e e e e Mr R we're ready uh welcome everybody uh welcome to the board of appeals I'm I um see first of all can we ask uh Town collect to do a roll call sure member Gordon um secretary Rosen uh member Weiss Vice chairperson thornson and chairperson Rosen here Town attorney rubben here and town planner Allen here thank you okay could we uh stand up and have a pledge of allegiance to FL please flag of the United States of America and to the Republic for which it stands one nation under God indivisible with liberty and justice for all thank you all right uh are there any changes to the agenda we know of no okay great uh make a motion we approve the agenda all in favor all right thank uh time to swear in public for those giving testimony to the application on this agenda please uh stand raise your right hand be swor by Sorry by The Authority as a notary by The Authority as a notary of the State of Florida do you swear affirm that the testimony you're about to give the truth the whole truth and nothing but the truth thank you thank you uh we need the approval of the minutes from January 21st are there any corrections to the minutes of the January 21st meeting hearing none I make a motion we approve the minutes is there a second second thank you all in favor thank you okay uh new business okay we have an application uh from Maria and I believe it's Stephen got oh okay Mara thank you um okay do any board members have any expart Communications to disclose okay this time we'd like to open this meeting for the public hearing uh Town planner Allen please present your recommendations regarding the appli Mr chairman the applicant indicated he wished to go first so we're GNA since it's the applicant's appeal we're going to let applicant go first or the appellant is the case that that agenda would have to be changed by the town CLK no it's on the agenda that way does anybody object oh yeah no it's um but you don't have to formally change the agenda we're just going to change the order of presentation all right okay thank you please all right good morning um pleasure to be here my name is Michael Marshall I'm with the Nelson Mullins Law Firm um our address is 1905 Northwest Corporate Boulevard in Bon uh first off I'd like to thank everyone for um rescheduling this meeting and getting us on agenda so soon after the prior meeting and also accomodating travel schedules over the summer so we do really appreciate um that you are able to get this uh this meeting sort for us in such short time we really appreciate that um this issue is really I think it's quite simple we'll spend some time talking about it but it really boils down to um you know an interpretation of a how the town code treats gazebos and where gazebos can be located um staff you know staff has taken a position their interpretation that the code doesn't expressly regulate what what the locational requirements are for a gazebo a gazebo is defined in the code it's mentioned in one other location but other than that other than recognizing what a gazebo is and defining it and um it doesn't provide an explicit setback requirement in the code and for that reason staff has interpreted the code as being well if it doesn't talk about it then it's not mentioned then it's regulated to to the most stringent degree which is in this case just defaults to the same setbacks that apply to the main structure on the property which is in this case a home so essentially if you want to have a gazebo you've got to re eliminate your part of your home you can't you have to put the gazebo in the building footprint somewhere in that building envelope it can't be in the yard so we um you know we find it first it it does seem somewhat strange that that you wouldn't have be commonly considered an accessory structure that belongs in your yard in this case can't be um but also we suggest to you that or we do want to want to persuade you that the code actually does provide for language that will guide staff in how to determine where a gazebo should be located there are other types of yard structures other types of um Cabanas um d uh Mo walkover structures uh there are other types of walls fences Hedges all sorts of yard accessory structures that are allowed in the yard and at different places in some places some cases there's a rigid requirement other places it's left to the discretion of Staff in determining where's the most appropriate place for it um and there is a um a catchall provision that talks about customary yard structures the code just refers to customary yard structures and it says that they are subject to height requirements obviously you can't be higher than structures that are allowed on the property and also site triangle requirement so if you're in the front yard and you know the corner where there's an intersection you know you can't place it in the site triangle right so but otherwise it can shift in the yard it can be located in the yard wherever staff um thees appropriate through a plan review so you can so so so again so the issue really is whether or not a gazebo is may be placed in the yard um just one more time thank you so I just to give you an idea of the home itself where it's located here we have the address 2474 South Ocean it's on the inter coaster Waterway um if do go to the next slide next slide zooms on a bit and you can see in the circle there a small roof structure and that's the Gazebo we're talking about here okay thank you so much use the the middle yeah yeah right here yeah yeah yeah so so that that that's so just so you have an idea of what we're talking about and what it looks like and where it is and what it's adjacent to it's it's along the inter coaster Waterway it's off the back of the seaw wall there's a there's a a barer there's a railing along the seaw wall it's a back patio area um and then the Gazebo this what it looks like it it sits in the backyard like this it's not adjacent to any property line um or it's not close to any property line shared with another U residents this is where it is it's located on the survey it's it's you see the the structure is in yellow and it is um it is situated four feet from the property line the other setbacks the side the front all of those it's they're nowhere near the adjacent properties it's just four feet off the rear line which is the inter coaster Waterway um I don't know if we need to go through all this but just in case you're wondering how do we how we got here um it's kind of a it's a sort of a tortured process but the Gazebo was was was was under permit review uh whenever the contractor there was an unfortunate situation we could talk about I don't know if it's really relevant to the issue but just to help give you context again um there there was a contractor going had became ill went through various treatments during the Autumn while this permit application was pending a third- party contractor had been uh hired to install this structure they came in and installed it no one was aware of that that there was still the question about the setback that was being discussed or being raised by