APPLICATION
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cl ty of Boynton "a~b, rlorlda .'
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Plannln9 and Zonln9 Board
This applicfttlon must be tilled out completely an4 accurately and
submitted, t0gether with the materials li.ted 1n Section 11 below, in two
(2) copies to the Plannin9 Department. Incomplete application. will not be
proce..ed.
Plea.e Print Le9ibly or Type all Information.
,.
1.
Project Name:
I. GENERAL INFORMAoTION
A.PPT.TCATTON NnMR~R 1 t; 'PlAnning A.'-FlA 7.d)
2. Type of Application (check one)
x a. Rezoning only
b. Land Use Amendment only
c. Land Use Amendment and Rezoning
3. Date this Application is Accepted (to be filled out by Planning
Department):
4. Applicant's Name (person or business entity in whose name this
application is made):
City of Boynton Beach
100 E. Boynton Beach Blvd.
Address:
Telephone
Number:
Boynton Beach, Florida 33425-0310
(407) 738-7490
s. Agent's Name (person, if any, representing applicant):
Address:
Telephone
Number:
rh~j~top~~r r".rq. PlAnning ni'-Fl~~O'-
100 E. Boynton Beach Blvd.
Boynton Beach, Florida 33425-0310
(407) 738-7490
6. Property OWner's (or Trustee's) Name:
Address
Telephone
Number:
~~~ ATTACHMENT "AM
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Planning Department S-90
Page 1
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corrospondence~e~. ,if d1U.rent tban .I.loant or .;~th.
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~ This 1s the address to which all agendas, letter., and othor
matorials will be mailed.
8. What is the applicant's intereat in the subject parcel?
(owner, Buyer, Lessee, Builder, Developer, Con~r.ct purch..er, etc.)
.. .
City initiated rezoninq to implement the 1989 Compo 1'~an
9. street Address or Location of Subject Parcel: Outparcel on
the northwest corner of the Boynton Beach Mall
10. Legal Description of Subject Parcel: SEE ATTACHMENT "B"
11_
Area of SUbject Parcel
(to the nearest buDclredth (1/100) o~ &II .:re):
CG-Palm Beach County
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6.92
12.
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14.
Current Zoning District:
Proposed Zoning D~strict:
Current Land Use Category:
REC-City of Boynton Beach
Recreational
15. Proposed Land Use Category: Recreational
16.
Intended Use of Subject .Parcel:
N/A
17. Developer or Builder: N/A
.
18. Architect: N/A
19. Landscape Architect: N/A
20. Site Planner: N/A
2l. Civil Engineerr N/A
22. Traffic Engineer: N/A
23. Surveyor: N/A
Planning Department 5-90
Page 2
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LIGAL DESCRIPTION or APPLICATION 110. 15
C Plannln9 Ar.. 7 .d) ,
THAT PART or S.W. 1/4 OF N.I. 1/4 tYG. W OF RELOCATED L-23 CANAL
AS IN OR 3652 P 1119 IN SECTION 19, RANGE 43 EAST, TOWN:HIP 45
SOUTH, OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA.
CONTAINING 6.92 ACRES MORE OR LESS, AND SUBJECT TO EASEMtNTS AND
RIGHTS OF WAY OF RECORD.
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PETITIONER:
PROJECT NAME:
LOCATION:
NUMBER 15
City of Boynton Beach
Planninq Area 7.d (Land Use Problems and
opportunities )
Parcel on the northwest corner of Boynton
Beach Hall.
Complete leqal description on file in the
Planninq Department, 100 East Boynton Beach
Blvd., Boynton Beach, Florida
Recreational
~ZONE:
From: CG (Palm Beach County, General Com..~
To: REC (Recreation)
NOT I C I 0 F Z 0 N I N G C H A N G B
C I T Y 0 F 8 0 Y N TON 8 I A C H
PUB L I CHI A R I N G S
The City of Boynton Beach propos.. to rezone the foll.~win(9
properties for the purpo.e of 1aplementinq the recommendations
contained in the 1989 Comprehensive Plan. The 1989 Comprehensive
Plan was adopted by Ord1nanc. Number 89-38 on November 7, 1989.
Public hearinqs on the.. proposals will be held before the
Plannin9 and Zonin9 Board on May 14th, 1991 at 7:00 P.M., and
before the City Commlsslon on June 4, 1991 at 6:00 P.M. These
publiC hearinqs will be h.ld 1n the Clty Commission Chambers in
Boynton Beach City Hall at 100 East Boynton Beach Boulevard,
Boynton Beach, Florida.
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LEGAL:
LAND USE:
REQUEST:
ALL INTERESTED PARTIES ARE NOTIFIED TO APPEAR AT SAID HEARINGS IN
PERSON OR BY ATTORNEY AND BE HEARD. ANY PERSON WHO DECIDES TO
APPEAL ANY DECISION OF THE PLANNING AND ZONING BOARD OR CITY
COMMISSION WITH RESPECT TO ANY MATTER CONSIDERED AT THESE
MEETINGS WILL NEED TO ENSURE THAT A VERBATIM RECORD OF THE
PROCEEDINGS IS HADE, WHICH RECORD INCLUDES THE TESTIMONY AND
EVIDENCE UPON WHICH THE APPEAL IS BASED.
PLEASE CALL (407) 738-7490 FOR ANY QUESTIONS RtGARDING THE ABOVE
MATTERS.
