Loading...
Minutes 02-08-77MINUTES OF SPECIAL CITY COUNCIL ~ETING OF THE CITY OF BOYNTON BEACH, FLORIDA, HELD IN CITY HALL, TUESDAY, FEBRUARY 8, 1977 PRESENT Joseph F. Zack, Mayor Emily M. Jackson, Vice M~vor Richard D. Caldwell, Councilman Joseph DeMarco, Councilm~ Norman F. Strnad, Councilman Frank Kohl, City Manager Tereesa Padget%, City Clerk Gene Moore, City Attorney ~yo~ Zack welcomed everyone and called the meeting to order 7.30 P. M~ and ~unounaed it was a Special Meeting in ac- cordance with ~ectio~ 56 of the City Charter of the. City of BOynton Beach called for 2he following pmrposes: 1. To Consider Proposed Ordinance No. 77-5. 2. Appointment of ~eards 3. Discuss Village Royale, Inc. 4, Discuss Rimker Naterials Corp. Proposed Ordinance No. 77-5 Mr. Moore read ~roposed Ordinance No. 7?-5 on second reading By caption only. Mayor Zack asked if anyone present wished to speak in favor of this ordinance and received no response. He then asked if anyone wished to speak ~n opposition to this ordinance. Mr. Joseph Aranow stated his name and his address as 2520 N.E. 1st Co,mrt. He stated he was in opposition to the pass- age of thi~ ordinance. He advised that he is Chairman of the Board of Adjustment amd at this moment, he is tendering his resignation as Chairman and member of the Board of Adjustment because he would like his remarks to be made as a private citizen and not because he is connected with the Board of Adjustment. Mr. Aranow referred to So,ion 163.220 being the rule By which the Board of,Adjustment was formed. He does not want to enter into a~y leg~l~ arguments whether one law or another applies, b~t he does want to bring out certain important things in connection~ with this law and the people of Boynton Beach. In this particular sectiom, the Board of Adjustment consists of X number of members such as the City Council directs. The previous Council voted 5-0 to elect the present members to the Board of Adjustment for terms varying from one to three years.. It is now one year since these particular appointments were made. He explained howthe law specifically stated that in no one year should the m~ity of the members appointed be replaced. There would be a changeover in the composition of the Board every year, hut no more than approximately 1/3 of the Board would chm~ge. This was done for two good reasons. In the first place, the Board ~eing a quasi-judicial body has nobody to tell them how to vote, what to do and they are MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 absolutely free. The only people who can tell the Board of Adjustment they did wrong are the courts; the City Council e~not tell them how to vote. Under the circumstances, people were appointed on the Board could give free, honest and open service and be convinced of what is right and render a decision. Under these circumstances, they have people with kmowledge of what has gone on in the Board of Adjustment with 2/3,s h~ving at least one year's experience. At no time will f~e Board of Adjustment be cold with all new persons. Mr. Aranow eentim~ed that he feels there is a question in- volved with the proposed statute as it now star~$. Upon the chosen. He does not k~ow if it means the members who have shall be appointed again or new members chosen by the Cit~ shall be appointed. Mr. Aranow stated that these are the two reasons he feels this Cit~ Council should not pass this ordinance. He feels it is not for the best interest of the citizens of Boyntea Beach. Mayor Zack asked if az~one else wished to exoress themselves in opposition to this ordinance and received-no response. Mr. Caldwell moved the adoption of Ordinance No. 77-5 on second and final reading, seconded by Mrs. Jackson. Under discussion, Mr. Caldwell stated that whe~ the idea of chang- ing the Boards to serve at the pleasure of the Oo~ncil came up, he thought in the interest of stability the members should be appointed to a flat eno year He thought it would give the members a sense of purpose. He is in favor based on some on some of the Committee members havi~g been two or three year~terms. He advised that out of the meetings held by the Civi/ Service Board, some members ha~ md~sed six meetings and some had missed four meetings when tied into a term last- ing two to three years.. Out of the 22 mee by the Community Appearance of the 22 meetings and of the 28 meetings held individuals missed 12 people did have v He could coupe wanted to po~t o a two or thr~e year term and 40 or 25%, he ~eels, the~ are capacity to which ~he C~ty aeeds, if the ~er~s are limite~ '0 on will not he locked into a term seven out Out , some the w~s over , is the to serve. , but he locked into 50, to the He feels are interested .2- MINUTES - SPECIAL CITY COUNCIL M~MTING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 in serving and it will give them the time to adjust how much time they will have to give to civic affairs. It is on this principle alone that he has supported the ordinance to limit the terms to one year. He hopes the accusations going on about this heing a political hatch job will be dispelled once and for all. He speaks for himself. He is in favor because if a ma~ does well, he cam ask for re-appointment on his re- cord. If a man is appointed for two or three years, them it is locked im~ The idea is to have the impmt of seven people are imterested in serving again, let them come forward indicate they are willing to serve again. Mr. DeMarco stated that at the first City Council meeting, it was mnderstood that auyo~e interested in serving on the Boards should submit a resume letting us k~ow they are in- terested a~d we have received quite a few~ Also, 50 to 60% of the Boar~swill be renominated. It will not be a clea~ sweep as some people have indicated.. Mr. Aramow requested to speak further and Mayor Zack replied ~$_t a motion had been made and it was on the floor for the Council,s discussion at this time. Mr. Aramow continued that the Council did not have all the facts before them. He re- ferred to Mr. Caldwell not mentioning the attendance record for the Bo~rd of Adjustment. He would like to kmow the atten- dance record of the Board of Adjustment.. The statute provides for people to be removed for just cause and absences may be a Just cause. Mayor Zack requested Mr. Caldwell to give these figures. Mr. Caldwell asked if it was mandatory to go according to the State Statute with regards to the Boardoof Adjustment and Mr. Moore replied: no and added that possibl~ all the facts are not before the Board. If Chapter 163 was read in its entirety, they would see the comprehensive parts provide for all or any portion may be adopted by any city in the State of Florida.- In his opinion, the City Council did not state they wanted to adopt it in total. The Board of Adjustment was a~opted per the City Charter. There have beem a lot of statements made and statements made at the Board of Adjustment meeting, but he feels all the facts were not displayed. The Council has the authority to proceed ~m adopting this ordinance withim the legal hounds of the City Charter~ Mr. Caldwell asked if they Sade an error in the appointment, who are ~hey ultimately responsible to and Mr. Moore replied that they were responsi- ble to the people who electe~ them. However, if they delegate authority beyond this table, it is subject to legal question. MINUTES - SPECIAL CITY COUNCIL MEETING BO~TON BEACH, FLORIDA FEHRbARY 8, 1977 Mrs. Jackson stated she didn't Believe this Council or any ether Council would be foolish enough to put in a brand new Board at a~y time. She believes they need continuity i~ the Boards and this can Be ~one be re-appointing people. Mrs. Padgett then took a roll call vote on the mo~ion as follows: Councilman Caldwell - Aye Councilman DeMarco - Aye ~ice Mayor Jackson - Aye Comn~ Strnad - Ne N~yor Zack - Yes Motion carried Mr. Moore informed the Council that this ordinance would net go into effect until ten days from tonight and any appoint- ments made would not be effective until then. Mrs. Jackson suggested making the appointments and the letters could be sent by the time the ordinance is effective. Appointment of Boards Librar~ Board Mr. DeMarco nominated: Christine Edward, Mrs. Arthur J. Schaap, Mrs. Mildred White, Mrs. Rubie Mack, Mrs. Paula Moore, Mrs. Sandra Lautenschlager, and Mrs. Martha ~. Muschella. Mr. Caldwell seconded the nominations. Under discussion, Mr. DeMarco stated he thought they would find that most served on the Board last year. Mrs. Jackson added that they were the same as last year, except Mrs. Moore who served on the Library Board previously. Mrs. Padgett then took a roll call vote as follows: Councilman DeMarco - Aye Vice Mayor Jackson - Aye Councilman Strnad - Aye Councilman Caldwell - Aye Mayor Zack - Aye Nominations carried 5-0. Plannin~ & Zonin$ Board Mr.'Caldwell put the following names in nomination for the Planning & Zoning Board: Dick Lambert, Ronald Arena, Mrs. Mamilyn G. Huckle, Mrs. Mary Schorr, Simon Ryder, Walter M. Trauger, and Garry Winter. Mrs. Jackso~ nominate~ the name of Stanley Weaver in place of Richard Lambert. She first stated that she throws Mr. -4- MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BF~CH, FLORIDA FEBRUARY 8, 1977 Lambert has done an excellent Job; however, the year she was Mayor, Attorney General Robert Shevin said amy Council should be very careful in the appointment of the Planning & Zoming Board so there is mot a conflict of interest with am~ members being in real estate. She referred to real estate interests possibl~ leaving them iu the position of abstaining, leaving a tie vote, or mot having a quorum. She would-like to have Nr. Lambert appointed to another Board, Her complete list ~or nominations would be: Mrs. Marilyn ~. Enckle, Mrs. ¥~zry e ~emaiming ~omina~ions have b~en on ~he ~anning & Zonimg ara ~reviously~.