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Minutes 04-24-90MINUTES OF THE SPECIAL CITY COMMISSION MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA TUESDAY, APRIL 24, 1990 AT 5:05 P. M. PRESENT Gene Moore, Mayor Lee Wische, Vice Mayor Lillian Artis, Commissioner Robert Olenik, Jr., Commissioner Arline Weiner, Commissioner J. Scott Miller, City Manager Sue Kruse, City Clerk James Cherof, City Attorney Mayor Moore called the meeting to order at 5:05 P. M. AGENDA APPROVAL Commissioner Olenik moved to approve the agenda as presented. Vice Mayor Wische seconded the motion, and the motion carried 5-0. 1. Public Hearing and Proposed Enactment of the following proposed Ordinances: a) Ordinance No. 90-7 - Re: Adult Entertainment Establishments ~ttorney Cherof read proposed Ordinance No. 90-7 by title Only: 'iAN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON SEACH, FLORIDA, READOPTING THE PROVISIONS OF ORDINANCE 89-12; ADOPTING REASONS AND FINDINGS FOR ZONING REGULATIONS RELATED TO ADULT ENTERTAINMENT ESTABLISHMENTS; AMENDING SECTION A - ZONING TO REDUCE DISTANCE REQUIREMENTS AND TO APPLY SAID DISTANCE REQUIREMENTS TO RESIDENTIAL ZONING $ISTRICTS, PUBLIC USAGE DISTRICTS OR RECREATION DISTRICTS; pROVIDING FOR ADULT ENTERTAINMENT ESTABLISHMENTS AS PERMITTED USES WITHIN C-3, C-4, PID AND M-1 ZONING DISTRICTS; PROVID- ING THAT EACH AND EVERY OTHER PROVISION OF APPENDIX A - $ONING NOT SPECIFICALLY AMENDED HEREIN SHALL REMAIN IN FULL ~ORCE AND EFFECT AS PREVIOUSLY ENACTED; PROVIDING FOR A CONFLICT CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING AUTHORITY TO CODIFY; PROVIDING AN EFFECTIVE DATE AND FOR OTHER PURPOSES" Mayor Moore asked whether there was any public input. The following spoke in opposition to the proposed Ordinance: An unidentified man from an area that will be annexed by Boynton Beach in the future asked the Commission to keep topless adult entertainment out of the City. MINUTES - SPECIAL CITY COMMISSION MEETING BOYI~TON BEACH, FLORIDA APRIL 24, 1990 Rita Clark, who has lived in the County for 35 years, urged the Commission to vote against adult entertainment. Pete Emery, Delray Beach, was active in getting an adult book store on Federal Highway closed. Now, about 2,000 yards north, the same trash will be opening up again. He asked the Commission to make the Ordinance as strict as possible and suggested the County Ordinance may be a good model to follow. A woman from Leisureville was also against topless bars anything that would bring an undue influence against families. or As no one else wished to speak, THE PUBLIC HEARING WAS CLOSED. Attorney Cherof announced that pursuant to Chapter 166.041, Florida Statutes, there will be a second public hearing in the City Commission Chambers on May 15, 1990 at 6:00 P. M. b) Ordinance No. 90-5 - Re: Repair of Motor Vehicles in C-3 Zoning Attorney Cherof read proposed Ordinance No. 90-5 by title Only: '!AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA AMENDING APPENDIX A, ZONING, SECTION 6.C.l.cc. and 1B.d., ALLOWING FOR REPAIR OF MOTOR VEHICLES SUBJECT TO CERTAIN LIMITATIONS AND CONDITIONS; PROVIDING THAT EACH AND ~VERY OTHER TERM AND PROVISION OF APPENDIX A - ZONING SHALL REMAIN IN FULL FORCE AND EFFECT AS PREVIOUSLY ENACTED; PRO- VIDING A CONFLICTS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING AUTHORITY TO CODIFY; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES" Mayor Moore asked whether there was any public input. Cynthia Greenhouse, 618 N. E. 20th Lane, Boynton Beach, had not heard the entire Ordinance. A separate Ordinance had been drafted by the Planning Department, and she wanted to make sure this one contained the five acre provision. Commissioner Otenik stated it did. As there was no further input from the public, THE PUBLIC REARING WAS CLOSED. 2 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA APRIL 24, 1990 Attorney Cherof announced a second public hearing will be held on this proposed Ordinance in Commission Chambers on May 15, 1990 at 6:00 P. M., as required by Chapter 166.041, Florida Statutes. 2. Fourth of July Program - Decision regarding fireworks Charles Frederick, Director of Recreation and Parks, reported that, hoping to get away from the barge concept, they looked at two land sites for the shooting of fireworks. No land area would provide the distance required by the National Fire Protection Association's (NFPA) Code. Insurance would not be valid unless the distance was provided. Mr. Frederick ~ecommended that the City contract for the barge for $5,000, and he asked the Commission to authorize the expenditure of bp to $7,000 on a bid process for the fireworks. ~ommissioner Olenik moved that the City pay $5,000 for the barge and authorize staff to go out for a bid not to exceed $7,000 for fireworks. Commissioner Weiner seconded the motion. Mayor Moore stated it was a rip-off. He would not spend $5,000 for a barge. Mr. Frederick informed Commissioner ~einer that the City looked at all of the alternatives. A vote was taken on the motion, and the motion carried 4-1. Mayor Moore voted against the motion. 