Zoning Meeting

MEETING: BOARD OF COUNTY COMMISSIONERS, ZONING MATTERS

CALL TO ORDER: Board of County Commissioners sitting for the purpose of exercising zoning powers, Zoning Meeting of January 8, 2001, at 9:34 a.m., in the Palm Beach County Governmental Center, West Palm Beach, Florida.

1.A. ROLL CALL

MEMBERS AND OFFICERS PRESENT:

Chair Warren H. Newell - Absent
Vice-Chair Carol A. Roberts
Commissioner Burt Aaronson
Commissioner Addie L. Greene
Commissioner Mary McCarty - Arrived later
Commissioner Karen T. Marcus
Commissioner Tony Masilotti - Arrived later
Assistant County Attorney Barbara Alterman
Assistant County Administrator Verdenia C. Baker
Deputy Clerk Joan Haverly

1.B.1. INVOCATION - Commissioner Greene

1.B.2. PLEDGE OF ALLEGIANCE

1.C. REMARKS OF THE CHAIR

The Board of County Commissioners has convened to consider the following applications for Future Land Use Map Amendments, Official Zoning Map Amendments, Conditional Uses, Planned Developments, Development Order Amendments, Waiver Requests, Status Reports for Compliance with Time Limitations and Conditions of Approval, and the recommendations of the Land Use Advisory Board and Zoning Commission pursuant to Chapter 163, Florida Statutes; Chapter 125, Florida Statutes; the Palm Beach County Comprehensive Plan; the Palm Beach County Unified Land Development Code; and other authority vested in the Board. This meeting is being held on January 8, 2001, at 9:30 a.m., in the County Commission Chambers, 6th Floor, 301 North Olive Avenue, West Palm Beach, Florida.

1.D. PROOF OF PUBLICATION

(CLERK'S NOTE: Proof of publication 681382 was approved for receipt and file in the June 29, 2000, meeting.)

MOTION to again receive and file proof of publication 681382. Motion by Commissioner Marcus, seconded by Commissioner Aaronson, and carried 4-0. Commissioners McCarty, Masilotti, and Newell absent.

1.E. SWEARING-IN BY ASSISTANT COUNTY ATTORNEY

1.F. ADOPTION OF AGENDA

MOTION to adopt the agenda. Motion by Commissioner Aaronson, seconded by Commissioner Marcus, and carried 4-0. Commissioners McCarty, Masilotti, and Newell absent.

1.G. DISCLOSURE

Commissioners Aaronson, Greene, Marcus, and Roberts gave their disclosures at this time. Commissioner McCarty gave her disclosures shortly after she joined the meeting. Commissioner Masilotti did not give his disclosures.

2. REGULAR AGENDA - See pages 2-20.

3. DIRECTOR COMMENTS - None

4. COMMISSION COMMENTS - None

5. ADJOURNMENT - See page 20.

*****

2. REGULAR AGENDA

2.A. PREVIOUSLY POSTPONED APPEAL

2.A.1. RESOLUTION R-2001-0010

PETITION DOA95-83(C) (LANE BOATHOUSE - APPEAL) OF CARLYLE JUPITER ISLAND CONDOMINIUM ASSOCIATION, INC. (APPELLANT), BY DANIEL S. ROSENBAUM, AGENT; LANE BOATHOUSE LC/WILBUR LANE AND EVA LANE (OWNERS), BY JOHN GARY, AGENT; AND MASON SIMPSON (ORIGINAL PETITIONER), BY PHILIPPE JECK, AGENT, FOR AN APPEAL OF A ZONING COMMISSION RESOLUTION APPROVING A DEVELOPMENT ORDER AMENDMENT (DOA) TO MODIFY THE CONDITIONS OF APPROVAL OF ZONING COMMISSION RESOLUTION ZR-2000-8 FOR THE 0.22-ACRE PROPERTY LOCATED APPROXIMATELY 0.25 MILE SOUTH OF THE MARTIN COUNTY LINE ON THE EAST AND WEST SIDES OF AIA (STATE ROAD 707). (P.O.P. 681382 [6-29-2000]) ADOPTED A RESOLUTION OVERTURNING THE DECISION AS AMENDED 1-8-2001

Staff Recommendation: Adoption of a resolution upholding the decision of the Zoning Commission's approval of a development order amendment to amend conditions of approval.

Assistant County Attorney Alterman submitted the résumés of Zoning Director William C. Whiteford and Senior Site Planner Carrie Rechenmacher as staff persons who would be testifying today.

MOTION to receive and file the résumés. Motion by Commissioner Greene, seconded by Commissioner Aaronson, and carried 4-0. Commissioners McCarty, Masilotti, and Newell absent.

Ms. Alterman said that the Unified Land Development Code (ULDC) was not as clear as it might be about quasi-judicial hearings. There was an attempt to make this both an appellate process, which normally would be based on a record and without a pubic hearing, and combine it with a public hearing. In order to clarify this and to make the ground rules clear and simple, the attorneys representing the parties to the appeal participated in a conference call to establish ground rules and determined the board had to make certain procedural decisions.

Decision 1.

The quasi-judicial rules of procedure allow up to 30 minutes for each party to present its case. Each side would like to have additional time. Therefore, would the board agree to extend the time for both sides.

MOTION to extend each side's time limit to 45 minutes. Motion by Commissioner Aaronson, seconded by Commissioner Marcus, and carried 4-0. Commissioners McCarty, Masilotti, and Newell absent.

