Margate Landlord Wins BOA Appeal by: Margatenews.net

Margate Landlord Wins BOA Appeal

October 10, 2014 / By Mitchell Pellecchia

After being turned down by the City’s Board of Adjustment (BOA) for a special exception in August, Steven Chess took his case to Margate city commissioners who reversed the decision.

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Shortly after Chess agreed to remove a cargo container from his property, he requested a special exception from the City’s BOA to allow for it. His tenant, Chess said, relied on the container for storage and would not renew his lease if the container had to be removed. Thefts had occurred on the property and a fortified steel cargo container was the tenant’s solution to preventing future incidents.

BOA said no. Neither Chess nor his tenant could prove hardship, said the Board, because adequate storage space was provided inside the building. Options to keep the container outside included erecting an opaque fence or hedge around it - alternatives conveyed in city code and by the BOA when Chess applied for the variance, said City Planner, Ben Ziskal.

In his defense, Chess told commissioners that the BOA did not make his options clear when denying his request. He understood the premise on which it was denied, but felt it was too restrictive for the City’s industrial district.

“This is an industrial zone. It’s not a place where you’re going to have a party or Fifth Avenue stores. It works for what it is supposed to do for the city,” he said.

Ziskal recommended the commission uphold the BOA decision, because documents proved that Chess knew he had options - but chose not to act on them. He was also concerned that a reversal would spark a precedent and other businesses would follow with similar requests.

“It is our recommendation that our laws not be applied to one property and that if this is granted and this commission decides that [temporary] storage containers are acceptable items on a non-residential property; then every single property should get the same treatment and a code change would be the course of action. Not to give it to one particular property while we enforce it on others,” Ziskal said.

Margate Commissioner, Tommy Ruzzano, said he didn’t see the problem with the container. It was in the back of the parking lot and was barely visible from the street. He felt as though the city was dragging Chess through the mud for no good reason.

“Let’s allow him to leave the container. Have him slat the fence, nobody can see it. It’s done. Let’s move on,” he said.Slatting the fence was suggested by Margate resident, Anthony Caggiano, at the BOA meeting in August, but no discussion by the Board ensued.

“If there’s any chance with the chain link fence to have those slats that go through it to maybe do a better job of hiding it [container] so it’s not seen as much. But I would say let’s try and keep the jobs. Let’s try and keep the tenant, because I know he keeps his place nice,” Caggiano said at the August meeting.

Slatting the fence was a viable option too for Commissioner Frank Talerico, but for Vice Mayor, Joanne Simone the petitioner's integrity was in question. Chess said in writing that he was going to remove the cargo container but didn’t. Moreover, he denied knowing that options were presented to him while BOA meeting minutes stated different.

“I guess what it comes down to is who do you believe? Staff is saying one thing that he was told to do this, this, and this; and Mr. Chess is saying that now he’s hearing all new things. So I guess the question is: Do you believe staff or do you believe Mr. Chess?” she said.

Chess admitted to agreeing to certain things and said he was still committed to compliance, but said in his experience it wasn’t the behavior of other cities in the area to treat business owners this way.

“I have over $6 million in property invested in this city. I just want to keep the economic basis of my tenants viable. To throw me under the bus the way certain people have been doing in this city is very uncomfortable and very pronounced and anyone who is watching can see,” he said.

Ruzzano said it didn’t boil down to who to believe, but rather if the city wanted to help a businessman who invested in a once downtrodden commercial property - something the city has been trying to get landowners to do for years.

“This guy put over $1 million dollars in this building. I think he is an A-plus tenant in our city. If you go by his building it’s beautiful. This whole thing with the storage container I think is starting to be a joke we should just get it done and move on,” said Ruzzano.

Simone said that she has been hearing from elected officials in other cities - and from residents - that Margate is looking nice and she didn’t want to do anything to impair that opinion. She didn’t think Chess presented a practical hardship and was insistent on upholding the BOA decision.

“With our Board of Adjustment and our economic development chair both saying that this could have been corrected; it hasn’t been corrected and this has been going on for months. I think that we need to go along with their recommendation and deny this,” she said. “He was already told what to do and he failed to do it. I’m really confused as to why this is such a difficult decision.”

After spending $2,000 on a variance request and subsequent appeal, Chess was granted the special exception 3-2 by commissioners on condition that he slat the gated fence to his parking lot - a move that would ultimately satisfy city code and one that was suggested by a resident more than a month earlier.

Vice Mayor Joanne Simone and Commissioner Joyce Bryan in dissent.