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Minutes 09-13-77MINUTES OF THE REGULAR MEETING OF THE PLANNING & ~ONING BOARD HELD AT CITY HALL, BOYNTON BEACH, FLORIDA TUESDAY, SEPTEMBER' 13, 1977 AT 7:30 P. M. PRESENT Simon Ryder, Chairman Col. Walter M. Trauger, Vice Chairman Ronald Arena Mrs. Marily~ Huckle Richard Lambert Garry Winter Carme~ Annunziato, City Planner ABSENT. ~s. Nary Schorr Chairman Ryder called the meeting to order at 7:30 P. M. and introduced the members of the Board, City Planner and ge cording Se ere tary. Minutes of Regular Meeting of August 23. 1977 Mrs. Suckle remarked that they were excellent minutes, but she was a little confused when reading Page 10, second para- graph, and the reference to Mr. Annunziato preliminary stated. She corrected this to "preliminarily". Mr. Lambert made a motion that the Minutes of the Regular Meeting of August 23 be approved as corrected, seconded by Mrs. Huckle. Motion carried unanimously. Announcements Chairman Ryder referred to the consultant's contract and Mr. Annunziato announced that last Tuesday night, the City Coun- cil formally agreed to contract with the planning consultants. He expects within the next few weeks,' they will begi~ plsmning work. The consultantslwill familiarize themselves with the Board and outline~ the responsibilities to the Board in re- gards to public participation with the plan. New Business Site Pla~ Approval Applicant: Enrico Rossi for Roger Saherson~ Trustee Location: Woolbright~' Rd. between S. W. 18th Street and S. W. 22n~ Street Legal Description: Parcel A, Plat of Tenth Section Palm Beach Leisureville Project Description: 160 unit multi-famiLy development Mr. Annunziato announced that before getting into discussion of the site plan, he would like to paraphrase the opinion of Attorney Saberson and concurring opinion of our City Attorney MINUTES PLANNING & ZONING BOARD PAGE TW 0 SEPTEMBER 13, 1 977 concerning the zoning status and what it means to the develel>- ment of this land. Chairman Ryder suggested giving the members of the Board an opportunity to review the opinion. After re- view, Mr. Annunziato summarized that basically the opinion states that the zoning was fixed in time and place at the time that the zoning was put on the land in conformance with s' exception P~D. He explained how he thought it be viewed in terms of a agreement between the developer and the Cit~ how it covered various Following the special exception master the &:Z¢ Board set the zoning on these of land basis for 'this opimion. When it was sub- it Put him in a positiom with the zoning not zoning which, is more restrictive. Mr. Sa~erson has an in~ his opLuien based on court degree of o, there is an additi, on referring t of tracts of lands and vest With the land as well as the to~ rem oning. note that this was ded Moore concurs with Mr. erson's what makes density is indicated at such a figure. the zoning that to a Jmne Mr. Enrico RoSsi, applicant for the site plan, appeared before the Beard. He informed the Board that the plan was submitted about six.months ago and finally at this time, it can be pro- cessed. He Won't address himself to the legalities because the two attorneys have looked into it and have given opinions. He will apply himself to the technical aspects. When the parcel part of the ewer ha~e s~bmitte with is tee , there was the understanding that it was . It was also understood that they got what- or benefits there were of the P~D. They a plan for a two story condominium concept facility. This particular parcel of land from the Leisureville Association or Association. However, it does lie in the CkairmanRyder referred to the legal description noting this as Parcel A, Plat of Tenth Section, Palm Beach Leisureville, and Mr. Rossi explained that this was the way it was stated on the recorded plat, but it is simply a title. Mr. Lambert asked if he had gone over the pretimi~m~y techni- cal notes and Mr. Rossi replied that he had not. Mr. Amaun- ziato read the staff comments with the Building Department, Fire Department, Utility Department and Engineering Depart- ment basically referring to the zoning based on the City MINUTES PLANNING & ZONING BOARD' PAGE THREE SEPTEMBER 13, 1977 Attorney's opinion. The Fire Department recommended proper water limes with fire hydrants on 6" lines. The Engineer has reqmested elevation, drainage, paving, water and sewer plans. The Utilities Director has requested detailed sewer and water pla~s. He summarized that it amounts to the con- stru~tion of a6" water line along 15th Avenue for residen- tial and fire purposes. The Police Department has requested deacceleration lanes east aud west for 18th Driwe. He has noted that the : is based on the attorney's o for R-3A and the wes setback should be 25 ft. the is n ent plan, shown at 15 ft., but the