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A'1"1'ACHMIH'r -8-
LIGAL DISCRIPTION 01' APPLICA'l'ION NO. 15
(Plannlnq Are. 7.4)
A PARCEL OF LAND LYING IN SECTION 19, 'l'OWNSHIP 45 SOUTH, RANGE 43
EAST, PALM BEACH COUNTY, FLORIDA, SEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
COMMENCE AT THE CENTER OF SAID SECTION 19; THENCE NORTH 00
DEGREES 511 51" WEST, ALONG THE NORTH SOUTH 1/4 SECTION LINE OF
SAID SECTION, A DISTANCE OF 35 FEET; THENCE NORTH 87 'EGREES 581
21" EAST, A DISTANCE or 40.~ FEET TO THE PRINCIPAL POINT AND
PLACE or BEGINNING or THE F LOWING DESCRIPTION: ~f1
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THENCE NORTH 00 DEGREES 51' 51" WEST A CISTA~C F 1191.23 FEET
TO A POINT; THENCE NORTH as DEGREES OS' 26" S A DISTANCE or
331.73 FEET TO A POINT; THENCE SOUTH 00 DEGRE OS' 26" WEST A
DISTANCE or 141.67 FEET TO A POINT; THENCE 225.15 FEET ALONG AN
ARC TO THE RIGHT HAVING A RADIUS OF 324.80 FEET AND A DELTA ANGLE
OF 40 DEGREES 00' 00"; THENCB 300.36 FEET ALONG AN ARC TO THE
LEFT HAVING A RADIUS or 420.20 FEET AND A DELTA ANGLE OF 40
DEGREES 51' 17"; THENCE SOUTH 00 DEGREES 51' 51" EAST A DISTANCE
OF 249.60 FEET TO A POINT; THENCE SOUTH 30 DEGREES 00' 00" WEST A
DISTANCE or 208.61 FEET TO A POINT; THENCE SOUTH 00 DEGREES 51'
51" EAST A DISTANCE or 143.23 FEET TO A POINT; THENCE SOUTH 87
DEGREES 581 21" WEST A DISTANCE or 46.00 rEET TO THE POINT OF
BEGINNING AND CONTAINING 5.16 ACRES or LAND MORE OR LESS.
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The City of Boynton Beach propo... to rezone thr following
properties for the purpose of implementing the reco~mendations
contained in the 1989 Comprehensive Plan. The 1989 Compre~ens1v.
Plan was adopted by Ordinance Number 89-38 on November 7, 1969.
Public hearing. on the.e proposals will be held befole the
planning and zoning Board on July 9th, 1991 at 7:0~ P.M., and
before the City Commission on August 6th, 1991 at 7:00 P.M.
These public hearings will be held in the City Commission
Chambers in Boynton Beach City Hall at 100 East Boynton Reach
Boulevard, Boynton Beach, Florida.
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APPLICATION NUMBER 15
(POSTPONF.O FROM .~ EARLIER DATE)
PETITIONER:
PROJECT NAME:
City of Boynton Beach
Planning Area 7.d (Land Use Problems and
opportunities)
Western portion of parcel at the northwest
corner of the Boynton Beach Mall.
Complete legal description on file in the
Planning Department, 100 East Boynton Beach
Blvd., Boynton Beach, Florida
Recreation
REZONE:
From: CG
To: REC
LOCATION:
LEGAL :,
,
LAND lTSE:
REQUEST: _
(palm Beach County, Generaf Comm.)
(Recreation)
ALL INTERESTED PARTIES ARE NOTIFIED TO APPEAR AT SAID HEARINGS IN
PERSON OR BY ATTORNEY AND BE HEARD., ANY PERSON WHO DECIDES TO
APPEAL ANY DECISION OF THE PLANNING AND ZONING BOARD OR CITY
COMMISSION WITH RESPECT TO ANY HATTER CONSIDERED AT THESE
MEETINGS WILL NEED TO ENSURE THAT A VERBATIM RECORD OF THE
PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND
EVIDENCE UPON WHICH THE APPEAL IS BASED.
PLEASE CAT,L (407) 738-7490 FOR ANY QUESTIONS REGARDING THE ABOVE
HATTERS.
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IN THE
FLORIDA LAND AND WATER ADJUDICATORY COMMISSION
IN RE:
THE BOYNTON BEACH MALL, a Development
of Regional Impact in Boynton
Beach, Florida
NOTICE OF APPEAL OF THE
TREASURE COAST REGIONAL PLANNING COUNCIL
The Treasure Coast Regional Planning Council by and through its
undersigned Attorney hereby gives notice of and enters its appeal to the
Florida Land and Water Adjudicatory Commission ("Commission") pursuant
Section 380.07, Florida Statutes (1989) and other provisions of law, of
Resolution No. 89-U.U.U. of the City of Boynton Beach, FL (a copy of which
is attached hereto and made a part hereof) constituting a development order
pursuant to the provisions of Chapter 380 of the Florida Statutes.
The issues which constitute the grounds for this appeal are specifically
set forth in the Petition of Appeal which is attached hereto and is
incorporated herein by reference and has been filed simultaneously with this
Notice of Appeal pursuant to Rule 42-2.002, Florida Administrative Code.
This appeal involves issues within the scope of a permitting program
authorized by Chapters 373 and 403, Florida Statutes, and for which a permit
or conceptual review approval was obtained prior to the issuance of the
development order as follows: Certain aspects of the issues related to the
drainage system for the project and water quality, as set forth in paragraph
14 of the Petition of Appeal of the Treasure Coast Regional Planning Council
which is attached hereto and incorporated herein by reference.
I HEREBY CERTIFY that an original and one copy of the foregoing Notice of
Appeal has been sent by Federal Express mail to the Office of Planning and
Budget this 14th day of February, 1990 and by first class mail to the
addressees listed on the attached Exhibit A.
LAW OFFICES OF ROGER G. SABERSON, P.A.
Attorney for Treasure Coast Regional
Planning Council
110 East Atlantic Avenue
Delray Beach, Florida 33444
::05)1;;_ t;J~~.
Roger G. Saberson, Esq.
RECEIVED
FEB 15 1990
CITY MANAGER'S O;-r=iCE
'..
