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HomeMy Public PortalAbout04/13/2012MAYOR: William F. Koch, Jr. VICE MAYOR: Joan K. Orthwein COMMISSIONER: Muriel J. Anderson Fred B. Devitt III W. Garrett Dering y� REGULAR MEETING AND PUBLIC HEARING BEING HELD BY THE TOWN THE TOWN OF GULF STREAM ON FRIDAY, APRIL 13, 2012 AT 9:00 IN THE COMMISSION CHAMBERS OF THE TOWN HALL, 100 SEA ROAD, FLORIDA. AGENDA I. Call to Order. II. Pledge of Allegiance. III. Roll Call. April 5, 2012 COMMISSION OF A.M. GULF STREAM, IV. Minutes. A. Regular Meeting of March 16, 2012 B. Certification of Election Meeting of March 16, 2012 V. Additions, withdrawals, deferrals, arrangement of agenda items. VI. Announcements. A. Regular Meetings and Public Hearings 1. May 11, 2012 @ 9 A.M. 2. June 15, 2012 @ 9 A.M. 3. July 13, 2012 @ 9 A.M. 4. August 10, 2012 @ 9 A.M. 5. September 14, 2012 @ 9 A.M. B. Mayor's Proclamation- National Missing Children's Day VII. PUBLIC HEARING of BOARD OF ADJUSTMENT 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: O 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. VIII. Reports. A. Town Manager B. Architectural Review & Planning Board 1. Meeting Dates a. April 26, 2012 @ 8:30 A.M. b. May 24, 2012 @ 8:30 A.M. c. June 28, 2012 @ 8:30 A.M. d. July 26, 2012 @ 8:30 A.M. e. No August Meeting. f. September 27, 2012 at 8:30 A.M. C. Finance Director 1. Cash & Budget Report for March 2012 2. Water Usage as of March 31, 2012 D. Police Chief 1. Activity for March 2012 AGENDA CONTINUED IX. Items for Commission Action. A. Request to extend sewer force main -G.S. Homeowner's Improvement Association B. Appointments /Re- appointments to the Architectural Review And Planning Board C. Items by Mayor & Commissioners 0 X. Public. XI. Adjournment. SHOULD ANY INTERESTED PARTY SEEK TO APPEAL ANY DECISION MADE BY THE TOWN COMMISSION WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING, SAID PARTY WILL NEED A RECORD OF THE PROCEEDINGS, AND FOR SUCH PURPOSE, MAY NEED TO INSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. F.S.S. 286.0105 0 MINUTES OF THE REGULAR MEETING AND PUBLIC HEARING HELD BY THE TOWN COMMISSION OF THE TOWN OF GULF STREAM ON FRIDAY, APRIL, 13, 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 Mayor Koch. 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 Joe Pike of EnviroDesign Agent for GSGC Tom Murphy, Esq. Agent for residents Concerned w /Spence Property Nancy Touhy /1200 N.Ocean Re: Spence Property Jim Walton /520 Banyan Re: Spence Property Ellen Walton /520 Banyan Re: Spence Property Bill Boardman /3250 Polo Re: Spence Property IV. Minutes. A. Regular Meeting of March 16, 2012 B. Certification of Election Meeting of March 16, 2012 Commissioner Anderson moved and Vice -Mayor Orthwein seconded to approve the Minutes of the Regular Meeting of March 16, 2012 and the Minutes of the Certification of Election Meeting of March 16, 2012. 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. May 11, 2012 @ 9 A.M. 2. June 15, 2012 @ 9 A.M. 3. July 13, 2012 @ 9 A.M. 4. August 10, 2012 @ 9 A.M. 5. September 14, 2012 @ 9 A.M. There were no conflicts in the meeting schedule. B. Mayor's Proclamation - National Missing Children's Day Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 2 Clerk Taylor announced that the Mayor proclaims May25, 2012 as National Missing Children's Day. She said the Mayor has already signed the Proclamation. VII. PUBLIC HEARING of BOARD OF ADJUSTMENT Clerk Taylor administered the Oath to Lou Roeder, Esq., representing Christopher O'Hare of 2520 Avenue Au Soleil, and she asked for declarations of ex -parte communication. There was no ex -parte communication concerning this matter. 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. Lou Roeder, Esq., stated that he represents Christopher O'Hare in his appeal of the administrative decision made by Town Manager William Thrasher who determined that a variance would be required in this matter. Mr. Roeder provided the Board of Adjustment with an appeal package, he stated that he is in receipt of Mr. Thrasher's Report supporting his argument for a variance, and he asked Clerk Taylor to distribute his response to Mr. Thrasher's report. Mr. Roeder said Mr. Thrasher quoted Section 66 -1, Definitions, which defines a variance as follows: "Variance shall mean a deviation from the district requirements of this chapter He said he agrees with the definition, but he said he does not believe the request for a metal roof deviates from the requirements of the chapter. Mr. Roeder said, in his report Mr. Thrasher noted Section 70 -99(3) Roof design, slope and materials, located in Article V of the Manual. To clarify, Mr. Roeder noted that Article V is Town -wide Standards and Article VI is District Standards, meaning it is very specific to each district. He said there is a prohibition in Section 70 -99(3) which states, "Metal roofs (except unpainted copper when used as a decorative accent or on minor accessory structures) are prohibited. Further, he said Mr. Thrasher then quotes from District Standards, Section 70- 187(2) Roofs, JProhibited. Metal roofs *, with a footnote which reads, "Certain metal roofs determined by the Town to be appropriate to the structure and to the neighborhood may be approved only in instances of re- roofing of existing structures based upon an engineer's certification that the existing structure will not support a tile roof." To clarify, Mr. Roeder said Section 70- 187(2) basically states two conditions for his client and one condition for the Town. For his client, the conditions are that there must be a re- roofing situation and that there must be an engineer's certification. For the Town, the condition is that they must inform the client as to what metal roofs are then appropriate to the structure and the neighborhood. Mr. Roeder stated that he asked the Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 3 Town to provide that information on November 15, 2012 and he said the Town responded by saying that metal roofs are prohibited, period. He said a sample of the roof they are proposing is included in the package he provided to the Commission, which is by Englert, and he said it is one of the highest gauge