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LEGAL APPROVAL DEPARTMENT OF DEVELOPMENT PLANNING AND ZONING DIVISION . Building . Planning & Zoning . Occupational Licenses . Community Redevelopment February 3, 2003 Jennifer LISZak Land Design South 2101 Centerpark West Drive, Ste 100 West Palm Beach, FL 33409 Re: File Nos: Location: Hampton Court Rezoning and New Site Plan Approval REZN 02-007 and NWSP 02-023 East of Congress; South ofSW 23 Avenue Dear Ms. Liszak: Please be informed that pursuant to the attached Joint MotIon and Agreed Order, the parties could petitIOn the court for modifications to the Settlement Agreement If a favorable recommendation was obtained from the Planning & Development Board. Given the recommendatIOn for denial by the Board, the Agreement cannot be forwarded to the court for amendment, which is a prerequisite for the subject rezoning and new site plan. Therefore, the above-referenced applications are construed to be denied and files documented accordingly. Should you have any questIons regardmg thiS matter, please feel free to contact thiS office at (561) 742-6260. Sincerely, /") .~ /' IWJ<.- Michael W. Rumpf DIrector of Planning & Zoning Ene!. Jomt MotIon and Agreed Order Ce: Bob Bentz, Land DeSIgn South MWR:PAT S:lPlanning\SHAREDlWPIPROJECTSlHampton Court\REZN 02-007IHampton Court REZN 02-007 & NWSP 02-023 denialletter.doc City of Boynton Beach . 100 East Boynton Beach Blvd., P.O. Box 310 . Boynton Beach, Florida 33425-0310 Phone: (561) 742~260 . www.ci.boynton-beach.fl.us Meeting Minutes Planning & Development Board Bovnton Beach, Florida Januarv 28. 2003 Development (PUD) to allow the site planning for 66 fee-simple townhouses. 7.G. New Site Plan 2. PROJECT: AGENT: OWNER: LOCATION: DESCRIPTION: U:"""M'l!ftijf,(' ~M;j'llolI; (NWSP 02 023) ~1!'!J.{"_n \iii_I!ti - Jennifer Liszak-Land Design South RSPB LLC East of Congress; south of SW 23rd Avenue Request for site plan approval for 66 dwelling units within seven (7), two-story, fee simple townhouse buildings on 4.70 acres in a proposed PUD zoning district. The above two items were heard out of order. Chairman Friedland announced that the above two items would be heard together but voted on separately. Dick Hudson, Senior Planner, explained that this is a unique case. This property is subject to a settlement and stipulation agreement from the court in 1989. That settlement agreement allowed the property to be rezoned to R-3 at that time. However, the use of the property was limited to an Adult Congregate Living Facility (ACLF) with a total of 248 beds for the two properties on the south side of Golf Road. There were also restrictions in that agreement that governed building height, the roof pitch, the parking lot lighting, the dumpster placement, the use of the Lake Worth Drainage District Canal right-of-way, and buffering and landscaping. There was also a requirement that any development on the site would be coordinated with the homeowners' associations of adjacent residential neighborhoods. The applicants went to court to ask for reconsideration of this agreement. The court said that if the Planning & Development Board gave an affirmative vote to the project, then the court would review the settlement agreement. This project, if approved, would go back to the court before it would go to the City Commission for review. This vacant property consists of 4.7 acres, classified as High Density Residential that allows 10.8 dwelling units per acre. The request is to rezone the property from R-3 to PUD in order to build a 66-unit townhouse condominium complex with a recreation facility. To the west of this property is a developed 93-bed ACLF that was developed consistent with the terms of the settlement agreement. 4 Meeting Minutes Planning & Development Board Bovnton Beach. Florida Januarv 28. 2003 The applicants are proposing 66 condominium units in seven 2-story buildings. The recreation area occupies 12,632 square feet on the southeast corner of the site. The total pervious area for the site is 86,403 square feet. PUD regulations state that a 5-acre site is the minimum site for a PUD. However, if this Board and the City Commission agree that a smaller parcel should be approved as a PUD, then it can be done. The PUD regulations from 1989 state a certain percentage of the PUD must be set aside for recreation and open space. A five-acre site would require approximately 24,000 square feet of recreation area and open area of 149,000 square feet and they are proposing slightly less than that. The proposed structures meet the two-story limit of the settlement agreement. The roof pitch is very close to what the settlement agreement required.. There is no wall shown on the site plan, which was required. There is nothing in the site plan that indicates there will be any use of the Lake Worth Drainage District's right-of-way. Staff's one major problem is with the density. The applicants propose slightly more than 14 units per acre and the maximum allowed on the property is 10.8. Mr. Hudson explained how the applicants arrived at the 66 units. They said they are using the unused density because the ACLF only used 93 beds and so there should be 155 beds remaining. Using the City's 2.3 beds per dwelling units, they believe they should get 67 units. The City does not have a program for transferring density between properties under separate ownership. Staff does not recommend approval of this rezoning at this time. Eric Johnson, Planner, presented the site plan portion of the application. The applicants propose 66 townhouses built in one phase. They submitted an environmental assessment. There were no endangered, threatened, or species of special concern observed on the site. There are ospreys; however, they are not listed as a species of special concern in the State of Florida except in Monroe County. The project meets the Palm Beach County Traffic Performance Standards. The paving, grading, and drainage plan shows that there would be outfall into the Lake Worth Drainage District (LWDD) canal. This outfall would require all permits from the LWDD. When improving property that abuts the LWDD right-of-way, a developer must dredge or improve that portion of the right-of-way. Any vegetation in the right-of-way may be required by the LWDD to be removed. If possible, the City staff requests that the applicant petition the LWDD to dredge the right-of-way adjacent to the subject property to the minimal extent pOSSible so not to impact the flora and fauna that may be in the right-of-way. There would be one point of ingress/egress off of Golf Road. The Fire Department would require "knock" boxes on the two gated