accommodate a new master bath. Mr. Lyons commented that it is a positive change. Mr. Murphy moved and Mr. Dela£ield seconded to recommend approval for a Special Exception to permit the extension of an existing non - conforming wall that encroaches 4.2' into the required 15' south side setback. There was no discussion. All voted AYE. Mr. Murphy moved and Mr. Delafield seconded to recommend approval of a Level III Architectural /Site Plan based on a finding that the proposed addition consisting of 776.4 SF, bathroom, covered entry and additional living area patio to the existing one -story single family dwelling and an exterior renovation to smooth stucco with the addition of quoins on the corners and a new brick driveway meets the minimum intent of the Design Manual and applicable review standards. There was no discussion. All voted AYE. 2. An Application submitted by Rene Tercilla, Tercilla Courtemanche Architects, Inc. as agent for The Gulf Stream School Foundation, Inc., owners of property located at 3600 Gulf Stream Road, Gulf Stream, Florida, legally described as a parcel of land lying in Section 3, Township 46 South, Range 43 East, Palm Beach County, Florida. a. VARIANCE #1 to allow an increase in total floor area that will exceed the 61,737 square feet allowed in the existing Developer's Agreement by 1,617 square feet. b. VARIANCE #2 to permit an increase of 1,765 square feet over the 6,000 square feet permitted for the second floor area in the existing Developer's Agreement. C. DEMOLITION to demolish the existing one story pavilion consisting of 1,681 square feet. d. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to replace and enlarge the first floor pavilion and add three second floor classrooms, an interior corridor and an exterior covered walkway and stairs, a total of 4,1875 square feet. Clerk Taylor corrected an error in the Variance #2 description on the Agenda. She said rather than an increase of 11,765 SF, it is an increase of 1,765 SF. Greg Young, representing Gulf Stream School, asked Mr. Randolph if the error occurred on information distributed for Public Notice or if it is incorrect on the Agenda only. Mr. Randolph said it did not go out in the Public Notice. Clerk Taylor said the error is on the Agenda only and not on the Staff Report. Greg Young, an Attorney with the Law Firm of Edwards, Robin and Palmer, introduced himself saying he represents Gulf Stream School. Mr. Young said he is President and Board Chairman for Gulf Stream School and a Regular Meeting and Public Hearing Architectural Review and Planning Board December 27, 2012 Page 4 parent of five children who have attended, or are attending, Gulf Stream School. He introduced Joe Zelewski, the head of Gulf Stream School, Rene Trecilla, a principal of Trecilla Courtemanche Architects, and Charles Frankel, a former Gulf Stream resident and former member of the ARPB. Mr. Young said Gulf Stream School, who will celebrate their 75th Anniversary next year, is a member of the National Association of Independent Schools in Washington, DC and accredited by the Florida Council of Independent Schools and Florida Kindergarten Council. He said the School operates on a No Debt Policy, they will not begin construction before paying for it, and they look forward to fundraising around it. Mr. Young said 29 families in Gulf Stream have children that attend Gulf Stream School, his family included, and they are in favor of the application before the Board. Mr. Young said the land use and zoning considerations start with the fact that the school is grandfathered non - conforming within the Town based on its location in the RS -0 district, which is residential. He said Section 70 -50 of the Town's Code requires approvals for new construction, and he said there is a Developer's Agreement in place which caps the student head count at 250 and includes one -story and two - story building envelopes. He said they are not asking for an increase in enrollment and do not seek to alter the building envelopes. Mr. Young said the School approached their maximum enrollment number capped by the Town in the last seven years, but he said there is a dire need for three additional classrooms because they have had to double up in some classes in each grade level due to inadequate space. Teachers are switching classrooms and teaching in the Library and other inadequate teaching environments. Mr. Young said he is confident their application meets all variance criteria and Town Code, and he said their Architect, Rene Tercilla, will discuss their proposal and answer any questions. Rene Tercilla of Tercilla Courtemanche Architects introduced himself. He said they have done over $1 billion in educational work over the past ten years and he said in the last five to seven years teaching has become more individualized in K -12 schools. Teachers are covering the same subject at different grade levels and it creates the need for more classrooms and teaching space. Mr. Tercilla displayed a drawing of the current site, pointing out the current 1 -story open pavilion which is adjacent to the 2 -story Media Center where the Library is located, and referred to a line along the Pavilion area. He said the second level of the Developer's Agreement refers to that area and states that a second story addition is only allowed 120 feet from every property line, and he said the plans as submitted are within the Developer's Agreement area. Mr. Tercilla said what they are proposing is to take down the current pavilion, replace it with a slightly larger open -air pavilion and add a second story with an open balcony to accommodate three additional classrooms. He said the stair tower in the existing two -story Media Center will come down to be able to push the pavilion to the Media Center and the stair tower will be replaced at the end of the building. Mr. Tercilla displayed various elevations indicating the little bit of the new addition that can be seen from the front of the School property. Regular Meeting and Public Hearing Architectural Review and Planning Board December 27, 2012 Page 5 He displayed the west elevation where the second -story addition will be visible and pointed out that the roof is lower and the massing is less than the existing two -story structure. Mr. Tercilla noted that during construction, all work vehicles will be parked on site. Mr. Lyons asked about feedback from the neighbors who may be impacted by the addition. Mr. Young said they met with Tom Stanley who lives on Oleander directly to the south, and he said the School owns the property across from Mr. Stanley. He said he has not spoken to the O'Briens, who are adjacent to the School, and they have not spoken to the family on Banyan who is from Connecticut, but he said there have been no objections from the surrounding neighbors. Mr. Delafield asked about the timing of the construction and how the School will address it from a safety perspective. Mr. Tercilla said 65% of his projects are on active campuses, but he said there is never a good time for construction on a school property. He said their intention is to begin at the start of Spring Break and the entire construction area will be fenced off so that students will not be exposed to that area when they return to class. Mr. Young said there will be no activity on the playing field during construction. In addition, he said that not only will the contractors be required to register with the Town, the School will also require vendors to certify their workers. Mr. Lyons inquired about the School's No Debt Policy and asked if the School will have capital committed prior to commencement of construction. Mr. Young explained that the School has no debt, they have cash on hand that will pay for about 50% of the structure, a healthy endowment for Pre -K through 8th Grade of $8 million and, although they do not want to draw on it, they have $2 million in reserves. He said pledges will add to their funds and they will fundraise in a fairly aggressive manner around this project. Mr. Lyons commented that he thinks this improvement will be great for the community. Chairman Morgan said the Developer's Agreement establishes the legal issue and sets forth a total allowable floor area and a total allowable 2nd floor area. He said the 2nd floor area seems to be a fairly significant increase over the Developer's Agreement of about 29 %, but he said it is only a couple percent over the total allowable 2nd floor square footage. Mr. Tercilla explained that the total increase is reduced by taking down the pavilion which is a first floor issue, and he is taking down a stair tower at the Media Center which is a first and second floor issue of the current building. Chairman Morgan said in keeping with the Developer's Agreement to provide for the better needs of the students, it seems the School currently has some safety issues with children moving from class to class, teachers having to relocate from class to class and in using rooms such as the Library for teaching purposes rather than Library purposes. Mr. Young said the Library is also used for 24 class instructions and study halls per week, Auxiliary Meetings, Parent Coffees, Teachers' Meetings and Board of Trustees Meetings. He said Regular Meeting and Public Hearing Architectural Review and Planning Board December 27, 2012 Page 6 computer labs and science labs are also being used for other class instruction. Mr. Young said there is great need for additional classroom space and also for a Learning Specialist, and he said by relocating the kitchen facility to the first floor of the new pavilion, it will create space to accommodate a learning specialist. Chairman Morgan commented that the School is taking a very reasonable approach to their needs. c- Chairman Morgan asked if the recommended conditions of approval are currently included in the Developer's Agreement. Mr. Thrasher said the 2 "d sentence of Condition 1, which requires a yearly certification of enrollment be provided to the Town, and Conditions 4 and 5 are not included, Condition 6 was included in the 2002 Amendment to the Developer's Agreement, and he recommended adding Condition 7 requiring that the Developer's Agreement be amended to incorporate these conditions. He asked Mr. Young about the plan to require certification of construction workers. Mr. Young said there is no formal policy in place, but they want all workers entering campus to be certified that they are not on a sex offender list or any other alert list. Mr. Tercilla said he would recommend that the School follow the State of Florida and require the Jessica Lundsford Act reviews of all workers, which is a Level III background check of every worker entering the campus. Chairman Morgan asked Mr. Young if he wanted to comment on the conditions of approval set forth in the Staff Report. Mr. Young said he had no comments concerning the six conditions listed in the Staff Report; however, he asked about the 7th condition which was recommended by the Town Manager. Mr. Randolph said it is just saying that the six conditions and terms of approval be incorporated within an amended Developer's Agreement. Mr. Young had no objection to Condition 7. There were no comments by the Public. Mr. Murphy moved and Mr. Delafield seconded to recommend approval of a Variance to allow an increase in total floor area that will exceed the 61,737 SF allowed in the existing Developer's Agreement by 1,617 SF. There was no discussion. All voted AYE. Mr. Murphy moved and Mr. Lyons seconded to recommend approval of a Variance to permit an increase of 1,765 SF over the 6,000 SF permitted for the second floor area in the existing Developer's Agreement. There was no discussion. All voted AYE. Mr. Murphy moved and Mr. Delafield seconded to recommend approval of demolition of the existing one -story pavilion consisting of 1.681 SF. There was no discussion. All voted AYE. Mr. Murphy moved and Mr. Lyons seconded to recommend approval of a Level III Architectural /Site Plan to replace and enlarge the first floor pavilion and add three second floor classrooms, an interior corridor and an exterior covered walkway and stairs, a total of 4,875 SF, with the following conditions: Regular Meeting and Public Hearing Architectural Review and Planning Board December 27, 2012 Page 7 1. The student enrollment shall be permanently capped at 250, as limited by the existing Developer's Agreement. A yearly certification of the enrollment shall be provided the Town; 2. No additional after -hours functions shall be held at the School other than those allowed by the existing Developer's Agreement; 3. The private school campus shall not be expanded onto existing C single- family lots, as dictated by RS -C and RS -0 zoning district use regulations; 4. A Construction Traffic Management Plan shall be submitted prior