Loading...
Minutes 11-22-05 MINUTES OF THE REGULAR MEETING OF THE PLANNING AND DEVELOPMENT BOARD HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA, ON TUESDAY, NOVEMBER 22, 2005 AT 6:30 P.M. Present: Lee Wische, Chairman David Tolces, Assistant City Attorney Sergio Casaine Mike Rumpf, Planning & Zoning Director William Cwynar Ed Breese, Principal Planner Shirley Jaskiewicz Diane Johnson Roger Saberson Joseph Baldwin, Voting Alternate Sharon Grcevic, Alternate Absent: Woodrow Hay, Vice Chair 1. Pledge of Allegiance Chairman Wische called the meeting to order at 6:31 p.m. The Pledge of Allegiance to the Flag was recited led by Mr. Cwynar. 2. Introduction of the Board Chairman Wische introduced the Board members and Assistant City Attorney David Tolces. 3. Agenda Approval Motion Ms. Jaskiewicz moved for approval. Motion seconded by Mr. Cwynar and unanimously carried. 4. Approval of Minutes Mr. Casaine moved to approve the minutes of September 27, 2005. Motion seconded by Mr. Cwynar and unanimously carried. Chairman Wische welcomed Commissioner Ensler to the meeting and introduced the Board's new alternate member, Sharon Grcevic. Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 5. Communications and Announcements A. Planning and Zoning Report 1. Final disposition of the September 27, 2005 Planning and Development Board Meeting Agenda items. No disposition of the October 22, 2005 Meeting due to Hurricane Wilma and rescheduling to November 22 " Mike Rumpf, Planning and Zoning Director, noted there was no October meeting due to Hurricane Wilma. He presented the disposition by the City Commission of the items of the Board's September 27, 2005 meeting. There were four separate applications for the Suburban Mixed Project (SMU) on Congress Avenue, north of Old Boynton Road, that were approved, in addition to approval of the following listed projects: • The site plan for the Cortina- Boynton Village Project for 458 fee simple townhomes with the conditions the Board requested. • The Boynton Town Center site plan, which is the corner parcel and zoned C -3 and included a total of 231,000 square feet of commercial space. • Boynton Village site plan, which is the mixed -use portion of the project along the main entrance road off Congress Avenue. This included a total of 14,541 square feet of restaurant space, 10,000 square feet of office space and 135,641 square feet of retail space. • The conditional use for Boynton Village parcels 4 and 5 condos and Boynton Village parcel 3 condos. • The High Ridge new urban communities new site plan, off Miner Road. • The Boynton Dixie Townhome project with 82 units, west of U.S. 1. • The Boynton Dixie Project also included a land use amendment, rezoning and annexation and corresponding items. • A text item identified as rights of way in PUDs. Mr. Rumpf concluded his report. Chairman Wische recognized Commissioner McCray in the audience. Attorney Tolces administered the oath to all persons who would be testifying. 6. Old Business A. Foster Mill Master Plan Modification 1. Project: Foster Mill (MPMD 05 -010) Agent: Bernard Malatesta, Vice President/Treasurer Foster Mill Homeowner's Association, Inc. 2 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 Owner: N/A Location: North of Miner Road; between Lawrence Road and Congress Avenue Description: Request for Master Plan Modification to reduce side yard setbacks from ten (10) feet to eight (8) feet for construction of screened roof enclosures. Chairman Wische announced this item has been postponed until the December 22, 2005 Board Meeting that will be the Board's regular meeting date for December. Motion Mr. Cwynar moved to continue the Foster Mill master plan modification item until December 22, 2005. Motion seconded by Mr. Casaine and unanimously carried. B. Rapido Rabbit Carwash Conditional Use 1. Project: Rapido Rabbit Carwash (COUS 05 -004) Agent: Bradley Miller, AICP, Miller Land Planning Consultants, Inc. Owner: Boynton Properties, LLC, Anthony Pugliese III Location: East side of Congress Avenue; approximately 275 feet north of SW 30 Avenue Description: Request for Conditional Use and Site Plan approval for a 4,595 square foot automated carwash facility and related site improvements on a 0.88 -acre site zoned M -1, Industrial. Chairman Wische pointed out this item has been pending since March of this year and has come back to the Board because staff wanted to have a certified noise study performed and presented to the City. A copy of the noise study performed by Acoustics and Vibration Consultant, Joe Cuschieri was provided to the members and the Recording Secretary, a copy of which is on file in the City Clerk's Office. Ed Breese, Principal Planner, presented the item on behalf of staff and pointed out the item is a conditional use approval /new site plan for a 4,595 square foot automated carwash facility. Mr. Breese reviewed the adjacent uses that included the Golfview Harbor subdivision to the north and the Safe and Secure Storage Facility, zoned M -1, to the south. Further south is the right -of -way for SW 30 Avenue and developed M -1 industrial property, including Tire Kingdom. To the east is developed industrial property with offices and warehouses. West is the right -of -way for Congress Avenue and further west is Manor Care ACLF zoned community- commercial (C -3). 3 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 Mr. Breese explained Attorney Michael Weiner submitted an application for code review (CDRV 05 -001) to allow carwashes in the M -1 zoning district, which was approved by the City Commission on June 21, 2005. Adoption of the code review now allowed carwashes as a conditional use within the M -1 zoning district, which is the reason the Board is reviewing a conditional use, along with the new site plan, for the project. Having carwashes as a conditional use allows greater scrutiny of reviewing site design, operational characteristics, and potential impacts on surrounding properties. Palm Beach County reviewed the proposal and the City received a letter dated February 2, 2005 indicating the proposed project met the County's traffic performance standards. When staff reviews conditional uses, there are standards for evaluating them. Mr. Breese discussed some of the items involved in the review as follows: (1) Ingress and egress to the subject property. According to the site plan there are two proposed points of ingress and egress: one point of access would be off Congress Avenue at the very northwest portion of the property that would be partially shared with the vacant industrial parcel to the north. The second point of access is off SW 30 through the Safe and Secure property site. This road would connect to the east -west road connecting to Congress Avenue. The applicant has submitted a draft of the required cross access easements that are required between this parcel and the vacant parcel to the north, as well as the Safe and Secure site to the south. The City Attorney has reviewed them for sufficiency and they will have to be executed prior to the first permit being pulled. (2) Off - street parking and loading areas, with emphasis on glare, noise, and odor effects that the conditional use would have upon adjacent and nearby properties. The site plan provides for 18 regular parking spaces and one handicapped space that were demonstrated on the site plan. Attorney Tolces pointed out that this is the first time the Board has actually heard the application for conditional use and site plan approval. Mr. Breese pointed out the locations of the parking spaces located on the west side of the carwash. The parking area is landscaped on all four sides to minimize noise and glare from the headlights of customers' vehicles. The wash tunnel openings have additional landscaping above the curb requirements at varying heights to provide a dense vegetation barrier to the inner workings of the carwash and to screen the vehicle stacking and exiting movements from the carwash. The parking lot light fixtures are proposed at 20' in height and staff has conditioned the baffling of the fixtures to prevent glare and light spillage onto adjacent properties. 