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Minutes 09-17-90MINUTES OF SPECIAL MEETING OF PLANNING AND ZONING BOARD HELD IN COMMISSION CHAMBERS, CITY HALL~ BOYNTON BEACH, FLORIDA, MONDAY, SEPTEMBER 17, 1990 AT 8:00 P.M. PRESENT Maurice Rosenstock, Chairman Jose' Aguila Nathan Collins Cynthia Greenhouse Murray Howard Daniel E. Richter David Beasley, Alternate (Voting) ABSENT Jim Golden, Interim Planning Director Tambri Eeyden, Assistant City Planner Jim Cherof, City Attorney Gary Lehnertz, Vice Chairman Chairman Rosenstock called the meeting to order at 8:15 P.M. This meeting was delayed because of a Community Appearance Board meeting held immediately prior. Following the Pledge of Allegiance to the Flag, Chairman Rosenstock acknowledged the presence in the audience of Vice Mayor Lee Wische, Commissioner Arline Weiner, Scott Miller, City Manager and former Mayor Carl Zimmerman. AGENDA APPROVAL Mr. Richter moved to approve the agenda as proposed, seconded by Mr. Collins. The motion carried 7-0. APPROVAL OF MINUTES Approval of the regular meeting Minutes will take place at the next regular meeting of the Board. COMMUNICATIONS AND ANNOUNCEMENTS None. OLD BUSINESS A. SUBDIVISIONS PRELIMINARY PLAT (Postponed on September 11, 1990) Project Name: Agent: Owner: Location: Woolbright Place Plat No. 1 Stanley Consultants Tradewinds Development Corp. North of Woolbright Road, between the L.W.D.D. E-4 Canal and the Seaboard Railroad riqht-of-way MINUTES - SPECIAL PLANNING & ZONING BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1990 Description: Request for approval of the common ele- ment landscape plan, construction drawings and preliminary plat which pro- vide for the construction of infrastruc- ture improvements to serve a previously approved Planned Unit Development. Jim Golden, Interim Planning Director pointed out revised comments had been provided the Board based on TRB review. Revised memorandums had been received from Engineering, Utilities, Police, Planning and the City Forester. Two departments had not revised their comments, The Building Dept.'s comments had been addressed, therefore their memo had been deleted. The Recreation & Parks memorandum remained the same. A proposed Agreement addressing the City park site had been distributed prior to the meeting. Several Board members were uncomfortable with the prospect of reviewing an impor- tant 6 page legal Agreement when it had just been distri- butedo Attorney Martin Perry was asked if he agreed with the staff comments. Attorney Perry indicated he was agreeable to all staff comments with the exception of two or three. Relative to the first area of disagreement, Attorney Perry explained the applicant objected to City staff's recommen- da.t~on that guardrails be placed along the entire length of the roadway. Attorney Perry stated the understanding reached at the recent TRB meeting in connection with the guardrail was that the applicant would be governed by what- ever the appropriate technical data required. The City reserved the right to make a recommendation, notwithstanding the technical data. Attorney Perry remarked the technical data showed they were providing guardrails in areas where it clearly was required. There was a question as to whether or not the guardrail was required the entire length. Attorney Pe~ry stated tke governing data indicated the minimum width requirement to the beginning of the slope from the edge of the pavement was 50'. If you have 50' or exceed it, gua~dr~ils ane not required by the technical data. Attorney Per~y indicated they have 53' and feel that is adequate to meet the Code requirements. The second area Of disagreement dealt with the industrial access road.: kttorney Perry stated the applicant maintained the original Agreement between Tradewinds and the City in October, 1986, only required them to set aside the right-of- way for the road. Staff maintained the City had to make a finding. If the City were to find the applicant is not legally obligated to build the road, then the applicant MINUTES - SPECIAL PLANNING & ZONING BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1990 would have to apply for a variance to the Subdivision Regulations. Attorney Perry did not feel they were obli- gated to build the road and indicated he would pursue some form of determination by the Court. In the interim, he stated the applicant would post a bond for the cost of building the road, at grade, to the property line, without consideration of any type of railroad crossing. He noted the applicant had no idea if, when or what type of railroad crossing there would be. Attorney Perry referred to Mr. Winchester's attorney believing Tradewinds is required to build the road. Mr. Winchester was prepared to go to Court if the City decided Tradewinds was not obligated. In view of the circumstances, Attorney Perry thought the easy solution if it ended up going to Court, was to have the two parties involved, other than the governing body, agree that whoever is the pre- vailing party is entitled to recover costs and attorney fe~s. Attorney Perry further explained the history of the access road issue. AttOrney Perry pointed out the Comprehensive Plan amendment application filed to place the industrial access road where it is was filed by Elsie Winchester