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Minutes 01-27-04MINUTES OF THE REGULAR MEETING OF THE PLANNING AND DEVELOPMENT BOARD HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA, ON WEDNESDAY, JANUARY 27, 2004 AT 6:30 P.M. Present: Lee Wische, Chairman William Cwynar, Vice Chair Sergio Casaine Mike Friedland Steve Myott Woodrow Hay Anne Centi, Alternate Mike Fitzpatrick, Alternate Mike Pawelczyk, Assistant City Attorney Ed Breese, Principal Planner Eric Johnson, Planner Maxime Ducost-Amedee, Planner Absent: James McMahon 1. Pledge of Allegiance Chairman Wische called the meeting to order at 6:30 p.m. and Mr. Friedland led the members in the Pledge of Allegiance to the Flag. 2. Introduction of the Board Chairman Wische introduced the Board Members, Assistant City Attorney Mike Pawelczyk, and the Recording Secretary. 3. Agenda Approval Chair Wische asked that the presentation on the Sunshine Law and Public Records be moved to the end of the meeting. Motion Mr. Hay moved for approval of the agenda as amended. Motion seconded by Mr. Myott and unanimously carried. Also in connection with the Agenda, Mr. Breese, Principal Planner for the City, stated that the applicant, The Jefferson @ Boynton (f.k.a. South Congress Residential SPTE 03-006), Item F.1 under New Business, had requested postponement of the item until the Planning & Development Board meeting on February 24. Mr. Breese had previously distributed the applicant's letter requesting postponement to the Board members. This Meeting Minutes Planning & Development Board Boynton Beach, Florida January 27, 2004 met with the approval of the Board and Chair Wische stated that staff should notify the applicant accordingly. 4. Approval of Minutes Motion Mr. Friedland moved to approve the minutes of December 18, 2003. Motion seconded by Mr. Myott and unanimously carried. 5. Presentation on Sunshine Law and Public Records (moved to end of agenda) 6. Communications and Announcements Planninq and Zoninq Report Mr. Breese reported on the disposition of the following items from the December 18, 2003 Planning & Development Board meeting that were reviewed by the City Commission at the January 6, 2004 meeting. 1. The Clear Copy variance was approved with the proviso that they must supply two additional parking spaces. 2. The Olen ]~ndustrial New Site Plan and Office project at Quantum Park were approved. 3. The Bethesda Parking Garage Major Site Plan modification and Height Exception were approved. 4. The Krispy Kreme Major Site Plan Modification was approved. 5. The High Ridge Commerce Center Code Review for dance instruction was approved. 6. The Venetian Villas New Site Plan was postponed until the February 3, 2004 meeting. 7. The Bermuda Bay Land Use Plan Amendment/Rezoning and Annexation were approved. 8. The Anderson PUD Land Use Amendment/Rezoning PUD was approved. Swearing in of Witnesses Attorney Pawelczyk administered the oath to all who would be speaking at the meeting. 7. Old Business Attorney Pawelczyk conveyed a message from the City Attorney's Office to the Board. He explained that when sitting on the dais with the Board, any reluctance to speak that an Attorney might show would be due to the policy of the City Attorney's Office about Meeting Minutes Planning & Development Board Boynton Beach, Florida January 27, 2004 not swaying the Board members one way or another regarding its decisions. When the Attorney does speak out, it might indicate that there is something that the Attorney believes the Board might want to take a closer look at. The Attorney would not tell the Board that it could not approve an item because there was no hardship, for example. Chair Wische stated that when the Board was not sure about the legality of the subject matter, it asks the Attorney's opinion. Attorney Pawelczyk stated that was appropriate. Chair Wische welcomed Commissioner Bob Ensler to the meeting. He also welcomed and introduced Ms. Anne Centi, the new Alternate member of the Planning & Development Board. 8. New Business A. Abandonment Project: Agent: Owner: Location: Description: Quantum Park Townhomes East/West (ABAN 03-013) Paul Romanowski, D. R. Horton, Inc. Paul Romanowski, D.R. Horton, Inc. North of Gateway Boulevard, East of Congress Avenue Request for abandonment of a portion of the Quantum Boulevard right-of-way, in connection With replatting and site plan approval for 271 townhomes and related site improvements. Chair Wische stated that staff had recommended approval for this request for abandonment. Louis Kanner, Attorney for the applicant, Suite 2550, 80 S.W. 8th Street, Miami, Florida, came to the podium. Maxime Ducoste Amedee, Planner, advised that he had no further comments in addition to the Staff Report. Chair Wische opened the Public Hearing and closed it when no one wished to speak. The Board did not have any comments. Motion Mr. Friedland moved to accept with no conditions the abandonment request for a portion of the Quantum Boulevard right-of-way, in connection with replatting and site plan approval for 271 townhomes and related site improvements. Mr. Hay seconded the motion that carried 7-0. 