4 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 Additionally, staff recommended that the illumination be reduced to security lighting within one (1) hour following the closing of the business every night. Staff has required a second landscape buffer that would be placed along the north side of the entrance exit on Congress Avenue to increase the visual and sound barrier for the neighborhood to the north. Golfview Harbor is approximately 200 feet from the carwash site and separated by a vacant industrial parcel, yet to be developed, plus the canal. Staff felt that the introduction of the following made the project a viable one, and the site plan met the intent of the code by introducing increased compatibility, plus the following: (a) buffering based on the landscaping, (b) distance separation, (c) design characteristics, (d) limiting the business hours, (e) baffling of the light fixtures, (f) illumination reduction to security lighting, (g) turning the power off to the mechanical equipment at closing and (h) increasing the landscape buffer. Staff is recommending that the hours of operation be 7:00 a.m. to 7:00 p.m. Mr. Breese next enumerated all the landscaping that would be placed at the site. Staff has also recommended installing decorative buffer walls along the north, south and east buffers around the carwash tunnel to help shield the inner operations of the carwash, soften the look of the vehicle stacking, blocking the headlights as vehicles exit, and assisting with the noise associated with the vehicles leaving the carwash tunnel and the mechanical equipment. The applicant has expressed a concern about placing walls in the locations recommended by staff and requested installing the additional landscape buffer in place of the wall. Staff recommended that all landscaping installed at the project be installed in a mature full state to provide instant screening. The City Forester would inspect the installation of the landscaping. However, staff is still recommending the placement of the walls. The proposed building meets all setback requirements of the M -1 zoning district and is generally compatible with adjacent properties and other properties within the zoning district, including the other automotive related industrial uses within the Congress Avenue Corridor. Mr. Breese pointed out that automotive uses are currently allowed in the M -1 zoning district. The general design of the building utilizes some of the same type of building elements as the Safe and Secure building immediately to the south, including roof material and color. The project appears to be compatible with other uses within the M -1 zoning district. The traffic approval letter from Palm Beach County indicated the project would generate 196 new daily trips with peak hour trips being 14 in the morning and 14 in the afternoon. The remaining compatibility issues are operational in nature and involve noise and visual effects. The applicant proposes to minimize these effects by using dense landscaping buffers. 5 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 Staff requested and received the sound study that the members were provided. Staff is further requiring that all mechanical equipment be turned off at the close of business each day and the lighting on the site be reduced to security lighting within one hour following the close of business each day. In conclusion, the sound study appeared to demonstrate compliance with the City's noise ordinance. Mr. Breese pointed out that staff does not have the technical expertise to definitively make this determination. As a result, staff would like more time to review the information, prepare questions based on what is contained in the study and potentially bring in a professional to assess the study. Based on this, staff is recommending that the item be postponed. Mr. Cwynar inquired if any of the trees would be vulnerable to hurricanes. Mr. Breese responded that live oaks are better than many trees in withstanding the types of storms that have occurred recently, but it is possible that they could go down during a storm as well. Mr. Cwynar also inquired if there were any overhead power lines around the perimeter of the site. Mr. Breese said there were power lines on Congress Avenue. Mr. Breese pointed out the heaviest landscaping is located along the north, east and south perimeters of the project and pointed out the location of the landscaping on the plans. Mr. Cwynar would like to make certain that whenever staff reviewed landscaping, they review it in conjunction with the location of the power lines, so the landscaping would not intertwine with power lines. Mr. Breese felt that the City's Forester looked at this when he reviewed landscape plans. With regard to the sound study, Mr. Cwynar reviewed the letter quickly. However, he did not feel it was necessary to obtain another engineer to do another study, because the engineer that performed the study is a certified engineer, PhD and an acoustical consultant. He summarized in his report that the environmental noise impact from the operation of the proposed carwash facility is insignificant to the residential properties north of the proposed site. Attorney Mike Morell, in the audience, voiced an objection. Chairman Wische requested he take his seat until it was his time to speak. Attorney Morell continued to object. Chairman Wische explained when the Board was done speaking, the public hearing would be opened. Attorney Morell again objected for failure to follow quasi - judicial procedures. Chairman Wische again requested Attorney Morell sit down. Mr. Breese felt staffs review of the noise study revealed the number fell very close to the tolerance allowed in the code. He pointed out there was not much data on how the consultant arrived at his calculations. The blowers in the carwash have a decibel level of 79 in an open environment. The report indicated immediately outside the structure, the decibels drop to 69. At the property line, to the residential area to the north, it dropped to 59. There were no 6 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 formulas shown how the consultant arrived at these figures. As a result, staff is uncertain about the report. Attorney Tolces explained that the Board's typical process during these meetings is to have staff make their presentation and then have the applicant make their presentation. Attorney Morell went to the podium and contended Chairman