~a~,~e~:~e~~r~.~~ See o~rd £or several y&ars. 2-1~-77 Mr. DeMarco stated his list was the same as Mrs. Jackson's. Minutes He explained how Mr. Weaver was a worthwhile resident. He suggests that M~. Lambert ~e appointed to the Oommmmity Promotion Board as he thimks he would serve better there. Mr. Strna~ stated that he had no nominatioms. Mayor ~ack stated that he would like Mr. Lambert to remain on the Planning & Zoning Board as he feels professional people should beoom these Boards. He did attend a meeting when Mr. Lambert excused h~mself because of conflict of in- terest. He thinks the State recommends having professional people on this Board. Mr. Caldwell stated he could see Mrs. Jackson,s point about conflict of interest and the possibi- lity of ties, but they must keep in mind that there are other Boards where professionals must serve and he referred to the Building Board of Adjustments & Appeals ~eing comprised of individuals in the ~uilding industry. I~ essence, if they are going to get professional people to render professional judgements, he thinks they should place them ina capacity where judgements are well founded. When talking about zoning land, he feels a man dealing in real estate wouldk~now the best use for the land. Mr. DeMarco referred to Mr. Weaver's qualifications and Mr. Strnad agreed he was qmite a property owner in Boymtom Beach. Mr. Oaldwell continued that no matter whom they appointed, the~e would always be the potential of conflict of interest. This should also be based on the pre- mise of getting new blood into the Board and he hardly calls one year,s service old blood, but he has experience and ex- pertise~ He feels the Planning & Zoning Board should have a realtor up to date on current laws, prices and land in the area. M~yor Eack requested a roll call vote on Mr. Caldwell's nominations and Mrs. Padgett took it as follows: -5- MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 Vice M~ayor Jackson - No Councilman Strnad - Eye Councilman Caldwell - Aye Councilmam DeMarco - No Mayor Zack - Aye Nominations carried 3-2. Recreation & Parks Board Mrs. Sackson nominated Lee ~rimes, who has never been om this ~oard But is a coach at the middle school; Mrs. Armeda V. N~s. Kathy Wallace; Thomas L. Marvin; Mrs. Doria~ Beck , all who have been on the Beard previously; and Mrs. ~ictoria I. Castelle, who hms not been en this Board bat is very interested in the City; and Mr. Robert Feldman. Mr. Strnad stated he had no nominations. Mr. DeMarco a~d Mr. Caldwelt agreed with Mrs. Jackson's nominations. Ers. Padgett took a roll call vote on. the nominations as follows: Councilman Strnad Aye Councilman Caldwell - Aye Councilman DeMarco Aye Vice Mayor Jackson - Aye Mayor Zack Aye Nominations carried 5-0. Building Board of Adjustments & Appeals Me. Strnad stated he had no nominations. Mr. DeMarco nominated Joseph S. Longo, Richard Kurtz, and Robert Olenik, and added that these were the only three who had sent in resumes. Mrs. Jackson referred to three members constituting a quorum and stated by the next City Council meeting maybe more people will submit resumes. She does not think it would be fair to pick people with not having resumes. Mr. Moore reminded them that the ordinance would hot be effective for ten days. Mr. Caldwell suggested the addition of Stanley Weaver. He referred to his qualifications mentioned, but he does not know if he has expressed interest on this Board but with his experience possibly he could serve on this Board. Mrs. Jackson asked if Mr. Weaver was qualified to serve on this Board and Mr. Moore replied: yes, a~ they have eliminated the specific requirements. Mr. Caldwell nominated Stanley Weaver in addition to these three. Mayor Zack referred to having to follow guidelines for qualifications on this Board and Mr. DeMarco stated he thought Stanley Weaver should be on the Community Promotion Board. ~. Moore stated that he be- lieved Mr. Weaver was qualified. Mr. Caldwell suggested -6- MINUTES - SPECIAL CITY COUNCIL MM~ETING BOYNTON BEACE, FLORIDA FEBRUARY 8, 1977 appointing _Mr. Weaver as he has ten days before assuming his duties which would give him time to officially resign if he feels he does not wish to serve. Mr. DeMarco stated that he felt Mr. Weaver would better serve on the Commmmity Promotion Beard. Mayor Zack requested that a roll call vote be t~ken on the three nominations submitted by Mr. DeMar¢o and Mrs. Padgett took it as follows: go~mcilman Caldwell - Aye Councilman DeMarco - Aye Vice Nayor JackSom - Aye Councilman Strnad - Aye Mayor Zack - Aye Nominations carried 5-0. Cemeter~ Board Mr. DeMarco nominated Mrs. Bertha Chadwell, Basil C~mflot, Edgar D. Hurford, Frances J. Van Devender, L. Don Combs, and N~s. Tereesa~ Padgett. Mrs. Jackson stated that this Board has served for a dedicated and long time and she feels they have been a good Board and served well. She moved that the nominations Be clos~ Mrs. Padgett took a roll call vote on the nominations as follows: Councilman DeMar¢o - Aye Viee Mayor Jackson - Aye Councilman Strnad - Aye Councilman Caldwell - Aye M~qvor Zack - Aye Nominations carried 5-0. ~oard of Adjustment Mr. Caldwell stated that Derle Bailey has served on the Board and his term expired DecemBer, 1976, He nominated Derle Bailey, Carl Zimmerman, Lillian Bend, and Edwar~ F. Harmening. Mrs. Jackson advised that Carl Zimmerman had requested to ~e an alternate and ~eminated the complete membership for the Board of Adjustment consiting of: Fey ~ard, Vernon Thompson, David W. Healy, Walter B. Rutter, Lillian Bend, Edward F. Harmening, Derle Bailey, ~i~Carl Zimmerman and V. Paul See 2-1B-77 Sceggins as alterna%es. Mr. Strnad stated he had no nomina- Minutes tions and Mr. DeMarco passed. Mrs. Padgett took a roll call vote on the nominations sub- mitted by Mrs. Jackson as follows: -7- ~ItNUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 Vice Mayor Jackson Aye Councilman Strnad Aye Councilman Caldwell Aye Councilman DeMarco - Aye Mayor Zack Aye Nominations carried 5-0. Cardiac Cooperative Task Force Mrs. Jackson stated that she understands the Cardiac Coopera- See tire T~Force only needs one more meeting and she saggests t ~ leaving b~s Board as it is. Er. DeMarco So moved, seconded Minute ~YMrS. Jacksom. Motion carrie~ 5-0. Civil Service Appeals Board Mrs. Jackson nominated Robert Shackley and A1 Fmria as re~ lme~mb~emher~, a~_d~elley Kirto~ and Te$ Bowles as alternate m~ers. ~. oam~well seconded the nominations. Nominations carried 5-0, Mr. Strnad stated that the only objeetion he has to any of these appointments is ths. t he doesn't think it is fair to the rest of the residents in this City to have two persons from one family serving on the Boards of this City. He thi~ it should he spread out for more people to serve from the City. M~s. Jackson replied that it had happened in the past. She added that Eathleem Kirton amd Kelley Kirton had both served on Boards iR the past and bot~ have expressed interest. Col. Trauger was on the Planning & Z~oming Board previously and both previo,msly a~d Community Appearance Board Anita nominated Col. Gara Reid, Mrs. Lester Deneen, Jameson, Nat 0strow, regular members; and and Kathleem Kirtoa as alternates. served Bill He Reid, and NaS al~ nominated Otis Walker, who requested the Plan- Boar~; however he would like to enter his ~mmunity Board inasmuch as he has City for prior. Ne also nominated am who submitted his resume today. Mrs. Mary Jameson, Col. Cam Case, Ers. Lester Deneen, N~s. Ethelda Nordstrom, as regular members and M~s. Anita Coco as an ~s req%gsted, Mrs. Padgett took a roll call vote on the ist submitted by Mr. DeMarcoas foltews: -8- MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA Councilman Caldwell - No Councilman DeMarco - Aye Vice Mayor Jackson - Aye Councilm~n Strnad - No Mayor Zack - Aye Nominations carried 3-2. Community Relations Board FEBRUARY 8, 1977 Spielherg and Mrs. Syria ~agner to cemp~te the list of six. Mr. Strnad informed them that the people sent i~ resumes last ~hea~ that are currently on the Board. Mr. DeMarco replied at they asked everyone to send in resmmes amd they were notified. Nr. Strnad asked how they were notified and Mr. DeMarco replied not by mail, but it was brought out in the meetings. Eominations carried 4-1 with Mr. Strnad voting agaJ.