staff and so um after you know once the structure was was in place then a code enforcement matter started because it was a structure that was erected without a permit and obviously we want a permit there was a permit application pending but the question is whether or not the permit can be uh approved as the structure was proposed and has since been erected or whether it needs to be relocated to some other place or whether it needs some other type of approval like a variance approval so it's kind of the Perman application is kind of suspended in limbo now while we continue and and get to the bottom of the discussion it should have been had sooner which is what is a setback requirement if any on gazebos so so just to illustrate the issue um I don't know how to get rid of the the controls at the top but it we're just trying this is this is what we propos the code allows that the Gazebo could be in the yard uh and this is what staff is in saying is that the Gazebo needs to be within the principal building footprint um staff's interpretation based on a section of the code section I can't see it here was it it's 36 oh there you go yes yeah it should be and I can read to you but this section says it begins it it talks about encroachments in the setbacks in certain zoning districts the zoning District this property is located as one of them and it starts by saying unless otherwise provided in the code then the following structures are allowed in the side or rear required setbacks and so it goes through and talks about elements of the principal structure roof overhangs air conditioning condensers pool heaters walkways that attach to the single family home stairs that attach to the single family home um devices like electrical meters and fuse boxes that are attached to the home um canopies things that are these are encroachments of the principal structure into the yard right it's so it it's like so it it gives some flexibility on certain elements of the structure where it's not strictly held to the 20 foot or 15 foot whatever the setback requirement is so this is talking about elements of the main structure and when the application was submitted and again this is you know it's something become incredibly important that in retrospect see like shouldn't have been but the application referred to the structure as a pergula pergula is kind of a like common term you know the code the town code doesn't have a definition of pergula nowhere in the town Cod do it talk about pulas and so what is you know what is a pergula people Define pulas in all kinds of ways if you look at it you know they can be where they hang off of a structure they could be a free stranding structure usually they're lattice and allow for like climbing vines you know it's perula is just sort of a garden right you know pun in ten it's just it's not a term of art right but if you but if you look in the and so we if you're looking at this at this part of pergula and you try to think well how does the code address pergula well the structure's got to there's no pergula in the code so this structure's got to be something else and the code provides a definition for gazebo which this meets exactly but nonetheless whether it's gazebo or pergula the fact that neither one of them are listed here is one of the things that may encroach into the setback like a roof overhang or a balcony or a bay window since it's not listed then that means it can't do it according to staff so it just they just say well it's not it's not listed so it's not allowed right of course this begins this section begins by saying unless otherwise provided in the code and the code has a whole other section 3068 in its supplemental regulations that regulate accessory structures obviously other things are not listed here either such as dune walkover structures swimming pool Cabanas so there other things that can be in the yard this is referring to elements of the main structure the Gazebo we we have here today is a freestanding structure so so you need to continue reading the code you just can't stop at this one section I don't know sorry okay okay okay so so can I use this okay so again just to again this is technically it might be in common parlance a perula but for purpos of the code it's not a perula u there's no definition of perula again um it's not attached to the principal structure like those encroachments that we're reading from that section that staff relies on it is and this is a code definition of accessory structure which is defined as a detached building and a building being in structure that's um that's attached to the ground more than 30 inch above finished gray so this is an accessory structure question is what type of accessory structure and when you look at the definitions of accessory structures again you have a cabana which it sounds like a cabana other than the fact it's not necessarily related to a swimming pool right this is not like a cabana by a pool or a Cabana on a dock this is a gazebo an open style single level accessory structure having a floor and a roof but no full walls which may or may not have electrical service so it's a gazebo so how does the code regulate gazebos if you look at that section I was referring to section 3068 it it has it talks about swimming pools and Cabanas it talks about fences and walls it talks about Marine facilities like boat houses and docks and dock structures Dune walkover structures and gazebos are all listed in there and the locational criteria for all of them vary and like I said the only mention of gazebo aside from the definition is this one section here that it says says Dune walkovers and gazebos are considered Expendable structures and are not subject to the time limits established in here that's because it's in a section dealing with temporary structures and so there's like a time limit on temporary structures then it goes Dune walkovers and gazebos are considered structures and a building permit is required prior to construction so in other words you got to get a building permit have no question with that we no issue with that we had a building permit application pending we want it to be issued um but because of the question of can it be located where it's located is preventing the issuance of that building permit so again it you know dun walkovers if you look at where they can be located let me go to do walkovers it says that the setbacks can be waved by the building official and interestingly Dune walkover structures are spoken about in conjunction with gazebos the difference here is this is an oceanfront property right it's along the inter Coastal so there are no Dunes um but the point is is that you could have a gazebo at your property line where the dunes are just like we're saying you could have a gazebo on the inter coaster Waterway it's not near anybody it's up to just like you could do with your swimming pool just like you do with the Cabana Screen Enclosures that are actually you know these are like the Florida rooms Screen Enclosures that are attached to the back of the house they can go all the way out