HomeMy Public PortalAbout1990-03-08 Special Meeting191
COUNCIL MINUTES
MARCH 8, 1990 - SPECIAL MEETING
The special meeting of the Bal Harbour Village Council was held
on Thursday, March 8, 1990 at 3:30 p.m. in Village Hall and in
the residential area of the Village. The meeting was called to
order by Mayor Estelle Stern and the roll was called. Those
present were:
Mayor Estelle Stern
Asst. Mayor Matthew B. Blank
Councilman Sol Taplin
Councilman James E. Boggess
Councilman Andrew R. Hirschl
Also Present: Carole S. Morris, Village Manager
Richard J. Weiss, Village Attorney
Marilyn P. Kreger, Village Clerk
Having a quorum present, Mayor Stern called upon the Village
Attorney to explain the purpose of this meeting that being to
conduct a field trip through the Village to view certain
satellite dishes that were erected before making any decisions
thereon and then to hold a meeting in the Chambers to discuss the
matter.
Three cars were used for traveling. C/M Boggess drove Mayor
Stern, C/M Taplin and Ann Simmons, reporter with the Herald.
Richard Weiss drove C/M Hirschl and Marilyn Kreger. Carole
Morris drove Asst. Mayor Blank and George Desharnais. The
Village Clerk took notes (on file in Village Clerk's
office)during the field trip of observations made of each of the
satellite dishes. The consensus of opinion in the field was the
dishes do not appear to be a major problem which opinions were
expressed subsequently at the meeting.
Reconvened session in Council Chambers:
Attorney Weiss stated there is no question that some or all
dishes violate either the word or spirit of the ordinance. The
decision that Council needs to make is what to do with the
existing dishes. If Council feels that, irrespective of the
ordinance, they are not egregious, then they would need to direct
staff to take whatever actions necessary to grandfather those
five dishes. If, on the other hand, Council feels the dishes are
not something they want to stay as is, then that decision needs
to be made. After that decision is made, then staff would go to
work to carry out the Council's decision.
Mr. Weiss added that if the second choice is decided there may be
consequences to that. Mayor Stern questioned whether a precedent
would be set if Council agreed on the first choice. Mr. Weiss
said that if Council decided that the five dishes are not
objectionable and would permit future dishes to go up in a like
192
manner, then the ordinance would have to be amended to change the
criteria. On the other hand, if Council permitted the five
dishes to remain as is, but wanted to go back to the letter of
the law for future dishes, then there may be some modifications
to be made to the ordinance and follow it strictly.
C/M Taplin stated that he didn't think 15 feet was high enough,
that perhaps the ordinance to allow up to 21 feet. Mr. Weiss
stated that the 15 feet came from the county ordinance and is the
standard throughout the county. It does work, but the problem
experienced with it in the Village is that the people on the
water didn't want to but it either on the waterfront which would
ruin their view and it is illegal to put it on the street side.
As a result, they were installed on the side of the house.
Because of the narrow side setback, there wasn't enough room for
the dish to rotate to follow the satellite, so they were raised.
Attorney Weiss stated that what he would do if the ordinance was
rewritten, is to distribute to people in the industry to make
sure that it is practical.
George Desharnais stated that problems do arise with ordinances
which doesn't mean it is a bad ordinance. Some people just can't
do what is required in the ordinance. He has not done final
inspections on any of the five dishes except C/M Hirschl. There
is only one that he might pass. He feels the issue to deal with
is screening the dishes because they are objectionable to other
people. Mr. Desharnais reiterated the problems with installing
the dish on the side of the house at 15 feet and that there
wouldn't be a problem with the 15 feet on the waterfront if there
is no pool, or in the rear of a house. He said people are going
to raise the dish until the signal can be picked up.
Asst. Mayor Blank said he didn't find any serious objection to
the dishes he saw with the exception of the Marshall's dish which
is on the roof. Mr. Desharnais stated that he informed the
Marshalls and their contractor that the dish cannot go on the
roof and of the 15 foot requirement. He made a mistake in that
on the plan it showed 15 foot from the bottom to the top and it
said "the grade" he assumed it meant the "grade". But the
contractor circumvented Mr. Desharnais by putting down "the
ground", which are similar. The contractor meant the "ground
wire" going to the ground.
