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Minutes 02-16-95#INUTE5 OF THE CITY COI44ISSION gORKSHOP HEETING HELD IN COMMISSION CHAI~BER5, CITY HALL, BOYNTON BEACH, FLORIDA, ON THURSDAY, FEBRUARY 16, 1995, AT 6:27 P. N. PRESENT Edward Harmening, Mayor Lynne Matson, Vice Mayor Matthew Bradley, Mayor Pro Tem Jose Aguila, Commissioner David Katz, Commissioner Carrie Parker, City Manager James Cherof, City Attorney Sue Kruse, City Clerk William Hukill, Director of Development I, OPENINGS A. C~11 to Order Mayor Harmening called the meeting to order at $:27 P. M. for the purpose of discussing the proposed Land Development Regulations. II. REVIEW OF BOYNTON BEACH CODE OF ORDINANCES A. Part III of the Code - Land Development Regulations City Manager Parker stated that the Commission was previously provided with a draft and a document summarizing the effects of recodification of the Land Development Regulations and the effects of revisions to the platting process. She advised that a lot of these items are already in the current Code. They have merely been reorganized into one document containing all the Land Development Regulations, which was the City's goal. Vice Mayor Matson was very impressed with staff's work. She said it is understandable the way it is written. She recalled previous discussion regarding neighborhood plans. Mr. Hukill advised her they are forthcoming. Mr. Hukill referred to the Code that was written for the Historic District. City Manager Parker advised that the Commission did not implement that ordi- nance because the City was going to apply for a grant for a site survey of the various homes in the area that may have historic significance. The grant has been submitted, and the hearing is next month. Staff has had a preliminary meeting with the grants people from Tallahassee and they have indicated that this City is the only city in Palm Beach County that requested a survey, and that we have a very good chance of being funded. If the City receives the grant, an historical consultant would be hired to do the work. Once he deter- mines which homes and business buildings have historic significance, the City Commission will decide if there is enough interest to have districts, based on the information from the survey. With respect to how historic preservation fits in with what is before the Commission this evening, Mr. Hukill stated that it was originally proposed to be in what was Chapter 5, the building/housing ordinance, which included parking lots. In the recodification, the building has been separated from the parking lots and they have been set up in separate chapters. He anticipated that the - 1- #INUTE$ - CITY COHHIS$ION NORKSHOP #EETING BOYNTON BEACH, FLORIDA FEBRUARY 16, 1995 historic preservation would be part of the Land Development Regulations, either as a separate chapter, or as part of the housing portion of the Building Code. Commissioner Aguila felt it should be a separate chapter, not part of the Building Code. Mr. Hukill said he tried to separate the different chapters by subject. The goal is to have one manual containing all the information one would need in order to develop or construct in the City. Mr. Hukill expects the manual to include other things in the Land Development Regulations, such as the fee struc- ture, the policies of the Building and Engineering Divisions, and the Swimming Pool Code. In addition to trying to come up with a set of Land Development Regulations, Mr. Hukill tried to organize the chapters so that they follow in chronological order, when possible. He felt Chapters 1 and 1.5 should ultimately be merged. He envisioned that Appendix A and Appendix B would be ultimately reunited into Chapter 2. The next logical step in the process is Master Planning. He set it up as a separate chapter. It was not significantly changed, but it was set aside from platting, site plans, and zoning. Chapter 4 {Site Plan Review} was already there. Chapter 5 {Platting} was the next thing to come in logical order. Chapter 6, Required Improvements, follows behind the plat. He pulled those out of the Platting portion because they should be required of a sub- division, whether it is platted or not. In order to make that clear, he pulled it out from the platting process and set it up as a stand alone chapter. Chapter 7 is Surety. He deliberately pulled Surety out of platting because it applies to a lot of things other than platting, such as nuisance abatement. All of these items are preconstruction activities in the Land Development Regulations. Mr. Hukill felt there were too many definitions in the Code and too many sections dealing with definitions. He discovered that there was more than one definition for some words. Therefore, he went through the entire Code, except the Charter, pulled out all the definitions, and put them in alphabetical order. He tried to put uniformity in the definitions. He wanted to put them all in one place, but decided it would be better to put all the Part III Land Development Regulation definitions as a glossary in the Land Development Regulations. He hoped that ultimately, someone would do the same for Part II. He also intro- duced other kinds of definitions into his master list from the Florida Statute Platting Law, the Palm Beach