Wische had not followed court procedures. He noted that Chairman Wische allowed members to ask staff questions, which is appropriate. However, Mr. Cwynar voiced his opinion. Attorney Morell stated the Board should refrain from expressing their opinions since this was a quasi - judicial proceeding. Attorney Morell pointed out Chairman Wische did not swear ex -parte communications at the beginning of the proceeding. The City's code imposed all quasi - judicial restrictions on the Planning and Development Board that applied to the City Commission. Attorney Morell recommended that the Board grant staffs request to postpone the case one month and get it all re- noticed and get it right the next time. Attorney Morell said he represented the Chiodos and the Maloneys. At this point, Attorney Morell sat down. Chairman Wische requested Attorney Morell provide his address. Attorney Morell responded his address was P.O. Box 18649, West Palm Beach, Florida. Attorney Tolces informed the members they were free to make comments and ask questions as the case proceeds. Ms. Jaskiewicz questioned if the carwash was actually consistent with the other auto related businesses in the area, such as Tire Kingdom. She pointed out people going to Tire Kingdom enter the premises from the side street. Ms. Jaskiewicz felt the project was not compatible with the uses along Congress Avenue. She also pointed out an elementary school was located across the street, plus residential homes and a nursing facility. In order to enter the carwash when coming from the north, a u -turn would have to be made. Ms. Jaskiewicz was opposed to having a carwash at this location. Mr. Saberson noted when the request was made to add carwashes as a conditional use in the M -1 zoning district, the City engaged Michele Mellgren and Associates to do a study to determine what uses should be allowed on Congress Avenue. Mr. Breese explained the Commission placed a Notice of Intent (NOI) immediately following this request and a consultant was brought in to look at the M -1 zoning throughout the City. The study is ongoing and is nearing conclusion. Mr. Saberson inquired if any determination had been made in the study that carwashes are appropriate along Congress Avenue in the M -1 District. Mr. Breese was not aware if the consultant had or had not recommended that carwashes would be appropriate along Congress Avenue. Mr. Saberson noted that a petition signed by 2,000 people opposed to the project had been presented to the City. Mr. Breese acknowledged a petition had been signed, but he was unaware of the exact number. Mr. Baldwin stated that on June 21, 2005 a 7 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 petition with approximately 2,000 signatures was handed to the City Commission opposing a carwash in this area. Mr. Baldwin referred to the shared road off Congress Avenue, half of which would be on the vacant land. He noted there were trees on the vacant land and he inquired who would be planting and maintaining the trees. He inquired if the applicant had the legal right to use the roadway in back of the self- storage facility. Mr. Breese pointed out that there are cross access easements and agreements that have been entered into and this is the responsibility of the applicant. Mr. Saberson inquired when the NOI study would be completed. Mr. Rumpf responded that the NOI had been extended for three months and would expire in January 2006. Mr. Rumpf explained the study period originally was for 180 days to study the M -1 regulations in the areas currently zoned M -1. Preliminary findings have been provided to staff and questions and comments have been forwarded to the consultant. Staff is using this time to finalize recommendations and make clarifications. Mr. Saberson inquired if the NOI was to put all applicants in the M -1 zoning district on notice that their applications may be reviewed in conjunction with the results of the NOI study. Mr. Rumpf said the results of that study would not apply to this project because this application was submitted in advance of the execution of the NOI. It will state what could and could not occur on properties currently zoned M -1 prior to expiration of the NOI. Ms. Jaskiewicz pointed out the dearth of M -1 zoning in the City and questioned why the study would not apply to current projects. Mr. Rumpf noted only this application would not be included in the study. Mr. Casaine inquired if the Board would be allowed to comment after the applicant made his presentation and the proceedings were turned over to the public. Chairman Wische agreed with this procedure. Mr. Breese noted the cross - access agreements are not only with the property owner to the north, but also with the property owner to the south, which is the storage facility. Therefore, there are two points of ingress and egress and would not necessitate u -turns on Congress Avenue, even though they could still occur. Michael Weiner, 209 S. Seacrest Boulevard, Boynton Beach, assumed the podium and noted he was present for a conditional use and for the record, there is only one condition of the 36 conditions that they do not agree with. The only thing he anticipated discussing was the wall. Attorney Weiner requested to address some procedural situations and noted this Board is a recommending body and the item will be referred to the City Commission for a vote. Attorney Weiner informed Attorney Morell that he would not cede the microphone to him during his presentation. Attorney Weiner asked Assistant City Attorney Tolces if he would like to address the Board's procedures. 8 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 Attorney Morell objected and Attorney Weiner duly noted Attorney Morell's objection. Attorney Weiner pointed out the hearing was quasi - judicial, not judicial and is not like a court proceeding. Assistant City Attorney Tolces reported that the Planning and Development Board heard matters that are quasi - judicial for a recommendation to the City Commission. The Board hears from staff, asks questions and makes comments. The applicant then makes their presentation and the Board can ask the applicant questions, make comments and address certain issues. Following this, the Chairman would open up the public hearing for testimony and information presented by the public. The Board can also ask questions of the members of the public that have been sworn in. After that, the public hearing is closed and a motion could be made, discussion could take place and a vote could be taken for a recommendation to the City Commission on the application before the Board. Attorney Weiner said since the public would be speaking, he requested that the Board allow him a few moments of rebuttal to respond to what the public had to say. Attorney Weiner also asked the Board members if they would like to disclose any contacts they might have had. Attorney Morell objected. Attorney Weiner duly noted Attorney Morell's objection. Chairman Wische requested that Attorney Morell sit down, otherwise he will be requested to leave the building since Chairman Wische felt Attorney Morell was disrupting the meeting. Attorney Weiner asked the members to announce any ex -parte communications they may have had. Chairman Wische received a telephone call from Attorney Morell that was on his