3 Meeting Minutes Planning & Development Board Boynton Beach, Florida .lanuary 27, 2004 B. Conditional Use Project: Agent: Owner: Location: Description: Pylon Interstate Plaza (Phase II) (COUS 03-009) Steven L. Cohen Chamber Properties, LLC 1501 Corporate Drive, immediately west of Lowes Home Improvement Center Request for Conditional Use/New Site Plan approval to construct a 29,419-square foot, two (2)-story office building. Steven Cohen, 300 N.W. 82nd Avenue, Plantation, Florida, architect for the applicant, introduced himself. Chair Wische stated that there were 29 staff comments and asked whether the applicant disagreed with any of the conditions or wanted to have any of them clarified. Mr. Cohen stated that the applicant concurred with all staff Conditions of Approval. Chair Wische wanted to verify that the applicant understood and agreed with Condition of Approval Number 6. Since the applicant did not have the conditions with him, Chair Wische read the description from the staff report. The condition is concerned with utility easements and landscaping that might interfere with them. Mr. Cohen responded that the applicant had met with the City Forester at the site location and he was concerned about the utilities for FP & L on the western side of their property. The applicant's landscape architect is very aware of the situation, has met with FP & L and has selected material that will meet the criteria for that area, so there will not be any problems with trees that grow up too high and get into the lines, and still give the necessary visual barrier for Leisureville. He related that they had met with the Board members at Leisureville on the day of the meeting and the Board was very happy with their site plan. They were putting about $125K into landscaping and about half of that was on their west property line, since Leisureville had concerns about other projects that had been built adjacent to them. Eric Johnson, Planner, agreed with the applicant's comments. He stated that the Board should exclude Condition of Approval Number 27 related to the Traffic Impact Analysis. This comment has been satisfied. Chair Wische opened the Public Hearing and closed it when no one wished to speak. Steve Myott asked to see renderings. Mr. Cohen showed the Board colored elevations of the proposed building. Mr. Myott asked a question about the mechanical enclosures, which was satisfactorily answered by Mr. Cohen. 4 Meeting Minutes Planning & Development Board Boynton Beach, Florida January 27, 2004 Chair Wische asked Mr. Cohen if he were aware there was a one-year time limit on building, and Mr. Cohen responded affirmatively. Mike Fitzpatrick stated that he had been working on Greenways since 1995 and had not gotten anywhere on it. This was one of the prime sites that could have been a link-up along the canal between Golf Road and Woolbright Road. Motion Mr. Hay moved to approve the request for Conditional Use/New Site Plan approval to construct a 29,419-square foot, two-story office building, subject to all staff Conditions of Approval except number 27, which is excluded since it was satisfied. Mr. Casaine seconded the motion that carried 6-1, Mr. Fitzpatrick dissenting. C. Hei.qht Exception Project: Agent: Owner: Location: Description: Pylon Interstate Plaza (Phase II) (HTEX 03-009) Steven L. Cohen Chamber Properties, LLC 1501 Corporate Drive, immediately west of Lowes Home Improvement Center Request for a height exception of 18 feet, 7 inches to allow the peak of an elevator tower to extend above the 35-foot maximum height provision in the Office Professional C-1 zoning district. Chair Wische commented that staff had recommended approval of this item. He read staff's reasons for approving the height exception from the Analysis section of the Staff Report, with highlights as follows: Pitched roofs that conceal electrical and mechanical support systems are eligible to be considered for height exceptions. The exception would not have an adverse effect on the existing and proposed land uses. It would not severely reduce light and air in adjacent areas. The height exception would not adversely affect property values in adjacent areas or adversely affect living conditions in neighboring communities. The pitched roof would provide an attractive feature to help beautify what would ordinarily be a plain flat roof on an elevator shaft. Staff felt that the granting of this height exception would not constitute a special privilege to the current property owner. Staff felt that excluding the standing seam metal roof would be detrimental to the design. 