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HomeMy WebLinkAboutDocumentation_Regular_Tab 05C_02/08/2001 � C rE ' , � v � VILLAGE OF TEQUESTA � , � DEP�?1ZTNIENT OF COMMLJNITY DEVELOPMENT � � Post Office Box 3273 • 357 Tequesta Drive ; �� '� o � Tequesta, Florida 33469-0273 •(561) 575-6220 � � � " F�: (561) 575-6239 N co BUARD OF ADJUSTMENT WORKSHOP MEETING A�IINUTES DECEMBER 14, 2000 I. CALL TO ORDER AND ROLL CALL The Village of Tequesta Board of Adjustment held a workshop in the Police Department conference room at the Village Hall, 357 Tequesta Drive, Tequesta, Florida, on Thursday, December 14, 2000. The meeting was called to order at 6:10 P.M. by Village Attorney John C. Randolph. Boardmembers present were: Vice Chair James Humpage and David Owens. Boardmember Steve Pullon arrived at 6:30 p.m., and Boardmember Jon Newman arrived at 6:34 p.m. Also in attendance were Scott D. Ladd, Clerk of the Board, and Village Attorney John C. Randolph. Chair Revin Kinnebrew was absent from the meeting. II. CONII��NTS BY VILLAGE ATTORNEY Village Attorney John C. Randolph announced that he had been invited by staff to speak to the Board for the benefit of those members who were new to the Board. Attorney Randolph made the following comments: In regard to the Sunshine Law, it is very simple-you cannot talk to another member of this Board outside a public meeting. Sunshine Law states that all public meetings shall be in a public place, shall be noticed, minutes shall be taken; and that any conversation you have outside the public meeting is illegal. You can't talk to each other on the phone, you can't talk to each other at a cocktail party about business of this Board. That doesn't mean you can't talk to each other at a cocktail party, but just simply you can't talk to each other about business of this 8oard outside a public meeting. That doesn't mean that you cannot talk to staff and that doesn't mean that you cannot talk to Recycled Paper Board of Ad.justment Workshop Meeting December 14, 2000 Page 2 an applicant or to a neighbor that is opposed. However, any of those conversations that you have, you have to report under ex-parte communications when they ask for ex-parte communications. That's the basis of the Sunshine Law. Boardmember Owens commented he understood all of that but expressed concern if he ran into Mr. Humpage at Pubiix and they were talking, and someone saw them talking and assuxned they were talking about something in regard to the Board business, and accused them of doing so. Boardmember Owens asked how that situation should be ha�dled, to which Village Attorney Randolph responded: You wauld simply say we were not talking about business that comes before this Board. As a purist, I would say avoid getting together with anybody on this Board, but it's a small community and you can't do that. So, I can't tell you to do that, and it's not illegal for you to get together with Jim, but it is illegal if you talk about business. And I have always emphasized when I talk about the Sunshine Law, the perception of a violation of the Sunshine Law. It's a violation of �he Sunshine law if the Council or you take a break and stand around and talk to each other about the business when you're not on record, and if people are whispering to each other up there at the Board and the public can't hear it. And this often happens in your meetings-people will be looking over plans and they will be talking to each other. That's a violation of the Sunshine I,aw because its not in front of the public. Everything you do should be made a part of the record and should be recorded, and we should discourage-and the Chair should discourage whenever he or she hears other conversations going on other than the one that' s supposed to be recorded-he should discourage those conversa�ions from taking place. He should just say, excuse me, you need to speak into the mike if �rou have anything to say about this application. You should not have these sidebar conversations going on. The Sunshine Law you all know about and its not r�ally what I needed to spend time on-what I really wanted to spend time with you on is the nature of the business of the Board of Adjustment. You sit in a quasi-judicial capacity. That means you sit as judges, and as you know, judges apply the law and they are constrained to follow the law. Despite what you may think about the Florida Supreme Court or the II.S. Supreme Court, judges are not supposed to rule on the basis of how well they like somebody, or whether they are the same political party, or whether they think-hey, this Board of Adjustment Workshop Meeting December 14, 2000 Page 3 project looks pretty good, I don't have any objections to it, it looks aesthetically pleasing, I like it, it fits my taste, therefore I'm going to vote for it. That's not what you do in a quasi-judicial forum. You have criteria that you're required to follow. Although I don't have those with me, you have copies. There are seven criteria. And you don't have to meet just one of those criteria in order to get a variance, you are suppose to meet all of them. They are criteria such as, there has to be a hardship that is unique