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Minutes 11-23-10 MINUTES OF THE PLANNING AND DEVELOPMENT BOARD MEETING HELD ON TUESDAY, NOVEMBER 23,2010, AT 6:30 P.M. IN COMMISSION CHAMBERS, BOYNTON BEACH, FLORIDA PRESENT: Roger Saberson, Chair Sharon Grcevic Shirley Jaskiewicz Candace Killian Warren Timm Leah Foertsch, Alternate Michael Rumpf, Planning and Zoning Director Jamila Alexander, Assistant City Attorney ABSENT: Matthew Barnes, Vice Chair 1. Pledge of Allegiance Chair Saberson called the meeting to order at 6:32 p.m. The Pledge of Allegiance was led by Ms. Jaskiewicz. 2. Introduction of the Board The introduction of the Board was dispensed with, as there were no guests in the audience. 3. Agenda Approval Motion Ms. Jaskiewicz moved approval. Ms. Killian seconded the motion that passed unanimously. 4. Approval of Minutes from October 26, 2010 meeting Motion Ms. Killian so moved. Ms. Jaskiewicz seconded the motion that passed unanimously. 5. Communications and Announcements: Report from Planning and Zoning 1 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 23, 2010 Michael Rumpf, Planning and Zoning Director, reported on the outcome of the items reviewed by the Board and by the City Commission subsequent to the Board's review. November 3, 2010 The new site plan proposed for the Slomin Family Center was tabled as the traffic issues had not yet been resolved. The matter had been tabled twice to date and will be brought back before the City Commission on December 7, 2010. November 16, 2010 The time extension for the medical office building known as South Florida Radiation Oncology was approved. The major site plan modification for the City parking lot on Ocean Avenue and NE 4th Street to accommodate the relocated Jones Cottage was approved. 6. Old Business: None 7. New Business: Attorney Alexander administered the oath to staff members who would be testifying. A.1. Peninsula Easement Abandonment CABAN 11-001) - Approve the abandonment of a Utility Easement for property located at 2660-2700 North Federal Highway on 3.51 acres in the Infill Planned Unit Development (IPUD) zoning district. Applicant: Manuel Martinez, The Altman Companies, Inc. Kathleen Zeitler, Planner, advised she had emailed the applicant to remind him of the meeting, but had received no response. The applicant was not present. The item was "housekeeping" in nature, with no conditions of approval. It would be up to the Board whether to proceed or table the item. Ms. Jaskiewicz suggested moving forward, so that it would not be necessary to add this item to the agenda for a subsequent meeting. Ms. Zeitler advised that no objections had been received from any of the reviewers, nor had any telephone calls or inquiries been received regarding the abandonment from any parties who had received the notice. Chair Saberson requested a brief summary be provided. 2 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 23, 2010 Ms. Zeitler noted the applicant requested a platted utility easement at the Peninsula be abandoned. The Peninsula had been approved for 30 townhouse units and 40 condominium units. The project was partially completed and as a result of foreclosure, had recently been purchased. Further construction is planned to complete the project. The location map indicated the property consisted of 3.5 acres and was located at the City's northern limits. The Gateway Marina in the Town of Hypoluxo is located to the north and to the south is vacant land approved for the Costa del Mar Yacht Club. The Intracoastal is located to the east and Federal Highway and the Florida East Coast Railroad (FEC) tracks to the west. The plat indicates the utility easement was platted and dedicated to the City for public purpose use. The easement is 10 feet wide, containing approximately 1,422 square feet and runs in a north/south direction, curving to the east. The utility easement was not shown on the surveyor the site plan submitted, but was included on the plat. The utility easement is not new, as previously indicated in the staff report, and was found to be a pre-existing easement for a lift station that served the mobile home park previously located on the property. The easement lies within the platted parcels "G" and "J" on the east side of the property and has no public utilities now, nor are any anticipated in the future. The five-story condominium building encroaches on the easement. The owners of the properties within 400 feet had been noticed, and a legal advertisement had been placed in the newspaper. No objections had been received from staff consisting of Engineering, Utilities and Planning and Zoning, nor the private utility companies consisting of FP&L, AT&T, Florida Public Utilities and Comcast. Staff recommended the utility easement be abandoned and was not recommending any conditions of approval based on its analysis. Motion Ms. Grcevic moved to approve staff's recommendation. Ms. Killian seconded the motion that passed unanimously. B.1. Adult Entertainment CCDRV 10-008) - Approve Code review to amend the Code of Ordinances, Part II, Chapters 3 and 13, and Part III, Chapter 2 to update regulations and provisions applicable to adult entertainment uses, involving terms and definitions, revised distance separations, alcohol sales restriction, permitted and conditional use status, and operational requirements. Applicant: City-initiated. 