5 Meeting Minutes Planning & Development Board Boynton Beach, Florida .January 27, 2004 Eric Johnson stated that there was one Condition of Approval, and that was for the applicant to indicate by note on the elevation pages, Building Height Approved per HTEX-03-009. Steven Cohen, 300 N.W. 82nd Avenue, Plantation, Florida, architect for the applicant, stated that he agreed with this condition. Chair Wische opened the Public Hearing and closed it when no one wished to speak. Motion Mr. Hay moved to approve the request for a height exception of 18 feet, 7 inches to allow the peak of an elevator tower to extend above the 35-foot maximum height provision in the Office Professional C-1 zoning district, subject to the staff Condition of Approval that the applicant note on the elevation pages, "Building Height Approved per HTEX-03-009." Mr. Cwynar seconded the motion that carried 7-0. D. Use Approval Project: Agent: Owner: Location: Description: Boynton Commerce Center (USAP 03-005) Joni Brinkman, AICP, Winston Lee & Associates, Inc. Menorah Realty Ltd. and Nayrot Realty Ltd. 1800, 1900, 2000, 2100 Corporate Center Drive Request for Use Approval to include "building cleaning and janitorial services" in the list of permitted uses in the Boynton Commerce Center PID. Chair Wische commented that staff had recommended that this use be approved. Joni Brinkman, AICP, Winston Lee & Associates, Inc. came to the podium to respond to any questions. Chair Wische opened the Public Hearing and closed it when no one wished to speak. Mr. Fitzpatrick asked Ms. Brinkman why this use was not already approved. Ms. Brinkman stated that the developer had tried to list all the uses that might apply as tenants, but this one was not included. It was impossible to anticipate every type of tenant that might come along. Motion Mr. Casaine moved to approve the request of Use Approval to include "building cleaning and janitorial services" in the list of permitted uses in the Boynton Commerce PID. Mr. Hay seconded the motion that carried 7-0. D. New Site Plan Meeting Minutes Planning & Development Board Boynton Beach, Florida .lanuary 27, 2004 1. Project: Agent: Owner: Location: Description: Boynton Place (NWSP 03-025) Michelle Diaz-Mendez, P.E., Cordova Mendez Design Group, Inc. Chevron U.S.A., Inc. 310 North Congress Avenue Request for New Site Plan approval for a 7,800- square foot retail building on a 0.75-acre parcel in a C-3 zoning district. Michelle Diaz-Mendez, 34350 Executive Way, Miramar, came to the podium. Chair Wische stated that there were 28 staff Conditions of Approval and asked if the applicant agreed with them. Ms. Diaz-Mendez stated that the applicant agreed with all Conditions of Approval. Staff did not have any comments to add beyond the Staff Report. Chair Wische opened the Public Hearing and closed it when no one came forward to speak. Mr. Myott asked what Chevron's business model was for developing sites like this one, which were former gas stations. He asked if Chevron were converting sites like this around the country. Ms. Diaz-Mendez deferred to the developer, Bob Robbins. Bob Robbins, Paradise Development Group, 3265 Vernia Park Way, Weston, FI, stated that this was something they were looking at across the board. They were retail developers and would handle the redevelopment of these hard corner sites. Mr. Myott asked him what types of uses he saw going in to this. Mr. Robbins said there were letters of interest from a vitamin shop, a coffee shop, and a cellular telephone office. They were considering national tenants. Motion Mr. Casaine moved that the request of Boynton Place for New Site Plan approval for a 7,800-square foot retail building on a 0.75-qacre parcel in a C-3 zoning district be approved. Mr. Friedland seconded the motion that carried 7-0. E. Site Plan Time Extension Project: Agent: Owner: Location: The Jefferson @ Boynton (f.k.a. South Congress Residential) (SPTE 03-006) Kieran J. Kilday, Kilday and Associates Westbrooke Communities East side of Congress Avenue, north of Meeting Minutes Planning & Development Board Boynton Beach, Florida .lanuary 27, 2004 Description: L.W.D.D. Canal L-30 Request for one (1) year time extension of the site plan approval granted on December 2, 2002 to December 2, 2004. Postponed until the February meeting at the applicant's request and with Board approval. At the Board's request, Mr. Breese commented that the applicant has another site plan that will be presented at the next meeting on the same agenda with this one. Project: Agent: Owner: Location: Description: Calvary Chapel of Boynton Bach (SPTE 03- 007) George Marse, Pastor of Calvary Chapel Calvary Chapel of Boynton Beach 3190 Hypoluxo Road, West of Congress Avenue, South of Hypoluxo Road Request for one (1) year time extension of the site plan approval granted on December 4, 2001 to December 4, 2004. Chair Wische stated that staff had recommended approval of this request for a time extension of the site plan approval, based on the "good faith" effort shown to build the project. Ed Breese, Principal Planner, stated that staff's opinion was that the applicant was acting in good faith. The applicant has a clearing and grubbing permit and plans were in for review for the infrastructure. The applicant proposes to have the total plan package in by the end of next month. George Marse, 4117 Floral Drive, Boynton Beach, pastor of Calvary Chapel, came to the podium to answer any questions. Chair Wische opened the Public Hearing and closed it when no one came forward to speak. Motion Mr. Hay moved to approve the request for a one-year time extension of the site plan approval granted on December 4, 2001 to December 4, 2004. Mr. Cwynar seconded the motion that carried unanimously. Presentation on Sunshine Law and Public Records - Mike Pawelczyk Attorney Pawelczyk stated that he had been the Board Attorney for this Board in 1996 and 1997. He expressed Attorney Tolces' regrets that he was sick and unable to attend the meeting. 