R-FA zoning ord~-a~ce east. concur with Mr. Rossi replied that it was not should be shown om this aeeded. Chairman ~der referred to the requirement of a deaccelera- tion laneand asked if the widening of 15th Avenme was con- sidered thinks developer towards feur-la~ing WoelbriEhit ~oad regarding the time table. He thinks there is some correspondence between the County Engineer,s developer to lanes. needed at once Mr. by the m~st widen criteria used to tion lane a rE on Woo two lanes ia ~ be ~roml itwas would be an there was parcel ofi land, bmr it not conmections ~e. that it be safe and de , City Manager's office and the to build the additional two if the deacceleration lanes were replied that this was correct. thimks it has been established 30~ c/o's are issued, the developer Lamberit questioned the ~essity for a deaccelera- that when there was dictates The traffic this tyipe of action. Chair- of deacceleration -into ~yder re· eets and wide enough ~o ha~e Rossi referred to there left tmrn what he re- turning lanes questioned why out that it off of ~ied the traffic count contributed by that where the poin~ of ,bors and engineers to a left turn lane. MINUTES PLANNIN~ & ZONING BOARD PAGE FOUR SEPTEMBER 13, 1977 Gel. Trauger asked who paid for the turning and st~g lane and Mr. Rossi replied that it was paid by the man who develops that parcel of land and added that they also limit the number of turnouts. Mr. Lambert asked for his comments om the 25 ft. setback and Mr. Rossi replied that he might take exceptio~ to that. He can understand it ~applying to a standard plat, but this is not a standard plat but eno big lot. There is nothimg to the north which you could tine up with at 25 f~et unless you look across the camal. Chairman Ryder asked if~ it would line up with the house on. the corner at 14th Avenue and Mr. Rossi replied that the house faces 14th Avenue and has a 15 ft. setback. AlsO, when you go across the street, they start facing, the other way. chairman Ryder asked how much o~ a~ impact it would be and Mr. Rossi replied that they would have to move the stairway to~the front, but could change the site plan Arena asked how it would affect the entrance and informed him that there is a stairway which is in t~e setback and it could be put i~ the front in- stead of the side. Chairman questioned how close the ~ere and Mr. Rossi feet. Mr. the width of the Mr. Rossi in- formed that just the to be changed. _Mr. Arena referred to the o~ the east a_~d Mr. Rossi agreed and there was a 30 ft. easement. Col. Tra~er referred to clemaing up the canal and Mr. Rossi replied that it is pretty w~ll kept and there is an 80 ft. right-of-way with a 35 ft. canal. Between the building and the canal,i there will be 35 ft. plus the setback of 20 ft. Mr. Lamb'e~t asked who the setback and Mr. Rossi informed him it was by the District. Mr. Lambert asked if there was room for a fence and Mr. Rossi referred to the properties lying abomt 90 ft. on the other side and told about possibly using Australian PT~es instead of a wall,, but will discuss this with the Community Appear- r~uce Board. Chairma~ Ryder referred to the canal right-of- way and asked how much would ~e on his side and Mr. Rossi informed him there woul~ be an approximate ~0 ft. setback altogether. Mr. Lambert asked if the 25 ft. setback was needed and Mr. Ann~nziato replied: yes as he feels it was the intent of the~ordinance. Mr. Lambert clarified that the stairway would have to be moved then. Mrs. Huckle questioned the size of the clu~homse proposed and Mr. Rossi replied that it was about 3,000 sq. feet. Mrs. Nuckle asked if it Would include kitchen facilities and Mr. Rossi replied: yes and explained that there was a flexibility on this building as they picked out the land for 160 ~its, but have not prepared the final set of plans. ML~UTES PLANNING & ZONING BOARD PAGE FII~E ~EPTEMBER 13, 1977 Mrs. Huckle asked if they would be one and two bedroom units and Mr. Rossi replied that they would be all two bedroom units. Mrs. Huckle asked if they would be for families and Mr. Rossi replied that they would not be restricted, but he imagines because of the proximity of Leisureville, most of the residents will be retirees, Ne told about-their con- siderations of this~a~d advised that it probably will be more marketable as an adult complex. Mrs. Hackle asked if they would be rental or sales units and ~. Rossi replied that it would be a condominium concept. Chairmsca Ryder referred to the density in Palm Beach Leisure- ~ille and having more open area with the lake and Mr. Rossi agreed there was more open area as there is about 12 acres of lake. Chairman Ryder stated that the Leisureville single family homes are about 8 units per acre and Mr. Rossi in- formed him that he thought 6 units per acre was the most. After calculation, Mr. Winter