to the issuance of a building permit application. This plan shall be reviewed and approved by the Police Chief; 5. The School shall reimburse the Town for all Town legal fees and Town advertising associated with this application; 6. The School is respectfully requested to dedicate a 9' utility easement across the entire frontage of AlA to be used exclusively for future undergrounding of power, phone and utility lines. (A long -term Town goal.); and, 7. The above - listed Conditions and figures set forth in the Variance approvals shall be incorporated into an Amended Developer's Agreement. Mr. Young asked Mr. Thrasher if the amount of legal fees have been established. Mr. Thrasher said he does not have an estimate on legal fees, but he recommended that they are not to exceed $5,000. Mr. Young had no objection. Condition #5 was amended to read: 5. The School shall reimburse the Town for all Town legal fees associated with this application, in an amount not to exceed $5,000, and for all Town advertising costs associated with this application. There was no further discussion. All voted AYE. 3. An application submitted by Peter Carney as agent for James and Beverly Kolea, owners of property located at 960 Orchid Lane, Gulf Stream, Florida, legally described as Lot 83, Place Au Soleil Subdivision, Gulf Stream, Florida. a. LEVEL 2 ARCHITECTURAL /SITE PLAN REVIEW to construct a rear portico and a new front entrance to the existing one - story, single family Bermuda /British Colonial style dwelling, additions of 403 square feet. Peter Carney of Carney, Stanton in Delray Beach, Florida, introduced himself as Agent for James and Beverly Kolea. He said there have been two previous constructions on this home, one in 1963 and the last in 1985. Mr. Carney said most of the proposed work will be interior and they are proposing the addition of a rear portico to protect from direct sun and the addition of a new front entrance to their home. Mr. Lyons asked about the recommended condition of approval concerning Health Department requirements. Mr. Thrasher said sometimes the Health Department requires additional sizing on the septic tank and drain field, which at times can only be met by modifying the site plan. Mr. Carney said they are not adding a kitchen or bathroom and it is doubtful there will be an issue since they are only providing shade. Mr. Regular Meeting and Architectural Review December 27, 2012 Public Hearing and Planning Board Page 8 Thrasher agreed. Chairman Morgan asked if they will be changing windows. Mr. Carney said they will not change them, only replace with impact. Mr. Lyons moved and Mr. Delafield seconded to approve a Level II Architectural /Site Plan based on a finding that the proposed rear portico and a new front entrance to the existing one - story, single - family Bermuda /British Colonial style dwelling, net additions of 403 SF meet the minimum intent of the Design Manual and applicable review standards with the following conditions: 1. If the proposed site plan is altered because of the requirements of the Health Department a revised site plan will require ARPB approval. There was no discussion. All voted AYE. 4. An application submitted by James Boyce of OK Seahorse LLLP as agent for OK Seahorse LLLP, owners of the property located at 4001 N. Ocean Blvd., Gulf Stream Florida, which is legally described in metes and bounds in Sec. 34, Township 45 South, Range 43 East in Palm Beach County. a. DEMOLITION PERMIT to demolish the existing southern most dune crossover. b. SPECIAL EXCEPTION to permit the relocation and reconstruction of the existing southern most dune crossover to a location that is 15 feet north of the south property line at the above address C. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to rebuild the southern most dune crossover in a new location that is 15 feet north of the south property line of 4001 N. Ocean Blvd. that will be the same size as the existing structure. James Boyce, representing the owner of OK Seahorse, LLLP at 4001 N. Ocean Boulevard, introduced himself. He said there are two existing beach access crossover ramps on the property, both in need of repair, and he said they are proposing to move the existing southern ramp about 28 feet to the south. Mr. Boyce explained that the purpose of doing this is because of the five new villas that will be located across the street from 4001 N. Ocean that will be allowed beach access and this will make access easier for those residents. He said this has already been approved by the Department of Environmental Protection, they want to maintain the existing Sea Grapes and the will be able to do so with this relocation of the dune crossover. Mr. Boyce said it will look similar to the crossover to be demolished, it will be taken away from the site line and hidden by the Sea Grapes and it will be done before turtle nesting season. Mr. Delafield moved and Mr. Lyons seconded to recommend approval of a Demolition Permit. There was no discussion. All voted AYE. Mr. Delafield moved and Mr. Murphy seconded to recommend approval of a Special Exception to permit construction of a dune crossover east of the Coastal Construction Control Line 1978 based on the finding that the dune crossover meets the minimum intent of the Design Manual and applicable review standards. There was no discussion. All voted AYE. Mr. Delafield moved and Mr. Murphy seconded to recommend approval of a Regular Meeting and Public Hearing Architectural Review and Planning Board December 27, 2012 Page 9 Level III Architectural /Site Plan to permit construction of a dune crossover structure seaward of the Coastal Construction Control Line 1978 based on the finding that the dune crossover meets the minimum intent of the Design Manual and applicable review standards. There was no discussion. All voted AYE. VII. Items by Staff. There were no items by Staff. VIII. Items by Board Members. There were no items by Members of the Board. IX. Public. Martin O'Boyle of 23 Hidden Harbour Drive introduced himself, his son Jonathan and Brien Whitmore, an employee in his office. He said he has some questions concerning the Code because is upgrading his home and wants to do it right. Mr. Whitmore referred to Section 66- 131(4) dealing with setbacks and requirements to extend or enlarge a non- conforming structure and asked what would qualify as-an extension of a non - conforming structure. For example, he asked if it would be considered an extension if you build under an awning or roofed area. Mr. Randolph said this portion of the Meeting is for Public comment with regard to the Meeting. He said the Town Manager is the Official who is authorized to review pre - application proposals and interpret the Code. Chairman Morgan said the ARPB would be presented with applications for approval that have been previously reviewed by the Town Manager. Mr. O'Boyle said he has already addressed this with Mr. Thrasher and does not believe he can answer his questions. Chairman Morgan suggested that he meet with Mr. Thrasher to go over his proposal, and he said if Mr. Thrasher has difficulty answering your questions he will seek guidance from the Town's Consultant. Mr. O'Boyle explained that he cannot get hurricane insurance and they are trying to install hurricane impact windows prior to Hurricane Season. He said if he cannot get this done in time and incurs any damage to his home due to a storm, he will hold this Board responsible. Mr. Randolph stated that Mr. O'Boyle has a meeting scheduled with Mr. Thrasher at 2:00 P.M. this date. Mr. O'Boyle confirmed that, but he said there is a process which can take months and Hurricane Season is quickly approaching. ournment Chairman Morgan adjourned the Meeting at 9:45 A.M. uaii u. Aboale Administrative Assistant MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE ARCHITECTURAL REVIEW AND PLANNING BOARD OF THE TOWN OF GULF STREAM, FLORIDA ON THURSDAY, FEBRUARY 28, 2013 AT 8:30 A.M., IN THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order. Chairman Morgan called the Meeting to order at 8:30 A.M. II. Roll Call. Present and Participating Absent w /Notice Also Present and Participating III. Minutes Mr. Lyons move Regular Meeting All voted AYE. Scott Morgan Tom Smith Paul Lyons Malcolm Murphy George Delafield Amanda Jones Ann Aker William Thrasher Rita Taylor John Randolph Bernard and Stephanie Molyneux Hilel Presser of 2745 Ave Au Soleil Martin O'Boyle Charles Siemon, Esq. Siemon & Larson P.A. Robert Currie, Arch. Currie, Sowards & Aguila Architects Bill Ring, Esq., of Commerce Group, Inc. Mark Marsh of Digby, Bridges, Marsh & Assoc Chairman Board Member Board Member Board Member Alternate Member Vice - Chairman Alternate Member Town Manager Town Clerk Town Attorney Applicant /915 Emerald For Molyneux Applic /23 Hidden Harbour Dr. Rep. Martin O'Boyle Rep. Martin O'Boyle Agent /O'Boyle Agent /Julien & Grumney of the Regular Meeting and Public Hearin of 1- 24 -13. d and Mr. Murphy seconded to approve the Minutes of the and Public Hearing of 1/24/13. There was no discussion. IV. Additions, withdrawals, deferrals arrangement of agenda items. There were no changes. V. Announcements. A. Meeting Dates 1. Regular Meeting & Public Hearing a. March 28, 2013 @ 8:30 A.M. b. April 25, 2013 @ 8:30 A.M. c. May 23, 2013 @ 8:30 A.M. d. June 27, 2013 @ 8:30 A.M. e. July 25, 2013 @ 8:30 A.M. f. August 2013 -No Meeting Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 2 Chairman Morgan noted the Meeting Schedule and asked if there were any conflicts. Mr. Lyons stated that he would not be available for the March 28th Regular Meeting and Public Hearing. There were no other conflicts. VI. PUBLIC HEARING. A. Applications for Development Approval Chairman Morgan asked for declarations of Ex -parte communication for any �. of the applications being heard. There were none. Clerk Taylor administered the Oath to the following: Bernard Molyneux, Stephanie Molyneux, Hilel Presser, Martin O'Boyle, William Ring, Esq., Charles Siemon, Esq., Robert Currie, Arch., Mark Marsh, Arch. 1. An application submitted by Bernard and Stephanie Molyneux, owners of the property located at 915 Emerald Row, Gulf Stream, Florida, which is legally described as Lot 64, Place Au Soleil Subdivision, Gulf Stream, Florida a. VARIANCE to allow a roof replacement on an existing Gulf Stream Bermuda style, single family, one story dwelling, of a color and material that do not conform to the provisions of Sections 70 -107 and 70 -238 of the Gulf Stream Zoning Code. b. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit the installation of a brown, flat cement tile roof, replacing the existing wood shake roof, on an existing Gulf Stream Bermuda style, single family, one story dwelling Bernard Molyneux of 915 Emerald Row stated that he would like to change his roof from shaker to flat cement tile and is asking for a variance to allow a brown tile which is similar in color to the existing shaker. He said the original home had a brown shaker roof, it was later replaced with brown shaker, and now he would like a flat cement tile of a similar brown color, which is characteristic to the style of the home. The Board Members were shown a tile sample. Chairman Morgan said the Town worked very hard on Code changes relating to roof material and color. He said he personally likes the idea of the shake look, but brown cement tile is directly prohibited. Chairman Morgan said the ultimate decision is with the Commission, and he suggested that maybe the approach should be that the shake -look of the brown tile is an integral design element to the structure. Mr. Smith asked if any precedent was set in the past allowing the original roof color to remain if replaced with another material. Mr. Thrasher said to his knowledge there is no g precedent. Mr. Lyons asked if the applicant could replace his roof with a shake roof. Mr. Thrasher confirmed that. Mr. Molyneux said there is nothing wrong with his roof, but it is difficult to get insurance on a wood shake roof. He said he had three estimates and they have either refused coverage or quoted a very high rate. Mr. Molyneux said he changed his windows and garage door to hurricane resistant as suggested by insurance carriers, but he cannot get insurance without improving the roof. He said he would like to replace the roof with a similar - colored cement tile. Mr. Molyneux said Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 3 another reason for replacing the roof is that it is 15 years old, and he said he has an engineer's report stating that cement tile will hold up better in a storm. Hilel Presser of 2745 Avenue Au Soleil, a neighbor of Mr. Molyneux, was present to lend his support and to encourage the Board to approve the request. Mr. Molyneux said his neighbors have no objections and may send letters of support