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Minutes 05-23-16 Canal MaintMINUTES OF THE CANAL MAINTENANCE MEETING HELD AT THE BOYNTON BEACH CITY LIBRARY PROGRAM ROOM, 218 N. SEACREST BOULEVARD, BOYNTON BEACH, FLORIDA, ON MONDAY, MAY 23, 2016, AT 3:00 P.M. Present: Colin Groff, Assistant City Manager - Services; Utilities Director Jim Cherof, City Attorney Christina Romelus, Commissioner Colin Groff, Assistant City Manager, - Services: Utilities Director, opened the meeting at 3:08 p.m. Commissioner Romelus thanked all for attending the meeting. She had met with residents of Lake Drive and Diane Drive and requested the meeting because of the residents' concerns about the canals on their streets. Mr. Groff explained the affected areas are Diane Drive and Lake Drive and the areas by SW 32nd through SW 36 Avenue. There are five canals and the City has 26 private canals. Prior to the creation of the plats containing the subject canals, the City adopted Ordinance 69 -4 which did not allow canals to be subdivided and placed in the City's name after the subdivision was completed. The responsibility for the maintenance of lakes, canals or waterways in that plat had to be included on the plat and it was the duty of the landowners to keep the water free of weeds, hyacinth, cloggage or other debris or noxious material. The language on the plat was also conveyed to the owner at the time of purchase, but it did not specify how that was to occur. Since 1970, staff started to intermittently perform canal maintenance all over, not realizing it was prohibited. In 2009, there was a major problem with weeds and growth on private canals and the Commission asked staff to investigate the matter. In October 2009, staff completed a study that looked at every canal including title information, property ownership, plats and other information and compiled a report. Mr. Groff explained based on the title and plat information conveyed to each property owner, it is very clear the individual property owners are responsible for the complete property which includes the canal. Some canals are cut in half and owned by two owners, and others own the entire canal. Based on the report, it was determined the Lake Shore Haven and four Lake Eden canals were privately owned. The City Commission adopted the report and decided to charge a surcharge on the stormwater fee of twenty -five cents a month to fund an aggressive weed control program for five years on all canals city -wide. The program started in 2010 and the fee was collected for two years of a five -year program. The program also required all private property owners who owned the canals to sign a five -year temporary easement agreement to allow the City access to the canals and maintain them. The Commission approved the public expenditure of money on private canals and maintained them for Meeting Minutes Canal Maintenance Workshop Boynton Beach, Florida May 23, 2016 five years. In October 2015, the issue arose and by December 2015, staff determined the Florida Constitution, Article 7, Section 10, forbids government from spending money to improve private property unless there is a public need; only private property improvements that would be incidental to the public need. The City no longer had the legal authority to maintain a private canal and ceased the maintenance. Mr. Groff acknowledged the City did not communicate that information and emphasized he is required to follow State and City laws. Unless there is a court order, the City had to cease and desist. The City was aware the weeds started to grow and vegetation from other areas floated into the canals. He explained if a road is constructed and the sidewalk is on the property line, the City has to sod behind the sidewalk, which is private property, but the City has no ownership over any of the canals, Lake Eden, or the large canals that split the areas. Those water bodies are controlled by the Lake Worth Drainage District (LWDD), and a combination of LWDD and the County. The private developer who developed the area also still has a partial ownership of part of Lake Eden and some other areas. The City had engineers review the canals which supply drainage for the surrounding area and a few of the adjacent properties, including City maintained roads. The aesthetics and navigability of the canals did not restrict their use for drainage and water will flow out of the canal, no matter how full they are. Staff also determined there were no potential flood issues and there does not seem to be a public need to keep the canals free of vegetation, but the City continues to offer to work with residents to develop contracts for vegetation management. The City Manager asked Mr. Groff to speak with the contractor the City uses to maintain publically -owned canals to look at the maintenance cost. The southern two Lake Eden residential areas signed a contract with Aqauagenics, the City's contractor for treatment. Staff listed the budgetary costs for heavy vegetation, which would be higher than would be bid. The yearly price would be $3,600 per year for the two northern Lake Eden canals and $3,600 for the Lake Shore Haven canal which would be about $100 a year if the residents chose to use those contracts. Mr. Groff reiterated staff would continue to work with property owners to assist them with the technical aspects of developing a contract and would work with the LWDD and Palm Beach County to ensure they maintain the waterways and the vegetation, which is Lake Eden and the main canal between the two neighborhoods. Commissioner Romelus requested Mr. Groff speak about the culvert. Mr. Groff explained a canal on Diane Drive and Lake Drive has a culvert on the north end and a bridge to the south. A question was posed if the culvert is needed and if it would cause a problem if blocked. Mr. Groff explained from an engineering and hydrologic standpoint, the culvert is