to six feet from the property line right so they're allowed in the yard and they're massive much bigger than this gaze so so so I guess the conclusion is that the code clearly allows for accessory structures you're not limited just to that section that talks about encroachments from overhangs and projections from the main structure and even that section begins by saying unless otherwise provided in the in the code gazebos are an accessory structure they are customarily found in yards and if I go back here that section I was telling you about where it says fences walls poles vegetation other customary yard accessories pool decks or and Furniture may be permitted in the yard subject to height limitations and visibility requirements so we're so our interpretation is actually based on language in the code this is a customary yard structure yard structure there's no other provision in the code that that would conflict with this section here that it may be permitted subject to height limitations and visibility requirements there's no explicit four feet six feet like it is with Screen Enclosures it's an necessary yard structure it's customary it's a gazebo it belongs in the yard the code allows for it to be placed in the yard without specification subject to requirement that it get a building permit we're actually reading the code and we're reading it according to canons of interpretation where this isn't showing but I can tell you what it would show and that is that first off you're not supposed to add or ignore language in a code you're supposed to read a code in total right which that's the whole text Cannon so in this case staff is ignoring the beginning of the section rely on which says unless otherwise provided in this code they just looked at that section and nowhere else and also the omitted case Cannon where you know you don't add text to a code right and so you can't invent you can't there's no requirement by default again Land Development regulations and this is well established for the law Land Development regulations cut against property rights right it is a derogation of of private property rights and for that reason when land devel regulations are ambiguous and are subject to more than one reading they're always read in favor of the use of land in favor of constitutionally protected property rights and so again to the extent even if we say that it's ambiguous here it doesn't we don't know gazebos aren't specifically referred to as a setback requirement well you can't then just say well I guess we'll resolve that ambiguity in favor of some Draconian 20 foot setback requirement that essentially requires you to cannibalize part of your single family home to gazebo so I it it really is it's there's a lot of explanation there it's a very you know rigorous sort of statutory analysis that you go through for something like this makes it kind of difficult to present but it it really just boils down to whether or not your code gives can be interpreted in ways that come to a logical conclusion which is that you could have a gazebo in your yard and then you know what exactly is the process for approving it and the location requirements and in this case there is no specific location requirements if anything it's like doing walkover structures that are subject to the discretion of the building official through the building permit process and so we will respectfully request that you would embrace our interpretation such that this gazebo can be permitted where it's located it's 4 feet from the rear property line which is the seaw wall the inter Coastal it's not adjacent to any other single family homes it's not casting Shadows on anybody it's not a visual obstacle to anything from adjacent properties it is completely benign there's no public life safety issue here um it's where you typically find gazebos especially along along um like waterfronts where you really want to use your Waterfront and maximize your waterfront that's why you live there so so we believe that the Gazebo should be can may be permitted where it's currently located and we would like nothing more than that permit to be issued as soon as possible so that then we can then go through the process of having it closed out properly thank you thank you Mr Marshall uh it's time for Miss Allen to make a presentation Our Town planner not yet okay good morning for the recording RH Allen Town planner I was going to provide for you all an overview of the staff report rep um which actually starts on page nine of your packets um uh Mr Marshall already provided some of the Aerials and I do like to start the presentation looking at the areals of one that are provided in your packet are a little bit different than the ones provided by Mr Marshall so we we'll look at those those areals start on page 55 of your packet with me one second while I get this PowerPoint ready there we go okay so here you have obviously the property in question I've gone ahead and provided a red dash line so you could see the property lines and then right here in the corner little bit hard to see from here but that little square there that is the accessory structure in question today um obviously this uh is an aerial view of the property here you have um South Ocean Boulevard and of course the inter coal here um so here is a zoomed in areial of the rear of the property again this is the inter Coastal Waterway who we're actually facing Eastward and here you could see that um accessory structure um a little bit more clearly and here you have a photograph that was provided uh by Our Town Senior building inspector this was taken back on December 22nd of 2023 now um I do provide a bit of property history at the top of page 10 I won't go into all of that but I did want to provide Clarity on one particular um date here um I mentioned that on January six excuse me January 19th of 2024 the permit was cancelled by the town's building official uh citing that the pergola was built without a permit I just wanted to clarify it was not the permit itself because it was not issued at that point it was the permit application was cancelled so I just wanted to provide that Clarity and um also uh right below that I mentioned about the code enforcement board meeting um I just wanted to provide an update for you because I did mention um that the applicant was going before the code enforcement board on July 9th I just wanted to let the board know that at that July 9th uh code enforcement board meeting the board did provide an extension to come into compliance uh to uh October 10th of 2024 so um at the bottom of page 10 I provide you the definition of accessory structure Mr Marshall have provided the same um and on the top of page 11 um I've provided that uh section that talks about encroachments so this particular section 30- 68 C2 this provides permitted encroachments for accessory uses I think I have the that's the actual survey oh I'm sorry I wanted to provide you the survey as well I've gone ahead again the survey um is also in your packets um it starts on page 58 I just wanted to highlight the