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Minutes 06-09-89 MINUTES OF THE SPECIAL CITY COMMISSION MEETING RE TRADEWINDS, HELD AT PRIME BANK PLAZA, BOYNTON BEACH, FLORIDA, FRIDAY, JUNE 9, 1989 AT 5:00 P. M. PRESENT Gene Moore, Mayor Robert Olenik, Jr., Vice Mayor Ezell Hester, Jr., Commissioner Peter Cheney, City Manager Raymond Rea, City Attorney Betty Boroni, City Clerk Mayor Moore called the meeting to order at 5:00 P. M. and announced that the purpose of the meeting was to bring the public up-to-date on the Tradewinds situation. He believed it was Wednesday that the Appellate Court ruled on the City's latest appeal per curiam, which meant that they just stamped the opinion of the lower Court (Judge Rodgers), without further opinion and sustained his judgment relative to the imposition of a fine. It was Mayor Moore's opinion that was the end of the road, and he thought the statements made in the paper indicated that the majority of the City Commission felt the same way at this particular time. Mayor Moore stated that the purpose of this meeting was to report back to the public what the City did subsequent to learning of that decision and indicate the general way in which the City intends to proceed. Mayor Moore asked everyone to recall that after receipt of the notice of the meeting, last Tuesday (June 6, 1989), he was given authority to contact the other people to open up negotiations for some type of an effective and reasonable settlement, which he did on Thursday afternoon, June 8, 1989. Mayor Moore met with Mr. Perry, Attorney for the Tradewinds people that sold Woolbright Center development. Mr. Perry's function in this case was to handle the rezoning, pursuant to the directions of the Court regarding the project and to advise through the site plan for the project. When that is concluded, the developers and the Church will be able to go in and pull building permits and Start the procedures. In that regard, Mayor Moore said the first step to comply With the Court Order of approximately 2½ years ago, will be ~or the City to rezone the property. He requested that the City Attorney prepare an amendatory Ordinance for adoption 6n first reading to implement the zoning plan which was directed by the Court in the original Court decision. Subse- quent to the adoption of that Ordinance, there will be a public hearing connected with the second reading of that -1- MINUTES - SPECIAL CITY COMMISSION BOYNTON BEACH, FLORIDA JUNE 9, 1989 Ordinance and, either simultaneously or shortly thereafter, the site plan proposed for the actual development, which now stands at approximately 70 single family lots and 450 multi-family units, and the industrial, church, and the shopping center portions of the commercial portion. Mayor Moore said it was indicated that they would come for- ward with the site plan procedure early next week. That Would be within the purview of the Planning and Zoning (P&Z) Board, the Technical Review Board (TRB), and the Community Appearance Board (CAB). With regard to that portion of the processing, both parties felt that it would be fair that ~hey be judged as the law and situation stood back in 1986, When their plans were first submitted. The Court determined Ghat would be the criteria on which the development would be determined. Mayor Moore informed everyone that Robert Walshak, Chairman of the P&Z Board was at the meeting, and he (Walshak) agreed ~o assume responsibility for calling the P&Z Board together as expeditiously as possible. Hopefully, a single meeting ~etween all elements of the City that would be looking at this plan for approval, in accordance with the City's procedures, can be held at the earliest possible date in qonjunction with the City Commission at one advertised meeting, so there will not have to be a duplication of the developers' Engineers and Planners and duplication of the presentation of the documentation, development and explana- tion of the development. Mayor Moore talked to City Attorney Rea, and the earliest date probably would be June 27th. If not, Mayor Moore said it would have to be pushed back to the earliest possible date all of that could be done. Mayor Moore commented that there have been projects of this ~ature that have taken up to six months to go through the process. He did not feel that was reasonable or fair. ~ayor Moore stated that what the City is looking at is a clonceptual approval of what the plan is. At that point, the ~evelopers will have to deal with the Building Department alnd make sure that all of the requirements of the Building Code are specifically met, and they will go on from there. Mayor Moore also had a meeting with Mr. Zack, the Attorney f~r the developers that is handling the suit for the damages a~ainst the City. Mayor Moore stated that this is a very intricate and involved situation. They had a conciliatory meeting, and it was conveyed that the developers desire to cooperate with the