3- Roof Systems - Casa Blanca Apartments Mayor Moore asked for an opinion on whether the City could ~tay in the position of continuing to demand that the 4eveloper put barrel tile instead of shingle roofs. He thought the opinion given in writing was that the City is on yery weak legal ground. ~nen the developer came before the City's advisory Boards, ~ommissioner Olenik recalled he also met with residents from the Old Boynton Road area and made a presentation so ~he residents would feel comfortable. The presentation made ~o the residents included barrel tile roofs. That was one ~f the determining factors that caused Commissioner Olenik %o vote for this project. He emphasized that the Planning and Zoning (P&Z) Board and Community Appearance Board (CA_B) aid not impose that restriction on the developer. ~ommissioner Olenik asked if someone can switch from the decisions of Boards and the elected officials of the City. He questioned where the City's protection was. 3 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA APRIL 24, 1990 Attorney Cherof thought the protection was twofold. One was to close up the small loophole in the law, as it now exists, by adopting the Community Appearance Code. The second would be to enter into more formal written agreements with developers, where the City obtains their acknowledgment or their representations, either verbally or in dictatorial form, of integral parts of whatever they are presenting to the City for approval, of which they will be bound in the future. The condition of enacting an Ordinance or Resolu- tion based upon their proposal, with the recommendations coming from P&Z or any other Board, will be based upon that specific recommendation in writing, signed by the particular developer. Attorney Cherof said those were two ways of protecting the citizens of the City. Commissioner Olenik reminded Attorney Cherof that developers give the City signed and sealed plans that the Chairmen of the respective Boards also sign, acknowledging the actions Of their respective Boards. He asked if that was not enough. Attorney Cherof replied somewhere there is a line where something is not quite good enough. It was difficult to say whether the City was just short of that line, on the line, or over the line. In his memo to Gene Moore, Mayor, dated April 23, 1990, Attorney Cherof indicated the record reflected there had been a progression here of give and take ~epresentations by the developer, compromised by the City, compromised by the developer's representations to the City. Attorney Cherof stated one of the foundations for all of this is a community design plan. The City has allowed this particular developer a foothold against the City. Commissioner Artis asked about the City's position. Attorney ~herof thought the absence of the City's design plans rendered the City's position not strongly defensible. After recalling what had happened last year, Vice Mayor Wische Strongly urged that the City Manager and City Attorney get together to formulate design plans as fast as possible or developers will be coming into the City showing plans and, once the plans are approved, the developers will do away ~ith what the City asked. Vice Mayor Wische recalled this developer started out with eleven items requested by the City. A total of nine of the items were taken away by the p&z and CAB Boards, leaving the barrel tile roof and the ~rchways. Statements were made that if these two items were ~emoved, the project would look like barracks. Vice Mayor ~ische had agreed. He thought when a plan was approved, the developer should stick to the plan. Vice Mayor Wische further commented. 4 MINUTES - SPECIAL CITY COMMISSION MEETING BOY,TON BEACH, FLORIDA APRIL 24, 1990 Commissioner Otenik understood Attorney Cherof was saying that without a community design plan, the City could not hold any developer to anything he says he will build. Attorney Cherof replied he was saying there is a weakness in the process the City is using. It is a weakness that can from time to time be exploited against the City. Commis- sioner Olenik inquired whether the plan would have to cover every section of the City, and he commented about what a mass undertaking it would be. He bet not one community in Palm Beach County has a comprehensive design guideline for every section of its City. Commissioner Olenik expounded. City Attorney Cherof advised that the Courts in Florida have led the nation in the area of aesthetic considerations. They have said the City cannot have aesthetic criteria. Although the City can dictate what types or colors or sub- stances can be used in particular areas, they advise if a City wishes to do that, they must put all property owners on clear notice so that one property owner will follow the same standards as the other property owner. There will not be the situation where a City Planner, from his own perspec- tive, imposes different criteria on one landowner than was imposed on the previous landowner. The weakness in the City's Code is not so much that the City does not have a design plan; the problem is the City makes reference to a design plan, and there is no design plan. City Attorney Cherof further explained. Vice Mayor Wische responded the City can base its decisions on the