accessory structure in question with a little yellow here so you could see it a little bit more clearly um so the encroachment section here I'll read it um into the record it says fences walls vegetation poles and other customary yard accessories pool decks ornaments and Furniture may be permitted in any yard subject to height limitations and visibility requirements now the applicant structure the accessory structure in question um as I indicated on the top of page 11 it's 231.50 75 square feet and it's a height of 10 feet now the applicant in their narrative indicates that this structure is a customary yard accessory now based on that definition that I again on the top of page 11 staff's position is at a 231 square foot um accessory structure at 10 feet is not comparable it's not similar to a fence a wall a vegetation or pole these are the examples that are given in the code for a customary yard accessory in addition um I mentioned that there's pool decks that are referenced here and I do note in your staff report that um in section 30- 68 f1b swimming pool decks have to be set back at least four feet from the rear or side side lot lines um and then with regards to uh ornaments and Furniture these are typically uh not permanent things right or ornaments Christmas ornaments or whatever type of you you know those are typically seasonal Furniture can be moved in and out whereas the structure is is permanent now in addition the um accessory structure in question it is located four feet from the rear property line and I do indicate that the for this particular zoning District which is residential single family there is a 4 foot excuse me there is a setback of um or I should say the accessory structure in question is setback four feet from the rear property line um and I do indicate that in the staff report that there is nothing in the code that allows the structure to encroach into the setback so here are the permitted encroachments now I do provide these in the middle of page 11 this is the actual language that's in the code it's you know elaborates a little bit more I made a little bit more simple and straightforward in your um packet here but again the this particular section reads unless otherwise provid in the code the following structures are allowed in the side or rear required setbacks that set forth here in um you could see letter f um is Screen Enclosures and I did want to correct Mr Marshall he indicated that screen enclosure per the Cloe cannot be closer than six feet it's actually 5 feet so screen enclosure can be closer than 5 feet um also at the bottom of page page 11 I do talk about the Dune walkover because um in the applicant's narrative they do reference the Dune walkover and I provided hear what the code says about Doom walkover I highlighted for emphasis it says in the code section 38- 68 I a dune walkover structure shall comply with the setbacks of the zoning District in which um it's located now again there are two exceptions here um if there's a beach axis easement or a similar easement that exists which would allow construction of such structure and an alternative alternative location as determined by the Florida Department of Environmental Protection which results in less damage to affected Cal Dune uh and vegetation now um the applicant again in their narrative talks about Cabanas talks about gazebos I just want to make it clear in the town of Highland Beach you can have a cabana you can have a gazebo but again there's nothing in the code that allows those particular structures to encroach so you can have them but you do have to comply with the building setback um I've put up here what the code says about Cabanas this is section 3068 F3 it basically provides you some Provisions if you're going to have a cabana Cabanas associated with swimming pools or ocean bathing shall comply with the following limitations single story Nots exceed 150 square feet facilities for independent cooking eating sleeping are prohibited water electricity facilities for sanitation are permitted there's no reference here about the uh the Cabana can encroach the setback in addition the code provides a definition for Cabana which is listed there those are the only two Provisions that talk about Cabana with regards to gazebo the code only talks about gazebos in terms of a definition which is provided there and as Mr Marshall indicated the town code does reference gazebos but if it's a temporary structure which is not the case here this is not a temporary structure this is a permanent structure so again these are items that are allowed in the code you can have these but you do have to comply with the building setback um we also have some regulations in the code Mr Marshall alluded to this as well with regards to accessive Marine facilities we have a marine site setback so I want to make you aware of that um and these are just some additional definitions I'll be glad uh to address any questions that you all might have on this request thank you very much um yeah we I have some questions on I just want to get some time frame on this thing and see if I have the right understanding on September 13th a permit was applied for on December 22nd uh there was a code violation that the structure had been built without a permit on January 9th the permit was rescinded the applic excuse me the application of the permit was resented on March 12th code enforcement Le to fine on April 1st through the 4th at that time several letters were sent in by other residents saying they had no problem with it um my issue I I was trying to understand M Mr Marshall's testimony with that and I I just I I wish I could say I go along with it I've listen to what Miss Allen has to say uh if this thing had been permitted and built and there was an issue with setback at that point it' be a different situation but I this is supposed to your claiming this is a lawn accessory and doesn't need a permit I no no no no it does need a permit absolutely said it needs but you're calling it something what I'm saying is I am listening to Miss Allen and I believe she is correct and that's my feel I can't speak for my other board members but if anybody else has any questions I'd welcome them yeah uh good morning I I do have a couple questions for both uh both of you um is it a matter of semantics or is there a specific regulatory distinction between a pergula and a gazebo or a cabana I mean the initial application had a pero and you know reading between the lines you came into the picture and you thought that that was not a proper term for some reason right and and and and does it is there a distinction other than semantics well so I I'll say that it's important because you know I can I can Smit an application it's kind of I don't know if any of you are familiar with like Court pleadings I know the to attorney would be I can follow a pleading with a judge and call it something and then if what I'm asking for is something else well it doesn't like I can misname it right it is what it is and so in this case it was called a perg and that's fine you can call it