stated that the recreation building shown is 1 feet. Mrs. Huck~le remarked that this was~ small for I and asked if there was anything specifying the amount of recreation space in the PUD and Mr. An~unziato replied that in this special excep- tion PUD, there is nothing specified about recreation use pr population. He explained the policy established by the subdivision ordinance. Mrs. HUckle asked if he was~satis- fied that this recreation building would be adequate and Mr. : yes, Mr. Rossi added that it may be larger sq. ft. Mrs. Huckle referred to the activities taking place in condominium clubhouses and stated she Just wanted to be sure it met the requirement. Mr. Winter made a motion that the Planning & Zoning Board recommend to the City Council the approval of Parcel A, Plat of Tenth Section, Palm Beach Leisureville, with the staff comments as listed Under discussiom, able to refer to the bas~ referring to the opinion that the Previous R-3A ~ apply. Mr. Lambert re Technical ReView Board'~ plied that h~ would like Col~ Trauger seconded the motion. asked if it would be advis- acceptance of the density She City Attorney advising under Ordinance 62-9 will this was part of the ~ts and Chairman Ryder re- it in the motion. Mr. Winter then ma~e the addition to his motion to include the injection of the letter Mr. Saberson and the concur- rence of the Boynton Col. Trauger accepted the carried Applicant: John Moffett for Sunshine Square Shopping Center Location: S.W. Corner of $.E. 15th Ave. and U. S. 1 Legal Description: Acreage Project Description: Addition of commercial ~tt along U.S. 1 PLA~ING & ZONIN8 BOARD PAGE $ IX SEPTEMBER 13, 197? Mr. Arena amnounced he womld like to excuse himself with any- thing involved with this because his company has signed a lease for these premises if approved. The members reviewed the plan. Mr. Ann~ziato explained the location and informed them that parking has been provided to satisfy the needs of this structure as well as parking re- 9mired by ordinance to fulfill the needs of the shopping center. Concerning the staff the only comment is from Mr. Perry Cessna to the ewer service and water connection must be integrated as part of the existing system; there is no need for an extension. Col. Trauger asked when the shopping center was buil{ ini- tially and Mr. Winter replied about eight years ago. Mr. Lambert asked if the shopping center was owned by one parti- cular company and M~. Annunziato replied: yes. Mr. Lambert questioned the ownership of the corner service station and Mr. An~unziato replied that he thought that was an out parcel. Mr. Lamb~ert asked if it was~necessary to look at the whole shopping center as being conforming before an addition is made and Mr. Ann,unziato replied that he did not thi~k it was necessary to look at every unit as l~ng as the addition con- forms. He thought it was important to list the number of parking spaces available as this is a concern. As clearly evidenced BH the smaller sheet, even by today's stamdards, there is a surplms o2 almost 100 parking spaces provided by the center. Mr. Lambert referred to being concerned with all of the complex in other projects and questioned when it was decided that mo more stores can be added and Mr. Annanziato replied than when there is not enough parking and also the ordinance provides no additio~l structures can be added if a non-conformity is increased. He how this woul4 apply. Mr. Lambert clarified that this not adding to a non-conformity and meets the parkiag.. Gel. Traager aske4 if there was anything to prevent a store from being added from time to time and referred to it possibly being done parcel bF parcel and Mr. Annauziato replied that he didn't thi~ there was anything that and pointed eat that this particular is providing additional park- ing, Mrs. Lambert stated that this was not actually required and F~. Anaunziato agreed. Chairman Ryder asked if a~yone was present wish~_ng to speak on behalf of this application. Mr. Ceasar Mauti, 150 S~N. 24th Avenue, appeared before the Board and stated he was the general contractor and had very little to add. ~hairman ~der asked if he was aware of the requirement of the Utility Director and ¥~. Mamti replied that he was and is in agree- ment and there will be ~o problem. MINUTES PLA~ING & ZONING BOARD PAGE S~EN SEPTEMBER 13 , 1977 Col. Trauger asked who owned this shopping center and Mr. Mauti informed him that Mr. Richard Moore did and advised that he bought it from Mr. Lassiter about 8 to 9 years ago amd the shopping center has been there for over 15 years. He told about building the other additions. He also in- formed the~Board that Mr. Moore also owns the land to the south amd he understands if~and when he intends to build, he must have the required parking and setbacks. Also, in re~erence to the is approximately one acre to the south of the n~ver used much. Mr. Lambert made a motion that the Planning & Zoning Board recommend to the City Council the approval of the commercial unit along U'. $. 