~st. General Employee Pension Board Mrs. Jackson nominated Mrs. Dianne Hardin and Dave Roberts. Mr. DeMarco agreed and Mr. Strnad stated he had nothing. Nominations carried 5-0. Housin$ Authority Mayor Zack announced they needed five members and added that they had only had one meeting and none of the present five members had submitted resumes. Mr. Caldwell questioned the duties of the Housiag Authority and Mr. Kohl informed him that they are looking into the new Sectio~ 8 Program that the County has to offer minority people. They have met twice. Mr. Charlie Joh_uso~ has been acting as Chairman and has been very active. He is at a meeting now downstairs. M~yor Zack added that Mr. Strnad had submitted a resume from Mr. Johnson a few months ago. Mr. Caldwell nominated Charlie Johnson, Jackie Bolden, Johnny L. Grimes, Mrs. Blanche Girtman a~d A; Fasamo. Mr. Strmad seconded the nominations. Nominations carried 5-0. Communit~ Promotion Mayor Back referred to this being a new Board and suggested they decide how many people they want on this Board. Mr. Caldwell replied that eleven people had sent i~ res~mesand MINUTES - ~PECIAL CITY COUNCIL MEETI~NG BOyNTGN BEACH, FLORIDA FEBRUARY 8, 1977 he suggests making it eleven members. Mrs. Jackson stated that several people had not been appointed to Boards who sent in letters. The Community Promotion Board can be divided in many ways. She suggests appointing everybody who sent in resmmes as listed for this Board, plus Herbert Rigby and Stanley Weaver. Mr. Caldwell stated that two members from the same family on the same Board seemed to be getting a little tacky. He thinks it should be limited to one member from a family per Board. Mr. DeEarco replied that this Beard would be divided into committees. Er. Cal~well stated that they still would be ae~v~nE on~ the same Board and added that he was just stating his opinion. Er. Strnad stated that imasmmch as they have allowed Other members of the same famil~ serve om different ~oards, he moves to allow the two Oe~tolas t~ serve on the ame Beard. Mrs. Jackson m~tion. Notion car- ried ~-~ with Mr. Catdwell against. Mrs. Jacksbn moved to accept the 13 members, seconded by Mr. DeMarco. Under discussion, Mrs. Jackson stated that this meant everybod~ Who has sent in a reques~ has been put on a Board. Motion carried-4-1 with Mr. Caldwell voting No. Mrs. Padgett questioned the list contalming 13 people and F~. DeMarco clarified that the members would he: Mrs. Leonard Leemon, ~s. Jamet David O. Oentola, Jean Pipes, Andrew C. ~ittkop, John Jameson, Rev. L. WEdward Woilenweber, Leon Smiles, Joseph Maiorana, Eerbert Rigby amd Stanley Weaver.. Consistin9 o~ 12 members. Er. Strnad referred to the first three peep!e listed being from the same family particular Board. Oaldwell remarked that if they would cut out half of the people in Beach. Mr. Strnad stated that they should try to spread~ it out in ~opulation and keep out of onefamml~.' Mr. DeMar¢~ replied that the people had submitted resumes. Er. Oaldwetl r~ferred to bringing this up and pointed out that he was the only one who voted nay ia having both Centolas serving on the same Board, hut Mr. Strnad said it was fine and wen~ along with it. Mr. Strnad clarified that it was okay for two members, but not three from the same family. Mrs. Ja$~son stated she thought this Board will be different from other Boards and will be divided i~to different areas. See 2-15-77 Minu%es Pension Board Committee ~or Zack advised that he met with the Pension Boards and they are concerned about looking imto eliminating Social Security and going on their own system. He believes a Com- mittee should be appointed to research this and report back to the Council. He explained that some cities were doing -10- MINUTES - SPECIAL CITY COUNCIL MEE. TING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 this and it will take two years for governmental approval. He suggested that the Fire Chief, Police Chief, and John Johnson be appointed as members and Ken Kribs he appointed as C~wman of the Board. Mrs. Jackson replied that it would be his ~rerogative as M~yor to make these appointments and Mayor Zack replied that he wanted the Council to know what is going on. Discuss Villate RoTale~ Inc. Mm. Mmore stated that the correspondence recently re=eived from Er, of the Law Firm of Lev~, Plisco, Perry, ~hapiro, Knee~ the pending litigation between the City Inc. He believes the Council re- ceived am offer to disembroil the City from this controversy. He went over the details of the attached letter dated Feb- ruary 4. Mayor Zack asked if there was any indication that the County Court would h~ndle this case without auy expenses to the City and Mr. Moore replied: no, this is a letter from the attorney bringing action against the City. It'is a summarization for the Council stating the settlements to resolve the pending dispute. It does not have anything to do with the pending civil litigation between the property owners and Mr. Gross. ~myor Zack asked if amyone from the audience desired to speak Lu reference to this. Mr. Joseph ~~ranow appeared before the Council and stated that before talking about anything, he would like the letter re- ceived today from the County Attorney to be made part of the record. He then read the attached letter from the State Attorney,s Office in Palm Beach County, Florida to Mr. Kohl dated February 8, ]977. Fm. Aranow stated that he knows Judge Mclntosh,s order re- versed the decision Of the lower court, but when Mr. Moore read the letter from the attorney for Village Royale, Inc., it gave a list of cases pending not only where the City was involved, but litigation ~ending by the attorneys. Mr. Moore clarified that he only inquired about anything to do with the City of Boynton Beach and he only added that there was litigation pending between the owners and developers. Nm. Aranow asked if the attorney referred to the litigation pending between Village Royale or the City and Mr. Moore replied that he referred to the fact that the decision ar- rived at for the City would not affect the owners. The City is not involved in the civil suit. Mr. Ara~.ow stated that he and ym. Moore did not see eye to eye on the letter, but until he gets a copy of the letter, he ca,_not discuss it further. MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 Mr. Aramow continued with referring to Judge McIntosh's order and read the first paragraph on Page 3. He pointed out that this court did not have the research perso~mel to detsrmine the weight on the issue. He bases his whole opinion on the case of the City of Birmingham v. Brown, 69 So. 263 (1915). tn the letter from the State Attorney,s office and in the opinion of the Attorney General of the State of Florida, which refers to the case of Birmingham ~gainst Brown, he refers to a case that is reported in 707, Page ?~8, advising that a~ appeal was taken of that particu- lar decision te the Eupreme court of Alabama a~d the Supreme ~ourt of Alabama reversed the decision. Judge ~Imtosh has baaed his whole decision on a case which was reversed. The Attorney General has made mention of this in his opinion. Ee then read excerpts from the order referring to this case and pointed out that it was pretty ol~. However, the Attor- ney General referred to the case ef the State vs. Hickmam, 1~6 smd he read again the last four limes of the Attorney General,s letter. Tb~ im IOC~ contrary to the order Judge and under the circumstances and im view o~ the ~tate Attorney states this mat~er re- quires attention, etc., and is not a party te the action and cannot file a motion for rehearing,, this is because of the fact that the ~tat~ City of B0ynton~ Beach. ~f the gave the State Attorney the authority to draw up whatever motions or appeals ¥~. Aranow stated that in talking about Village Royale, wanting refunds and releasing charges, thi~ is a lot' of nonsense. He does no~ think; they are entitled to get any- thing back ~ntil the courts hav~ decided there is no f:~rther appeal, especially when Judge ~Intosh,s ~ecision was based State Attorney and let before Boynton Beach money. Mr. Moore asked if Mr. Aramow was a~ attorney and Mr. Aranow replied that he was for fifty years. N~. Moore asked if he .fel~t confident of the statements he made and if he would mncemnify the taxpeyers of t~e City for wrongful prosecution? Mr. Aranow asked why he should do it and M~r. Moore asked why the taxpayers should do i~? . Aranow Mr asked if he took the r sp0nsmhmlity for gmv~ug She C?uncil the wrong opinion and Mr. Moore replied tha~ h6 certamnly would, as he feels o~es~ aha r~g~ Nha~ ne stated about the deci- sion beimg reversed in the B~reme Court of Alabame is 100% true and he will be responsible for that statement being true. -12- MINUTES - SPECIAL CITY COL~CIL MEETING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 Also, he will be responsible for every word he read of Attor- ney General Shevin's decision. Mr. Moore asked if he considered the letter from Mr. Bludworth,s office a mandate to appeal _Mr. Arsmow replied that it was not a mandate of amy kind, but advice to the City to follow this through. Mr. Moore stated that he was not a party to the suit and Mr.A~ow replied that he was not being sued. Mr. Aramow contimmed that somebody must represent the City of Boynton Beach and Mr. Moore does mot want to represent them. M~. ~eore replied that he didn't thi~k the City should waste money pulling the ~hestmuts out of the fire for them. He continued that Mr. Ara~o~ aud Mr. Vastine had personally gotten this letter out of Mr. Bludworth,s office and Er. Aramow replied that he had not seen Mr. Vastine in months. Er. Moore questioned where the letter came from and Mr. Aranow suggested that he aske~ person wko se~t it. Mr. Aramow t~en asked Mr. Moore how he had gottem the letter from the attorney for Village Royale, Inc. and added that ~ere was a pec~lia~ tie-uD betweemMr. Moore and ~illage Royale, Inc. He ean show them a letter sent from the at%or- ~ieY for Village ROyals, I~. tD Mr. Moo~e thanking ~m for 4 ~elp and ~sking fo~ him to send a bill. Mayor Zack asked if anyone else desired to speak from Village Royale. Mr. Samuel Dimson stated his name and his address as 2615 N. E. 3rd ~ourt. He stated that it seemed to him that not only is this a matter of concern to the State Attorney, but also~a matter of concern to all municipalities including Boynton Beach. In the event the decision by Judge Mclutosh is incorrect and it is permitted to stand, it will create a precedent that will go against not only the Comnty, but the City of Boynton Beach. There will be violations from time to time to the ordinances of Boynton Beach. If the City is to be run by the Charter and ordinances, they must prosecute ~iolators. ?