Asst. Mayor Blank stated that the 15 foot requirement should be
raised to about 22 feet to the top of the dish. Mr. Desharnais
said a problem could arise in another case as did the Marshalls
where there wouldn't be a place to put the dish anywhere on the
ground, so it would end up on the roof. He wouldn't support
roof -mounted antennas. But the question is raised of where to
put the dish when you can't put it anywhere on the ground.
3-8-90 Spec. Council Mtg. 2.
193
C/M Taplin stated that if it is put anywhere other than the
street side and limit the height to 15 feet.
C/M Boggess questioned whether the dishes come in other colors
such as white and green. Mrs. Morris said the ordinance
restricts the color. She said the ordinance requires a 15 foot
ground mounted with a variance procedure. C/M Boggess observed
that in the cases of Marshall, Larin and Combs, the dishes would
not be offensive if they were white or green. Mrs. Morris read
the requirement from the ordinance.
Mrs. Hirschl stated that she believes Council should focus on
what is to be done with those dishes that are existing. She
discussed the fact that plans were submitted with no discussion,
but the plans given to the Council as part of the backup
representing the Hirschl plans are dated August 1989. Mrs.
Hirschl stated that they did not meet with their contractor until
October 1989. The plans which are being represented as the their
plans are the same as those of two other families; are dated the
same and the house on the plan is not theirs. She feels like a
victim.
George Desharnais stated that there are two different satellite
dish companies that did work in Bal Harbour. They have one set
of plans for their basic dish which is used for everyone. C/M
Hirschl said that shouldn't be allowed. Mr. Desharnais stated
that the dish is an manufactured item with few variations in the
way they turn. He said what is different is the survey of the
individual houses.
Mr. Desharnais suggested that if there is a situation where the
15 foot requirement cannot be met, it the individual put the dish
at whatever height he wants as long as it doesn't exceed the roof
level and make sure it is 100% screened. He doesn't think that
the height is the objection, but the appearance. He doesn't
think that it was the intent of the author of the ordinance to
screen the dish, because the ordinance says screening up to 10
feet no matter how high the dish is.
Asst. Mayor Blank moved to leave four (4) of the five (5). The
one on the roof he objects to.
C/M Taplin stated that if the dish that is mounted on the roof
can be screened, then it should be allowed as well.
Attorney Weiss advised that it would be discriminatory
enforcement to allow all except one. A legal problem would
exist. What the Council could direct is that the current
ordinance would not be enforced as to any of the five dishes, but
they would be required screen the dishes to the satisfaction of
the building official, so the dish is not visible from the
street. Short discussion was held on which dishes might be able
to be screened and which could not.
3-8-90 Spec. Council Mtg. 3.
194
Council discussed that for those dishes that cannot be screened
would have to be moved to a location where it could be screened.
Mrs. Hirschl commented that such a requirement would create an
estoppel argument on the part of the homeowner. The dishes have
been permitted to be installed in those locations. Mistakes were
made and the Village would have major liability.
The dishes that were installed without permits were done before
the ordinance was enacted. So they do not have to comply. The
problem is those that were installed after the ordinance was
enacted but without plans.
Mr. Weiss stated that the house on Camden Drive that "Jack built"
is grandfathered. The other five houses had permits issued. If,
on the plans, there was a site plan that showed the location of
the dish and the dish is put up in accordance with the plan, then
the Village has liability because the plan was approved by the
Village. The liability might not be great, perhaps just the cost
of moving the dish or screening. On the other hand, if,on the
plan, the dish is shown someplace else on the property, and it is
put in another location, that is a different story. Of, if the
dish was not installed in accordance with the plan.
George Desharnais disagreed with Mr. Weiss's statement. He said
the Village does not have the right to violate the South Florida
Building Code or the Zoning Code even if it is not on the plan.
That is called compliance. He suggested that the homeowners
would probably do what the Council would want, if they were
spoken to. The matter could have been handled administratively
except for the complaint that was logged relative to the
Marshall's dish.