to your particular property that is different from other properties in the area. It has to be the minimum variance that should be granted under the circumstances. In other words, if you' re adding a porch and you' re looking for a setback-they should be seeking the minimum variance, not the greatest variance that they can get. It cannot be a self-inflicted hardship. A self-inflicted hardship would be if somebody built a house larger than they had to from the beginning, and now, lo and behold, they don't have room for a pool anywhere; or lo and behold, they don't have room for a back porch. Well, that's really too bad because that's a self-inflicted hardship. They wanted a bigger house, so � unfortunately, they can't have a pool. I see too often, not just here but in other places, people ignoring those criteria, and just thinking they are sitting as a group of five people to sort of come to a consensus as to what they, as a body, would like to allow in this Village. And you just don't have that authority. You don't write the laws here, and you're not here to make the laws. You're here to follow the criteria that are set up. I have gone to Court for municipalities where peogle have attacked- -neigYibors will have attacked a decision where somebody has granted a variance, say for their next door neighbor, and all they have to do is go into Court and argue, Judge there wasn't anything in the record to support the fact that the applicant met all seven of those criteria. And what the Court looks at, it won't substitute its opinion for yours, but it will look at the record to make a determination as to whether there is substantial competent evidence-the words they use are substantial competent evidence-to support the fact that all of those criteria have been met . And if there is nothing in the record to support that, they will throw out your decision. I will tell you this--that the Courts have interpreted this very strictly. And �n a case that I had they actually made some law which was pretty bad law for the people that wanted to grant variances, but it said that Board of Adjustment Workshop Meeting December 14, 2000 Page 4 you can't grant a variance unless except for the variance there is no reasonable beneficial use for the property. Which would preclude a person from even getting a swimming pool, beeause you could say well, they've got a house on the property so why should they have a swimming pool. That's a strict star�dard, but it' s a standard that' s been applied and used against me in several circumstances. And neither Scott nor I can tell you whether or not a person has a hardship-you've got to make that determination based upon what you've heard on the record. .And often times, it may be close or it may not even be there, but as long as a reason has been given and you believe there is substantial competent evidence to support each one of those reasons, maybe you can grant the variance. What you often hear from people is, well you've done it before and therefore you've created a precedent and in order to be fair to me you've got to grant it to me also. Well, that's hogwash. Each of these cases is unique. And if you're really acting correctly in granting variances each situation you look at is going to be a unique situation, and therefore, each case has to be looked at on its own. .And just because in two, or three, or four other instances you may have granted somebody the ability to do something, that doesn't mean that in this particular case you have to do that, because a different Board may have granted it for some unique circumstance back three years ago that you don't know why they granted it. So you as an individual Board have the obligation to look at this case, this particular application that's in front of you, uniquely and you don't have to consider what's happened in other circumstances. If that happens, if the Village has granted twenty five screened in porches on a street, to the extent that they have basically changed the Ordinance so that everybody is able to do it, then the Village ought to be changing the Ordinance rather than you deciding, hey, we did it for somebody else so let's do it for him. I think that generally, this Board understands that, but quite frankly, I don't know. I don�t know if everybody on the Board understands the burden that they have. Just remember if you are ever appealed the Judge is always going to look at the record to see if each of the criterion has been met. Most of the time people don't appeal, but if they do, then you will have that burden to carry. Do you all have any questions regarding what I've said so far? Vice Chair Humpage requested that in the packages distributed for each meeting that the Community Development Department be sure to attach the criteria in the future as Board of Adjustment Workshop Meeting � December 14, 2000 Page 5 an overlay to the justification for each one provided by the applicant so that the criteria and the justification were side by side to facilitate comparison. At�torney Randolph commented that applicants be told they needed to address each criterion, and they may be toid to do that, but they did not do it. Applicants