not needed for flood control and the elevation of the canal is controlled by the water level. Mr. Groff noted it has open discharge. The City 2 Meeting Minutes Canal Maintenance Workshop Boynton Beach, Florida May 23, 2016 believes, from past documents, the culvert was to provide water circulation. Weeds block the culvert, resulting in aesthetic issues, but they do not cause hydrologic problems. Beverly Agee, 832 SW 33 Place, advised she is an 18 -year resident and she purchased on the canal because it is a quiet neighborhood and there was no homeowners association (HOA). She commented, since then, the canals were treated by the City for different reasons at different times. Ms. Agee questioned if the canal was private and noted the plats and some canal activities and commented the canals are used by the public and are not totally private. They are public because the public has access. Ms. Agee explained the City was positive in its reaction to the neighborhood during the past 18 years and the neighborhood has worked with the City on many projects. She agreed the City failed to communicate the decision not to maintain the canal, but pointed out the City maintained the canals for 18 years or longer and it is now egregious and it is the fault of the City. People work from home and see the activity in and out of the canals. If they had been notified, the residents could have already addressed the matter. Ms. Agee asserted the canals are in terrible condition and the City must take responsibility for it. The residents were surprised, frustrated and angry. She agreed all should work together, but it was important the City understand why people are so upset. The City had a duty to advise residents about the change nine months ago. Mike Foelster, 3604 Diane Drive, commented the lack of communication has caused the problem to worsen and commented the City's position indicating the canals were now the neighborhoods problem would not work. Typically there would be a HOA in place who would have an assessment. Mr. Foelster explained most residents purchased because they did not want a HOA and there were very few deed restrictions. He agreed they could discuss working together for a solution the City spearheads, but pointed out the situation is already affecting property values. If not corrected, there will be longstanding issues. Jeff Shelnut, Marine Biologist, with post graduate work in coastal zone management, 752 SW 33 Place, explained environmental stress was created because the residents were not notified. The lake system is one system and the issue needs to be addressed in unison. Mr. Shelnut commented the lake is a mesotrophic system with a very stable, mature environment with lots of wildlife, and what is wanted for environmental and recreational uses. All systems move in a succession from a brand new, to a stable, to a dead system and in order to preserve the ecosystem, the systems have to be managed. There are federal and state mandates regarding nuisance, exotic, aquatic and animals invading the natural environment and Mr. Shelnut explained wildlife is on the endangered species list because of the invasive conditions. The first invasive was a hydrilla plant that grows from the bottom up at a rate of one inch per shoot per day and it overtakes the natural environment. Initially there was an increase in oxygen in the canals. There was more coverage for wildlife to be able to 3 Meeting Minutes Canal Maintenance Workshop Boynton Beach, Florida May 23, 2016 breath. The water lettuce and hyacinths moved in which was initially good because there was more reproduction. Invertebrates on up the chain started coming in. When the water lilies, water lettuce and hyacinth took over, multiple things took place. Mr. Shelnut advised of a duck with her ducklings, noting there was one less duck per day because they were stuck in the vegetation and he had observed the duckling panicking. The hydrilla plant covers the water and blocks the light at the bottom of the canal and reduces the oxygen level. When the hydrilla dies, the oxygen level plummets. The canal starts losing all the wildlife from the bottom to the top and it clogs the canal, affecting water flow. Mr. Shelnut commented the canals do not have great water flow and the canal changes to a eutrophic system which is a dead system. Mr. Shelnut commented this should never have happened because preventative control must be ongoing. When the vegetation is overgrown, an environmental nightmare is created and it endangers the rest of the system. He agreed the City should have contacted them earlier to discuss the issue with clean canals. Attorney Cherof asked Mr. Shelnut to speak about fertilizer use by the residents along the canal and the impact on the water quality and growth of the vegetation. Mr. Shelnut explained fertilization by anyone would cause excessive vegetative growth. This was experienced by run -off from Big Sugar. Historically, Mr. Shelnut has not seen a detrimental effect to the environment visually, as long as preventative controls were in place. Attorney Cherof advised when the City addressed the issue five years ago through the five -year maintenance program, the City had received information from the LWDD about the use of fertilizer along the canals city -wide, and the LWDD requested the City start regulating the use of fertilizer. He asked if that issue was something the City should look at or not. Mr. Shelnut responded if regulating the canal and the use of fertilizer, it must be done across the County due to run off which will end up in the lake and canal systems. Gary Fishman, 3504 Diane Drive, explained he moved to the neighborhood knowing there was no HOA and he had worked on various neighborhood issues including the canal weeds. He has lived in the neighborhood for 25 years and there has been flooding. He has seen over eight feet of rise in the canal, spilling over