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LEGAL/APPROVAL . r/! RESOLUTION NO.~91-3'7 Amending prior Development Orders Adopted November 16, 1982 and December 19, 1989 A Resolution of the City Commission of the City of Boynton Beach, Florida, making findings and conclusions of law pertaining to the Boynton Beach Shopping Mall, a Development of Regional Impact, and constituting this Resolution as a Develop- ment Order by the City of Boynton Beach in compliance with law; providing an effective date; and providing a termination date. WHEREAS, Applicant has had a Development Order approved by the Board of County Commissioners of Palm Beach County ("Reso- lution No. R-74-343) on May 7, 1974 which was adopted by the City on November 16, 1982; which permitted 1,108,000 square feet of gross leasable area; and WHEREAS, Boynton-JCP Associates, Ltd. ("Applicant") has filed a Development of Regional Impact Application for Amended Development Approval with the City of Boynton Beach, Florida, in accordance with Section 380.06! Florida Statutes; and WHEREAS, said Applicant proposes to construct a total of 1,244,449 square feet of commercial retail gross leasable space on the real property whose legal description is set forth in Exhibit "A" (attached to Resolution 89-UUU) and located in the City of Boynton Beach, Florida; and WHEREAS, the City Commission as the governing body of the City of Boynton Beach having jurisdiction, pursuant to Chap- ter 380, Florida Statutes, is authorized and empowered to con- sider Applications for Amended Development Approval for Develop- ments of Regional Impact; and WHEREAS, the City Commission on the 19th day of - 1 - December, 1989, held a duly noticed public hearing on the Devel- opment of Regional Impact Application for Amended Development Approval and has heard and considered the testimony taken thereat; and WHEREAS, the Applicant has revised the Site Plan in accordance with recommendations of the City of Boynton Beach and consistent with the intent of the requirements of the Treasure Coast Regional Planning Council relative to the Pine Area in the northwest corner of the site as shown on Exhibit "1". The Site Plan submitted as Exhibit "2" hereto is herein approved by the City Commission and no further Site Plan review or variances are necessary to construct and occupy improvements in accordance with the Plan except as necessary to adjust parking ratios to imple- ment the recommendation of the Treasure Coast Regional Planning Council and the City of Boynton Beach regarding the Pine Area; and WHEREAS, the City Commission has received and con- sidered the assessment report and recommendations of the Treasure Coast Regional Planning Council; and WHEREAS, the Treasure Coast Regional Planning Council has appealed the Amended Development Order adopted December 19, 1989 and the Applicant has agreed to certain modifications to the Amended Development Order as set forth herein, therefore, this Resolution shall be deemed to be a settlement of the appeal. WHEREAS, the City Commission has made the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. The proposed Development is not in an Area of Critical State Concern designated pursuant to the provisions of Section 380.06, Florida Statutes; - 2 - 2. The State of development plan applicable Development is to be located; Florida has not adopted a land to the area in which the proposed 3. The proposed Development is consistent with the report and recommendations of the Treasure Coast Regional Plan- ning Council submitted pursuant to Section 380.06(12)(2), Florida Statutes; 4. The proposed Development is consistent with the local comprehensive plan, zoning and development laws and regula- tions of the City. If the City staff requests a Comprehensive Plan Amendment or rezoning of the Pine Area as defined in Condi- tion 2 in the future, the Applicant will comply with such request. 5. The premises are correct and hereby accepted by the City. CONCLUSIONS OF LAW NOW, THEREFORE BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, in public meeting, duly con- stituted and assembled this J day of m~,k'tt.