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Ord 28-08/ ~ ORDINANCE N0.28-08 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES, BY AMENDING SECTION 2.2.6(D), "DUTIES, POWERS, AND RESPONSIBILITIES"; SECTION 4.5.1(7), "HISTORIC PRESERVATION BOARD TO ACT ON VARIANCE REQUESTS", TO PROVIDE THAT APPEALS OF DECISIONS OF THE HISTORIC PRESERVATION BOARD REGARDING VARIANCES SHALL BE TO THE CITY COMMISSION; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Boazd reviewed the proposed text amendment at a public hearing held on June 16, 2008, and voted 4 to 0 to recommend that the changes be approved; and WHEREAS, pursuant to Florida Statute 163.3174(4)(c), the Planning and Zoning Board, sitting as the Local Planning Agency, has determined that the change is consistent with and does further the goals, objectives and policies of the Comprehensive Plan; and WHEREAS, the City Commission of the City of Delray Beach adopts the findings in the Planning and Zoning Staff Report; and WHEREAS, the City Commission of the City of Delray Beach finds the ordinance is consistent with the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the recitations set forth above aze incorporated herein. Section 2. That Section 2.2.6(D), "Duties, Powers, and Responsibilities", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: (D) Duties, Powers, and Responsibilities: (1) Develop, maintain, and update a survey of archaeological sites, properties, buildings, structures, and districts of special historic, aesthetic, architectural, cultural, or social value or interest. The Board will endeavor to improve, expand, and make more accurate the survey as additional documents, information, oral histories, and other such materials may become available, and it will periodically f \ reevaluate the survey. The Boazd will work with the City Historical Society, the State Bureau of Historic Preservation, and other appropriate public and nonprofit organizations in maintaining this survey. (2) Nominate properties for designation, and regulate such properties, structures, buildings, sites, districts, and the like so designated as historic sites and/or historic districts. (3) Participate in the National Register program to the greatest possible extent, as defined by the 1981 and subsequent amendments to the Historic Preservation Act of 1966 and regulations and rules drafted pursuant hereto by the National Pazk Service and the State Bureau of Historic Preservation. (4) Act as a regulatory body to approve, deny, or modify certificates of appropriateness as specified in Section 2.4.6(H). In addition to the Zoning District Regulations, the Historic Preservation Board shall apply the visual compatibility standazds provided for in Section 4.5.1(E)(8) with regazd to height, width, mass, scale, facade, openings, rhythm, material, color, texture, roof shape, direction, lot coverage, and squaze Footage, and other criteria set forth in Section 4.5.1. (5) Make recommendations concerning land development code amendments to the Planning and Zoning Boazd, and concerning building code amendments to the Chief Building Official, as they apply to Historic structures and districts. (6) Act in lieu of Boazd of Adjustment. The Historic Preservation Board shall act in lieu of the Boazd of Adjustment and is empowered to grant variances from existing ordinances for properties designated as historic sites, within designated historic districts or listed on the Local Register of Historic Places. In addition, the Board is empowered to grant variances from the sign code for those nonconforming signs which existed at the time of enactment of the sign code and relief to Section 4.6.16 through the waiver process [Section 2.4.7(B)]. Anv anneal from the approval or denial of a variance by the Historic Preservation Boazd shall be directly to the City Commission. (7) Develop, establish, and regulate guidelines concerning contemporaneous azchitectural styles, colors, building materials, and so forth for historic sites and within historic districts. Such guidelines will be subject to review by the Site Plan Review and Appearance Board and the Planning and Zoning Board, and will be subject to approval by the Commission. The Board's consideration and approval of certificates of appropriateness under these guidelines shall be in lieu of consideration and approval by the Site Plan Review Boazd. (8) Make recommendations to the Commission about facade easements, the imposition of other restrictions, and the negotiation of contracts for the purposes of historic preservation. (9) Increase public awareness of the value of historic preservation by developing, conducting, and participating in public education programs. 