County Comprehensive Plan definitions and FDOT, which seemed appropriate to have in the Code. He plans to index the entire Code because it is impossible to find anything in the present index. At 6:40 P. M., Commissioner Katz had to leave the meeting, but before leaving, he complimented Mr. Hukill on the depth of his work. Mr. Hukill said there was much more reorganization than rewriting. He sent his draft to approximately 50 people to have it reviewed, including the Commission, Department Heads, the Planning and Development Board, developers and attorneys. These people have dealt with or are dealing with the Boynton Beach process. -2- HINUTE$ - CITY CO##I$$ION WORKSHOP #EETING BOYNTON BEACH, FLORIDA FEBRUARY 16, 1995 There were things in the Code he felt did not work, such as the platting proc- ess. He took the Planning and Development Board out of the process. Previously, when a preliminary plat came in, a fee was paid, it went to staff, it went to the TRC, it went to the Planning and Development Board, it went to the Commission, it went back to the developer., it went back to staff, it went back to the TRC, and then it went back to the City Commission for final appro- val. [t can now be a one step process. Theoretically, somebody can come in with a final plat. The platting process is outlined in the Florida Statutes. We do not delineate where the trees go. The plat is really a sophisticated sur- vey and shows ownership and maintenance responsibility. Therefore, if an appli- cant is diligent, he can produce a final plat without ever talking to us. Mr. Hukill set the process up so that if an applicant does that, he would go to staff, the TRC and then the Commission. There is also an optional process that would parallel the preliminary plat that was in there before, except that it does not go to the Planning and Develoment Board. Mr. Hukill said some of the members of the Planning and Development Board did not like this idea. Their role in the preliminary phase was in auditing the fee in lieu of land dedication for the park fee, and reviewing the appraisals to decide the value of the land. Previous to the last few weeks, they also received all the comments from the site plan review process and the master plan review process. They were taken out of the platting process only. They are still involved in the master planning or the site plan review. Mr. Hukill felt these two processes need to be looked into to see if they are too long. Mr. Hukill pointed out that there are situations where a developer has gone through the required improvements after platting, and now there is partially finished pavement, sewer, lights, and water. The property sits there like this for years. He felt the City should be as helpful as possible in order to avoid these situations. Mr. Hukill stated that in December, 1992, the Commission passed an ordinance that allowed them to establish land development fees by resolution. The same evening, they passed a resolution that established those fees. The ordinance referred to the fee schedule that was then in the Code and it stated that the Commission enacted these by resolution as an amendment to that fee schedule. As a result, the 1992 fee schedule remained in the Code book, even though it has not been valid since December, '1992, and is not the same as the resolution that the Commission passed. Therefore, the City is not consistently charging the fees. Mayor Harmening pointed out another inconsisteny. He stated that the Commission should have repealed, by ordinance, the existing fee schedule that was set by ordinance. Mr. Hukill further advised that according to the fee schedule, the platting fee (the application fee) is $750.00, plus 2 percent of the cost of the required improvements and 125 percent of the cost of the street lighting. Mr. Hukill felt this was inappropriate because the developers do not put in the street lights. He also pointed out that the City did not collect street lighting fees every year. In addition, the fee collected for required improvements in a -3- NINUTE$ - CITY CONNI$$ION WORKSHOP #EETING BOYNTON BEACH, FLORIDA FEBRUARY 16, 1995 platted subdivision was 2 percent of their cost. The fee collected for the required improvements in a regular, unplatted subdivision was 1½ percent. Therefore, depending on whether a developer went through the Building Department or the Engineering Department, he would pay 1½ percent or 2 percent. Therefore, staff did a study of fees to try to come up with a different revenue source and thinks the 1.6 percent should be charged, as opposed to 1.5 percent. Mr. Hukill said the Finance Director, Grady Swann, reviewed this and agreed with the routine that was used. However, he would like to see it go to 2 percent. Whatever the Commission decides on, a resolution is needed to clear up the fee schedule. Mr. Hukill stated that the parking lot ordinance (Sections 143 through 154) was in the Building Code {Chapter 5) and in Resolution 87-JJJ. He has taken all of that material and put it into Chapter 23. Chapter I contains a section regarding impact fees. City Manager Parker advised that utility fees need to be addressed also. With regard to utilities, Mr. Hukill said an argument can be made for including that in Land Development