# 1991, that the Development of Regional Impact Application for Amended Development Approval approved December 19, 1989 is hereby modified, by replacing the conditions, restrictions and limita- tions under the headings "CONCLUSIONS OF LAW" and "CONDITIONS OF DEVELOPMENT ORDER AS AMENDED" in pages 3 through 8, set forth in Resolution No. 89-UUU with the following conditions, restrictions and limitations: Application for Development Approval 1. The Application by Boynton-JCP Associates, Ltd. for Amended Development Approval is incorporated herein by refer- ence and relied upon by the Parties in discharging their - 3 - statutory duties under Chapter 380, Florida Statutes. The Appli- cant is Boynton-JCP Associates, Ltd. and shall hereafter include the successors and assigns of Boynton-JCP Associates, Ltd. Sub- stantial compliance with the representations contained in the Ap- plication for Amended Development Approval as modified by the terms and conditions herein is a condition of approval. For pur- poses of this condition, the Application for Amended Development Approval shall include the following items: Application for Development Approval dated August 18, 1988, and supplemental information dated September 14, 1988 and December 12, 1980. Commencement and Progress of Development 2. Failure to initiate construction and physical development within two years from the effective date of the Development Order, or failure to maintain reasonable progress toward completion of the development after having initiated con- struction in a timely manner, shall constitute a substantial deviation and the development shall be submited to further review pursuant to Section 380.06, Florida Statutes. Construction shall be deemed to have been initiated and physical development commenced after placement of permanent evi- dence of a structure (other than a mobile home) on a site, such as the pouring of slabs or footings or any work beyond the stage of excavation or land clearing. Termination Date 3. This Development Order shall terminate on December 31, 2010 unless extended by the City Commission. Nothing herein shall limit or extinguish any vested rights of the Applicant, its successors or assigns regarding the existing 1,108,000 square foot of gross leasable area of the existing Boynton Beach Mall. - 4 - CONDITIONS OF DEVELOPMENT ORDER AS AMENDED 1. Except as specifically amended herein, all condi- tions specified in the Development Order (Resolution No. R-74-343) and subsequent amendments to the Development Order for Boynton Beach Mall shall remain in full force and effect. 2. Prior to issuance of a Building Permit for con- struction of additional square footage pursuant to this Amended Development Order, the Applicant shall cause the preservation as a native habitat preserve in perpetuity of that area described as "Limits of Pine Area" shown on Exhibit "1" in the northwest quadrant of the site by recording appropriate Restrictive Cove- nants which, prior to recording, shall be approved by the Trea- sure Coast Regional Planning Council and the City of Boynton Beach. 3. Prior to commencing construction activity within the parcel containing the area to be preserved, (described by "Limits of Pine Area" shown on Exhibit "1"), the preserve area shall be temporarily fenced or otherwise delineated to prevent construction equipment from entering the area. 4. All Brazilian pepper, Australian pine, and Melaleuca on the site (including within the Limits of the Pine Area) shall be removed within two years after the effective date of this Resolution and prior to issuance of a certificate of occupancy for any building constructed pursuant to this Amended Development Order. These species shall not be used in landscaping. 5. A landscaped buffer along the west boundary of the Pine Area and adjacent to Javert Street shall be provided in accordance with the plan attached as Exhibit "1". 6. A. The use of grassy swales to pretreat runoff - 5 - before conveying any runoff to the detention ponds shall be uti- lized in the new parking lot additions, (and the parking lots shall be swept weekly) as shown on the Site Plan (Exhibit "2"). B. Littoral zone planting shall be established around the existing detention ponds utilizing native woody spe- cies. Prior to construction and planting of the littoral zones, the Applicant shall prepare a design and management plan for the littoral zone to be reviewed and approved by the Treasure Coast Regional Planning Council in consultation with the City of Boynton Beach and the South Florida Water Management District. The Plan shall (1) include a Plan view and site location; (2) include a typical cross section of the detention pond; (3) spec- ify how vegetation is to be established within the littoral zones; and (4) provide a description of any monitoring and main- tenance procedures to be followed in order to assure the con- tinued viability and health of the littoral zones. No Certificate of Occupancy shall be issued for any additional square footage constructed pursuant to this Development Order until the Plan is determined to be consistent with the Regional Plan. Wherever possible a minimum of ten square feet of vege- tated littoral zone per linear foot of shoreline shall be estab- lished so that at least sixty percent of the shoreline has a veg- etated littoral zone. Alternate design may be necessary due to physical constraints inherent in retrofitting these existing detention ponds. The littoral zone shall be in place prior to the issuance of a Certificate of Occupancy for any additional square footage to be constructed under this Amended Development Order. 