and quality of metal roofs on the market. O Mr. Roeder went back to Part I of his response, saying that there is some disparity and confusion because Article V states "no metal roofs" and Article VI states "metal roofs under certain conditions." He said he called Marty Minor of Urban Design Kilday Studios and specifically asked him if a variance would be required to put up a metal roof if they partook in this Section, and he said Mr. Minor's response was, "No, it would be their out to the prohibition of a metal roof." Mr. Roeder referred to Part II of his response, saying that Mr. Thrasher quoted Section 70- 4(c)(4) How to use the manual, which states: "Prohibited items are design elements that do not maintain the desired character or quality of the zoning district within which they are located and are not permitted under current codes or regulations." Mr. Roeder emphasized "and." He said Mr. Thrasher states that there are no metal roofs on any single family homes in Gulf Stream because they do not maintain the desired character or quality of any zoning district. Mr. Roeder said he cannot locate this specific finding in the Code because he said it is not in the Code, it is Mr. Thrasher's opinion. He said it may not be necessary to address this because the Section does say that not only does it have to not maintain the desired character and quality of the zoning district, but he said it also must be prohibited by the Code. Mr. Roeder said it is a clear reading of Section 70- 167(2) that metal roofs are allowed within the Code and, therefore, they are not a prohibition and, therefore, this Section does not apply. He said even though there are no metal roofs on single family homes, there are metal roofs on several multi - family residential condominium buildings, such as Polo Ridge and the two -story condominiums located at 4400 and 4440 N. Ocean Blvd. Mr. Roeder noted Section 70 -4, How to use this manual, saying that the manual states, and he quoted, "[Gulf Stream Bermuda and Mediterranean Revival] styles are not mandatory but are indicative of the predominant styles within the community." He said he believes it is important that ^ these styles which are talked about in the Manual are not mandatory, but J basically a guide. Further, he said in 70- 187(2) it states, "a metal roof determined by the town to be appropriate to the structure and the neighborhood." Mr. Roeder said he spoke with Town Staff to say that his client wanted a metal roof and asked what type of metal roof would be appropriate and he was told metal roofs are not allowed. Mr. Roeder said that a style map and pictures are included in his response showing various styles and forbidden roof types, such as shingle, shake and flat. He noted that in Place Au Soleil, where his client lives, 70% of the lots are labeled by Town Code as "other /various styles" as are a majority of the homes in Gulf Stream. Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 4 Mr. Roeder pointed out that in his report Mr. Thrasher stated, "even though the footnote could provide for a metal roof, a variance would be required as it is still listed as prohibited." Mr. Roeder repeated that in his conversation with Mr. Minor, when asked if a variance would be required if they wanted to partake in this provision, Mr. Minor said, "No." Mr. Roeder added that Mr. Minor works for the firm that put the Town's Manual together. He said Mr. Thrasher took the position that 70- 99(3), since it was in the general section applying to the entire Town, is more restrictive, and it seemed to override the District -wide Standards in 70- 187(2). Mr. Roeder said that whenever there is a conflict you look somewhere in the ordinance for a conflict resolution. He said he found that conflict resolution in Article VI which states, "where the provisions of this Article conflict with those of Article V, the provisions of this Article shall prevail." Mr. Roeder said the Code is clear and he said where there is a conflict between Section 70 -99(3) and there is a conflict between Section 70- 187(2), Section 70- 187(2) will prevail. He said he believes a variance is not required, he has shown overwhelming evidence and he respectfully requests that the Board of Adjustment overrule Mr. Thrasher's administrative decision and approve his client's request for a metal roof. Mr. Randolph asked Mr. Roeder if he would direct him to the provision in the Code that says where there is a conflict the provisions of this Article will prevail. Mr. Roeder said it is at Article VI, District Standards, Section 70 -186 Paragraph B, last sentence . . . "However, where the provisions of this Article conflict with Article V, the provisions of this Article shall prevail." Mr. Thrasher said Mr. Roeder stated that there are metal roofs on multi - families in Gulf Stream. He said these are properties that were recently annexed into the Town and the Code would not speak to the issue. With regard to the differential between predominant styles, other /various styles and shake, shingle and other roof material, Mr. Thrasher said current Code was adopted after the construction of these homes and we assume Code was met when they were built. He said when applications for a re -roofs are submitted for these structures current Code will be the determining factor. With regard to the differential between area -wide standards and predominant styles, Mr. Thrasher said as style is determined it has been our practice that the homes and the work ^ must align with both the predominant style section of the Code and with Jarea -wide. He said Staff believes both area -wide and predominant styles are applicable in the appropriate instances, which is how they have always administered the Code. With regard to whether or not the exclusion of the asterisk provides Mr. Roeder's client the immediate option to apply for a permit, Mr. Thrasher said he believes prohibited items require a variance and metal roofs is listed under the prohibited section of the Code. He said Town -wide where the Code prevails, excluding the annexed area, there are no single family homes in Place Au Soleil, the Core area or any other district in Gulf Stream with a metal roof, which