his boat dock and the seawall and it climbs up the deck. Mr. Fishman explained the culvert does drain, but he likened the culvert to a clogged commode. He commented the culvert gets clogged and professionals contended the culvert was way too small. He had photographs. Mr. Fishman noted canals serve numerous public functions. Canals drain and take the weeds from Lake Ida; it drains Diane and S. Lake Drives and 1 -95. The canals provide great fishing for everyone, recreational boating and habitats for wildlife. He asserted the canal was not built for waterfront property. The canal was built for recreational purposes for all. Mr. Fishman explained there are no signs and the canal has never been a private canal. The canal serves the public, and the residents cannot be expected to pay the expenses. The canal is part of a waterway that has taken on the burden of weeds that flow in from waters from the LWDD, the SFWMD, and Palm Beach County who controls 0 Meeting Minutes Canal Maintenance Workshop Boynton Beach, Florida May 23, 2016 Lake Ida, Florida, the Federal Government and the City. The canals, especially on Lake Ida and S. Lake and Diane Drives serve a huge purpose. He requested the City address the culvert, and reiterated the culvert is too small to withstand flows from 1 -95, S. Lake Drive and Diane Drive. Mr. Fishman explained he could prove all of his statements and wanted the City to take full responsibility. He did not believe the residents should be responsible for taking care of the canal and the City must resolve the matter expeditiously because it harms the citizens. Mr. Fishman indicated the canals are part of the same system and he did not think it was right to isolate Diane Drive and other areas and institute a charge. He contended the canal was a public canal and all the public should pay for it. He thought what was instituted five years ago should be reinstated in perpetuity. Robert Gallak, 3724 Diane Drive, explained there is a flow problem and he did not think hyacinths were the problem. The plants bottle neck in the culvert, grow prolifically and kill wildlife. Hyacinth is on top of the cabbage weeds. He explained if the City stopped any boater and asked them if that canal was a private canal, they would say it is a public canal. Everyone knows the canals are a public use, even though property owners own them. He wanted the City to continue to maintain them. James Pearce, 702 SW 36 Avenue, explained he was not directly affected and appreciated the meeting, but was disappointed that key players from the LWDD and the County were not present and it would be difficult for all to come to some kind of conclusion without the key players. The City did a good job with the canals in the past, but neighbors were saying the owners were not the only ones using the canals. Mayor Grant arrived at 3:50 p.m. Mr. Pearce counted at least 10 fisherman and five jet skis on the canal over the weekend and sometimes people look to see what is available. He was disappointed in the City engineers saying there are no water flow issues. He questioned why there were weed issues if there were no water flow issues. Mr. Shelnut thought there were water flow issues, and commented the elevation of the water canal, even if full, will seek its natural level with open discharge at the end by the bridge. The elevations of Lake Eden or Lake Ida and the canals would be the same. Mr. Shelnut advised flow is a problem and the canal can flood along with the entire canal system and all would have the same flood elevation. The weeds do not directly affect the flood elevation; the size of the water systems connected and the level of the weir that the LWDD or SFWMD sets at the time of a water flow event would. Mr. Pearce explained he enjoys boating. He could not take his boat out on Saturday morning because an island of weeds broke loose from Lake Eden was in the canal. He pulled out 1,000 pounds of weeds. Watching the flow in the canal after removing the hydrilla showed a dramatic change. The situation was affecting everything. His home Meeting Minutes Canal Maintenance Workshop Boynton Beach, Florida May 23, 2016 fronts Lake Eden on the south side and he thought Delray Beach should be involved because they control Lake Eden. He thought the meeting was a wonderful start, but the key players needed to be present for next time. He believed the canals are public. Attorney Cherof commented there are other governmental entities as part of the process. City staff worked very hard over the years with the LWDD and SFWMD in an attempt to have them step up their participation to deal with the flow of weeds from the lakes to canals. It was not the City's intent to bring them in, deflect to them and assign blame. The residents are from Boynton Beach and the City represents their interests. Attorney Cherof thought it seemed premature to do so and he accepted responsibility. The City has spoken with them about what they think their responsibility is. The meeting was to talk to residents of Boynton Beach. Mr. Pearce wanted to know what was going to happen next and what the LWDD would do. He has been pulling weeds for six months and advised he pays a lot of money to live on a canal. Jim Hager, 3618 Diane Drive, a 28 -year resident, did not believe the City about the culvert and thought a bigger culvert would help vegetation float through as it comes from Lake Ida. If the canals are private, he asked if a gate contractor could block it off and remote control to keep weeds in Lake Ida. Attorney Cherof explained he did not know a contractor, but the City contemplated the issue on an administrative and legal level. The City believes the canals are private and private property owners have certain rights. If a no trespassing sign was posted along the canal system, the Police Department could enforce it. Attorney Cherof advised he received a number of calls about doing something