7. Under no circumstances shall post development runoff volumes exceed predevelopment runoff volumes for a storm event of three-day duration and 25-year return frequency. 8 . No building permit shall be issued for - 6 - construction of any additional square footage under this Amended Development Order, until the developer has prepared a hazardous materials management plan for the expansion and the plans have been approved by the Treasure Coast Regional Planning Council and the City of Boynton Beach. The plan shall: A. Require disclosure by tenant of all hazard- ous materials proposed to be stored, used, or generated on the premises; B. Provide minimum standards and procedures for storage, prevention of spills, containment of spills, and trans- fer and disposal of such materials; C. Provide for proper maintenance, and monitoring of hazardous materials management including spill and containment systems; operation, systems, D. Detail actions and procedures to be in case of an accidental spill; followed E. Guarantee financial responsibility for spill clean-up; and F. Require the inspection of premises storing, using, or generating hazardous materials prior to commencement of operation and periodically thereafter, to assure that the provi- sions of the plan are being implemented. 9. No building permits for the Boynton Beach Mall Substantial Deviation shall be issued until all right-of-way within the project boundaries have been dedicated, free and clear of all liens and encumbrances, to the City of Boynton Beach or Palm Beach County as necessary and consistent with the Palm Beach County Thoroughfare Right-of-way Protection Plan. No dedications are necessary to implement the Substantial Deviation. - 7 - 10. No building permits shall be issued for the Boynton Beach Mall Substantial Deviation until contracts have been let for the following roadway improvements: A. Construct Old Boynton West Road between Mili- tary Trail and Lawrence Road as a four-lane divided roadway. No Certificates of Occupancy shall be issued for the Boynton Beach Mall Substantial Deviation until the improve- ments under A above have been completed. With respect to the con- struction of the roadway improvements, if the Treasure Coast Regional Planning Council (hereinafter the "Council") makes a change in its adopted Regional Comprehensive Policy Plan (here- inafter the "Plan") which does the following: (i) modifies its Level of Service standard for the Regional Roadway network; or (ii) modifies the methodology utilized to calculate the adopted Level of Service; or (iii) modifies the method of calculating background traffic, such that if this Substantial Deviation were being reviewed under said modified policies none of the above roadway improvements would be required to maintain the Regional Roadway Network at the then applicable Council Level of Service through project buildout, then this condition will be terminated without further action by the City Commission or the Council. ll. No Building Permits shall be issued for the Boynton Beach Mall Substantial Deviation until contracts have been let to construct to the following intersection configura- tions, including signalization modifications as warranted by City, County, or State criteria: A. Hypoloxo Road/Congress Avenue Northbound Southbound one right-turn lane two through lanes two left-turn lanes one right-turn lane two through lanes two left-turn lanes - 8 - Eastbound Westbound one right-turn lane one right-turn lane two through lanes two through lanes two left-turn lanes two left-turn lanes B. Northwest 22nd Avenue/Congress Avenue Northbound Southbound one right-turn lane one right/through lane two through lanes one through lane one left-turn lane one left-turn lane Eastbound Westbound one right-turn lane one right-turn lane one through lane two through lanes one left-turn lane one left-turn lane C. Old Boynton West Road/Congress Avenue Northbound Southbound one right/through lane one right/through lane two through lanes two through lanes two left-turn lanes one left-turn lane Eastbound Westbound one right-turn lane one right/through lane one through lane one through lane two left-turn lanes one left-turn lane D. New Boynton Beach Boulevard/Congress Avenue Northbound Southbound one right-turn lane three through lanes two left-turn lanes one right-turn lane three through lanes two left-turn lanes Eastbound Westbound one