indicates it is prohibited. Based on his interpretation of the Code, Mr. Thrasher said it is inappropriate Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 5 to have the ability to immediately apply for a metal roof because of the asterisk. He said he believes there is a definite conflict in the Code between Section 70 -99 and Section 70 -187. Mayor Koch asked Mr. Randolph if there is a conflict in the Code. Mr. Randolph said that Article V is the section Mr. Thrasher talks about O that creates the prohibition. He said the provisions set forth in Section 70 -186 say "however, where the provisions of this Article conflict with those in Article V, the provisions of this Article shall prevail, and he asked Mr. Thrasher how that fits in with his comment that there is a conflict in the Code. Mr. Thrasher said he did not say he disagrees with Mr. Roeder's interpretation of the Code, but he said it appears to him that metal roofs are not desired on single family homes. Mr. Thrasher said that a single affidavit or engineering report from the applicant is inappropriate. He said the Town should also have a voice in that concern and he believes the Town's engineer should have an opportunity to test the engineer's report. Mr. Thrasher said the home was built in 1972 with a concrete roof, it was re- roofed in 1999 with similar concrete material and it has been able to support a concrete roof to date. He said the applicant's contractor submitted a re -roof permit application for a concrete roof, it was withdrawn by the applicant, his contractor informed the Town that the applicant no longer wants a concrete roof and prefers a metal roof and there was no indication of an engineer's report at that time. Mr. Randolph said the second part of Mr. Thrasher's answer relates to whether the Town must accept the engineer's certification or be allowed to have their engineer provide an inspection and report, but he said this is an issue to be discussed separately. He said the question before the Board of Adjustment is whether or not there is a conflict in the Code which requires the applicant to apply for a variance, and he said Section 70 -186 pointed out by Mr. Roeder is very important where it says . . . "where the provisions of this Article conflict with those in Article V, the provision of this Article shall prevail." Mr. Randolph said Mr. Thrasher is looking at Section 70 -99 which prohibits metal roofs and Mr. Roeder is looking at Section 70- 187(2) which also prohibits metal roofs, but provides an exception in the event they are ^ able to obtain an engineer's certification that the structure does not Jsupport a tile roof. Mr. Randolph said the Town requested information from the applicant which he believes should be addressed as testimony. Mr. Randolph administered the Oath to Town Clerk Rita Taylor, and he said there are two points to be addressed separately. He said the first point is whether or not there is a conflict in the Code requiring a variance, and he noted that an argument has been made that: The section the applicant is applying under is not in conflict because it specifically states that it shall prevail in the event of a conflict; and, they are arguing that this section is an exception to the Code because the section they are applying under has a prohibition that says there is an exception to the Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 6 prohibition in the event they can show that the structure will not support a tile roof. The second point relates to the engineer's certification and whether the Town is required to accept that certification on its face or whether the Town can test the engineer's certification by hiring their own engineer. Mr. Randolph asked Clerk Taylor to testify as to what she requested from the applicant with O regard to the Town being able to test the engineer's certification. Clerk Taylor said, through the applicant's attorney, she provided three dates and times that an engineer would be available and she said she asked for his client's approval to have the engineer enter the premises. She said she was told that, in the past, the applicant had been unwilling to allow anyone to enter. Mr. Roeder said Clerk Taylor did call him to ask for data or backup information justifying the engineer's certification and /or to ask for permission to have the Town's engineer come in. He said their position is that they are appealing the variance requirement and he said Clerk Taylor called after they filed their appeal. Mr. Roeder agreed that there are two separate points, one being whether or not a variance is required, and he said he does not think it is, and he said the second being whether the Code says you can provide a certification which then the Town can question. Mr. Roeder said we are talking about the variance issue right now, but he said if we are talking about the certification issue their position is that the Code is very clear and they have done what the Code requires, which is to provide an engineer's certification. Mr. Roeder said Mr. Thrasher stated that the Town does not have a position in this, but he said they do under 70- 187(2) which has two conditions that fall upon the applicant. He said one is to show that they are re- roofing, which they are, and the other is to provide an engineer's certification, which they have. Mr. Roeder said his client asked him to say that he is not stuck on a metal roof, but rather wants what is best for the home. He said metal is the lightest material they can use, shingle and shake are absolutely prohibited and he said, based on the square footage of the home, concrete is too heavy. Mr. Randolph said it is his understanding is that what Mr. Roeder is saying is his client's position is that the engineer's certification ^ must be taken on its face because of the way the ordinance is written Jand that the Town must accept the engineer's certification. Mr. Roeder said that is so, unless you can show cause why the Town would not have to accept the certification, and he said if that is the case the Code should say engineer's certification to be verified by the Town, or engineer's certification with backup. Mr. Randolph said their engineer's