aesthetics of the surrounding area. He referred to the barrel tiled roofs around this project and did not think the shingle roofs were comparable to the surrounding area. He asked whether City Attorney Cherof was telling him when the City says the project does not fit in aesthetically with the surrounding area and would have an impact on it, that the City still would not "have a leg to stand on" despite the fact the City does not have a design plan. City Attorney Cherof answered that was one of the factors that would mitigate in favor of the City but it did not negate the fact that there is a weakness in the City's Code. Commissioner Weiner called attention to the fact that on February 14, 1990, the P&Z Board denied the change to the roofs. The City Commission denied the change on February 20, 1990. At the last City Commission meeting (April 17, 1990), the Commission decided not to hear this applicant again. Commissioner Weiner thought the Commission promised the citizens the roofs would be put on the way they were 5 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA APRIL 24, 1990 originally approved. She had no intention of going back on those promises. There was discussion about developers. Commissioner Olenik inquired whether anyone representing the developer was present. There was no response from the audience. Attorney Cherof apprised him the developer was advised this item would be before the Commission in May. Commissioner Olenik Wondered if the developer, at any point during the approval process, ever meant to put barrel tile roofs on the struc- tures. Further discussion ensued about the developer, the roofs, and the Commission. Mayor Moore stated it is in the minutes that Carmen Annunziato, former Director o~ Planning, said this developer Should put barrel tile roofs on the structures or he would not be approved. Commissioner Wische wanted to see that. Mayor Moore alluded to what happened with Tradewinds, and he told the Commissioners the Code says you can have shingle roofs, it also says you can have barrel tile roofs. The developer said it will cost him money to put on barrel tile roofs. Mayor Moore again reminded Commissioners Olenik and ~einer of Tradewinds. He recalled voting twice to keep the barrel tile roofs, but the Courts are saying it must be in black and white. Mayor Moore warned the Commission they would cost the City & minimum of $1,000,000 to keep going with this. Commissioner Weiner objected to Mayor Moore making a case ~or this developer when other Commissioners seemed to have concerns. She thought it was beyond the scope of his ~osition. Mayor Moore reiterated his warning and reminded ~ommissioner Weiner he asked for an opinion. The City ~ttorney had told them the City would lose the case. Mayor Moore elaborated. When the developer seeks to substitute a prior approved ~aterial with a different material that is not in violation Of the Code, Commissioner Olenik asked if it takes into Consideration the representations the developer made. He ~uestioned whether the developer's representations would eigh at all in the City's defense of the case. City Attorney Cherof thought it was a factor to consider. His Opinion was the defect in the Code, in the absence of a Community design plan, was fatal. City Attorney Cherof ~hought, ultimately, the Court would look at that inconsis- tency in the City's Code in the absence of the plan and rule Against the City. 6 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA APRIL 24, 1990 Discussion ensued between Mayor Moore and Vice Mayor Wische about plans, the developer, this project, and litigation. Mayor Moore emphasized that he was not buckling under to anyone threatening litigation, but he was not going to cost the citizens $1,000,000. Vice Mayor Wische asked Don Jaeger, Building Official, if trusses were up to carry the weight of the barrel tile roofs. ~r. Jaeger replied that the developer wanted to put in ~russes that would handle the shingles and thinner plywood, but the Building Department made them comply with their approved plans. The trusses and plywood are sufficient to ~arry what was originally on the plans. Mr. Jaeger informed Commissioner weiner the project was inspected according to the plans that were submitted, and they were permitted. Those plans are designed for the tile roofs. Further comments were made about the roofs. City Manager Miller interjected that the developer and the developer's Attorney, Wilson Atkinson, have had discussions On this issue in his office during the last several months. Attorney Atkinson has contended the City, through its review process, imposed the requirement of barrel tile roofs. The developer went along with that in the beginning. At this ~ime, Attorney Atkinson was stating they want to make a ~ogical change permitted by the City's Code. The Code does ~ot require barrel tile roofs. It also allows shingles. ~ue to the lack of the community design plan and pursuant to Sec. 19.42 of the Code, consideration should be given to the ~eveloper's request to use shingle roofs. The change will save the developer dollars in the neighborhood of $250,000. ~he City has no legal basis to force the