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Minutes 06-23-92VERBATIM MINUTES OF THE SPECIAL CITY COMMISSIOM MEETING HELD COMMISSION CHAMBERS, CITY HALL, BOYNTOM BEACH, FLORIDA, ON TUESDAY, JUNE 23, 1992, AT 6:30 P. M. PRESENT Arline Weiner, Mayor Lynne Matson, Vice Mayor Jose Aguila, Commissioner Edward Harmening, Commissioner Robert Walshak, Commissioner J. Scott Miller, City Manager James Cherof, City Attorney Sue Kruse, City Clerk Wei ner: Miller: Cherof: Special City Commission Meeting, June, 23, 1992, 6:30 P. M., Mobil Oil Service Station, southeast corner of Congress Avenue and Hypoluxo Road. Scott. I'm going to turn this issue over to the City Attorney, Jim Cherof. He addressed the Mayor and the City Commission in his Memorandum No. 92-68 reference this subject matter, and he notes he has several concerns regarding the disposition of this application which he feels he needs to address. Following the Commission meeting and the disposition of the Mobil Oil Service Station application for conditional use, I reviewed my notes from that meeting, as well as looked at the record that had been prepared both at the Planning and Development Board and also the record as it appeared when that matter was before you specifi- cally. I wanted to remind the Commission that in the review of a conditional use application, that there are certain burdens that are placed upon the parties to that and by the parties, I mean the applicant and then you as the body that makes a decision based upon the evidence that you hear or that is of the record. The initial burden in the proceeding, as I noted during the proceeding last time, was on the applicant to meet all of the tests that are set forth in our code of ordinances with respect to the development of a service station, and also coupled with the burdens that are there in the code with respect to any conditional use application, be it a service station or otherwise. I believe that the record did establish that the applicant met each and every one of those cri- teria which were the hurdles that they needed to clear to shift the burden to the City staff and to the City administration to rebut. There's no question that with respect to a conditional use that the City Commission can impose in the approval other conditions necessary for dealing with items such as public concern; things that affect the health, safety or welfare of the public. Usually the backdrop for establishing those conditions are found in the code as well and it appears to me, based upon the Planning Department's recommendations as set forth in their memorandum, as well as the memorandum from the other department heads, that each of those con- ditions are clearly established in the record. If the City does not - i - N~NUTE$ - SPECZAL C]'TY CON#I$$ION #EETING BOYNTON BEACH, FLORIDA JUNE 23, 1992 Weiner: meet the burden that there are additional conditions necessary to establish with~:respect to the'conditional use,~it's under a duty, I - believe, to approve the application for conditional use or to shift back to the applicant the burden of going forward and proving that these issues with respect to public health, safety or welfare can be addressed by the applicant. I do not think that procedurally that's the way that we concluded at the last Commission meeting and my recommendation would be for you to bring that matter back before you with the minutes available from that meeting to examine them and if necessary to go through a checklist with the City Planner at that next meeting to determine whether or not each and every element of both the service station and the conditional use ordinance have been met. I believe that the record will reflect that that has been and that the conditional use should have been approved. I have no doubt, having read the letter that we received from the applicant's attorney, that they share that opinion and that has nothing to do with my opinion to you. My memo to you came before we received that letter, but I do think it's something that you may wish to recon- sider. I do think that there is, as promised, a strong likelihood of litigation in the event that the conditional use is not approved and I believe sitting here today, based upon the record, that the City's chances of prevailing in that litigation are not good. Thank you, Jim. Commissioners? Aguila: Madam Mayor, I'd like to move that we place on the next July 7th agenda for reconsideration of the Mobil Gas Station conditional use approval. Weiner: Thank you. Is there a second to that motion? Harmening: I'll second the motion. Weiner: We have a motion and a second. Mr. Cherof, the vote to deny was not upheld by Commissioner Harmening and myself. Can Commissioner Harmening second this motion? Cherof: He can second it. Only the maker needs to have voted in the affirmative. Weiner: Thank you. We have a motion and a second. All in favor signify by saying aye. (Several ayes were heard.) Any further discussion? Weiner: Any opposed? Matson: No. -2- HINUTES - SPECIAL CITY COHHISSION HEETING BOYNTON BEACH, FLORIDA ~UNE 23, 1992 Weiner: -Motion carries4-1. Is there any--further business~on.this issue? There being no further business, the meeting properly adjourned at 6:36 P. M. THE CITY OF BOYNTON BEACH ATTEST: Cit~Clerk (One Tape) Mayor ~ Commi ssi oner ~ Commissioner -3-