answering machine. Chairman Wische did not return the call because Attorney Morell wanted to meet with him to discuss the case. Chairman Wische did not wish to meet with anyone to discuss matters that he would be voting on until they appeared before the Board. This was the only reason he did not return the call; there was no intent to be discourteous. Chairman Wische felt it was improper for him to meet with Attorney Morell. Assistant City Attorney Tolces added that Board members could during the hearing, disclose any ex -parte communications they may have had. When the ex -parte communication is disclosed, it is deemed non - prejudicial because it would be on the record. Attorney Morell shouted a motion to voir dire the declaration of ex -parte communication. Chairman Wische warned Attorney Morell not to interrupt the proceedings. Assistant City Attorney Tolces added that the Chairman is authorized under §2 -11 of the City Code that once a warning has been given to an individual, and that person does not comply with the Chairman's request, the Chairman could have that person removed from the Chambers. 9 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 Attorney Weiner responded that Attorney Morell could have the microphone, duly noting all of his objections, and he could make them at that time, and not interfere with the applicant's presentation. Mr. Saberson reported that he spoke with Commissioner Ensler concerning this matter. Mr. Baldwin reported that he spoke with Commissioner Ensler on the telephone. There were no other ex -parte communications revealed. Attorney Weiner inquired if the conversations the Board members had with the elected Commissioner prejudiced their vote and they responded it did not. Originally Attorney Weiner explained he was present to discuss a carwash that resulted in 146 trips, 14 at peak hours, on a road that carried 20,000 to 30,000 cars per day. He did not think they could have a project on the site that would generate less traffic. The carwash is approximately 4,900 square feet on 9 /10ths of an acre that covered less than 15% of the property. The building is actually 15Y2 feet lower than allowed and was located 55 feet from the north property line, but it could have been 15 feet. Attorney Weiner noted they were not trying to force the building upon everyone in the neighborhood. The project contained more landscaping than required by code. The carwash is no longer a Rapido Rabbit carwash because they lost the franchise because the applicant was required to be too garish. Attorney Weiner discussed ingress and egress to the site and how the traffic would be handled to provide 200 feet of stack -up. It only took three minutes to wash a car; therefore there would never be enough cars in the stack -up zone to get close to the street. The carwash is designed with all extra expenses. The only people near the site live 250 feet across the canal. He pointed out the carwash is a permitted use. Other permitted uses are towing companies with outside storage. His client wanted the project to look good, not garish and to make it fit and become the hometown carwash. Attorney Weiner noted to obtain a conditional use approval there are 12 standards to be met and they have met them all. He pointed out there is a 13 requirement that required a sound report for bars and nightclubs, but the applicant was agreeable to obtaining one for his project, even though it was not required. A copy of the report had been previously distributed. Attorney Weiner noted there were 13 pages of technical data in the file regarding the vacuums and central blowers of the carwash. Mr. Cuschiere, that performed the study, is present to answer any questions. Attorney Weiner noted that when people purchased their homes in Golfview Harbor, they knew what surrounded their homes that included M -1 zoning. The applicant is a concerned owner that wants his business to look good. Attorney Weiner pointed out the project was compatible with the area and, in fact, even improved the area. 10 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 Attorney Weiner reported Steve Boudreau was present and is an expert in the operations of carwashes. He is available to answer any operational questions. Also, Mr. Bradley Miller, the Land Planner, was present. Attorney Weiner requested to address the wall that staff was requesting. He felt that landscaping and shrubbery would be much better than a wall. If they built a wall, it would be subject to graffiti, maintenance, and crime. He felt putting up a masonry straight wall would be a step backwards. The noise study indicated the project would not create noise in excess of the code. The City has a Code Enforcement Division for this purpose. He felt it was foolish to require another noise report, when they voluntarily provided a report that was not required. He pointed out the item would not go to the City Commission until December 6 which would provide the City sufficient time to have another study done. Attorney Weiner requested the Board make a recommendation so the project could move forward. They want to be a good neighbor and show people that seem to have a hatred for the carwash, that the applicant is not their enemy and the project is a good project. Mr. Casaine had a question for Steve Boudreau. Steve Boudreau, 275 Eliot Street, Beverly, Massachusetts assumed the podium. Mr. Casaine asked Mr. Boudreau if he was familiar with Motor City Carwash. Mr. Boudreau was aware of it. Mr. Casaine was familiar with Motor City Carwash as far as its operation and noise and asked Mr. Boudreau if he could compare the noise level of Motor City Carwash to the applicant's facility. Mr. Boudreau reported that Motor City Carwash has a central vacuum system and when pulling into the site the vacuum hoses were visible. A central vacuum system is the noisiest system. The applicant's facility does not have this type of vacuum system. It will have small self - service individual units. The blowers inside the carwash are muffled. The blowers at Motor City are somewhat similar to the applicant's blowers. Ms. Johnson asked Attorney Weiner if they were agreeable with the hours of operation, i.e. 7:00 a.m. to 7:00 p.m. Attorney Weiner responded they were in agreement with the hours. Ms. Johnson inquired if the business would operate seven days per week and was informed that it would. Ms. Jaskiewicz pointed out there are other carwashes located near the applicant's site at Woolbright Road. Those two establishments have ingress and egress from two different streets. She felt this was a big difference from the applicant's ingress and egress. Attorney Weiner responded the applicant's site has two ingresses and egresses as well. In addition, there will be a monument sign indicating how to enter the carwash. People would make a turn at the light, go around the backside and enter the carwash that would be safest way to enter the site. There is a right turn only onto Congress Avenue. Chairman Wische opened the public hearing. 