get up and say, well, I'd like to build this porch because I need more room. And the Board looks at it and says that doesn't look so bad-what can it hurt to get another ten feet on the porch? Well, what it hurts i.s that the zoning ordinance doesn't allow it, and you guys can' t just willy-nilly change the zoning ordinance . So, these folks aren't used to getting up and doing public speaking, but if they're told at the beginning of the meeting that they need to address the seven criteria and give a reason why they meet each of those criteria it's going to make it much easier on the Board. And then they've got i.t on the record. .And even if its rea11X not there, and they grant it, at least maybe there's enough in the record to support it. Vice Chair Humpage commented if he decided against the ? variance he could say he did not believe the appiicant had met criteria set forth in item 3 and 4, and if it went to Court the Board would not have to go through a whole rigamarole that they had granted it based on a certain statement. Village Attorney Randolph stated that when a motion was made the maker should incorporate findings within the motion, so that if a Court looked at the Board's ruling the motion would state why he is or is not approving, because the Court would need assistance to make their determination. Number one, the Court will look at the record and determine whether there is competent substantial evidence to support the criteria. Number two, the Court wants to know what you relied upon in making your decision. So if you make a motion to approve, it can simply be: I make a motion to approve on the basis that they have met by the evidence the seven criteria set forth in the Ordinance. Or, I make a motion to deny because they have not met alI the criteria, specifically criterion C and E: this is not the minimum variance that could be granted under th.e circumstances; or this was a self-inflicted hardship. Remember the typical variance is a situation like this: where �rou for instance have a cul-de-sac with irregular shaped lots and all the other lots on this str�et are rectangular, those Iots that Board of Adjustment Workshop Meeting December 14, 2000 Page 6 are not rectangular may need setback variance from the narrow portion of the lot. Attorney Randolph commented it was very hard for somebody who was building a new house to show a hardship except in that type of situation. Because if you were building a new house on a raw piece of land you ought to, except in unique situations like that, be able to meet the Code. Mr. Zadd noted those types of pians were headed off at the Building Department and applicants were told to design something to fit the lot . Vice Chair Humpage questioned whether the Building Department reviewed the reasons the applicants gave for the seven criteria, to which Mr. I,add responded they did revie�r the reason to be sure the applicant had a statement about each of the criteria, but did not pass judgement on the content. Mr. Humpage questioned when the applicant's response to one of the criteria was that it was because this condition was normal in other municipalities why it was not rejected right then-what difference did it make what it was in any other municipality. Attorney Randolph responded probably none, but he hated to see the Community Development Department get into assisting the applicants in the way they should answer the questions-their job was to say I'm sorry, the zoning code doesn't allow it. The applicant then would respond, how can I build it, and Mr. Ladd or his Department would then say well, the only way you could would be if you could get a variance. They would ask how they could get a variance, and would be told they had to file the application and meet all the criteria. They would ask what they had to say to meet the criteria, and would be told that staff could not help them with that-they would have to determine what to do. Mr. Ladd commented staff did not give applicants language to put into their application. Mr. Randolph commented staff could discourage people, and there was nothing wrong with him saying to people that he did not know how they could get the Board's approval because to him they d,id not meet the criteria, and they might just go away, or they might say they were just going to take their chances. ZTillage Attorney Randolph commented that before this meeting Mr. Ladd had told him that he never tells anybody when they come in that this is going to be a slam-dunk, that other people have gotten these variances and therefore the applicant should not have any trouble. Mr. Ladd commented if an applicant asked whether it had been done before, he might respond yes. Boardmember Steve Pullon arrived at this point i.n the meeting. Board of Adjustment Workshop Meeting December 14, 2000 Page 7 Boardmember Jon Newman arrived at this point in the meeting. Mr. Ladd commented he usually followed up that statement with saying each application had to stand pn its own merit and he did not vote on the Board, and in the instance where an applicant spent ten minutes with him doing very preliminary work he had cautioned the applicant regarding many