Public Comment, Town of Palm Beach Admin
admin
over 1 year ago
Received via email 11.3.23:
Re: 800 South County Road, Palm Beach, FL
Objection to Request for Waiver of Town Ordinance 42-199, Hours of Construction
Dear Mayor Moore & Town Council:
Our firm represents 790 S. County Road Land Trust (“Client”), the owner of the property located at 790 South County Road (“790 Property”). Our Client objects to the apparent request by the DesRuisseaux Land Trust, as the owner of the neighboring property to the south located at 800 South County Road (“800 Property”), for a waiver of Town Ordinance 42-199, Hours of Construction, seeking to allow construction at the 800 Property from 6:00 a.m. to 6:00 p.m., Monday through Saturdays, and Sundays from 8:00 a.m. to 6:00 p.m. from October 1, 2023 through October 31, 2024, with work to be discontinued on only four (4) days – November 23-24, 2023 and December 25-26 (“Construction Hours Waiver Request”).
Maura Ziska, on behalf of the DesRuisseaux Land Trust, sent our Client a letter, dated October 2, 2023, indicating that the Construction Hours Waiver Request would be presented to Town Council at its October 11, 2023 meeting. A copy of this letter is attached as Exhibit A. Unfortunately, our Client was not in town when the letter was mailed, and to our dismay, neither Ann DesRuisseaux nor Maura Ziska made any additional attempt to notify our Client or its representatives of the Construction Hours Waiver Request, despite the prior “notice” dispute over variances granted to the 800 Property and the ongoing litigation between the parties regarding the boundary wall separating the properties. As a result, our Client did not have an opportunity to raise its concerns and objections to this request at the October 11, 2023 Town Council Meeting.
To be clear, it is our understanding that the Construction Hours Waiver Request was never brought before Town Council, as the only agenda item pertaining to the 800 Property considered by Town Council at its October 11, 2023 meeting was the request for a waiver of Town Ordinance 18-237 for building permit extension. Our client does not object to this building permit extension, so long as it does not modify or expand the hours of construction.
However, in the event that Town Council did consider and approve the Construction Hours Waiver Request, our Client formally objects to the Construction Hours Waiver Request
and requests that the Town reconsider its approval on the basis that: (1) the Construction Hours Waiver Request was not properly before Town Council, and (2) the DesRuisseaux Land Trust failed to make reasonable, good faith efforts, to inform our Client of the Construction Hours Waiver Request.
I. Construction Hours Waiver Request Was Not Properly Before Town Council
Our Client objects to the Construction Hours Waiver Request as a precautionary measure, as it is evident that the Construction Hours Waiver Request was not properly before Town Council and that Town Council never considered or approved the Construction Hours Waiver Request.
First, the Construction Hours Waiver Request was not noticed for the October 11, 2023 Town Council meeting; only a request for waiver of a building permit was noticed for that meeting. Maura Ziska sent Wayne Bergman a letter dated October 2, 2023, in which she stated: “[t]his letter shall serve as formal notice of the request for a waiver of time for completion of construction” of the 800 Property, and asked that this request be placed on the October 11, 2023 Town Council agenda. Maura Ziska never formally requested that the Construction Hours Waiver Request likewise be included on the October 11, 2023 Town Council agenda. A copy of this letter is included in the Staff Report for the October 11, 2023 Town Council meeting attached as Exhibit B.
Second, the Town complied with Maura Ziska’s request and only included the request for a waiver of Town Code Section 18—237, for building permit extension at 800 S County Rd, on the agenda for the October 11, 2023 Town Council meeting (“Agenda”), a copy of which is attached as Exhibit C. The Construction Hours Waiver Request was not included on the Agenda. At this point, there was no reason to expect that the Construction Hours Waiver Request would be considered at the October 11, 2023 Town Council meeting.
Third, the Staff Report did not mention of the Construction Hours Waiver Request and only recommended that “Town Council consider the request from contractor Maura Ziska, Esq. regarding a time extension in which to complete the renovations and additions at 800 S County Road and to extend the permits by eight months – until October 31, 2024.” See Exhibit B.
Finally, a review of the video of the October 11, 2023 Town Council meeting confirms that neither Ann DesRuisseaux nor Maura Ziska raised the Construction Hours Waiver Request at the meeting and Town Council did not consider or approve the Construction Hours Waiver Request.
II. The DesRuisseaux Land Trust Failed to Make Reasonable Efforts to Notify Our Client of Waiver Request
Even assuming, arguendo, that the Construction Hours Waiver Request was properly before Town Council and Town Council had approved the request, the Town Council should reconsider its approval because the DesRuisseaux Land Trust failed to make the necessary good faith efforts notify our Client that of the Construction Hours Waiver Request.