right-turn lane three through lanes two left-turn lanes one right-turn lane three through lanes two left-turn lanes E. New Boynton Beach Boulevard/I-95 West Northbound Southbound Not Applicable one right-turn lane two left-turn lanes Eastbound Westbound one-right turn lane three through lanes three through lanes two left-turn lanes F. New Boynton Beach Boulevard/I-95 East Northbound Southbound one right-turn lane two left-turn lanes Not Applicable - 9 - Eastbound Westbound three through lanes two left-turn lanes one right-turn lane three through lanes All configurations shall be constructed and per- mitted in accordance with City, County, and State criteria. No Certificates of Occupancy shall be issued for the Boynton Beach Mall Substantial Deviation until the improve- ments under A through F have been completed. With respect to the construction of the intersection improvements, (including sig- nalization modifications) if the Treasure Coast Regional Plan- ning Council (hereinafter the "Council") makes a change in its adopted Regional Comprehensive Policy Plan (hereinafter the "Plan") which does the following: (i) modifies its Level of Ser- vice standard for the Regional Roadway network; or (ii) modifies the methodology utilized to calculate the adopted Level of Ser- vice; or (iii) modifies the method of calculating background traffic, such that if this Substantial Deviation were being reviewed under said modified policies none of the intersection improvements (including signalization modifications) would be required to maintain the Regional Roadway Network at the then applicable Council Level of Service through project buildout, then this condition will be terminated without further action by the City Commission or the Council. 12. Prior to, or upon issuance of a building permit for the additional square footage, the Applicant shall pay a fair share contribution consistent with the Fair Share Impact Fee Ordinance applicable to the Boynton Beach Mall Substantial Devia- tion. 13. No additional building permits shall be issued after December 31, 1991 unless a traffic study has been conducted by the developer, and submitted to and approved by Palm Beach County, the City of Boynton Beach and the Treasure Coast Regional - 10 - Planning Council that demonstrates that the regional road network can accomodate a specified amount of additional Boynton Beach Mall generated traffic and growth in background traffic beyond 1989 and still be maintained at Level of Service C during annual average daily traffic and Level of Service D during the peak sea- son, peak hour conditions. The traffic study shall: A. Be (January-March); and conducted in the peak season B. Identify the improvements and timing of those improvements necessary to provide Level of Service C under annual average daily traffic conditions and Level of Service D under peak hour, peak season conditions for the subject transportation network during the projected completion of the project, including project impacts and growth in background traffic. Additional building permits shall not be issued until a new project phasing program and roadway improvement program (nec- essary to maintain Level of Service C annual average daily and Level of Service D peak season, peak hour operating conditions) has been approved by Palm Beach County, the City of Boynton Beach, and the Treasure Coast Regional Planning Council for the remainder of the development. BE IT FURTHER RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AS FOLLOWS: I. Any modifications or deviations from the approved plans or requirements of this Development Order shall be sub- mitted to the Planning Director for a determination by the City Commission of the City of Boynton Beach as to whether the change constitutes a substantial deviation as provided in Section 380.06(19), Florida Statutes. The City Commission of the City of Boynton Beach shall make its determination of substantial devia- tion at a public hearing after notice to the Applicant. - 11 - 2. The City of Boynton Beach shall monitor the devel- opment of the project to ensure compliance with this Development Order. The City of Boynton Beach Planning Director shall be the local official assigned the responsibility for monitoring the development and enforcing the terms of the Development Order. The Planning Director may require periodic reports of the Appli- cant with regard to any item set forth in this Development Order. 