per but when you try to look to see how pergas are treated in the code you won't find it so it's like well it's got to be you got to try to find how it fits in the code right this structure all there and then that's whenever I got involved and I said well it's one of two things it's either a screen enclosure or it's a gazebo and it really fits the definition of gazebo perfectly I would think that in the normal case that when a local government gets an application like that and it's mislabeled it they would say in like a review comment that this is you know under our code this is a gazebo so we've modified your permit application to reflect that you're requesting the permit for a gazebo right not just all of a sudden let it go down some some wild path because you've got some term that doesn't exist in the code and so now we're just left with saying well we can't find the regulation so we're just going to assume one and I and I know that staff keeps saying there's nothing in the code that allows the Gazebo to encroach but I would submit to you there are lots of of structures though that are allowed at different setbacks you heard four feet for swimming pool decks right 5et for screening closures Dune walkover structures it does specifically say principal setbacks but then it adds maybe wave maybe wave and that was our point it may be adjusted by the building official during the permit process all of these things have specific regulatory language that's what is the responsibility of government to do when they're regulating land is to have specific language that regulates it clearly and not arbitrarily but but gazebos doesn't have it and so to say it's not allowed in the SE well it's not prohibited either like the code doesn't doesn't say you can't have it in the yard right it just doesn't say it doesn't say and so you can't just write a requirement into the code you're you're you're you know your Town Council has to adopt specific code language and they can still do that if that's the desire but my point is that when you read this code it doesn't exist and you can at that point in time you have to you have to use cannons of interpretation and and sometimes that you know it's not just oh well we we don't have an answer so we're just going to fall back on the principal setback can I ask you a question m is this structure electrified too it it it is it is electricity I don't believe it's connected currently right okay but but was it set up with a permit to electric plge and and a per Mr chairman if if you're going to ask questions of the of this gentleman he needs to be on the mic so it's recorded I'm sorry I didn't know your [Laughter] name yeah go ahead and and state it on the on the record my name is Frank bashota okay so I'm saying was there a permit applied for app for the permit no on the electric p uh we didn't get that far we it got so so no permit was applied no so after the structure was built right electricity was then put in at it was part of the when they installed the whole thing it was part of their package okay thank you yeah was this uh structure always a freestanding structure or were there original uh designs that attached it to the building to I have design where it was like can of levered off the the building it's always yeah been freestanding always been freestanding you know and the discussion with staff too I mean look it's this is you know we've had discussion with staff where they staff said well you need a variance well again you know that requires you to assume in order to say well I need a variance you you know you've got to point to a requirement that you're varying from and I can't like it's a it's it's a requirement that they're arriving to by default which you know I just SM is not proper I don't think it's consistent with Florida law and I don't think it offends your code either because your code like I said it allows things like doing walkover structures that could be subtit to discretion of staff is where they're located in in in those situations for environmental concerns and for considerations to the natural environment same thing with with gazebos you you have sight triangle requirements height requirements and then staff if you know if it's next to someone's house which this isn't this is alone inter Coastal it's not again none of the neighbors have any problem with it so it's not as if though you're code you're you're not really handcuffed by your code at all your code has Tools in it that you could use that could lead to like what what is the just result here Alan question this and Mr Marshall this is really questions and you keep getting back into your argument so let's try to keep it to the questions do we have any other said no neighbors had brought up any no every neighborh we've spoken to has indicated support and I believe we have at least a dozen of them that sign letters of support that should be in the agenda package so 14 14 yeah um the other would would it have been allowed if it was put in the original house plans it would still it would still be going over the setback right yeah it would it would have to be 20 feet which is where the house is so the original plans wouldn't have work you had to carve out part of the house to put the Gazebo there just for another Viewpoint well and it's it's not necessarily relevant um to this but what would Insurance consider it if if God forbid a hurricane hit would it be considered part of the the domain structure or would it be considered an accessory if it's not if it's not attached yeah it'd be considered an accessory structure okay yeah me of course you know it's a good point you know that's why we want you know the building permit issued we want it to go through the inspection process because the end of the day it needs to be properly permitted and on the ground for insurance purposes okay thank you anybody else have any questions I I just I had another thing the difficulty I'm having is the building department says this is incorrect that this should not be the town planner says the same thing uh code enforcement went into that I'm troubled by that that's my problem yeah I I just I have to agree with the town and I again I can't speak for any other board member right but I'm struggling with it we understand like one of the best things I learned in law school is that you know reasonable people disagree all the time and you know and we just have a different interpretation staff you know I you know staff's interpretation would require every gazebo in town to get a variance unless you carved out part of your main structure for a gazebo you need a variance for a gaze in but in the same respect and there were Gaza there there are other structures like this in town in the PowerPoint we had it may be they may have printed my PowerPoint you no I didn't print there was an image of of one so you know that but again you know that that's why we're this is an interpretation it's like this is you know it's natural there's that that we're on a different page than staff I told Marshall if this was if this was approved wouldn't