~ey should consider carefully the advice of the StateAttorney backed up by the State Attormey General,s Office of~Florida. ~ayo~ Zack as~?d for the City Attorney,s recommendation and . ~oore replied that he felt it was essential that a couple more points were clarifie~. In the order by Judge McIntosh, he states Village Royale did not receive a fair trial before the City of Boynton Beach. There are 168 reversible errors~ The attorney 'handling it for the City states there is no possibility ~f reversing Judge Mclntosh's order. He thinks they will be throwing bad money after good trying to make a law suit with the taxpayers p~ying the brunt. They have attempted to send matters to the State Attorney,s office for prosecution, but were told we have insufficient evidence. He th~ they are in the wrong ball park to continue this matter, especially when it is in the civil courts by the owners themselves. -13- MINUTES - SPECY~L CITY COUNCiL MEETING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 Mrs. Jackson referred to the State Attorney not being a party, but asking us to go ahead and asked if it would cost us money and Mr. Moore replied that it certainly would and he does not think the State Attorney would undertake this~. He added that Mr. Aranow talked to him. He will not h~udle it for nothing. Mrs. Jackson referred to Judge McIntosh making a mistake and asked if it would be possible to take this to Judge McImtosh amd Mr. Moore replied that he certaimly thought someome should. They could possibly forward the minutes to Judge McIntosh. If the State Attorney thinks it is ,a great matter of impemding today and they told him that the p~ivate prosecutor was not ma~e aware of all the facts. Re ~ not read the ~ of over l~O00~pages h~would Se will,nE i~ this comtro- versy if he knows alt the facts. Mr. DeMarco stated that he talked to Mr. Aranow this after- moon .and he was ~nder the ~mpression that if we released the case to the C0unSy~ they would take it over ~nd Mr. Aranow suggested that they call Mr. Bludworth's office and find out. Mayor Zack asked what recourse should be followed and Mr. Moore replied that it was the Council's decision. He will check out the statement about him being paid by Village Royale, Inc. In reviewing the letter, it indicates the appeals of the Judge Schwartz case is omly ~ portion of the intent of the letter. It also refers to the civil case and whether the City wants to stay in that, but he does not k~ow the pmrpose of the civil case. The continuation of this law suit would seem mute. The Ci~ty cam utilize the power in attempting to have Mr. Gross and Village Royale, Inc. on the alledged failure to provide sufficient parking spaces, hut every court ruling stated he was not in control of the situation. Mrs. Jackson asked Mr. Aranow if their association had taken over the buildings and Mr. Aranow replied that there are 14 buildings occupied by unit owners. These are in the names of the corporations formed by Mr. Gross, ~. Marx, and Mr. See Kaiz. They were office~t the time the corporation~were 2-1B-77 £ormed. The corporations remained the same, but as every- Minutes body bought units in a building, they received a certificate stating they owned so much. There is a lease on the recrea- tion areas for 99 years. Mrs. Jackson stated that there is a f~ve year warranty on the buildings and Mr. Aranow replied that possibly it could be called that, but he is afraid there are many things that were false. Mrs. Jackson clarified that this would not affect the City.~ MINUTES - SPEC/AL CITY COUNCIL ~ETING B0~NTON BEACH, FLORIDA FEBRUARY 8, 1977 Mayor Zack stated that they could only prosecute for not providing parking for Buildings Greendale and Greentree. Mr. Ara~ow clarified that these were the last two buildings put up and J~eM¢Intosh referred to these two only as ~ot ~eing affected ~y the Statute of Limitatioms. J~ge MeIntosh also poiuted out that Mr. Bushnell could not tell what was what. He explained how he only fouud out about the reversal this evening. He then referred to mentioning a couple times in the past that 99% of the trouble the umit owners face with Village Royale, Inc. is the fact the certificates of occupancy were issmed for these hmildings improperly. Eveu im Judge McImtosh,s order, he admits they are approximately 200 park- hut sti is mentioned or nobody has said a wor~ about what is ~ people the consider the at Village Royale. to happen with the ' with a cloud om i~to consideration ex- aCtio~ hy the ~nit He thinks the maitsowners Mr. DeMarco asked ~. Aramow if he wanted some time to get the State AttOrmey to look i~o this or to have him take over this case and Mr. Aramow replied that as far as he was concern~ tomorI izing take that expenses ~enefit. to the ~tate eeeding~ pease to the tion. Att call by Mr. Kohl to Mr. Bludworth consent from the City Council author- with a motion for rehearing and to ste~s in regards to this matter is all He is pretty sure there womld be no to the City whatsoever. It is to their City Council should move to give authority to proceed with whatever legal pro- on the condition there would he no ex- of Boynton Beach, it would cover any ac- !la~o~as..~e~ h~ow. mu~h t~me he needed and M~ayor Zack ~e~,.~a~ ~ ~ ~? ~one ~y February 14 aud Mr. Aranow ~ ~aa~ ne coula no~ a~wer for the State Attorney. Mr. Moore stated he tho~ht they were forgett~g the con- cession of not to br~g malicio~ prosecutio~ before the City. He t~ked to the State Attorney,s office ~d after he brought to th$~ attentmon some of the facts, he does not thi~ they want to get involved. ~ del~ or defer- ~nt on the general issmeoof whether the City ~ts to st~ ~o~e~_~h~ ~9~trover~y must be ~de ~ery quic~y. ~ ~x ~ae ~a~e A~Orney ~ook over Ju~e ~I~tosh,s deci- sion, it does no~ have ~thing to do with the reverse. He believes the City got in this wrongf~l~ ~ theff~st place ~d it wi~ subject the people to cont~ued r~ifica- tions ~d there could he d~es e~suing. They shoed be prosecuted by the p~ties of the civil ~tter. -15- MINUTES - SPECIAL CITY COUNCIL MEETLNG BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 Mr. Aranow stated that there are statutes on the books which state that certain violations of laws should be prosecuted. I~ they are not prosecuted, he thinks there would be certain liability on the part of the City° He thinks failure of the City in connection with what has taken place at Village Royale ~as proven harmful to 1,600 residents there. Mr. Moore stated that Mr. Aranow could bring criminal charges against these people amd he could go to the State Attoraey,s offic~ and swear out a complaint. Mr. Aranow reolied that he is a resident of the City and a taXpayer. Mr. D~Marco clari- fied that these certificates of occupancy were issued and evidently were not up to par. Mr. ~oore replied that this had not been proven in this point. He stated that Mr. Aranow is asking the City to get involved and prosecute the man amd explained how i~ was predicated on the issue of the certifi- cates of occupancy. Mrs. Jackson stated that it is in litigation now and they should not be discussing it. Mr. Moore stated that he ques- tions what is going to come out of this for the good of the people of Vil~i~e Royale other than puttingMr. Gross in jail and what good would that do them? Mrs. Jackson con- tinued that~e personally could not see what good it would do to have the Stats Attorney take this ever if he will not take it. She ~ske4 if it could be deferred until they re- ceive a reply ~from the State Attorney and Mr. Moore replied that if either the City or somebody else did not file for a rehearing befome February 14, it cannot be re-appealed. Mrs. Jackson asked ~f they could ask for an extension of time and Mr. Moore rep~ed: no, the decision must be made by the City Council whether they want to stay on this or not. There was further discussion and then ~. Kohl referred to the sngges- ~o~mad? for ~e City M~nager to call the S~tate Attorney asking nether ne wou!