on property that belongs to Tradewinds. Attorney Perry remarked in order to get this railroad crossing in, the other crossing would need to be closed. He believed the crossing would really serve no one but Elsie Winchester. It would not benefit Tradewinds in any way. Attorney Perry didn't feel it was ever intended that Tradewinds build the road but rather only set the right-of-way aside. There may be legal requirements that say Tradewinds has to request a variance. Attorney Perry indicated that could be done before final plat approval. If necessary, they were prepared to do that. The third area of concern had to do with the park. Attorney Perry had prepared the document which was before the Board and had faxed it to Attorney ~nerof. Attorney Perry remarked how the realignment of S.W. 8th Street had impacted the park area. He explained the contents of the proposed A~reement. The Agreement was that Tradewinds would dedicate the most southerly 3.5 acres of land to the City as a park. There was a requirement that Tradewinds come up with another one acre. The discussion centered around Tradewinds doing public improvements of a value equivalent to the value of one acre of PUD park land. This led into contemplation of space for the Dick Webber Child Abuse Center and 400 sq. ft. for restrooms or a meeting room for City residents' use. Attorney Perry didn't feel the Agreement was complex in any way. MINUTES - SPECIAL PLANNING & ZONING BOARD MEETING BOYNTON BEACh, FLORIDA SEPTEMBER 17, 1990 Attorney Perry reiterated Tradewinds would give the 3.5 acres and file an application for commercial zoning on the front two acres. If approved, Tradewinds would take the remaining ½ acre that lies in between and construct the Dick Webber facility and the 400 sq. ft. of other facilities. If not approved, Tradewinds would get the benefit of the whole six acres density wise. The remaining 2~ acres would be available for Tradewinds then for density. Tradewinds would agree to construct public facilities equivalent to the value of one acre of residential land. The City would have to determine what public facilities and where they should be located. Discussion took place with Chairman Rosenstock relative to the fact that the value had not been arrived at yet. Attorney Perry indicated he was agreeable to obtaining an MAI appraisal and he was prepared to add that to the Agreement. Attorney Perry stated the Board should make whatever recommendation they felt was appropriate to the City Commission. Attorney Perry repeated he had no problem with any staff comments with the exception of these three areas. Chairman Rosenstock referred to the printed Agenda and asked if the Board was within its bounds to discuss the access road issue, as it was not specifically on the Agenda. One member of staff had indicated to the Chairman that the Board would have to discuss the access road because they were discussing the preliminary plat and it was maintained that the access road was listed on the preliminary plat with no comment not to build it. Therefore, the member of staff indicated they would have to build the access road. Jim Golden stated the industrial access road was one of the~ improvements connected with the plat. They are showing construction plans for it on the basis that when they get to the City Commission, they would like to discuss the issue further. The access road is shown on the approved Master Plan. City Attorney Cherof had produced a legal opinion indicating the access road was shown on the documentation provided by both Tradewinds and the Winchester people. It must be built. A variance would be an alternative or obtaining relief through declaratory judgement. Attorney Cherof stated it was unlikely the City would render an opinion with respect to the dispute between these two property owners. Chairman Rosenstock reminded the Board members they were not sitting as a judicial body. They were addressing compli- cated issues. He referred to the need to handle this expe- ditiously and to move this forward so the City Commission, 4 MINUTES - SPECIAL PLANNING & ZONING BOARD MEETING BOYNTO~ BEACH, FLORIDA SEPTEMBER 17, 1990 as the governing body, could take a position on it. Attorney Cherof thought the Chairman's understanding was correct. Mrs. Greenhouse referred to the applicant having submitted construction plans for the road. Attorney Perry commented on events that had taken place and referred to a proposal made to the Cit~ Manager relative to this disputed issue and trying to get through the TRB and get the Issue to the City Commission. Subsequently, a decision was made that that would not be sufficient. Attorney Perry stated he was trying to avoid the unneccessary cost of engineering drawings for the construction of the road. Over objection, Tradewinds submitted the construction plans. They still were maintaining they were not required to build the road. Attorney Perry repeated if the City decided Tradewinds had to build the road, they will post the bond and then seek declaratory judgment. Remarks were made about debate which had taken place at the TRB meeting in connection with the elevation of the proposed access road and the elevation of the railroad. Attorney Perry stated that issue had been resolved. The plans had been noted to reflect that the