8 Meeting Minutes Planning & Development Board Boynton Beach, Florida .lanuary 27, 2004 Attorney Pawelczyk explained that he is an Assistant City Attorney for the City of Boynton Beach employed by the law firm of Goren, Cherof, Doody & Ezrol that has been the law firm for the City of Boynton Beach since 1990. He has many years of experience with the City and municipal government. The City Attorney's Office will be giving presentations on the Florida Sunshine Law/Public Records this month to all Boards that provide advice to the City Commission and the administration. Attorney Pawelczyk distributed copies of the statutes that he would be addressing as follows: (1) the Sunshine Law, (2) the Public Records Law, and (3) the Code of Ethics. (1) The Sunshine Law means government in the sunshine and that is accessible to the public. The authority for the Sunshine Law is cited in Section 286.011 of the Florida Statutes and in the Florida Constitution. This provides the right of access to government at the state and local levels. Attorney Pawelczyk explained that the law requires that all meetings must be noticed. The law has three basic requirements. The first one is "reasonable" notice, which is done by the Clerk's Office that normally would be 72 hours. If it were an emergency meeting, it could be 24 hours. There is no definition of what is "reasonable," but it is generally interpreted to mean 72 hours. Secondly, all meetings must be open to the public. Lastly, minutes of the meeting must be taken and promptly recorded. It is not a requirement that minutes are taped using audio or visual devices, but the City does record the meetings using audio equipment and there is a recorder present to take notes in order to prepare the minutes. Because this is an advisory board to the City Commission, members are subject to the Sunshine Law. Attorney Pawelczyk explained that any discussions that members have as a Board must take place on the dais. Two Board members cannot be at a place other than a noticed Board meeting and discuss any matter that could possibly come before this Board and the same situation exists using e-mail. There are criminal and civil penalties involved and Attorney Pawelczyk thinks that there has only been one occasion when a person was prosecuted for Sunshine violations. However, Board members should be cognizant of this. If any Board member has a question as to what constitutes a Sunshine violation, they are urged to contact the City Attorney. Every Board member should prevent the appearance of impropriety. (2) Public Records. Everything that comes out of this Board and is prepared for this Board is public record, i.e. tapes, discs, notes, and any documents as long as it pertains to the business of the Board. This is the one thing draws the most attention and scrutiny from others who may see the Board members, especially on controversial issues. Mr. Friedland said he understood that he and Mike Fitzpatrick, for example, could not discuss Board business outside of the meeting; however, by the same token, he asked if the information from the meeting could be used in other areas in other conversations with friends, family, and so forth. Attorney Pawelczyk said, absolutely. He continued, 9 Meeting Minutes Planning & Development Board Boynton Beach, Florida January 27, 2004 saying that while Mike and Mike cannot sit in a coffee shop and talk about a potential development, an existing development, or anything that may come before the Board, they could talk about things like, "It would be nice if someone put a gas station at this intersection." Mike can talk to friends, staff, the Commissioners, and the Mayor about a particular item. If Mike told me (Attorney Pawelczyk) that he did not like a development and was not going to vote in favor of it and then I went to Chair Wische and said that Mike was not going to vote in favor of "X", I would be acting as a conduit and would be in violation of the Sunshine Law. Mr. Cwynar asked if it was acceptable to discuss a Board action after the meeting in which the vote was taken. Attorney Pawelczyk stated that it was better to take the attitude that anything might possibly come back before the Board and refrain from discussing it. Attorney Pawelczyk noted that there was a large court case involving e-mail that dealt with public records. This includes any e-mail to and from staff if it relates to government matters and duties of being a Board member. The e-mail case involved employees that were conversing back and forth on a personal level. The court determined this not to be public record because it did not deal with public business, even though they were using government computers. If a Board member keeps his or her notes from meetings, they need to be maintained as public records and must be produced if asked for. They must also be treated in accordance with the Records Retention policies of the State. It might be easier for Board members to turn their notes into the Clerk's Office who