~ proceed without any expense to the City and he thinks ther~l would be no harm if he makes tkis call ~nd report~ to the ~ouncil and a special meeting could be called to discuss how ~o proceed. F~. Moore asked if he meant to proceed with a~ the civil cases and Mr. Kohl clarified that he would just ~quire about the expenses. Mr. Moore replied that the State ~ttorney could not take over civil cases. Mr. DeMarco made a motion instructing Mr. Kohl to contact the State Attorney,s office and to report prior to Feb- ruary 14, so they can make a decision by then. Mrs. Jackson seconded the motion and suggested that a special meeting could he held tomorrow night after the public hearing on the Bridge ~d F~. DeMarco agreed. Under discussion, Mr. Kohl advised that he would report to each one of them to- morrow. ~m. Caldwell clarified that it would deal speci- fically with the criminal charges. Motion carried 5-0. -16- MIN~TE~ - SPECIAL CITY COD/~CIL MEETING BOYNTON BEACH ,~ FLORIDA FEBRUARY 8, 1977 Discuss Rinker Materials Corp. Mr. Moore advised that a letter of resume had been submitted to the City Council with the history of this case with a re- quest that the matter be settled from the attorney for Risker. He referred to the related case with Lehigh Portland Cement Co. and the City having, been directed to issue a building permit to them. He referred to the Rir~ker case going back a number of years and at the time Rinker originally filed for a building permit to move across the tracks, there was no question about their entitlement to a license at that time. Me then explained how there apparently was a change in the ordinance during the period of time and the City change~ their positio~ and stated they could ~ot ~ove across the 2-15-77 ns~ruc~lon of 1-95 through t~eir previo~s plan-~-sf~e~ Minutes He referred to the court cases and stated that the question now is whether the City wrongfully withheld issuance of the per~it im the first place~ The court ruled i~ the Lehigh Portland case that the law im effect at the time of applica- tion is what controlled. It would appear almos~ certain that the final outcome of the Rinker case would be a~verse to the City. Mr. Ca!dwetl asked if the Lehigh Portland decision went against the City because of lack of specificity in their M-I ordinance and Mr. Moore agreed and explained how this was one reason. He added that there is a question i~ the ordinance as it now stands that if a non-conforming use is eliminated through no fault of their own, they should be allowed to continue. Lehigh Portland came in new, but Rinker had been here for many years. Mayor Zack asked if anyone desired to speak about this. Mr. James Boone Wilson stated his name and stated that nothing is going to hit this City with more impact than having two cement producqng comtes here.~ He referred to doctors ~nd a technical expert testifying about the effects of a cement plant in the past. Ee questions why this me~i~g w~a~.~c~led so. suddenly and why it could not have wa~ec un~l± ~ae regu±ar meeting next T~esday~ The poodle here tonight in opposition are only a spi~ ia the ocean. He re~erred to Mr. Moore's mention previously that the City Council is obligated to the peoplewho elected them. He explained how everyone wOUld defq.~itely vote to kill this action. ~.The City should fight it, appeal it, an~ ~o as far as~they cam go~. ~hey should not be stam- ~w~th~ s~are talk. ~he Rinker case is no~ entwined ~n ~enign Fortland. R~nker c~uld not Be in a Worse spot and he referred to the traffic ~itUation at this iocation. ~NU~S - SPECIAL CI~f CO~CIL MEETING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 Mr. Wilson then told about the illnesses associated with the cement Rust. He stressed that he is not against industry. He also talked to people who had worked for R~%er and they are glad to be out of it. It would also mst be feasible for them t~locate a few miles outside the City as there is con- stant fallout in a six to seven mile area. Everyone will be affected. He k~ows there is a difference between Lehigh Portland and Rinker. R~nker had to go and the City did not make them. Tkey did have the other property, ~'at had to buy more to go to that area.~ This has been in effect simce the 1950's accerdimg to the Ohar~er. It goes way back stating this is wromg. They s~ould not have been issued a permit in ~he eg~z~tmg. The erdinamce states no heavy industry and also % 40 ft., which they ma~ possibly want. ~e the lime dust Blowi~ all around into neighborhoods with hundreds of people. Every- one will lose' in the Mr. Wilson stated that he researched this way back and found an old Charter book going back into the ~950's and it stated no heavy equipment. These trucks weigh 60,000 lbs. loaded. The ~ity will have to pay for the roads ~eing repaired. It mow states no concrete producing industries, no heavy dust facilities, etc. The people will suffer under these condi- tions. Mr. Wilson referred to the canal in this area which would also become polluted and the effect to ether bodies of water. M~r. Wilson stated that he could not bring it across force- fully enough. He added that some people could not attend on such short notice or there would have been many speakers. He then explained how it would effect the tourist industry in this area. They must appeal this all the way up. He does not care if it drags out for five to ten years. Mr. Wilson then told about Joe Rinker living in Palm Beach and not having to breathe his poison. He told about his visits to the plants and keeping his car windows closed. He agrees that Lehigh Portland is there, but two wrongs do not make a right. Another man from the audience added that the school is lo- cater nearby and explained how the children would suffer. He added also that access to that area was terribly poor for large trucks to be coming in and out. Mr. Harold Werger stated his name and his address as 719 N. W. 7th Ct. He stated that he was speaking for most of the people in Laurel Hills and the surroUnding area in opposition to Rinker. They relucta~utly tolerated the large amount of dust and noise from the previous plant because it was in existence. Rinker had to vacate, so it is now a -18- MINUTES - SPECIAL CITY COL~NC!L MEETING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 different story, There are hundreds living in the area and Rinker wants to construct a new plant closer to their homes and they will get more dust and noise. Rinker,s argument is that they purchased the land because they wanted to be near a railroad siding, but it would be to their advantage from truck mileage to have the plant further west where most of the b~ilding will take place. He explaiaed how this would cause a hostile attitude towards the people of Boynton Beach and they possibly may boycott them. ~uother argument is the high cost if the City loses; however, previous Councils did no.t th~k of spending thousands of dollars for new seats and etaer things which would mot contribute to the minds of the aitizens as compare~ to Let's hope it is not too late to wis! They about this until yesterday and it was toe late to circulate a petition. He then asked the people in opposition to please stand mp and added that there womld have been more if there had been more time. .Mr. Gene Johnson stated his name and his address as 1416 N. W. 7th Street. He stated that he expects to wake up one morning and see a cement plant. As stated previously, they did not know anything about this until 24 hours ago. The people present are the ones they could get to attend this meeting on short notice. The last time, they had close to 500 petitions submitted and could have had that many and more. This will be right in the back yards of the people living on 7th Street. This will be a block factory and as construction booms, it will operate seven days a week, 24 hours a day. There will be noise and pollution. There will be fallout lines into the canal. The city spent a lot of money putting in a dock in this area and he expl~ed how the ca~al would soon be polluted in this area. Most of the h~uses on 7th Street were built within the last two to three ye~ars and i 95% of the oeople knew there was going to be a cement bloc plant there~ t~ey would not have bought their eu. ses. He will not sink another dime in his house. If Risker w~nt it there and the City of Boynton Beach does no~ ~back th~se residents, they can have all they want and he will fin ~ it was nice ~m~w~here el~s? t~0 m?v~e. He move.d here because this plant i~, ~ose an~ mac a ±et of possibilities. If constructed, it will he a black day for the people in L~urel Hills and a bad day for Beynton Beach. ~s. Jack, on stated that the people seem to feel the City Council is putting something ove~ on them, B~t the. y did - not know it either. Mr. Moore clarified that he just re- ceived this letter and requested that it be discussed at the earliest possible date. Mr. Johnson asked if there wo~ld be a decision made tonight and Mr. DeMarco replied not necessarily. Mr. Johnson stated that they did not know about this until last night and he believes, they as tax- payers should get notice. Mr. ~trnad asked the City Attorney -19- ~INUTES SPECIAl CITY COUNCIL ~ETING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 why it was imperative to have it on the agenda for tonight's meeting and ~r. Moore replied that the minute he gets infor- mation of an important nature, he submits it to the City Council; however, they do not have tomake a decision. gtrnad contimued that this involved a great many people in our City and all should have been informed. Mr. Ralph Hughes stated his name and his address as 1110 N. W. 8th Court. He told about moving to this area 28 years ago because ke is asthmatic.. He then told about at least 35 childre~underthe age of 6 living on 7tk St. directly adja- cent to the Rimkerl~ecation. The dust and moise wilt be ter- rible for the childrem. There will also be a terrific traffic bottleneck. ~ He is concerned about being able to continue to breathe and nave comfort in life. He does not know i~ i£.was deliberate that this came up on such short notice or not, hut it involves so maay people, they should have time to find out what is going on. He likes Boymt~m ~eac~ and his plans are to stay here mntil the good ~ord calls him home. ~f this plant comes, he will sell his house and find another place to live. Mr. Raymond Titman stated his name and his address as 1115 N.