road would be cDnstructed to an elevation acceptable to what the staff's position was. Attorney Perry stated the road as presently shown on the reviewed plans reflects the road would be built to an eleva- tion which meets the tract elevation. He didn't want to get involved in anything other than a pure road. Any type of railroad crossing that might be required, other than a crossing at grade, would not be bonded. Vincent Finizio, Administrator of Engineering explained if the road is shown on the Master Plan, they are required to provide preliminary construction documents for the improve- ments along with cost estimates. After the preliminary plat, they would be obligated to provide bonds for the road, if they wanted the plans to move forward toward final plat. The applicant could seek relief between preliminary and final. Mr. Finizio stated the Code indicated the applicant should only submit plans for improvements to be constructed within 21 months. Mr. Finizio indicated the Code required the bond be within 110% of the value of the improvements, in order for the applicant to have a successful final plat. The applicant would be compelled to provide that anyway. Chairman Rosenstock asked if there was anyone present in the audience who wished to comment on the access road issue. As there was no response from the audience, THE PUBLIC HEARING WAS CLOSED. 5 MINUTES - SPECIAL PLANNING & ZONING BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1990 Attorney Cherof explained the applicant was willing to move forward and comply with the technical requirements under the Code, but they were doing so under protest. In response to a question raised by one board member, Attorney ~nerof indi- cated if the City were to end up in Court and be the pre- vailing party, Tradewinds would be required to build the road in accordance with the Code. The City would also seek court costs and attorney fees. Vice Mayor Lee Wische remarked as part of the Settlement Agreement, Tradewinds was to get $8,000,000 as a "walk-away figure." The City was not supposed to ever hear any more talk of suit or anything else involved with this tract of land. Several board members commented they were not sure Attorney Perry intended litigation against the City. They understood it would be against Mr. Winchester. Chairman Rosenstock interjected he would be seeking declaratory judgment which would impact Mr. Winchester but would also impact the City on whether he has to build the road or not. If the Court felt Tradewinds doesn't have to build the road, then the City was stuck. Motion on Industrial Access Road Chairman Rosenstock clarified this will move forward assuming the Board does approve the park. If the Board does not approve the park recommendation, it will not move for- ward. Attorney Cherof indicated that was correct. The City Attorney provided assistance in phrasing the motion. Mr. Richter moved to recommend to the City Commission that the preliminary plat be approved, subject to the industrial access road being constructed in accordance with all provisions of the Code of Ordinances. Mr. Aguila seconded the motion which carried 7-0. Mr. Finizio referred to a statement placed on the plat docu- ment created by Attorney ~erof which discussed this matter in relationship to approval of the final plat. He recom- mended the motion be amended to state that this matter should be resolved prior to final plat approval. Should they go through the final plat process and the documents-be legally executed and recorded, Mr. Finizio thought this would shed a different character to the City's problem rela- tive to public property. Attorney Cherof didn't think that was necessary in the motion and discussion ensued. Attorney Cherof felt the City was covered on this issue as far as the final plat was con- cerned as it was covered in the Code and the Stipulation Agreement. It would be covered a third time if included in the motion. 6 MINUTES - SPECIAL PLkNNING & ZONING BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1~990 The discussion moved to the topic of the guardrails and the DOT's regulations. Attorney Perry reiterated Tradewinds was prepared to be governed by the technical data. Mr. Finizio made remarks about the space between the road and the water and the fact that it would be traversed in a matter of seconds by an automobile that had been tra- veling 35 m.p.h. The lake is 20' deep and the City does not have scuba ~ivers available to rescue drowning victims. Mr. Finizio stated he had researched the PUD regulations which did not make mention of guardrails but did make reference to "development in a manner proposed without hazard to persons or property, on or off the tract from probability of ... dangers." Mr. Finizio thought deaths could result if the guardrails were not installed. Lt. Dale Hammack also com- mented on the fact that the distance to the lake just barely exceeds the 50' required and the fact that the City does not have underwater rescue equipment available. Lengthy discussion took place. Mrs. Greenhouse asked the City Attorney if Appendix B, Section 8-C was enough for the City to "hang its hat on" if this was made a requirement. Mr. Cherof thought the Section did appear to encompass hazards of all natures and based on that sound engineering advice, he