certification says "to the best of my knowledge and belief and based on my professional opinion." Vice -Mayor said she believes the Town can question the certification because there has been a concrete roof on the home for 40 years and the engineer now feels that the home can no longer support concrete. Mayor Koch asked Mr. Roeder if his client will object to the Town's engineer Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 7 coming in. Mr. Roeder said he has so far, and he said right now we are addressing whether or not a variance is required and he does not think it is. Vice -Mayor Orthwein said that under the circumstances she believes a variance is required because there is question with the engineer's report. Mr. Roeder asked Mr. Randolph if the Town can create a variance requirement because they question the engineer's report. Mr. O Randolph said the Town can ask for a variance if it is not proven that the engineer's certification is correct because if you do not meet that standard set forth in the exception you would need a variance from the prohibition. He said to Mr. Roeder that the burden is on you to show you meet the exception, and he said it is reasonable under the circumstances for the Town to test the engineer's certification in order to verify and it is not a reasonable interpretation of the Code to mandate that the Town accept an engineer's certification without having the opportunity to test it. Mr. Randolph said there are two separate issues. He said what Vice - Mayor Orthwein is saying is that she believes a variance is necessary in the event the applicant has not met the exception, and he said there is an argument that the applicant has not met the exception if he will not allow the Town to test or verify the engineer's certification. Mr. Randolph said if we test it and the final determination is that the structure can hold a tile roof the applicant will have to get a variance from the prohibition. He said we have to resolve the second question before final determination can be made as to whether you need a variance from the prohibition. Mr. Roeder said his client has challenged the requirement for a variance and if the Town takes the position that a variance is not required, but believes the applicant has not met the conditions of the exception, that is one story. However, he said to create a variance because you do not think the applicant has met the conditions of the exception seems to be adverse to the Code. Vice -Mayor Orthwein said she does not believe the applicant has met the conditions and she does not believe the Board of Adjustment can accept the engineer's certification since the structure has supported a concrete roof for 40 years. She said the Board of Adjustment would not be doing their due diligence if they did not question it. Commissioner Devitt said he served with the group of citizens that drafted the design manual. He said Urban Design Kilday Studios did not ^ write the design manual, it was a committee made up of a group of Jcitizens from the community. Commissioner Devitt said one of the priorties on their list of items to be addressed was metal roofs. He said he is very familiar with this provision because, at the time, he owned a home in Gulf Stream with a cedar shake roof and he and a number of citizens in the same position were concerned that if they needed a re -roof their structure would not support a cement roof. Commissioner Devitt said photos and addresses of structures in Place Au Soleil and other areas of Gulf Stream that cannot support a cement roof have been provided today and he said that is why the exception is written in the design manual. He said he believes the Town should be allowed to question the sentence in the engineer's report stating that the Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 8 structure cannot support a tile roof after it has held a concrete roof for 40 years. Mr. Randolph said this hearing relates to an appeal between the applicant and the Board of Adjustment. He asked Mayor Koch if he wanted to call for public comment, and Mr. Randolph reminded the public at this O time that the issue is not whether you like metal roofs, but rather whether or not our Code requires a variance and whether or not the Town has the right to go beyond the engineer's certification. Dan Sloan, an architect with Sloan & Sloan in Delray Beach, stated that over time the assigned values to the strength of wood has gone down because of safety factors being changed and the paranoia of safety lawsuits. He said you can get a variety of interpretations from engineers and those that are most paranoid of applying a higher safety factor will give a much lower strength to the roof whereas in realty in a rational analysis the roof is strong enough. Mr. Roeder pointed out that besides paranoia in applying safety factors, variations could also be a result of increased standards and new codes due to severe hurricane damage over the years. Commissioner Dering asked Mr. Roeder if his client refused to allow the Town to have another engineer look at the roof and, if so, he asked if his client will allow it now. Mr. Roeder said he has not allowed it to date due to a number of issues, and he said he probably will not allow it now. In closing, Mr. Randolph said there are two alternatives: If the applicant will not allow the Town to test the engineer's report, the Board of Adjustment should make the decision today as to whether or not a variance is required; or, the Board of Adjustment can defer giving the applicant an opportunity to allow the Town to obtain a report from another engineer. He said if another engineer's report verifies the first engineer's report to be correct the decision will be easy when the Board of Adjustment is back in session. Mr. Randolph said, based on what has been pointed out with regard to the provision that says "in the event of a conflict the provisions of Chapter 70 shall prevail," and you can show you have met the requirements, he said his advice to the Board of Adjustment would be that there is no conflict and a variance is not required. He said, if you do not show that you have met the requirements that the roof cannot support a