openings to accommodate emergency vehicles. The required parking spaces are 137 and the applicant proposes 158. The pervious area would be 41.5% of the site. The depth of the west landscape buffer would vary between 27 and 10 feet. The south 5 Meeting Minutes Planning &. Development Board Boynton Beach, Florida January 28, 2003 landscape buffer would be between 25 and 9 feet. The east landscape buffer would vary between 40 and 15 feet. The roadway buffer would be 15 feet in width. A 6-foot wall would surround the entire property except for the south buffer line. This is in conflict with the settlement agreement. PUD allows a height of 45 feet and the height of the proposed buildings is less. However, a lesser height could be imposed if the compatibility with adjacent properties is an issue. The outdoor lighting fixtures would be 10 feet in height and illuminated until 2:00 a.m. This is required by code. The settlement agreement only allows the lights to be on until 11 :00 p.m. There would be an entry sign but no building wall signs. There are 37 conditions of approval. Michael Weiner, attorney representing Centex, confirmed that they agree to 34 of the conditions and would be discussing three of them. He reminded the Board that Mr. Hudson said that staff only objected for one reason and that one reason concerned transferring of densities between properties. His clients were not involved in this 1989 litigation and they inherited this baggage. Bob Bentz, Land Design South, showed a PowerPoint presentation regarding the surrounding uses. To the west on Congress Avenue, commercial office buildings are being built. To the north of that is high density residential with 10.8 dwelling units per acre. The largest area surrounding this property is Leisureville with up to 7.8 dwelling units per acre. To the east of the project is Golfview Harbor that is primarily a single family residential area. South of the project across the canal is a single-family residential community. This canal is a very large canal that can be navigated by boats and proVides a large separation between this development and the single-family homes on the other side. The adjacent parcel is the Homewood Residence Congregate Living Facility. Mr. Weiner explained that the applicants are requesting 66 units in seven 2-story buildings. The staff analysis is made up of two parts. The first part concerns the fact that this piece of property contains less than 5 acres. The second part deals with the eight criteria taken from the Land Development Regulations, Chapter 2, Section 9. The applicants' burden is to prove that the project is consistent with the Comprehensive Plan and complies with the procedural requirements of this particular zoning ordinance in question. The City's burden is to demonstrate that maintaining the existing zoning classification would accomplish a legitimate publiC purpose. Mr. Weiner maintained that there is no legitimate purpose served by keeping the present zoning in place. 6 Meeting Minutes Planning 8r. Development Board Bovnton Beach. Florida Januarv 28.2003 What makes this rezoning different from others is the existence of the lawsuit entitled Milnor Corporation, etal vs. the City of Boynton Beach. This case is more than 14 years old. It involved this piece of property and the surrounding homeowners' associations. This litigation occurred long before the applicants were involved. A settlement was reached in 1990 that allowed for development. A stipulation provided that the court should at all times maintain jurisdiction. All the stakeholders in the lawsuit must be satisfied and they are. That is why this proposal meets the terms of the Comprehensive Plan and the terms of the litigation. The Land Use Problems and Opportunities section of the Comprehensive Plan states that the land use, zoning, and development of the property shall be in accordance with the settlement and stipulation agreement. The homeowners' associations did approve a proposal substantially similar. Their attorneys took this to the court and the court directed the applicants back to the City. The homeowners' associations have seen the site plan and agreed that the applicant could proceed. If the Board does not approve this, the only thing that can be built is what is in the stipulation agreement, which is an ACLF. Staff's report stated that restricting this property to an ACLF may leave it undevelopable. Staff said this may decrease compatibility with surrounding homeowners. Mr. Weiner urged the Board to vote in favor of the rezoning and the site plan. Bob Bentz explained that the area of the litigation is almost 10 acres in size. It includes the western portion of the property that was developed. The agreement said that 248 beds would be developed on the property. Ninety-three beds were developed on the western portion. Therefore, there are 155 beds remaining. He explained that if you divide 155 by 2.3, which is the ratio of beds to residential units in the City, this represents 67 equivalent units. The project is consistent with the Comprehensive Plan because the Plan says that the stipulation agreement will be followed for these properties. Regarding the overall site plan, it was designed to be sensitive to the surrounding community. This project would provide a transition between the large two-story buildings to the west (ACLF) and the single-family units to the east. There would be very few units (8) abutting the eastern boundary of the site. There would be one main access that is a gated access and three emergency only access points. This site plan would be very compatible with the surrounding area and the property meets all concurrency. There are three conditions of approval that Mr. Bentz discussed. ~ Regarding condition #19 - they do not want to cut down the trees. They will keep those trees as long as the Lake Worth Drainage District does not object. ~ Regarding condition #25 (signage) - they want to have their own identify and not look like the existing ACLF. 7 Meeting Minutes Planning & Development Board Bovnton Beach. Florida Januarv 28. 