As noted above, Maura Ziska mailed our Client a letter, dated October 2, 2023, indicating that the Construction Hours Waiver Request would be presented to Town Council at its October 11, 2023 meeting. This letter was addressed to 790 S. County Rd. Land Trust c/o Timothy Hanlon, trustee, 790 S. County Rd., Palm Beach, FL 33480.
Even if this letter technically constituted “legal notice,”1 the spirit of the notice requirement clearly was not met, especially in light of the prior dispute over the lack of “notice” concerning the variances granted to the 800 Property as well as the ongoing legal dispute between the DesRuisseaux Land Trust and our Client regarding the boundary wall separating the properties.
For background, in early 2020, Ann DesRuisseaux – with Maura Ziska acting as her legal counsel – applied for 14 variances for the redevelopment of the 800 Property. Our Client’s predecessor-in-interest, the Rapaport family, and other neighboring property owners, did not receive any notice for the Landmark Preservation Commission public hearing or the Town Council public hearing associated with DesRuisseaux’s application. As a result, the Rapaport family and other neighboring property owners had no knowledge of, opportunity to provide comment to, or object to, any of the 14 variances granted by the Town Council, 6 of which related to the Rapaport’s property line. This led to a protracted dispute between the Rapaport Family, Ann DesRuisseaux and the Town, and subsequently our Client upon purchasing the 790 Property from the Rapaport family.
Further, the DesRuisseaux Land Trust subsequently filed a lawsuit against our Client over the boundary wall separating the 790 Property and the 800 Property. This litigation is still ongoing. In fact, Ann DesRuisseaux referred to this litigation in her comments to Town Council at the October 11, 2023 meeting to justify the need for a building permit extension, noting that “no one could have anticipated the debacle with the North Neighbor [our Client] and the resulting delays that has caused, which are numerous.”
With this context, Ann DesRuisseaux and Maura Ziska had an obligation to make additional efforts to confirm that our Client received notice that the Construction Hours Waiver Request would be considered by Town Council. Both Maura and Ann are aware that the undersigned firm represents our Client, and that Tim Hanlon, a Palm Beach attorney with Alley Maass, is the trustee for our Client. Maura Ziska should have picked up the phone and called Tim Hanlon, Harvey Oyer or me to confirm that our Client was aware of the request for additional hours of construction. No outreach efforts were made. As a result, our Client did not have an opportunity to raise its concerns and objections to the Construction Hours Waiver Request at the October 11, 2023 Town Council meeting.
1 In her letter attached as Exhibit A, Maura Ziska indicated that “[t]his notice is required to be postmarked no later than 10 days prior to the regularly scheduled meeting.” However, this letter was dated October 2, 2023 – 9 days before the October 11, 2023 Town Council Meeting. Thus, it appears that this notice was, in fact, untimely.
III. Conclusion
Our client understands the collective desire to expedite the completion of the 800 Property project and is willing to cooperate with the DesRuisseaux Land Trust and the Town to push the project to a completion. However, it is critical that the interests of the neighboring property owners – including our Client – are considered. The proposed extended construction hours would allow construction to commence on Mondays through Saturdays beginning at 6 a.m. and on Sundays beginning at 8 a.m., with construction to stop on only four days (November 23-24 and December 25-26). Those extended construction hours are outrageous and would present a major inconvenience and significant disruption to our Client’s quiet enjoyment of its property and the other neighboring property owners.
In sum, based on a review of the record, it is evident that the Construction Hours Waiver Request was not brought before or approved by Town Council at the October 11, 2023 Town Council meeting. However, for the record, our client objects to the Construction Hours Waiver Request, and in the event that Town Council did approve the Construction Hours Waiver Request, our Client requests that the Town reconsider its approval on the basis that: (1) the Construction Hours Waiver Request was not properly before Town Council, (2) the DesRuisseaux Land Trust failed to make good faith efforts to inform our Client of their request, and (3) the Construction Hours Waiver Request should be denied as it would present a major inconvenience and significant disruption to our Client’s quiet enjoyment of its property.
Please confirm that Town Council did not approve the Construction Hours Waiver Request. If Town Council did approve the Construction Hours Waiver Request, please place our Client’s request for reconsideration of the approval of the Construction Hours Waiver Request on the November 15 2023 Town Council Agenda.
Sincerely yours,
Shutts & Bowen LLP
James C. Gavigan, Jr. Esq.