City. They do not desire to punish the -2- MINUTES - SPECIAL CITY COMMISSION BOYNTON BEACH, FLORIDA JUNE 9, 1989 City in any regard. Ail they are seeking at this point is reasonable and just compensation for the damages which they feel they sustained. In that regard, they obtained input from economic experts that could be utilized in support of their case, if it cannot be settled and goes through to an appearance before either a Judge or a Judge and a jury for the purpose of determining compensatory damages. ~ayor Moore advised that there could be no limit on the other type of damages (punitive damages) if a jury or Judge decides that the City acted maliciously, in addition to being wrongful. They could impose punitive damages without limitation. Mayor Moore did not want to shock anybody, but %he evidence the developers indicated they would furnish to %he City from two independent economic experts was in the ~eighborhood of $30,000,000. Mayor Moore continued by saying the City could not say any- ~hing at this time, because the City has not been given the benefit of what the developers based that on. In any event, he did not think he would recommend it to the City, and he did not think the Commission would agree to just accept any- ~hing at face value. Mayor Moore thought the procedure would be that when the developers give the City their documenta- tion and their opinions, the City will get independent 9pinions from its experts in the same field and will then ~ttempt to discuss negotiations somewhere in between what ~he two experts said. Failing in that, he thought it would ~hen have to be determined by a Court. : Independent Defendants In Case There was one feeling Mayor Moore would not let pass. He rought out that there are individual members, or former embers of this Commission that he feels are directly esponsiblefor the City being in the position it is in oday. They are independent defendant~ in this case on a ersonal basis. The first thing Mayor Moore discussed with he developers was whether they would allow the City tax- ~ayers to get out of this and seek their judgments from ~hose individuals. He did not think they would ever accept ~hat, but he made that effort, and the developers are ~hinking about it at the present time. Mayor Moore thought there were a few other people that i~peded this matter that might also be considered to be drawn into this, as the innocent taxpayers of this City have been drawn into this dilemma of so serious a nature that if -3- MINUTES - SPECIAL CITY COMMISSION BOYNTON BEACH, FLORIDA JUNE 9, 1989 it were not totally awry, everyone in the City could be in trouble, if they are not already. Ordinance First and initially, Mayor Moore felt they should take up the issue of the Ordinance. He requested that City Attorney Rea give an explanation of what the Ordinance contains and the fact that it runs line by line with the direction of the Circuit Court's initial Court decision that the City was directed to comply with in regard to the zoning of the property. City Attorney Rea responded that the Ordinance he prepared basically rezones the parcels from R-lA, R-3 and Recrea- tion to the Planned Unit Development that was proposed in the original settlement proposal. It makes reference to the Court Orders as well as to the Court directing the City to rezone the parcels accordingly. Mayor Moore reminded every- one that there will be a full public hearing on the second ~eading, and there would not be any input today. The rdinance would be available for anybody to obtain and read it. He guessed people could get copoies of the original Court judgment, if they desired, but there would be a full ~ublic hearing if anyone wanted to have input on this phase Of the proceeding. ~ity Attorney Rea inquired whether they would discuss when ~he second reading of the Ordinance would be scheduled. ayor Moore believed they discussed today that probably the arliest possible date would be a Special Meeting on Tuesday, une 27, 1989. Vice Mayor Olenik wondered if they needed to ee if the developers could make it that night. Mayor Moore ~nswered that it had been cleared with the developers' ittorneys, and their Attorneys had approved this particular orm of Ordinance. City Attorney Rea commented that the ity will do the second reading on the 27th. ~Site Plan ~f the developers can get their site plan finished and get lit to Robert Walshak, Chairman of the P&Z Board, Mayor Moore siaid the P&Z Board will have the final say on whether the filling is complete and that all of the necessary backup documents are there. He stated that the P&Z Board will not ~e looking for full working drawings or full engineering sipecifications, just whatever is needed to conceptually approve the plan and make their recommendations to the City -4- MINUTES - SPECIAL CITY COMMISSION BOYNTON BEACH, FLORIDA JUNE 9, 1989 Commission. Ail that determination will be made at the time that the developers apply