Honorable Robert Martinez
Governor
State of Florida
The Capitol
Tallahassee, Florida 32304
Honorable Robert Butterworth
Attorney General
The Capitol
Tallahassee, Florida 32304
Honorable Doyle Conner
Commissioner of Agriculture
The Capitol
Tallahassee, Florida 32304
Honorable Betty Castor
Commissioner of Education
The Capitol
Tallahassee, Florida 32304
Honorable Gerald Lewis
Comptroller
The Capitol
Tallahassee, Florida 32304
Patricia Woodworth
Director of the Office of
Planning and Budgeting
Executive Office of Governor
Room 415, Carlton Building
501 South Gadsden Street
Tallahassee, FL 32301
Mr. Dick A. Greco, Vice President
The Edward DeBartolo Corp.
100 S. Ashley Dr.
Suite 1255
Tampa, Florida 33602
EXHIBIT A
1
Mr. Cormac Conahan
Hodgson, Russ, Andrews,
Woods, and Goodyear
2000 Glades Road
Suite 400
Boca Raton, Florida 33431
J. Scott Miller, City Manager
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33435
Honorable Jim Smith
Secretary of State
The Capitol
Tallahassee, Florida 32304
Honorable Tom Gallagher
Insurance Commissioner
The Capitol
Tallahassee, Florida 32304
G. Steven Pfeiffer, Esq.
General Counsel
Bureau of Land and Water
Management
2740 Centerview Dr.
Tallahassee, FL 32399-2100
Mr. Daniel Cary,
Executive Director
Treasure Coast Regional
Planning Council
3228 S.W. Martin Downs Blvd.
Suite 205
Palm City, Florida 33490
Mr. David Curl, Vice President
The Edward DeBartolo Corp.
7620 Market Street
Youngstown, Ohio 44512
. ~. ,
IN THE
FLORIDA LAND AND WATER ADJUDICATORY COMMISSION
IN RE: BOYNTON BEACH MALL, a Development
of Regional Impact in Palm
Beach County, Florida.
PETITION OF APPEAL OF THE
TREASURE COAST REGIONAL PLANNING COUNCIL
The Treasure Coast Regional Planning Council ("Council"), by
and through its undersigned attorney, files this Petition
pursuant to Section 380.07, Florida Statutes (1989), Section
120.57(1), Florida statutes (1989), and Rule 42-2.002, Florida
Administrative Code (" F . A. C. "), ini tiating an appeal to the
Florida Land and Water Adjudicatory Commission ("Commission")
with respect to Resolution No. 89-U U U ("Amended Development
Order" ) of the City Commission of the City of Boynton Beach,
Florida ("City") constituting a development order pursuant to
Section 380.06, Florida statutes (1989), for the Boynton Beach
Mall, a Development of Regional Impact ("DRI"). As grounds for
its appeal, the Council states:
1. The council, 3228 S.W. Martin Downs Blvd., suite 205, Post
Office Box 1529, Palm City, Florida 33490, is the regional
planning agency with the responsibility under section 380.06
(12), Florida statutes (1989) to review, and to issue a report
and recommendations on, any DRI or amendment thereto, proposed
to be located within the City. The Council is further authorized
1
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by section 380.07 (2), Florida Statutes (1989), to appeal to the
Commission any DRI development order which does not comply with
the standards and requirements of Chapter 380, Florida Statutes
(1989) .
2. As required by section 186.508 (1), Florida Statutes
(1989), the Council has adopted by rule a Regional Comprehensive
Policy Plan ("Regional Plan"). See Rule 29K-5.001, F.A.C..
Pursuant to 186.507 (8), Florida Statutes (1989) the Regional
Plan serves, "in addition to other criteria established by law,
[as] the basis for regional review of developments of regional
impact....." proposed to be located within the Council's
jurisdiction.
3. The Boynton Beach Mall Project is a Development of Regional
Impact pursuant the provisions of Subsection 380.06 of the
Florida Statutes.
4. The Boynton Beach Mall is a regional shopping center, which
was approved as a DRI by Palm Beach County, Fl., by issuance of
a Development Order May 7th 1974 (Resolution No. R-74-343). The
Development Order required, along with other matters, that the
pine area located in the northwest area of the site be
preserved.
5. On May 6, 1975 Palm Beach County adopted Resolution No. R-
75-297 rezoning the subject parcel from agriculture to general
commercial and approving a further special exception to allow
the expansion of the "Regional Shopping Center known as the
Boynton Beach Mall".
6. On September 12, 1978 Palm Beach County adopted Resolution
No. R-78-1132 allowing an additional special exception on the
Boynton Beach Mall property to permit an automotive service
2
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center.
7. On December 22, 1981 Palm Beach County approved Resolution
No. R-81-1652 which authorized the County to enter into an
"Agreement for Roadway Improvements" with the Developer in
anticipation of the Mall and certain out parcels being annexed
into the City of Boynton Beach, Florida.
8. On November 16, 1982 the City of Boynton Beach adopted
Ordinance 82-38 annexing the Mall property except for the
preserve area located in the northwest portion of the site.
9. On April 5, 1988 the City of
Ordinance 88-11 annexing the preserve
northwest portion of the site.
Boynton Beach
area located
adopted
in the
10. On August 18, 1988, the Developer of the Mall submitted
to the City and the Treasure Coast Regional Planning Council its
"Amended Development of Regional Impact Application for
Development Approval for Changes to a Previously Approved
Development of Regional Impact" (hereinafter the "Amended
Application"). The Amended Application proposed changes which
included but are not limited to the following: (i) the addition
of 136,449 square feet of gross leasable area of commercial
retail space, (ii) an increase in the parking and impervious
surface area to accomodate the increase in commercial square
footage, (iii) a reduction in size of the preserve area which
was identified in the original development order to be
preserved, and (iv) modifications to the drainage system.
11. The Treasure Coast Regional Planning Council reviewed the
Amended Application as required by Section 380.06 of the Florida
statutes (1989) and issued its report and recommendations to the
City of Boynton Beach, FL on April 21, 1989 (an excerpt from
the report and recommendations containing the recommended
3
conditions and analysis is attached hereto, incorporated herein
by reference and made a part hereof and is hereinafter referred
to as "Assessment Report"). The report and recommendations
recommended that if the city approved the Amended Application
such approval should be conditioned upon the elim~nation and
resolution of certain adverse impacts of the development
proposal and to mitigate the adverse impacts Treasure Coast
recommended that the approval be subject to 16 conditions.