Received via email 11.3.23:
Re: 800 South County Road, Palm Beach, FL
Objection to Request for Waiver of Town Ordinance 42-199, Hours of Construction
Dear Mayor Moore & Town Council:
Our firm represents 790 S. County Road Land Trust (“Client”), the owner of the property located at 790 South County Road (“790 Property”). Our Client objects to the apparent request by the DesRuisseaux Land Trust, as the owner of the neighboring property to the south located at 800 South County Road (“800 Property”), for a waiver of Town Ordinance 42-199, Hours of Construction, seeking to allow construction at the 800 Property from 6:00 a.m. to 6:00 p.m., Monday through Saturdays, and Sundays from 8:00 a.m. to 6:00 p.m. from October 1, 2023 through October 31, 2024, with work to be discontinued on only four (4) days – November 23-24, 2023 and December 25-26 (“Construction Hours Waiver Request”).
Maura Ziska, on behalf of the DesRuisseaux Land Trust, sent our Client a letter, dated October 2, 2023, indicating that the Construction Hours Waiver Request would be presented to Town Council at its October 11, 2023 meeting. A copy of this letter is attached as Exhibit A. Unfortunately, our Client was not in town when the letter was mailed, and to our dismay, neither Ann DesRuisseaux nor Maura Ziska made any additional attempt to notify our Client or its representatives of the Construction Hours Waiver Request, despite the prior “notice” dispute over variances granted to the 800 Property and the ongoing litigation between the parties regarding the boundary wall separating the properties. As a result, our Client did not have an opportunity to raise its concerns and objections to this request at the October 11, 2023 Town Council Meeting.
To be clear, it is our understanding that the Construction Hours Waiver Request was never brought before Town Council, as the only agenda item pertaining to the 800 Property considered by Town Council at its October 11, 2023 meeting was the request for a waiver of Town Ordinance 18-237 for building permit extension. Our client does not object to this building permit extension, so long as it does not modify or expand the hours of construction.
However, in the event that Town Council did consider and approve the Construction Hours Waiver Request, our Client formally objects to the Construction Hours Waiver Request
and requests that the Town reconsider its approval on the basis that: (1) the Construction Hours Waiver Request was not properly before Town Council, and (2) the DesRuisseaux Land Trust failed to make reasonable, good faith efforts, to inform our Client of the Construction Hours Waiver Request.
I. Construction Hours Waiver Request Was Not Properly Before Town Council
Our Client objects to the Construction Hours Waiver Request as a precautionary measure, as it is evident that the Construction Hours Waiver Request was not properly before Town Council and that Town Council never considered or approved the Construction Hours Waiver Request.
First, the Construction Hours Waiver Request was not noticed for the October 11, 2023 Town Council meeting; only a request for waiver of a building permit was noticed for that meeting. Maura Ziska sent Wayne Bergman a letter dated October 2, 2023, in which she stated: “[t]his letter shall serve as formal notice of the request for a waiver of time for completion of construction” of the 800 Property, and asked that this request be placed on the October 11, 2023 Town Council agenda. Maura Ziska never formally requested that the Construction Hours Waiver Request likewise be included on the October 11, 2023 Town Council agenda. A copy of this letter is included in the Staff Report for the October 11, 2023 Town Council meeting attached as Exhibit B.
Second, the Town complied with Maura Ziska’s request and only included the request for a waiver of Town Code Section 18—237, for building permit extension at 800 S County Rd, on the agenda for the October 11, 2023 Town Council meeting (“Agenda”), a copy of which is attached as Exhibit C. The Construction Hours Waiver Request was not included on the Agenda. At this point, there was no reason to expect that the Construction Hours Waiver Request would be considered at the October 11, 2023 Town Council meeting.
Third, the Staff Report did not mention of the Construction Hours Waiver Request and only recommended that “Town Council consider the request from contractor Maura Ziska, Esq. regarding a time extension in which to complete the renovations and additions at 800 S County Road and to extend the permits by eight months – until October 31, 2024.” See Exhibit B.
Finally, a review of the video of the October 11, 2023 Town Council meeting confirms that neither Ann DesRuisseaux nor Maura Ziska raised the Construction Hours Waiver Request at the meeting and Town Council did not consider or approve the Construction Hours Waiver Request.
II. The DesRuisseaux Land Trust Failed to Make Reasonable Efforts to Notify Our Client of Waiver Request
Even assuming, arguendo, that the Construction Hours Waiver Request was properly before Town Council and Town Council had approved the request, the Town Council should reconsider its approval because the DesRuisseaux Land Trust failed to make the necessary good faith efforts notify our Client that of the Construction Hours Waiver Request.