recommended they follow that advice and incorporate it in their recommendation to the Commission. After examining the drawings showing where the guardrails are, Mr. Richter thought cars would have to make a definite right turn to go into the lake. He thought they had covered the area that should be covered with guardrails and that with additional buffering, trees and shrubbery, it would stop vehicles from traversing the more than 50' distance. Further discussion took place with Mr. Finizio on road con- ditions and how tragedies occur. Mrs. Greenhouse remarked the City's Engineering Dept. had recommended this in conjunction with the consulting engi- neers, Gee & Jenson. She thought the City had a public safety responsibility to require this so as not to expose the City to liability. She thought the continuous guardrail was clearly in the best interests of the residents of the City. Motions on the Guardrails The City Attorney provided assistance in wording the motion. Mrs. Greenhouse moved that the Planning & Zoning Board recommend to the City CommissIon approval of the preliminary plat, subject to the Engineering Dept. and Police Dept's recommendations regarding the guardrail along the entire east perimeter of the lake. Mr. Howard seconded the motion which failed 2-5. Only Mrs. Greenhouse and Mr. Howard voted in support of the motion. 7 MINUTES - SPECIAL PLANNING & ZONING BOARD MEETING BOYNTON BEAC15, FLORIDA SEPTEMBER 17, 1990 Chairman Rosenstock referred to other roads he had tra- velled, where the speed limit is 55 m.p.h., the drop is almost immediately off the road into a canal and there were no guardrails. This developer was being asked to go above and beyond what the DOT recommendations are. Mr. Richter thought the Board was concerned with public safety but you have to be reasonable and draw a line at some point. Other opinions were expressed. If they wished to move forward and ~ddress the guardrails issue individually, Mr. Cherof advised they needed another motion incorporating a final recommendation. Mr. Richter moved to recommend to the City Commission that the developer had complied on his drawings adequately with the DOT requirements for this type of situation with regard to the guardrails along the lake. He therefore should not be required to have it the full length. Mr. Aguila seconded the motion which carried 5~2. Mrs. Greenhouse and Mr. Howard voted against the motion. Relative to the park issue, Chairman Rosenstock remarked this was a Public Hearing. He asked if there was public input. Mr. Eugene Casey, 116 N.W. 10th Court, Boynton Beach com- mented on the number of homes that would be affected by this park. He felt construction of a park in the backyard of a retirement community would be a mistake and he explained the negative impacts of such a park. Mr. Golden explained the dedication of the 3½ acre park site at this location had pretty much been established by the City Commission as part of the Master Plan modification approved in May, 1990. Other remarks were made by Chairman Rosenstock about several parcels being put together at one site. In lieu of one acre which was missing, the applicant was to provide funds for improvements for the park site. The Ordinance required the P&Z Board to determine a fair market value for the land. In addition, the applicant had agreed to obtain an MAI appraisal. Mrs. Greenhouse asked if the City had any problem with the land quality. Mr. Finizio responded the soil borings sub- mitted didn't really specify that it was taken from the sub- ject parcel. The soil borings that were provided showed clean', silicate sand. He desired verification that the borings were from the subject property. A printed document was provided by Mr. Morton and Attorney Perry stated the borings were taken from the land in question. 8 MINUTES - SPECIAL PLANNING & ZONING BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1990 Discussion took place regarding language in the Code and the value of construction improvements to the park. Mr. Finizio remarked on the inability of the City to exercise control over the improvements the developer would like to build at the park. He referred to a piece of lumber that might be valued at $2.00 and yet a value could conceivably be set at much more. Chairman Rosenstock asked if staff would be willing to accept a sum certain now and the City could then undertake the development. Mr. Finizio responded the City would then have better control over the sub-contractors hired. Attorney Perry read a segment from the May 8, 1990 P&Z Board Minutes and the Commission Minutes of May 15, 1990. He stated the issue of providing the equivalent had already been decided. All they were now talking about was establishing the amount of the equivalent. He thought the easiest way was for him and Mr. Cherof to agree on a formula for the determination of value. Mr. Aguila thought that was a good idea as he didn't feel comfortable trying to set the value. That was not his particular area of expertise. Discussion took place. Mr. Golden referred to a Planning Dept. recommendation that the City execute a legal agreement that specifies and translates that appraised value to speci- fic improvements, prior to final plat approval. One board member requested clarification. Chairman Rosenstock