12. On December 19, 1989 the City issued its Amended
Development Order approving the Amended Application. The
Amended Development Order is attached to the Notice of Appeal
filed simultaneously herewith and is incorporated herein by
reference. The Amended Development Order did not resolve or
eliminate certain substantial adverse impacts of this
development. Therefore, the Treasure Coast Regional Planning
Council at a regularly scheduled meeting held January 19, 1990,
voted to appeal this development order to the Florida Land and
Water Adjudicatory commission as permitted under section 380.07,
Florida statutes (1989).
13. The Amended Development Order of the City does not comply
wi th the standards and requirements of Chapter 380, Florida
statutes (1989), in that the city failed properly to consider
whether, and the extent to which, the proj ect, ( i) would
unreasonably interfere with the achievement of the objectives of
an adopted state land development plan applicable to the area,
(ii) would be consistent with the city's comprehensive plan and
local land development regulations, (iii) would be consistent
with the report and recommendations of the council, and (iv)
would be consistent wi th the State Comprehensive Plan. The
Amended Development Order includes conditions that are
significantly inconsistent with the above and significantly
inconsistent with the Regional Plan. These deviations from the
Council's recommendations are so substantial and significant
4
that the Amended Development Order fails properly to balance the
favorable and adverse impacts of the Boynton Mall DRI, as
required by Chapter 380, Florida statutes (1989).
14. The substantial adverse regional
development not satisfactorily resolved or
development order include the following:
impact~ of this
eliminated in the
A. The adverse impact that would be caused by the
substantial reduction in size or elimination or degradation of
the area set aside as a preserve ("Limits of pine Area") in the
Amended Development Order including but not limited to the
adverse impact on native habitat and its functions and values,
and the loss of this area to serve as a buffer between this
intense commercial development and the residential area adjacent
to it. The Amended Development Order contains inadequate
safeguards to assure that the preserve area as identified in the
Amended Development Order remains intact. It requires only that
the developer "shall confirm" prior to the issuance of the
certificate of occupancy that it will not develop in the
preserve area. The "shall confirm" requirement does not
adequately protect the preserve area. "Shall confirm" is
unreasonably vague as to, (i) the level of commitment to
preserve the area, (ii) what will be the form of commitment i.e.
verbal, letter, binding agreement, deed restrictions etc. and
(iii) how long and under what circumstances will this
"confirmation" remain in effect? The Council has in its Regional
Plan, Goals and Policies related to the preservation of native
upland habitat. As an example see Regional Goals 10.1.2 and
10.2.2 and Policy 10.1.2.2. The Amended Development Order is
inconsistent with these goals and policies, and inconsistent
with Council's Assessment Report.
B. Adverse impact on water quality as related to the
drainage of and from the project and the drainage system for the
5
project:
(i). section 187.201 (8) (a), Florida statutes 1989
(state Comprehensive Plan) provides, "Florida. . . . . . . shall
maintain the functions of natural systems and the overall
present level of surface and ground water quality. Florida shall
improve and restore the quality of waters not presently meeting
water quality standards."
(ii). In implementation of the above state goal the
Council adopted Policy 8.1.1.8 in the Regional Plan providing
that stormwater management systems shall be designed so as to
not adversely effect the quality of water entering the aquifer
recharge areas in the Region. Policy 8.2.1.3 further provides
that the negative impacts of existing land use activities on
surface and groundwater quality and quantity be minimized by
retrofitting to incorporate appropriate water quality management
techniques.
(iii) . According to the Palm Beach County
Environmental Resources Management Office, the surficial aquifer
lies approximately six feet below the surface of the ground in
the entire eastern portion of Palm Beach County and is
considered an aquifer recharge area. The project site is located
in this eastern portion of Palm Beach County.
(iv). The water quality data collected by the South
Florida Water Management District for this project site
indicates that the existing drainage system is resulting in off
site discharge events in which certain pollutants exceed state
water quality requirements and in addition, during rainfall
events, pollutants and heavy metals present in the runoff appear
in samples of groundwater taken just outside the detention
ponds. The addition of 136,449 square feet of commercial retail
space and the attendant increase in parking area and automobile
6
use of the site will increase the adverse impact of this project
on water quality.
(v). The Council in its report and recommendations,
recommended various measures which would enhance and.improve the
capacity of the drainage system to work so as to not adversely
effect the water quality in the aquifer and groundwater.
However, the City's Amended Development Order is significantly
inconsistent with the Council's recommended conditions in this
regard, inconsistent with the Regional Plan, and the state
Comprehensive Plan.
(vi). The Council respectfully submits that the
provisions of Section 380.07 (5) are inapplicable to this appeal
because, (i) notwithstanding the fact that a permit or permits
have been issued for portions of the drainage system by the
South Florida Water Management District ("SFWMDIt) and the
Department of Environmental Regulation (ltDERIt) there are still
discharge events which are occurring wherein the water quality
is not meeting the applicable standards i.e. the drainage system
does not function to accomplish one of its primary purposes,
that the off site discharge be of a consistently high quality
not exceeding state standards for water quality,
(ii) notwithstanding the fact that a permit or permits were
issued for portions of the drainage system, during rainfall
events there are still pollutants and heavy metals present in
the groundwater on the site and (iii) the retrofitting of the
existing drainage system, as recommended by the council, is not
within the scope of a permitting program of either the SFWMD or
DER.
C. Adverse impact
transportation system.
of
this
development
on
the
(i). The Council has several Regional Goals and
Policies related to the transportation system within the Region.