2 ORD N0.28-08 `. / \ (10) Make recommendations to the Commission concerning the use of grants from federal and state agencies, and the use of City funds to promote the preservation and conservation of historically and aesthetically significant azchaeological sites, historic sites, and historic districts. (11) Evaluate, comment upon, and make recommendations to the Commission concerning the deliberations and decisions of other public agencies affecting the physical development and appeazance of historically and aesthetically significant azchaeological sites, historic sites, and. historic districts. (12) Contact public and private organizations, businesses, and individuals and endeavor to arrange agreements to help insure the conservation and preservation of historically and aesthetically significant sites, buildings, structures, and districts for which demolition or destruction is proposed. (13) In the name of the City, and only with the express approval of the Commission, seek, apply for, solicit, receive, and expend any federal, state, or private grant, gift, or bequest of any funding, property, or interest in property to further the purposes of historic and heritage conservation and preservation. (14) Make recommendations to the Commission, and by referral to the Planning and Zoning Board, to make historic preservation concepts an integral and ongoing part of all City planning and zoning codes, the City land use plan, and any comprehensive use planning required by this state. (15) Create and approve standardized historic markers and plaques and issue recognition to designated historic sites and historic districts within the City. (16) Advise the Commission on all matters related to the use, administration, and maintenance of city-owned designated historic sites and historic districts. (17) Execute any other functions which may be approved by ordinance or resolution of the Commission. (18) Demonstrate a spirit of cooperation with and provide administrative assistance to property owners in the conservation and preservation of historic sites and properties within historic districts. (19) Develop and maintain a Historic Preservation Manual for the City to help property owners fulfill the regulations and requirements of this section and the regulations for historic preservation developed by the Historic Preservation Board and approval by the Commission. Section 3. That Section 4.5.1(7), "Historic Preservation Boazd to Act on Variance Requests", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: ORD N0.28-08 ( ~. (J) Historic Preservation Board to Act on Variance Requests: Pursuant to the powers granted in Section 2.2.6(D), the Historic Preservation Board shall act on all variance requests, within a Historic District or on a Historic Site, which otherwise would be acted upon by the Board of Adjustments. In acting on such variance requests the Board maybe guided by the following as an alternative to the criteria normally used by the Boazd of Adjustments. (1) That a variance is necessary to maintain the historic character of property through demonstrating that: (a) A variance would not be contrary to the public interest, safety, or welfaze. (b) Special conditions and circumstances exist, because of the historic setting, location, nature, or character of the land, structure, appurtenance, sign, or building involved, which are not applicable to other lands, structures, appurtenances, signs, or buildings in the same zoning district, which have not been designated as historic sites or a historic district nor listed on the Local Register of Historic Places. (c) Literal interpretation of the provisions of existing ordinances would alter the historic chazacter of the historic district, or historic site to such an extent that it would not be feasible to preserve the historic chazacter, of the historic district or historic site. (d) The variance requested is the minimum necessary to preserve the historic chazacter of a historic site or of a historic district. (2) Or, as an alternative to subsection (J)(1), that a variance is necessary to accommodate an appropriate adaptive reuse of a structure within a Historic District or upon a Historic Site through demonstrating that: (a) A variance would not be contrary to the public interest, safety, or welfaze. (b) The variance would not significantly diminish the historic chazacter of the Historic District or Site. (c) That the variance requested is the minimum necessary to effect the adaptive reuse of an existing structure or site. (3) The Board shall otherwise follow all procedures and impose conditions as required of the Boazd of Adjustments when acting on a variance. Any apnea] from the approval or denial of a variance by the Historic Preservation Boazd shall be directly to the City Commission. ORD N0.28-08 Section 4. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declazed by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 5. That all ordinances or parts of ordinances in conflict herewith be, and the same aze hereby repealed. Section 6. That this ordinance shall become effective immediately upon its passage on second and final reading and any variances ruled upon by the Historic Preservation Board on or after January 1, 2008 shall be subject to the provisions of this Ordinance. PASSED AND ADOPTED in regulaz session on second and final reading on this the 5t° day of August, 2008. ATTEST: _ 0~ . ~.