3 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 23, 2010 Mr. Rumpf indicated that on February 2nd, the City Commission, in reacting to the closing of the third and last adult entertainment business in the City, had directed staff to review the City's' adult entertainment regulations. A moratorium had been established, and a Notice of Intent to the public was issued indicating that a zoning study would be conducted. It was noted new or like businesses could not be approved or processed in the City during the moratorium. The studies have been recognized by the courts as a defensible mechanism to protect the City and its zoning regulations. Some interests being considered in the study compete with each other and need to be balanced. With regard to zoning and police powers, the City has a right to implement zoning regulations to protect the safety, health, welfare and morals of a community. In conflict with that is a constitutional protection of rights, or in this instance, First Amendment rights that have been recognized by the U.S. Supreme Court defending Free Speech. Under court rule and findings, the City cannot zone out adult entertainment businesses protected under Free Speech rights, but can regulate what is referred to and recognized as secondary effects, or the negative impacts upon a community. With regard to community values, any impressions, opinions or image could be potentially affected by adult entertainment businesses. First Amendment principles are referred to as regulatory latitude and boundaries. Mr. Rumpf reviewed a series of cases that helped define the manner in which adult entertainment businesses are recognized and the rights had by the City to recognize them. Many of the cases reemphasize the rights of nude entertainment and exotic dancing to be protected under First Amendment rights. In some cases, alcohol could be prohibited from establishments. It is significant that nudity alone is not necessarily what is being recognized under First Amendment rights. Exotic dancing and nude entertainment are also relevant. The First Amendment protects sexual expression but it cannot be obscene or involve children. Adult entertainment businesses cannot be zoned out or effectively precluded. The City can regulate the secondary effects, but not necessarily the content. Distance standards or disbursal regulations have been upheld. Alcohol prohibition was upheld based upon the 21st Amendment which allows states to regulate the location for the sale of alcohol. Objective evidence and documentation are important but do not necessarily have to be based upon local findings and data. The courts have not addressed the issue of land parcels to be used to accommodate adult businesses. There is no systematic way of determining this. The courts have 4 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 23, 2010 found that adult entertainment businesses must fend for themselves in the real estate market and in areas that are eligible. A zoning system is necessary which accommodates these uses. The City must have a reasonable approval process that is not more onerous on an adult business than on any other business. Specified time limits and an application process are necessary. In good zoning practices, certain uses should be permitted in a location while other uses could be conditional. Licensing requirements have been upheld. Conditions for issuing a business license require the business be operated in a certain manner. The conditions cannot be onerous and must be reasonable with defined processing times. Staff had collected police data in the City over a four-year period, comparing two adult businesses and two bars in the City which did not provide adult entertainment. Based on individual crime categories, the adult entertainment business exceeded the call data for the other types of uses. In one of the cases, the drug calls were identical. Calls for service and arrests for adult businesses exceeded those for the conventional bars. For example, 674 calls were made for the adult entertainment business versus 156 combined calls for the bars and 64 arrests at the adult businesses versus 14 arrests combined for both bars used in the comparison. It would not be the City's intent that its regulations be supported solely on the data comparison. As mentioned earlier, the courts recognize applicable studies from other jurisdictions and other data which may not necessarily be based on the City of Boynton Beach. In 1980, the City's regulations were amended for the first time to include adult entertainment businesses. This included the definition, zoning allowance and a separation standard of 1,500 feet from churches and schools. The distance separation was modified and reduced to 1,000 feet. In addition to churches and schools, separation distances also apply to residential, public use and recreation zoning districts. Permitted uses were increased to not only include the C-4 zoning district but also the C- 3 district, the M-l zoning regulations and the Planned Industrial Development (PID) zoning district. Some of the documents found during the original hearings reflected that the regulations were intended to be in compliance with regulations of the Supreme Court. Based upon the separation standards in the zoning districts, 27 parcels were opened within the City where adult entertainment businesses would be allowed. Three non-conforming adult entertainment businesses existed at that time. Since that time, the non-conforming uses have closed, leaving the City without any such uses. This is good from certain perspectives as many view non-conforming uses as undesirable. However, when non-conforming uses close, a city might be viewed as being overly 5 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 23, 2010 restrictive, which might not be defensible, causing a city to become a target. Boynton Beach experienced this when it banned billboards