has to maintain them. Attorney Pawelczyk stated that if he has any such notes, he keeps them in a file for easy access. Besides e-mail, telephone conversations are another way that the Sunshine Law can be violated. In the case of written communications, if the Chair writes a memo to Mike Fitzpatrick and says that it would be important to be on time for a meeting because "X" was going to be discussed, that same memo should be sent to each of the Board members and the City Clerk's office. Attorney Pawelczyk stated that many of the items before the Board were quasi-judicial in nature and that all of the Board's decisions should be made based on the information in the agenda packet and the cross examination that takes place in the meeting room. If an individual has a conversation with a developer, he is required to disclose that he did so. Mr. Hay asked about the example of sharing information from the agenda packet with a resident who asks about a particular project. Attorney Pawelczyk stated that the information was public record and could be shared; however, the Board member should tell the resident that their conversation could not be disclosed to anyone else on the Board because that would be a violation of the Sunshine Law. 10 Meeting Minutes Planning & Development Board Boynton Beach, Florida January 27, 2004 Mr. Fitzpatrick confirmed with Attorney Pawelczyk that it would be acceptable to initiate a conversation with a resident about a project, saying, "This is going in your back yard, and so forth." Chair Wische asked if it would be a violation if he told a Commissioner why he voted one way or another on a particular issue, and Attorney Pawelczyk stated that it was not a problem since they were not on the same Board. Chair Wische could call each Commissioner and tell them why he voted a particular way, but the Commissioners could not talk about their conversation with Chair Wische outside the context of the Commission meeting. When they talk at the Commission meeting, they can say, "1 talked with Lee Wische." The topic of Board members visiting sites in preparation for a meeting was discussed. Attorney Pawelczyk stated that most lawyers would say that the Board members should not go out to visit sites. It would be all right if you happened to be driving by and saw a project and said, "1 drove by "X" and it was perfect." He did not believe that the Board members should go to sites to inspect them. Chair Wische disagreed, saying that one look was worth a thousand words. Attorney Pawelczyk offered to research this topic in depth and bring it back before the Board at its next meeting. The Board expressed appreciation. (3) The Code of Ethics is in Chapter 112 of the Florida Statutes and pertains to all public officers. Advisory Board members are considered public officers. That includes any person who is elected or appointed to hold office to any agency, including any person serving on an advisory body. Attorney Pawelczyk included in his handout some of the statutes dealing with voting conflicts. He explained that each Board member is required to vote on every single matter that comes before the Board, whether the member likes it or not. The only time a Board member cannot vote is if there is a voting conflict. A voting conflict is when a member may stand to gain or lose financially through the action. This also would include a spouse, a close relative, such as a child, and grandchildren through grandparents. If a Board member has a question on whether something may be a conflict, they should consult the City Attorney. If it is determined that a Board member has a voting conflict, that Board member must file a Memorandum of Voting Conflict (Form 8B) after abstaining from voting. These forms are available in the City Clerk's Office. Mr. Myott stated that he usually abstained from voting on projects when the company he works for has a project before the Board, even though he does not work on all of the projects that his company has going at any given time. Attorney Pawelczyk said he would still need to do the Form 8B. Other issues within the Code of Ethics include the solicitation and acceptance of gifts. Generally, the gift rule is $25. However, the appearance of impropriety should always be kept in mind, even if the law would allow it. Attorney Pawelczyk pointed out that if a 11 Meeting Minutes Planning & Development Board Boynton Beach, Florida .lanuary 27, 2004 person is in doubt about an issue, they should disclose it. Doing business with a particular agency could be a conflict also. If a member thinks there is a conflict, they should contact the City Attorney's Office. Attorney Pawelczyk returned to the theme that the Board members should avoid even the appearance of impropriety in all facets of business that had been discussed. The personal, professional, and political ramifications of even being accused of violating this law can be damaging. Chairman Wische thanked Attorney Pawelczyk for a very enlightening presentation. 9' Adjournment Since there was no further business before the Board, the meeting was duly adjourned at 7:30 p.m. Respectfully submitted, Susan Collins Recording Secretary (012804) 12