to the Town. Chairman Morgan said the Kubrickys, who are adjacent to Mr. Molyneux, sent a letter in his support. Clerk Taylor said there have been no objections from �. neighbors and no other letters have been received. Mr. Lyons asked about other wood shake roofs in the neighborhood. Mr. Molyneux said there are three or four others. Mr. Thrasher said he likes the roof tile, but believes a variance is required, and he said at least one of the eight standards have not been met. He said in Standard #2 it states "The special conditions and circumstances do not result from the action of the applicant," but he said based on what we have heard, they do result from the applicant. In addition, he said Standard #3 states "Granting the variance requested will not confer on the applicant any special privilege that is denied by this Code to other lands, buildings, or structures in the same zoning district." Chairman Morgan said he also reviewed the Standards and was trying to find a basis on which to recommend approval. Mr. Lyons asked if a refusal of insurance would be considered a hardship. Mr. Thrasher said the Code is more strict with white cement thru and thru groove, non - textured, non - coated being added, but he said white thru and thru was always preferred and required. He said the applicant can purchase a concrete roof material of a color that meets Code and he would be able to get insurance and, therefore, as it relates to insurance it is not considered a hardship. Mr. Molyneux said there are two roofs across the canal from him that are brown and were done recently. Mr. Thrasher said if the architectural style of a home is determined to be something other than Bermuda, there is more flexibility relating to color in our Code. Mediterranean and Other Various styles would have more flexibility with color. Chairman Morgan said the Board is sympathetic with their position, but their hands are tied. He said he would encourage them present their position to the Commission. Mr. Smith moved and Mr. Lyons seconded to recommend denial of a variance based on a finding that the proposed brown /tan concrete roof material is ( prohibited by Gulf Stream Zoning Code Sections 70 -107 and 70 -238. Additionally, none of the required eight (8) Standards for granting a variance have been met as defined in Section 66 -154. There was no discussion. All voted AYE. Mr. Smith moved and Mr. Lyons seconded to recommend denial of Level III Architectural /Site Plan based on the finding that the proposed brown /tan roof material is prohibited by Gulf Stream Zoning Code Sections 70 -107 and 70 -238, and none of the required eight (8) standards for granting a variance have been met as defined in Section 66 -154. There was no discussion. All voted AYE. Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 4 Mr. Randolph asked if there was any sympathy on the part of the Board tc recommending that the Town Commission look at an amendment to the Code to create an exception where a roof color that has been in existence would be allowed to remain if replaced with a tile roof. Chairman Morgan, Mr. Smith, Mr. Murphy, Mr. Lyons and Mr. Delafield were in agreement and sympathetic to what the Molyneuxs are going through, particularly with the hardship they face on the insurance issue. Chairman Morgan said the color of the tile is attractive and appropriate �..' to their home, and he said because it is a design element of the existing structure, Code Section 70 -107 may allow the Commission to approve an exception under these limited circumstances. Mr. Randolph asked if the Board would like to move the recommendation to the Commission. Mr. Lyons moved and Mr. Murphy seconded to recommend that the Commission look at an amendment to the Code, or approve an exception, where a certain roof color, which has been in existence, can remain if replaced with a tile roof of the same color. There was no discussion. All voted AYE. 2. An application submitted by William Ring, Commerce Group, Inc. as agent for Martin O'Boyle, owner of property located at 23 Hidden Harbour Dr., Gulf Stream, Florida, legally described as Lot 5, Hidden Harbour Estates, Gulf Stream, Florida. a. VARIANCE #1 to allow a net addition 109 square feet to the front entry feature of the existing non- conforming two -story single family dwelling that currently exceeds the maximum permitted floor area ratio by 2,589 square feet. b. VARIANCE #2 to permit the first -story eave height of the proposed entry feature to exceed the maximum discouraged height of 12.5 feet by 2.5 feet to the architectural element. C. VARIANCE #3 to permit the second -story eave height of the proposed entry feature to exceed the maximum discouraged height of 23 feet by 2 feet. d. VARIANCE #4 to permit an additional 2 foot encroachment beyond the existing 9 foot 8 inch front setback encroachment. e. DEMOLITION PERMIT to remove 229 square feet of gross floor area. f. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit an addition for a cumulative increase of 109 square feet to an existing 8,001 square foot, non - conforming, Spanish Mediterranean Revival, two -story single family dwelling. Charles Siemon of Siemon & Larsen, P.A. in Boca Raton, introduced himself and stated that he is a Land Use Planner and Land Use Attorney. He said some expert testimony is appropriate for this matter and he offered his resume into the record. Mr. Siemon's resume will be filed in the Official Records of the Town of Gulf Stream. Mr. Siemon said he will present the applicant's position, but he said it is a difficult and complex set of facts, and he said whether his Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 5 applicant qualifies for a variance, or if a variance is even necessary, requires the interpretation of the Town Code. He said the issues are judged by legal principles and architectural design. Mr. Siemon said the Board has been given a recommendation that draws conclusions or interpretations of the Code that are not consistent with legal principals or architectural design. He added that Staff analysis is also devoid of the principles that guide the interpretation of the Code. Mr. Siemon said the purpose and intent of the Town's variance provision includes two separate concepts that are separated by the word "or," which is alternative. He said he believes the proper reading of the Code is: "Variance are deviations from the terms of this Code that would not be contrary to the public interest when owing to special circumstances or conditions, or when the literal enforcement of the provisions would result in an undue hardship." Mr. Siemon said he believes the law requires that it be read disjunctively, that there are two circumstances under which variances are authorized by this Code. Mr. Siemon said the following: There are numerous cases in the State of Florida where the State has interpreted the word "or" to mean that they are disjunctive. That leads to analyzing each of the set standards and the eight standards do not apply to every variance application. Two of them are about uses and have nothing to do with this matter. This is a non - conforming structure made non - conforming by the adoption of the Gulf Stream Design Manual in 1995 through no fault of the owner. Mr. O'Boyle built the house in 1983 and complied with all requirements and it is a lawfully non - conforming structure that he can maintain as is, but it has lived out its usefulness as a design in the community and their attempts to upgrade are being frustrated by an inaccurate interpretation of the Code. Chairman Morgan asked for the citation of the variance section. Mr. Siemon said the purpose and intent is in 66 -150. A series of standards are in 66 -154, and he said the special circumstances would apply here. He said the home is significantly non - conforming and, with the changes in setbacks, if this property did not have a home on it you could not build on it. Mr. Siemon said he understands that the Town made a decision to set up guidelines to control future development in the community, but he said when there is a major change you look for ways to deal with existing structures that are not consistent with new regulations and recommend a provision allowing improvement by complying with the maximum extent practical with the requirements of the new design regulations. Mr. Siemon said the area of improvement is the fagade of the home facing the private lane. It has a very ordinary character unique to the community and they would like to upgrade from the long horizontal look and create architectural interest by building a tower at the entrance and replace all windows and redo the building. He said he believes a variance is not required for the entry feature and that staff has applied the wrong provision of the Code. If it does apply, a variance is supposed to allow deviations from the Code that is in the spirit and intent of the regulations which are non - conforming as long as they are Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 6 harmonious. Mr. Siemon said this is not a hardship created by the applicant, it comes from the Code and everything is non- conforming. This is a special circumstance where they are applying for a minimum amount of change. He said the real issue is the tower, which is intended to mitigate the horizontal character of the design, and leaving the existing condition rather than improving it in a modest way is not consistent with the Design Manual. Granting the variance will be in harmony with the general intent and purpose of the Code and not detrimental to the public welfare. The property owner, his neighbors and the Town will benefit. Mr. Siemon referred to a drawing of the proposed entry feature and he said Staff believes the feature violates the eave height provisions of the design manual, but he said the overall height of the structure, which is 30 feet, meets Code. He said the structure is covered, but there is no floor, it is clear from the top of the step to the top of the structure inside, and there are no windows, just arches. It is an entryway that provides vertical character to the horizontal look of the home. Mr. Siemon referred to a drawing of a tower with a flat roof, no second - story eave, saying that particular design is permitted by Code, which he indicated was on Page A2.01 of their presentation documents. He said this is where an architect's expertise should be included in evaluating what is an eave and what violates Code. Mr. Siemon said an eave is part of a roof, and the area of the structure staff calls a first story roof is not a roof, it is a cornice line, or a decorative treatment. Without the cornice line it is not consistent with the intent of the overall design of the design manual. He said the proposed entry feature does not have a second story and it complies with the height limit. Mr. Siemon said if you look at the definition of "story" and the definition of "floor" in the Code, what the applicant is proposing is not a second story, it is an entry feature and both the height of the entry feature, which is 301, and the eave height, satisfies the Code. He said it is not a second story because you cannot get to the top, there are no stairs, only air, and he said there is a provision in the Code addressing that. Mr. Siemon said the design manual uses FAR as a surrogate for regulating the volume of the building. The Code says if you have a covered space that exceeds 151, you have to double in calculating the floor area. He said the entry feature is outside of the building and it is not a porch area and, therefore, you do not have to calculate floor area. Mr. Siemon said there is an entry feature provision in Subsection 70- 100. Roof and eave heights. (a) Generally (4), which is difficult to understand and apply. He said, "I think it is understood that it is a different kind of feature from a one -story portion of the residence and a two -story portion of the residence, which are these lines right here and right here." Mr. Thrasher asked Mr. Siemon to clarify and said, "could you tell me again, you made the statement that variance is required because of square footage, and only because of this thing. Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 7 What is this thing ?" Mr. Sieman said it is the entry feature which replaces the existing entrance. Mr. Siemon said there is a provision in the Code addressing modifications of existing structures and provides that the height from the base building can vary to the extent necessary to identify the entranceway to make it more monumental. Mr. Siemon displayed a photo of the Gulf Stream Town Hall, which he said reflects the architectural principle they are trying to achieve with the proposed tower, or entry feature. He said it will be an improvement over the existing condition, the applicant built the home himself, he built it to Code, it is his principal residence, and it is a lawful non- conforming structure. Mr. Siemon said he did not care whether or not a variance is required, or granted to make this clear, but he does care about the recognition that the intent of the design manual is met here. Mr. Siemon displayed a survey of the property and said there is a provision in the design code that excludes certain portions of a property in calculating the floor area, and that includes any property separated by a public or private road. He pointed out the private road indicated in green at the top of survey, which is dated November 21, 1994. Mr. Siemon offered the survey into the record. The survey will be filed in the Official Records of the Town of Gulf Stream. Mr. Siemon said, I am now talking about this small deviation of adding space, if you interpret this as floor area, and I believe there is a reason not to, the double counting of what is not floor area because it is more than 16' under this area, that goes away, and then the fact that more than 50% of this property is not counted in the effective floor area -land area, this lot is 39,000 plus feet, the water is excluded, the road is excluded, the 10' buffer is excluded and this is what is left. This lot and its unique configuration was not considered in the Code interpretation. Chairman Morgan asked Mr. Siemon if his analysis is leading up to addressing the setback change. Mr. Siemon said he is only addressing the application of the Code and that Mr. Currie and Mr. Ring will address the setback issue. Mr. Siemon said in Section 70 -100, the sub - categories of height are one story homes and two story homes, and he said all of the eave height regulations apply only to the two story portions and the only one that doesn't is the 30' height limit which is found in the negative in the prohibited section and what it says is that for two story portions greater than the following, the north south district, 301, you can't go beyond that, that's what the prohibited says, and by definition that means 30' is this and I believe Staff has acknowledged that this part of it is conforming and it is only this eave and while that eave is a part of a roof I would submit to you that it is not a two story portion of the building. He said he believes it is consistent with the intent and purpose and language of the Code. Robert Currie of Currie, Sowards, Aquila Architects, Project Architect, introduced himself and said in his 44 years as an architect he designed a number of homes in Gulf Stream that have won architectural awards. Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 8 Mr. Currie said, as Mr. Siemon explained, they are trying to apply a vertical element in the horizontal scheme of this home to make it more characteristic of Gulf Stream and to make the entry feature more appropriate than the existing entry. He explained that they will cut the lanai area back into the setback and add only a couple of feet in the front to capture the two roofs that come out on the side, which is almost equal to what they will cut away. Mr. Currie said the Code provides that when you take something off you can only count half and C when you add you have to count the full amount. He said they are not adding more physical space and they are reducing the physical setback. Mr. Thrasher asked Mr. Currie to display the lanai area. Mr. Currie said it is on Page A3.01 of their presentation documents. With regard to the tower, Mr. Currie said the height is in compliance with Code, but he said if they brought the eave down to the 22' where it would comply, it would have a smashed appearance. He said an eave is the underside of a roof overhang, but he said this is a cornice, it is a much better design and it improves the look of the home. Chairman Morgan asked Mr. Currie to confirm that the drawing he is referring to is on Page A2.01. Mr. Currie confirmed that. Mr. Smith referred to the new 8' open air area and asked if it just went up like a shaft and if there were any windows on the inside of the home located behind that area. Mr. Currie said there are windows now, but they will be closed off and there will be no access from the physical structure to the tower. Mr. Lyons said it does look like a tower and he likes the other version better because it is more subtle. He asked if there was another design that did not stick out as much. Mr. Currie said the graphic is deceiving because of the coloring. Chairman Morgan said it could be the mass of the feature, and he asked if they could design a smaller and more diminutive feature that would not raise the potential for variance issues. Mr. Currie said the problem with bringing down the height is how it intersects with the existing roof and it would look like a mistake. He brought the drawing to the dais in front of Chairman Morgan to explain. Chairman Morgan asked Mr. Currie about the setback. Mr. Currie said the setback is a consequence of the changes in the Code, and then a road was put in after the fact, and then the Code imposes a 10' buffer. He said the current setback only allows for a couple of feet of building. Mr. Currie said the other setback issue is the lanai that sticks out, they are getting rid of it and pulling the new feature out two feet. Mr. Lyons asked if there has been any feedback from the neighbors. Clerk Taylor said there has been no feedback. William Ring, Agent for the applicant and a Florida Attorney, introduced himself, and to assist him in answering questions about the setback issue, he distributed some photos and referred to Sheet A1.01 in the packet, which shows the site plan, the lanai area and the dimension of 6'6 ". He said you can see that the existing location of the lanai area extends further into the setback area than the proposed entry feature. Further, he pointed out that the actual Variance #4 states that they are asking for an additional 2' encroachment beyond the existing 918" setback. Mr. Ring said the 918" that is referenced is measured from the Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 9 planter, maybe because that is where the roof overhangs, but he said the new entry feature comes out to about the edge of the planter and the encroachment is not 2'. He said there may be some amount that is further than the roof edge to give it a bit of reveal, but he said the 9'8" is measured from the edge of the planter to the 10' buffer from the edge of the paved area. Mr. Ring referred to Sheet A1.01 where it says line of effective lot area, and he said if you follow the line where there is a 10' measurement (buffer area), the next line is 1118" existing building setback. He said whomever drew this plan measured the setback from the actual building. Mr. Smith asked if the face of this feature will be flush with the roof on the west side. Mr. Ring said it will be consistent with the roof, but not with the wall. Chairman Morgan asked if any portion of the feature is livable space. Mr. Ring said there is no livable space with this feature. Mr. Currie said it is all open space. Mr. Ring said Variance #1 is the request for a 109 SF net addition, and he said Mr. Siemon explained that this is not an addition. He said there is no additional floor area being added, there is one entry feature to be demolished and one being constructed that is covered, but with no additional floor area. Mr. Ring said he does not believe a variance is required for that, but if it is required it should be approved because it is a fictional measurement. Mr. Ring said Mr. Siemon and Mr. Currie spoke to Variance #2 which was the requirement that the first floor eave height was exceeded because what the Town calls the first floor eave is 151. Mr. Ring pointed out Marty Minor's report of 1/25/13, Table 2, where Mr. Minor called this an architectural element, not an eave. He said it is a tiled ridge or a cornice, an architectural element, and he said they do not need a variance to exceed the first floor eave height because it is not an eave, but if it is required the Board should approve because it is not an eave. Mr. Ring said Mr. Siemon spoke to the effects of the Code on the gross and net lot area of the property and showed an old survey. He said one of the requests was for a Level III /Architectural Site Plan Review for the addition to a non - conforming use where the square footage of the home exceeds what is allowable. If you ran the Code's percentages to the real lot area this home would not exceed any allowable floor area ( ratios, it is only when you apply the Code ratios to the fictional net lot area that you come to this non - conforming calculation. For those reasons, that variance should be granted. Mr. Siemon referred to the last two sentences in Section 70 -100 (a) Generally. (4), which read: "Entry features, if used, should provide a sense of arrival, yet should not overpower them or the remainder of the structure. The scale and proportion of entry features should be consistent with the rest of the structure, varying just enough to provide a focal point to the front of the house." He said it is ironic that we are in a building using that same architectural design to create an identity of where the entrance of Town Hall is. The Code requirement Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 10 is will it be in harmony, will it make it more consistent with the intent of the design manual. The applicant, Martin O'Boyle of 23 Hidden Harbour Drive, introduced himself, he stated that he is a Real Estate Developer with 43 years or experience in development, building and design. Mr. O'Boyle thanked Mr. Currie, Mr. Siemon and Mr. Ring for making a presentation on his behalf and he said they did a wonderful job and they were very diplomatic. He said he is somewhat outraged and explained that he bought the lot in the 70s, he built the home between 1981 and 1983 in keeping with the style of the time, but he said it is not the style of today. Mr. O'Boyle said he has worked with Mr. Currie and Mr. Ring for probably a thousand hours on a multitude of designs to come up with one that functions, bring the home into the new millennium and will improve the neighborhood. He said there are six homes in Hidden Harbour, he built his home and the home next to him, and he said he is in the process of rebuilding 16 South Hidden Harbour. Mr. O'Boyle said he believes everyone on the Board and those who drafted the Code has good intentions. He said this will be a big improvement to his home and he disagrees with Mr. Thrasher's analysis of the project. Mr. O'Boyle said he has millions of dollars invested in this home which he has lived in for 30 years and believes a bit of deference should be given to him and that nobody should impose their taste upon his assets. With regard to the setback issue, he said he considered taking down the home and rebuilding, but the property has been zoned to oblivion and he said he could not build a dog house on it. Mr. O'Boyle said he believes his property is worth between $2.6 million and $3.6 million to build a dog house on it, and he said if you want an ugly building, he will oblige. In closing he said he hopes the Board will accommodate their request, he has millions of dollars invested, he has neighbors and there are no objections, and he said he hopes the Board will allow he and his wife to do what they want with their asset. Mr. Lyons asked Mr. O'Boyle if he knows of any other home in Gulf Stream with this type of entryway. Mr. O'Boyle said he has not viewed any other of the homes in Gulf Stream in that way, but he has in Palm Beach and he said he is impressed with the Town Hall building. Mr. Lyons asked to have the picture of Town Hall put up against the picture of what they are proposing. Mr. Currie said that one is a one story structure and the other is a two story structure. Mr. O'Boyle asked if anyone on the Board found the design distasteful. Mr. Lyons said he did not feel it was particularly appealing and asked if it could be wider and more proportionate. Mr. Currie agrees that it should have been shown in one color so that it didn't appear as prominent. Mr. O'Boyle said taste should not be considered here. Chairman Morgan said a lot has been heard about the primary issues of setback and the interpretation of eave height and whether or not this is a variance from Code or a design application. Mr. Randolph said the issue before the Board today is limited to substantiating the variance that is requested. There is an opportunity in the Code to challenge the decision of the Administrative Official, and if they challenge the decision of the Administrative Official it should be applied for and advertised. When Mr. Siemon made his comments, he indicated that he did Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 11 not care if the Board agreed with