factors the Board was now involved in and that they were looking harder at these things and he needed to have a hardship. Attorney Randolph reviewed what had been d�.scussed for the benefit of the Boardmembers who had just arrived: The first thing we talked about was the Sunshine Law, and basically you all understand the Sunshine law. You can't talk to each other about the business of this board except at a public meeting. You can talk to staff, and you can talk to residen�ts-applicants, and neighbors who object, but you can't talk to each other-that's a violation of the Sunshine Law. and it's a misdemeanor, and you have all kinds of other problems with it. Boardm.ember Pullon inquired when Boardmembezs visited the site whether it was okay to talk to the neighbors and owner. Attorney Randolph explained that when this legislation first came out it said you could not do that; but then publ.ic officials started saying it was keeping then� from talking to their constitutients so they changed it and said you can talk to the neighbors but if you talk tq them you must announce at a public meeting not only who you talked to but what you talked about. The purpose of that is you are sitting as judqes and you know that I as a lawyer, even though it shows on TV shows a lawyer going in and talki�g with a judge before a case, I can't do that. The judge has got to talk only with both parties there . And so it was first felt it was unfair for you as judges to talk to one side but not the other. As a result of a lot of complaints about that legislation, the wa�r they changed it was that if a municipality wants to allow its folks �o talk to the constitutients, they can pass a resolution, which the Village of Tequesta had done, which says you can have exparte communications but you have to announce who you talked to and what you talked about. A site visit, even if you don't talk to anybody, is an exparte communication so you've got to announce that. The other thing I talked about is you are acting in a quasi-judicial capacity. You are acting as judges, and you know a judge has to follow the Board of Adjustment Workshop Meeting December 14, 20�0 Page 8 law. He can't just grant somebody a verdict because he likes what political party they're with although you may have seen some of that happening lately. So you kind of carry that forward to the situation in which you sit. It's sometimes very difficult in a small community like this where you know the folks that are there and you want to help them, and that's what really makes sitting on this Board hard. .And I've sat on a Board of Adjustment before and I've chaired a Board of Adjustment, I've had friends come to me, and friends who wouldn't talk to me for awhile after I ruled, because I said I'm sorry I can't grant it because it doesn't meet the criteria set forth in the Code. There are seven criterion and it doesn't say that they just have to meet one-they have to meet all of those criteria in order to be granted the variance. And those are that they have a hardship unique to their property that is not characteristic of other properties in the neighborhood. Arid I used this as an example: that if you've qot a street full of rectangular lots with triangular lots at the end-this is your classic hardship where somebody with one of the triangular lots might need a setback variance in order to get a house on it. ' But there would be no way somebody with one of the rectangular lots would have a hardship-they would be just trying to get a house that was too big for the area or add a porch when nobody else was entitled to a porch, or whatever. Although I know some of you guys came to this Board for variances, and that's one of the reasons you are on the Board, you have to understand that it is difficult �or you folks to sit on this Board because you are not sitting up there as friends to your neighbors. You're sitting up there to make a determination that they meet these criteria. If you don't follow those criteria you are actually changing the zoning ordinance by allowing people to do things that theg are not otherwise allowed to do. And that's not your job. You can tell those people: "I'm sorry-the zoning ordinance doesn't allow it. If you want to change the zoning ordinance, if you war�t to have for example a 400' dock� then go to your Council and qet them to amend the ordinance, but don't come to us, because I don't think you meet the criteria." .And the Courts, in reviewing these cases-it's called a Petition for Writ of Susurari when somebody appeals your decision-and the most difficult appeals are those that are filed by neiqhbors who are aggrieved as a result of a variance having been granted on a lot next to them. And they'll go in front of the Court and say, show me in the record where all seven of those criteria have been met. And if the judge sees that there is Board of Adjustment Workshop Meeting December 14, �DaO Page 9 not competent substantial evidence to support every one of those criterion he will throw it out. He'll throw it right back to you, and the other thing he wants to know is what findings you based your decision on. So I've suggested before you came that