(CLERK'S NOTE: Commissioner McCarty joined the meeting.)

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

Ms. Alterman continued her presentation of the decisions the board was being asked to make:

Decision 2.

The ULDC requires the board, when it is hearing an appeal, to consider only the record before the Zoning Commission at the time of the decision and the testimony of the petitioner, applicant, affected persons, and county staff. Today, however, would the board allow the admission into the record of evidence that had not been before the Zoning Commission. Such evidence would be difficult to determine because there are transcripts of and evidence presented at both Zoning Commission hearings. Not admitting additional evidence today would require going through the transcripts constantly to see exactly what was said and whether today's testimony was identical. She recommended that the board allow additional testimony.

Whether the additional evidence was admitted or not, as the weigher of fact, the board has to determine the relevance of the evidence and assign whatever weight it believes appropriate for all testimony presented.

Similarly, whether the additional evidence was admitted or not, the attorneys have agreed to raise at the end of the public hearing any objections they might have to the admission or non-admission of evidence.

MOTION to allow additional testimony rather than limit it to what was given at the Zoning Commission hearings. Motion by Commissioner Marcus, seconded by Commissioner Aaronson, and carried 5-0. Commissioners Masilotti and Newell absent.

Commissioner Roberts said that the motion passed with the understanding that the attorneys would raise their objections at the end of the public hearing rather than at each moment of objection since individual objections would be deducted from the 45-minute time limit. Ms. Alterman agreed.

Ms. Alterman continued her presentation of decisions:

Decision 3.

Should the testimony of persons who are not parties to the appeal be permitted, such as Mason Simpson, developer and original petitioner, as well as persons who testified at the Zoning Commission hearings who were not members of the condominium association? She recommended the inclusion of the additional evidence.

Again, the attorneys reserve the right to raise objections to the testimony and evidence presented until the end of the public hearing.

Commissioner Roberts questioned how the board could deny public comment at a public hearing. Ms. Alterman responded that that was exactly the reason she was bringing the matter to the board's attention.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

Commissioner Aaronson questioned the necessity of a motion. Ms. Alterman said she would like to have a motion on the record.

MOTION to admit testimony from the public because this is a public hearing. Motion by Commissioner Aaronson, seconded by Commissioner Greene, and carried 5-0. Commissioners Masilotti and Newell absent.

Ms. Alterman concluded her remarks.

Commissioner McCarty made her disclosures upon being asked to do so by Commissioner Roberts.

Zoning Director Whiteford noted the following in his remarks:

The item under review, zoning petition DOA95-83(C), was being called APP95-83(C) to signify it was an appeal.

The Carlyle Jupiter Island Condominium Association was appealing a Zoning Commission decision to approve a development order amendment to modify condition F.1, which required a unity of title on the subject property. The modification would allow a 0.22-acre boathouse site to be excluded from the unity and developed as a fee simple parcel of land.

The Zoning Commission also approved conditions (B.7 through B.10) limiting the size, height, and architectural character of the boathouse.

The boathouse site is located on a parcel of submerged land created in 1964. The pilings are located approximately 50 feet west of the mean high water line for the Intracoastal Waterway between the Carlyle Jupiter Island buildings and the Passages, a condominium building located directly north of the Carlyle. A new boathouse is proposed to be built in the same location as the pilings of the former structure.

Carlyle Jupiter Island consists of 25 units on 5.06 acres and is consistent with the High Residential 12 (HR-12) future land use designation on the subject property. Twenty-four units are located in the main condominium building located east of A1A; the twenty-fifth unit is in a boathouse located west of A1A on the Intracoastal Waterway.

A history of the project is attached as exhibit A of the backup material.

An affected homeowners association that opposes a decision of the Zoning Commission may appeal the decision to the Board of County Commissioners (BCC). At the appeal hearing, the BCC must provide the petitioner, applicant, any affected person, and staff an opportunity to present arguments and testimony in accordance with the quasi-judicial rules of procedure. In making its decision, the BCC must consider only the record of the Zoning Commission at the time of the decision as well as the testimony of the aforementioned persons.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

Attached to the report are a number of exhibits outlined on page 6 of the report.

The BCC shall reverse the decision of the Zoning Commission only if there is substantial competent evidence in the record that the decision failed to comply with the standards of section 5.4.C of the ULDC, as presented on page 2 of the staff report.

The primary issue is condition F.1 which required a unity of title on the subject property. The unity recorded by the original petitioner (Mason Simpson), however, excluded the boathouse parcel. That parcel has since been sold to another party (Wilbur and Eva Lane).

To correct the error, the Lanes submitted an application to amend the condition to exclude the boathouse parcel from the unity. On April 6, 2000, the Zoning Commission amended condition F.1 to exclude the boathouse parcel from the unity requirement.

Exclusion will permit the boathouse site to be separately owned and developed as a fee simple parcel of land.

The concurrency application submitted in 1995 for the project was for a 30-unit condominium building with underground parking. The application listed the existing uses as a single-family home and a two-story boathouse with living quarters. The proposed use was shown in the application as a 30-unit condominium with a boathouse. A note on the application indicates the boathouse was to be remodeled as a 1,500-square-foot recreation building and the house was to be demolished. The concurrency reservation issued in 1996 was for 25 units (the petitioner dropped 5 units to the request), security quarters (located in the Carlyle condominium building), tennis court, and the 1,500-square-foot recreation building. The 25th unit was to be a unit within the boathouse.