for the building permits. Vice Mayor Olenik pointed out that the Commission never approved a site plan. Mayor Moore responded that is what ~he developers are working on now. For all intents and pur- poses, they did not indicate at the meeting with Mr. Perry that there would be any deviation from this. Apparently, ~r. Perry feels that this is in concise accord with what the ~inal judgment of the Court said when they carried this site plan in over the master plan, which was really what the Court approved, and that will be all that Members of the TRB ~nd everybody else will look at. Mayor Moore assured Vice Mayor Olenik that the City has complete control, and he added that is what is simultaneously going through. if we could get that done all at one time, Mayor Moore ~tated that it would get the City going. His opinion was ~hat once they adopted the Ordinance on first reading, that would toll the incurring of damages and the running of any fines. Mayor Moore said he would get with the Commissioners ~nd explain to them what he discussed with the developers on ~hat. He hoped that once the City has done this purging, it would at least lessen the fines, but he stated that it would have to be a joint thing and a determination by the Court. Proposed Ordinance 89-18 - Rezoning of Several Parcels i Within the City from R-l-A, R-3 and REC to PUD ~ity Attorney Rea read proposed Ordinance 89-18 on first ~eading~ by title only: "iAN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON ~EACH, FLORIDA, AMENDING ORDINANCE NO. 80-19 OF SAID CITY ~URSUANT TO AN ORDER OF THE CIRCUIT COURT OF THE FIFTEENTH JIUDICIAL CIRCUIT BY REZONING SEVERAL PARCELS OF LAND WITHIN TiHE CITY OF BOYNTON BEACH, FLORIDA, FROM R-1-A (SINGLE-FAMILY ~ESIDENTIAL DISTRICT), R-3 (MULTIPLE-FAMILY DWELLING diSTRICT), AND REC (RECREATION DISTRICT) TO PLANNED UNIT EVELOPMENT WITH A LAND USE INTENSITY OF 5.0 (PUD LUI 5.0), ID PARCELS BEING MORE PARTICULARLY DESCRIBED HEREIN; ENDING THE REVISED ZONING MAP ACCORDINGLY; PROVIDING THAT A~L DEVELOPMENT OF SAID PROPERTY SHALL PROCEED IN STRICT CQMPLIANCE WITH THE DEVELOPMENT PLANS AS SUBMITTED AND APPROVED AND ALL APPLICABLE ORDINANCES OF THE CITY OF BQYNTON BEACH, FLORIDA; PROVIDING A CONFLICTS CLAUSE; A SEVERABILITY CLAUSE; AN EFFECTIVE DATE; AND FOR OTHER PURPOSES." -5- MINUTES - SPECIAL CITY COMMISSION BOYNTON BEACH, FLORIDA JUNE 9, 1989 Commissioner Hester moved, seconded by Vice Mayor Olenik, to approve Ordinance 89-18 on first reading. A roll call vote on the motion was taken by Mrs. Boroni, as follows: Mayor Moore Vice Mayor Olenik. Commissioner Hester Motion carried 3-0. Aye Aye Aye Mayor Moore recognized the presence of Pastor Brannon and his wife in the audience. Transmittal of Comprehensive Plan Amendment to State ~e_partment of Community Affairs (DCA) City Attorney Rea brought up another issue which the Commission had to discuss and said a motion was needed to direct the City Staff to transmit the Comprehensive Plan Amendment to DCA for their review and approval. Mayor Moore questioned whether that was on the zoning or the site plan. City Attorney Rea replied that it was on the Planned Commercial Development (PCD). He advised that the City will have to wait until DCA comes back through with the Compre- hensive Plan changes. City Attorney Rea added that the City has to deal with the area to the south independently. Commissioner Hester moved to direct the City Staff to trans- mit the Comprehensive Plan Amendment regarding this issue to DCA for their review and approval. Vice Mayor Olenik ~econded the motion, and the motion carried 3-0. i Planning and Zoning Board Members ~nother obvious problem Mayor Moore wanted the Commission to Address . was the fact that Mr. Carl Zimmerman, a Member of tlhe P&Z Board, is an individual defendant in the lawsuit. Hie thought Mr. Zimmerman would probably automatically be ~isqualified from sitting on the Tradewinds matter as it c!omes through. MByor Moore noted that Gary Lehnertz is also a Regular M~mber of the P&Z Board, and he asked Mr. Joseph Molina if Mr. Lehnertz is a party to Mr. Molina's lawsuit. Mr. Molina ahswered that Mr. Lehnertz is a party to their suit, which was never heard. On that basis, Mayor Moore felt Mr. L~hnertz probably would not be able to sit in judgment of Tradewinds. -6- MINUTES - SPECIAL CITY COMMISSION BOYNTON BEACH, FLORIDA JUNE 9, 1989 Mayor Moore commented that he could not make this same state- ment against Mr. Zimmerman, but he was making it against Mr. Lehnertz. Based upon Mr. Lehnertz' statements to the newspaper, Mayor Moore stated that Mr. Lehnertz intends to appeal this case to the end (the Supreme Court) which, in Mayor Moore's opinion, would be an exercise in futility, as much as it would be if the City attempted to appeal it. He thought that type of statement and obstructionism, in the face of the action of the City Commission, constituted actions that he should be removed from the Planning