within the City. A good deal of land in the City, especially in industrial zoning districts and Quantum Park, has been converted to residential uses. This places residential properties and zoning districts more within the City, further limiting areas which at one time may have been eligible for adult businesses. The City had reduced locations of three properties from the 27 parcels. The existing conditions map shows two areas which have eligible properties outside the buffer areas of 1,000 feet, also taking into account the eligible zoning districts. The courts have not established a commonly-recognized system for calculating the total number of sites that should be available for such businesses that are protected under First Amendment rights. The area shown would accommodate two businesses at most. Statistics are not very good given competing land uses, available land, cost of land, or other location criteria. This is not seen as being an acceptable condition. It is proposed that the distance separation be reduced to 750 feet and that the City recognize the C-16 Canal and the 1-95 right-of-way as halting the extension of the buffer zones. This would open up a new area on the north end which is industrially- zoned property and includes two parcels completely outside the buffer areas. To be eligible, a parcel must be totally outside the buffer areas. Area 1 on the map is referred to as the M-l zone on the north end of the City, north of Gateway Boulevard and east of High Ridge Road. This area is undeveloped and contains a billboard at the southern end. Area 2, the southeast quadrant of Quantum Park, contains two parcels owned by Publix, a vacant building and multiple smaller parcels at the southern end. When considering the total number or businesses, these areas would accommodate one adult entertainment business or possibly two at the remote ends. Area 3 dissects the Wal- Mart property, Sports Authority, restaurants, Dick's Sporting Goods and the Mall property with the exception of J.e. Penney's. Parcels that are open and eligible would be the old Sonny's BBQ, Steak N Shake and the utility parcel owned by Florida Gas. With regard to Area 4, the only parcel that is totally outside the buffer area is a segment of a condominium industrial building. Those parcels, if recognized as such, are within the eligible area outside the buffer areas. The last area to the south does not totally include a whole parcel, and therefore does not have any eligible parcels included. Other regulations, including alcohol prohibition, are being proposed in addition to the reduction in the separation distance. Delray Beach and West Palm Beach have had this provision in their regulations for some time, and it has been recognized by the courts as being defensible in most cases. Not all court cases reviewed by staff experienced the same outcomes. For the most part, the Supreme Court has ruled fairly consistently, and Boynton Beach has based its regulations, including alcohol prohibition, on these 6 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 23,2010 rulings. While some of the lower courts have had problems with alcohol prohibition, the Supreme Court: has generally supported the regulations prohibiting alcohol. As to operation requirements, the buffer applies to a distance separation between a patron in an adult entertainment establishment and the nude entertainer. This would prevent interactivity, transfer of unhealthy things and the promotion of prurient thoughts. Nudity is limited to the stage. The courts have not indicated that nudity itself is worthy of protection of the First Amendment rights. The minimum stage height of 18 inches provides separation from the tables and floor space as well as the stage. Minimum room sizes prevent peep rooms and private rooms. Terms not included in the Code need to be supported by proper terms and definitions such as alcoholic beverage establishments, nudity and partial nudity. Additionally, "cleanups" are also necessary. As previously indicated, the first zoning district which accommodated adult businesses did so in a conditional manner. When C-3, Planned Industrial Development (PID) and M-l were added, they were added as permitted uses. It is the City's intent to convert C-3, C-4 and the Planned Industrial Development (PID) to conditional status while maintaining M-l, the most intense zoning district, as a permitted status. As a result of the expiring moratorium and the time constraint in the date and location of the meetings, the first reading and public hearing on this item was held prior to the Board's review. The second and final public hearing will occur at the December 7th meeting. The City Attorney believes in minimal conservative use of moratoriums and the public hearings were scheduled to minimally extend the moratorium. The moratorium can continue to be extended provided it is based on good reason, is not used as a stall tactic, is not overly extensive or is not justified based upon the work to be done. It was questioned why the distance separation was decreased to 750 feet rather than leaving it at 1,000 feet and excluding some of the spots currently included as available for that use. Mr. Rumpf explained the decrease had been used to balance the separation, zoning districts and other provisions to come up with an optimal location and number. It was suggested the adult businesses be restricted to industrial areas only. In this manner, possibly one or two spots would only be available, and the area would be less enticing to potential developers. Mr. Rumpf agreed the suggestion was valid and could be a possible option. He added the more such businesses are regulated, the more defensible they become. If the City can justify adult businesses not being in any commercial area, that might be defensible. However, the proposal before the Board was intended to be more equitable. 