The site plans approved by the Zoning Commission indicate the boathouse was to be a 1,300-square-foot structure. In the fall of 1997, the petitioner applied for and received two administrative site plan amendments. The first was to allow a multi-slip boat dock adjacent to the boathouse parcel. The second was to allow an additional 1,107 square feet to the boathouse for a total of 2,407 square feet.

The building permit issued in 1997 was for a 2,407-square-foot single-family home on the boathouse parcel. The building permit was amended in 1999 to indicate a single-family residence with 2,156 square feet under air and 607 square feet of porch area, for a total area of 2,763 square feet. Omission of the boathouse parcel from the unity of title was discovered at that time, and the building permit was put on hold and has been on hold since.

On April 6, 2000, the Zoning Commission approved condition B.7 which allowed a 2,156-square-foot boathouse (2,763 sf total), subject to conditions addressing height, architecture, and size.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

The Zoning Commission imposed conditions B.8 and B.9 to address the appearance of the boathouse. These conditions require the petitioner, the condominium association, and staff to come to an agreement regarding the architectural elevations of the boathouse by October 1, 2000, or the petition to be brought back to the Zoning Commission. This did not occur. To date there is no agreement. If the appeal hearing does not resolve the architectural elevations, this issue will be scheduled for reconsideration by the Zoning Commission.

The BCC was being asked to consider the following alternatives:

- Uphold the Zoning Commission decision. The result would be that the property owners would build the unit subject to an architectural agreement with the condominium or as may be approved by the Zoning Commission in the event an agreement is not reached.

- Overturn the Zoning Commission decision. The result would be the conditions would be left as they were before the amendment by the Zoning Commission, and the unity of title would be amended to include the boathouse parcel.

- Modify the Zoning Commission decision. The result would be the BCC's imposition of additional conditions or modification of existing conditions.

Staff recommended that the Zoning Commission decision be upheld.

The board and staff discussed various points about the matter.

Daniel S. ("Dan") Rosenbaum, attorney for Carlyle Jupiter Island Condominium Association, made the following remarks in his presentation:

The issue under review was probably the most important type of matter that could come before the BCC. This was because public trust is placed in the BCC and Zoning Commission to uphold conditions of approval, such conditions resulting from a give-and-take process over months and sometimes years of efforts on behalf of all concerned. The voters need to rely on their officials to do the right thing.

In this particular case, a developer took advantage of the public trust by intentionally deleting the boathouse parcel from the unity of title that he was required to include in the condominium.

Affidavits would be presented today from both residents and a real estate broker on the developer's sales staff affirming that this boathouse was represented to the potential owners as a recreational facility to be included in the condominium.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

Sales brochures would be presented that show that the developer had set up a mirror-image type of landscape and boundary situation resulting in 460 feet of condominium on the Intracoastal Waterway side and on the ocean side. This means there could not have been a 25th unit or anything else carved out, as was being represented by the opposition.

Considering the thought that the boathouse could even be a unit, one would have to ask oneself why there would be a 15-foot landscape buffer running the entire length of the condominium on the Intracoastal side. If this was to be a unit with access to people not affiliated with the condominium, how could there be a driveway or mailbox or all the amenities incident to a unit not consistent with a unit in the condominium. The answer is it could not.

The plan of development for Carlyle Jupiter Island was 24 upscale condominium units, most starting between $1.5 million and $2 million and ranging upward in price, some to the $4 million-$5 million range. It was ludicrous to think that someone would buy a 1,300-square-foot boathouse and operate independently as a unit in this condominium. It would be totally inconsistent with the character of the condominium.

Condominium documents show that a condominium could consist only of declared units. Twenty-four units were declared at the Carlyle. There was no 25th unit. It is true that the conditions of approval did allow a maximum of 25 units, but the plan of development selected by the developer was 24 units. The boathouse was marketed orally and in writing as a recreational facility for the owners. Statements in the first draft of the staff report indicate very clearly that the boathouse was permitted administratively to expand because of developer representations that it would become a recreational facility.

In addition, the developer wrote letters personally and through his attorney William R. Boose III asking that the unity of title requirement in condition F.1 be extended not from the time of compliance at Development Review Committee approval, which is very early on in the development process, but that it be permitted to be complied with at the time of building permit issuance. This clearly shows the true intent of the developer to carve out a parcel and independently sell as another unit what was not in fact a unit.

The homeowners association is firmly against allowing a change and believes there has been no showing before the Zoning Commission of any changed circumstances, an element required for modification of conditions of approval.

Mr. Rosenbaum then questioned the following witnesses: Wilbur ("Gene") Lane, co-owner of the boathouse parcel; Mason Simpson, developer of Carlyle Jupiter Island and original petitioner; Ken Lieber, current president of the Carlyle Jupiter Island Condominium Association; and Ross Johnson, earlier member of the condominium association board of directors.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

Interspersed in the questioning, motions were made to receive and file various documents.

MOTION to receive and file a September 3, 1996, fax transmittal from Mason Simpson, developer, to Carrie Rechenmacher, senior site planner, requesting certain condition changes. Motion by Commissioner Aaronson, seconded by Commissioner Marcus, and carried 5-0. Commissioners Masilotti and Newell absent.