2003 ~ Condition #33 - they would like to not have a wall on the southern boundary of their project so that their residents would have a view of this large canal. Mr. Weiner presented into the record the following: ~ Boynton Beach Comprehensive Plan ~ Boynton Beach support documents ~ Comprehensive Plan criteria ~ Settlement Agreement ~ Letters of agreement from homeowners' associations These items are marked "Exhibit A" and are on file in the office of the City Clerk. In answer to Mr. Cwynars question regarding what associations signed the agreement, Mr. Weiner stated that Golfview Harbor Homeowners' Association, Inc. and Golfview Harbor Estates signed it. When questioned regarding whether Leisureville needed to approve, Mr. Hudson referred the Board to page 6 (9 a and b) of the Stipulation and Settlement Agreement that states that Boynton Leisureville was a party to the Alhambra North Parcel agreement and Golfview Harbor and Golfview Harbor Estates were parties to the Alhambra South and Alhambra ACLF Parcel agreement. Richard Barrows, 2203 SW 22nd Way, Boynton Leisureville, strongly recommended widening 23rd Avenue and making it three lanes with a left turn lane in the middle. He also recommended a traffic light on 23rd Avenue. Carlos Rosello, 1321 SW 25th Avenue, lives across the canal from the proposed project. He is opposed to the plans. The representatives of Centex made it clear that their plans would include usage of some water features of the canal. With four people per unit, a minimum of 264 people would be living on 4.7 acres. This would be an overcrowded development. Also, there are native species of birds and fish that inhabit the canal. He was also concerned regarding the Impact on emergency vehicles as SW 23rd Avenue is two lane and there is no traffic light on 23rd. Another concern was regarding schools exceeding their capacity. Mr. McDowell, 1341 SW 25th Avenue, lives across the canal. He felt that the needs of a few would be overruling the residents who have been here for many years. He was concerned regarding the high density. This canal is not a mammoth canal. He asked the Board to consider the rights of the residents who live there. He pointed out that the homeowners' associations that they are talking about are not mandatory homeowners' associations. A lot of the people in the associations do not live near the canal and he felt that they voted on something on which they did not understand the impact. 8 Meeting Minutes Planning & Development Board Bovnton Beach, Florida Januarv 28, 2003 Paul Fassolo, 1405 SW 25th Avenue, said that the canal is approximately 6 feet deep and 42 feet wide. He was concerned that this project would decrease property values. He also had a concern regarding the traffic problems on Golf Road. He presented a photograph that is marked "Exhibit B" and is on file in the office of the City Clerk. Doug Badin, 2314 SW 13th Street, felt that the units would be too close to his house. This area was previously zoned for single-family residential and then ACLF. Now, they want condominiums. He suggested single-family zoning or a park. Scott Berger, 2324 SW 13th Street, presented photographs taken after Hurricane Irene after they built the current ACLF. They are marked "Exhibit C" and are on file in the office of the City Clerk. He was concerned regarding the traffic on 23rd Avenue. The applicants did not talk to the residents in the surrounding area across the canal, on 23rd Avenue, or 13th Street. He is opposed to this high density. Steve Brandt, was representing his parents who live at 2344 SW 13th Street. Under the stipulation, the property is zoned R-3 for an ACLF. If there were no agreement, the property would be zoned R-1-AA. He felt that the only reason the people in the surrounding area agreed to the settlement with Milnor was because the ACLF agreed to certain stipulations. Milnor had agreed to put in a wall on the south side, move the pool and the dumpster to the interior of the site, and that the lights would go off at 11 :00 p.m. If the zoning was going to change, it should revert back to R-1-AA. His biggest concern was the location of the pool and the secondary access. Peter Ryland, 1311 SW 25th Avenue, stated that he was there when the stipulation agreement was reached in 1989. It was changed to R-3 zoning only because it was to be an ACLF. ACLFs are much different from residential units. He felt that there is much more water used and more traffic generated by residential units. Mr. Ryland received notice of the Golfview Harbor Homeowners' Association meeting the day before the meeting and many people did not receive notices. On the basis of the vote at that meeting, the president of the association signed the agreement. There are a large group of homeowners who do not want this project. Mr. Weiner respectfully reserved the right to appeal to the City Commission. He said that the Board must make decisions based on the law. The applicant wants to buy the land subject to a lawsuit. He reiterated that staff said there were no endangered species on the site. It is only scrub land. It should be developed. The homeowners' associations both voted in favor of this project. Mr. Weiner stated that they should not take blocking someone's view as a reason to deny. The testimony from lay people on traffic is not competent testimony and the Board cannot rely on this. The project meets concurrency. Residential is one of the lowest traffic generating uses and an ACLF would generate more traffic. They received school concurrency today. The stipulation said we can have this density, the court controls it, and two homeowners' associations have approved it. 9 Meeting Minutes Planning It Development Board Boynton Beach. Florida Januarv 28. 2003 Mr. Hillery asked whether this could be zoned something other than this requested zoning or zoning for an ACLF. Mike Rumpf, Planning & Zoning Director, explained that the settlement agreement limits it to an ACLF. No matter what they asked for, they would need to change the settlement agreement. Mr. Casaine said that concerned citizens came to this meeting and the Board also has the responsibility to uphold their quality of life. Ms. Butler questioned the conversion of beds to dwelling units. Mr. Rumpf clarified that staff has never shifted density between projects that are not connected by a master plan. These two are not connected by a master plan. The settlement agreement does not state that the property can be developed at a certain density; it states the number of beds that can be developed. The density requested exceeds the Comprehensive Plan and staff does not support that density. Mr. Hay asked staff how they felt about the three conditions of approval that the applicant had objections to. Mr. Rumpf stated that that condition # 19 is a recommendation; however, he would not want to recommend something that another agency would have a problem with. He would suggest that language be added to state "subject to canal district approval." Concerning condition #25, Mr. Rumpf said that this project and the ACLF would be seen together and it would be nice to visually connect them. He is not saying that they have to be identical but something compatible. Regarding condition #33, staff thought this would be a visual buffer. Of the three conditions discussed, staff stands strongest behind condition#33. Mr. Weiner stated that if this rezoning is granted tonight, the applicant would be willing to discuss the three conditions. He also said that the stipulation says no less than 248 beds and Milnor would never agree with R-1-M zoning. When questioned, Mr. Weiner stated that Centex is the contract vendee. Mr. Cwynar questioned whether there was any expansion plan for Golf Road by Palm Beach County. Mr. Rumpf was not aware of any. 10 Meeting Minutes Planning a. Development Board Bovnton Beach. Florida Januarv 28, 2003 Mr. Cwynar asked whether the pool could be placed on the west side of the property. Mr. Bentz said that they put the pool to the east because that pushed the two-story buildings further to the west away from the single-family residential district. They thought it was more compatibility but they would consider a change. In response to a question regarding the estimated price, it was stated that they would be asking from $165,000 to $250,000. When asked whether this project would work with 50 units, the answer was that it would not for Centex Homes. Mr. Fitzpatrick asked where there were other PUDs under 5 acres. Mr. Rumpf replied that one was Hawk's Landing in the north end and another was Kensington Place on Golf Road. Mr. Fitzpatrick stated that he met with seven of the homeowners and felt that it was a bad idea to approve PUDs less than 5 acres. He would prefer to see an ACLF than these units because of the traffic on Golf Road and the impact on emergency vehicles. Ms. Butler inquired whether there would be any access to the canal and Mr. Bentz replied that there would be no docks. Mr. Rumpf wanted to clarify for the record regarding being subjected to the court's process. The court authorized this review. They authorized the application being submitted to us. The language in the order defines this process. He read from the second page of the order, under item 2. "If, upon completion of review of Plaintiff's application for amendment, the Plaintiff has obtained a favorable recommendation from the Planning & Development Board, the parties may jointly petition the Court for modifications to the Agreement." Assistant City Attorney Payne read the next item, item #3, which states "This Joint Motion and Agreed Order does not obligate the City of Boynton Beach to enact land use amendments, zoning changes, or use amendments inconsistent with those set forth in this Court's October 20, 1990 Order." This is not binding on the City at this point. It is just to get this amendment process moving. Mr. Weiner said that with respect to the site plan issues, they are flexible regarding the three previously discussed conditions. Regarding the lower density, they could not live with 50 units but maybe less than 66. Chairman Friedland wondered whether the Board should consider tabling this item. Mr. Weiner felt that would be wise and then they could go back to court and ask if they would accept a lower density. 11 Meeting Minutes Planning a. Development Board Bovnton Beach. Florida Januarv 28. 2003 Motion Mr. Fitzpatrick moved to deny the request to rezone a 4.70-acre tract from R-3 Multi-family Residential to Planned Unit Development (PUD) to allow the site planning for 66 fee-simple townhouses. Mr. Hillery seconded the motion. The roll was called and the motion to deny was carried 5 to 2, with Ms. Butler and Mr. Casaine dissenting. Motion Mr. Hillery moved to deny the site plan. Motion was seconded by Vice Chair Hay and carried unanimously. Mr. Rumpf clarified that this project cannot go forward to the City Commission because this Board did not approve it. A recess was declared at 9:10 p.m. and the meeting resumed at 9:15 p.m. 6. Old Business: A. Conditional Use/Site Plan Gateway Plaza (COUS 02-005) H. Burton Smith, P.E. KWB Charitable Trust Lot 91 - Quantum Park PID (Northeast corner of High Ridge Road and Gateway Boulevard, Quantum Park PID) Request for conditional use/site plan approval for a gas station/convenience store with car wash proposed as the first phase of construction on this 6.54-acre parcel. This item was requested to be tabled by the applicant. 1. PROJECT: AGENT: OWNER: LOCATION: DESCRIPTION: Motion Mr. Casaine moved to table the Gateway Plaza item. Motion was seconded by Vice Chair Hay and carried unanimously. B. New Site Plan 1. PROJECT: AGENT: OWNER: Bethesda Hospital Physician Parking (NWSP 02-011) (Revised) Jaime Gentile, Kilday & Associates, Inc. Bethesda Memorial Hospital; Sintilien Georges; Jesus and Joan Santiago 12 ,. .. I } EXHIBIT "e" IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA MILNOR CORPORATION, a Florida corporation; NORMAN J. MICHAEL and ELISHKA E. MICHAEL, his wife, CASE NO.: CL 89-6178 AN CIVIL DIVISION Plaintiff, vs. THE CITY OF BOYNTON BEACH, a Florida Municipal corporation, Defendant. I JOINT MOTION AND AGREED ORDER The Plaintiffs, RSPB, LLC. a Florida limited company, ("RSPB") and THE CITY OF BUYNTON BEACH FLORIDA, a Florida Municipal corporation ("Boynton Beach") by and through their undersigned attorneys, hereby jointly request consent from this Court to proceed with zoning approvals and as grounds therefore state: 1. RSPB and Boynton Beach are parties to a certain Stipulation and Settlement Agreement last dated October 31, 1989; 2. The Agreement was approved by the Court by Order on October 2, 1990. 3. The Court retained subJect matter jurisdiction of this action. 4. The original Stipulation and Order specified a land designation and zonmg classification described.in paragraph l1.b. of the Settlement Agreement. 5. RSPB desIres to request from the City of Boynton Beach a certain modification to the use limitatIOns and other development conditions on the property described as Alhambra Square ACLF. To that end, RSPB has made a request to the City Commission of the City of Boynton Beach for reconsideration of the land use, zoning, and use limitations on the property. Specifically, RSPB requests the zonmg designatIOn ofPUD; 6. The City Commission has expressed a Willingness to allow RSPB to submIt theIr request for amendment through the City's Plannmg & Development Board which acts as an . '...... -', # j J CASE NO.:CL 89-6178 AN advisory Board to the City Commission on such matters, provided that the submission of the request for amendment is not construed as either a violatIon of the Court Order referenced herein nor a waiver on the part of the City to insist upon contmuing enforcement of the Court Order. 