Delray Beach Board of Adjustment denies variance to shrink pool setback after right-of-way dispute

Delray Beach Board of Adjustment members voted unanimously on May 1, 2025, to deny a variance that would have reduced the rear-yard setback for a proposed swimming pool at 612 Southeast Third Avenue from the 10 feet required by the city land development regulations to 8 feet.

The decision came after a quasi-judicial hearing in which the applicant’s representatives said the variance was necessary because the city is requesting a 2-foot right-of-way dedication for a future alley widening. Michael Weiner, attorney for the applicant, argued the dedication created the special circumstance that compelled relief: "the city wants to fulfill their comprehensive plan aspirations by trading a permit for a house, a right that was established a hundred years ago, and being able to be on its way to expanding that alley." Chuck Calberg, the local builder representing the owner, said the variance was needed so the homeowner could build a standard-size pool after the city’s requested dedication.

Board members and staff framed the issue as a narrow variance review under the Delray Beach land development code. The staff report and board discussion focused on whether the application met the six findings required by Land Development Regulation (LDR) section 2.40.11(a)(5) and related development standards (LDR section 4.60.15(g)(1)(a)). Staff noted the final site plan submitted during permitting showed a 10-by-30-foot pool (300 square feet) that met the 10-foot setback; the applicant said earlier designs had proposed a 12-by-30-foot pool (360 square feet) and that the 2-foot dedication led to the present request.

Applicant presentations: Chuck Calberg (owner, Stewart and Shelby Home Builders) described the project timeline, saying the property was purchased January 30, 2023, and plans were prepared and delivered to his firm in mid‑2023. Calberg said the architect and owner were not informed of the potential 2-foot dedication at the time of design and that, "we are here today to request this variance for the rear yard setback from 10 feet to 8 foot, which is only required because the city is taking 2 foot from mister Bender's property." Corey O’Gorman of Place Planning (certified planner) and Michael Weiner (attorney for the applicant) presented legal and planning arguments that the variance would be harmonious with the neighborhood and that the dedication, not the owner’s actions, created the hardship.

Staff and board questions examined permitting chronology, whether the 2-foot dedication is a citywide, adopted aspiration in the comprehensive plan and how right-of-way dedications are triggered during redevelopment. Staff confirmed pool construction requires a separate building permit and said engineering raised the 2-foot dedication as a comment on December 12, 2023. Staff also confirmed the approved site plan that went through the building permit process showed a 10-by-30 pool and met the 10-foot setback as submitted to planning.

Public comment was limited. One resident who said he drove by the site supported the variance on visual grounds, describing the pool area as hidden behind a fence. Board members discussed neighborhood impacts, precedent, and how alley dedications have been handled across the city. The applicant requested a postponement so a full seven‑member board could hear the case; the board took a procedural vote and did not continue the hearing.

Final action: After deliberation the board moved to deny the variance request. The motion read into the record denied the variance for 612 Southeast Third Avenue (LDR section 4.60.15(g)(1)) on the basis that the application did not satisfy the required findings in LDR section 2.40.11(a)(5)(a–f). Roll-call votes recorded the five members present voting to deny: Jesse Slasser (yes), John D'Alessio (yes), Mark Ronald (yes), Michelle Wilson (yes), and Richard Kasser (yes). The board’s written findings state there was not substantial competent evidence in the record to support all six required findings, so the variance was denied.

The hearing was conducted as a quasi-judicial proceeding; all speakers who testified were sworn. The board secretary noted the next Board of Adjustment meeting is scheduled for June 5, 2025, and staff said a broader report on variances and LDR guidance is in development.

What this means: The denial leaves the applicant with the approved site-plan dimensions (10-by-30 pool) unless the owner pursues an administrative or judicial appeal or submits a revised application. The underlying question about future alley dedications and their effect on long‑standing lots remains a recurring issue for Delray Beach land-use reviews and, as staff suggested, could be raised with the city commission for policy clarification.