7
As an example and not by way of limitation, council policies
19.2.1.3 and 19.2.1.5 in the Regional Plan require that the
regional roadway network shall be maintained at Level of Service
("LOS") C. or better during average annual 24 hour conditions
(LOS D during peak hour on links and at intersections) and at
LOS D or better during peak season (peak hour and 24 hour
conditions), through the project buildout.
(ii). The Amended Application uses an invalid
assumption that the proposed addition to the Mall will be
completed in 1989. Even if the addition had been completed
within 1989 certain road links and intersections would not be
operating at the above Level of Service, these are the
following:
a. Congress Avenue between N. W. 22nd Avenue and
New Boynton Beach Blvd. is projected to operate at LOS D during
AADT conditions and at LOS F during peak season, peak hour
conditions.
b. Old Boynton West Road between Military Trail
and Lawrence Road is projected to operate at LOS E during AADT
conditions and at LOS F during peak season, peak hour
conditions.
c. The intersection of Congress Avenue and
Hypoluxo is proj ected to be operating at LOS E at proj ect
buildout.
d. The intersection of Congress Avenue and Old
Boynton West Road will require additional through and left turn
lanes in order to achieve .the above Level of Service standard
even after the six laning of Congress Ave.
e. The intersection of New Boynton Beach Blvd.
8
and Congress Avenue is projected to operate at LOS E at project
buildout.
f. The intersection of Boynton Beach Blvd. and
the interchange with I-95 is projected to operate at LOS E at
project buildout.
(iii). The Council in its Assessment Report
indicated that the project traffic impacts could be mitigated by
attaching certain conditions to the development approval which
included but are not limited to;
a. That prior to building permits being issued
that contracts be let for certain specified roadway and
intersection improvements that would be required to permit the
roadway network to operate at the above Level of Service. Also,
that prior to certificates of occupancy being issued that the
roadway and intersection improvements were to be completed.
b. Alternatively, in lieu of some or all of the
specified construction of roadway and intersection improvements
the Council's Assessment report indicated that the City could
substitute an approved mass transit plan meeting certain
criteria which would in effect accomplish the same purpose as
the construction of the specified improvements.
c. The city did not include in the Amended
Development Order either; (i) the conditions relating to the
construction of the specified roadway and intersection
improvements, or (ii) an acceptable mass transit plan. Nor did
the City address at all when entering its Amended Development
Order on December 19, 1989 the fact that the applicant in
projecting traffic conditions utilized what was at that point a
totally invalid assumption i.e. that the addition to the Mall
would be completed in 1989.
9
15. The Treasure Coast Regional Planning Council pursuant to
the provisions of Subsection 380.07 of the Florida Statutes does
hereby request a de novo hearing in regard to this appeal.
WHEREFORE, the Council respectfully requests that the
Commission accept jurisdiction over this appeal and:
A. That the Commission refer this cause to the Division
of Administrative Hearings for a de novo hearing under section
120.57 (1), Florida Statutes (1989); and
B. That the Commission deny and reverse the issuance of
the Amended Development Order for the Boynton Beach Mall DRI in
compliance with the requirements and standards of Chapter 380,
Florida Statutes (1989) and other provisions of law; or
C. In the alternative, that the Commission approve a
amended development order for the Boynton Beach Mall DRI
incorporating the Council's recommended conditions consistent
wi th its Regional Plan or other conditions which effectively
accomplish the same purposes as the Council's conditions, and
D. That the Commission grant such other relief as it
deems just and appropriate.
Respectfully submitted, this 14th day of February, 1990.
I HEREBY CERTIFY that an original and one copy of the
foregoing Petition of Appeal of the Treasure Coast Regional
Planning Council has been sent by Federal Express mail to the
Office of Planning and Budget this 14th day of February 1990 and
10
by first class mail to the addresses listed on the attached
Exhibit A.
LAW OFFICES OF ROGER G. SABERS ON ,
P.A.
Attorney for Treasure Coast
Regional Planning council
110 East Atlantic Avenue
Delray Beach, Florida 33444
(407) 27-2-8616
:' / -,
By: {' , .'l:).J\ 11~ /.,-1 r'~ _
Roger G. Saberson, Esq.
11
(',1...-....-..
TN THE
FLORIDA LAND AND WATER ADJUDICATORY COMMISSION
IN RE: BOYNTON BEACH MALL, a Development
of Regional Impact in Palm
Beach County, Florida.
ADDENDUM TO NOTICE OF APPEAL AND THE PETITION OF APPEAL OF THE
TREASURE COAST REGIONAL PLANNING COUNCIL
The Treasure Coast Regional Planning Council ("Council"), by
and through its undersigned attorney, files this Addendum to its
Notice of Appeal and the Petition of Appeal in this matter.
1. A de novo hearing is requested in the Petition and Notice
of Appeal in this matter, since the records created during the
proceedings below, including the public hearings conducted by
the City of Boynton Beach were not full and complete regarding
the issues presented by the Petition and Notice of Appeal of the
Treasure Coast Regional Planning Council within the meaning of
section 380.07, Florida statutes (1989) and section 120.57,
Florida Statutes (1989)
Respectfully submitted, this 15th day of February, 1990.
I HEREBY CERTIFY that an original and one copy of the
foregoing Addendum to the Notice of Appeal and Petition of
Appeal of the Treasure Coast Regional Planning Council has been
sent by Federal Express m;~; 1 t.O t.he Office of Planning and
Budget this 15th day of Febr\1ary 1990 and by first class mail to
the addresses listed on the attached Exhibit A.
LAW OFFICES OF ROGER G. SABERSON,
P.A.
Attorney for Treasure Coast
Regional Planning Council
110 East Atlantic Avenue
Delray Beach, Florida 33444
(407) 272-8616
(;;6'JItA.1J~~~ -
By:
Roger G. Saberson, Esq.
1
"f{':~ ~.-1 '
.'f'~:"i..l .'~"
~.._._.~
. ""'-D'
\!.. .;j a
~ ~o 1990
~I~ :~I{~NAGE.H'S OfFIC
VlI"!'t "-vi.