7. The parties, by this StIpulation, request only that the City be given leave from the Court Order to accept the request for amendment, conduct admmistrative review thereof, and allow the City's Planning & Development Board to review the request in a public setting. JAMES A. CHEROF, ESQ. City Attorney for the CITY OF BOYNTON BEACH 100 E. Boynton Beach Blvd. Boynton Beach, Florida 33435 (561) 375-605# ::6Mi DATED: -3..4 3 EJ \ lQ '"1-- !\.1URPHY, REID, PILOTTE, ORD and AUSTIN, P.A.Attorney for Plaintiff(s) 340 Royal Palm Way, Suite 100 Suite 100 Palm Beach, Frida . , . (561) 658- 00 Florida ar No.361 DATED: AGREED ORDER The Court having considered the Joint Motion of the parties set forth above and being otherwise duly advised in the premises, it is hereby Ordered and Adjudged that: 1. The City of Boynton Beach is granted leave to accept Plaintiffs application for amendment to the land use, zoning at.\d use restrictions imposed by this Court's Order of October 2, 1990. 2. If, upon completion of review of Plaintiff's application for amendment, the Plamtlff has obtained a favorable recommendation from the Planning & Development Board, the partIes may jointly petitIOn the Court for modifications to the Agreement. 3. This Joint Motion and Agreed Order does not obligate the City of Boynton Beach to enact land use amendments, zoning changes, or use amendments inconsistent with those set forth m this Court's October 20, 1990 Order. The sole purpose and intent of this Joint Motion and Agreed Order is to allow the City of Boynton Beach to more fully consider the amendments 2 ~ . . .~,..... - -, ~'\ . CASE NO.:CL 89-6178 AN being requested by the Plaintiffs. DONE and ORDERED at West Palm Beach, Palm Beach County, Florida this day of ,2002. SIGNED AND DATED OCT 0. 7 2002 Stephen A. Rapp Circuit Judge Circuit Court Judge Copies to' James Cherof, Esq., Goren, etc., 3099 E. CorrJIIlercial Blvd., Ste. 200, Ft. Lauderdale, FL 33308 Keith C. Austin;Jr., E~q., Murphy, Reid,Pi1ct~e, Ord & Austin, P .A'j 340' Royal Palm Way, Suite 100, Pahn Beach, FL 33408 3 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CIVIL DIVISION ~. CASE NO: CL 89-6178-AN MILNOR CORPORATION, a Florida corporation: NORMAN J. MICHAEL and ELISHKA E. MICHAEL, his wife, Plaintiff, , vs. THE CITY OF BOYt/TON BEACH, a Florida Municipal corpor.ation, Defendant. ~ / ~ ,S:PIPULATION AND SETTLEMENT AGREEMENT ( MIUfOR CORPORATION, a Florida corporation ("MILNOR"), NORMAN J. MICHAEL and ELISHKA E. MICHAEL, his wife ("MICHAEL"): and the CITY OF BonnON BEACH, a Florida M?nicipal Corporation ("BOYNTON BEACH"), by and through their undersigned attorneys hereby stipulate and agree as follows: 1. MILNOR owns that certain parcel of real property located within the municipal limits of BOYNTON BEACH and being a site of approximately 4.01 acres situated at the northeast intersection of Congress Avenue and Golf Road (Southwest 23rd Avenue), which real property is more particularly described in the Exhibit "A" attached hereto and made a part hereof, and which real property shall hereinafter be referred to as "Alhambra Square North." , 2. MICHAEL owns that certain parcel of real property located within the municipal limits of BOYNTON BEACH and being a......... site of approximately 9.45 acres situated at the southeast intersection of Congress Avenue and Golf Road (Southwest 23rd Avenue). This real property shall be referred to as two parcels, the first parcel being an approximate 4.45 acre parcel situated closest to the intersection of Congress Avenue and Golf Road (Southwest 2Jrd Avenue), and more particularly described in the 1 - f:Xhibit "B" attached hereto and made a part hereof, and which real property shall hereinafter be referred to as "Alhambra Square South." The second parcel, being immediately adjacent to and east of Alhnmbra Square North and consisting of approximately 5.0 acres, and more particularly described in the Exhibit "c" a ttached hereto nnd made a part hereof, and which real property shall hereinafter be referred to as the "Alhambra Square ACLF." 3. The Alhambra Square North, Alhambra Square South, and the Alhambra Square ACLF parcels of real property shall hereinafter be sometimes collectively referred to as the "Alhambra Parcels." 4. The Alhambra Parcels are presently subject to the following Comprehensive Plan and Zoning designations by BOYNTON l BEACH: ~ Future Land Parcels Use Element Zonina Alhambra Square North Moderate density R-lAA (PUD) residential Alhambra S,quare South Low density R-lAA (single residential family residential) Alhambra Square ACLF Low density R-lAA (single residential family residential) 5. On or about September 30, 1988, MILNOR for the Alhambra North and MICHAEL for the Alhambra South and Alhambra ACLF parcels submitted applications (the "Applications") to BOYNTON BEACH for amendments to the future land usa element of the Comprehensive Plan, and for rezoning of the Alhambra Parcels, as follows: Future Land Intended Parcels Element Reauest Rezonina Reauest ~ Alhambra Square Office Commercial C-l (Office Office/ North Professional) Medical Alhambra Square Office Commercial C-l (Office Office/ South Professional) Medical/ Banking Alhambra Square Multi-family R-3 (Multi- Adult J\CLF residential family) Congregate Living Facility 2 1 :> -:! , 6. The Applications were considered by the Planning and Zoning Board of BOYNTON BEACH at a duly const"ituted and duly noticed public hearing on December 15, 1988, at which time the planning and Zoning Board recommended denial of the Applications to the city Commission. 7. On Janua ry 4, 1989, at a duly constituted and a duly noticed Special Meeting of the City Commission of BOYNTON BEACH, the City commission of BOYNTON BEACH heard and considered the . Applications and by motion declined to submit the Applications . for review by the State of Florida Department of Community Affairs and the Treasure Coast Regional Planning Agency. 8. On or about June 20, 1989, MILNOR and MICf~EL filed the ::. instant action seeking to invalidate the current Comprehensive ~ Plan designations and zoning classifications of the Alhambra Parcels, seeking to require BOYNTON BEACH to grant the Applications and seeking damages. 