11 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22 2005 Mike William Morell, P.O. Box 18649, West Palm, Beach stated he is an attorney and practices land use and administrative law. He was present on behalf of his clients, Dr. Christopher and Mrs. Linda Chiodo and Christopher and Natalie Maloney that own property immediately north of the project site. Attorney Morell pointed out Dr. Chiodo has been a resident of the City for over 32 years and is very active and supportive of the City's redevelopment endeavors. He was representing Dr. Chiodo and his wife as residents that are being adversely affected by the project. Attorney Morell requested that Ms. Chiodo stand up and be recognized. Attorney Morell's other clients, Christopher and Natalie Maloney, were also present. Attorney Morell requested he be allowed to point out on the map where his clients live in relation to the project. Natalie Maloney, 1460 SW 28 Avenue, took the podium and pointed out where she lived on the map. Ms. Maloney also pointed out the location of the Chiodo's property. Attorney Morell noted the Chiodo's property is vacant land and they live at 2515 SW 13 Court, which is Golfview Harbor Terrace. Dr. Chiodo intended to use the vacant lot to build a home for his daughter who recently married. Attorney Morell pointed out the issue before the Board is whether the City of Boynton Beach applies consistent rules to the location of carwashes throughout the City and whether or not the carwashes are compatible with residential uses. Attorney Morell apologized for making the earlier objections, but noted a lawyer has a duty to his clients to make a record. When the Board departed from the procedures in the code with regard to how quasi - judicial proceedings are conducted, he felt it was necessary to make the objections. Attorney Morell also apologized if he offended anyone. Attorney Morell pointed out that Mr. Weiner noted on the record that this was a quasi - judicial proceeding after the proceeding had already begun. It was most unusual that the declaration of ex -parte communications did not occur at the beginning of the meeting and Board members began to ask questions of staff. He noted that Mr. Cwynar innocently voiced an opinion as to whether or not another expert opinion was needed. Attorney Morell felt Mr. Cwynar did this in good faith. Normally when a Board declares an ex -parte communication, they normally declare whom they spoke to, the nature of their communications and declare whether or not that person has an open mind on the issue and is still capable of making a decision based on all the evidence heard. Since this was not done in this case, Attorney Morell requested to preserve that objection. Chairman Wische called for point of order and asked Attorney Morell why he thought the Board made a decision prior to what he brought up. Attorney Morell felt it was improper for Board members to voice opinions before they have heard all of the testimony in the proceeding. Attorney Morell felt Mr. Cwynar voiced an opinion in good faith, but he felt what he said could be cured if Mr. Cwynar told Attorney Morell, 12 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 notwithstanding what he said, he was capable of hearing all of the evidence before he made a decision on the issue. Chairman Wische responded that all Board members have a duty to the City. This is a pro bono Board, but they follow City Codes and Ordinances. Speaking for all Board members, Chairman Wische noted members receive their backup material prior to the meetings and have an opportunity to study the material before they meet. When they attend the meeting, members listen to the applicant, the public hearing is declared, questions are asked, and after everyone has been heard, Chairman Wische would call for a motion. He was offended that Attorney Morell implied that the members were not acting correctly. Chairman Wische pointed out that he is the Chairman, he runs the meeting and he vouches for the Board. He did not want to hear any insinuations that they are doing anything wrong. Attorney Morell said he was duty bound for his client to make a record. He requested to present an objection that Chairman Wische was not allowing him to present an oral presentation. He said that quasi-judicial decorum allowed him to make presentations, but requested to move on. Chairman Wische said he could move on, but he should be cautious about what he said about the Board. Attorney Morell said his client had a right of free speech to say whatever she believed before the Board. If his clients cannot say what they believe, Attorney Morell felt it was evidence that the City's procedures have been violated. He further stated Chairman Wische was wrong as a matter of law, and the Board was denying citizen participation. Attorney Morell wished to address Mr. Saberson's question to staff regarding the application of the NOI. He stated the NOI was adopted for the study of the M -1 zoning district that recognized the vested rights of applicants that submit applications before changes are made in the code. An NOI is actually a moratorium that stopped applications from being submitted until the City decided on how it wanted to proceed. Therefore, if the City decided to amend the Code that stopped the application process, Attorney Morell felt the applicant had no vested rights. He would only agree with staff if the City chose to take the study and amend the Code. This is a quasi-judicial proceeding and the case at hand is a conditional use application. Information within that study, even at this stage and regardless of its content, would be the best evidence whether the application met the existing regulations. Attorney Morell pointed out the application makes major findings on the City's six M -1 zoning districts. It also contained a great many interesting comments about the district in which the site of the application is located. He would request, in addition to staffs request, that the Board postpone the item until staff had an opportunity look at the study. Attorney Morell noted that on Friday, staff did not have the sound study and staff was recommending that the matter be delayed until the study was received. The study has now been received; however, staff is still asking for additional time to review it. Attorney Morell would like more time to review the information and felt the City's rules of public 13 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 participation should afford his clients the right to look at the sound study. He asked Attorney Weiner before the meeting to delay the matter, but he was not agreeable to doing this. Attorney Morell noted the matter would be on the City Commission's agenda for December 6 Attorney Weiner sent a letter to the City Commission informing them that he had a conflict that night and must be in Delray Beach and Boynton Beach the same night. As a result, Attorney Weiner requested that Delray Beach place his item at the top of the agenda and Boynton Beach to put their item at the end of the agenda. Attorney Morell felt this was against public participation. His clients worked hard to gather 2,000 signatures protesting the carwash and they had a chance to be heard during the rezoning hearings. He would like them afforded the same courtesy on the conditional use hearing. He felt that having the matter on the agenda at 11:00 p.m. was too late for people to be heard. Attorney Morell requested the matter be continued for one month to allow him time to find an expert to do an additional sound study that would address Mr. Cwynar's question