As noted above, Maura Ziska mailed our Client a letter, dated October 2, 2023, indicating that the Construction Hours Waiver Request would be presented to Town Council at its October 11, 2023 meeting. This letter was addressed to 790 S. County Rd. Land Trust c/o Timothy Hanlon, trustee, 790 S. County Rd., Palm Beach, FL 33480.
Even if this letter technically constituted “legal notice,”1 the spirit of the notice requirement clearly was not met, especially in light of the prior dispute over the lack of “notice” concerning the variances granted to the 800 Property as well as the ongoing legal dispute between the DesRuisseaux Land Trust and our Client regarding the boundary wall separating the properties.
For background, in early 2020, Ann DesRuisseaux – with Maura Ziska acting as her legal counsel – applied for 14 variances for the redevelopment of the 800 Property. Our Client’s predecessor-in-interest, the Rapaport family, and other neighboring property owners, did not receive any notice for the Landmark Preservation Commission public hearing or the Town Council public hearing associated with DesRuisseaux’s application. As a result, the Rapaport family and other neighboring property owners had no knowledge of, opportunity to provide comment to, or object to, any of the 14 variances granted by the Town Council, 6 of which related to the Rapaport’s property line. This led to a protracted dispute between the Rapaport Family, Ann DesRuisseaux and the Town, and subsequently our Client upon purchasing the 790 Property from the Rapaport family.
Further, the DesRuisseaux Land Trust subsequently filed a lawsuit against our Client over the boundary wall separating the 790 Property and the 800 Property. This litigation is still ongoing. In fact, Ann DesRuisseaux referred to this litigation in her comments to Town Council at the October 11, 2023 meeting to justify the need for a building permit extension, noting that “no one could have anticipated the debacle with the North Neighbor [our Client] and the resulting delays that has caused, which are numerous.”
With this context, Ann DesRuisseaux and Maura Ziska had an obligation to make additional efforts to confirm that our Client received notice that the Construction Hours Waiver Request would be considered by Town Council. Both Maura and Ann are aware that the undersigned firm represents our Client, and that Tim Hanlon, a Palm Beach attorney with Alley Maass, is the trustee for our Client. Maura Ziska should have picked up the phone and called Tim Hanlon, Harvey Oyer or me to confirm that our Client was aware of the request for additional hours of construction. No outreach efforts were made. As a result, our Client did not have an opportunity to raise its concerns and objections to the Construction Hours Waiver Request at the October 11, 2023 Town Council meeting.
1 In her letter attached as Exhibit A, Maura Ziska indicated that “[t]his notice is required to be postmarked no later than 10 days prior to the regularly scheduled meeting.” However, this letter was dated October 2, 2023 – 9 days before the October 11, 2023 Town Council Meeting. Thus, it appears that this notice was, in fact, untimely.
III. Conclusion
Our client understands the collective desire to expedite the completion of the 800 Property project and is willing to cooperate with the DesRuisseaux Land Trust and the Town to push the project to a completion. However, it is critical that the interests of the neighboring property owners – including our Client – are considered. The proposed extended construction hours would allow construction to commence on Mondays through Saturdays beginning at 6 a.m. and on Sundays beginning at 8 a.m., with construction to stop on only four days (November 23-24 and December 25-26). Those extended construction hours are outrageous and would present a major inconvenience and significant disruption to our Client’s quiet enjoyment of its property and the other neighboring property owners.
In sum, based on a review of the record, it is evident that the Construction Hours Waiver Request was not brought before or approved by Town Council at the October 11, 2023 Town Council meeting. However, for the record, our client objects to the Construction Hours Waiver Request, and in the event that Town Council did approve the Construction Hours Waiver Request, our Client requests that the Town reconsider its approval on the basis that: (1) the Construction Hours Waiver Request was not properly before Town Council, (2) the DesRuisseaux Land Trust failed to make good faith efforts to inform our Client of their request, and (3) the Construction Hours Waiver Request should be denied as it would present a major inconvenience and significant disruption to our Client’s quiet enjoyment of its property.
Please confirm that Town Council did not approve the Construction Hours Waiver Request. If Town Council did approve the Construction Hours Waiver Request, please place our Client’s request for reconsideration of the approval of the Construction Hours Waiver Request on the November 15 2023 Town Council Agenda.
Sincerely yours,
Shutts & Bowen LLP
James C. Gavigan, Jr. Esq.