7 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 23,2010 It was questioned whether the City would more likely be subject to a lawsuit if the distance separation were increased from 750 feet to 1,000 feet. Mr. Rumpf explained that option had been considered overly restrictive by him, Attorney Jim Cherof and Development Director Quintus Greene. It was suggested the City take another look at the concentrated-area approach, keeping Delray Beach in mind. It was questioned whether a concentration of the sites in one location would meet court requirements. Attorney Alexander responded that while one could never be certain, there are situations where the courts have looked at the number of parcels as opposed to the location of the parcels, and as long as the City had sufficient parcels comparable to its population, this should be acceptable. It was also suggested that prior to considering the concentrated-area approach, a study be undertaken to determine the crime rate and how busy the police would be if adult businesses were encouraged to locate to a concentrated area. Mr. Rumpf pointed out that if the idea were revisited, a separation standard would be considered to allow for some concentration, but would have limits. Security issues should be of concern to the establishments. Mr. Rumpf reiterated the proposals were drafted to accommodate the adult businesses in a fashion that allowed them to operate in the manner protected by the Supreme Court. Chair Saberson thanked Mr. Rumpf for the presentation and balanced approach. He noted the Board would make a recommendation to the City Commission with regard to the proposed ordinance. With regard to the locations of the adult businesses, Mr. Rumpf reiterated that the current proposal provided for five pockets with 18 properties. It was suggested staff "go back to the drawing board." Attorney Alexander suggested a motion be made asking staff to draft alternative language to the current ordinance, providing staff with the parameters to be included. Mr. Rumpf asserted staff would do its best by the next City Commission meeting to consider the Board's recommendations along with staff's recommendations with regard the proposal to be brought before the Commission. Chair Saberson pointed out that if the Board wanted staff to consider alternative language, specifics should be provided such as: . Whether the adult businesses should be kept out of commercial zoning districts; 8 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 23,2010 . Whether the concentrated-area approach should be considered; or . Whether distance separations between establishments and residential districts as well as between the establishments should be considered. Ms. Jaskiewizc felt that the regulations set forth in the staff report, including the consumption of alcohol, should be included in the Board's recommendations. She favored a concentrated-area approach and opposed the spreading out of locations in various spots in the City. Ms. Grcevic held that the courts have continued to protect the adult businesses and there would be little the City could do to fight them. One's inclination with regard to businesses of this nature would fall into the realm of personal opinions. An inquiry was made as to which of the approaches, concentrated or spread out, Mr. Rumpf and staff felt would cause the least amount of disturbance to the City. Mr. Rumpf replied the issue had not been addressed directly. Another objective was to alter the existing regulations and effects as minimally as possible. Historically, the regulations have been disbursal based and the zoning districts have been varied. The question arose as to why this issue came up for the Commission's review at this time. Mr. Rumpf replied the issue surfaced as a result of: . The discontinuation of the operation of the existing adult entertainment businesses in the City; . The condition of the City's current regulations and where the businesses could be located; and . The issue had not been revisited for more than 10 years. It was staff's position that the adult businesses no longer located in the City could not return based upon the current regulations. It was noted that if the spots were not made available, the City could potentially be subject to litigation. However, it would not be necessary that the spots be spread all over the City. It was questioned whether it was required that the proposal go directly from the Planning and Development Board to the City Commission or whether it could be revamped and returned to the Planning and Development Board. Mr. Rumpf advised that the Commission, at its December ih meeting, will have the option to further extend the moratorium or to process changes. 9 Meeting Minutes Planning and Development Board Boynton Beach, Florida November 23, 2010 Motion Ms. Killian moved that the Commission extend the moratorium on the Adult Entertainment (CDRV 10-008) for further review so that the Board can (1) look at the way Delray Beach does it within a specific area, and (2) to consider excluding the C-3 and PCD zoning areas and limit it to M-l and PID. Ms. Jaskiewicz seconded the motion that passed unanimously. 8. Other None. 9. Comments by members None. 10. Adjournment Motion Ms. Jaskiewicz moved to adjourn. Mr. Timm seconded the motion that passed unanimously. The meeting adjourned at 8:05 p.m. ,~~ OL_ Stephanie D. Kahn Recording Secretary 11/29/10 10