him as to whether or not a variance ie required, and that he was only laying the background for the fact that if you were to grant a variance today it would not do an injustice to the Code the way he interprets it. Mr. Randolph said, because this was not advertised as a challenge of the decision of the Administrative Official, he is not prepared to advise the Board Members on whether or not the Administrative Official is correct in his interpretation, and he said that is not the decision the Board has to make today. He said if the challenge was going to be made to his opinion it should have been applied for and advertised so that you would know what you were dealing with. Chairman Morgan said it is a good point, but he assumed that the opposition to Staff's determination would be to challenge any aspect of that decision and whether it is in support of a variance or whether it undermines the determination of a variance, and he said he assumed that it would be a part of the application. He said if it is not, it will change the direction this Board will take. Mr. Thrasher said that, on more than one occasion with Rita Taylor in his presence, he offered Mr. O'Boyle information which provided his options; one option was a variance application, and the other was the opportunity to challenge his administrative decision. He said the options were on the table from the beginning, and conversations with Mr. Ring indicated to him that they would not challenge the administrative decision, but would apply for variances as it relates to that specific issue. Chairman Morgan said by challenging the determination of variance they are recognizing that the Code sections to which they argued did not apply, which seemed to be the entire crux of the argument. He said they were not disputing Staff's decision that the applicant did not meet the eight requirements for variance, they were saying a variance did not apply at all. Mr. Randolph said they were saying that, but as background for why the Board should grant the variance and why criteria for variance have been met. He said the Board is not here today to determine whether or not they need a variance, but to determine whether or not the variances applied for meet the criteria, and he said the Board can consider the background and the arguments made. Chairman Morgan said it becomes very easy. Mr. Murphy asked Mr. Randolph for clarification on one of the arguments of what is an eave and what is not an eave. Mr. Randolph said he is not prepared to discuss whether or not the ordinance as drafted would consider this an eave or not, but the issue before the Board is based upon the application as made for a variance regarding eave height. Mr. Siemon asked Mr. Randolph if he is talking about an appeal under Division 5. Appeals. Mr. Randolph confirmed that. Mr. Siemon asked if the appeal would be of the administrative decision that a variance is required, and he asked if there is a development order or something that makes that an appealable issue. Mr. Randolph said the Code does provide for an appeal of the decision of the Administrative Official in regard to his interpretation of the Code, and he said it was discussed with the applicant as an option. Mr. Siemon asked if the appeal goes to the Board of Adjustment. Mr. Randolph confirmed that. Chairman Morgan asked Mr. Siemon if he would like an opportunity to consult with his Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 12 client. Mr. Siemon said he would like to consult with his client. Mr. Randolph suggested they leave the room for privacy and the discussion would resume following the next items. Mr. Currie read the definition of "Eave" from Code as follows: "Eave shall mean projected overhang of the lower edge of a roof." Item VI.A.2 was recessed at this point to allow Mr. Siemon to consult with the applicant. Mr. Randolph asked Chairman Morgan to move on to Item VI.A.3 and 4 at this time. 3. An application submitted by Mark Marsh, Bridges, Marsh & Associates, Inc. as agent for Mr.& Mrs. Robert Julien, owners of property located at 1601 North Ocean Blvd., Gulf Stream, Florida, legally described in metes and bounds in Government Lot 1, Section 10, Township 46 South, Range 43 East. a. LEVEL 2 ARCHITECTURAL /SITE PLAN REVIEW to permit an addition of 392 square feet to the south east corner of the existing Spanish Mediterranean Revival style single family dwelling, to enclose an existing breezeway on the north side of the dwelling and to install a roof over the existing trellis connection to the existing guest house. Mark Marsh, of Digby Bridges, Marsh & Assoc, Agent for Julien, introduced himself, he said there are three areas covered in this application; the first is a one -story addition on the south east corner of the existing structure, the second is the enclosure of the existing breezeway and the third is to roof what is now an open trellised walkway linking the guest house to the main house. He said displayed renderings of elevations showing the proposed improvements, and he said it is all compatible with the existing structure, the materials are the same and there are no issues with FAR coverage. Chairman Morgan asked if there have been any objections from neighbors. Clerk Taylor said there have been no objections. Mr. Lyons moved and Mr. Smith seconded to approve Level II Architectural /Site Plan, based on a finding that the proposed addition of 392 SF to the south east corner of the existing Spanish Mediterranean style single family dwelling, enclosure of an existing breezeway on the north side of the dwelling and installation of a roof over the existing trellis connection to the existing guest house meet the minimum intent of the Design Manual and applicable review standards. There was no discussion. All voted AYE. 4. An application submitted by Mark Marsh, Bridges, Marsh & Associates, Inc., as agent for Mr. & Mrs. Nelson Grumney, Jr., owners of the property located at 2960 Polo Drive, Gulf Stream, Florida, which is legally described as Lot 21 and part of Lot 20 in Gulf Steam Cove Subdivision. a. SPECIAL EXCEPTION #1 to permit the extension of the non - conforming south wall of the existing structure, that encroaches a maximum of 1 foot into the south side setback, to add a master bedroom of approximately 302 square feet to be located on the first floor. Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 13 b. SPECIAL EXCEPTION #2 to permit the addition of the proposed 302 square foot master bedroom to extend 20 feet into the 50 foot rear setback. C. DEMOLITION PERMIT to allow small portion of existing garage to be removed in order to realign the 2 car garage. d. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit the addition of a master bedroom, a small addition to the kitchen, a realignment of the 2 car garage and a new front entry, a net increase of 540 square feet on the first floor of an existing partial two story Neo- French Eclectic single family dwelling. Mr. Marsh introduced himself as Agent for Mr. and Mrs. Grumney. He said the home is a Neo- Classical French Eclectic style home, previously owned by Mr. and Mrs. David Jones, and he said there have been a couple of renovations over the years. Mr. Marsh said when the Grumneys purchased the home they identified some areas that are not compatible with their lifestyle, and he said they are applying for two special exceptions to allow them to extend the non - conforming south wall for the addition of a Master Bedroom. He said under the special exception criteria in Section 70 -75, they meet the justification for the side yard setback and they are allowed to encroach 20' into the required 50' setback. Mr. Marsh said they will create a new entry feature, expand the kitchen to the west and realign the garage to be parallel with the road and more compatible with the neighborhood. Mr. Marsh displayed renderings showing the expansion of the kitchen area, which he said created some difficulty in complying with setbacks because of the strange angle. He referred to the following on the renderings: (1) The new entry portico, which is in keeping with the scale of the structure; (2) the new garage wing, which will mimic the existing brick and the existing slate roof; (3) the expansion of the master wing; and, (4) the reconfiguration of the kitchen area. Mr. Marsh said they will match the fenestration across the west face, groom the overgrown landscaping, replace hedging and create some foundation planting. He said one area that was not addressed was as part of the improvements is the driveway. Mr. Marsh said they would like to replace the gravel with a paved driveway to make it a hard surface. Chairman Morgan stated that the south side setback is a continuation of the non - conforming use and the west side falls under Sec. 70 -75 allowing the encroachment. Mr. Lyons asked if the neighbor to the south who will be most impacted by the improvements has commented. Mr. Marsh said they may not notice the improvements because there is a huge buffer between the properties. Mr. Lyons said he lives across the street from the subject property and he said the existing driveway to the garage is brick. He asked Mr. Marsh if they will make the material consistent. Mr. Marsh said it will be similar, but they want a hard driveway. Mr. Lyons asked about lighting across the front of the property. Mr. Marsh said there may be two wall sconces within the portico, and he said the center of the house is recessed with a couple of magnolia trees that Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 14 flank the front door. He added that the entry will have a stucco element as a contrast to the brick. Mr. Lyons moved and Mr. Smith seconded to recommend approval of a Special Exception to permit the extension of the non- conforming south wall of the existing structure that encroaches a maximum of 1 foot into the south side setback, to add a master bedroom of approximately 302 SF to be located on the first floor. There was no discussion. All voted AYE. Mr. Lyons moved and Mr. Smith seconded to recommend approval of a Special Exception to permit the addition of the proposed 302 SF master bedroom to extend 20 feet into the 50 -foot rear setback. There was no discussion. All voted AYE. Mr. Lyons moved and Mr. Smith seconded to recommend approval of a demolition permit to allow a small portion of the existing garage to be removed in order to realign the 2 -car garage. Mr. Marsh said the garage is on a pile structure and during their research they discovered that it may be necessary to demolish more than indicated in order to properly realign the garage. He said he did not know how much more at this time, but the end result would be the same. Mr. Lyons amended the motion and Mr. Smith seconded to recommend approval of a demolition permit to allow a portion of the existing garage to be removed in order to realign the 2 -car garage. Clerk Taylor asked how much of the existing roof will be removed. Mr. Marsh said it may affect the whole wing, but it will not change the heights or the form. Mr. Randolph suggested that the Board ask the applicant to come back to the Town Manager for approval of any additional demolition of the garage. Mr. Lyons amended the motion and Mr. Smith seconded to recommend approval of a demolition permit to allow a portion of the existing garage to be removed in order to realign the 2 -car garage, and final approval of any additional demolition of the garage is subject to Staff review and approval. There was no further discussion. All voted AYE. Mr. Lyons moved and Mr. Smith seconded to recommend approval of a Level III Architectural /Site Plan Review to permit the addition of a master bedroom, a small addition to the kitchen, a realignment of the 2 -car garage and a new front entry, a net increase of 540 SF on the first floor of an existing partial two -story Neo- French Eclectic single family dwelling based on a finding that the proposed construction meets the minimum intent of the Design Manual and applicable review standards. There was no discussion. All voted AYE. The Public Hearing for Item VI.A.2., Continued. Mr. Siemon said he has consulted with the Town Attorney, and he said this renovation involves an insurance problem and there are time constraints. He said Mr. O'Boyle cannot obtain hurricane insurance at this point and hoped for an approval in time to redo the windows prior to the peak of hurricane season. Mr. Siemon said Mr. O'Boyle would like to move forward and they are going to apply for an appeal from the determination as to whether a variance is required. He asked that the Board go forward with the merits, he asked that the appeal go before the Board of Adjustment at the next Meeting, and he said hopefully they will look at the appeal first, before the Commission hears the request for