MOTION to receive and file a September 4, 1996, letter and attachments from William R. Boose III, former attorney for the developer, to L. Martin Hodgkins, former county zoning director, requesting the same condition changes. Motion by Commissioner McCarty, seconded by Commissioner Aaronson, and carried 5-0. Commissioners Masilotti and Newell absent.

MOTION to receive and file a photocopy of a Carlyle Jupiter Island sales brochure and a "Jupiter Island's Grand Finale" flier. Motion by Commissioner Marcus, seconded by Commissioner Aaronson, and carried 5-0. Commissioners Masilotti and Newell absent.

MOTION to receive and file affidavits from Donald Abrams, Beverley Emery, and Ellen McEntegart, owners of units in the Carlyle Jupiter Island condominium, and Deborah Marchant, real estate broker. Motion by Commissioner Aaronson, seconded by Commissioner Greene, and carried 5-0. Commissioners Masilotti and Newell absent.

(CLERK'S NOTE: Commissioner Masilotti joined the meeting.)

MOTION to receive and file a December 17, 1998, letter from Mason Simpson, developer, to Hoyle Miller, former president of the Carlyle Jupiter Island Condominium Association. Motion by Commissioner Aaronson, seconded by Commissioner Marcus, and carried 6-0. Commissioner Newell absent.

Upon additional documentation being submitted, Commissioner McCarty recommended that all documentation be received into the record in a single motion later in the meeting. The chair agreed.

Terence J. ("Terry") Watterson, attorney for Carlyle Jupiter Island Condominium Association, questioned J. Richard Harris, attorney specializing in real property, land use, and corporate law, and Russell C. Scott, landscape architect and land planner. The curricula vitae of Messrs. Harris and Scott were submitted for the record.

Mr. Rosenbaum made a concluding statement.

RECESS

At 11:16 a.m., the chair declared a recess.

RECONVENE

At 11:24 a.m., the board reconvened with Commissioners Aaronson, Greene, McCarty, Marcus, Masilotti, and Roberts present.

Commissioner Roberts requested a motion to receive and file previous documentation.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

MOTION to receive and file the curricula vitae of Messrs. Harris and Scott. Motion by Commissioner McCarty, seconded by Commissioner Masilotti, and carried 6-0. Commissioner Newell absent.

(CLERK'S NOTE: Commissioner Greene left the meeting.)

John Gary, attorney for Wilbur and Eva Lane, owners of the boathouse parcel, made a presentation, referring to a distributed notebook of documentation:

In 1995, two or three pieces of property were purchased by the Carlyle Development Company and combined in one 5.06-acre property. Its first site plan, which was for a 10-story building of 30 units, was not required to go to the Zoning Commission or the BCC. It had to go only to the Development Review Committee (DRC), where it was approved. The DRC placed a unity of title on the property because there were 30 units on 5.06 acres; the maximum number of units without a planned unit development was 6 units an acre. Unity of title would ensure this remained a single parcel, that land was not carved out, and that the number of units did not exceed density.

In early 1996, Carlyle Development Company decided what they really wanted was a 12-story building with 24 units and a boathouse as a 25th unit. They needed to obtain a conditional use from the Zoning Commission because the building would be higher than 100 feet. They did not need a conditional use for the boathouse. It was a conforming use when Mason Simpson bought it and when the site plan was approved, and it still can be a conforming use.

In September 1996, the Zoning Commission approved the site plan for the 12-story, 24-unit building and boathouse parcel.

In November 1996, the DRC approved the site plan.

In December 1996, Carlyle Development Company filed the unity of title, excluding the boathouse parcel.

In October 1997, Carlyle Development Company applied for a building permit for the boathouse. They were informed by the Building Division that the permit could not be issued because the boathouse plans were larger than 1,300 square feet. They were told to file for a supplemental application for an administrative amendment. The Zoning Division granted that amendment, increasing the size of the boathouse to 2,407 square feet under air plus balconies for a total of 3,593 square feet.

In December 1997, the county issued a building permit for the boathouse parcel.

In March 1998, the county approved a revised plan reducing the boathouse to 2,049 air-conditioned square feet.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

In June 1998, the developer filed a declaration of condominium for the 24-unit Carlyle Jupiter Island, excluding the 1-unit boathouse parcel. With this filing, the need for unity of title was basically gone because the only reason for it was to ensure density. The filing locked in the 24 units with 0.22 acre left for the 25th unit.

In June 1998, the Lanes and the Millers purchased the boathouse unit from the Carlyle Development Company. They researched the item at the county, and their lawyer was told by the county that a building permit had been issued in 1997 and was still valid. In consequence, the parties closed on the boathouse parcel.

In August 1998, Mr. Miller, Mr. Silberman (a unit owner), and an architect (Robin Hale) met with former Zoning Director Hodgkins. Mr. Hodgkins's note of the meeting acknowledges the single-family dwelling building permit and indicates the condominium association's interest in buying the structure for use as a three-story clubhouse or recreational facility. Nothing ever came of this. It is mentioned now to show that everyone knew the building permit was for a single-family dwelling.

In September 1998, the association was turned over to the developer.

In October 1998, the boathouse was offered to the association.

In February 1999, the Lanes purchased the Millers' interest in the boathouse.

In spring 1999, the existing boathouse was demolished in reliance on the building permit.

In July 1999, a stop work order was issued.

In January 2000, the Lanes filed an application to request removal of the unity of title.

