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MInutes 04-11-90MINUTES OF THE SPECIAL CITY COMMISSION MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYI~TON BEACH, FLORIDA WEDNESDAY, APRIL 11, 1990 AT 5:00 P. M. PRESENT Gene Moore, Mayor Lee Wische, Vice Mayor Lillian Artis, Commissioner Robert Olenik, Jr., Commissioner J. Scott Miller, City Manager Sue Kruse, City Clerk James Cherof, City Attorney Mayor Moore called the meeting to order at 5:00 P. M. First reading of Ordinance ~90-7 and setting public hearing pursuant to Florida Statute 166.041 (3) (c) prior to adoption Attorney Cherof informed everyone that Judge Scott, the Judge in the District Court case regarding Southern Entertainment, issued a judgment and memorandum opinion Which the City received on Monday, April 9, 1990. Judge Scott found the substance of the City's previous Ordinance 89-17 was sound, but the procedure by which the City adopted it was flawed, specifically with respect to announcing the Second public hearing, which should have occurred at the first public hearing. There was also some question with ~espect to the size of the ad. Attorney Cherof stated they are both technical deficiencies that are curable. Judge Scott held that Ordinance 89-17 was void and unenforceable for statutory non-compliance and entered in favor of Southern Entertainment Company of Florida, Inc. The Ordinance in front of the Commission tonight (#90-7) was 89-17 reprinted with a new Ordinance number assigned to it. Attorney Cherof stated the intent is to move forward to adopt at in accordance with statutory requirements and to implement %he policy. He confirmed Mayor Moore's statement that what the Commission did was ruled to be constitutional and met %he constitutional test of liability except for the notice. Commissioner Olenik referred to when Ordinance 89-17 was ~ead on first reading and asked if that could be construed ~s being proper, and it is awaiting second reading. After ~iscussion, Attorney Cherof thought they should treat Ordinance 89-17 as being void because that was what the Order said. Whether the Order intended to mean from its first reading forward or from its last reading forward was Unclear and could perhaps be the subject matter of a request for clarification. 1 MINUTES - SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA APRIL 11, 1990 Attorney Cherof stated that the concept of zoning in progress is a valid legal concept in Florida. The essence of this is no owner of any property can rely upon existing zoning if, in fact, there are administrative wheels sub- stantially in motion which would effectuate a zoning change on the property. If there is "zoning in progress", that is a fact analysis. You look at each fact situation and deter- mine what is being done at the administrative level of the City, and what the department heads are doing to further the adoption.of the proposed amended change. Attorney Cherof thought a very strong argument could be made that there has been zoning in progress with respect to what is now proposed in Ordinance 90-7 for a long period of time. Discussion ensued about Commissioner Olenik's question. Commissioner Olenik alluded to The Club and was informed they tried to get an occupational license. He asked if the Commission was putting the City at risk by not having the Ordinance on the books or in the works prior to this evening's meeting. Attorney Cherof thought they were taking a conservative approach. If Commissioner Olenik's point was true, it may be that Ordinance 89-17 was properly adopted on first reading and there was some flaw in the process after that. The City may have Ordinance 90-7 and Ordinance 89-17 essentially the same, but that would be twice the offense the City would otherwise have. Attorney Cherof advised Mayor Moore the commission had to establish dates for two public hearings and for the adver- tisements. Attorney Cherof read from the pertinent Section Of the Statute the Judge made reference to that the local government shall hold two advertised public hearings on the proposed Ordinance. Both hearings shall be held after 5:00 ~. M. on a weekday, and the first shall be held approxima- tely seven days after the day the first advertisement is published. The second hearing shall be held approximately two weeks after the first hearing and shall be advertised ~pproximately five days prior to the public hearing. The ~ay, time and place at which the second public hearing will be held will be announced at the first public hearing. Commissioner Olenik asked why two public hearings are ~equired. Attorney Cherof answered this falls under Chapter 766.041, which is the procedure for the adoption of Qrdinances. It deals with Ordinances that either propose rezoning or changes in permitted uses. They are going under the Section where this particular use would affect 2 MINUTES - SPECIAL CITY COMMISSION MEETING BOTfl~TON BEACH, FLORIDA APRIL 11, 1990 more than 5% of the total land area of the municipality. Attorney Cherof understood from the Planning Department that it does take more than 5%. It is a statutory requirement. Mayor Moore questioned whether other things might be out there which may have been defectively adopted. He asked that the Planning Department research and correct that. Commissioner Olenik questioned whether a definition for "adult entertainment" was included in this Ordinance. He also questioned whether there is a definition