Mr. Desharnais questioned why the Building Department can't go to
the properties to enforce the ordinance. C/M Taplin stated that
enforcing the ordinance to require the dishes be lowered to 15
feet from 17 feet, for instance, isn't going to make them more
attractive.
C/M Hirschl and Mrs. Morris stated that the entire matter was
brought to the attention of the Council by C/M Hirschl two months
ago when he stated at a meeting that he thought there was a dish
in the Village that is in violation of the ordinance and the
ordinance was not being enforced properly. He added that the
previous minutes reflect that the ordinance was not adhered to by
the Building Department. Whether or not the ordinance could be
accommodated is not the issue.
Mr. Weiss added that Mrs. Morris was instructed to look into the
matter as to compliance of the ordinance and see to it that it is
enforced. That is when it was discovered that the Village didn't
quite handle the matter properly.
3-8-90 Spec. Council Mtg. 4.
195
C/M Taplin stated that if the Village didn't handle it properly,
then it has to live with the mistake and grandfather in those
five dishes and redraft the ordinance that they can live with.
Asst. Mayor Blank's motion died for lack of a second.
C/M Taplin moved to direct staff to take whatever steps are
necessary to grandfather in the five existing dishes and to
review the existing ordinance for appropriate revisions. Asst.
Mayor Blank seconded the motion.
Vote Taken: A11 Voted Aye (C/M Hirschl abstained from voting on
this issue because he has a personal interest in the matter
because he is one of the five homeowners in question)
C/M Boggess stated that he is not happy with the way this matter
has transpired. There is misunderstandings and lack of
communication among the administrative staff. It is his
understanding from the minutes that the Manager has directed the
Building Official not communicate with the homeowners and he
hopes she reconsider that. If the Building Official is permitted
to speak with the homeowners, then perhaps something could be
done to enhance the screening or lower a couple of them even
though they are grandfathered in.
Mrs. Morris stated that she agrees with C/M Boggess, but that was
done because of the position of liability the Village has been
in. C/M Boggess indicated that since the Village no longer has
that liability, she would reconsider her directive.
Asst. Mayor Blank questioned Mr. Desharnais as to when he
receives a set of plans and a permit is issued, does he make
inspections of the work. Mr. Desharnais stated that he has not
been permitted to make inspections in this case. He restated his
position that the Village does not have liability. Mrs. Morris
stated that her directive to not make inspections was made within
the past month.
Mr. Desharnais stated that the procedure for making inspections
that he has to wait for the contractor to call in for
inspections. The contractor's have not called for inspections on
the dishes until C/M Hirschl brought up the matter at the Council
meeting. He doesn't know if anyone in the Village who is not
willing to comply with the ordinances, but they have not been
given the opportunity. Discussion was held on the procedures
followed by the Building Department and whether they are
appropriate or not.
Item #4. Adjourn. There being no further business, C/M Boggess
moved to adjourn, seconded by Asst. Mayor Blank.
Vi11agL Clerk
Mayor Stern
3-8-90 Spec. Council Mtg.
5.
(b) The measure on which 1 abstained and the nature of my interest in the measure is as follows: /l
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Date Filed Signature
Please see PART C for instructions on when and where to file this form.
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PART B
VOTING CONFLICT DISCLOSURE FOR STATE OFFICERS
[Required by Section 112.3143(2), Florida Statutes (Supp. 1984).]
Each state public officer is permitted to vote in his official capacity on any matter. However, any state officer who votes in his official
capacity upon any measure which inures to his special private gain or the special gain of any principal by whom he is retained is required
to disclose the nature of his interest as a public record in Part B below within 15 days after the vote occurs.
I, the undersigned officer of a state agency, hereby disclose that on 19
(a) I voted on a matter which (check one):
inured to my special private gain; or
inured to the special gain of by whom I am retained.
(b) The measure on which 1 voted and the nature of my interest in the measure is as follows:
Date Filed Signature
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PART C
FILING INSTRUCTIONS
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FORM 4 - REV. 10-84