In that regard, he cited and read from the transcript of the February 3, 2000, Zoning Commission meeting, in which Zoning Director Whiteford stated:

The original approval that the county granted was that it was going to be a unit, a 25th unit. It was never originally--in the original proposal a clubhouse.

He read the following remarks of Senior Site Planner Rechenmacher later in the meeting:

...[S]omeone was living in there. Mason was--Mr. Simpson was concerned that we didn't want to make that non-conforming, wanted to allow that resident to remain. At that time he had told us he had not decided what he was going to do with that. I do believe there was a discussion that it might be a rec, some clubhouse, but at that time somebody was still living there, we didn't want to make it non-conforming, and that's why we allowed the extra--the 25th unit.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

He read further from the transcript of the April 6, 2000, Zoning Commission hearing in which Vice-Chairman William F. Anderson said:

And all the--the most important issues were the height of the building. There were a lot of issues that were raised, and from my point of view, whether the boathouse had been included in, you know, the Unity of Title or on the development order or anything, if it was or wasn't, I don't think it would have made any difference in my decision, that I would have gone ahead and voted for, you know, the Carlyle project at the time.

He read the following statement of Commissioner Sherry L. Hyman later in the meeting:

See, I think Mr. Anderson just hit it on the head because it really didn't make any difference to us whether or not it was included or not. Let's assume, for instance, that the Unity of Title agreement that was recorded included the boathouse parcel. What would that mean, assuming that they didn't get it released by staff or whatever afterwards. What it would mean is that that--you'd still have a single family residence, boathouse on that piece of property. There's nothing that would dictate that this boathouse should not or could not be there. The fact that the Unity of Title excluded it doesn't--doesn't mean anything. If it included it, you'd still have it. It just would have had to have been included as part of the condominium development.

According to code, "The Board of County Commissioners shall reverse the decision of the Zoning Commission only if there is substantial competent evidence in the record that the decision failed to comply with the standards of Section 5.4.C. of the ULDC below." These standards only apply to conditional use. The conditional use was not the boathouse or the unity of title; it was the height of the 12-story building being in excess of 100 feet. This is a test the Carlyle Jupiter Island Condominium Association cannot meet because all of these standards apply to the conditional use, which is not part of this appeal.

Kieran J. Kilday, landscape architect and land planner, said he had worked on the project not as the agent but as a planning expert at the time of the conditional use. He continued with his statement:

The project came before the Zoning Commission solely for a conditional use to allow an increase in the height of the primary building to more than 100 feet. The ULDC allows in the Multi-Family Residential (High Density) zoning district (RH) all the units that were being asked for and anything up to 100 feet, provided that setbacks were met. The boathouse was never an issue.

In the conditions of approval, condition B.1 addressed the overall square footage of the primary building. Square footage for the boathouse was not included because, as a permitted use, it was entitled to be built and expanded without any review by any commission.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

Condition F.1 says the petitioner shall provide a unity of title for the property and the zoning director has the ability to amend that unity of title. The reason for that is that the total unit count needs to be matched by the land that allows it (at the time this project came through as a single overall project, it showed 25 units on the 5 acres). Any subsequent subdivision of the property needs to be reviewed and approved under a process called a waiver of platting.

This seems to be where the loss took place. A plan was submitted for the renovation of the existing 1,300-square-foot boathouse. A statement in the staff report, referred to earlier, said the boathouse would be renovated and would not increase in square footage. This statement was not in the public hearing discussion and it was irrelevant, as was indicated subsequently. So, the boathouse was permitted to be expanded. The problem is that no one said that a waiver of platting needed to be obtained. Had that been done, this item would not be before the BCC today. Because it was not done, the condominium was created without the entire property, which required the necessity for amending the plan.

The planning expert for the association took issue with three of the standards for conditional use. Apparently, the other seven standards are being met. These standards apply to the primary structure, not the boathouse.

The boathouse as currently proposed meets all code requirements as a matter of right and requires no review by any board in order to be built.

The square footage of the boathouse was not increased because the condominium needed additional recreation area. The boathouse was increased as a residential unit. It was shown on the site plan through the entire hearing process as a residential unit.

Mr. Kilday offered his curriculum vitae for the record.

Mason Simpson, president of Carlyle Development Company, said:

When the decision was made to change the 30-unit condominium to one of 24 units, it was decided to keep the boathouse as a 25th unit and to remodel it. It was an eyesore that had existed since the 1950s. That was what was taken to the Zoning Commission in May 1996. It was clear from that point forward that the boathouse would always be a residence. The July 1996 condominium documents reflected that it was not part of the condominium.

The unity of title always applied to the condominium. It never applied to the boathouse.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

Carlyle Development Company sales agents--Carol Berry, Elaine Edwards, and Joan Ark--never represented the boathouse as part of the condomium or as a recreational facility for the condominium. On the contrary, they always represented it as being for sale. They have written letters to that effect. The affidavit put forward today is from Deborah Marchant, a buyer's representative for Mrs. McEntegart, a unit buyer; she never worked for Carlyle Development Company.

In 1997, the Department of Environmental Protection required the relocation of the boat docks because of certain vegetation issues. The site plan was accordingly amended and in September 1997, a development order amendment was requested. The document clearly showed the boathouse carved out as a separate parcel, not part of the condominium.

Eighteen of the 22 purchasers in June 1998 were represented by attorneys, none of whom reviewed the condominium documents and stated that his or her client had said the boathouse was part of the condominium and yet this was not reflected in the condominium documents.