variance. In Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 15 addition, he said they will remedy the esthetic focus on the entry feature prior to that meeting. Mr. Siemon said one thing the Code says is that granting a variance will not do any violence to the Code and its purposes, and the fact that a variance may not be required goes directly to that point. He asked the Board to consider his remarks with regard to that in that context. Mr. Randolph stated that the ARPB recommendation will go to the Commission on March 15th. He said their appeal would have to be submitted to the Town of Gulf Stream this date in order to be heard by the Board of Adjustment at the March 15th Meeting. Mr. Siemon said they will file the appeal today. Mr. Randolph noted that the applicant hopes that the Board of Adjustment will hear the appeal first. Mr. Lyons asked about the window replacement. Mr. Siemen said the applicant is not willing to commit to replacing the windows if this design is not approved, but he said it is not relevant to the decision, it is only to explain why time is of the essence. Chairman Morgan asked what level of review applies to a front entryway. Mr. Thrasher said if determined that it meets Code it is a Level I, but he said if it requires a variance it is a Level III. He said, for the record, Mr. O'Boyle has submitted a permit application for window replacement, it was approved and was forwarded to Delray for approval. Mr. Thrasher said the front entry feature elements will be different, but he said other portions of the home are unchanged and he could proceed with the window replacement for that part of it. Mr. O'Boyle said Mr. Thrasher is correct, they did apply for a window replacement permit and it was approved, but he said the windows were designed in conjunction with this fagade and if this fagade is not approved those windows will not be appropriate. Mr. Morgan noted that in proceeding with this application we are being asked to interpret the application in conjunction with the issues that resulted in its denial, including eave heights and setbacks, which are the issues to which they are seeking variance, rather than disputing the application of variance as a decision by Staff. He said he is sympathetic to the applicant's position, but he said he cannot advise on how to proceed. Mr. Thrasher asked if he could comment. Mr. Randolph asked Mr. Thrasher that he not comment in regard to the issue as to whether or not they need a variance. Mr. Thrasher said we are hearing these variance applications and he said he is asking for time to address comments made by the agent of record or the expert witnesses. He said he would like to question things that have been stated as fact. Mr. Randolph asked Mr. Thrasher if there is something he heard that would change his recommendation, or does he simply want to support his recommendation. Mr. Thrasher said he would like to support his recommendation. Mr. Randolph asked Chairman Morgan if the Board needed to hear anything more. Chairman Morgan said the Code has been spelled out, we have been provided with Mr. Minor's report and we have the applicant's admission as to where their heights and setbacks fall. He said the applicant is Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 16 challenging the Administrative Official's decision in a separate application and, therefore, we must proceed with what we have. Mr. Murphy moved and Mr. Delafield seconded to recommend denial of a variance to allow a net addition of 109 SF to the front entry feature of the existing non - conforming two -story single family dwelling that currently exceeds the maximum permitted floor area ration by 2,589 SF based on the finding that not all of the required eight (8) standards for granting a variance have been met. There was no discussion. All voted AYE. Mr. Murphy moved and Mr. Delafield seconded to recommend denial of a variance to permit the first -story eave height of the proposed entry feature to exceed the maximum discouraged height of 12.5 feet by 2.5 feet to the architectural element based on the finding that not all of the eight (8) standards for granting a variance have been met. There was no discussion. All voted AYE. Mr. Murphy moved and Mr. Delafield seconded to recommend denial of a variance to permit the second -story eave height of the proposed entry feature to exceed the maximum discouraged height of 23 feet by 2 feet of the architectural element based on the finding that not all of the required eight (8) standards for granting a variance have been met. There was no discussion. All voted AYE. Mr. Murphy moved and Mr. Delafield seconded to recommend denial of a variance to permit an additional 2 -foot encroachment beyond the existing 9 -foot 8 -inch front setback encroachment based on the finding that not all of the required eight (8) standards for granting a variance have been met. There was no discussion. All voted AYE. Mr. Murphy moved and Mr. Delafield seconded to recommend denial to remove 229 SF of gross floor area as the proposed alterations do not meet the minimum intent of the Design Manual and applicable review standards. There was no discussion. Roll Call: Mr. Lyons, AYE; Mr. Smith, AYE; Mr. Delafield, AYE; Mr. Murphy, AYE; and, Chairman Morgan, NO. The motion passed by a vote of 9 - 1. Mr. Murphy moved and Mr. Smith seconded to recommend denial of Level III Architectural /Site Plan to permit a cumulative increase of 109 SF to the existing 8,001 SF non - conforming, Spanish Mediterranean Revival style two -story single family dwelling based on a finding that it does not meet the minimum intent of the Design Manual and applicable review standards. There was no discussion. All voted AYE. VII. Items by Staff. There were no items by Staff. C' VIII. Items by Board Members. Mr. Lyons asked if the ARPB would be involved in making the decision concerning the new street lighting. Mr. Randolph said the Town Commission will make that decision, but he said the Commission may ask the ARPB for their input. Chairman Morgan announced that Amanda Jones, Vice - Chairman of the ARPB, has requested a six -month leave from her Board duties due to a personal matter and that she may need to resign as a Member and come back as an Alternate Member. He suggested that Mr. Smith be nominated as Vice- Architectural Review and Planning Board Regular Meeting and Public Hearing - February 28, 2013 Page 17 Chairman. Mr. Randolph asked if there is a rule for Members who miss a certain number of meetings. Clerk Taylor said there is a rule for missing meetings without being excused, but she said the Commission could grant a six -month leave. Mr. Randolph asked the Board if there is a nomination for Vice - Chairman. Mr. Lyons nominated Mr. Smith as Vice - Chairman, all voted AYE. C ' IX. Public. No Public Comment. X. ,Adjournment. Chairman Morgan adjourned the Meeting at 10:45 A.M. /� i Gail C. Abbale Administrative Assistant MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE ARCHITECTURAL REVIEW AND PLANNING BOARD OF THE TOWN OF GULF STREAM, FLORIDA, ON THURSDAY, JULY 25, 2013, AT 8:30 A.M., IN THE TOWN HALL, 100 SEA ROAD, GULF STREAM, FLORIDA. I. Call to Order: Vice- Chairman Smith called the meeting to order at 8:30 A.M. II. Roll all: Present and CParticipating Thomas Smith Vice - Chairman Paul A. Lyons, Jr. Board Member Amanda Jones Board Member Malcolm Murphy Board Member George Delafield Altemate Member Absent: Scott Morgan Chairman Also Present and William H. Thrasher Town Manager Participating Rita L. Taylor Town Clerk John "Skip" Randolph Town Counsel Martin O'Boyle Resident Richard Jones Architect Mark Grant Owners' Attorney Thomas Laudani Developer David Bodker Landscape Architect III. Minutes: Regular Meeting and Public Hearing held on May 23, 2013 Vice - Chairman Smith suggested the May 23, 2013 minutes be deferred until the nest ARPB Meeting, as they were not in the Board Members' packets. All agreed. IV. Additions. Withdrawals, Deferrals. Arrangement of Agenda Items• Vice - Chairman Smith asked for any changes to the agenda. There were none. He also confirmed that each member received a copy of Chairman Morgan's letter, in addition to their meeting packet. V. Announcements: A. Meeting Dates Vice - Chairman Smith announced the upcoming Regular Meetings and Public Hearings. 1. August 2013 — No Meeting 2. September 26, 2013 @ 8:30 A.M. 3. October 24, 2013 @ 8:30 A.M. 5. November 2013 - TBD 6. December 2013 - TBD Vice - Chairman Smith inquired regarding the re- scheduling of the ARPB meeting dates during the holiday season. He also reminded Board Members to contact Town Clerk Taylor when they will be unable to attend any ARPB meetings. ARPB - Regular Meeting & Public Hearing Town of Gulf Stream July 25, 2013 — Page 2 Town Clerk Taylor responded there has been no decision made, as yet, on any date changes, and suggested that those be determined at the September 2013 hearing. Vice - Chairman Smith asked for ex -pane communication relative to the items this day. There were none. Town Clerk Taylor swore in all persons who planned to speak at this meeting: Martin O'Boyle, Richard CJones, Mark Grant, Thomas Laudani and David Bodker. VI. PUBLIC HEARING: A. Applications for Development Approval 1. An application submitted by Richard Jones, as Agent for Harbour View Estates LLC, the owners of property located at 1224 N. Ocean Blvd., Gulf Stream, Florida, legally described as Lot 5, Hidden Harbour Estates Plat 2. a. NORTH OCEAN BOULEVARD OVERLAY PERMIT to permit the installation of landscaping and the easterly portions of privacy walls within the North Ocean Boulevard Overlay District. b. LEVEL 3 ARCHITECTURAL /SITE PLAN REVIEW to permit construction of an 8,726 square foot, partial two -story, Colonial West Indies single family dwelling with a 3 -car attached garage, pool and cabana. Mr. Jones introduced himself and stated he represented Seaside Builders, as well as, Mr. Bodker and Mr. Grant. He discussed and displayed the renderings of the three (3) houses well under construction in Harbour View Estates. Mr. Jones continued that two (2) of the three (3) under construction have been sold, and one of the remaining lots has also been sold. He further reported that out of the six (6) lot subdivision, three (3) have been spoken for. Mr. Jones continued that Lot 5 is a very important lot, due to the fact that it is directly adjacent to the entry of Harbour View Estates, and it sets the tone for the entire community. He recapped that Lot 3, Lot 4 and Lot 6 have been approved and that they all have their own unique appearance; two (2) of the homes are designed in a classic Bermuda style, and Lot 6 is a Colonial West Indies style. Mr. Jones continued that all three homes meet the Town's codes for setbacks, ratio and diversity to its neighbors. He described the differences with Lot 5's site orientation by displaying its landscape plan. He reported another difference of the three (3) approved homes is their second floor carriage homes above the garage with full courtyards on each lot. On Lot 5's home, the carriage home was brought down to ground level and attached to the home. Mr. Jones continued that another difference is that it implies classic symmetries with the two (2) projected wings. He reported on historical homes that have this type of classic design. Mr. Jones further detailed how the unique characteristics will blend together. He displayed the floor plans and the colors and feels that this home will be the nicest house in the community. Board Member Lyons inquired regarding the elevations. He also asked Mr. Jones to address some of Chairman Morgan's concerns that were listed in his letter. ARPB Regular Meeting & Public Heating Town of Gulf Stream July 25, 2013 — Page 3 Mr. Jones detailed the north, south and east elevations of the home. He continued that he appreciated Chairman Morgan's opinion, and stated that the house contradicts itself due to the wings. Mr. Jones further discussed its charm and character with the design. He repeated that Lot 5 is different and that the developer achieved their style quite nicely. f Board Member Lyons commended the developer. Vice - Chairman Smith inquired regarding the two (2) story mass between the two (2) homes from scale photographs to confirm that the bedrooms were not visible from one to the other. Mr. Jones displayed and discussed the second floor layouts where there were no overlaps with the houses. He reported that his client has a lot of money at stake, and his architectural designs are the best. Vice - Chairman Smith inquired regarding the height and if the artificial fireplace on the east side of the home was for symmetry. He was concerned the smoke would enter the 2 d floor windows. Mr. Jones responded that it is a functioning fireplace, but it is approximately 15 feet away and does meet codes for