_'A".'~"~"-
Honorable Robert Martinez
Governor
State of Florida
The Capitol
Tallahassee, Florida 32304
Honorable Robert Butterworth
Attorney General
The Capitol
Tallahassee, Florida 32304
Honorable Doyle Conner
Commissioner of Agriculture
The Capitol
Tallahassee, Florida 32304
Honorable Betty Castor
Commissioner of Education
The Capitol
Tallahassee, Florida 32304
Honorable Gerald Lewis
Comptroller
The Capitol
Tallahassee, Florida 32304
Patricia Woodworth
Director of the Office of
Planning and Budgeting
Executive Office of Governor
Room 415, Carlton Building
501 South Gadsden Street
Tallahassee, FL 32301
Mr. Dick A. Greco, Vice President
The Edward DeBartolo Corp.
100 S. Ashley Dr.
Suite 1255
Tampa, Florida 33602
EXHIBIT A
1
Mr. Cormac Conahan
Hodgson, Russ, Andrews,
Woods, and Goodyear
2000 Glades Road
Suite 400
Boca Raton, Florida 33431
J. Scott Miller, City Manager
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33435
Honorable Jim Smith
Secretary of State
The Capitol
Tallahassee, Florida 32304
Honorable Tom Gallagher
Insurance Commissioner
The Capitol
Tallahassee, Florida 32304
G. Steven Pfeiffer, Esq.
General Counsel
Bureau of Land and Water
Management
2740 Centerview Dr.
Tallaba5ae~, FL 32399-2100
Mr. Daniel Cary,
Executive Director
Treasure Coast Regional
Planning Council
3228 S.W. Martin Downs Blvd.
Suite 205
Palm City, Florida 33490
Mr. David Curl, Vice President
The Edward DeBartolo Corp.
7620 Market Street
Youngstown, Ohio 44512
.. ..,
IN THE
FLORIDA LAND AND WATER ADJUDICATORY COMMISSION
IN RE: BOYNTON BEACH MALL, a Development
of Regional Impact in Palm
Beach County, Florida.
PETITION OF APPEAL OF THE
TREASURE COAST REGIONAL PLANNING COUNCIL
The Treasure Coast Regional Planning Council ("Council"), by
and through its undersigned attorney, files this Petition
pursuant to section 380.07, Florida Statutes (1989), section
120.57(1), Florida statutes (1989), and Rule 42-2.002, Florida
Administrative Code ("F.A.C."), initiating an appeal to the
Florida Land and Water Adjudicatory Commission ("Commissionll)
with respect to Resolution No. 89-U U U ("Amended Development
Orderll) of the City commission of the City of Boynton Beach,
Florida ("City") constituting a development order pursuant to
Section 380.06, Florida Statutes (1989), for the Boynton Beach
Mall, a Development of Reg:i.onal Impact ("DRI"). As grounds for
its appeal, the Council states:
1. The council, 3228 S.W. Martin Downs Blvd., suite 205, Post
Office Box 1529, Palm city, Florida 33490, is the regional
planning agency with the responsibility under Section 380.06
(12), Florida Statutes (1989) to review, and to issue a report
and recommendations on, any DRI or amendment thereto, proposed
to be located within the cit:y. The Council is further authorized
1
RECEIVED
FEB 1 5 1990
CITY MANAGER'S OFFICE
".
by section 380.07 (2), Florida Statutes (1989), to appeal to the
Commission any DRI development order which does not comply with
the standards and requirements of Chapter 380, Florida statutes
(1989) .
2. As required by Section 186.508 (1), Florida Statutes
(1989), the Council has adopted by rule a Regional Comprehensive
Policy Plan ("Regional Plan"). See Rule 29K-5.001, F.A.C..
Pursuant to 186.507 (8), Florida statutes (1989) the Regional
Plan serves, "in addition to other criteria established by law,
[as] the basis for regional review of developments of regional
impact....." proposed to be located within the Council's
jurisdiction.
3. The Boynton Beach Mall Project is a Development of Regional
Impact pursuant the provisions of Subsection 380.06 of the
Florida statutes.
4. The Boynton Beach Mall is a regional shopping center, which
was approved as a DRI by Palm Beach county, Fl., by issuance of
a Development Order May 7th 1974 (Resolution No. R-74-343). The
Development Order required, along with other matters, that the
pine area located in the northwest area of the site be
preserved.
5. On May 6, 1975 Palm Beach County adopted Resolution No. R-
75-297 rezoning the subject parcel from agriculture to general
commercial and approving a further special exception to allow
the expansion of the "Regional Shopping Center known as the
Boynton Beach Mall".
6. On September 12, 1978 Palm Beach County adopted Resolution
No. R-78-1132 allowing an additional special exception on the
Boynton Beach Mall property to permit an automotive service
2
center.
7. On December 22, 1981 Palm Beach County approved Resolution
No. R-81-1652 which authorized the County to enter into an
"Agreement for Roadway Improvements" with the Developer in
anticipation of the Mall and certain out parcels being annexed
into the City of Boynton Beach, Florida.
8. On November 16, 1982 the City of Boynton Beach adopted
Ordinance 82-38 annexing the Mall property except for the
preserve area located in the northwest portion of the site.
9. On April 5, 1988 the City of
Ordinance 88-11 annexing the preserve
northwest portion of the site.
Boynton Beach
area located
adopted
in the
10. On August 18, 1988, the Developer of the Mall submitted
to the city and the Treasure Coast Regional Planning Council its
"Amended Development of Regional Impact Application for
Development Approval for Changes to a Previously Approved
Development of Regional Impact" (hereinafter the "Amended
Application"). The Amended Application proposed changes which
included but are not limited to the following: (i) the addition
of 136,449 square feet of gross leasable area of commercial
retail space, (ii) an increase in the parking and impervious
surface area to accomodate the increase in commercial square
footage, (iii) a reduction in size of the preserve area which
was identified in the original development order to be
preserved, and (iv) modifications to the drainage system.