1 at the Sunshine Square Shopping Center sub~ject to staff comments!. ~. Winter seconded the motion. Motion carried 5-0 with Mr. Arena abstaining. Recreational Vehicle Ordinance Memo from. Building Official Chairman Ryder referred to the last meeting when am attempt was ma-de to ~f~ize the ordinance, Rut it was felt there were several instances where the Euilding Official shomld be consulted so as not to impose something on the Building De- partment so it would become difficult. Mr. Annunziato dis- cussed the matter with Mr. Howell and Mr. Howell has sub- mitted a memo with certain suggestions. He suggests taking these suggestions one ~y one f3or discussion. Chairman Ryder read Paragraph 1. of Mr. Howell's memo re- garding Section ¥, a~' requesting that only one recreational wehicle be allowed in the front area. Mr. Lambert referred to discussing this previously several times and suggested possibly getting public input. Chairma~ Ryder informed him there would be a pnblic hearing held by the City Council to give the people as much an opport~ity to consider it. He does not think our recommendation will be final. Mr. Lambert stated that he would rather hear comments from the public be£ore making a firm recommendatio~ Chairman Ryder suggested taking a stsuud with realization that it won't be final. C~hairmanRyder referred to Mr. Howell's comment and suggested possibly say two on the property, but not limited in the front. Mrs. Huckle replied that she did not think it would have made that much ~ifference, but with Mr. Howell having to enforce it which he ~uows more about, she will defer to his judgement. Mr. Winter referred to the possibility of having two 35 ft. trailers parked in the front~of a house and Mrs. Huckle agreed this would be objectionable. Col. Trauger referred to Mr. Annmnziato's discussion with Mr. MINUTES PLA~ING & ZONING BOARD PAGE EIGHT SEPTEMBER 13, 1977 Howell and questioned their point of view with the possibility of having two big ones parked in front and Mr. Annunziato re- plied that it was not a matter of enforcement but a matter of aes the tics~ ~ Mr. Lambert referred to discussing this many~ times and having reached an agreement that there would be no problem with this part of the ordinance and advised that he talked to Mr. Howell about this and he is concerned about aesthetics and personally does not want to see two. Mrs. Hmckle questioned the probability of one owner having two large units and Chairman Ryder told about seeing beth a boat and motor trailer parked, in front of homes. Mr. Lambert ex- plained how they were concerned whether to have it in the front for the owner to look at or the side to affect the neighbor- He questions how many people have two 35 trailers. Col. Trauger told about a situation where it was true in his neighborhood. Mr. Lambert stated he did not feel the Board should back down on their recommendation. He thinks it should be left flexible and the Council can make the decision. He thinks it was an aesthetic thing and personal opinion of Mr. Howell. Mr. Arena stated that this whole section was a sore thumb ~ith him. He is against the 3 ft. and 5 ft. requirement from the property lines. This suggestion would eve~ make it more difficult. With this addition, it would make it more impossible for people to store recreational vehicles. With taking away one from the front and having to have an 11 ft. side setback, where will they put it? He feels if that section could be worded in a way to allow someone to park o~ the side with 10 ft. it should be allowed, but as it reads now, it is not. He does not see that there would be a tremendous problem anym'here to include the phrase where space is available. The consensus of opinion is that Mr. Howell's suggestion soundslike a good idea from an aesthetic view, bUt he does not see Where this 3 ft. and 5 ft. is so great and importan~t. He thinks there should be 3 ft. and 5 ft. if the space exists. Mr. Lambert replied that he agreed with Fm!. ~rena as the more he thought about 3 ft. on the side, he does not think it is~needed. Possibly they can leave the 5 ft. in the rear since it is consistent with storage buildings, present requirement does not in a garage. They have gone to the extent to allow two recrea- tional vehicles on~ the property. It is not our job to be concerned as to how much room an individual has. If there is not the room, it canaot be parked. He is not in accord to let the bars down entirely. He thinks this will be a drastic change from what we have. MINUTES PLANNING & ZONING BOARD PAGE NINE SEPTEMBER 13, 1 977 Mrs. Huckle referred to a vehicle being allowed