clearance. Board Member Jones inquired regarding the distance between main house and garage. Mr. Jones stated approximately 27 feet or one dozen (12) steps. Vice - Chairman Smith asked if any thought was given to bringing in either one of the wings a little. Mr. Jones answered one (1) or two (2) feet would employ classic symmetries. Mr. Laudani discussed how he takes pride in his work. He continued that he took exception to Chairman Morgan's comments in his letter and his absence from this meeting. Mr. Laudani stated that after the home is built, it -,vill be a signature property as he is an expert developer. He requested that the design be left as drawn. Board Member Lyons discussed his impression of the wings eventually being all blended in on the home. �- Mr. Laudani gave an overall review of the structure and the development. Vice - Chairman Smith inquired regarding the building on the east side being a guest house. Mr. Laudani responded that it could be a guest house or a gym. Mr. Bodker completely detailed the landscape with photographs and descriptions of the plantings. He also discussed his plans on the other adjacent properties in the community. ARPH Regular Meeting & Public Hearing Town of Gulf Stream July 25, 2013 — Page 4 Town Manager Thrasher requested the PDF of the drawings for Lots 3, 4 and G. He also asked for the Condition of Approval. Town Clerk Taylor responded that she wasn't sure regarding their roof sample being received in Town Hall. (� Mr. Jones displayed a sample of the gray slate -like tile. Vice - Chairman Smith inquired if the Board could, in the future, see all six (G) masses on the eventual site, so they can see where all were positioned on the property. Mr. Laudani stated that he would do a massive study for Board Members' viewing. Vice - Chairman Smith asked for any comments from the audience. Mr. O'Boyle stated that if the Board Members heard ample testimony and feel they could make a favorable recommendation, he felt he did not have to speak at all. He addressed the letter from Chairman Morgan whom he favored very much, but questioned its contents. Town Counsel Randolph stated that it was not in violation to be distributed to Board Members. He continued that if there were comments back, that would be in violation of the Sunshine Law. Town Counsel Randolph responded that he always encourages communications like this to come to the public meeting, as opposed to appearing before the meeting. He repeated the Sunshine Law stating that no two (2) or more members of a board may communicate in regard to something. Vice - Chairman Smith asked the Board Members if any two (2) or more members communicated with anyone regarding Chairman Morgan's letter. They all responded "No ". lvfr. O'Boyle discussed Mr. Laudani's project in the Town, and their "roller coaster" relationship. He continued that he finds the home acceptable from his experience and what the markets say. Mr. O'Boyle suggested that the Board Members have to yield to Mr. Laudani's discretion, his taste and his experience. He commented negatively on Board Chairman Morgan's letter. Mr. O'Boyle highly recommended Iblr. Laudani's knowledge and experience in building homes. Vice - Chairman Smith inquired if all neighbors were notified and if there were any other comments received. Town Clerk Taylor responded that all were notified and Chairman Morgan's letter was the only one received. ARPB Regular Meeting & Public Hearing Town of Gulf Stream July 25, 2013 — Page 5 Board Member Murphy moved and Board Member Lyons seconded that approval of a North Ocean Boulevard Overlay Permit based on a finding that the landscaping and easterly portion of a privacy wall, meet the minimum intent of the Design Manual and applicable review standards be recommended. All voted AYE. Board Member Murphy moved and Board Member Lyons seconded recommendation of Level 111 Architectural /Site Plan based on a finding that the proposed partial two -story single family Colonial West Indies style dwelling, a 3 -car attached garage, pool and cabana, a total of 8,726 SF meet the minimum intent of the Design Manual and applicable review standards with the following conditions: 1. The entry feature, measured from FFE to top of railings, shall be <14'. 2. The electric service lines shall be buried. 3. A sample of the gray color roof file to be provided for approval. 4. Any minor modifications in the landscape plan shall be submitted to the Town Manager for review and approval, and any major modifications shall be brought back to the ARPB for review and approval, prior to commencement of landscaping. 5. Wall and /or fences will be measured from the lowest abutting grade with a maximum height of 6' including any lighting fixtures that may be attached. 6. All chain link fencing will be screened from neighbor's view. All voted AYE. VII. ITEMS BY STAFF AND ATTORNEY: A. Proposed amendments to the Town's Zoning Code, including Design Guidelines. Mayor Orthwein thanked everyone serving on the ARPB for all their hard work. She discussed how the Town should rethink the codes and expand changes to them. Mayor Orthwein stated that the world is changing and how we have to also. She also mentioned flexibility and going £onward in regards to the building codes. Mayor Orthwein commented how she liked the new homes in Town. Vice - Chairman Smith agreed and stated that he would like to see other residents on the ARPB, as alternates, to get their ideas. Mayor Orthwein responded that the search for more ARPB members has been on the Town's website for a long time with no responses. She continued that any interested party has to write a letter to the Town or attend a Commission Meeting and show their interest in becoming an alternate ARPB member. VIII. ITEMS BY BOARD MEMBERS: Alternate Board Member Delafield inquired regarding a power point presentation for better audience viewing of visuals with regard to site plan approvals, at a Commission or Board Meeting. Board Member Lyons commended the idea of having a committee to update codes and he suggested possibly a developer being on the committee which may have the process work even better. ARPB Regular Meeting & Public Hearing Town of Gulf Stream July 25, 2013 — Page G Mayor Orthwein agreed with the developer being involved as they have helped the Town's property values go up, and put their investment in the Town. Town Counsel Randolph stated if the Board Members agree with Mayor Orthwein, they should make a recommendation to the Commission that they appoint a committee to look into the issues that she has raised, e.g., how the codes can become more user friendly, try to prevent a "cookie cutter" look in the Town, and to make more versatility in Town also. He admitted it's going to be a big job for a committee to take on because they would have to start from scratch, e.g., is a design manual the way to go which was utilized in the past, and which did not allow flexibility and versatility. He reminded Board Members how there were problems that came up these past couple of years with regard to colors, metal roofs, etc. Mayor Orthwein stated she would take suggestions and would consider Mr. Laudani and other developers. Board Member Lyons moved and Alternate Board Member Delafield seconded to recommend the Town Commission appoint a special committee to review comprehensively the codes and regulations to provide a little more flexibility to meet today's concerns. All voted AYE. Town Counsel Randolph stated that motion will take care of the substantive portion of it. He suggested also that the Board pass on to the Commission to add three (3) words to real estate signs "and political signs". Vice - Chairman Smith commented on the importance of uniformity of exterior wall colors on all structures on a property. Board Member Lyons inquired on accent colors and trims. Town Counsel Randolph explained that both the color codes and sign codes can be looked at also by this new committee, and if need be, the color codes may even be done away with completely. Vice - Chairman Smith asked if these changes are intended to be recommended for adoption in the meantime and the answer was, yes. He then asked for feedback from the Board members. Board Member Murphy commented on the black and white colors on the signs at the present time. Board Member Delafield asked the status of the new traffic signs and was advised that an order would soon be placed. Town Clerk Taylor inquired if these new issues needed to be read into the record. Town Counsel Randolph responded "No" and that it should just be recommended that the Commission give consideration to them and to include ordinance amendments to adopt them. ARPB Regular Meeting & Public Hearing Town of Gulf Stream July 25, 2013 — Page 7 In response to Vice- Chairman Smith's request for public comment on these issues, Mr. O'Boyle stated he emphatically concurs with Mayor Orthwein and Town Counsel Randolph's statements. He also wanted confirmation that political signs no longer require review. �- Town Counsel Randolph stated there is no review required for political signs. Board Member Murphy moved and Board Member Lyons seconded that it be recommended to the Town Commission that in the interim, consideration, and possibly amendments, be made to the sign code and the section of the code relating to "color" as suggested by Attorney Randolph in his letter to the ARPB. All voted AYE. IX. PUBLIC: Mr. O'Boyle discussed his home's rear elevation issues. Town Counsel Randolph stated that these are an attempt at a clarification of what was intended by the code, "having uniformity of the colors ". He continued that by doing this he was not trying to usurp the work of this committee, which could look at what Mr. O'Boyle suggested. Town Counsel Randolph stated that it was done to clarify the code at present and have uniformity of color on all walls. He continued that maybe this new committee can come up with a suggestion for Mr. O'Boyle. Mr. O'Boyle stated that there are a lot of conflicts in the code. He related his efforts with metal roofs. A discussion ensued regarding the colors of the home discussed earlier at this meeting. X. ADJOURNMENT: Vice - Chairman Smith adjourned the meeting at 9:40 A.M. Sandra Fein Recording Secretary MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN CODIhIISSION OF THE TOWN OF GULF STREAM ON FRIDAY, SEPTEMBER 13, 2013 AT 3:30 P.M. IN THE COMMISSION CHAltIBERS OF THE TOWN HALL, 100 SEA ROAD, GULF STREADI, FLORIDA. I. Call to Order: Mayor Orthwein called the Meeting to order at 3:35 P.M. II. Pledge of Allegiance: The Pledge of Allegiance was led by Mayor Orthwein. III. Roll Call: Present and Joan K. Orthwein Mayor Participating Thomas DI. Stanley Vice -Mayor W. Garrett Dering Commissioner Robert W. Ganger Commissioner Donna S. White Commissioner Also Present and William H. Thrasher Town Manager Participating Rita L. Taylor Town Clerk John C. Randolph Town Counsel Garrett J. Ward Police Chief Danny Brannon of Town Consultant for Undergrounding Brannon & Gillespie Project Thomas Baud Attorney with Jones Foster IV. Minutes: A. Regular Meeting & Public Hearing held on August 9, 2013 Commissioner Ganger moved and Vice -Mayor Stanley seconded to approve the Minutes of the Regular Meeting held on August 9, 2013. All voted AYE. V. Additions, Withdrawals, Deferrals. Arrangement of Agenda Items There were none. VI. Announcements: A. Mayor Orthwein announced the upcoming Regular Meetings and Public Hearings. 