9. On September 14, 1989, Robert A. Eisen, Esquire, r ,. attorney for MILNOR and MICHAEL,' delivered to Raymond Rea,' Esquire" City Attorney for BOYNTON BEACH, a letter offering a settlement of the instant action wherein BOYNTON BEACH would grant the Comprehensive Plan designations and zoning classifications requested in the Applications and MICHAEL and MILNOR would release BOYNTON BEACH from any and all claims for damage. At its regular meeting of September 19, 1989, the City Commission considered the request for settlement, and by a vote, three votes in favor, two opposed, directed the City Attorney, Raymond Rea, to negotiate the terms o~ a Stipulation and Settlement Agreement with the representatives of MILNOR and ......... MICHAEL and present that stipulation and Settlement Agreement for approval by the City Commission at its meeting of October 3, 1989. The City Attorney was further directed to give public notice of the consideration of the stipulation and Settlement Agreoment and that the consideration of the Stipulation and Settlement Agreer.1ent should be a public hearing so that input from the public could be taken and considered by the City J - , commission. On October 3, 1989, the City Commission heard and considered public input and postponed consideration of this stipulation and Settlement Agreement until its regular meeting of October 17, 1989. since that time, MILNOR and MICHAEL have modified their requested land use changes to those set forth in paragraph 11, below. 10. On October 17, 1989, at its regular City Commission meeting, the City commission of BOYNTON BEACH considered the terms and conditions of this stipulation and Setttement Agreement, the further input from MILNOR and MICHAEL, the further public input, and by a motion duly made, the City Commission, by a vote of four in favor, none opposed (Council-person Arline Weiner absent), approved the terms and conditions of this Stipulation and Settlement Agreement and authorized and directed the City Attorney to execute this Stipulation and Settlement ~ Agreement. 11. The Future Land Use Element and Zoning of the Alhambra Parcels shall be: . r Parcel Future Land Use Element Zonina Alhambra Square North Office Commercial C-l (Office Professional) R-3 (MUlti-Family) ACLF with no less than 248 units Alhambra Square South and Alhambra Square ACLF MUlti-Family Residential In connection with the development of the ~lhambra Parcels, and as an inducement to BOYNTON BEACH to enter into this Stipulation and Settlement Agreement, M~LNOR and MICHAEL agree to the following developmental limitations, , which developmental limitations shall apply regardless of ownership of the Alhambra Parcels: a. Alhambra Square North: (1) Building Height not to exceed two stories: (2) All dumpsters to be located away from adjacent resid9ntial areas; (J) Construction of the six-foot zoning boundary wall shall be coordinated with the governing association of the 4 ~ r: r i , I I adjacent residential property and the existinq buffer hedqe shall be removed and replaced with sod and landscapinq to the specifications of the qoverning association and at no cost to the qoverning association; (4) Parking lot liqhting shall be shaded so as not to shine directly into residential areas, and parking lot liqhting shall not be illuminated after 11:00 P.M.; b. Alhambra Sauare South and Alhambra Sauare ACLF: . (1) Buildinq Heiqht not to exceed two stories; (2) Roof pitch not to be steeper than 4/12; (3) All dumpsters to be located away from adjacent residential areas, and at least one hundred feet from the south property line of the Alhambra Square South and Alhambra Squ~re ::. ACLF Parcels; (4) parkinq lot liqhting shall be shaded and shielded so as not to shine directly into adjacent residential areas; parkinq lot liqhting shall not be illuminated after 11:00 P.M.; parking lot liqhting poles shall be at the minimum heiqht permitted or allowable by BOYNTON BEACH; (5) Use of the property shall be limited to an Adult Congregate Living Facility; (6) A combination of landscaping and wall (the "Wall") shall be constructed on the south property of the Alhambra Square South and Alhambra Square ACLF parcels. The plan and desiqn of the Wall shall be coordinated with and approved by the governinq associations of the adjacent residential property. Approval of the Wall shall not be unrea~onablY withheld by the governing associations. The Wall shall be constructed at no cos~ or expense to the qoverning associations; (7) At such time as building plans are presented to BOYNTON BEACH for permit, copies of the Wall plan and site plan shall be submitted to the governinq associations; (8) No parkinq spaces or improvements except landscaping shall be constructed or installed in the Lake Worth 5 ..... - Drainage District right-of-way south of the hlhambra Square South and Alhambra Square ACLF Parcels; and (9) Deceleration entry lanes shall be provided at each entrance if deemed necessary by BOYNTON BEACH. , The foregoing developmental limitations shall be set forth in a Declaration of Covenants and Restrictions (the "Declaration"), which shall provide that they cannot be modified without the consent of BOYNTON BEhCH, and the Declaration shall be recprded among the public records of Palm Beach County, Florida" shall run with the land, and shall be binding upon the successors and assigns of MILNOR and MICllhEL. The Declaration shall be prepared and distributed to the governing associations by November 1, ~ 1989. A recordable Declaration signed by MILNOR and MICHAEL shall be deliver.ed to the City httorney prior to the first public hearing on the rezoning and Comprehensive Plan amendments described in paragraphs 12 and 13, below. The Declaration shall be recorded by the City httorney where all actions necessary to ( ,. effectuate this Stipulation and Settlement Agreement have been duly enacted by BOYNTON BEACH. The Declaration is for the benefit of the following governing associations of the adjacent residential areas: (a) Boynton Leisureville Community Association, Inc. as to the Alhambra North Parcel; and (b) Golfview Harbour and Golfview Harbour Estates as to the Alhambra South and Alhambra ACLF Parcels. 12. BOYNTON BEACH agrees to supplement or amend , 1989, to permit use its Comprehensive Plan by December 31, and development of the Alhambra Square Parc;:els as set forth in paragraph 11, above, subject only to the limitations set forth in this Settlement and Stipulation Agreement and other usual and customary site related conditions of development. 13. BOYNTON BEACH agrees, within thirty days of the date of this Stipulation, to rezone the Alhambra Square Parcels to permit the development set forth in paragraph 11, above, subject only to completion of all procedural requirements under Florida statutes, 6 .' ~ Sec. 163,3184, the limitations set forth in this Stipulation and Settlement Agreement, and other usual and customary site related conditions of development of general application in BOYNTON BEACH. 14. To the extent that ordinances or resolutions are required to implement any of the terms of this stipulation and Settlement Agreement, BOYNTON BEACH agrees to prepare and adopt any a~d all such ordinances and resolutions necessary to , implement the terms of this Stipulation and Settlement Agreement. . 