~.:.~ City Clerk First Reading ~~ Second Reading O J ~~ ~.~a ~~ MAYOR ORD N0.28-08 MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: July 28, 2008 SUBJECT: AGENDA ITEM 10 A -REGULAR COMMISSION MEETING OF AUGUST 5 2008 ORDINANCE N0.28-08 ITEM BEFORE COMMISSION This ordinance is before Commission for a privately initiated amendment to the Land Development Regulations (LDR), by amending Section 2.2.6(D), "Duties, Powers, And Responsibilities"; Section 4.5.1(J), "Historic Preservation Board To Act On Vaziance Requests", to provide that appeals of decisions of the Historic Preservation Board regazding variances shall be to the City Commission. BACKGROUND At the first reading on July 1, 2008, the Commission passed Ordinance No. 28-08. Due to an error by the newspaper, the second reading had to be delayed until August 5 to allow for proper advertising. RECOMMENDATION Recommend approval of Ordinance No. 28-08 on second and final reading. ORDINANCE N0.28-08 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES, BY AMENDING SECTION 2.2.6(D), "DUTIES, POWERS, AND RESPONSIBILITIES"; SECTION 4.5.1(J), "HISTORIC PRESERVATION BOARD TO ACT ON VARIANCE REQUESTS", TO PROVIDE THAT APPEALS OF DECISIONS OF THE HISTORIC PRESERVATION BOARD REGARDING VARIANCES SHALL BE TO THE CITY COMMISSION; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. WHEREAS, pursuant to LDR Section 1.1.6, the Planning and Zoning Board reviewed the proposed text amendment at a public hearing held on June 16, 2008, and voted 4 to 0 to recommend that the changes be approved; and WHEREAS, pursuant to Florida Statute 163.3174(4)(c), the Planning and Zoning Board, sitting as the Local Planning Agency, has determined that the change is consistent with and does further the goals, objectives and policies of the Comprehensive Plan; and WHEREAS, the City Commission of the City of Delray Beach adopts the findings in the Planning and Zoning Staff Report; and WHEREAS, the City Commission of the City of Delray Beach finds the ordinance is consistent with the Comprehensive Plan. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AS FOLLOWS: Section 1. That the recitations set forth above are incorporated herein. Section 2. That Section 2.2.6(D), "Duties, Powers, and Responsibilities", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: (D) Duties. Powers, and Responsibilities: (1) Develop, maintain, and update a survey of archaeological sites, properties, buildings, structures, and districts of special historic, aesthetic, architectural, cultural, or social value or interest. The Board will endeavor to improve, expand, and make more accurate the survey as additional documents, information, oral histories, and other such materials may become available, and it will periodically reevaluate the survey. The Board will work with the City Historical Society, the State Bureau of Historic Preservation, and other appropriate public and nonprofit organizations in maintaining this survey. (2) Nominate properties for designation, and regulate such properties, structures, buildings, sites, districts, and the like so designated as historic sites and/or historic districts. (3) Participate in the National Register program to the greatest possible extent, as defined by the 1981 and subsequent amendments to the Historic Preservation Act of 1966 and regulations and rules drafted pursuant hereto by the National Park Service and the State Bureau of Historic Preservation (4) Act as a regulatory body to approve, deny, or modify certificates of appropriateness as specified in Section 2.4.6(H). In addition to the Zoning District Regulations, the Historic Preservation Board shall apply the visual compatibility standards provided for in Section 4.5.1(E)(8) with regard to height, width, mass, scale, facade, openings, rhythm, material, color, texture, roof shape, direction, lot coverage, and square footage, and other criteria set forth in Section 4.5.1. (5) Make recommendations conceming land development code amendments to the Planning and Zoning Board, and concerning building code amendments to the Chief Building Official, as they apply to Historic structures and districts. (6) Act in lieu of Board of Adjustment. The Historic Preservation Board shall act in lieu of the Board of Adjustment and is empowered to grant variances from existing ordinances for properties designated as historic sites, within designated historic districts or listed on the Local Register of Historic Places. In addition, the Board is empowered to grant variances from the sign code for those nonconforming signs which existed at the time of enactment of the sign code and relief to Section 4.6.16 through the waiver process [Section 2.4.7(B)]. Any appeal from the approval or denial of a variance by the Historic Preservation Board shall be directly to the Citv Commission. (7) Develop, establish, and regulate guidelines concerning contemporaneous architectural styles, colors, building materials, and so forth for historic sites and within historic districts. Such guidelines will be subject to review by the Site Plan Review and Appearance Board and the Planning and Zoning Board, and will be subject to approval by the Commission. The Board's consideration and approval of certificates of appropriateness under these guidelines shall be in lieu of consideration and approval by the Site Plan Review Board. 