in the City's Codes and Ordinances. Attorney Cherof replied that there is a definition. Mayor Moore added that the Judge, in his Order, accepted the definition as being a valid description. Attorney Cherof said "adult entertainment" is defined as a commercial enter-prise which predominantly limits admission to adults only~ owing to the sexual nature of its merchan- dise or entertain-ment. There is'a cross reference to Sec. 1, Ordinance 80-30. Attorney Cherof read Ordinance No. 90-7 on first reading by title only: "AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, 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 DISTRICTS, PUBLIC USAGE DISTRICTS OR RECREATION DISTRICTS; PROVIDING FOR ADULT ENTERTAINMENT ESTABLISHMENTS AS PERMITTED USES WITHIN C-3, C-4, PID AND M-i ZONING DISTRICTS; PROVID- iNG THAT EACH AND EVERY OTHER PROVISION OF APPENDIX A - ZONING NOT SPECIFICALLY AMENDED HEREIN SHALL REMAIN IN FULL FORCE 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" Vice Mayor Wische moved to adopt Ordinance No. 90-7 on first reading, seconded by Commissioner Olenik. Commissioner Olenik noted the title stated they were readopt- lng Ordinance 89-12. Before, they were discussing Ordinance 89-17. He wondered which Ordinance was correct. Attorney Cherof replied Ordinance 89-12 was the prior draft, which had legislative findings and set forth other criteria. Mayor Moore questioned why Ordinance 89-17 was adopted. 3 MINUTES . SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA APRIL 11, 1990 Attorney Cherof thought there was some question as to whether 89-12 had been properly enacted. Being cautious, it was rewritten as 89-17 and adopted. Mayor Moore asked if all of 89-12 and 89-17 were incorporated into 90-7. Attorney Cherof answered affirmatively. A roll call vote on the motion was taken by Sue Kruse, City Clerk, as follows: Mayor Moore Vice Mayor Wische Commissioner Artis Commissioner Olenik Aye Aye Aye Aye Motion carried 4-0. Discussion ensued about the dates for the public hearings. ~ommissioner Olenik moved to establish the public hearings for proposed Ordinance No. 90-7 on April 24, 1990 at 5:00 P. M. and May 15, 1990 at 6:00 P. M., and that the City Attorney be instructed to properly advertise_the hearings in strict accordance with the provisions of law. Vice Mayor Wische seconded the motion, and the motion carried 4-0. Settlement Offer from Southern Entertainment ~torney Cherof had a letter dated April 11, 1990 from Michael Wiener, Attorney for Southern Entertainment, which ilndicated that Southern Entertainment is still interested iin settlement as previously outlined in their letter of ~ebruary 2, 1990. Added to that was Southern Entertainment's ~illingness to dismiss the harrassment case filed against t!he City, to bring their sign into conformance within 60 ~ays, and to bear their own Attorney fees and expenses. The Commission had no change in its position on the first ~art of the letter. Attorney Cherof advised nothing had to ~e done at this time on the second part of the letter. The Clity is in the process of preparing a response to request t~at the action be dismissed. The Code Enforcement Board w~ll readdress its previous Order at their next meeting. Financing for Tradewinds Settlement Ciity Manager Miller referred to a letter dated April 11, 1990 from Sun Trust. Commissioner Olenik pointed out that there was no motion to amend the agenda. Mayor Moore s~ressed there was some urgency to meeting the deadline 4 MINUTES - SPECIAL CITY COM/~ISSION MEETING BOYNTON BEACH, FLORIDA APRIL 11, 1990 date, which the Commission had already approved. Commissioner Olenik had no problem with that, as long as it would be on the next agenda, as they would have to ratify anything they did tonight. City Manager Miller said this pertained to refinancing the golf course, along with the Tradewinds judgment. The 1984 issue was a refinancing of the 1982 issue. Recalculations were done on the fees. The net present value of savings on full refinancing of the 1984 bonds would be roughly $50,000 after the payment of issuance costs associated with it. If they went with partial refinancing of the Series '84 bonds, it would yield the City a greater net present value in the range of between $75,000 and $80,000. The 1986 tax laws limit the number of refinances the City can undertake on an original bond issue. Under those laws, Boynton Beach only has one more time on the 1984 issue. City Manager Miller said it was felt at this time, it was not advantageous to refinance the golf course bonds because the net present value of savings is not substantial. Mark Raymond, Bond Counsel, felt if they could not yield $200,000 or better on the net present value of savings, they should not consider a refinancing. City Manager Miller wanted to tell Sun Trust to move forward on'the $8,000,000 Tradewinds judgment and forego the refinancing of the 1984 bond issue. It was the consensus Of the Commission for City Manager Miller to do this and report back to the Commission at their next meeting. Appointment to Community Relations Board Mayor Moore reappointed Elizabeth A. Collins as an Alternate Member on the Community Relations Board. ADJOURNMENT The meeting properly adjourned at 5:20 P. M. 5 MINUTES ~ SPECIAL CITY COMMISSION MEETING BOYNTON BEACH, FLORIDA APRIL:ii, 1990 CITY OF ~TON BEACH ~ ~..~ v ~ ~fi~ce Mayor ' ATTEST: Commissioner Commi s s ioner _Clerk -- ~ ReC°~od~engTSa~Ce~etary~ 6