The unit buyers all got good value. Those who have sold their units have realized a profit of from $0.5 million to $1.5 million.

Eva Lane, co-owner of the boathouse parcel, recounted highlights of her experience as condominium unit owner and later boathouse owner. She recalled that she and her husband had met Ms. Edwards, Ms. Berry, and Ms. Ark who at no time represented the boathouse as part of the condominium. After buying the boathouse, Mr. and Mrs. Lane offered it to the condominium association who turned them down. Never then or later did anyone say the association already owned the property. Finally, the Lanes demolished the boathouse and began construction under the existing, pre-purchase building permit. Construction went smoothly until receipt of the stop work order. She and her husband have done nothing wrong, she continued, and have been fully cooperative with the county and with the Carlyle residents but felt trapped like pawns.

Philippe Jeck, attorney for Carlyle Development Company, withdrew from the presentation and said he would speak under Public Comment inasmuch as the 45-minute limit was nearing its term.

F. Martin Perry, attorney for Mr. and Mrs. Lane, made a presentation buttressing his contention that the appellant's case was based wholly on alleged misrepresentation and offering into the record a May 28, 1998, letter from Mason Simpson to Mr. and Mrs. Harvey Graves, future unit owners at Carlyle Jupiter Island, concerning amendments to condominium filing. He read from the letter, including:

Florida law requires you to be advised that if any of the amendments materially alter or modify the offering in a manner that is adverse to you, you shall have 15 days to void your purchase agreement. None of these changes are deemed by us to be "materially adverse" and permit a recision [sic] of our agreement.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

Mr. Perry read the following amendment from the attached copies of proposed amendments:

Easement in favor of Boat House Owner across the Condominium For Beach Access[.] The Developer, or an Affiliate, is the owner of certain real property situated adjacent to the Condominium on the west side of State Road 707 upon which there currently exists a boat house ("Boat House Property"). A non-exclusive, irrevocable easement for pedestrian ingress and egress over and across the Condominium Property to the beach has been reserved for the Boat House Property by the Developer in favor of itself, its successor and assigns and his/her heirs, successors, and assigns.

Mr. Perry noted that every purchaser had received this document.

MOTION to receive and file the notebook from Mr. Gary, Mr. Kilday's curriculum vitae, and letter from Mr. Simpson to Mr. and Mrs. Graves. Motion by Commissioner Masilotti, seconded by Commissioner Marcus, and carried 5-0. Commissioners Greene and Newell absent.

RECESS

At 12:13 p.m., the chair declared a recess.

RECONVENE

At 1:37 p.m., the board reconvened with Commissioners Aaronson, Greene, McCarty, Marcus, Masilotti, and Roberts present.

The Board asked questions of certain speakers following which Messrs. Rosenbaum and Watterson cross-examined certain speakers.

PUBLIC COMMENT:

Axel Hunold, unit owner at Carlyle Jupiter Island, said that when he bought his apartment in 1998, at no time did the sales representatives offer the boathouse as part of the amenities. Additionally, a condominium document that he later received confirmed that fact. In May or June 1998, Hoyle Miller, president of the condominium association, told him that he wanted the association to buy the boathouse parcel as a common element so that his grandchildren would have a clubhouse in which to play. Mr. Hunold said he himself was not interested in purchasing the boathouse parcel. In June or July 1998, he visited the county property appraiser's office and verified that the boathouse parcel was not part of the residents' tax assessment.

Lykes Boykin said he moved to the area in 1994 and bought and lives in a four-townhouse complex across the street from Carlyle Jupiter Island, which is now called Lykes Landing. Mr. Boykin contended that the land in question was pristine, that nothing should be built on it, and that Mr. and Mrs. Lane's investment should be refunded to them.

(CLERK'S NOTE: Commissioner Marcus left the meeting.)

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

Patty Graves questioned where the Lanes would be able to put parking and trash receptacles, said she was terribly concerned about what would happen to the ambient water, and urged the board to consider the environment in their deliberations. J. Harvey Graves read a statement, which he then submitted for the record. Both Mr. and Mrs. Graves favored ownership of the parcel by the condominium association.

MOTION to receive and file the statement read by Mr. Graves. Motion by Commissioner Aaronson, seconded by Commissioner Masilotti, and carried 5-0. Commissioners Marcus and Newell absent.

(CLERK'S NOTE: Commissioner Marcus rejoined the meeting.)

Philippe Jeck, attorney for Carlyle Development Company, stated that he was present as a fact witness to comment on the declaration of condominium and prospectus. The following was brought out in his remarks:

In 38 places in the condominium prospectus, it is indicated by either omission or express statement that the boathouse parcel is included in the condominium.

The prospectus details what should be listed there, including the common elements. If the boathouse were part of the common element, it would have to be mentioned. It never was.

Prior to closing, an amendment was added to the condominium documents and drew specific attention to the boathouse parcel. The parcel is clearly carved out in the exhibits on the recorded declaration of condominium. Those pages were given to all unit owners before closing with a specific right to rescind the contract if there was anything there they did not like.

No one contacted his office or any of the other 17 law firms reviewing the documents to raise any question about the boathouse--not when contracts were signed nor during the following rescission period nor after the mailing of the second rescission letter with the amendment adding three more references to the exclusion of the boathouse nor at closing nor upon turnover of control nor at any other time in the process.

Following his remarks, Mr. Jeck was extensively questioned by the board.