Regulations, which is where he would put it because Part I is easily defined as a charter that people voted on. However, it would be helpful to a developer to have it in Part III. The Utility Department would like utilities left in Part II. Therefore, Mr. Hukill reserved Chapter 26 in Part III for the eventual possible inclusion of Chapter 26 in Part II. He said he did not do anything with utilities, but perhaps he should pull that part of it out of Chapter 26 and put it into the Land Development Regulations. Mayor Harmening felt it should also be in Building Regulations because if someone owns a lot that has been sitting for fifty years and it is undeveloped, that person is still going to be charged an impact fee. Mr. Hukill suggested printing Chapter 26 from Part II and putting it in the packet that is given to the applicant. Mr. Hukill advised that there is a provision in the Code in excavation and fill that requires City Commission approval if a person is going to fill or excavate into the water table. He did not understand why this was in the Code. Commissioner Aguila believed that it is in the Code because the City was trying to prevent people from removing fill from Boynton Beach for projects in other cities. However, developers have been held up while they are waiting to go through that permitting process. He felt this does not make sense and should be eliminated. If fill removal is required, he felt property owners should be able to dispose of it anyway they see fit without having to get an additional permit. Mayor Harmening stated that there have been complaints about excavation because of blowing sand. Mr. Hukill said he has dealt with this in two ways. The recognition of nuisance abatement is now in the excavation and fill section. In addition, we are requiring surety {irrevocable Letters of Credit, or cash} to abate the nuisance if it goes beyond thirty days. With regard to surety, Mr. Hukill stated that previously in the platting part of the Code, Appendix C, there was a performance bond credit. He eliminated this because he felt it was totally administrative. He did not know of any place -4- HIHUTE$ - CITY CO#NI$SIOH gORKSHOP HEETIHG BOYHTOH BEACH, FLORIDA FEBRUARY 16, 1995 where the City has called a bond. He stated that we want a suretywe can get at without fighting with attorneys or insurance companies. Therefore, he set up part of the surety chapter to require Letters of Credit, cash, escrow accounts and bonds. He would like to eliminate bonds because it is too hard to collect on them. He did not think this would create a hardship for developers. City Attorney Cherof stated that the problem we have been having with Letters of Credit is that a lot of banks are reluctant now to issue a Letter of Credit for more than one year. Therefore, we could have a Letter of Credit expire without being notified. He suggested adding a provision that we be notified. City Attorney Cherof stated that another problem is people have been complaining about designating a registered agent in Palm Beach County. City Attorney Cherof has changed his opinion with respect to this. He does not think it is necessary to have an agent for service in Palm Beach County, as long as there is one within the State of Florida, and provided that any action on the Letter of Credit is enforceable in Palm Beach County, Florida. Commissioner Aguila did not think there would be a problem if the City requires that the agent be in Dade, Broward, Palm Beach or Martin County. City Attorney Cherof stated that under this section, there is a provision for approving some form of escrow agreement, although we have not provided any language for it yet. This usually comes in conjunction with the bank and a construction loan, and the bank acting as escrow agent and releasing the funds to us upon request. The escrow agreement is diverse in nature and content and requires an extraordinary amount of time to review it. Therefore, he suggested that if the City is going to accept an escrow agreement in lieu of a Letter of Credit, that: (1) the City obtain from the person who prepares the escrow agreement, an opinion letter with respect to its enforceability so that we have recourse against the development and the person who provided the opinion; and (2) the City charge an additional review fee because these types of escrow agreements take I½ to 2 hours to review. Commissioner Aguila asked if the bonding companies are rated. City Attorney Cherof advised that with a Letter of Credit, there is criteria spelling out exactly what the City is looking for. The Finance Department independently reviews the Letter of Credit and signs off on it if it meets the criteria. From his experience with bonds, nobody ever ends up calling upon them. Furthermore, he was not thrilled about relying upon the rating of the bonding company because they could overextend themselves overnight, get called upon, and get into a receivership or bankruptcy situation. It was the consensus of the Commission not to accept bonds or escrow accounts. Only Letters of Credit and cash will be accepted. On page 107, C {Escrow} and D {Bond} were stricken from Section 3. -5- NINUTE$ - CITY CONNI$SION WORKSHOP #EETING BOYNTON BEACH,, FLORIDA FEBRUARY 16, 1995 Stanley DubS, Vice Chairman of the