11. The Treasure Coast Regional Planning Council reviewed the
Amended Application as required by section 380.06 of the Florida
statutes (1989) and issued its report and recommendations to the
City of Boynton Beach, FL on April 21, 1989 (an excerpt from
the report and recommendations containing the recommended
3
conditions and analysis is attached hereto, incorporated herein
by reference and made a part hereof and is hereinafter referred
to as "Assessment Report"). The report and recommendations
recommended that if the City approved the Amended Application
such approval should be conditioned upon the elimination and
resolution of certain adverse impacts of the development
proposal and to mitigate the adverse impacts Treasure Coast
recommended that the approval be subject to 16 conditions.
12. On December 19, 1989 the City issued its Amended
Development Order approving the Amended Application. The
Amended Development Order is attached to the Notice of Appeal
filed simultaneously herewith and is incorporated herein by
reference. The Amended Development Order did not resol ve or
eliminate certain substantial adverse impacts of this
development. Therefore, the Treasure Coast Regional Planning
Council at a regularly scheduled meeting held January 19, 1990,
voted to appeal this development order to the Florida Land and
Water Adjudicatory Commission as permitted under section 380.07,
Florida statutes (1989).
13. The Amended Development Order of the City does not comply
with the standards and requirements of Chapter 380, Florida
statutes (1989), in that the City failed properly to consider
whether, and the extent to which, the proj ect, ( i) would
unreasonably interfere with the achievement of the objectives of
an adopted state land development plan applicable to the area,
(ii) would be consistent with the City's comprehensive plan and
local land development regulations, (iii) would be consistent
with the report and recommendations of the council, and (iv)
would be consistent with the State Comprehensive Plan. The
Amended Development Order includes conditions that are
significantly inconsistent with the above and significantly
inconsistent with the Regional Plan. These deviations from the
Council's recommendations are so substantial and significant
4
that the Amended Development Order fails properly to balance the
favorable and adverse impacts of the Boynton Mall DRI, as
required by Chapter 380, Florida statutes (1989).
14. The substantial adverse regional impacts of this
development not satisfactorily resolved or eliminated in the
development order include the following:
A. The adverse impact that would be caused by the
substantial reduction in si.ze or elimination or degradation of
the area set aside as a preserve ("Limits of pine Area") in the
Amended Development Order including but not limited to the
adverse impact on native habitat and its functions and values,
and the loss of this area to serve as a buffer between this
intense commercial development and the residential area adjacent
to it. The Amended Development Order contains inadequate
safeguards to assure that the preserve area as identified in the
Amended Development Order remains intact. It requires only that
the developer "shall confirm" prior to the issuance of the
certificate of occupancy that it will not develop in the
preserve area. The "shall confirm" requirement does not
adequately protect the preserve area. "Shall confirm" is
unreasonably vague as to, (i) the level of commi tment to
preserve the area, (ii) what will be the form of commitment i.e.
verbal, letter, binding agreement, deed restrictions etc. and
(iii)
how long and under what circumstances will this
"confirmation" remain in effect? The Council has in its Regional
Plan, Goals and Policies redated to the preservation of native
,
upland habitat. As an example see Regional Goals 10.1.2 and
10.2.2 and Policy 10.1.2.2. The Amended Development Order is
inconsistent with these goals and policies, and inconsistent
with Council's Assessment Report.
B. Adverse impact on water quality as related to the
drainage of and from the project and the drainage system for the
5
project:
(i). section 187.201 (8) (a), Florida statutes 1989
(state Comprehensive Plan) provides, "Florida...... . shall
maintain the functions of natural systems and the overall
present level of surface and ground water quality. Florida shall
improve and restore the quality of waters not presently meeting
water quality standards."
(ii). In implementation of the above state goal the
Council adopted Policy 8.1.1.8 in the Regional Plan providing
that stormwater management systems shall be designed so as to
not adversely effect the quality of water entering the aquifer
recharge areas in the Region. Policy 8.2.1.3 further provides
that the negative impacts of existing land use activities on
surface and groundwater quality and quantity be minimized by
retrofitting to incorporate appropriate water quality management
techniques.
(iii) . According to the Palm Beach County
Environmental Resources Management Office, the surficial aquifer
lies approximately six feet below the surface of the ground in
the entire eastern portion of Palm Beach County and is
considered an aquifer recharge area. The project site is located
in this eastern portion of Palm Beach County.
(iv). The water quality data collected by the South
Florida Water Management District for this project site
indicates that the existing drainage system is resulting in off
site discharge events in which certain pollutants exceed state
water quality requirements and in addition, during rainfall
events, pollutants and heavy metals present in the runoff appear
in samples of groundwater taken just outside the detention
ponds. The addition of 136,449 square feet of commercial retail
space and the attendant increase in parking area and automobile
6
use of the site will increase the adverse impact of this project
on water quality.
(v). The Counci.l in its report and recommendations,
recommended various measures which would enhance and improve the
capacity of the drainage system to work so as to not adversely
effect the water quality in the aquifer and groundwater.
However, the City's Amended Development Order is significantly
inconsistent with the Council's recommended conditions in this
regard, inconsistent with the Regional Plan, and the state
Comprehensive Plan.
(vi). The Council respectfully submits that the
provisions of section 380.07 (5) are inapplicable to this appeal
because, (i) notwithstanding the fact that a permit or permits
have been issued for portions of the drainage system by the
South Florida Water Management District ("SFWMD") and the
Department of Environmental Regulation ("DER") there are still
discharge events which are occurring wherein the water quality
is not meeting the applicable standards i.e. the drainage system
does not function to accomplish one of its primary purposes,
that the off site discharge be of a consistently high quality
not exceeding state standards for water quality,
(ii) notwithstanding the fact that a permit or permits were
issued for portions of the drainage system, during rainfall
events there are still pollutants and heavy metals present in
the groundwater on the site and (iii) the retrofitting of the
existing drainage system, as recommended by the Council, is not
within the scope of a permitting program of either the SFWMD or
DER.