developer not to ~onslder a logistical change in the absence of a Code. ~ity Manager Miller said Boca Raton has a Code. This was ~mposed on the developer from the beginning, and the cost of Construction of this project has been higher than what was ~nticipated. The developer cannot receive additional fund- ~ng for the barrel tile roofs because barrel tile roofs can- hot be justified to the lending institutions when other type ~oofs can be utilized. Mayor Moore again alluded to Trade- ~inds and admired City Manager Miller for his statements. He repeated prior statements. Cynthia Greenhouse, Attorney at Law, 618 N. E. 20th Lane, Boynton Beach, FL 33435, asked Attorney Cherof if there could have been anything in the minutes of the meetings when ~he applicant came before the City that would constitute a MINUTES - SPECIAL CITY COMMISSION MEETING BOYlqTON BEACH, FLORIDA APRIL 24, 1990 contract. She did not feel a contract had to be in writing for this particular purpose. It seemed to Attorney Greenhouse that a contract could have arisen. She stated a city does not have to allow anybody to build anywhere. Mayor Moore interrupted to tell Attorney Greenhouse she was totally wrong and this was not a public hearing. Attorney Greenhouse repeated her question. Attorney Cherof had not seen anything in the minutes that he thought would rise to a formal level of contract. He had not seen anything in the records he reviewed, other than the aesthetic considerations, that there would be a detriment to the City, other than the design criteria. Attorney Greenhouse asked if these considerations had been upheld, with or without a design plan, in this State as being within the authority of the Commission. City Attorney ~herof answered they had, to a limited degree. There were further comments. Until all of the minutes regarding this particular issue are reviewed, Attorney Greenhouse thought they may not be able to make a determination as to whether or not an oral contract was formed. Attorney Cherof clarified that he looked at minutes, but Attorney Greenhouse had commented there may be even more minutes. If Attorney Cherof found something that would give rise to a contract situation, Attorney Greenhouse asked if it would make any difference in his position. Attorney Cherof preferred not to answer, but he doubted that he would see ~nything that would change the opinion he rendered today. Commissioner Olenik noticed four criteria were delineated in Sec. 19-43. He questioned whether they were jointly or ~ndividually evaluated. Attorney Cherof thought it was dumulative. ~om Miller, 1059 Coral Drive, Treasure Island, Boynton Beach, lives directly behind the project they were talking about. Originally, a shopping center was planned there. Due to ~tong opposition, the project was not approved. The devel- oper knew what he had to do to get the support of the qommunities. The communities involved are Treasure Island, ~enetian Isle, Skylake, and Leisureville. Mr. Miller expounded and alluded to tile roofs. He did not want the project owners to reduce their rents too low because his 8 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA APRIL 24, 1990 property value will be affected by it. Mr. Miller called attention to what was promised, and was sure the developer had his costs in a row when he made the proposal. He thought the developer should stick to his promise. After elaborating, Mr. Miller remarked it looked like the Commission was giving the developer everything he asked for. There were comments by Mayor Moore and Mr. Miller. Mr. Miller stated they were promised a nicer looking place. Now they heard there would be lower standards. Mayor Moore asked for a motion. Commissioner Olenik stated they had already approved the original site plan, and he was not going to deviate from that. If that was the Commission's desire, no action was necessary. Commissioner Olenik was not sure they could approve an amendment to the site plan. He suggested they may want to direct the City Staff to administratively change the plan. Mayor Moore passed the gavel and moved that the City allow the project to go forward in accordance with the Ordinance, Building Code, and opinion of the City Attorney to allow the applicant to substitute shingle roofs as opposed to barrel tile. The motion died for lack of a second. Mayor Moore stated that concluded the agenda. Commissioner ©lenik recommended that a 30 day moratorium be put on all ~evelopers in the City and that the City Staff spend what- ever it takes to get design guidelines into the Commission's hands so they can be approved and the City will not get ~aught again on development in the City. Mayor Moore ques- tioned whether Commissioner Olenik was going to eliminate ~hingle roofs in the City. Commissioner Olenik wanted aesthetic guidelines for every square foot of the City. ~ayor Moore advised you cannot apply discretionary effects against a property holder's right to use his property to its highest and best use. That is the United States Constitution. He emphasized they cannot tell a person how ~o use his property unless it makes sense. This did not make sense. Mayor Moore repeated when this comes down, it