Joanne Davis, representing 1000 Friends of Florida, made the following comments:

Originally, there was a zoning requirement for unity of title. There is no unity of title. Do citizens have a right to expect their local government to remain consistent with its own zoning requirements.

The area lies within the state aquatic preserve. It is a federally designated lagoon sanctuary and a sovereign submerged land.

According to Carlyle Jupiter Island, the land is not owned; it is leased from the State of Florida.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

Any increase in the square footage of a building initiates an additional level of review.

A sea grass survey was made on the area in August 2000. It was found to be rich in shoal grass, turtle grass, manatee grass, paddle grass, and the endangered Johnson's sea grass. It is a critical habitat for the endangered manatee. There are conch, crabs, lobster, and various fishes in the area.

It will require an additional permit, which is a joint application for an environmental resource permit and authorization to use a sovereign submerged land.

She discussed Florida Administrative Code regulations on "existing structures" and "repair."

Commissioner Aaronson requested copies of the survey. Ms. Davis said she would provide them.

(CLERK'S NOTE: A copy was later provided to the clerk. There was no motion to receive and file this document.)

Ross Johnson, former owner of a residence at the Carlyle, recounted his experience of becoming a unit owner.

RECESS

At 3:26 p.m., the chair declared a recess.

RECONVENE

At 3:35 p.m., the board reconvened with Commissioners Aaronson, Greene, McCarty, Marcus, Masilotti, and Roberts present.

Commissioner Roberts invited the attorneys to make their objections.

Kenneth S. Direktor, attorney for Carlyle Jupiter Island Condominium Association, objected to:

Mr. Jeck's testimony as part of the public comment. He was clearly a fact witness and introduced himself as one, which meant he should have been included as part of Mr. and Mrs. Lane's 45-minute case.

Mr. Simpson's representation of the content of his sales representatives' unsworn letters as unsworn hearsay.

Messrs. Simpson's and Jeck's comments about the nature of other attorneys' conclusions as hearsay, speculation, and lacking predicate.

Mrs. Lane's statement that owners sold their units for profit as hearsay, lacking predicate, and, indeed, lacking relevance.

Mr. Perry's statement about what happened at a meeting with former Zoning Director Hodgkins. Mr. Perry was not at that meeting; therefore, any characterization by him of what transpired is hearsay and lacks predicate.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

Admission of Mr. Simpson's letter to Mr. and Mrs. Graves as evidencing an amendment that binds the condominium. The attached amendment was an unrecorded document. Amendments to condominium documents are required to be recorded in order to have any validity.

On behalf of Mr. and Mrs. Lane, F. Martin Perry objected to:

Any testimony or evidence that is outside the record that was before the Zoning Commission below. He moved to strike same.

Any testimony that has been offered from any members of the public that are not within the definition of an "affected person" as defined by the ULDC. That incorporates Ms. Davis.

Presentation of this matter to the board in the form of a trial as opposed to an appeal.

Introduction of the sales brochure, specifically as being outside the record below.

Mr. Lieber's testimony on his conversations with Mr. Miller as hearsay.

Mr. Johnson's testimony. He is no longer an affected person, and his comments were outside the record below.

Being denied the opportunity to cross-examine Mr. Johnson.

Mr. Harris's testimony as being outside the record below.

Graphics that were used by Mr. Rosenbaum and again by Commissioner Aaronson as being outside the record below.

Those aspects of Mr. Scott's testimony that formed the basis of legal conclusions on his part as opposed to opinion that he as a landscape architect is able to offer.

Testimony solicited by Mr. Watterson who was essentially leading all the witnesses and, in fact, testifying for them.

Being unable to cross-examine Ms. Davis.

Assistant County Attorney Alterman repeated her earlier advice about what the board needed to base its decision on and directed the commissioners' attention to the findings of fact contained in each of three resolutions distributed to them. Each resolution had been prepared for a separate action the board could take.

(CLERK'S NOTE: The resolutions had not been provided to the clerk.)

Commissioner Marcus recollected at length what had transpired in 1996 and offered for the record a letter to Mason Simpson from Sandpointe Bay Condominium Association.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

MOTION to receive and file the letter. Motion by Commissioner Marcus, seconded by Commissioner Masilotti, and carried 6-0. Commissioner Newell absent.

Commissioner Aaronson said he offered the following motion as a solution that would allow everyone to be a "winner."

MOTION to overturn the Zoning Commission decision and modify the conditions to allow a not-to-exceed 1,300-square-foot recreation facility to be built on the existing boathouse remains with a height no greater than that of the original structure that was there. Motion by Commissioner Aaronson and seconded by Commissioner McCarty.

Commissioner Aaronson further stated that the people who purchased units at the condominium had the right to expect such a facility. This was something the court could rule on should the title issue go before it.

Zoning Director Whiteford explained to Commissioner Masilotti that the motion would not entail a change in zoning from residential to recreational. A recreational accessory use could be part of a multifamily condominium project on the same piece of property, he said.

In response to questioning by Commissioner Masilotti, Assistant County Attorney Alterman sought clarification from Commissioner Aaronson that the intent of his motion was that the unity of title for the entire parcel must remain on the land and that the property must be incorporated into the condominium. Commissioner Aaronson said that if Ms. Alterman wished him to include that, he would.

AMENDED MOTION 1 to include the unity of title clarification as stated by Ms. Alterman. The maker and seconder agreed.