2 ORD. NO. 28-OS (8) Make recommendations to the Commission about facade easements, the imposition of other restrictions, and the negotiation of contracts for the purposes of historic preservation. (9) Increase public awareness of the value of historic preservation by developing, conducting, and participating in public education programs. (10) Make recommendations to the Commission concerning the use of grants from federal and state agencies, and the use of City funds to promote the preservation and conservation of historically and aesthetically significant archaeological sites, historic sites, and historic districts. (11) Evaluate, comment upon, and make recommendations to the Commission conceming the deliberations and decisions of other public agencies affecting the physical development and appearance of historically and aesthetically significant archaeological sites, historic sites, and historic districts. (12) Contact public and private organizations, businesses, and individuals and endeavor to arrange agreements to help insure the conservation and preservation of historically and aesthetically significant sites, buildings, structures, and districts for which demolition or destruction is proposed. (13) In the name of the City, and only with the express approval of the Commission, seek, apply for, solicit, receive, and expend any federal, state, or private grant, gift, or bequest of any funding, property, or interest in property to further the purposes of historic and heritage conservation and preservation. (14) Make recommendations to the Commission, and by refen•al to the Planning and Zoning Board, to make historic preservation concepts an integral and ongoing part of all City planning and zoning codes, the City land use plan, and any comprehensive use planning required by this state. (15) Create and approve standardized historic markers and plaques and issue recognition to designated historic sites and historic districts within the City. (16) Advise the Commission on all matters related to the use, administration, and maintenance of city-owned designated historic sites and historic districts. (17) Execute any other functions which may be approved by ordinance or resolution of the Commission. 3 ORD. NO. 28-08 (18) Demonstrate a spirit of cooperation with and provide administrative assistance to property owners in the conservation and preservation of historic sites and properties within historic districts. (19) Develop and maintain a Historic Preservation Manual for the City to help property owners fulfill the regulations and requirements of this section and the regulations for historic preservation developed by the Historic Preservation Board and approval by the Commission. Section 3. That Section 4.5.1(J), "Historic Preservation Board to Act on Variance Requests", of the Land Development Regulations of the Code of Ordinances of the City of Delray Beach, Florida, be and the same is hereby amended to read as follows: (J) Historic Preservation Board to Act on Variance Requests: Pursuant to the powers granted in Section 2.2.6(D), the Historic Preservation Board shall act on all variance requests, within a Historic District or on a Historic Site, which otherwise would be acted upon by the Boazd of Adjustments. In acting on such variance requests the Board may be guided by the following as an alternative to the criteria normally used by the Board of Adjustments. (1) That a vaziance is necessary to maintain the historic chazacter of property through demonstrating that: (a) A variance would not be contrary to the public interest, safety, or welfare. (b) Special conditions and circumstances exist, because of the historic setting, location, nature, or .character of the land, structure, appurtenance, sign, or building involved, which are not applicable to other lands, structures, appurtenances, signs, or buildings in the same zoning district, which have not been designated as historic sites or a historic district nor listed on the Local Register of Historic Places. (c) Literal interpretation of the provisions of existing ordinances would alter the historic character of the historic district, or historic site to such an extent that it would not be feasible to preserve the historic character, of the historic district or historic site. (d) The variance requested is the minimum necessary to preserve the historic character