when a motion is made if you want to approve you say: because they have met aIl seven of the criteria as has been s�ated on the record� ar I vote to deny the variance because they haven't m.et A and C. It's a self-inflicted hardship. A self-inflicted Y�ardship would be for instance if somebody built a huge house on a property to begin with and now they want to add a cabana or a wall or something, and now they're saying, but I want to add this wall now. Well, that is sort of self-infl,icted when they built this big house to begin with. So, it can't be self- in�lic�ed; it must be the minimuxn varianc� that should be sought under the circumstances; it must be a unique characteristic to the property that doesn't apply to other lots, it can't be contrary to the intent of the code, and tha� sort o� �hing--but you'll have in your packages each time the seven criteria and you can look at those. And we suggested before you came that these applicants ought to be advised to go through that list of seven criterion with you so tha� �hey can try to convince you tha� they've met them. It's difficult for these folks because the�r're not used to appearing in front of you, and some of them just get up and say I just want a porch, or I just want to screen in my porch, or wha�tever, bu� you've got �o have reasans �or those. The other thing I talked about in regard to the Sunshine Law, if you have little sidebar conversatians up there that really is a violation of the Sunshine Law because everything you do is supposed to be recorded and somebody might criticize you for having conversations that are not really in front of the public. I wanted to talk abou� the �unshine Law, and the �act that you act in a quasi-judicial capacity, and that you're required to follow the criteria. The one thing I didn't mention--you often hear people say you've done it before, you should do it for me. �hat's not the case. �ou're here to look at cases on a unique basis and each case stands on its own--not on the basis of what's happened in the past. Because it may have been another Board that did it in the pas�t, the o�her Board may have been wrong when they granted it, there may have been some unique circumstance that Board of Adjustment Workshop �eeting December 14, 2000 Page 10 applied to that case which does not apply i.n this case, so don't allow somebody to persuade you that you've done it in other circumstances so you ought to grant it to them. We should not talk about individual cases here because the applicant should be here to hear what you have to say. Each case is unique to itself, but if the Vil�age has granted so many`variances that it has effectively changed the code, then we ought to change the code. For example, if people in the Country Club are building their back pQrches to within 5' of the property line when its supposed to be 10' and if 100 of those have been granted, then they ought to be changing the zoning ordinance but sho�zld not be looking at you guys for another variance. Mr, Ladd noted that staff would go to Administration to suggest changes, and described a situation in the past when he had sugge�ted a change to the 75' dock length to conform to the State's change to longer docks to avoid damage to the grass b�ds, but it had not been done and the 75' length requirement still existed. The Village Attorney advised that if an applicant wanted a longer dock because they were getting a 48' boat, the an�wer could be they must meet the code and State r�quirements, and � should buy a smaller boat. Village Attorney Randolph noted he would not be able to attend the ne�t Board meeting, but would send a representative, and asked the Boardmembers to remember to include findings in any motion so that it would be clear on the record on what they had based their decision. The Village Attorney explained that the reasons given by the applicant must be satisfactory to the Boardmembers in their own minds, and neither he nor Mr. Ladd could advise them whether the reasons met the criteria but that was for the Boardmembers to determine. Attorney Randolph advised: make sure the criteria are in the record, and that you are satisfied in your own mind. You may have a question in your own mind whether they had met one of the criteria but you may feel there is enough in the record to allow you to go ahead with approval. A lot of times people come in and say they have a growing family and need another bedroom, and that doesn't work. Maybe they need to buil�l or buy another house that has another bedroom, but not change the zoning code so as to allow their faxni.ly to grow. Same with medical hardships--that's a hard one to turn down. If somebody comes in and says, I can't fit a pool on this lot but my wife has arthritis and here's a doctor's prescription that says she needs to swim every day. That doesn't meet yaur cri�erion either, and there is specific case I.aw on that Board of Adjustment Workshop Meeting December 14� 2000 Page 11 where people have attempted to do that. That is not hardship the way hardship is defined under the Ordinance. Hardship is something unique to the property. Remember: Hardship is with the property, not with the