15. Simultaneous with the execution of this settlement Stipulation, MILNOR and MICHAEL shall deliver to BOYNTON BEACH a full and complete release on behalf of itself, its officers, directors, shareholders, employees, agents, and representatives ~ as to any and all actions, suits, damages, claims, which it_ or they may have against BOYNTON BEACH or any of its officials, employees, consultants, agents, elected officials, or appointed officials in connection with or related to any action or inaction regarding the Applications and the Alhambra Parcels. The general releases shall be held in escrow by City Attorney, Raymond Rea, until all actions necessary to effectuate this Stipulation and Settlement Agreement have been duly enacted and then shall be delivered to BOYNTON BEACH. 16. MILNOR and MICHAEL shall further agree to defend BOYNTON BEACH at MILNOR and MICHAEL's expense, any suit or administrative action pursuant to Chapter 163, Florida statutes, initiated by third parties arising out of any actions taken by BOYNTON BEACH under th$ terms of this Agreement. 17. MILNOR and MICHAEL agree that BOYNTON BEACH's "- obligations under this Stipulation and Settlement Agreement shall at all times be subject to Department of Community Affairs' approval. MILNOR and MICHAEL further acknowledge that BOYNTON BEACH shall not be responsible for any other Governmental Agency's action related to the development of the Alhambra Square Parcels. 7 ~ " -' ~ '- ," - I 18. The parties shall forthwith inform the CQurt that a settlement has been reached and all proceedings in the suit shall be abated until the terms of this stipulation and Settlement Agreement are fully and completely effectuated. At such time, the parties shall jointly seek an Order from the Court confirming and ratifying this Stipulation and Settlement Agreement. The Court shall at all times have and retain jurisdiction over this cause and the parties to ensure that the terms and conditions herein are adhered to by the parties. .. RAYMOND ~A, ESQ. city Attorney for the CITY OF BOYNTON BEACH, a Florida municipal corp. 100 E. Boynton Beach Blvd. Boynton Beach, FL 33481 (407) 738-7405 Florida Bar No. 348880 LAW OFFICES OF ROBERT A. EISEN Attorneys for Plaintiff(s) 4700 Northwest Boca Raton Blvd. suite 103 Boca Raton, Florida 33431 (407) 994-2090 Florida Bar No. 180136 BY: ~ ~ RAYM ~ ESQ. BY: ~~ ROBERT A. EISEN, ESQUIRE DATED: ~ 3\)\q1fl- &'C\u~~~J '7)lc.r~1 DATED: pldg 06/pldg lInN , 8 .J , ~ ~ PoHcy 1.16.3 , . The ~ty sha1l continue to enforce the land' development regu1ati~ to enforoe and ~l~ent the poHcies which regulate the use and intensity, and other chara6teristics for the development. of specific areas, as set forth in the Land Use Problems and Opportunities section of the support docuniems for this element. ~se recomm.endatloDS contained in. the Land Use Problems and Opportunities section Shall apply, regardless of the status of theCity's development regulations, and are hereby lncolporated by reference into the Goals, Objectives, and Policies of this Plan. 8.c. Prqperty on Southeast Corner of Gb1f Road and Cpngress Ave. . . ~. parcel occupies approximately 8.5 acreS and was formerly .~wn,in' .' the Low Density Residential lai1~ use categOry and R-lAA' zoning distri'ct.. ~. property is shown in the High Density Residential land u~e category.. .' oJi.the Future ,Land Use frJap, in accordance' ,with the Settlement and Stipulation ~eement between Milno~ Corporation and th~ City '(-see '~'Appendix -DIt to the Futur~ Land Use Element SUpport Documents). ~s agreement specifies' that the property is to be developed as an adult ooagregateliving facility (ACLF), and includes '-Pecific conditions ~or . tile use and development of.' the' property.. . The land use ,~oning, and the . ue and develop~t of thi's propertys.hall be it1 accordance w~th the 'above:'ment'ioned Settlement and Stipulat~oD A9reemen.t. ~ '. ,'U~I,IV,/i)Vl l'ijrM Kt j i I ,I~ I [N NO 467 f' 2 MILNOR CORPORATION, a Florida corporation; NORMAN J. MICHAEL and ELISHKA E. MICHAEL, his wife, '" TN nn; cm.CUIT COURT OF THE ISm JUDIC1AL CIR.CUIT IN AND FOR P AlMBEACH COUNTY, FLORIDA CASE tro: CL 89-6178 AN CIVIL DIVISION Plaintiff, / !fo) ~ @ ~ ~ W] l~ i ri '! L~ JAN - 7 I. l~.i , pi P I""j';-;-:-r: ,,,,-" . L 'll'i!'1 I\\.. 'j['t I L..__._..___...,'_O~! "[[".. .__. __ ! Ys. THE eIn' OF BOYNTON. aBACa, a Florida Municipal eorporatio.o" Deftndant. JOINT MOTION AND AGREE:(I...QRDER The Plaintiffs, RSPB, LtC. a Florida limited company, ("RSPB") lUld THE CITY OF BOYNTON BEACH FLORIDA, a Floriaa Municipal cOApc'ration ("Boynton Beach") by and through tbeir undersigned attoOleys, hereby jointly request consent from this Court to proceed with zoning approvals and as grounds therefore state: RSPB and Boynton Beacb are parties to a (.ertain Stipulation and Settlement Agreement last da.ted October 31, 1989; 2, TIle Agreement was approved by the Court by Order on. October 2, 1990. 3. The Court retained subject matter j\U'isdiction ol~this action. 4, The original Stipulation and Order specified a land designation and loning classification described in paragraph 11.b, oithe Sett,letrlent Agreement. S RSPB desires to request from the City of Boynton Beach a certain modifi.catiol1 to the use limitations 811d other developmetlt conditions 011 the property described as Alhambra Square ACLF To that end, RSPB has made a request to tbe City Commissioll of the City of Boynton Beach for reconsideration of the land use, zoning, ani use limitations Oll tbe propert)' Specifically, RSPB requests the zoning designation ofPUDj 6. The City Commission has expressed a \viHingnes~ to allow RSPB to submit their request for amendment through the City's Planning & Development Boa.rd which acts as an ,OCT,10~~1I2 213PM KEITI ,j',TIN NO. 467 advisory Board to the City Conunission oPo such matters, providltd tbBt the submission of the requ~.st for aUlel1dment is not COllstrue.d as either a violation of the COlUi Order referenc.ed herein nor a waiver on the part of the City to insist upon cOllti.nu.in(: enforcement of the COllrt Order, 7 The parties, by this StipulatiOl~, request only that the City be given leave from the Court Order to acc~pt the request for amendment, conduct admini.strative review thereof, an,d allow the City's Planning & Development Board to review tle request in a public seuing. CASE NO.:CL 89-6178 AN 'JAMES A. CHBROF, ESQ. City Atto01ey for the CITY OF BOYNTON BEACH 100 E. Boynton Bea.ch Blvd, Boynton Beach, Florida 33435 (561) 375-6050 Florida B N. MUR.PHY, REID, PILOTIE, OR.O and AU:;'TIN, P.A.Attomey for Pla:intiff(s) 1140 Ro)al Palm Way, Suite 100- Su.ite 10) Palm. geach, rida (561) 658 (50 ' ~~ ~ NO,361 DATED B DATE~: ~,3€, \ '(;l~ . AGREEt> ORDER The Court haYing considered the Joint Motion of the r:artie$ set forth above and being otherwise duly advised in the premises, it is hereby Ordered /I,d Adjudsed that: The City of Boynton Beach is granted leave to accept Plaintiffs application for amendl:n~t to the land use, zoning and use restrictions impo$l:d by this Court's Order of Ootober 2, 1990. 