of a historic site or of a historic district. (2) Or, as an alternative to subsection (J)(1), that a variance is necessary to accommodate an appropriate adaptive reuse of a structure within a Historic District or upon a Historic Site through demonstrating that: 4 ORD. N0.28-OS (a) A variance would not be contrary to the public interest, safety, or welfare. (b) The variance would not significantly diminish the historic character of the Historic District or Site. (c) That the variance requested is the minimum necessary to effect the adaptive reuse of an existing structure or site. (3)The Board shall otherwise follow all procedures and impose conditions as required of the Board of Adjustments when active on a variance. Anv anneal from the approval or denial of a variance by the Historic Preservation Board shall be directly to the City Commission. Section 4. That should any section or provision of this ordinance or any portion thereof, any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part declared to be invalid. Section 5. That all ordinances or parts of ordinances in conflict herewith be, and the same are hereby repealed. Section 6. That this ordinance shall become effective immediately upon its passage on second and final reading and any variances ruled upon by the Historic Preservation Board on or after January 1, 2008 shall be subject to the provisions of this Ordinance. PASSED AND ADOPTED in regular session on second and final reading on this the day of , 200_ ATTEST MAYOR City Clerk First Reading Second Reading 5 ORD. N0.28-08 MEETING OF: JUNE 16, 2008 ITEM: AMENDMENT TO LDR SECTIONS 2.2.6(D)(6) AND 4.5.1(J)(3), TO PERMIT APPEALS OF VARIANCES DENIED BY THE HISTORIC PRESERVATION BOARD TO BE HEARD BY THE CITY COMMISSION. The item before the Board is that of making a recommendation to the City Commission regarding a privately initiated amendment to LDR Sections 2.2.6(D)(6) and 4.5.1(J)(3), to specify that ff the HPB denies any variance request, the applicant and/or its agent may appeal such variance decision directly to the City Commission pursuant to the requirements of Section 2.4.7(E). Pursuant to Section 1.1.6(A), an amendment to the Land Development Regulations may not be made until a recommendation is obtained from the Planning and Zoning Board. The subject LDR Amendment (Ordinance 28-08) has been privately-initiated in order to allow variances denied by the HPB to be appealed to the City Commission rather than the Circuit Court of Palm Beach County. The amendment would be retroactive to January 1, 2008. Pursuant to LDR Section 2.2.6(D)(6), the Historic Preservation Board acts in lieu of the Board of Adjustment for variance requests related to property within the City's five (5) historic districts, as well as all Individually Listed properties. Appeals acted upon by both the Board of Adjustment and the HPB are heard by the Circuit Court of Palm Beach County. Variances heard by the HPB are reviewed by criteria noted in LDR Section 4.5.1(J) which takes into consideration the historic configuration of the land and/or the original development of the property (see Appendix A). HPB variances are utilized as a planning tool to provide an incentive for development which encourages the rehabilitation and reuse of historic structures, while discouraging the demolition of historic structures and subsequent reconstruction. The differing review criteria was further emphasized when the City Commission considered revising the City's development fees as it was recommended -that the HPB variance application fees be significantly less than those charged for the Board of Adjustment, to encourage applicants to seek variances when appropriate. The amendment also includes language to apply it retroactively to January 1, 2008. This amendment would affect two (2) applications containing variance requests which have been considered by the HPB since January 1, 2008. The first, located at 36 SE 1°` Avenue, was heard by the HPB at its meeting of March 6, 2008 and requested approval of four (4) variances to the lot coverage, front setback, side street setback, and the side interior setback. While Staff supported the project by recommending approval, the requests, along with the associated Class V Site Plan application, were denied by the HPB, citing a failure to make positive findings with the criteria set forth in the Land Development Regulations, the Delray Beach Historic Preservation Design Guidelines, and the Secretary of the Interior's Standards for Rehabilitation. As a result, the Site Plan application has been appealed to the City Commission and is expected to be heard at its regular meeting of August 5, 2008. Therefore, if the subject amendments are approved by the City Commission, the. aforementioned appeal will include the Planning and Zoning Board Staff Report Ordinance 28-08; LDR Amendment to Permit Variances Heard by the HPB to be Appealed to the City Commission variances associated with the 36 SE 