tile roof the direct prohibition applies and you would clearly need a variance. Mr. Randolph said he does not believe the Board of Adjustment is obligated to make that determination until the applicant is willing to allow the Town to test the engineer's report. Vice -Mayor Orthwein said she believes a variance is required right now under the current Code. Commissioner Devitt said if the applicant allows the Town to have an engineer test the engineer's report and he verifies that it is correct, it will be a done deal, however, he said if the Town's engineer is in conflict with the engineer's report the applicant will have to accept that move on or come back to apply for a variance. Mr. Thrasher said he is concerned that we may not have resolution with two engineering reports and asked if there should be some thought to the two engineers agreeing to a third report. Attorney Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 9 Randolph said if there is a conflict between the two reports, the two engineers can select another engineer for a third report. He said it can be handled administratively. Commissioner Dering moved and Vice - Chairman Orthwein seconded to defer action on this matter until the next Commission Meeting scheduled for Friday, May 11, 2012, allowing time for the Town to hire an engineer to �i inspect the roof and, if the reports are in conflict the two engineers will jointly provide a third engineer for resolution. Further, in the event the applicant will not allow the Town the right of a second inspection, the Board of Adjustment will further consider the matter when back in session on May 11, 2012. There was no discussion. All voted AYE. Mr. Roeder requested the Motion be available in writing by Monday, April 16, 2012. VIII. Reports. A. Town Manager With regard to the Undergrounding Project, Mr. Thrasher said Danny Brannon has confirmed that he is in receipt of the Comcast estimate. Mr. Brannon also confirmed that FP &L has still not assigned an engineer to the project. Mr. Thrasher said the south end surveying is almost complete and the surveying has begun on the north end. Mayor Koch asked all present if they knew anyone who might represent FP &L. Joe Pike of EnviroDesign said that FP &L are notorious for delays. He said that the City of Delray Beach has a relationship with FP &L and since the Town has a relationship with Delray Beach they may want to consider asking Delray for assistance. Mayor Koch thanked Mr. Pike for that suggestion. B. Architectural Review & Planning Board 1. Meeting Dates a. April 26, 2012 @ 8:30 A.M. b. May 24, 2012 @ 8:30 A.M. c. June 28, 2012 @ 8:30 A.M. d. July 26, 2012 @ 8:30 A.M. e. No August Meeting. f. September 27, 2012 at 8:30 A.M. C. Finance Director 1. Cash & Budget Report for March 2012 Mr. Thrasher requested that the Cash & Budget Report for March 2012 be �? approved as submitted. Vice -Mayor Orthwein moved and Commissioner Anderson seconded to approve the Cash & Budget Report for March 2012 as submitted. There was no discussion. All voted AYE. 2. Water Usage as of March 31, 2012 Mr. Thrasher explained that the Town is running under budget which is offset by the reduction in expenditures. He said we are now billing for Reserves and that money will be deposited in a separate account. Mr. Thrasher said the volume of water is down and he said he has found no internal errors that would cause the decrease in numbers. Commissioner Anderson suggested that the decrease in volume may be as a result of the water restrictions imposed on residents. Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 10 D. Police Chief 1. Activity for March 2012 Chief Ward requested that the Activity Report for March 2012 be accepted as submitted. Commissioner Anderson asked Chief Ward if there have been any further dog issues. Chief Ward said there have been no further issues to date. The Activity Report for March 2012 was accepted as Osubmitted. IX. Items for Commission Action. A. Request to extend sewer force main -G.S. Homeowner's Improvement Association Mr. Thrasher stated that, as requested by the Commission at the last meeting, Staff did send notices to those residents who could be affected by today's decision. Joe Pike, Civil Engineer with EnviroDesign, stated that he represents the Gulfstream Golf Course in this matter. He provided a handout to the Commission and summarized saying that he is here to request that the Town grant permission to place approximately 1250 linear feet of 3" force main or pressurized sewer line in the right -of -way of Gulf Stream Road. Mr. Pike referred to the aerial map in his handout which depicts in red where the sewer line will be, which is located on the east side of the roadway, north of the Golf Club and running almost to Lakeview. He said it will be an extension to the formerly approved Gulf Stream Association Sewer System and will be available for future connection by residents along the extension, as well as for the immediate needs of the Golf Course itself. As a reminder, Mr. Pike said this same request was brought before the Commission at their March meeting and they were asked to come back to allowing time for the Town to notify residents and also to give him enough time to get the information requested by the Commission. He said at the last meeting Commissioner Devitt asked if those residents along the line would be required by the Health Department to connect as a result of the sewer being available. Mr. Pike directed attention to the 2011 Florida Statutes Chapter 381.00655, appropriate excerpts highlighted, which was included in his packet. He said if you have a failing system the Health Department would not grant a permit for repair or replacement and, therefore, he said you would be required to connect to this system. Mr. Pike said this extension is actually a benefit to the residents because it gives them option they do not have at this point. He said if you do not have a failing system, the Health Department does not enforce connection and it remains voluntary. Mr. Pike referred to the maps he included in his packet bringing attention to the second map which represents a scenario the Commission has seen, considered and voted on in the past, and he said it demonstrates in yellow where lines were anticipated as part of the Association's sewer system. He said both Polo Dr. and Gulf Stream Rd. were to have lines at some point in the past, and he said it shows the anticipated line on Gulf Stream Road and the connection to the Golf Club, which he said they would like to complete. Mr. Pike said the Agreement between the Association and Boynton Beach, which has been in effect for the past 22 years, is included in the packet for information. Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 11 He said it has never been required to be modified through the City of Boynton Beach and has no limitation to the volume that Boynton has agreed to supply. Mr. Pike said Boynton Beach has asked them to demonstrate that the Association System be capable of handling the additional flows and they have not yet accomplished that, but he said they are working on that and it will be a condition of what they are asking today. Commissioner Dering moved and Vice -Mayor Orthwein seconded to allow use of the Town's Right -of -Way to extend the private sewer force main approximately 1250 feet south to end south of Golfview Drive on the east side of Gulf Stream Road with the following conditions: 1. Prior to construction as built drawings and electronic files will be provided to the Town for all work completed to date. 2. Construction will be coordinated with the Town's water utility and electric undergrounding consultants. 3. When the GSGC Actually connects to their facilities the main will go under Golfview Drive and not cut through the Golfview Drive pavement. The GSGC will also stay a sufficient distance from the Australian pine trees along AlA as determined by the Town's arborist Way Hoyt. 4. Prior to construction, approval from all applicable regulatory agencies such as the Health Department and the City of Boynton Beach must be obtained. 5. Prior to construction, detailed engineering modeling information will be provided to the Town assuring that the proposed connection of the Club to the system will not deplete the capacity of the system or hinder the ability of other residents in the neighborhood to connect to the system in the future. Mr. Pike clarified two points. He said the asbuilt drawings are for the existing portion and he said they will not be able to provide asbuilts until it is in the ground. With regard to the construction and coordination with the Town's electrical underground consultants, Mr. Pike said they are happy to do that and the effort would be to construct at the same time if possible, but he said they do not want to be held to that if the timing is not feasible. Earl Harvel stated that he sees no problems and there should be plenty of room for everyone in that area. There was no further discussion. All voted AYE. B. Appointments /Re- appointments to the Architectural Review And Planning Board Clerk Taylor announced that there are four regular members and one alternate member whose current terms are expiring and all of whom are eligible to serve another term, as follows: Robert Ganger, Scott Morgan, Tom Smith, Malcolm Murphy and Amanda Jones. Commissioner Dering moved and Vice -Mayor Orthwein seconded to re- appoint the following members of the Architectural Review and Planning Board for another 3- year term: Robert Ganger, Scott Morgan, Tom Smith, Malcolm Murphy and Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 12 Alternate Member Amanda Jones. There was no discussion. All voted AYE. Mayor Koch thanked the Members of the ARPB for their time and effort put forth for the Town of Gulf Stream C. Items by Mayor & Commissioners Commissioner Anderson asked Mr. Thrasher if he had an update with regard to the Inspector General matter. Mr. Thrasher said mediation is scheduled for May 18, 2012 and the Town of Gulf Stream will attend. He said he has not yet received specific instructions concerning mediation. X. Public. Tom Murphy, Esq., introduced himself and said that Nancy Touhy asked him to look into the history of what has transpired at 1220 N. Ocean Blvd., which is the old Spence Property, when he returned from his northern home. He said the Spence matter began before July of 2011, but he said July 28th is when the developer first appeared before the ARPB for a plat. He said one of the most pristine parcels in Gulf Stream is now a barren landscape, and he believes there could have been a way to save the property from what is happening there now. Mr. Murphy said he is aware of how fastidious the Town Staff, Attorney and Commission can be with something as simple as the color of a door and yet, he said one of the last great and beautiful parcels of land in Town is now barren before six homes will be stuffed on the parcel. He said all of this happened while residents were away and they were not notified of the Spence Property being the subject of a Plat application to the ARPB. Further, he said only the residents who were directly affected by the development, or in the immediate neighborhood, were notified. Mr. Murphy said although his comments come after the fact he is present to say that this can never happen again. He made the comment that there are professional relationships in the community that are not good, and he said even though elected officials may recuse themselves from the governing body, the Town cannot have elected officials who are in business in the community and profit by fact that they are in that business. Mr. Murphy said the developer broke his promise to save the canopy when a Banyan tree on the South road of the Spence Property went down this week. He said photos were taken by Mrs. Touhy while this was happening and he asked who is monitoring this project while all of this is going on. Mr. Murphy said Scott Morgan pleaded with the Commission on O November 10, 2011 saying this is a special district and there are provisions which should be reviewed. Then the developer's team of very good lawyers, architects and engineers used Chapter 177 to win their case. He said the commission fought hard for the Australian Pines and the bike path, but they did not fight to preserve this land due to the fear of a lawsuit, and he said it was poorly done. Mr. Randolph advised the Commission that Murphy gave a statement and he said no questions directed to the Commission are pending. Mayor Koch said it seems that there are many things Mr. Murphy does not understand or does not want to understand. Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 13 Nancy Touhy of Property, said was that every Hidden Harbour shielding the photos showing 1200 N. Ocean Blvd., which is next door to the Spence her understanding at the November 10th Commission Meeting precaution would be taken to preserve the canopy over Drive. She said the canopy went over the driveway sunlight and most areas are now gone, and she said she has what happened. Mrs. Touhy said she heard a chainsaw and drove to the site where a Banyan tree was being taken down and asked the man in the bucket truck what he was doing. She said he told her that the contractor instructed him to take it down because it was in the way. Mrs. Touhy said it is horrific and shameful and many residents are very sad over this. Mrs. Touhy said she called Mr. Laudani at Seaside Builders, left him a message about the matter and he never returned her call. She said there was another man who wanted to buy the Spence Property, live in the existing house and build two other homes on the property. Mrs. Touhy said this man met the asking price, but she said he never had the opportunity to rebid. In addition to the removal of the Banyan tree, Mrs. Touhy stated that all of the residents that surround the Spence Property are breathing in the dust from the construction, the air is becoming contaminated and she said nothing is being done about it. Dan Sloan of Sloan & Sloan Architects said he represents the Delray Beach Preservation Trust and he is promoting the concept of the Commission considering the adoption of a self - preservation ordinance. He said the Town could have a separate board or the Commission could act as a historic preservation board with the idea that a similar situation will not happen in the future. To maintain the Town's history rather than losing it to overdevelopment, Mr. Sloan suggested the board could promote a cooling -off period or promote entertaining alternate bids. He said this has worked very well in Delray Beach. Mayor Koch asked Mr. Sloan if Delray Beach had adopted such an ordinance and Mr. Sloan confirmed that. Vice -Mayor Orthwein said it is a very good idea and the Commission should definitely look into this. Mayor Koch said the Spence process went through the ARPB, everything was studied, the Town's Ordinance allowed it, the developer complied and there was nothing the Town could do to stop it without facing a lawsuit. Robert Ganger, Chairman of the ARPB, said he concurs with the Mayor and that the Board did this by the book. He said adjustments are being made O to the Ordinance with respect to subdivisions, design and hammerheads, and he said it is all in the right direction. Mr. Ganger said he did not see the tree that came down, but he said if the developer was not permitted to take it down by the development agreement he would urge the Town to apply sanctions, as was recently done in Palm Beach as a result of a similar situation. Vice -Mayor Orthwein said if anyone sees something like this happen they should immediately call the Town. Mr. Thrasher said he did receive a couple of calls from residents saying the tree was coming down, he followed up with the developer, and he said the developer's response has not yet been validated by an expert. He said a tree trunk can be outside of the 15 -foot clear zone and its canopy can reach across the Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 14 road, which was the case in this situation. Mr. Thrasher said the developer also claimed that the tree was rotten and the Town will need to look into whether he would have been allowed to remove the tree in that respect. Mr. Ganger said nothing this big has happened in Gulf Stream since the beginning of the construction of MacMansions along the ocean, and he said this is worse. He said the developer will have a hard time when he comes before the ARPB for six houses that will not fit the character of the neighborhood because the character was based on the house that was torn down. Mr. Ganger said the Board was backed into a corner and he remembers looking at the attendance that day and seeing seven attorneys, seven architects and seven realtors sitting together, which he said is not a typical ARPB Meeting. He said residents in the room had just found out about this site plan and, for the first time, the ARPB deferred the matter giving residents time to negotiate with the developer, which they did. Mr. Ganger said it was summer and there was nobody in Town, and he said he tried to reach Mrs. Touhy, but could not because she was traveling. He said he started calling all of the neighbors and there was not much of a response. He said he hired an archeologist to walk the property and he brought Mrs. Volt, the daughter -in -law of the original architect, to confirm its historic background in an attempt to put things in perspective. Mr. Ganger said the developer had the right to do what he did and the ARPB voted in favor of this project based on finding of fact. He said the developer then asked for a site plan approval and demolition permit. Vice -Mayor Orthwein agreed saying it was something they have not seen in Town and they did the best they could do with the Code, as was the case when they built the homes on the ocean. She said whether or not we go through historic avenues it is very important to redefine our Ordinance to protect the future. Jim Walton of 520 Banyan Rd. said the Civic Association met several weeks ago, this room was more filled than it is now and everyone was damn mad because of what has happened. He advised the Commission that there must be a change of business in this community. Mr. Walton said it was okay when nothing was happening, but he said now there are people who want to make money, they want to get in public positions and they want to use their ways to make money. Mayor Koch asked Mr. Walton who that might be. Mr. Walton said he did not know and he was not going to Omention names. Mayor Koch said to Mr. Walton, if you do not know then you should not mention it. Mr. Walton said he would not say anything more about it. He said the Town must change ways of doing business and residents must be more informed. Further, he said it is ridiculous how residents find out about meetings, which is to go to Town Hall to look at the Board. Mr. Walton said everyone should be informed of meetings, everyone has email and the meetings should be published. He said he has received mail from the Town saying Bill Thrasher has the right to choose house color, but something crazy like Harbour View can happen. Mr. Walton said it is time for a change of business and the residents should be better informed. Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 15 Bill Boardman of 3251 Polo Dr. said hopefully the Town will evaluate a broader perspective as to what is going on with regard to development, the imposition it may cause for the neighborhood and what can be done tc minimize that imposition. He said the perception among residents is that the Town is overly compliant with the building and development process and there is no question that the Code is in need of revision. Mr. Boardman said there are things being done in full compliance with current Code, but the Code, as it is, will not work for long. He said Mayor Koch should not take these comments lightly and the Town should be reviewing many different parts of the current development process because changes are greatly needed. Ellen Walton of 520 Banyan asked the Commission if there is a plan to oversee this development and she also asked what the Town was going to do about the Banyan tree that was removed. The Commission was asked by a member of the public if anyone has taken the time to visit the site and she asked why the Town has not enforced the erection of a fence around the construction site to block the dust and noise. Mayor Koch said that the Town will see that the developer takes care of the dust issue. Mr. Thrasher stated that Staff will analyze all of the comments made today and develop a plan to monitor this situation. With regard to the removal of the Banyan tree, he said a land clearing permit is required and the developer has that; however, he said Staff will ask for a legal opinion and will develop a course of action. Commissioner Dering asked Mr. Thrasher about monitoring and evaluation procedures for construction projects. Mr. Thrasher said our inspections are done by the City of Delray Beach and they have Florida Building Code expertise. Mr. Randolph said that the Town can and should monitor this project to ensure that the developer is abiding by the conditions of approval, and he said if they are not doing so the Town can delay the project until things are taken care of. With regard to the dust issue, Mr. Thrasher said that NPDES requires the dirt to be covered, but he said they may not require a fence. Mr. Randolph said these issues can be considered a nuisance which could possibly be abated by fencing and, he said although there is nothing in the Code to compel the installation of fencing, the Town could ask the developer to address the issue. A member of the public suggested that the Town address this matter in the Code for the future. i A member of the public asked how residents will know that the Town has spoken to the developer about these issues. Another asked if meeting minutes could be distributed to the residents. Mr. Randolph suggested that a representative of the group provide their name and address to Staff and the Town will contact them. He also suggested that residents attend the public meetings. A member of the public suggested that the Town seriously consider asking the developer to replace the Banyan tree and suspend all work until it is replaced. Mr. Sloan asked about stabilizing the soil to prevent the dust. Mr. Thrasher said that soil stabilization was a condition of approval and it was done. A member of the public asked about the changes in elevation and Mr. Thrasher said Regular Meeting and Public Hearing of Board of Adjustments Town Commission - April 13, 2012 Page 16 that in order to accommodate their drainage plan the new elevations, which change the contour of the site, were approved. A member of the public suggested that Staff and Commissioners drive to the site to view the change in the canopy, and they said the Town should request that the developer provide additional plantings in that area. (') Mayor Koch suggested that Staff arrange a meeting with the developer to �J address these issues. Mr. Randolph suggested that residents attend the next meeting to be informed of the outcome of a meeting with the developer. Mr. Ganger said everyone should drive by the site periodically, and he said the ARPB is working on modifying the Code with respect to subdivisions and not allowing a subdivision to change the contour of the land. He said when the subdivision was presented to the ARPB it was difficult to get residents to attend the meetings; however, he said there was public attendance and those who spoke were cross - examined by attorneys during the quasi - judicial hearing, which was scary. Mr. Ganger said the Civic Association is a communicator, and he said they tried to obtain email addresses from residents for the purpose of informing them of issues that may affect them and receiving their response. A member of the public said Gulf Stream is not a big Town and residents would appreciate sensitivity with respect to how certain issues may affect them. Members of the public recommended a mailing of meeting notices to residents, an email blast of meeting notices to residents or a website to include a meeting schedule. In closing, Mayor Koch said the Town Commission and Staff do realize the concerns of the residents. With regard to the subdivision matter, Vice - Mayor Orthwein said the Town realizes the need for Code modification, but she said the approval process for the subdivision plat was by the book and our hands were tied. XI. Adjournment. Commissioner Anderson moved and Commissioner Devitt seconded to adjourn. The meeting was adjourned at 11:05 A.M. Gail C. Abbale Administrative Assist