~ W~. ~th Etreet. He informed the Council that he was con- ~ernedhecause ia this day and age, they should be thinking about energy conservation. If this plant goes in, he will have to run his air conditioner constantly. He and his wife d/~like air conditioning and only ran it five days this past year. He thinks energy conservation and the conservation of waterways should be givem ¢onsideratiou. He thinks every alternative should be considered and if necessary to spen~ ~o~n?~ t~ pull ~n the best legal minds im the area to n= ~ams ~rom gomng in and Boynton B~a=h should spend ~e ~o~eyo Mm. Nate Goldberg stated his name and his address as 1317 $. W. ]Tth Street. He referred to the people not over-react- ing to the problems of black lung, etc. The City Council and the City Attorney feel it is impossible to win this · ase. If the people are so concerned about this, possibly they should take this to court on their own with the provi- sion if they ~ose,. they have lost their money,- but if they wim, would it be possible for the City Council to take ac- tion to reimburse comrt fees? Could the City Council pull ~ome kind of strength to reimburse the winners? Mr. James Ashner stated his name and his address as 329 N. W. 7th Court. He advised that he has some background in~ construction and is. familiar with the Rinker Co. He has seen the R~nker delivery trucks come in and out of jobs constantly. He knows the way the men drive. They must be fast drivers to keep their job. He told about being a school teacher at the present time. There are many young ~gaildren living on the street directly adjacent to the -20- MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 property R~Bker wants. How many people would take the chance of one of these ten ton trucks running over their children? Mr. Joh~ Mather stated his name and his address as 1324 7th Street. He informed the Council that he has lived here for three years and is retired from the military. This plant will be in his back yard. He has a feeling that some way or the other, the City did not want them to know about this meet- lng tonight, so they could not get people together to oppose it. Mr. Strnad remarked that probably if it was ~ot for his thoughtfulness for the people of this City, these people would n~t be sitting here tonight. The people applauded in response. Mr. Rod Aiken stated his name and his address as 804 N. W. loth Avenue. He stated he was disturbed about the statement about a decision not being made tonight necessarily. A deci- sion involving this ma~y people surely should not be made that quick and they should give people time to appear. He feels there should be no decision made until everybody in- volved and concerned can be present. Mr. DeF~arco replied that he made the statement that it does not have to be made tonight. N~. Aiken continued that they should consider the amount of children living in Laurel Hills and the access is not there for the amount of traffic to be going in there. Mr. Caldwell replied that he knows there is great concern about the suddenness of this meeting and he only got his information about this yesterday. He asked if they would be opposed if a decision was made on this matter tomight and Mr. Aiken replied: yes. Mr. CaldwelI continue~ ~hat he would definitely want the City to fight for the people there and he wants to help them. Mrs. Jackson added that it seems these people feel this has been pushed through. She feels it should be tabled and put on'~Lthe agenda for the regular meeting. A member of the audience.responded by saying that they keep coming Back time after t~me. Mr. Caldwell con- tinued that his mind is pretty well made mD after hearing the speakers, researching it, and looking at the area. He noticed the fact of so ma~y new homes i~ that area bailt after Rinker was asked to leave towm. He requested ether speakers to continue.. Mr. Jerry Altadonna stated his name and his address as 1220 N. W. 7th Street. He informed the Council~hat this plant would be in his back yard. They will not go on and put up with this nonense s~ny more. The City Council better get it straightened out. It is a quiet street and everyone gets along. They should get together and get this straightened OUt. ~yor Zack called on the City Planner to tell them about the zoning regulations in this area. Mr~ A~nunziato informed ~hem that he had discussed this with the City Attorney and -21- /~tNUTES - SPECIAL CITY COUNCIL MEETLNG BOYNTON BEACH, FLORIDA FEBRUARY 8, t977 it appears at this point, it is no longer a zoning matter. It was a permitted use when Rinker applied for a permit and the City will be required to issue a permit. A member o£ the audience asked about the Euvironmental Protection Society and Mr. Annunziat~oreplied that he was not familiar with the certain~ainds of law, but an attack of this P~ind cannot be lodged in zoning as it is purely a legal question. Mayor Zack then requested Mr. FrankG~u~Q, a professional ~n~.'~/~$~ with the County Health Depar~ent~to speak. Mr. C~~i~st state~ that his comments weald apply to the ~part~ent of E~vironmental regulations 1. aw~ and policies. ne advised that his comments weald pertaim te the aspects pertainihg to health. He explained how cement and concrete plants were regulated ~y Florida Statutes and Oode. Also, in PatmBeach Co;anty, they come under a special act of the See Florid~ . requirements for 2-15-77 facmlity applied for a per- Minutes mit early in 1973 and they were issued a construction permit on May 15, 1973. They r~newed the :. The latest was issued on October 18, ~ October I, 1977. This provides for a five 11 hours per day for ~atch the that a how it worked. The facili' paved and there wJ]] be site and the tr~cks. All amd dis~¢harged into the basin. The Health De a~eq~ate performance in ~ me~uus to prosecute those residual effects tha~ Mayor Zack clarified dust conSrol and Mr. at the ~si~s will be nology, ~t ~k~re may asked how [ ciency by ~he H threer times r a year. ab. ie filSers to be inc~ C~%~Ui~oeXPtained how ti W~ re.msed in the pro,esS, but w~h~n ti e aced. Ca W ll kedi a~wise ~ese dust coltecto~ were and 9~. Mr~ .' Strnad referDe~ te the ~ossi~ b~ing th~ee times a year, it co~; bec¢ a~ter the inspection and Mr~ ~ ex~ ~pections were made four ~i~e~~ k yeaz tions were made o~ an o~-gelng b~i~. He explained He then stated and explained completely of the enti~e om site a settlimg and laws and some ca~ take care of. co~cerned with dust control ~st available tech- Mr. Caldwell e~ffi- about were change- and.Mr. the ~ust y:are old, they ~:effectiveef perce~t lity with inspections ~fective right a~ed how detailed a~ interim inspec- Mr. Simon Ryder stated his name and his address as 2379 S.W. ~3th Avenue. He stated that he is a member of the Planning & Zoning Board and a professiomal engineers licensed by the MINUTES - SPECIAL CITY COUNCIL MR~TING BOTNTON BEACH, FLORIDA FEBRUARY 8, 1977 State of New York. Two years ago, he joined the City in the fight to get concrete mixing plants out of Boynton Beach. He was glad when he thought they had got them ont. Rlnker was on 2nd Avenue for 15 years and never paved their yard. He is familiar with dust collecting systems and there is only one that he k_news of which is 98% effective and that is not what is going to he used here and he explained. They must keep in mind that these systems work to begin with if they are properly i~stalle~ and maintained, but the problem is that they are not. He also wants to call their attentiom to the fac~ that these concrete tr~¢ks get heavie~ and heavier. They won't do the roads a~y good. He is aware that the City has a problem to fight to keep the plants out of the City. They started on this road and he doesn't see how they cam leave the people doW~ Ne doesn't think they can take them in based on promisesof what they are goiaE to do because their past performance was very poo~. He then explained the dust collector Sy~%em f~ther~ Tkey will not do it as it is ~oo expensive an~ impractical. The City mmst continue to zight thi a member O~ the Plan~g ~ Zoning Board, he _c?