1~` Avenue Class V Site Plan application. The second, located at 140 NW 4"' Avenue, was heard by the HPB at its meeting of April 2, 2008, and requested approval of a variance pertaining to the signage type and location. The variance request was approved and the signage has been installed. As previously noted, the request specifies that those variances denied by the HPB would be appealed to the Ciiy Commission. However, Staff recommends that the language be more generic to include all variances, both approved and denied by the HPB. This recommendation is further explained within the analysis below. REQUIRED FINDINGS LDR Section 2.4.5(M)(5) (Findings): Pursuant to LDR Section 2.4.5(M)(5) (Findings), in addition to LDR Section 1.1.B(A), the Clty Commission must make a finding that the tent amendment is consistent with and furthers the Goals, Objectives and Policies of the Comprehensive Plan. A review of the objectives and policies of the adopted Comprehensive Plan was conducted and the following applicable Objectives and Policies were noted: FUTURE LAND USE ELEMENT: GOAL AREA "A" LAND WITHIN THE PLANNING AREA SHALL BE DEVELOPED OR REDEVELOPED, TO ENHANCE THE EXISTING QUALITY OF LIFE, COMPLIMENT EXISTING LAND USE AND RESULT IN A MIXED, BUT PREDOMINANTLY RESIDENTIAL COMMUNITY 1MTH A BALANCED ECONOMIC BASE. Future Land Use Element Objective A-4 The redevelopment of land and buildings shall provide for the preservation of historic resources. The objective shall be met through continued adherence to the Ciiy's Historic Preservation Ordinance and the following policies: Future Land Use Policy A-4.1 Prior to approval or recommending approval of any land use or development application for property located within a historic district or des/gnated as a historic site, the HlstoHc Preservation Board must make a finding that the requested action is consistent with the provisions of Section 4.5.1 of the Land Development Regulations relating to historic sites and districts and the "Delray Beach Design Guidelines° Future Land Use Polfcv A-4.2 In osier to protect the City's historic resources, the Land Development Regulations shall include provisions for designation of historically significant buildings, structures, archaeological sites, or districts. The City shall conduct periodic neighborhood surveys to identify and evaluate potential historic resources. HOUSING ELEMENT: GOAL AREA "A" TO MAINTAIN A SAFE AND ADEQUATE SUPPLY OF HOUSING BY PRESERVING IXISTING STABLE NEIGHBORHOODS, STABILIZING AND ENHANCING NEIGHBORHOODS THAT ARE IN TRANSITION, AND RESTORING AND REHABILITATING NEIGHBORHOODS THAT HAVE DECLINED. Planning and Zoning Board Staff Report Ordinance 28-08; LDR Amendment to Permit Variances Heard by the HPB to be Appealed to the City Commission Housing Etement Obiecfive A-10 The City shall support the conservation and rehabilitation of historically significant housing, especially where such housing is an identifying characteristic of a particular neighborhood. Housing Element Policv A-10.1 This objective will be implemented in accordance with the standards and criteria of Section 4.5.1 of the Land Development Regulations, Historic Preservation Sites and Districts. The proposed amendments will continue to provide for the preservation of historic resources, as is currently provided and will continue to support the conservation and rehabilitation of historically significant housing. Whether or not a variance is appealed to the Circuit Court or to the City Commission will not be contrary to the Comprehensive Plan. Therefore, positive findings can be made as the proposed LDR text amendments are consistent with and further the Goals. Objectives and Policies of the Comprehensive Plan Future Land Use and Housing Elements. subject to conditions. ANALYSIS The subject LDR Amendments will allow the appeal of variances acted upon by the HPB to the City Commission, as opposed to the Circuit Court. Variances heard by the HPB are applicable only to properties within the historic districts and those which are individually listed on the Local Register of Historic Places. Subsequently, they are subject to different review criteria than those reviewed by the Board of Adjustment (see Appendix B). In addition, variances are afforded to the aforementioned property types as a way of encouraging the retention of historic structures and provide additional flexibility in older areas of the City. The proposed amendment specifies that those variances which have been denied may be appealed to the City Commission. Staff suggests that all variances be appealable to the City Commission, whether approved or denied, as there may be an aggrieved party in both situations. In addition, the amendment would be applicable to those variances acted upon by the HPB since January 1, 2008. As noted above, there have been iwo development applications which included variance requests, one of which was denied and an appeal was submitted to the City Commission. The appeal is awaiting consideration by the City Commission, and the subject amendments would apply to that project. 