Will be a minimum of $1,000,000. It seemed they learned ~othing from the Tradewinds fiasco. They were interfering With a property owner's rights against the City Attorney and the City Manager's advice. Discussion ensued about the City Attorney's opinion and the ~esign guidelines. City Manager Miller informed the Commis- sion that he received a copy of Boca Raton's community 9 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA APRIL 24, 1990 design plan, and he had asked the Building Official to bring it before the CAB for their review and discussion. He thought Boynton Beach would want its own identity, but Boca's plan had some good parameters established and cri- teria the City could work from. There was further discussion about the criteria and design guidelines. Commissioner Olenik asked whether it would be defensible if the City did not want a purple gas station. If it bears a reasonable relationship to some reasonable public end, City Attorney Cherof answered that standards can be applied. If it does not bear a reasonable end, they cannot. There was further discussion. Vice Mayor Wische wondered why the Commission did not let the City Manager go over the guidelines for the community development plan from Boca Raton with the Building Official and whoever he has to, and then present it to the City Commission for adoption. Mayor Moore passed the gavel and moved to adjourn. Commissioner Olenik questioned what they would do between now and when they establish the design guidelines. There were further comments. City Manager Miller wanted the City Staff to review the guidelines and make recommendations so it would be before the CAB when they meet on May 14, 1990. If the CAB approves it that night, it could be before the Commission On May 15, 1990. However, the CAB may want additional time to review it. If they show a good effort relative to getting this before the CAB on May 14th and tentatively before the Commission on the 15th, City Manager Miller thought they would be working in the realm of zoning in progress. He commented about Boca Raton's guidelines and Stated they use the word "harmonious" (harmonious with the neighborhood). There were other comments. Mr. Jaeger interjected that the interpretation of the devel- Qpment order is very broad to include building permits. There was discussion between Commissioner Olenik and Mayor Moore about whether there was a motion on the floor and whether there has to be a motion to have discussion. Mayor Moore declared the meeting adjourned and said the agenda was Completed. He informed Commissioner Olenik that there had been no motion. 10 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA APRIL 24, 1990 Commissioner Olenik moved to add "Discussion on Community Guidelines" to the agenda. Mayor Moore responded that the meeting was adjourned. Commissioner Weiner argued that there was no motion to adjourn, and Mayor Moore could not adjourn the meeting. Mayor Moore replied that the agenda had been completed. Commissioner Weiner and Mayor Moore argued further. Commissioner Weiner requested that the minutes reflect that Mayor Moore left the dais and was leaving the room at 6:00 P. M. Attorney Cherof advised that the meeting could Continue, but the agenda was completed. Commissioner Weiner Objected, saying they were still discussing the last item. Commissioner Olenik asked if the agenda could be amended at this point in a meeting. Attorney Cherof answered that Commissioner Olenik would have to readdress the previous notion he made when he adopted the agenda. Commissioner ©lenik responded that he made a motion to amend the agenda, but Mayor Moore disallowed his motion. ttorney Cherof suggested the ~. . . Commission give City Manager ~lller and him until the next meeting (May 1, 1990) to bring %o them, under his or the City Manager's portion of the agenda, some alternative vehicles to deal with this problem. ~nder Robert's Rules of Order, Commissioner Weiner objected ~o the presiding Officer constantly giving his opinions of  hat the motives of the separate Commissioners were. Under obert's Rules of Order, that is not permitted, and ~ommissioner Weiner wanted this in the record. Commissioner Artis asked what the Commission had decided ~bout the roofs. Vice Mayor Wische replied they had decided 4-1 they should be barrel tile roofs. That was the motion %hat was passed at the last meeting, and it was not changed. So the record would be clear, Commissioner Olenik stated ~here was no motion tonight to do anything different. The Commission did not accept the offer of the Attorney for the Developer to settle this prior to going to litigation. Commissioner Artis reminded them that the City Attorney said the City has very weak legal grounds. Vice Mayor Wische thought they had moral grounds. Commissioner Artis told Commissioner Olenik she was getting clarification. 11 MINUTES - SPECIAL CITY COMMISSION MEETING BOYI~TON BEACH, FLORIDA APRIL 24, 1990 ADJOURNMENT Commissioner Weiner moved, seconded by Commissioner Olenik, to adjourn. The meeting properly adjou~ed at 6:05 P. M. / / ~ Mayor ~ -- - Vice MaWr ATTEST: ~eC°~od~gTSa;eC~etar~ Commi s s i oner /~C~C~--~ ~ m~s s~c n~ r 12