in a carport or garage and Mr. Lambert replied that a permit must be oB- tained for the carport and this would not allow two in front plus the carport. No more than two are allowed unless in an enclosed garage. Mr. Lambert then questioned why they picked 3 ft. as~?3 ft. will rule out 75 to 8~ of the people Being allowed to park on the side of their house. He thi~s we have agreed we would rather see them on the side rather than the front. Chairman Ryder replied that the neighbor should not be crowded. Mr. Arena clarified that he did not mean to take it out altogether, hut it~mshould say if available. He ex- plained how there would still he a difference as if there is more than enough room, it mmst he parked next to the house. He does not think they should be forced to park them in the front. Mr. Annm~ziato~stated that he thought if they drop the side setback, it would make it an abuse on the neighbor. If there is not 3 ft., it must be parked somewhere else. Chairman Ryder added that all the contin- gencies did not have to he provided. After discussion, Chairman Ryder suggested taking a vote on ~. Howell,s recommendation to allow one in the front area. A vote was taken as follows.~ Col. Trauger - Yes Mr. Winter - Yes Mrs, Huckle - ¥~s Mr. Arena - No Mr. LamBert - No Mr~ Ryder - No Mr. Winter then stated that if it was clarified by eliminat- ing the side setback, it would change the whole intent. He told about sections in the City where trailers parked on the side are an aesthetic benefit to the neighborhood ~ud as it is written, it would force them to the front. ~. Lambert stated that it was clear in his mi~d that Mr. Howell wanted to have the 3 ft. stay the same. M~. Winter stated that he spoke to Mr. Nowell and he agreed it was more sensi~le to park it on the side and he realizes there is not a sufficient setback i~ many sections of the City. His opinion is that he thinks Mr. Eowell thinks we should drop the 3 ft. Chairman Ryder replied that he thought it would be a serious mistake to drop the 3 ft. ,There was a lengthy discussion about the reasons to park in the front or side and necessity for setbacks. After again becoming deadlocked on this issue, they decided to proceed with Mr. Howell's recommendations and give this further c~nsideration later. MINUTES PLANNING & ZONING BOARD PAGE TEN SEPTEMBER 13, 1977 Chairma~ Ryder proceeded with reading Mr. Howell's second recommendatiom regarding tie downs. He questioned if in- cluding this requirement, it would mean the City assumes responsibility and Mr. Ar~u~ziato replied that he thinks the responsibility would be to inspect these facilities to see that they are available. Mr. Lambert stated that he objected to this previously because of the way it was worded, but after ~mssion with Mr. Howell, he does not thi~k it is Chairma~ Ryder asked if this was putting an off±¢ ~sing en it and Mrs. Huckle replied that she thought the opposite b~cause this will protect the City with having this requirement in writing. Mr. Lambert stated he did net th~ the City could make t d~w~ and added that he could not sue the City if his does not strap it down. Mr. Arena asked if the City inspectors were qualified to inspect the~e type of things and Mr. Lambert replied that they do it every day with reference to mobile homes and utility sheds. He added that Mr. Howell~£eels his Depart- ment can handle it. Mr. Arena referred to someone tying down a 35 ft. motor home and Mr. Lambert explained that it did ~ot have to ~e tied down, but there must be anchor bolts in the ground for securing it. ~O1. Trauger moved to include Mr. Howell's recommendations as to the tie downs in Sectio~ V a-8, seconded by Mrs. Huckle. Motion carried 5-1 with Mr. Winter dissenting. Mr. Winter clarified his vote that as it reads, he could not accept it and explained how a steel strap used to tie down a v~hicle could ruin the exterior. There was further discus- sion about this requirement. Chairman Ryder continued with reading Mr. Howell's third recommendation~ referring to deleting the site plan require- mont. Ne added that if Mr. Howell feels it is a hardship, he would consider this and does not think we should imDose a hardship. Mr. Lambert added that he talked to Mr. Howell about this and his intention was not to delete the entire paragraph, hut only the part regarding the site pla~. He referred to Mr. Annmmziato being a proponent of this and Mr. Annunziato replied that Mr. Howell convinced him that it was not necessary. After discussion, it was agreed to delete the reference to the site plan. ChairmauRyder read Mr. Howell's fourth recommendatio~ and the members agreed to accept his recommende~ Section VI a-5. F~s. Huckle referred to a person moving to a new house and Mr. Annunziato informed her that this would not present a problem because the applicant must