Commissioner Masilotti said he was troubled that while the parcel was zoned for residential and sold as such, the board was deciding it should be recreational and telling its private owners that they could not build living quarters on it. Therefore, the owners would lose the value of their property. He expressed concern that this was a possible violation of the Bert J. Harris, Jr., Private Property Rights Protection Act and would land the county in the middle of a lawsuit. Commissioner McCarty remarked that that was a civil matter between the current and former property owners. As far as the board was concerned, she said, the property was one piece.

Commissioner Masilotti said he thought it would be easier to leave the property at 1,300 square feet residential.

Commissioner Aaronson reiterated that the condominium purchasers had a right of expectation and added his concern that the property owner might have carved out the piece of property for extra gain.

AMENDED MOTION 2 that the structure not exceed 1,300 square feet whether it become a boathouse recreational facility, if the parties can come to some kind of agreement, or it be a residential unit, its height not to exceed the height it was originally approved for. The maker agreed.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

Commissioner McCarty sought clarification that as a result of the motion on the floor, the board was not granting the request asked of the Zoning Commission about changing the unity of title. Zoning Director Whiteford responded that that was his understanding. In consequence of the motion approval, he said, the phrase that was added to condition F.1 ("excluding the 0.22 acre boathouse parcel") would be removed, and the requirement would be revision of the unity of title to include the boathouse parcel.

SECOND TO AMENDED MOTION 2.

Commissioner Aaronson confirmed the chair's review of his motion that the building would be limited to 1,300 square feet and could be either a recreational facility or a living unit not to exceed the height of the original boathouse. When asked by Commissioner Roberts if that was the motion she seconded, Commissioner McCarty said she was confused by the unity of title issue. Commissioner Roberts noted that it had not been mentioned by Mr. Aaronson. Commissioner McCarty observed that the motion did nothing to change the unity of title. Assistant County Attorney Alterman clarified that the Zoning Commission approved an amendment to the unity of title. By this motion, the board was essentially overturning the commission's decision and adding conditions of its own about square footage and height; it was not amending the unity of title but leaving it as it was. Commissioner McCarty said that that was what she was seconding.

Commissioner Roberts asked the maker or seconder to articulate for the record which standards of section 5.4.C. of the ULDC had not been met by the Zoning Commission's decision. Commissioner McCarty responded that it failed to meet standards 3 (Compatibility), 4 (Design minimizes adverse impact), and 10 (Changed circumstances). Commissioner Aaronson agreed to all three points, especially the last.

Ms. Alterman told Commissioner Marcus that in order to do a unity of title, a property has to be under one ownership. Commissioner Aaronson commented that his motion would allow both sides to come together and end up with one owner and one unity of title.

Mr. Whiteford requested clarification on whether the size restriction applied to the entire structure or to the building under air. Commissioner Aaronson offered to clarify his motion.

AMENDED MOTION 3 to specify a building total of 1,300 square feet, not under air. The maker and seconder agreed.

Mr. Whiteford said that if staff could not determine the height of the original structure, they would probably return to the board with a recommendation for a height consistent with two stories, which normally is 25 feet. Commissioner Aaronson recalled he had seen many two-story structures much lower than 25 feet and said there were three-story structures of 35 feet. Mr. Whiteford responded that staff would recommend 25 feet to the highest point in case the structure had a pitched roof. Commissioner Aaronson observed that the original roof was flat and offered 22 feet as a compromise.

REGULAR AGENDA - CONTINUED

2.A.1. PETITION 95-83(C) RESOLUTION R-2001-0010 - CONTINUED

AMENDED MOTION 4 to specify a building height of 22 feet from the water. The maker and seconder agreed.

The board unanimously agreed to Commissioner Aaronson's calling of the question.

UPON CALL FOR A VOTE, the motion carried 5-1. Commissioner Roberts opposed. Commissioner Newell absent.

Commissioner Roberts explained that her opposition to the motion was based on her belief that it did not meet the 10 standards in section 5.4.C. of the ULDC.

Mr. Whiteford said staff would bring back a resolution.

Ms. Alterman said the commissioners had a resolution before them and that they could adopt it.

Commissioner Masilotti raised the possibility of a lawsuit being filed before the board's decision took effect and asked if the board's decision would be held in abeyance until after the conclusion of the court hearing. Ms. Alterman responded that a stay would depend on what cause of action was filed, if any. If it was a writ of certiorari, no stay would be put on the board's action. If a cause of action was filed in circuit court as opposed to appellate court, it would depend on the cause of action filed and whether the litigants could get an injunction to stay the board's decision.

Commissioner Roberts asked Commissioner Aaronson if he wanted to make a motion adopting the resolution.

MOTION to overturn the decision of the Zoning Commission which approved the development order amendment for zoning petition DOA95-083C, appeal of Carlyle Jupiter Island Condominium Association, inc., by Dan Rosenbaum, Becker & Poliakoff, Lane Boathouse. Motion by Commissioner Aaronson, seconded by Commissioner McCarty, and carried 5-1. Commissioner Roberts opposed. Commissioner Newell absent.

Assistant County Attorney Alterman said the board's actions would be reflected in the amended conditions of the resolution.

3. DIRECTOR COMMENTS

3.A. ZONING DIRECTOR - None

3.B. PLANNING DIRECTOR - None

4. COMMISSION COMMENTS - None

5. ADJOURNMENT

The Chair declared the meeting adjourned at 4:09 p.m.

ATTESTED: APPROVED:

Clerk Chair