2. If, upon completIOn of review of Plaintiff's application for anl!.nnm...nt tl... Plaintiff has obtained a favorable recommendation from the Planu,i.ng & Development Board, the parties may jointly petition the Court for modifications to the Agreement. 3. This JOU'lt Motion lIl1d Agreed Order does not o,ligate the City of Boynton Beach to enact land use 8Olendments, zoning changes, or use amendments inconsistent with those set forth in tWs Court IS October 20, 1990 Order. The sole pUij)OSll and intent of this Joint Motion ~d Agreed Order is to allow tbe City ofBoYl1ton Beach to n10re fully conSlder the amendments 2 ~ ~ OCT Ill, ?(1)2 2.ljf'M KEITI I',TIN NO. 468 f' 1 ~ ... . ~ ~ CASE NO. 'CL 89-6178 AN being requ<:sted by the Plaintiil's, DONE and ORDERED at West Palm Beach, Palm Bcm:.h County, Florida thiS-l-GNiD AN 0 DATE day of . 2002, OCT 0. 7 2002 stephen A. Rapp Circuit CCIu,rt Judge Circuit Judge Copiea to: James Che1'of. Esq., Q()ren, e~.,}099 E, Commetcia! 13lvd,. Stt, ~OO, Ft La\\derol\l~, F.l,. 33308 Keith c- AU.llu,h., E~,. Murphy, Rllicl.,PUQ1:;, Old &: .6,\lStlll, P .A., 34(} R Dyal r~lnl War. Suite 1 00, Pah~ aelcb, FL 33408 ;11 ~ 3 10/02/2002 15:46 5612726P'11 WEINER & ARONsr~ PA PAGE 02 The CiU Boynton Beach OFFIcE OF THE CITY ATtORNEY lODE. Boynton. Beach Boulevard P.O. Box 310 Boynton Beach, F7Drlda 33425-0310 PHONE: (561) 742-60$0 FAX: (561) 742-6054 fJ'~~. ~;~(.__\ -. '~- ~--...... - ~ ;, ~ --" \-, -- )-' ,) 'j-:---.I'-' .L1," _ :-~.~,\~. ( , ~--J \", I September 30, 2002 Keith C. Austin, Jr.~ Esq. Murphy, Reid, Pilotte, Ord & Austin Suite 100 340 Royal Palm Way Palm Beach, FL 33480-4347 Re: Joint Motion and Agreed Order Alhambra Square Dear Keith: Attached is a revised Joint Motion and Agreed Order, in the above matter which I have executed. Very truly yours, '/-1J'Wo (). ~At/ James A. Cherof City Attorney JAC/ral Ene. cc: Michael S. Weiner, Esq. ~b ~b- ~ 1M CUk..9.. S:\CA\DItvELOP\A.lb1llllbm $llI'IR. MIhoor\A\l8l.in 'l'rommittlil):.eMtr. Joint Mtn all.1l4lreed o.dtil~.doc America's Gateway to the Gulfstream 10/02/2002 15:46 561272F ~l WEINER & ARONS' . PA PAGE 03 MILNOR CORPORATION, a Florida corporation; NORMAN J. MICHAEL and ELISHKA E. MICHAEL, his wife, IN THE CIRCUIT COURT OF TIIE IS1H JUDICIAL CIRCUIT :IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO,: CL 89-6178 AN CIVIL DIVISION Plaintift vs. THE CITY OF BOYNTON BEACH, a Florida Municipal corporation, Defendant. / JOINT MOTION AND AGREED ORDER The Plaintiffs, RSPB, LLC. a Florida limited company, ("RSPB") and THE CITY OF BOYNTON BEACH FLORIDA, a Florida Municipal corporation e'Boynton Beach") by and through their 1ll1dersigned attorneys, hereby jointly request consent from this Court to proceed with zoning approvals and as grounds therefore state: 1. RSPB and Boynton Beach are parties to a certain Stipulation and Settlement Agreement last dated October 31, 1989; 2. The Agreement was approved by the Court by Order on October 2, 1990. 3. The Court retained subject matter jurisdiction of this action. 4. The original Stipulation and Order specified a land designation and zoning classification described in paragraph 11.b. of the Settlement Agreement. S. RSPB desires to request from the City of Boynton Beach a certain modification to the use limitations and other development conditions on the property described as Alhambra Square ACLF. To that end, RSPB has made a request to the City Commission of the City of Boynton Beach for reconsideration of the land use, zoning, and use limitations on the property. Specifically, RSPB requests the ~oning designation ofPUD; 6. The City Commission has expressed a willingness to allow RSPB to submit their request for amendment through the City's Planning & Development Board which acts as an , .-"" . oJ" 10/~2/2002 15:46 561272F~"1 WEINER & ARONsr" PA PAGE 04 CASE NO.:CL 89-6178 AN advisory Board to the City Commission on such matters, provided that the submission of the request for amendment is not construed as either a violation of the Court Order referenced herein nor a waiver on the part of the City to insist upon continuing enforcement of the Court Order. 7. The parties, by this Stipulation, request only that the City be given leave from the Court Order to accept the request for amendment, conduct administrative review thereof, and allow the City's Planning & Development Board to review the request in a public setting. JAMES A. CHEROF, ESQ. City Attorney for the CITY OF BOYNTON BEACH 100 E. Boynton Beach Blvd. Boynton Beach, Florida 33435 (561) 315~60S0 Florida B N. MURPHY, REID, PILOTTE, ORD and AUSTIN, P.A.Attorney for Plaintiff(s) 340 Royal Palm Way~ Suite 100 Suite 100 Palm Beach, Florida 33480 (561) 658-4060 Florida Bar No.361801 By: DATED: AGREED ORDER The Court ha\1ing considered the Joint Motion of the parties set forth above and being otherwise duly advised in the premises, it is hereby Ordered and Adjudged that: 1. The City of Boynton Beach is granted leave to accept Plaintifr s application for amendment to the land use, zoning and use restrictions imposed by this Court's Order of October 2, 1990. 2. If, upon completion of review of Plaintiff's application for amendment, the Plaintiffhas obtained. a favorable recommendation from the Planning & Development Board, the parties may jointly petition the Court for modifications to the Agreement. 3. This Joint Motion and Agreed Order does not obligate the City of Boynton Beach to enact land use amendments, zOning changes, or use amendments inconsistent with those set forth in this Court's October 20, 1990 Order. The sole purpose and intent of this Joint Motion and Agreed Order is to allow the City of Boynton Beach to more fully consider the amendments 2 10/02/2002 15:46 561272F""'11 WEINER & ARONsr" I PA PAGE 05 CASE NO.:CL 89-6178 AN being requested by the Plaintiffs. DONE and ORDERED at West Palm Beach, Palm Beach COWlty, Florida this day of , 2002. Circuit Court Judge Copies to: lames Chero!: Esq., Goren, etc.) 3099 E. Commercial Blvd., Ste. 200, Ft. Lauderdale, FL 33308 Keith C. Austin,IJ:., Esq., Murphy, Reid,Pilctte, Ord & Austin, P.A., 340 Royal Palm Way, Suite 100, Palm Beach, FL 33408 3