if another study were necessary. Attorney Morell questioned the fact that Mr. Cwynar, after his question was answered, voiced an opinion that they did not need any more information on the sound study to make a recommendation. Mr. Casaine interpreted this to mean that Attorney Morell was accusing a Board member of stating there was no need for another study. What Mr. Cwynar actually said was why would another opinion be needed. Further, Mr. Casaine requested that Attorney Morell refrain from reminding the Board members of their responsibilities because it was not necessary. Mr. Casaine requested that a time limit be set for Attorney Morell to speak because there are other people that would like to speak. Attorney Morell took offense to this remark and inquired if Attorney Weiner was allowed to speak longer than he was. Chairman Wische requested Attorney Morell stay with the issue at hand. Attorney Morell said there is an issue whether the City's Planning and Development Board is required to follow all of the City's quasi - judicial procedures. With regard to the issue of public participation that Attorney Morell continued to raise, Chairman Wische pointed out it was this Board that instituted public hearings many years ago. Chairman Wische noted this Board conducted public hearings on every issue. Attorney Morell stated the interruptions continue to deprive him of his right to make his record. Attorney Morell requested he be allowed to voir dire those Board members that declared ex -parte communications, which he equated to three. Attorney Morell noted Chairman Wische acknowledged his telephone call, but did not call him back. Attorney Morell asked Chairman Wische if spoke with anyone else about 14 Meeting Minutes Planning and Development Board Boynto Beach, Florida November 22, 2005 the application to allow carwashes in the M -1 zoning district as conditional uses since the adoption of the ordinance. Chairman said he did not speak with anyone to his knowledge. Attorney Morell asked Chairman Wische if he spoke with anyone previously and Chairman Wische asked Attorney Morell if he was on trial. Attorney Tolces announced that the Board members have complied with their responsibilities under the City's ex -parte communications and are under no obligation to answer any questions posed by Mr. Morell. Attorney Morell disagreed, but would reserve his objections. Attorney Morell stated this is a case whether the City fairly applied its existing regulations for allowing carwashes and whether all neighborhoods are treated the same. Attorney Morell felt there is a difference in the way the law is being applied in the City. The minutes of the City Commission Meeting of October 21, 2003 show the City applied variances to a carwash located in Commissioner McCray's district called the Marouf Carwash and was approved over the objections of the neighborhood residents. When the vote was taken, Commissioner McCray opposed the variances. At the next Commission meeting, a motion was made to rescind the quasi - judicial variance on the grounds of incompatibility. Over the objections of the. City Attorney regarding possible legal ramifications, the City reversed its vote and the variances were rescinded 5 -0. Attorney Morell requested that the Commission minutes of October 21, 2003 and November 18, 2003 be included with the minutes of this meeting. Attorney Morell provided copies to the Clerk. Chairman Wische requested Attorney Morell sum up his testimony. Attorney Morell asserted that his rights have been denied because of all the side bar interruptions. Mr. Saberson requested that Attorney Morell be provided five more minutes to sum up his presentation. Chairman Wische granted Attorney Morell three minutes for summation. Attorney Morell noted there was no clock running, to which Chairman Wische took offense to the comment. Attorney Morell requested to discuss the wall. He noted the staff report recommended a wall be constructed on the applicant's property. The applicant is requesting shrubbery in place of a wall. This is the only condition in dispute raised by Attorney Weiner. Attorney Morell stated there are legal and impact grounds why the wall should be placed between the carwash and his clients' properties. They have tried to ask the developer to place the wall to obstruct sight and sound that he considered a reasonable condition. He noted the wall placed by the self- storage facility proved beneficial to Golfview Harbor, and he would like this wall extended to the carwash property as well. If the wall were extended out to Congress Avenue, it would mitigate the noise. Attorney Morell felt this Board has the right to ask that the wall be 15 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 placed on the joint property, since the applicant has refused to place the wall on his property. Klaus Weyers, 1079 Kokomo Key Lane, Delray Beach, Florida, was amazed at how the proceedings have gone tonight. Mr. Weyers was a real estate agent. He sells property in Boynton Beach and plays tennis in Caloosa Park. He would like to have a carwash in the vicinity so after he plays tennis, he could get his car washed. Mr. Weyers pointed out there has been no regard for the business people that have purchased the property and invested their money. He felt they were being required to jump through hoops for more than one year to get their project approved. He thought a great deal of money was being spent needlessly. He requested that the Board approve the carwash. Ken Sengage, 201 East Boynton Beach Boulevard, would like to see the case postponed so that additional sound studies could be conducted. He felt the sound study indicating 69 to 70 decibels is inaccurate. He owned the carwash across from City Hall and his blowers put out 110 decibels according to his sound meter. He would recommend that the case be postponed for one month until the sound studies are done properly. Mr. Saberson said if the conditional use application was filed after the Notice of Intent, he felt the results of the application would be subject to the NOI. Attorney Morell responded that the applicant filed their application prior to the NOI taking effect. This was not the issue according to Attorney Morell. The issue is whether the information could be used for purposes of making decisions on the conditional use application. Attorney Morell was not going to represent that the applicant should not have vested rights to any subsequent changes to the ordinances that are made as a result of the report. Attorney Morell stated the applicant had vested rights with regard to any changes in the LDR. He felt, however, the information in the report is relevant whether a conditional use application should be granted. Attorney Weiner inquired if the Board would be amenable to allow him a rebuttal and Chairman Wische instructed Attorney Weiner to give his rebuttal at this time. Attorney Weiner referred to the one house that was north of the property and was, in fact, only a short distance from Congress Avenue. He noted the acoustical engineer reported that the background traffic on Congress Avenue either equaled or exceeded the carwash blowers. He pointed out that this person purchased the house knowing that it was located next to Congress Avenue. Attorney Weiner did not feel that