1. September 17, 2013 @ 9:00 A.M. — Public Hearing 2. September 24, 2013 @ 5:01 P.M. — Budget Hearing 3. October 11, 2013 @ 9:00 A.M. 4. November 8, 2013 @ 9:00 A.M. 5. December 13, 2013 @ 9:00 A.M. Town Clerk Taylor asked for any absenteeism at any of the meetings. Commissioner Dering reported that he would available by telephone on September 17`h and 24`', 2013. VII. COMMUNICATIONS FROM THE PUBLIC (5 MIN. MAXIMUhD: Mayor Orthwein asked for any speakers. Regular Meeting and Public Hearing Town Commission Meeting September 13, 2013 — Page 2 Christopher O'Hare discussed his twelve (12) years of residency in the Town of Gulf Stream, and stated that Jean Spence introduced him to the Town. He inquired if Mayor Orthwein could meet with him in the future to discuss code enforcement and changes in the Town to which the Mayor agreed to do. VIII. PUBLIC HEARING: 1. Proposed Development Agreement— 23 Hidden Harbour Dr. Mr. Baird discussed his experience in the legal field for thirty (30) years. He stated that this Development Agreement comes out of the settlement agreement between Martin O'Boyle and the Town. Mr. Baird explained that the purpose is to outline what the lot coverage of his lot could be. He continued that Mr. O'Boyle could be permitted to develop as the code existed in 1981, as with his present structure. Mr. Baird further stated that Development Agreements by statute require two (2) Public Hearings, this being the first one. He reported that he will define some clarifications with Mr. Ring, Mr. O'Boyle's Attorney prior to the next Public Hearing on Tuesday, September 17, 2013. Mr. Baird asked for any- questions and stated he would be available over the weekend also to address any issues. Town Counsel Randolph reminded everyone that this is a Public Hearing, and that any member of the public can comment. Commissioner Ganger stated that the Commission empowered both Mr. Baird and Town Counsel Randolph to negotiate this issue until closure. Mayor Orthwein also asked for public comments. Town Counsel Randolph reported that the second Public Hearing will be held on September 17, 2013 at 9:00 A.M. He also stated that both hearings have been advertised and no motion was required. IX. Reports: A. Utility Undergrounding — Danny Brannon (Engineer) Mr. Brannon provided an update on the undergrounding project. He discussed the surveyors' staking work at the various locations. Mr. Brannon reported on the bid packages for the landscapers. He continued that he had used Landscapes of Distinction in several other similar projects, but they were higher priced, and the other company, West Construction was less experienced but their prices were cost effective. Mr. Brannon suggested offering both companies contracts to figure out their cost effectiveness. He asked for an agreement for authority from the Commission to enter into a continuing service contract with both landscape companies. Commissioner Ganger inquired if these costs were budgeted. Mr. Brannon responded that it was budgeted but he did not have that figure available. He explained the two (2) phases of the landscape work. Mr. Brannon reported that the initial phase is the clearing of the paths for the equipment to be installed, and not to destroy any landscaping. He continued if it is destroyed, they are Regular meeting and Public Hearing Tone Commission Meeting September 13, 2013 — Page 3 contracted to restore to equal or to a better condition than the past. DIr. Brannon further stated that the second phase is they go back after the project has been completed and do mediation landscaping. Commissioner Ganger inquired when is this going to start. blr. Brannon responded that the surveyors do their staking locations first, and described the landscapers C_ staking work process. Vice -Mayor Stanley inquired regarding the residents' issues with large boxes in front of their residents. nlr. Brannon admitted that he has received many calls already regarding that issue, and has agreed to work closely with the residents' inquiries. He also stated that the landscapers are very careful and considerate. Commissioner Ganger inquired regarding the interference with Comcast cable wires, and possibly flagging the line and was advised that contractors may call Sunshine 811 for flagging. Nfr. Brannon again responded that the landscapers are very careful, and if necessary they contact Comcast and /or Sunshine 811. Commissioner Ganger moved and Vice -Mayor Stanley seconded to approve the Town of Gulf Stream to enter into a continuing service contract with Landscapes of Distinction and West Construction for landscape work on the undergrounding project. All voted AYE. Mr. Brannon discussed the street lighting in detail stating that Phase 1 would cost $229,000 which is very close to the bidders' prices. He reported that the lighting on AlA is rather expensive at $9,000 each, and the interior ones are $7,000. He inquired if another choice would be feasible. Mayor Orthwein agreed and inquired if there were other companies that could be contacted for other bids. DIr. Brannon explained that the big cost issue is the labor for installation not the lights and poles. He described in detail the installation of the poles and lights. Commissioner Ganger inquired regarding receiving the same service if the present poles were left up. DIr. Brannon stated that FPL would not leave the existing distribution poles along AlA in place. He continued they would new smaller poles in the same locations with the same cobra lights thereon. This would be no cost to the Town. If the lights were changed to viper (LED), it would cost the Town an additional $300,000. However, there will be an increase in the monthly bill form Florida Power & Light. Commissioner Dering pointed out that there will be a period of "no lights" between the time the existing poles are removed and the new ones installed. He continued that it could take 12 months to have all the street lights on. Regular bleeting and Public Hearing Town Commission Meeting September 13, 2013 — Page 4 Commissioner Ganger stated that there should be no compromise in safety and some comprise in esthetics for the residents and that should be communicated to the taxpayers. Mayor Orthwein stated that the viper lights were not pretty. She continued that she does not believe the Commission wants to pay the $300,000 for the viper lights. �. Commissioner Ganger commented that the new lights on AlA as planned should be addressed in the budget. Town Manager Thrasher stated that the AlA lighting was not anticipated in the budget. Vice -Mayor Stanley inquired if there was a difference in costs if the Town purchased the lights directly instead of through Hypower. Dlr. Brannon stated that the Town is paying 20a.'o contractor's price plus tax and the Town could pay 260 o to 30`0 less if the Town purchased the lights themselves. Town Manager Thrasher inquired if there was a public bid process, could the Town take this on themselves. Mr. Brannon stated there would be potential finger pointing if done during the project. He gave examples of times it did not work when purchased by the Town. Commissioner Ganger moved and Commissioner Dering seconded to approve a change order from viper to cobra lights from FPL with the contractor. All voted AlT. Commissioner Ganger inquired regarding the digging that should be started at the end of the month. \lr. Brannon reported that the landscaper mill start digging. He continued there is an issue with the street monument lights with DOT. Mr. Brannon stated that DOT maybe a problem in getting started. Commissioner Ganger discussed the Civic Association lights that were stolen soon after they were put in. He also stated the lights he put in, at his own expense, were taken down. B. Town Nlanager No report. C. Architectural Review & Planning Board 1. Meeting Dates a. September 26, 2013 @ 8:30 A.M. b. October 24, 2013 @ 8:30 A.M. c. November to be determined d. December to be determined Regular Meeting and Public Hearing TDI%M Commission Meeting September 13, 2013 — Page 5 Town Clerk Taylor stated that updated Holiday Meeting Dates will be forthcoming at this coming meeting. D. Finance Director 1. Financial Report for August 2013 Town Manager Thrasher stated that he has provided a Financial Report to all Commissioners. He also commented that there was no motion required for that Report. 2. Clarification of Financial Reporting Format Mayor Orthwein called attention to the several different financial reports that have been considered the last several months. She asked for direction from the Commission as to which one they prefer to receive. Commissioner Ganger stated that it is most important to provide a Financial Report that will reflect variances. Commissioner Dering discussed the obligations of the Town with regard to financial reporting, and addressed the importance of the monthly, year -to -date and variance figures required for the budget. He stated that he has been communicating with Kelly, in Accounting, with his suggestions. He also reported that the new computer software format will generate all the required information with only four (4) pages; first page Balance Sheet, second page General Fund major expense items, third page water account and the fourth page other utilities. Commissioner Dering reported that the software will generate each figure much easier. The Commission favored the report described by Commissioner Dering. E. Police Chief 1. Activity for August 2013 Police Chief Ward submitted the Activity Report for August 2013, and it was accepted as presented. Commissioner Dering inquired regarding the high number of ordinance violations (38). Police Chief Ward responded that they were unregistered vendors and /or vendors working after hours or on Sundays. Commissioner Ganger reported that he was "hacked" by Russians and detailed his Police Department process. X. Correspondence: A. Letter of Suggestions — Sheila Scott �. Mayor Orthwein discussed NIS. Scott's letter. A detailed discussion ensued regarding policies of the trash /rubbish being put out on the street at certain times. Mayor Orthwein addressed the subject of children driving golf carts in the Town. Police Chief Ward reported that the State Law is 14 years old. Regular Meeting and Public Hearing Tone Commission Meeting September 13, 2013 — Page 0 Town Manager Thrasher stated that he understood that the Civic association is experimenting with solutions to eliminate the white fly issue. He also stated that he would address the problem, according to the Town's Ordinance, if so instructed by the Commission. Commissioner Ganger discussed the mitigation of the problems of white fly disease, commenting how unsightly it is, and how quickly it spreads. Town Counsel Randolph stated that the Town of Palm Beach enforces their ordinance of dead vegetation and issues citations accordingly. He added that the Town of Palm Beach does not mandate spraying. Town Manager Thrasher agreed to send a compliance courtesy notice to any resident having dead vegetation. Commissioner Ganger suggested putting an item on the website regarding removal of a dead ficus. He also addressed the height of hedges. Mayor Orthwein stated she will respond to NIS. Scott's letter. Town Clerk Taylor stated she has worked for a Town that restrictions on all hedge heights, and that was a real "mess ". XI. ITEMS FOR COMMISSION ACTION• A. Consideration of Appointments — Ad Hoc Committee to Review Land Development Regulations Mayor Orthwein reported that she has two (2) suggestions for appointments for this Committee to update the codes to be more modem and user friendly. She continued that she contacted Benjamin Schreier, an .architect, and gave a description of his work. Mayor Orthwein also suggested Bill Boardman from the Civic Association. She added that they are both twilling to serve. Commissioner Ganger recommended Shelly Himmelrich who has a very interesting point of view, is respectful, has fresh ideas when she attends and participates in Commission meetings. He also added that she is "big" into landscaping. Commissioner Ganger stated that he would like to see more public at the meetings to hear this plan. He suggested that perhaps Dlrs. Himmelrich should be contacted regarding this matter.. Town Counsel Randolph inquired if all Commissioners were in agreement with the two (2) suggestions made by Mayor Orthwein. They all replied "Yes ". Mayor Orthwein also stated that Mr. Boardman would make a good Committee Chairperson, and the other Commissioners agreed. Regular Meeting and Public Hewing Town Commission Meeting September 13,2M — Page 7 Town Counsel Randolph stated now that two (2) new Committee Members have accepted their positions, he would like the Commission to concentrate on obtaining another three (3) persons for this committee prior to the next Commission Meeting. Commissioner Ganger also suggested past ARRP Board Members for this new committee. Commissioner Deaing suggested that the Chairman help choose the members. B. Consideration of scheduling an Attomey /Client session regarding Joel Chandler vs. Town of Gulf Stream. Case No. 2013 CA 007789 X= IvfB AN, Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida. Discussion of the matter to begin immediately following the 5:01 Budget Hearing on Friday, September 13, 2013, in the Town Commission Chambers, 100 Sea Road, Gulf Stream, Florida. Attomey /Client Session Attendees: Mayor Joan Orthwein; Commissioners Thomas Stanley, W. Garrett Dering, Robert Ganger and Donna S. White; Town Manager William H. Thrasher, Town Attorney John C. Randolph and Court Reporter from Ley & Marsaa Court Reports, Inc. This was requested by Town Counsel Randolph. Commissioner Ganger moved and Vice -Mayor Stanley seconded the approval of scheduling an Attomey /Client session regarding Case No. 2013 CA 007789 MB AN, Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida to begin immediately following the 5:01 Budget Hearing on this date Friday, September 13, 2013, in the Town Commission Chambers. All vote AYE. C. Items by Mayor & Commissioners There were no comments. XII. ADJOURNMENT: Mayor Orthwein adjourned the meeting at 5:00 PAL Sandra Fein Recording Secretary