get a renewal to get a decal for the new address. Mr. Winter explained how this would apply to the sale of a vehicle rather than moving. MINUTES PLANNING & ZONING BOARD PAGE ELEVEN SE~MBER 13, 1977 Mr. Arena questioned the purpose of including in Section 5, No. 5, that the vehicle is currently licensed by State and Federal Law since the permit is issued forever. Ne explained that he would like to incorporate in the ordinance that they must be registered yearly without having to renew the decals. After discussion, it was agreed to replace "is" with ~be" which would cover this matter. Mrs. Huckle referred to the wording of the new Section VI a-5 and explained how she thought it addressed itself to only one possible area, but not other things which could result such as moving, She thimks there should be notification of a penalty if a change of address is not given. There was discussion about this and Chairman Ryder clarified that it was directed to the selling of recreational vehicles amd the decal and mot the question of moving and they just cannot take care of all contingencies. Chairma~der then referred back to Mr. Howell's first recom- mendation. Mr. Winter suggested getting a further interpre- tation from Mr. Howell of the meaning and Chairman Ryder re- plied that he didngttthink it was necessar2 as the Board should consider the comments and take the action they desire. Mr. Annunzlato~ clarified that there were two basic questions: the side setback~ud more than one recreational vehicle in the front yard. Mr. Arena stated he would be willing to accept~the recommenda- tion if the side setback could be changed. He j~t does not see the necessity to have 3 ft. He referred to various things beimg grandfathered which would not apply in this instance and it is impossible for someone to move their house. He suggests making some provision for the person having 9 to 12 ft. en the side. Chairman Ryder replied that e~onsideration must be given to the neighbor. A lengthy discussion ems~ed regarding the necessity for a side setback and allowingtwo vehicles to be parked in front. Mrs. Huckle then made a motion to leave the paragraph as it is, seconded by Col. Trauger. A roll call vote was taken as follows: Mrs. Huckle - Yes ~ol. Trauger - Yes Mr. Arena - Ne Mr. Lambert - No Mr. Winter - No Mr. Ryder - Yes Motion tied 3-3. MINUTES PLANNING & ZONING BOARD PAGE TWELVE SEPTEMBER 13, 1977 There was further discussion about this recommendation and the possibility of forwarding the ordinance to the City Council without a firm decision being made by the Board. However, Mr. Winter made a motion to table this one particu- lar item, seconded by Col. Trauger. Under discussion, ¥~. Lambert referred to this motion limiting further diseussion and ~. Winter agreed that he made it to apply to the one particular paragraph, Section V a-3. Mrs. Hmckle referred to no big rush and suggested leaving an optio~ open and the whole ordinance. Mr. Winter then amended his motion to table the discussion, seconded by Col. Trauger~ Motion carried 6-0. Ad~our~nt Mrs. Huckle moved tos~journ, seconded by Col. Trauger. Motion carried 6-0 and the meeting was properly adjourned at 9:55 P. M. Res pe c t fully submit t e d, Suzanne M. Kruse Recording Secretary (Three Tapes) ?ROM Carmen Annunziato, City Planner City of Boynton Beach TO P.O. Box 310 Boynton Beach, Florida 33435 GENE MOORE Lawyer 640 EAST OCEAN AVENUE, SUITE ~8 P. O. BOX 910 BOYNTON BEACH, FLORIDA 33435 Phone: [305) 734-2424 -~UBJECT: Dear Carmen: September 12, 197; ..... I hand you herewith opinion of attorney, Roger Saberson, together with backup data relative Rossi alpplication. I concur with Mr. Saberson's conclusion in this matter. Please return original file to me. City Attorney GM:pm ~INTED BY (~RAYARC CO.. INC.. BROOKLYN, N_ Y. I 1232 ROGER G. SABERSON ATTORNEY AT LAW 110x~X~~ E Avenue SECOND fLOOR DELRAY BEACH, FLORIDA 33444 272- 8616 Gene Moore, ESq. P. O. BOX 910 .: Boynton Beach, Florida 33435 Re: Parcel A-Palm Beach Leisureville - Processing of Site Plan Under Origin~I'PUD ordinance Dear G~ne: As you know, I represent the apPlicant~with regard to the above re- ferred to Site Plan Application which is currently pending. There is a hearing scheduled before the Boynton Beach Planning and Zoning Board September 13, 1977. The Planning Department~has indicated that they would not place the application on the agenda for regular pro- cessing under the original PUD ordinance'unless a legal opinion was received prio~r- to'the meeting indicating that this would be appro- priate. Therefore, the purpose of 'this letter is to outline what I consider the legal requirements pertaining to this Site Plan Appli- cation as it relates to'the original PUD ordinance. As you indicated in your. letter to Mr. Marsicano, the development of which Parcel 'A