a carwash located 250 feet from the house would disturb the occupants of that house. Attorney Weiner also pointed out that the owner of the house could build their own wall or fence if they so desired. He also noted the project has exceeded the standards set by the code and they provided an acoustical report, which they were not required to do. He 16 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 also pointed out, except for himself and staff, no one else addressed the 12 standards that must be met under Section 11.D for granting a conditional use. Attorney Weiner requested the Board look at those standards when considering the request for a conditional use approval. Attorney Weiner concluded his report Mr. Casaine noted that he and the other Board members consider the recommendations and look at the analysis of staff when items come before the Board. He is proud of staff's work and felt they did an excellent job for the City. The Board does not always go with staffs recommendation and may have criteria of their own, but the Board is committed to the City. Mr. Casaine addressed whether the carwash would be compatible with other uses in the area and he felt it would be. He pointed out Tire Kingdom, located across the street, is in an industrial area. He went out to the site several times to make sure the carwash would not interfere with the lifestyle of the nearby residents. Mr. Casaine noted that Motor City Carwash is directly across the street from Santaluces High School and next door to a grammar school. In addition, there are very nice homes that surround Motor City carwash. He pointed out when you stood outside Motor City Carwash there was very little noise, except for a slight humming. This carwash has nine blowers operating at full blast. With regard to Main Street Carwash, Mr. Casaine noted the noise that emanates from that carwash far exceeds other carwashes that he visited. He pointed out he was a customer of Main Street Carwash. If Mr. Casaine thought the noise from the carwash would disturb the nearby residents, he would make sure buffers to shield the noise were installed. However, this is not the case and he did not feel it was necessary for the project. Mr. Casaine felt a carwash along Congress Avenue would make less noise than the traffic along Congress Avenue. He referred to the acoustical study that was provided to the members. He did not feel, even though staff was recommending it, that another study be done. With regard to other developments in the area, Mr. Casaine felt they should not even be in the picture because they are not near the site. Mr. Casaine was ashamed the City put businesspeople through the exercise that has taken place tonight. In his opinion, there was no justification to deny the carwash, since this Board previously approved Motor City Carwash. Ms. Jaskiewicz asked Mr. Casaine if he spoke so passionately when the carwash in Commissioner McCray's district was being considered and asked why that carwash was not allowed. Mr. Casaine said he supported that carwash as well and spoke in favor of approving it before the City Commission. The reason why the Marouf carwash was disapproved was due to the concern of the residents that lived in the neighborhood. 17 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 They spoke at the meetings citing illegal activities taking place near the Marouf property that had nothing to do with what was being discussed tonight. Chairman Wische closed the public hearing. Mr. Saberson favored staff's request for another acoustical study before this Board considered the application. He felt that noise was the biggest consideration for the project. Chairman Wische pointed out the project had been tossed around. No matter what the applicant agreed to, staff found another issue to deal with and the project kept getting postponed. Chairman Wische noted several carwashes have been built in the City and he was not aware of any carwash being required to obtain a certified acoustical study. He was surprised that staff again wanted to postpone the item in order to obtain another acoustical study. If staff wanted another study done, they could do so prior to the Commission meeting in December. He was not in favor of delaying the project any further because it was not fair to the applicant. Motion Mr. Casaine moved that the request for Conditional Use and Site Plan approval for a 4,595 square foot automated carwash facility and related site improvements on a 0.88 - acre site zoned M -1, Industrial be approved with all staff conditions, with the exception that the buffer be the buffer indicated by the applicant. Ms. Jaskiewicz inquired if Mr. Casaine intended to eliminate the wall recommended by staff. Mr. Casaine said this was correct. Ms. Johnson seconded the motion. Vote The Recording Secretary called the roll. The motion carried 4 -3 (Ms. Jaskiewicz, Mr. Saberson and Mr. Baldwin dissenting). Recess was declared at 8:28 p.m. The meeting reconvened at 8:40 p.m. Attorney Tolces reported that Mr. Saberson left the meeting and it would be in order to ask the new alternate to assume his place. Ms. Grcevic replaced Mr. Saberson at the dais. C. Nautica Master Plan Modification 1. Project: Nautica (MPMD05 -012) Agent: Troy Cool and Robert Williams 18 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 Owner: Nautica PUD Homeowners Association Location: West side of Lawrence Road, north of the LWDD L -21 Canal Description: Request for Master Plan Modification of the Nautica P.U.D. to allow swimming pools on "Z" lot line parcels. Troy Cool, 8068 Stirrup Cay Court, assumed the podium. Chairman Wische noted there were three staff comments and asked the applicant if he agreed with the comments. Mr. Cool said he was not familiar with them. Eric Johnson, Planner for the City, read the comments into the record. Mr. Johnson explained the comments were standard comments. Mr. Cool agreed with staff's comments. Ms. Jaskiewicz asked if this would apply to all lots in the community and Mr. Johnson responded that it would. Chairman Wische opened the public hearing. Since no one wished to speak, the public hearing was closed. Motion Ms. Jaskiewicz moved to approve the request for Master Plan Modification of the Nautica P.U.D. to allow swimming pools on "Z" lot line parcels, subject to all staff comments. Motion seconded by Mr. Casaine and unanimously carried. C. Forum Professional Center Maior Site Plan Modification 1. Project: Forum Professional Center (MSPM 05 -012) Agent: Kenneth Carlson Owner: Forum Professional Center, LLC. Description: Request for Major Site Plan Modification to the Forum Shoppes to add a 20,000 square foot professional office building and related site improvements on a 1.80 -acre portion of a 6.55 - acre shopping center, zoned C -3, Community Commercial. Ken Carlson, 1002 East Newport Center Drive, Deerfield Beach, Florida agreed with all staff comments. Ed Breese, Principal Planner, complimented the applicant and owner on doing a very good job with their project. 