and Zoning Board and replaced by somebody of a more impersonal ~ature. Mayor Moore asked for a motion to that effect, as he wanted to see it processed at this time. Motion re Gary Lehnertz Commissioner Hester moved that Gary Lehnertz ~he Planning and Zoning Board and that he be Somebody of a more personal nature. be removed from replaced by Attorney Rea advised that the City Commission could remove any Member from any Board for a cause, misfeasance, malfeasance or nonfeasance. That was the prerogative of the Commission. Mayor Moore felt basically that the malfeasance was in Mr. Lehnertz' adamant statements in the paper that he intends go prolong this at the expense and cost of the taxpayers ~hrough appeal to the Courts. Mr. Lehnertz had the right to do that, but Mayor Moore thought if Mr. Lehnertz wanted to do it, he should do it as an individual and not as a repre- Sentative of any appointed Board of this City. To him, that Was grounds or cause for removal from the P&Z Board. Mayor Moore passed the gavel to Vice Mayor Olenik and seconded the motion made by Commissioner Hester. ~ice Mayor Olenik had not read anything in the paper from Mr. Lehnertz. He remarked that maybe Mr. Lehnertz needed to ~e removed, but he felt uncomfortable making that determin- altion at this point. Commissioner Hester stated that he has llistened to Mr. Lehnertz, and Mr. Lehnertz has been consistent iin his opinion about Tradewinds. He thought Mr. Lehnertz should be removed quickly from the P&Z Board. vote was taken on the motion, and the motion carried 2-1. -7- MINUTES - SPECIAL CITY coMMIsSION BOYNTON BEACH, FLORIDA JUNE 9, 1989 Discussion re Appointments to P&Z Board As there was now a vacancy on the P&Z Board, Mayor Moore recommended Dee Zibelli, an Alternate Member on the Board, as a Regular Member. He asked who the first Alternate Member is, and Commissioner Hester informed him it is Murray Howard. Vice Mayor Olenik called attention to the rotation process the City Commission follows. Mayor Moore wondered if the first Alternate would move up. Vice Mayor Olenik replied that it was not automatic for the Alternate to move up. Mayor Moore asked Vice Mayor Olenik to appoint someone to replace Mr. Lehnertz. Vice Mayor Olenik wondered which Commissioner was to make the next nomination. He thought the Commission should follow the rotation process. Mayor Moore did not know the rotation process had been effectively implemented. Vice Mayor Olenik replied that the Commission Was still under the rotation process, and he asked if Mayor Moore wanted to change that. Mayor Moore responded by say- ~ng either Vice Mayor Olenik, Commissioner Wische, or Commissioner Weiner wanted to get Jose' Aguila (former Regular Member of the P&Z Board) back on the Board. If it becomes his call, Mayor Moore said Mr. Aguila will be in. Vice Mayor Olenik wanted to have Mr. Aguila on the P&Z Board, but he was not about to put him on the Board if he was not the one to make the nomination. City Manager Cheney thought the Commission could nominate slomeone on the 20th of June, before the meeting on the 27th. ~ice Mayor Olenik again informed Mayor Moore that although hle thought it should be, the procedure is not that the ~lternate Member moves up. Mayor Moore thought the Commission should correct that too. Vice Mayor Olenik agreed. City Manager Cheney thought they could bring the ~lternate issue up on the next agenda. MDyor Moore asked City Manager Cheney to detemine whose t~rn it will be to nominate someone. He wanted to have the other procedure where they drew lots, where they say it goes li, 2, 3, 4, and that's it. Vice Mayor Olenik agreed. Termination of Outside Attorneys Mayor Moore wished that the outside Attorneys that repre- sented the City would be notified that their services are terminated as of now. Since they were hired by Resolution, C~ty Attorn~ Rea needed a motion. Vice Mayor Olenik began to make a motion to adopt a Resolu- tion, when he was interrupted by City Attorney Rea. City -8- MINUTES - SPECIAL CITY COMMISSION BOYNTON BEACH, FLORIDA JUNE 9, 1989 Attorney Rea advised him that the Commission did not need to adopt a Resolution. A motion was all that was needed. Mayor Moore asked that the outside Attorneys be told that the City wants no more bills subsequent to this date. The Commission wants a total billing and a report from City Attorney Rea, City Manager Cheney, or Grady Swann, Finance Director, of every cent the City paid as a result of this operation (Attorneys fees, court costs, etc.) at the next earliest meeting. Vice Mayor Olenik moved to authorize City Attorney Rea to let the City's Counsel know that their services are ~erminated as of now. Commissioner Hester seconded the motion, and the motion carried 3-0. Mayor Moore asked City Attorney Rea to get the Commission a ~eport on it, and he remarked that $26,000,000 or ~30,000,000 kind of "boggles" his mind. He could not perceive anything that could base