3. The Applicant shall submit an annual report as required by Section 380.06(18), Florida Statutes. The annual report shall be submitted on the first anniversary date of the adoption of the Development Order and shall include the follow- ing: A. Any changes in the plan of development, or in the representations contained in the Application for Development Approval, or in the phasing for the reporting year and for the next year; B. A summary comparison of development activity proposed and actually conducted for the year; C. Undeveloped tracts of land that have been sold, transferred, or leased to a successor developer; D. Identification and intended use of the lands purchased, leased or optioned by the Applicant adjacent to the original site since the Development Order was issued; E. An assessment of the Applicant's and local government's compliance with the conditions of approval contained in this Development Order and the commitments specified in the Application for Development Approval and summarized in the Regional Planning Council Assessment Report for the development undertaken; F. Any request for substantial deviation - 12 - determination that was filed in the reporting year or is antici- pated to the filed during the next year; G. An indication of a change, if any, in local government jurisdiction for any portion of the development since the Development Order was issued; H. A list of significant local, State, and fed- eral permits which have been obtained or which are pending by agency, type of permit, permit number, and purpose of each; I. The annual report shall be transmitted to the City of Boynton Beach, the Treasure Coast Regional Planning Coun- cil, the Florida Department of Community Affairs, the Florida Department of Natural Resources, and such additional parties as may be appropriate or required by law; J. A copy of any recorded notice of the adoption of a Development Order or the subsequent modification of an adopted Development Order that was recorded by the Applicant pur- suant to Subsection 380.06(15), Florida Statutes; and K. Any other information reasonably required by the City Commission of the City of Boynton Beach or the Planning Director to be included in the annual report. 4. The definitions found in Chapter 380, Florida Statutes shall apply to this Development Order. 5. The City of Boynton Beach hereby agrees that before December 31, 2010, the Boynton Beach Shopping Mall Devel- opment of Regional Impact shall not be subject to down zoning, unit density reduction, or intensity reduction, unless the City demonstrates that substantial changes in the conditions underlying the approval of the Development Order have occurred, or that the Development Order was based on substantially inaccu- rate information provided by the Applicant, or that the change is - 13 - clearly established by the City of Boynton Beach to be essential to the public health, safety, or welfare. 6. This Development Order shall be binding upon the Applicant and its assignees or successors in interest. It is understood that any reference herein to any governmental agency shall be construed to mean any future instrumentality which may be created and designated as successor in interest to, or which otherwise possesses any of the powers and duties of any refer- enced government agency in existence on the effective date of this Development Order. 7. The approval granted by this Development Order is conditional and shall not be construed to obviate the duty of the Applicant to comply with all other applicable local, State, and federal permitting requirements. 8. In the event that any portion or section of this Development Order is deemed to be invalid, illegal, or unconsti- tutional by a court of competent jurisdiction, such decision shall in no manner affect the remaining portions or sections of the original Development Order, which shall remain in full force and effect. 9. This Development Order shall become effective immediately upon adoption. 10. Certified copies of this Development Order shall be transmitted immediately by certified mail to the Department of Community Affairs, the Treasure Coast Regional Planning Council, and Applicant. - 14 - . . A parcIl of land lylnq In Slatlon 19. Townahlp 45 SoutM;..ln,. .~. tl.t, ,.1. B'Ach County, Florida, b.inq Mor. particularlY d..crtb.d AI Callow.. . , . COlNunce at the c.nt.1' oC' Section 19, th.nc. II o. 51.# 51 'I, don9. the lIol'th South 1/4 Sectton Un. ot said S.ation, & diatanc. ot 35.00 tut, th.nc. II ne sel 21- C, a di,.tana. oC 20.00 (e.t to the princlpal potnt and pllc, o( beqlnnlnq aC the (ollowlnq d..crtption. Thenc. conttnutnq II 81- 58' 21- E . dl.tanc. ot 20.01 t.et to I point, th.nc. " O' 51' 51M W, 110nq I l1n. 40.00 Ceet EI.t 01 And paraU., vith uld Horth South 1/4 S.ctton 11n., .a dialanG' o( 1191.23 (.at to & point on the South rlqht-o(-v.y l1n. at 80ynton Can.l, thence II 88- 051 26" E. donq uld South rlqht-ol-"av lin.. 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