to keep people out, and the City responded it was private property and they could do what they want. The issue had been discussed. Mr. Hager explained this was different from what LWDD indicated years ago. Attorney Cherof explained that was not the City's position. Mr. Groff explained there were barriers and booms to keep hyacinth out of canals and other private homeowners use them in other areas of the City such as Leisureville. Mr. Hager commented booms mess up fishing, but they are privately owned. Mr. Hager thought they can spray. Ruth Borlie, 931 SW 33 Place, commented she moved to Boynton Beach 30 years ago and there is no fresh water fishing in Boca unless you paid to live on a lake. When they moved, they were told they owned the land on the other side, but they were not told they had to maintain the canal until several years ago when the canal was blocked and it was sprayed, one time by three different companies. Ms. Borlie explained the area was beautiful and they pay significant taxes to live on the canal. She thought the City did nothing to make it a jewel. Shannon Severson, 3424 Diane Drive, agreed with the prior comments. At the beginning of the meeting, it was announced this would be the meeting where all would be heard and consensus would be found. She noted this was the end of the dialogue between residents and the City, and all the players were not present and that conversation needed to take place. She has two neighbors that are pregnant. The canals are the perfect breeding ground for Zika and other mosquito viruses. She [:1 Meeting Minutes Canal Maintenance Workshop Boynton Beach, Florida May 23, 2016 thought the health hazards must be brought under control and then address the management of canals. Tom Goddard, 3545 S. Lake Drive, pointed out if the canals continue in their present state into August or September, there will be a crisis. He asked about the next steps and when the canals would be cleaned up. Attorney Cherof advised the next step is to report back to the City Commission and City Manager. Attorney Cherof noted the monetary impact to participate in a clean -up program was $97.30 per year, which was insignificant. He asked for consensus to understand if individuals were prepared to pay a portion. Stephanie Blais, 3408 Diane Drive, commented the price listed was to treat what the City allowed to get out of control, not just maintenance. She requested the City provide an example of the maintenance price that the City paid for five years for just the spraying, and the City take the responsibility for the canal's present conditions. She advised it was a health hazard and announced there are legal ramifications if a resolution was not found. Mr. Fishman requested a show of hands from those present who felt the City should take responsibility. He commented he appreciated the meeting, but if there is a flow problem and it was always a public canal, they should use the Statute and treat it. Attorney Cherof explained he was not requesting a vote whether the residents thought the City was responsible, his request was whether some, all, or none of the residents would participate in a monetary payment. Ms. Agee explained the problem was the City addressed the canal for many years and then did not notify the residents and the situation got bad. An unidentified man explained he pays $11,000 in taxes to live on a canal, the City benefits from the tax monies and the City should pay the $97.30. Attorney Cherof commented he heard unanimous support of that position and that is what he will report back to the City Commission. Mark Willens, 932 SW 34 Avenue, noted the City discussed the way the five -year contract was paid from 2009 to 2014 at the beginning of the meeting and the City Commission agreed to charge 25 cents per month from the City -wide Stormwater Utility Surcharge. It was a City -wide program. The City Commission voted two years of the fee and then voted to do five years of the program. Ms. Agee explained in 2015, she got a letter, which she returned, asking her to extend her license, allowing the City to clean the canal. Mr. Groff did not recall sending the letter. Mr. Fishman noted there is an all new Commission and he hoped the Commissioners, after reviewing the minutes, will see the community's point of view. 7 Meeting Minutes Canal Maintenance Workshop Boynton Beach, Florida May 23, 2016 Mr. Willens thought the issue of whether the canals were public or private was solved as there are bass fisherman and wave runners in the canal all the time. Yesterday, he wanted to take his boat out and he dug out weeds for hours. He cleaned the propellers and the back of the house completely and it was totally clogged again. He asserted the area was a crown jewel and the City should fix it. If the issue is residents need to be billed $100 on their water bills, they should vote on it and get it resolved. He thought the canals were disgusting. Mr. Shelnut explained the City was shooting itself in the foot because ad valorem taxes are dropping because property values on the canal were dropping, which will spill over to all homes. The City will lose hundreds of thousands of dollars in ad valorem taxes and the City will now be cutting programs for everyone. Mr. Groff appreciated the comments and requested all sign in. There will be a discussion and a consensus of where the neighborhood stands and the City will try to find a solution. He does not have the legal authority to spend the money on the canals. There will be meetings with individual Commissioners and the City Manager to decide what path to take. Staff will communicate with all to advise how it is going. Commissioner Romelus thanked all for voicing their concerns on the record. The City was hearing what the residents were saying and advised this was the first step in the process. The meeting ended at 4:15 p.m. Catherine Cherry Minutes Specialist 053116 E:a