'The Historic Preservation Board (HPB) reviewed the subject amendments at its meeting of June 5, 2008 where a recommendation of approval was made subject to the following: 1. That the language be revised to also include those variances approved by the HPB, and; 2. That the added language in Section 5 which states "Any decisions made by the Historic Preservation Board on or after January 1, 2008 are subject to the provisions of this ordinance° be removed. A. Continue with direction. B. Move a recommendation of approval to the City Commission of the amendment to Land Development Regulation Sections 2.2.8(D)(8) and 4.5.1(J)(3), Orclinance 28-08, allowing variances acted upon by the HPB to be appealed to and heard. by the City Commission, by adopting the findings of fact and law contained in the staff report, and finding that the text Planning and Zoning Board Staff Report Ordinance 28-08; LDR Amendment to Permit Variances Heard by the HPB to be Appealed to the City Commission amendment and approval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M). C. Move a recommendation of denial to the City Commission of the amendment to Land Development Regulation Sections 2.2.6(D)(6) and 4.5.1(J)(3), Ordinance 28-08, allowing variances acted upon by the HPB to be appealed to and heard by the City Commission, by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is not consistent with the Comprehensive Plan and does not meet the criteria set forth in LDR Section 2.4.5(M). (Motion to be ahrased in the affirmative. See above.) Recommend approval to the City Commission of the amendment to Land Development Regulation Sections 2.2.8(D)(8) and 4.5.1(J)(3), Ordinance 28-08, allowing variances acted upon by the HPB to be appealed to and heard by the City Commission, by adopting the findings of fact and law contained in the staff report, and finding that the text amendment and approval thereof is consistent with the Comprehensive Plan and meets the criteria set forth in LDR Section 2.4.5(M) subject to the revision that the amendment be applicable to all variances acted upon by the HPB, whether approved or denied. Attachments: • Append'a A-LDR Section 4.5.7 (J) • Append'a B -LDR Section 2.2.4(D) • LDR Amendment Re uest Letter and Backu Planning and Zoning Board Staff Report Ordinance 28-08; LDR Amendment to Permit Variances Heard by the HPB to be Appealed to the City Commission (J) Historic Preservation Board to Aet on Variance Requests: Pursuant to the powers granted in Section 2.2.ti(D), the Historic Preservation Board shall act_on all variance requests, within a Historic District or on a Historic Site, which otherwise would be acted upon by the Board of Adjustments. In acting on such variance requests the Board may be guided by the following as an alternative to the criteria normally used by the Board of Adjustments. (1) That a variance is necessary to maintain the historic character of properly through demonstrating that: (a) A variance would not be contrary to the public interest, safety, or welfare. (b) Special conditions and circumstances exist, because of the historic setting, location, nature, or character of the land, structure, appurtenance, sign, or building involved, which are not applicable to other lands, structures, appurtenances, signs, or buildings in the same zoning district, which have not been designated as historic sites or a historic district nor listed on the Local Register of Historic Places. (c) Literal interpretation of the provisions of existing ordinances would alter the historic character of the historic district, or historic site to such an extent that it would not be feasible to preserve the historic charecter, of the historic district or historic site. (d) The variance requested is the minimum necessary to preserve the historic character of a historic site or of a historic district. (2)Or, as an alternative to subsection (J)(1), that a variance is necessary to accommodate an appropriate adaptive reuse of a structure within a Historic District or upon a Historic Site through demonstrating that: (a) A variance would not be contrary to the public interest, safety, or welfare. (b) The variance would not significantly diminish the historic character of the Historic District or Site. (c) That the variance requested is the minimum necessary to effect the adaptive reuse of an existing structure or site. (3)The Boarcl shall otherwise follow all procedures and impose conditions as required of the Board of AdUStments. Planning and Zoning Board Staff Report Ordinance 28-08: LDR Amendment ro Permit Variances Heard by the HPB to be Appealed to the City Commission 2.2.4(D) Board of Adiustment Duties. Powers. and Responsibilities: (1) The Board hereby has the authority to hear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by the Chief Building Official, with the exception