19 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 Chairman Wische opened the public hearing. Since no one wished to speak, the public hearing was closed. Ms. Jaskiewicz had gone to the site today. She liked the way the drawing of the building looked and felt it would be an asset to the area. She inquired if the access through the property to the shops and movie theater would still be available to people entering from Ocean Drive. Mr. Carlson explained that the curb cut on the east that goes to the rear of the shopping center would remain the same and people would be able to have the same access that currently exists. They would be making the parking lot better controlled because previously there were driveways entering from several other directions. Ms. Jaskiewicz inquired about the landscaping that would be placed facing Ocean Drive. Mr. Carlson responded the existing hedges would be replaced and the larger trees currently on the property would remain. Ms. Jaskiewicz asked about the buffering of the area and Mr. Carlson stated there would be trees 30 feet on center in addition to landscaping along the building itself. This would provide a double layer of planting material. Ms. Jaskiewicz asked about the lighting that would be introduced since the neighboring community had asked FP &L to replace the current lighting. She noted the applicant intended to remove two of the current poles on the property and asked what would be used in place of the removed poles. Mr. Carlson responded they submitted a photometric plan to the City that will increase the lighting to approximately 3 -foot candles throughout the site. Shields will be added to the lights to avoid lights shining into the adjoining community. Ms. Jaskiewicz was concerned about the safety of people walking along the sidewalk at night. She requested the applicant work with staff to make certain the area is well lighted, and Mr. Carlson agreed with this request. She also requested the applicant work with staff to make certain adequate landscaping was introduced to the project Chairman Wische opened the public hearing. Since no one wished to speak, the public hearing was closed. Motion Mr. Cwynar moved to approve the request for Major Site Plan Modification to the Forum Shoppes to add a 20,000 square foot professional office building and related site improvements on a 1.80 -acre portion of a 6.55 -acre shopping center, zoned C -3, Community Commercial, subject to all staff comments. Motion seconded by Ms. Jaskiewicz and unanimously carried. 20 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 7. New Business A. Southeast Neighborhood Park New Site Plan 1. Project: Southeast Neighborhood Park (NWSP 05 -029) Agent: Wally Majors Owner: City of Boynton Beach Location: 2882 SE 2 nd Street Description: Request for New Site Plan approval for a neighborhood park to include basketball courts, open play field, playground, picnic area, walking paths and a parking lot on 2.3 acres. Jody Rivers, 3895 August Drive, Lake Worth, Florida, the City's Park Superintendent, assumed the podium. Chairman Wische pointed out there were 13 staff comments and Ms. Rivers responded the City agreed with all staff comments. Ms. Jaskiewicz did not think staff's report fit the description of a "passive" park. Ms. Rivers explained that a "passive" park could have some activities, but for the most part is more passive than not. Kathleen Zeitler, Planner for the City, said that staff recommended approval of the project, subject to all staff conditions. Chairman Wische opened the public hearing. Ron Brito, 198 SE 27 th Avenue, Boynton Beach, requested to view the plan for the park. The plan was displayed and Ms. Zeitler explained the park would have an open play field, two different size basketball courts, five parking spaces and an additional handicap space. There is also a handicap accessible picnic area and provision for a future restroom. There will be a picnic shelter with several tables and a playground for different age groups. An 8 -foot asphalt path will be introduced throughout the park with benches and landscaping throughout. There will be a sidewalk along the right of way that would be fenced and gated. Mr. Brito inquired if there would be any buffering of the noise from the trains near the park. He lived across the street from the park and the trains make a tremendous amount of noise. Ms. Rivers responded that it is not customary to place walls around parks because of safety reasons for the children. If walls were present, people tend to hide behind the walls and all types of activities could occur that would not be conducive to a park environment. Ms. Jaskiewicz noted there was a great deal of foliage in the park that should help with the noise. Ms. Rivers acknowledged there would be noise because the park is next to a train track. 21 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 Since no one else wished to speak, the public hearing was closed. Motion Ms. Johnson moved to approve the request for New Site Plan approval for a neighborhood park to include basketball courts, open playfield, playground, picnic area, walking paths and a parking lot on 2.3 acres, subject to all staff conditions. Motion seconded by Ms. Grcevic and unanimously carried. B. Evaluation and Appraisal Report 1. Project: Evaluation and Appraisal Report (EAR) Agent: Staff - initiated Description: Presentation of final EAR prepared pursuant to Section 163.3191 F.S. and to be ultimately applied by the City Commission and transmitted to the Florida Department of Community Affairs (DCA). Chairman Wische complimented staff on providing an excellent report. Dick Hudson, Senior Planner presented the item. In the description of the item, Mr. Hudson noted that the word "applied" should actually be "approved" by the City Commission. Mr. Hudson referred to the matrix displayed to show the stage the City was in for its review of the Comprehensive Plan. The State set a scheduled due date of November 1, 2005. Because of the hurricanes and staffs heavy workload, the report was not completed by that date. Unless the report was done as required, DCA would not accept any more Comprehensive Plan Amendments from the City. In light of this, the City could still send amendments that were insufficient. Taking this route would allow staff an additional year to correct any incorrect amendments. Staff must proceed this way in order to save the Comp Plan Amendment cycles. Staff has followed the State's directions on how to prepare the EAR, but had problems finding issues to report. There is one issue involving the wastewater treatment plant because the City and the City of Delray Beach are using approximately three - quarters of the total capacity of that plant. After the hurricanes last year and the heavy rains in September, infiltration problems into the sewer lines resulted. Staff will be working on this and this is what staff based the report upon. Mr. Hudson requested the Board make a recommendation the City Commission adopt it. Motion Mr. Casaine moved that the presentation of the final EAR prepared pursuant to Section 163.3191 F.S. and to be ultimately approved by the City Commission and transmitted to 22 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 22, 2005 the Florida Department of Community Affairs be approved. Motion seconded by Ms. Jaskiewicz and unanimously carried. 8. Other 9. Comments by members 10. Adjournment There being no further business, the meeting properly adjourned at 9:05 p.m. Respectfully submitted, Barbara M. Madden Recording Secretary (November 23, 2005) 23