that set a pressent anybody who wanted to put what they call a gazebo up without a permit no no no you need a permit 100% need a permit and that's what we're saying we're just saying that where you like when you submit a plan and you show to gazebo in in your yard that there's not a ex setback requirement that automatically applies because there isn't one in the code there isn't one it's not six feet it's not8 feet it's not 20 feet it's not one in the code at all and so it would be subject to you staff reviewed and and they'd have to make sure obviously that it's um you know that it's attached to the ground it means all building code requirements it means all the uplip uh requirements for strength you know and and it's located in the place not in the site triangle it doesn't exceed the height limits and it's not in a place that staff would consider in their opinion you know would be disruptive to to adjacent properties right but I'm not saying you can't get a permit you have to get a permit okay than absolutely the issue is whether the the setback applies yeah and what is whether it could be located in the rear setback yeah can I ask a question from Miss Allen so when you look at regulations that there is generally a legislative history behind the regulation why why it was written in the Way It Was Written what and so I putting aside the interpretation of the language which is critical but I'm putting that aside for this question what what is the harm to to the community that allowing this structure um to to stay would cause um with regards to the harm that that is not the role of Staff staff is here to implement the code right so um there's not any criteria in the code as far as any uh I mean there's always a safety and wellbeing right we want to promotee the safety wellbeing of residents but there's nothing in the code that has a criteria for any type of accessory structure if there's any you know issue there um but I I do want to say that um in the survey that was provided by the applicant which is um on page 58 of your packet you can see that they identifi the accessory structure here as an open walled roof accessory structure you were talking about semantics earlier so um let's say we did have in the code that a Pergola can encroach 5 feet into the setback and they submitted an application with an open walled roof accessory structure that would be comparable to a Pergola and they would go ahead and be able to do it um you know planners are always looking at the code and when people submit things we're trying to figure out okay is there something in the code that's comparable right people um I mean Highland Beach is a small down but people often will come up with a lot of new types of uses there's a lot of hybrid uses out there so people come in with applications and the town planners are trying to figure out okay is there anything comparable to this hybrid use that's in the code that we can use so I just wanted to address that because you talked about the semantics um as I said you can have a kazeebo you can have a dune walk over dun walkover is very clear you have to comply with the setbacks however there are some exceptions um so again staff is here to implement the code the code doesn't allow for an encroachment um whether you could some people will argue well you can't see it from the street and that is fine but that's not what the code says the code doesn't say well if you can't see it from the street the code doesn't say that so we are here to implement what the code says that's all that is our [Music] role you want to yeah if you need to be sworn in if you weren't sworn in raise your by The Authority vised me as a notary of the State of Florida do you swear the testimony you're about to give is the truth the whole truth and nothing but the truth thank you and again I'm well the the presentation's over does the board have a question for the well if the board wants to hear from the applicate that's fine all right I I have no problem with it if okay if it's acceptable that's absolutely fine thank you my name is Steve garic um so we recently renovated the house and decided that it made sense to have a summer kitchen outside so we got that fortunately we got that permitted early and properly and rank didn't have cancer so we didn't run into the problem with the second permit and when we realized we were building this thing of course everybody on our side of the street in the afternoon faces West and that's when the sun's the strongest the Heat's the greatest so we said you know and you're welcome to look I don't know how many houses down the street is it like five houses down the street there's three of these two or three of these same structures now I'm not a code person you know I don't want to get into any of that but there's similar structures that existed so we said okay let's design one that gives us protection from rain and you know some protection from the heat because we put a fan inside that was our that was our goal that was our plan uh I understand a cabana can't be more than 10 by 15 when I've heard we're not we can't C qualify as a comana because we have electric but the other thing in terms of its size is we're on a double lot okay so while you know if you're out of an 80 foot wide lot you know 10 by 15 sounds pretty big when you're on a 200 foot lot it didn't seem like our 15 by 15 structure seemed out of proportion with everything else so we went ahead we asked Frank to permit it he got sick and you know the rest is history in terms of you know why we're here and all the meetings we've had and the like and I apologize we've apologized to the Town we've offered to pay a fine and all these kinds of things to put the permit issue aside and just say okay what are these people just trying to do okay we lived here for six years we spent what do we spend $50,000 on new drainage and if you drive by our house today you'll see half of it's been dug up by the state doing that work whoever's doing the work ripped it right up and you know are redoing their own draing okay fine that's water over the dam but all we were trying to do is get some protection from rain and the sun above the summer kitchen we did that's it and if there's some way to amend the code rather than interpret it how it reads today we'd appreciate your Indulgence to allow us to do that because we're not trying to hurt anybody we're not trying to harm anybody nobody sees it all the neighbors have no objection to it they don't even know why we're here but that's not really the point the point is you have to do your job and we'd appreciate your help in figuring out a solution that would allow the structure to stay and exist thank you thank you um I was just put yeah yeah well I mean I could I I could like would would conclude just by saying that we we do not want you to believe that we think that people can just go up and build gazebos at their will they need it needs to be permitted it needs to go through a plan permit process we're just saying that because of the ambiguity in the code because of the lack of Express