of interpretations of use matters and other items specifically preempted or granted to others pursuant to these Land Development Regulations. (2) The Board, so long as its actions are in conformity with the terms of these Land Development Regulations may reverse or affirm, wholly or partly, or may modify the order, requirement, or decision, or determination appealed from and may make such order, requirements, decision, or determination as ought to be made, and to that end shall have powers of the Chief Building Official from whom the appeal is taken. (3) The Board has the authority to take action on duly filed appeals with respect to the action of the Chief Building Official concerning interpretation, administration, or enforcement of the following: (a) Building Code, Artice 7.1, except Sections 7.1.5 through 7.1.7 (b) Electrical Code, Article 7.2 (c) Gas Code, Article 7.3 (d) Housing code, Article 7.4 (e) Mechanipl Code, Article 7.5 (f) Plumbing code, Article 7.6 (g) Elimination or Repair of Unsafe Buildings, Article 7.8 (h) Moving of Building, Article 7.10 (4) The Board hereby has the authority to grant variances and hear appeals from the provisions of: (a) The General Development Standards set forth in Section 4.3. (b) Regulations found in the Flood Damage Control Overlay District, Section 4.5.3. (c) The supplemental district regulations (Article 4.6) except where said authority is expressly prohibited or granted to others. (d) Fire Prevention Codes, Chapter 96 of The City Code, per Section 96.06. (e) "District Regulations and Incentives" in Section I of the Beach Property Owners Design Manual for North Beach & Seagate Neighborhoods as set forth in Section 4.5.13. (5) The Board has the authority to grant variances to the Noise Code pursuant to City Code Section 99.30. (6) The Board shall be prohibited from considering: (a) Use vadances, (b) architectural elevations, (c) landscaping plans, (d) Variances for signs and signage, (e) Any variance action within a designated Historic Preservation District or upon a Historic Site, (f) Variances to height regulations. (7) To provide "good offices" and assistance to other governmental boards, commissions, and committees in the fulfillment of goals, objectives, and policies of the Comprehensive Plan. (8) All decisions of the Board of Adjustment are final. Any person or persons, or any Board, Taxpayer, Department, Board, or Bureau of the City may aggrieve any decision of the Board of Adjustment and may seek review of such decision in the Circuit Court of Palm Beach County. WEINER, ARONSON 8 MANKOFF, P.A. ATTORNEYS AT LAW MICHAEL S. WEINER CAROLEJ.ARONSON JASON S. MANKOFF July 24, 2008 Ms. Chevelle Nubin City Clerk The City of Delray Beach 100 N.W. 1st Avenue Delray Beach, FL 33444 10 S.E. 1gt Avenue Delray Beach, FL 33444 Telephone: (561) 265-2666 Telecopier: (561) 272-6831 E-mail: mweiner@zonelaw.com RECEIVE -~~a~~o~ KERRY D. SAFIER STEPHEN B.GEBELOFF Via Hand Delivery Re: Text Amendment; Ordinance No. 28-08 Our File No.: ZENJ008 Dear Chevelle: I am respectfully requesting that the above referenced matter be placed as the first item under Public Hearings on the August 5, 2008 City Commission Agenda. The failure to give proper notice causing this rescheduling resulted in a scheduling conflict for me. Thank you very much for your assistance in this matter. If you should have any questions, please contact me. Very tru yours, ~ ~\ Mic a81 S einer MSW:e Cc: Mr. Paul Dorling (via hand delivery) Mr. Jim Zengage (via a-mail) Mr. Francisco Perez (via a-mail) Jason S. Mankoff, Esquire Ms. Ashlee L. Vargo O:~ZENJ008\Letter to City Cledc requesting first Rem on agenda. July 24. 2008.doc www.bocanews.com • Boca Raton/Dehay Beach News -Friday & Saturday, July 2526, 2008 7A ~rxcea 100 NINOUNCB16M7i klorFp p.m. m f lvL MWAM En axowuYCE xuaa gIpN,1MCEM0. ilq s~.m. reul~oixc SECTION MO IH cmar,Ewxr rEwr fimw o, xsln oe rrncx~s P,OxN'HI0•A.hM1E, 3008 i FTJxMMWry Bxltl,NV,s MEMORANDUM TO: Mayor and City Commissioners FROM: David T. Harden, City Manager DATE: July 10, 2008 SUBJECT: AGENDA ITEM 10 E -REGULAR COMMISSION MEETING OF JULY 15 2008 ORDINANCE N0.28-08 ITEM BEFORE COMMISSION This item is before Commission fora Privately initiated amendments to the Land Development Regulations (LDR), by amending Section 2.2.6(D), "Duties, Powers, And Responsibilities"; Section 4.5.1(J), "Historic Preservation Board To Act On Variance Requests", to provide that appeals of decisions of the Historic Preservation Board regazding variances shall be to the City Commission. BACKGROUND At the first reading on July 1, 2008, the Commission passed Ordinance no. 28-08. Staff request postponement to August 5, 2008 due to the need for further advertising. The newspaper provided staff with an incorrect publishing deadline for this ordinance; the newspaper will run the ad at no chazge. RECOMMENDATION Recommend postponement of Ordinance No. 28-08 to the August 5, 2008 Regular Commission Meeting.