that, but the City cannot say anything until they are given what that was based on. Mayor Moore said the City will get all of the information ¥oluntarily. Then the City will either give it to experts or try to evaluate it, which he said he would not attempt to do. If that cannot be reached through reasonable men ~alking about what their actual damages are, then Mayor Moore thought it would be a determination by the Court. At ghat time, he felt the City should have a very special coun- Sel that knows exactly, through years of experience how to ~andle these matters. Although it was conjecture right now, ayor Moore said he has several people he would recommend to ~he City Commission at that time. : Discussion Re Gary Lehnertz and Joseph Molina City Attorney Rea asked if Betty Boroni, City Clerk, should send the letter of notification to Gary Lehnertz. Mayor Moore answered affirmatively. Jioseph R.__Molina, 811 S. W. 6th Avenue, Boynton Beach, wanted ~o clarify the position the Commission was putting Mr. Gary Lehnertz in. As a citizen and resident of Boynton Beach, Mr. Lehnertz has the right to defend whatever position he tiakes to hold his property. Mayor Moore stated that the ~ommission did not deny that. Mr. Molina stated that Mr. Lehnertz has not been involved in any of the lawsuits tlhat the City is involved in with Tradewinds. Tradewinds is sluing the City, and Mr. Molina emphasized that Mr. Lehnertz ~as not involved in that, and neither was he (Molina). -9- MINUTES - SPECIAL CITY COMMISSION BOYNTON BEACH, FLORIDA JUNE 9, 1989 Mayor Moore told Mr. Molina that his (Moore's) statement was that Mr. Lehnertz intends to personally file an appeal. Mr. Molina replied that was their right. Mr. Molina com- mented that they need someone to represent their cause in the City of Boynton Beach, and he did not understand how Mayor Moore could take both sides of the case. Mayor Moore did not understand Mr. Molina's position. Mr. Molina remarked that Mayor Moore was defending the rights of the developers, representing them, and negotiating for them. Mayor Moore retorted that Mr. Molina's statements on this Case have been "fuzzy", and he added that Mr. Molina has 6aused the City a lot of damage in this procedure. Mr. Molina objected, saying he is not involved in any of ~he issues the City is involved in right now. As a matter of fact, from 1985, they have not been heard. They have been pushed aside as Interveners. The Judges in the District Court and the Appeals Court denied their Attorney ~he right to speak, so no one knows what their case is all about, and Gary Lehnertz is involved in that portion of the issue and not in anything the City has been discussing over the years. Mayor Moore pointed out that the City is attempting to bring ~his to a conclusion, and he and Mr. Lehnertz are out there, ~s City Attorney Rea said, in left field fighting. Mr. Molina adamantly retorted that they are residents of ~oynton Beach. They are not in left field or right field or ainything else. They have as much right to be represented by ai Mayor that represents the north end as people have in the s!outh end. o Molina continued by saying if Mr. Olenik was going to ange his views over who he represents, that was another slituation. Vice Mayor Olenik wished to get something s~raight. He explained that he had always said he was going tQ wait until they heard from the Fourth District Court of Appeals, and when that Court ruled, he would ultimately d~cide personally if he thought the City should go on or n0t. Vice Mayor Olenik commented that the City got shot d~wn on Wednesday. Mr. Molina objected, saying the City did nQt get shot down Wednesday. The Appeals Court told the C~ty to go back down to the Circuit Court, which told the C~ty to go according to the procedure. That meant getting a r~zoning and developing the land through site plans and all the rest must be done. Commissioner Olenik informed him that was what the City was doing. -10- MINUTES - SPECIAL CITY COMMISSION BOYNTON BEACH, FLORIDA JUNE 9, 1989 Mr. Molina asked why the City should do it, and he stressed that the developers should do it on their own. He exclaimed that the City is doing it, and the City is not the builder. He accused the Commission of taking the side of the developers. Mayor Moore reminded him that there will be a public hearing. Lawsuit ~hilip Martin, 211 S. W. 5th Avenue, noted that Mr. Molina said that the City Commission has not been representing the City. As a private citizen of the City, he urged that the City Commission take the necessary steps to bring the case to an end. Mayor Moore said there would be no more public hearing on this today, and he told a story about Pastor Brannon. He hoped the city was on a new track, could get Tradewinds behind it, start getting more constructive, and could go forward. ADJOURNMENT The meeting properly adjourned at 5:30 P. M. Commi s s ioner Rec6rding Secretary (One Tape) / Commissioner