setback that applies to gazebos which is a defined term so you not have to worry about semantics it's a gazebo gazebo is defined so we're actually working with the term as it's defined in the code what it is doesn't have a specific setback requirement that would mean if you were to just follow in the default rule all we're saying is that it it should be permitted and it may be permitted and as we stand today rather than the additional step the additional regulatory step to resolve an ambiguity in favor of requiring the additional process of going through a variance for every person that wants to do a pergula it's in their yard that is resolving in ambiguity and in that against the landowner requires more process it's more application more application fees there's more risk variances you know are you know are is you know they're not always um easy to prove up right whereas you resolve the ambiguity in system florid the law in favor of the land owner then then you can move forward with permitting the perula and that's what we're saying you should do is to move forward with permitting it thank you thank you are there any other board members that have any comments question it's all okay thank you uh you Mr Marshall I think I'm sorry if I got that wrong um you said there are a lot of similar structures around right um yeah and now now a question for the building department is that are they similar enough to establish precedent I don't know structures they're speaking of oh and if you want to hear from the building officials yeah Jeff did you want to well good morning Jeffrey Miss building official town of Highland Beach the first thing that I would like to do um is just uh some points of clarification all right the first item is that um this is not a gazebo the Florida Statutes the Florida building code specifically identifies this as a Sun control structure because the purpose of it is to provide shade so it's a Sun control structure and the Very definition of a sun control structure begins with an accessory structure consisting of columns and so on so I want to make sure that you know I keep hearing gazebo gazebo gazebo muddying the waters clouding things up a little bit it is an accessory structure which is regulated by setbacks okay um it is not so I just want to make sure that we're we're firmly clear that this is an accessory structure when you build a home when you buy a home um at some point whoever built that home decided that they wanted to build that home all the way to the rear set back and the town allows you to do that but when you do that you accept limitations well now I can have a pool back there I can have uh a pool deck dock seaw wall Boat Lift but there's certain things that you can't encroach so this is where we run problems is where people are now want to just keep moving and moving and moving so um I just wanted to make that point because this isn't being presented for the purposes of a variance the purpose of this is to say that oh this is a yard accessory in other words we don't have to comply with a setback that is extremely dangerous ground that we're walking on when you make that decision because you are now setting precedence where people are going to call whatever that when they have something that's clearly defined in the Florida building code by Florida statute as a Sun control structure which is an accessory structure now everyone's just going to say and it's going to create a whole other issue it's not a screen enclosure it's a Sun control structure which is an accessory structure which is regulated in the future if the town wants to change the ordinance and change the seex that's great but right now they're not asking for a variance could have asked for a variance said hey yeah we have a structure this is what it is we want a variance but they're trying to just say we can do what we want we can put it wherever we want on our property because we don't have to comply with setbacks because it it clearly encroaches into the setac which is what I'm hearing from Mr Marshall so I just wanted to clarify that this is a Sun control structure which is an accessory structure the home is built all the way as far as it can go and that unfortunately limits the size you want to put a smaller Sun control structure put a smaller one that fits that meets a setback no one's saying you can't do it you just have to meet the requirements but throwing this out trying to say that this is some sort of a yard accessory is opening up all of the town for people to take advantage of that and use this as precedence and we have enough issues in this town to begin with with boats uh boat lifts uh Heights of seaw wall we're getting a lot of complaints so it's not just people there it's people who live on the canals and so on and so forth so just want to remind that this is not for you like the purpose of them being here thank you thank you CH she wasar hi I I just want to say that we're not trying to get away with anything that that's not true and I don't appreciate you saying because that's not us okay we follow rules follow the guidelines everything that the town has asked us to do when we have been renovating our home as my husband said we spent $50,000 just to help with the whatever the word word is for the water whatever that's been dug up right now the driveway having to be redone to to match every code that we have been ask to do anyway the other thing is so as far as the structure whatever the word is that whoever is looking for whatever word whatever you call it at the end of the day yes it is a sun structure because we want it to cover the sun when I'm outside barbecuing and it's very hot at 5 o'l when the sun is over the the barbecue so that was the point I just said to my husband can we get that when we're weed doing our kitchen and then we outside and that's how it started and the permit was not we registered for the permit or applied whatever it is later than it should have been and then there was you know an issue whatever with with Frank but so we're trying to follow the rules we've we've disconnected the electric that we did not know that that was not allowed so we disconnected the fan and the lights around it so now at night I just barbecue with my phone you know but it's it's not like we're doing anything to harm anybody or hurt anybody intentionally we didn't try to get a we didn't try to get away with anything was like oh we're going to go try to do that that's not correct the other thing is there are structures in Del re across from the inter Coastal so their guidelines must be completely different I get it but when you go up and down the inter Coastal even in Highland Beach a few houses down there's at least three other structures that are very similar I don't know the setbacks I know our our uh cover is within the ballister if you look at the pictures you can see the the railing the pools are in front of our ballister so our balls are there and then if you also look at our pool it's the same it's like here's our here's where the um structure is and our pool is the same like