C. Adverse impact of this development on the
transportation system.
(i). The Council has several Regional Goals and
Policies related to the transportation system within the Region.
7
. ,
As an example and not by way of limitation, Council policies
19.2.1.3 and 19.2.1.5 in the Regional Plan require that the
regional roadway network shall be maintained at Level of Service
("LOS") C or better during average annual 24 hour conditions
(LOS D during peak hour on links and at intersections) and at
LOS D or better during peak season (peak hour and 24 hour
conditions), through the project buildout.
(ii). The Amended Application uses an invalid
assumption that the proposed addition to the Mall will be
completed in 1989. Even if the addition had been completed
within 1989 certain road links and intersections would not be
operating at the above Level of Service, these are the
following:
a. Congress Avenue between N.W. 22nd Avenue and
New Boynton Beach Blvd. is projected to operate at LOS D during
AADT conditions and at LOS F during peak season, peak hour
conditions.
b. Old Boynton West Road between Military Trail
and Lawrence Road is projected to operate at LOS E during AADT
conditions and at LOS F' during peak season, peak hour
conditions.
c. The intersection of Congress Avenue and
Hypoluxo is projected to be operating at LOS E at project
buildout.
d. The intersection of Congress Avenue and Old
Boynton West Road will require additional through and left turn
lanes in order to achieve the above Level of Service standard
even after the six laning of Congress Ave.
e. The intersection of New Boynton Beach Blvd.
8
and Congress Avenue is projected to operate at LOS E at project
buildout.
f. The intersection of Boynton Beach Blvd. and
the interchange with 1-95 is projected to operate at LOS E at
project buildout.
(iii). The Council in its Assessment Report
indicated that the project traffic impacts could be mitigated by
attaching certain conditions to the development approval which
included but are not limited to;
a. That prior to building permits being issued
that contracts be let for certain specified roadway and
intersection improvements t.hat would be required to permit the
roadway network to operate at the above Level of Service. Also,
that prior to certificates of occupancy being issued that the
roadway and intersection improvements were to be completed.
b. Alternatively, in lieu of some or all of the
specified construction of roadway and intersection improvements
the Council's Assessment r~~port indicated that the City could
substitute an approved mass transit plan meeting certain
criteria which would in effect accomplish the same purpose as
the construction of the specified improvements.
c. The City did not include in the Amended
Development Order either; (i) the conditions relating to the
construction of the spE!cified roadway and intersection
improvements, or (ii) an ac.:;:eptable mass transit plan. Nor did
the City address at all when entering its Amended Development
Order on December 19, 1989 the fact that the applicant in
projecting traffic conditions utilized what was at that point a
totally invalid assumption'i.e. that the addition to the Mall
would be completed in 1989.
9
15. The Treasure Coast Regional Planning Council pursuant to
the provisions of Subsection 380.07 of the Florida Statutes does
hereby request a de novo hearing in regard to this appeal.
WHEREFORE, the Council respectfully requests that the
Commission accept jurisdiction over this appeal and:
A. That the Commission refer this cause to the Division
of Administrative Hearings for a de novo hearing under section
120.57 (1), Florida Statutes (1989); and
B. That the Commission deny and reverse the issuance of
the Amended Development Order for the Boynton Beach Mall DRI in
compliance with the requirements and standards of Chapter 380,
Florida Statutes (1989) and other provisions of law; or
C. In the alternative, that the Commission approve a
amended development order for the Boynton Beach Mall DRI
incorporating the Council's recommended conditions consistent
with its Regional Plan or other conditions which effectively
accomplish the same purposes as the Council's conditions, and
D. That the Commission grant such other relief as it
deems just and appropriate.
Respectfully submitted, this 14th day of February, 1990.
I HEREBY CERTIFY that an original and one copy of the
foregoing Petition of Appeal of the Treasure Coast Regional
Planning Council has been sent by Federal Express mail to the
Office of Planning and Budget this 14th day of February 1990 and
10
Honorable Robert Martinez
Governor
State of Florida
The Capitol
Tallahassee, Florida 32304
Honorable Robert Butterworth
Attorney General
The Capitol
Tallahassee, Florida 32304
Honorable Doyle Conner
Commissioner of Agriculture
The Capitol
Tallahassee, Florida 32304
Honorable Betty Castor
Commissioner of Education
Thp r.npitol
Tallahassee. Florida j2j()/~
Honorable Gerald Lewis
Comptroller
The Capitol
Tallahassee, Florida 32304
Patricia Woodworth
Director of the Office of
Planning and Budgeting
Executive Office of Governor
Room 415, Carlton Building
501 South Gadsden Street
Tallahassee, FL 32301
Mr. Dick A. Greco, Vice President
The Edward DeBartolo Corp.
100 S. Ashley Dr.
Suite 1255
Tampa, Florida 33602
EXHIBIT A
1
Mr. Cormac Conahan
Hodgson. Russ, Andrews,
Woods, and Goodyear
2000 Glades Road
Suite 400
Boca Raton, Florida 33431
J. Scott Miller, City Manager
City of Boynton Beach
100 E. Boynton Beach Blvd.
Boynton Beach, FL 33435
Honorable Jim Smith
Secretary of State
The Capitol
Tallahassee, Florida 32304
Honorable Tom Gallagher
Insurance Commissioner
'I'll<' Clip It () 1
T[lll ahElssee, Flori dEl 32304
G. Steven Pfeiffer, Esq.
General Counsel
Bureau of Land and Water
Management
2740 Centerview Dr.
Tallahassee, FL 32399-2100
Mr. Daniel Cary,
Executive Director
Treasure Coast Regional
Planning Council
3228 S.W. Martin Downs Blvd.
Suite 205
Palm City, Florida 33490
Mr. David Curl, Vice President
The Edward DeBartolo Corp.
7620 Market Street
Youngstown, Ohio 44512