is a portion was approved several years ago by the City Council of the City of Boynton Beach as a Planned unit Develop- ment of approx,imately 480 acres'~ Shortly.after the approval the developer applicant began physical improvements on the property in- cluding tha construction of streets, utility lines and dwelling units of various types. Since that time construction has been diligently pursued on the subject property and as of the date my clients took title which was April 116, 1976 approximately '40% of all physical im- provements to the property contemplated by the Planned Unit Develop- ment have been installed.. The legal questi~ons thmt have to be resolved prior· to the processing of the site plan application under the original planned unit Develop- ment are only two fol'd: 1. Had the developer's rights vested under the original Planned Unit Development Ordinance so that a subsequent ordinance would have no effect~to prohibit the continued development of the project? and Gene Moore, Esq. September 12, 1977 Page Two 2. If rights had vested in t~e continued development under the original Planned Unit Development Ordinance are these rights transferable to a subsequent purchaser or transferee? In regard to question No. 1, I think there can be little doubt that when a developer has between 25% to 35% of the actual physical im- provements on the property at the time of an attempted rezoning by a local governmental authority that the rights of that developer have vested to the original approval. It is not even required any longer by the courts in Florida that any physical improvements be done prior to the developer acquiring vested rights. I enclose for your review tWo of the most recent Florida cases on the question of vested rights. They are Hollywood Beach Hotel Company v City of Hollywood, 329 So. 2d 10(S.CT. 1976)' and Town of Largo v Imperial Homes Corporation, 309 So. 2d 571 (2d D.C.A. 1975). In both of these cases the Cities involved were precluded from rezoning a developer to a lower density than had been previously approved by the City when there had been substantial reliance by the developer in making expenditures or incurring obligations based on the prior approval. These cases both-indicate that a City may be precluded from changing a previous zoning even though there has been no physical construction on 'the property. In essence recognizing that under modern day conditions there are substantial expenditures that occur not only when construction takes place but prior to that con- struction. Applying ~these cases to the facts Of our situation it seems to me that where we are relying' no% only predevelopment expenses but also on the fact that there was actual physical construction to the extent of 25 to 35 percent of the total project that there is ab- solutely no question but that the rights under the original approval had vested. As you know,prior to the above two cited cases being de- cided it had always been the law in Florida~that where there had been substantial physical construction rights were veSted even then and what these two cases do is permit vested rights to attach at an earlier point and time than they otherwise would have. In regard to question No'. 2 with regard to whether or not these rights and the approval "run with the land" my opinion is as follows: It seems rather incongruous to me for the City of Boynton Beach to now say, simply because of an incident relating to the transfer of title of a portion of the original tract, that it has the power to reduce a density that admittedly could not be reduced had the tract remained in single ownership. As you know, it is quite common in large scale Gene Moore, Esq. September 12, 1977 Page Three developments, for which PUDs are designed, for one developer, usually the owner, to process an application for approval of an entire tract and then sell off portions of the tract to other developers for their actual construction of units, recreation areas, and/or utilities. These developers are subject to the'burdens,as well as the benefits, under such a Planned Unit-Development Ordinance. For example, if the original PUD ordinance required that as to the portion that a subsequent transferee is taking title to there was to be a required dedication for recreation purposes or the installation of a lift station or inter±mtrea%ment plant, all ~to serve the remaining por- ~/ tion of the development it is.'my opinion that the subsequent transferee would have to dedicate such land or install the required treatment facilities because he woutd'be~bound by the original approval. I am sure that if this were the situation under the facts of this case that Boynton Beach would'not be~will±ng to release the subsequeht transferee of this responsibility. I enclose a copy of· a copy of General Electric Credit