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LEGAL APPROVAL , MARTIN PERRY :OBERT LEE SHAPIRO ,::>RDAN R. MIUER. ILL A, JARKESY Yk.~ ~~~ ~~ ~ g ~~ g:s/ '&43 .9.... ~ ~ ..!Wu .9'.- ~ ~.9.... .!L:A. ~ ~ TELEPHONE (407) 684-4500 PAX (407) 684-1008 ADMITTED IN nORroA ,NO DISTRICT OF COLUMBIA "HAND DELIVERY May 28, 1993 Mr. James Cherof City Attorney City of Boynton Beach Post Office Box 310 Boynton Beach, Florida 33425-0310 """",,, , Re: Cedar Grove Investors N.V./Boynton Sea crest Subdivision Master Plan Our File No.: 3197.01 Dear Mr. Cherof: As you are aware, on May 11, 1993, the Planning and Development Board of the City of Boynton Beach unanimously denied the Boynton Seacrest Subdivision Master Plan. Cedar Grove has appealed the Planning and Development Board's decision in accordance with section 7.5-63 "Appeals Process" of the Code of Ordinances for the Ci ty of Boynton Beach. This appeal is scheduled to be heard by the City commission on June 1, 1993. After many months of review before the City of Boynton Beach Technical Review Committee, the Boynton Beach Subdivision Master Plan complied with all of the requirements of the Code of Ordinances for the City of Boynton Beach. In fact, the various department heads signed off on the Subdivision Master Plan and forwarded it to the Planning and Development Board. The Building Department, Fire Department, utility Department, Police Department, and Public Works Department all approved the Master Subdivision Plan without any comments. The city Engineer, Planning and Zoning Director, and Parks Superintendent also approved the Boynton Seacrest Master Subdivision Plan but approved it with certain conditions. At the Planning and Development Board Hearing, Cedar Grove specifically agreed to all the conditions placed on the Plan by these three Departments. The only issue before the Planning and Development Board related to environmental "regUlations". The Staff recommended to the Planning and Development Board approval of the Plan, "SUbject to the applicant's acknowledgement that the environmental comments by the Planninq and Zoning Department and Forester/Environmentalist will be addres~~at the KhCEIVED J~ J PlANNING Oifff: ~~~.: - Mr. James Cherof May 28, 1993 Page 2 Preliminary Plat stage." (See Gee and Jensen memorandum from W. Richard staudinger, city Engineer to Christopher Cutro, Planning and Zoning Director dated May 5, 1993. ) At the hearing, the Applicant did not agree to address the environmental comments at the Preliminary Plat stage. Thus, the Planning and Development Board based their denial on the Applicant's failure to agree to the Staff comments and conditions related to environmental regulations. This was the sole reason for denial and will be the only issue before the city commission on June 1, 1993. It is the City's contention that Cedar Grove has not complied with Article IV Environmentally Sensitive Lands, Section 7.5-59 through 7.5-63 nor has complied with the city Comprehensive Plan Ordinance No. 89-38, adopted November 7, 1989, Policy 4.3.5. The Applicant has specifically complied with section 7.5-59 which requires that an Environmental Impact Statement be submitted with all applications for site plan or subdivision approval. Cedar Grove submitted an environmental study prepared by Donald Richardson, Ph.D. of Ecological Consultants, Inc. as part of the Boynton Seacrest Master Subdivision Plan submittal. The Applicant has reviewed the Environmentally Sensitive Lands Ordinance and has determined that the language and terms of the Ordinance are vague, indefinite and broad such that the Ordinance is unconstitutional on its face. An expert planner and environmentalist have reviewed the City'S Environmentally Sensitive Lands Ordinance and have ascertained that due to the vague, ~,pverly broad language and absence of criteria, it would be impossible for anyone to comply with the Ordinance. ' If the terms of this Ordinance are imposed on the Applicant by the City, Cedar Grove will challenge the facial validity of the Environmentally Sensitive Lands Ordinance because it is unconstitutional and offensive to the requirements of due process. The City of Boynton Beach also states that the Applicant has not complied with Policy 4.3.5 of the city's comprehensive Plan. That POlicy states as follows: Cognizant of prior development approvals or other vested rights, the City shall require a detailed flora and fauna survey on any "A" rated site subj ect to a development proposal in any site greater than 10-acres in size. The city shall require preservation of a minimum 25' of all native plant communities which occur on "A" rated ecosystems site, the specific location to be determined as a result of the site survey. Habitat shall be preserved with intact canopy, under story and ground cover. ..9~. yg~. ~ J' cfitk.". !?.w Mr. James Cherof May 28, 1993 Page 3 ...-<') . Although the comprehensive Plan references 25% preservation for all "A" rated ecosystems, the city's Comprehensive Plan also contemplated removal of sites from the "A" rated list if specific mechanisms for acquisition and preservation of the site could not be established. (Policy 4.3.2) Furthermore, the Comprehensive Plan contemplated the adoption of conservation and preservation, land development, and density bonus ordinances within one year of plan adoption. These ordinances were drafted by your City staff but never adopted. As a result, Cedar Grove is of the opinion that the Boynton Beach comprehensive Plan by its own terms not only does not require a 25% preserve dedication but actually removes the subject property from the "A" rated list of sites. The Planning and Development Board as well as staff have acknowledged that the sole basis for denial of the Boynton Seacrest Master Subdivision Plan was the lack of a set aside for a preservation area. Cedar Grove previously presented to the City Commission a Planned Unit Development Rezoning Master Plan which included a set aside of 25% of the native plant community as a preservation area. The PUD Master Plan, like the Subdivision Master Plan, met all requirements of the Code of Ordinances of the City of Boynton Beach and, in addition, VOluntarily dedicated a preserve area. The PUD Plan contained approximately the same density as can be achieved under straight zoning, and both plans -were substantially similar in nature. i , , Cedar Grove has been substantially damaged as a result of the City's unfair treatment of it throughout Cedar Grove's pursuance of these development approvals. Since the denial of the Cedar Grove Master Subdivision Plan by the Planning and Development Board was based solely on environmental concerns, the city Commission should reconsider the PUD Master Plan which achieved all of the City'S goals in terms of environmental preservation. Sincerely yours, 9u{j~~~~ F. Martin Perry . FMP/JAJ:psp cc: W. Richard Staudinger Christopher Cutro J. Scott Miller Mayor Edward Harmening c:\WP51\.a1n\cedargro\cherof.lt2 .9-;-,. .9%~40. Jld/a c't cfttho~. .9Si'/.' }~:;\