setback so it's just again we're not trying to get away with anything we would like to I think Mr Marshall had said something about a variance we would like to apply for that once we would I guess whatever happens but I don't know we just want a solution we want to be able mean to do something or come up with something that we can still use it thank you but before you make comment I want to make comment through the board um no I you know what it's a beautiful structure you seem like nice people but that's not the issue the problem we have here is our building building a head of our building department and our town planner said this is incorrect this is not correct and that's what this is about it's because you know and all of these meetings that we've had with many people you w to help people you want to do better but this is this is more black and white it's not a matter of you know agreeing or disagreeing I I mean I I have to go with what just is for me and I the other members may think differently but this is a matter of the Town planner and and the head of the billing department and C for saying this is one thing and the town saying it's you say I mean the issue why this really BLS down too and I and I think that everything that the billing official said this is an accessory structure that's the point I've been making it is an accessory structure it it meets the definition of gazebo gazebo is among other accessory structures and so the question before you really the decision your decision today is do gazebos unlike other accessory structures do gazebos always need a variants right it all these other accessory structures are allowed in the yard obviously and they're at different setback requirements like I said they it's but for some reason the code is going to treat pergula different than any other accessory structure and so anytime you have a pergula you need a variance but you don't need a variance for for you don't need a variance for Cabanas for doing walkover structures I don't need for for pools for for fences for walls for all these other accessory structures I don't need variances for them because they have setback requirements in the code because Zeos it's just silent and so that's my point is that to have a stepback you have to read that into the code and by reading that into the code you're forcing that particular accessory structure to the exclusion of all others to always have to go through this additional regulatory process to have a variance to exist I'm saying so that's really what it blows down to we're not saying oh you can't have these I mean my point is that obviously the code allows these it allows all kinds of accessory structures so without having to get a variance for where it's placed so that's really what it boils down to I mean you know we're not it's not like life or death anything like that you know and so and that helps us right I think that maybe that help you you know we're we're not trying to make some crazy argument that you know that oh we could never do this no we it's just a matter of the process thank you right and that's what the code enforcement board has given us time to figure out is what is the process is it can we go ahead just get a permit or do we need to go through a variance if that's the case it's going to be the case because that's going to be the precedent that every pergula unlike other accessory structures is going to need a variance okay thank you well whatever the the outcome of the vote is on this I hope that everything can eventually get worked out but we have to vote on what's up here so does anybody have any other comments well U Mr Marshall um U modifying your last statement I guess every um structure that's similar to this kind of structure that's that doesn't have the appropriate setback would require a variance right not not just the fact that you're you're building one perula is being regulated as a principal structure so it because it's being subjected to the principal setback so unlike other accessories even though it's an accessory structure it's being regulated as a principal structure under the stat interpret anybody else have any comments this on does the city know if there has been any prior requests for variances for this type of structure and were they approved um I've been here almost five years I don't recall a variance for a similar type structure um yeah not that I can I've been doing Board of adjustment for about nine years no I don't believe we've had one before you and if I just may add uh because Miss garik made made the comment about there may be other structures in the town um in this town we have a lot of non-conforming structures uh whether they're legal non-conforming um but that that is not a justification to continue uh to create you know a non-conformity uh so we we have a lot of non-conforming boat lists we have a lot of non-conforming we have some non-conforming docks we have all kinds of structures that may be in the setback but um again they may have gotten a building permit back in the day for it it may have been given to them an error but they have a permit so it's a legal non-conformity again that's not a justification to allow something to encroach that the code doesn't allow or permit thank you any other comments from anybody well uh I would like to make a motion to deny the applicant and uh anybody has any other motions anybody want to second it or anybody want to discuss it I'm inclined to uh you know agree with the town on on you know especially after what Jeff said that you know so I'm I uh second can second it okay all in favor of deny we're gonna no we're gonna have to roll call it so there's a motion to uphold staff's interpretation and deny the appeal correct right and that was the chair and it was seconded okay okay yes R so chairperson Rosen I say deny it chair uh board member thornson Hi and um member member Gordon accept accept you're against the motion so that would be an A and uh secretary Rosen I guess can I ask a question to council um we we talked about aarian what what would be the process it's a different process yeah they would have to so to get a variance they would have to apply for a variance it would come back before this board but it's a different procedure different criteria I see okay yes sir which would okay so I I I I would vote for the motion okay and member Weiss I'll vote for the motion okay and that's it that's it that's it the motion is pass Mo motion carries to deny right oh the motion to deny the appeal carries four to one is four to one yes all right thank you everybody um again hopefully this can change I mean I hope so but uh yeah yeah I I like I say this was for me a tough one yeah I feel mixed emotions on it but I have to go with what the town put out there I'm sorry yeah let's yeah we need we need to adjourn we can't we shouldn't be talking about this anymore the hearing's over we need toj meeting all in favor motion all all right now hopefully so I'll you an Ord okay I'll send it to you get out of the chair yeah thank you confusing there at the end but will