~tain~ concrete ming ~lants do not belong in the ~y~ Mr. Strnad stated he thought they had ~&ug:h input from the pecple and he made a motion to take this fight against Rinker to the highest court necessary. Mr. Caldwell seconde~ the motion. A man in the audience referred to the explanation about dust collectors and advised that he knows about them as for ten years, he installed these all over the United States. There is none he has ever seen come close to being 60% effective. It must cover every area and it would be too expensive. It is a vacuum type thing and the bag gets stopped up and shakes with dust going out the top. Under discussion on the motion, Mr. Caldwell stated that the land use in that area can be put to a much better use. Also, light industrial according to the current M-1 zoning speci- fically excludes cement plants and he read the various pro- hibited mse~ applying. While the question may or may not be one of proper zoning, the question is whether or not the City of Boynton Beach is going to dem~nd good clean industry in this town. He campaigned two years in a row to bring in good clean businesses into this town to provide jobs and reve- nue for~e citizens a~ud City combined. He hates to think ~hat derogatomy effect those new homes just buil~ in this area ~ould face on a resale basis in the event of the construction of a concrete plant in this area. He feels in a_scuss~_ug~ ' the issue with attorneys, the City of Boynton Beach ~s not in that dire legal position that we cannot ~ight for the health of our citizens. He is wholeheartedly in favor of pursuing the legal course necessary for the prohibition of the con- structio~ of a concrete plant abutting this new residential neighborhood. -23 - ~INUTES - SPECIAL CITY COUNCIL NM~,TING BOYNTON BEACH, FLORIDA - FEBRUARY 8, 1977 Mayor Zack asked what was the proper legal procedure to follow and Mr. Moore informed him that the case has been sent back down for trial in our circuit court. If the City wishes to proceed, this is what will be done. Mr. DeMarco stated he did not think it was a good place for Rinker to he. He cautioned everyone that if this comes to court, Rinker may beat the case and the people will still have problems. If the City gets beaten inccourt, they have no choice. He is not in favor of Rinker being here. It will eventually go to court and if Rinker gets it, we will still have problems. M~s. Jackson told about sitting through four days of the Lehigh Portland trial and being sure we were going to wi~ and she was never so surprised when we lost. She agrees · ith Mr. DeMarco. Mrs. Padgett then took a roll call vote on follows: Councilman DeMarco - Aye Vice Mayor Jackson - Aye Councilman Strnad - Aye Councilman Caldwell - Aye Mayor Eack - ~ve Motion carried 5-0. the motion as N~r. Caldwell announced that he as a Councilman must share a portion of the blame for the suddez~uess of this issue. Each and every person should be commended for their respon- siveness. He hopes tonight's partial victory will not di- minish their interest in the civic affa~s of this community. Mrs. Jackson added that the Councilmembers did not know this was going to be on the agenda until yesterday. Mr. Strnad agreed that they all found out at about the same time. ~. Carl Himpelmann stated his name and his address as 118 ~. E. 6th Avenue. He stated that he does not live in the area where Rinker propose~ to build, but feels very strongly about this. Zf the City cannot afford to pay to go higher, he would be willing to pay a special assessment. ~. Harold ~erger appeared before the Council and suggested that possibly a group of citizens should meet with Mr. Rinker and let him know how the people feel. ~-~. Moore agreed this point was well taken and possibly having a meeting would avoid a law suit. Mrs. Jackson agreed it was an excellent idea and suggested that Mr. Werger head a committee to see him. Mr. Moore stated that he would like to see this happen and requested that he report back to the City. ~. Caldwell referred to being in the process of taking legal action on this case and explained how pre- judice possibly could be claimed. He thinks this is an ex- cellent idea, but the people must do it on their MINUTES - SPECIAL CITY COUNCIL MEETING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 ~evised Suggestions for Rules of City Boars~ Jackson suggested the following rules for the City Boards: The people on the Boards must be registered voters in the City. Each Board must elect a Chairman, Vice Chairman and Secretary, unless Sue is furnished. Any Board member with three Unexcused absenees is auto- matically dropped from the Board. The Chairman is to notify the City Clerk of these absences, so she ca~ notify the City Council. The members are to notify the Chairman if they wish to be exeused. The Chairman should notify the Vice Chairman when he is going to be absent. Mrs. Jackson added that they should limit the number of con- se~utive absences since it affects the service of the Board and ~. Caldwell agreed. Mayor Zack agreed that they should but referred to some Boards meeting eight or nine times ~nd others meeting 20 times. He thd~W~ some leniency should be given to the ones meeting about 20 times. Mrs. Jackson suggested setting it by months. Mr. Moore suggested that a leave of absence could be requested with a temporary member to serve. Mr. Caldwellsstated he was in favor of three un- excu~ed absences regardless of how many times they meet. If these Boards are to function, they m~st have the people there. The Boards were designed with the intent of having a certain number of people to give their input and m~ke decisions. He believes the Boards must work this way; a minim~mnmmber of excused absences must be imposed, smch as three consecutive absences. ~yor Zack referred to the possibility of members going north for a period of time and Mrs. Jackson snggemted they could take a leave of absence and request the Go--il to ~ppoint someone on an interim basis. F~. Str~ad state~ he id not think anyone should serve on a Board who was only ~er~ for t~e~n~er ~ud ~eft in the smmmer for a few months. e toes no~ ~nmrn~ somethmng like this should be excm~e~i ab- sences and Mr. Caldwell agreed. Mrs. Jackson refer~ed to t o ~ ~e~a~!ng c~rcums~ances to be absent. ghe thinks a leave of absence shomtd be granted as long as there is somebody to take the place. Mrs. Jackson moved to accept these suggestions, seconded by Mr. Caldwell. Motion carried 5-0. Mayor Zack requested that accopy of these rules be sent to each member with their letters for appointments. .Other Mr. DeMarco told about the success of the pancake breakfast held by the Fire Department for Aaron Witherspoon. He thanked all the people who donated to the cause. He added that they have approximately $3,000 to donate to the Aaron Witherspoon fund. -25- MINUTES - SPECIAL CITY COUNCIL M~TING BOYNTON BEACH, FLORIDA FEBRUARY 8, 1977 .Mr. DeMarco told about the Fire Department working hard and doing a terrific job at the railroad accident. He requested the City Manager to commend the Fire Department and Police Department for their outstanding job at the railroad acci- dent. Mr. DeMarco also added that they had received many checks from residents at Village Royale on the Gree~ for the Aaron Witherspoon fund. There was some further discussion about the meeting scheduled for tomorrow night. Mr. Strnad then requested the City Manager to send letters of commendation to the Delr~y Beach and Trail Fire Departments for their assistance at the railroad accident. Add ournmen2 Mrs. Jackson moved to adjourn, seconded by Mr. Strnad. Motion carried 5-0 and the meeting was properly adjourned at 10:30 P. M. CITY OF BOYNTON BEACH, FLORIDA ayor ~ ~unciI Me mbe'r ATTEST: City Clerk Recording Secretary (Four Tapes) -26- Council PROFESSIONAL ' ! Mc'." ~ ' ~- February 4, 1977 Esquire '~ Boynton Beach, Florida 33435 _. ' -~. Re: ViSage Royale v. City of Bo~ton Beach Circuit Cour~ Case No. 76-2354 CA(L) 01 A City of Bo~nton Beach v. Irving Gross as President of Village Royale, etc. Municipal Co~t Case No. 31570 and Circuit Court of Appeals Case No. 76-74 AC City of Bean%on Beach v. Village'Royale, Inc. Municipal Court Case No. 15685 and Palm Beac~ County Court Case No. 75-3058-~ City of Boynton Beach v. Village Royale, Inc. ~icipal Co~t Case No. 76-03910 Palm Beach County Co'ur%' ~s~ 76~931~ Eugene Moore, P. O. Box 910 Dear Mr. Moore: As you are aware, ~he City of Bo!rnton Beach has promulgated several prosecutions against Village Royale, Inc. in the past year and a half. With the exception of Case No. 76-2354 (temporary restraining order)~ ~ach of those cases has been resolved in favor of Village Royale. For your convenience, the following is an itemized list of each action and its result. Case City of Boynton Beach ye Irving Gross - Municipal Court 31570 and Circuit Court' Of'Appeals' CaSe' No'.'7'6~74'o In this case, Village Royale was found, guilty by Judge Schwatz of violation of the municipal code. This case was appealed to Judge McIntosh. On January 31, 1977, Judge McIntosh ordered that the conviction be reversed with directions that th~ defendant be dis- charged. 2. City of Boynton Beach v. Village Royale, Inc. - Municipal Court Case No. 156'85 and' Palm Beach' Count¥'Co%Yrt Cas~ No'.' 75-3058. In this case, Village Royale was charged in the Municipal Court with failing to provide emergency lighting in 14 buildings on November 7, 1975. This case was transferred to County Court upon a petition to transfer filed by Village Royale on December 5, 1975. This case was nolle prosse by the State Attorney's Office after they were informed that the defendant did not have control of the premises Eugene Moore, Esquire Page 2 February 4, 1977 on the date charged. 3. City of Boynton Beach Vo Village Royale - Municipal Court NOt 76-03910. and Ps~ Beach County Court Case No. 76-93I-MM. · n this case, Village Royale was served with an arrest warrant on · ~arch 24, 1976 charging them with failure to provide emergency lighting in several buildings at village Royale. In this case, however, the charging document listed 14 different violation dates- ~This case was transferred to the CountyCourt upon petitionby Village Royale. Following several depositions and other discovery, this case was dismissed by Judge Harrison again for the reason that the defendant did not have control of the buildings at the time of the alleged violation. .