Planning and Development Board, and a retired contractor and developer, stated that bonds were easier to furnish than Letters of Credit. Consequently, a contractor could end up with all his capital tied up. If he had to furnish a Letter of Credit, he is not going to get it because he does not have the capital anymore. However, he could still furnish a bond. City Attorney Cherof suggested adding a provision with respect to bonds being an alternative source of surety, subject to specific approval by the Commission. City Manager Parker referred back to the issue of blowing sand. She referred to page 110 which states that the landowner or his agent shall submit a reclamation plan which includes plans for the abatement of nuisances such as the blowing of dust and sand. She asked Mr. Hukill if he included the Comprenhensive Plan requirements that the area has to be seeded and mulched within a certain period of time. Mr. Hukill answered affirmatively. City Manager Parker advised that this document will be in ordinance form for first reading at the February 21, 1995 City Commission meeting, pursuant to any changes the Commission makes this evening. City Attorney Cherof referred to Section 6 on page 24 and stated that a couple of years ago, the Commission decided that the role of the Planning and Development Board would be advisory. However, Section 5 was never clarified to deal with the issue of who is the City's local planning agency. He advised the Commission that they are permitted, under statute, to designate the City Commission as the local planning agency. This has been the way it has been operating since the time the commission made the Planning and Development Board advisory in nature. There is another reference in back of the Code under "Parking" that states that the Planning and Zoning Board sits as the body that has the power to grant variances with respect to the Parking Code. City Attorney Cherof asked the Commission if it is still their intent that the Planning and Development Board remain advisory on all issues. The Commission answered affirmatively. City Attorney Cherof asked if the Commission sees any need to shift the power to consider variances back to the Board of Adjustment. Comissioner Aguila did not think it was appropriate for parking lot variances to be reviewed by the Board of Adjustment. He also did not think that the Planning and Development Board should review them because their decision cannot be appealed. He felt the City Commission should review them. It was the consensus of the Commission that the Planning and Development Board remain advisory and that the City Commission be designated as the local planning agency. City Attorney Cherof stated that as the Courts continue to indicate that hearings on quasi-judicial matters {such as the granting of variances and site plan approvals) must become more and more formal, almost like Court proceedings, the Commission needs to make a decision about where they want that type of evi- dentiary hearing to be conducted {before the Commission or before the Planning -6- HIHUTE$ - CITY COleiI$$IOH gORKSHOP HEETIHG BOYHTOH BEACH, FLORIDA FEBRUARY 16, 1995 and Development Board). City Attorney Cherof recommended these hearings be con- ducted before the City Commission because the risk for making the wrong or the right decision is a major liability issue that should not be delegated. The Commission agreed. City Attorney Cherof stated that there is nothing in the Code that prescribes what the hearing process is. We have previously developed a draft ordinance to do that and it has gone through all of the departments. He said this may be the appropriate time to work in an outline of what that hearing process is so when people read the Code, they will know exactly what they have to do and in what sequence, and what the burden on them will be. Commissioner Aguila felt Mr. Hukill's draft was phenomenal. He referred to Chapter 26 where it states that water, sewer and utilities should be deemed appropriate to be in the Code. He felt it should be in the Code so that people can have one bound book which includes everything that is going to affect them, no matter what they develop. With regard to Utilities, City Manager Parker asked if the sections can be duplicated. City Attorney Cherof said they could be duplicated, just as long as they are always identical. Mr. Hukill was not in favor of duplicating sections. He suggested issuing it as a printed chapter in the Land Development Regulations packet when it is given to applicants. However, this cannot be done by first or second reading of the ordinance. He suggested leaving it like it is for now. Mayor Harmening suggested adding a note that says, "For additional information regarding utilities, contact the Utilities Department." With regard to the effects on revisions, Commissioner Aguila agreed that the issue of plats was administrative and did not need to go to the Planning and Development Board. Commissioner Aguila referred to the definition of "owner" in Chapter 1 on page 2. He stated that sometimes people want to go through a process as a contract purchaser pending site plan approval. He wondered if a definition is necessary in this instance. Mayor Harmening advised that the Code states that you must