explained the developer had agreed to contribute a sum of money equal to the value of one acre. It had been decided that instead of contributing the money, the deve- loper would do the construction improvements to the park, in lieu of the money. For example, if $70,000 was decided to be the value of the one acre, the developer would do $70,000 worth of improvements. Other remarks were made, Mr. Finizio believed any deviation from the Code of Ordinances would require a variance. He felt they were deviating from the land/money aspect and were putting a new twist to the proposal that is not provided for in the Code. Mr. Morton thought it was ludicrous that Mr. Finizio would argue points of law when Mr. Cheroi was present. Legal discussion ensued between Mr. Cherof and Mrs. Greenhouse. Mr. Cherof indicated they should focus on the Code provision that was currently applicable. He felt it was practical and in a case where a fee in lieu of dedica- tion was required, it provided for the Board to determine a fair market value of the land. That determination should be used to calculate the fee to be paid. The subdivider could then object and obtain an MAI appraisal. At the end of that Code section, it says alternatively the City and the sub- divider may agree as to the fair market value. If they were MINUTES SPECIAL PLANNING & ZONING BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1990 unable to determine at this time what the fair market value was, they could simply indicate the~ are not in a position to do it and recommend the Commission enter into an agreement as to the fair market value. Alternatively, they could pick a figure "out of the hat," assess a value and move forward. Either way would be proper. Mrs. Greenhouse referred to the "services in lieu of monies" aspect. She wondered if that had to be specifically addressed. Mr. Cherof didn't think so as he didn't find any prohibition in the Code that said the-City could not take services in kind or anything else of value in lieu of cash. Mrs. Greenhouse asked if the Board could "pass the buck onto the Commission" and let the Commission worry about whether or not they are going to take the services or not. Mr. Cherof responded affirmatively. Mr. Richter moved that the City Commission get an I4jkI appraisal as well as the petitioner getting an MAI appraisal. The two appraisals should be close enough to determine the value for one acre. Mr. Collins seconded the motion. The question was raised by City Manager Miller of who would pay for the City's MAI appraisal. He noted they sometimes cost between $2,500 to $3,000. Mr. Collins reminded them this was only a recommendation to the Commission. Mrs. Greenhouse asked if the Board was dealing with the legal Agreement which was in front of them. Mr. Cherof stated they were not. Other remarks were made. Mr. Golden recommended the Board not consider the Agreement as part of the recommendation as there were concerns about some of the language in it. Mr. Richter chose to withdraw his motion which was on the floor. Mr. Collins withdrew his second. Discussion took place with Mr. Golden and Charles Frederick, Director of Recreation & Parks as to whether $80,000 was a reasonable figure for the property. If the developer disagreed with the figure selected, he could get the MAI appraisal. Motion on Park Land Value Mrs. Greenhouse stated she intended to make the motion and she wished to specifically exclude the Agreement which was handed to the Board prior to the meeting. She moved that the Board recommend to the City Commission that the one acre to be dedicated in lieu of land for the proposed park site be valued at $80,000 per acre. Mr. Howard seconded the motion which carried 7-0. 10 MINUTES SPECIAL PLANNING & ZONING BOARD MEETING BOYNTON BEACH, FLORIDA SEPTEMBER 17, 1990 Mr. Frederick asked how the half credit situation was being addressed. ~e reminded the Board this whole issue was based on a 4½ acre dedication, 3½ of which would be land and one acre being cash. They were required to provide private recreation facilities as a part of that half credit which was given. Mr. Frederick asked if this was being approved subject to his comments. It was clarified that it was. Mrs. Greenhouse stated she wished to amend the motion to include all staff comments including the comments by Mr. Frederick. One person stated that would be redundant as they had already done so earlier in the meeting by stating all comments had been agreed to with the exception of the three issues. Mr. Cherof recommended the Board s~mm~rize this meeting's activity in one motion~ Motion in Summarization Mr~ Beasley recommended approval of the preliminary plat, subject only to the motions and recommendations made tonight and to staff comments. Mr. Aguila seconded the motion which carried unanimously. At the conclusion of the meeting, Jim Golden, Interim City Planner announced he had submitted his resignation and he indicated how much he had enjoyed working.~ith the Board. Chairman Rosenstock thanked Mr. Golden for his outstanding cooperation. The Board regretted Mr. Golden's decision but understood his desire to further his career. ADJOURNMENT There being no ~urther business, adjourned at 10:00 P.M. Shannon Burkett Recording Secretary (Two Tapes) the meeting properly 11