~ For your convenience, I am enclosing a copy of Judge Harrison's order of dismissal in 76-931 as well as a copy of the State Attorney's nolle prosse in 75-3058-MM. 4i Village Royale v. City of Boynton Beach - Circuit Court Case No. 76-2354 CA(L) 01 A. This is the case in which Judge Williams entered a temporary restrain- ing order restraining the City of Boynton Beach, its prosecutor and its raunici~al court from further criminal prosecutions of Village Royale~ Inc. As I am sure you can understand, Village Royale has incurred an enormous amount of costs as a result of the above actions. Under the authority of Lillibridge v. City of Miami, 276 So.2d 40 (Fla. S.Ct. 1973), wood__ v. City of Jacksonville, 24'8 So.2d 176 (lst DCA 1971) and Warren v. Capuano, 269 So.2d 3~0 (4th DCA 1972), we are now seeking ~eimbursement of those costs to which Village Royale is entitled as a matter of law. Attached you will find two itemizations of costs~ The first itemization of costs in the total amount of $i,417~44 is a listing of the costs in the three' cases which began in Boynton Beach Municipal Court, including the one that Judge McIntosh recently reversed~ As to the reversed case, we are also seeking reimbursement of the $500.00 fine which was paid to the Municipal Court Clerk~ Also attached is a statement of costs in the amount of $47.00 which we incurred in obtaining the TRO against the City of Boynton Beach. As to that case, we have also filed with the Circuit Court a bond in the amount of $1,000.00~ Eugene Moorej Esquire Page 2 February 4, 1977 In light of the foregoing events in these cases, we would propose a settlement as follows: 1. Reimbursement to Village Royale, Inc. by the city of Boynton Beach of all costs incurred in the above cases in the total amount of $1,464o44o 2. Reimbursement to Village Royale, Inc. by the City of Boynton Beach for the $500.00 fine paid to the Clerk of the Court in the case reversed by Judge McIntosh. In addition, we would seek a stipulation from the City allowing the Clerk of the Circuit Court to return the $1,000.00 bond posted in the TRO case before Judge Williams. 3. As to Village Royale v. BoyntOn Beach, Circuit Court Case No. 76-2354 (TRO case)~ we seek a court order permanently restrain- ing the City of BoyntonBeach or its successor from prosecuting Village Royale, its officers and directors of and from any criminal prosecution on account of alleged violations of Boynton Beach's City Ordinances arising out of the eleven points listed under Schedule 3 as attached to our complaint. For your convenience, a copy of those eleven items is also attached hereto. 4. We also seek assurances in the form of a stipulated court order which would prohibit the prosecutor of Boynton Beach or his successor from prosecuting any of the alleged violations as they exist up to and including the date of such order. 5. Each of the above cases will be dismissed with prejudice. 6. Village Royale will agree to forego any claim they may now have against the City of Boynton Beach for malicious prosecution and/or damages arising therefrom. This settlement will not affect any civil cases presently pending between the residents of Village Royale and Village Royale, I~c. or any future actions between those two parties. I believe that the above outlined settlement plan is fair to all parties under the unfortunate circumstances of'the present state of affairs as now exists between the City and Village Royale, Inc. TPMc/dft Encl. Sincerely yours, Ll~:VY. PLISCO, PERRY ~ $11APIl~O OFFICE OF THE PALM BEACH COUNTY COURTHOUSE TELEPHONE (305) 837-2460 February 8, 1977 Mr. Frank Kohl, City Manager City of Boynton Beach 120 N.E. 2nd Aveue Boynton Beach, Florida 33435 Re: Village Royale Inc. v. City of Boynton Beach (76-74 AC) Dear Mr. Kohl: On January 31st, Judge McIntosh entered his Order with re- gard to th~ above referenced appeal to the Circuit Court, reversing the conviction in the case. In my opinion the City should give serious consideration to proceeding further in this matter by filing a timely motion for rehearing. The State Attorney is, of course, not a party to the action and therefore cannot file such a motion. However, the pro- position of law involved is of such magnitude that it warrants fur- ther attention by the courts° The question of whether Florida's Statute of Limitations applies to municipal ordinance violations is aR especially important issue in light of the recent Article V phase out of the municipal courts. The resolution of this issue will certainly have a significant impact on future criminal prosecutions of municipal ordinance violations in th~ County Court. I have enclosed a recent Attorney General's Opinion which I hope you will find useful in deciding whether to pursue this case further. Thank you for your attention to this matter. cc: Gene Moore Robert Dittman Enclosure Sincerely, ~ BA . COHEN Assistant State Attorney County Court Chief ~ STATE OF FLORIDA %'.%~'~7/:// DEPARTMENT OF LEGAL AFFAIRS , Mr. Robert B. Reed City Attorney City of Boynton Beach Post Office Box 640 Boynton Beach, Florida 33435 Attention: Mr.'Michael P. Smodish Assistant City Attorney Re: MUNICIPALITIES--LIMITATIONS--prosecutions for violations of municipal ordinances not barred by ~775.15(2) (d), F.S., nor any other statutory provision. ~775.08(2), (3); 775.15(2) (d), F.S. Dear Mr. Reed: This is in response to your request for an opinion on substan- tially the following question: ~ IS ~775.15(2) (d) APPLICABLE TO VIOLATIONS .'OF MUNICIPAL ORDINANCES, AND~ IF NOT, WHAT IS THE STATUTE OF LIMITATIONS FOR . PROSECUTIONS OF VIOLATIONS OF MUNICIPAL . ORDINANCES WHEN NO LIMITATION PERIOD IS PROVIDED BY LAW, MUNICIPAL CHARTER OR i ORDINANCE? Your letter concerns the prosecution by the City of Boynton Beach, Florida, of a violator of that city's building code, the alleged violations having occurred on or about February 11, 1975. You inquire as to whether ~775.15(2) (d), F.S., operates to bar such prosecution. Section 775.15(2) (d), F.S., provides as follows: Mr. Robert B. Reed Page Two 076-192 A prosecution for a misdemeanor of the second degree or a [noncriminal] viola- tion must be commenced within one year after it is committed. However, ~775.08(2) and (3), F.S., provide in pertinent part, respectively, that when used in the laws of the state, the terms "misdemeanor" and "noncriminal violation" shall not mean a conviction for violation of any municipal ordinance. Accordingly, it would appear that the statute of limitations provided by S775.t5(2) (d), F.S., for prosecutions of misde- meanors of the seconddegree and noncriminal violations is not applicable to the prosecution of a violator of a building code ordinance of the City of Boynton Beach. See, generally, Marysville v. Cities Service Oil Co., 3 Po2d 1060 (Kan. 1931), stating that a statutory limitation on actions for violations of statutes is not applicable to violations of ordinanees. Moreover, my research does not disclose any other statutory provision which creates a time of limitation on prosecutions of violators of municipal penal ordinances, and no pert-inent provision in either the Boyn~on Beach charter or code of ordinances has been brought to my attention. In this latte~ r~gard, it is generally held that if no applicable statutory I~tation exists, a municipality may adopt a municipal ordi- nance fixing a time limitatio~ on prosecutions ~or violations of its ordinances. See 62 C.J.S. Municipal Corporations ~324, 375; Starling v. Dublin, 86 S.E. ~42 (Ga. ApP. i915); and~ Birmingham v. Brown, 70 So~ 718 (Ala. 1915). In the absence of any time limitation provided by statute, municipal charter or ordinance on the prosecutions of violators of municipal penal ordinances, the common-law rule is that no lapse of time after the commission of the unlawful act will serve to bar prosecution by the municipality for such viola- tion. See 62 C.J.S. Municipal Corporations S324; Battle v. Marietta, 44 S.E. 994 (Ga. Sup. 1903); cf., State vo McCloud, 67 So.2d 242 (Fla. 1953), and State v. Hickman, 189~So.2d 254 (2 D.C.A. Fla. 1966), stating that there is no limitation of time at common law within which a criminal prosecution is permitted. It is my opinion, therefore, that, until an appli- cable time of limitation is established by statute, charter provision or ordinance, no lapse of time after the commission of an act declared by an ordinance of the City of Boynton Beach to be unlawful will bar a prosecution for the violation of that ordinance. Mr. Robert B. Reed 076-192 Page Three SUMMARY Section 775.15(2) (d), F.S., which establishes a time limita- tion on prosecutions of misdemeanors of the second deqree and noncriminal violations, is not applicable to prosecutions for violations of municipal penal ordinances, since convictions for violations of such ordinances are expressly excluded from the statutory definitions of the terms "misdemeanor" and "non- criminal violation" contained in ~775.08(2) and (3), F.S. In the absence of any statutory, charter or ordinance time limitation on the prosecutions of violators of municipal penal ordinances, no lapse of time after the commission of an act declared by a municipal ordinance 'to be unlawful will bar a prosecution for the violation of that ordinance. Prepared By: ATTORNEY GENERAL ~fald L. Knight Assistant Attorney General atricia R. GlO,son Legal Research~ssistant RLS/GLK/PRG/ks