Corporation v Metropolitan Dade CoUnty, Case No. 76-1180(3rd DCA-May 31, 1977) this case deals with the development of regional impact approval process under Chapter 380 of the Florida Statutes and the Court in- dicates in the 3rd paragraph on page 6 that a foreclosing mortgagee in essence steps into the shoes of its borrower, the original owner of the property, for the purposes of the DRI approval process. I have consulted an Urban and Regional Planning Specialist at the University of Florida wit-h regard~to this topic and he indicated to me that it is the practice in the administration of Planned Unit Development Ordinances that they are administered as approvals that run with the land and that he would so testify. As additional' authority, I enclose a copy of Section 2-309 of the Model Land Development Code-adopted by the American Law Institute wherein it indicates in paragraph 3 thereof that development permits are assignable with the proviso that the assignment does not discharge the assignor from any obligation owed to the ~lOcal government in connection with the development. Qne f~rther comment I have with regard to the transferability of the P~ appro~al~which is perhaps more important~.than-~all the~'others is: Gene Moore, Esq. September 12, 1977 Page Four That the original PUD approval was granted to Caldos Adult Community, Inc. Subsequent %o the granting of the PUD approval Caldos Adult Community, Inc. conveyed the project to Boynton west Development Corporation. The City of Boynton Beach has continued to grant per- mits to Boynton West Development Corporation in accordance with the original PUD approval withoUt a question ever being raised as to whether that original PUD apProval would "run with the land". For the reasons above stated, it is my opinion that the rights under the subject Planned Unit Development Ordinance have vested and that such rights (as well as obligations) "run with the land" and are fully transferable to a subsequent purchaser. Therefore, I would appreciate it if you would so advise the Planning Department of the City of Boynton Beach so that the application for Site Plan Approval may be heard at the September 13, 1977 meeting of the Boynton Beach Planning and Zoning Board. Thank you. Sincerely yours, Roger G. Saberson RGS/b enclosures MEMORANDUM From: Re: Carmen Annunziato, City Planner September 2, 1977 Edgar E. Howell, Building Official Proposed Ordinance Par]~ingand Storage of Recreational Vehicles and Boats, and/or Boat Trailers In my analysis of the proposed Ordinance referenced above, since it is to be my Depart- ment's responsibility to enforce this Ordinance and in all due respect to you and the Planning & Zoning Board, I would like to make the following co~ents: Section V a-3 - I would really like to see ~he Ordinance specify, in the case of two recreational vehicles, that only one of them would be allow- ed in the front area; and the other be required to be either in the rear yard, carport or side yard. I really don't feel that this ~uldbe ask- ing too much. e I believe tie downs should be required on all motor homes and travel trailers according to the State Law requirements for mobile'homes. My suggestion would be tow rite this as an additional item as stated below: Section V a-8: All motor home or travel trailer type recreational vehicles shall have provided on site, the equipment necessary to "tie down" said vehicles in the event of a hurricane in a manner equal to State Law requirements for mobile homes. Section VI a-1 - I reconn~_nd deleting Paragraph 1 in its entirety. I do not feel this paragraph is necessary. It would create undue hardship on the Building Department. My Inspectors would have to carry a file with them to detemmine where the plot plan shows the vehicles are to be parked. In addition, the paper workwould be enormous and involved. Personally, I don't believe, if a manwanted to move his vehicle and it met the setback requirements, that we could prevent him from doing so. DATE: TIME:- PLACE: AGENDA PLANNING AND ZONING BOARD Regular Meeting September 13th, 1977 7:30 P.M. Council Chambers City Hall 1. Acknowledgement of Members and Visitors. 2. Reading and Approving of Minutes. 3. Announcements. 4. Communications'. 5. Old Business: New Business: A. Site Plan Approval: 1. Applicant: Enrico Rossi for Roger Saberson~ Trustee Location~Woolbright Rd. between S.W. 18th Street and S.W. 22nd Street. Legal Description: Parcel A, Plat of Tenth Section Palm Beach Leisureville Project Description: 160 unit multi-family development 2. Applicant: John Moffett for Sunshine Square Shopping Center Location: S.W. corner of S.E. 15th Avenue and U.S. 1 Legal Description: Acreage Project Description: Addition of commercial unit along US 1 Bo Discussion: 1. Recreational Vehicle Ordinance. Memo from building official.