have the written approval of the owner. Mr. Hukill confirmed that the owner has to sign off on it. It cannot be a contract purchaser. Commissioner Aguila asked for an explanation for the need of Section $ on page 3. He could not find it in the Code. Mr. Hukill explained that he got it from Part II. Mayor Harmening asked if it would be a lot simpler when it comes to all the penalties to say, "as prescribed in 775". City Attorney Cherof advised that we could do that, but he thinks the intent is that the person who is reading this has the ability to read what the penalty is, and they will not have 775 in front of them. City Attorney Cherof pointed out that should someone violates a section, a penalty is prescribed. However, no where in the Code do we deal with the con- -7- #INUTE$ - CITY C01~4I$$ION gORKSHOP #EETING BOYNTON BEACH, FLORIDA FEBRUARY 16, 1995 cept that the penalty may be the revocation of whatever permit you have secured from the City. Mayor Harmening added that the City could also take a public land surveyor before DPR. Commissioner Aguila referred to Section 11 on page 6, which states that the Commission can vary something, but only if the Technical Review Committee agrees. He, Mayor Harmening and Vice Mayor Matson did not agree with this. City Attorney Cherof stated that this is the old traditional standard for judging when a variance should be granted. It is generic in nature. The Courts in Florida have taken the position that you are only entitled to a variance when the failure to grant it renders your property completely unusable. In the last twenty Court opinions, variances that were granted have been challenged by adja- cent property owners or people in the neighborhood and reversed. The trend of the Courts is that variances should almost never be granted because they alter the zoning character and the environmental character of the neighborhood. Mr. Hukill stated that the wording comes out of Appendix C, Article XVI, Commissioner Aguila referred to page 2157 of the Code book and pointed out that the wording is different than the wording in Mr. Hukill's draft. Mr. Hukill will review that. Commissioner Aguila stated that that section needs to be put back the way it was in the ordinance. City Attorney Cherof asked about the addition of the more stringent requirement that denial of the variance would render the property economically unusuable. City Manager Parker felt this would create a problem because the Commission has granted variances in cases that do not meet that stringent requirement. City Attorney Cherof felt that seven or eight out of the ten variances that the City granted, if challenged by adjacent property owners, would be reversed by the Court. City Manager Parker referred to the following language on page 7, Section 12: "Before granting such exceptions, the plan and program shall be in the appropriate zoning district, comply with the comprehensive land use plan, and have prior approval of both the planning and development board and the technical review committee." The Commission agreed that this language should be stricken. Mayor Pro Tem Bradley referred to page 13 and asked if the terms "subdivider" and "developer" are always interchangeable. Mr. Hukill answered affirmatively. However, he said there are probably situations where they are not. He had no objection to eliminating the definition of the term "subdivider" because he did not think that word occurs very often. However, City Manager Parker pointed out that this term is used when a homeowner requests subdivision of his own lot. She believed this is what the definition of "subdivider" was meant to be, not "developer". -8- #INUTE$ - CITY COMMISSION WORKSHOP #EETIHG BOYHTOH BEACH, FLORIDA FEBRUARY 16, 1995 Mayor Pro Tem Bradley referred to page 14, Article IV, relative to the coordin- ation of land development in the City in accordance with orderly physical patterns. He wondered if we should address the mixed use or the diversity that is applicable at times to avoid restricting ourselves. Mayor Pro Tem Bradley commended Mr. Hukill on this great document. He felt it was admirable of Mr. Hukill to send it to the people in the community whose livelihoods it affects. He looked forward to their comments. In response to Commissioner Aguila, City Manager Parker advised that after first reading, this will be brought to the Planning and Development Board. It will then go back to the Commission for second reading on March 7, 1995. City Manager Parker also advised that the Community Design Plan Ordinance, which abolishes the districts, is also scheduled for first reading on February 21, 1995. It will then go to the Planning and Develoment Board and for second reading on March 7, 1995. She warned the Commission that this is a lengthy, comprehensive ordinance. Mr. Hukill asked about the Commission's feelings regarding the fees. The Commission directed him to come back to the Commission with his recommendations. III, N)~OURI~ENT There being no further business to come before the City Commission, Commissioner Aguila moved to adjourn the meeting at 7:55 P. M. Mayor Pro Tem Bradley seconded the motion, which carried 4-0. THE CITY OF BOYNTON BEACH Mayor ATTEST City fflerk Vi ce Mayor !~.m Commissioner Commissioner (One Tape) - 9 -