individuals that live on the property. A person can't have a hardship-the hardship is with the land. It can't be like a medical, or a big family, or anything like that; that would allow the zoning ordinance to be changed on the basis of a person's family life, and zoning ordinances run with the land. Clerk of the Board Ladd advised if an applicant came to a meeting and said, Scott said this or Scott said that-the hair on your neck needs to go up immediately, because I don't do that, and over the past 21 years I've heard that story over and over when I'm not present they say, Scott said it is great. Ideally, as the Clerk of the Board and the technical zoning advisor and Zoning Official of the Village, I look to yau guys as defenders of the code. You're not there to argue over what the Council did in coming up with the code. I've had Boardmembers in the past who said-10' setback is ridiculous, why don't we allow 5'. ! So the�r had a mind set of I don't care. Which is just wrong. Remember that and remember the criteria. I have researched other communities, and in an ideal situation there should be very few variances granted. Boardmember Newman commented he usually sat on the end and when applicants wanted to show pictures to the Board they addressed him in separate conversations. Mr. Ladd commented applicants should not present anything new. Village Attorney Randolph advised that the Chairman should stop the conversation and if he did not then either he or Mr. Zadd would stop it and must shflw anything to the whole Board. Mr. Ladd commented on problems with new information being presented at the meeting. Mr. Zadd noted these were advertised public hearings and notices were sent to the neighbors who many times would come in �nd look at the package and determine they did not need to attend the hearing, and new information could be something to which they would object or based on which they might have a statement. Mr. Ladd commented this was not a good thing to get involved in, and a strong Chairman was needed who would keep order and abide by the rules. Boardmember Pullon inquired what recourse applicants had, to which Attorney Randolph responded they could file a petition for a Writ of Sursuari, which is an appeal to the Circuit Board of Adjustment Workshop Meeting December 14, 2000 Page 12 Court, and a Circuit Court panel of three judges would examine the record and determine whether they were aggrieved. Applicants could not come back to the Board or go to the Village Council to appeal. Village Attorney Randolph explained that in an appeal by an applicant who had been denied� their chances of prevailing in Court were very slim because it is so difficult for somebody to prove they had met all those criteria, however, if an aggrieved party appealed to the Court it was much easier foz them to prevail because they only had to show that one of the criterion was not met. Mr. Randolph commented he had been involved in cases where the standaxd the Court applied was that the person was not entitled to a variance unless he or she had shown that there was no other reasonable beneficial use for the property. Attorney Randolph commen�ed that was a terrible standard to have to meet and he believed in that case you could not even grant a variance for a swimming pool because there was a reasonable beneficial use for a house on the property. Mr. Randolph commented he had never agreed with that standard and had argued it to the Court but had lost. Mr. Ladd commented that there h�d been several appeals to decisions he had made as zoninq official but he had prevailed in each case so far. Attorney Randolph explained that the other thing the Board might hear other than applications for variances would be if someone disagreed with the interpretation of the zoning administrator, saying they believed Mr. Zadd was incorrect in the way he was applying a certain section of �he code if, for example they believed they were entitled to have an air conditioner �ithin the setback and Mr. Ladd said no they were not allowed to have an air conditipner within the setback. In such a case, the Board of Adjustment could look at that code section and sustain or reject Mr. Ladd's opinion. Then if the applicant wanted to appeal the Board's opinion they would go to court. Mr. Rand,olph advised an applicant might come to the Board for two things: they might say they did not think they needed a �rariance because they believed Mr. Ladd was wronq in the way he was reading the Ordinance; but then they might say alternatively, if you think he's right then we need a variance. Discussion ensued regarding past cases that had been appealed. Mr. Newman inquired whether Boardmembers were allowed to discuss cases after a ruling had been made, to which Attorney Randolph responded that the Boardmembers still should not discuss cases because the application could come back after six months with requested modifications. Board of Adjustment Workshop Meeting December 14, 2000 Page 13 The meeting was adjourned at 6:50 p,m. Respectfully submitted, , �GL.c.��� Betty Laur Recording Secretary ATTEST: � VJ • (..tGLU. Scott D. Ladd , Clerk of the Board DATE APPROVED; /� ��.��