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Minutes 12-18-01 MINUTES OF THE REGULAR CITY COMMISSION MEETING HELD IN COMMISSION CHAMBERS, CITY HALL, BOYNTON BEACH, FLORIDA, ON TUESDAY, DECEMBER 18, 2001 AT 6:30 P.M. Present Gerald Broening, Mayor Ron Weiland, Vice Mayor Mike Ferguson, Commissioner Ohadie Eisher, Commissioner Mack McCray, Commissioner Kurt Bressner, City Manager Jim Cherof, City Attorney Janet Prainito, City Clerk I. OPENINGS: Call to Order- Mayor Gerald Broening Invocation - Rev. Dr. Marshall Cook, Boynton Beach Congregational Chumh Pledge of Allegiance to the Flag led by Vice Mayor Weiland Mayor Broening called the meeting to order at 6:40 p.m. Reverend Dr. Cook offered the invocation. Vice Mayor Weiland led the Pledge of Allegiance to the Flag. D. IF YOU WISH TO ADDRESS THE COMMISSION: · FILL OUT THE APPROPRIATE REQUEST FORM · GIVE IT TO THE CITY CLERK (ON THE DAIS) BEFORE THE "OPENINGS" PORTION OF THE AGENDA HAS BEEN COMPLETED · COME TO THE PODIUM WHEN THE MAYOR CALLS YOUR NAME INDIVIDUALS MAY SPEAK FOR THREE UNINTERRUPTED MINUTES. E. Agenda Approval: 1. Additions, Deletions, Corrections 2. Adoption Motion Commissioner Ferguson moved to approve the agenda. Motion seconded by Commissioner McCray and unanimously carried. Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 200'1 Commissioner Fisher requested that Public Hearing be moved up after Administrative, which was agreed to by consensus. Il, PUBLIC AUDIENCE: INDIVIDUAL SPEAKERS PRESENTATIONS WILL BE LIMITED TO 3-MINUTE Dee Zibelli, urged the Commissioners not to confuse dissent with disloyalty. The residents of the communities should be consulted on issues that affect their communities. The residents should not be ignored. She pointed out that many people worked for the re-election of Commissioners and now they do not listen to the people. Ms. ZibeIli felt that having a redistricting meeting on Thursday night was a poor choice because people are Christmas shopping and cannot attend the meeting. She requested that Vice Mayor Weiland be permi~ed to give the true facts and figures on the assessment fees. Herb Suss, thanked Commissioner McCray for attending the recent Library Board Meeting and for his contribution towards the purchase of books for the Library. Mr. Suss questioned Vice Mayor Weiland's figures for the costs of building the firehouses. He pointed out that the cost for a new City firehouse would be $202.43 per square foot. The cost for a county firehouse is ~;201.30 per square foot, which are almost the same. Mr. Suss noted that the cost for the new firehouse will be approximately $4.2 million, but includes the land, a community room, and offices and would free up space in City ~all. Dom Desiderio, representing the Coalition to Protect the Rights of Small Business, wished to update the Commissioners on their meeting with the City Manager on Monday, December 10th. He presented a handout on what was discussed at that meeting (included with the original minutes on file in [he City Clerk's Office~. He did not agree that the Commission could not change the apportionment for 2001 and said that the Commission can change any apportionment. Consideration will be given to changing the apportionment for 2002. Mr. Desiderio was not certain if the.fire assessment was legal and stated that the apportionment is illegal. If the Commission does not change it, a judge in Palm Beach County will. He reviewed and questioned the accuracy of the figures fumished to him by the City Manager. Mayor Broening informed Mr. Desiderio that his time was up. Since he refused to leave the podium, Mr. Desiderio was escorted from the Chambers. Louise DaCamara, 836 East Drive, Harbor Estates stated that it is difficult for the public to attend City meetings because they are usually held at dinnertime. She said that people that had attended a recent CRA meeting had questions and 2 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 con cems and the members of the CRA did not want to hear anything the public had to say. Stephen Leach and Pamela Mrkvicka, 203 NW 3rd Street, distributed a handout. They were disputing the refusal by the City of a permit for their property, which is located at 203 NW 3rd Street. They are disputing the City's interpretation of where finished grade is measured from. The City stated it ~s measured from the sidewalk. They furnished a copy of the City Code, which they feel is the correct interpretation of where finished grade is measured. Further Mr. Leach said that the City was concerned aboutobstrucfion of the view. He did not feel that the wall would create an obstruction. He would like the City to interpret the Code correctly so that they could build their wall. This concluded the Public Audience. III. OTHER: A. nformational Items by Members of the City Commission None IV. ADMINISTRATIVE: Accept resignation of Diana Tedtmann, Regular Member, Education AdvisOry Board Mayor Broening noted that Ms. Tedtmann and the Education Advisory Board were very instrumental in the School Board listening to the City's concerns regarding the School boundary issues. Motion Mr. Ferguson moved to accept the resignation. Motion seconded by Vice Mayor Weiland and unanimously carried. B, Appointments to be made: Appointment To Be Made Length of Term Board Expiration Date II III Mayor I IV McCray Ferguson Broening Weiland Fisher Children & Youth Advisory Bd Children & Youth Advisory Bd Stu/Reg/NonVoting Stu/RegNoting Bldg. Bd ofAdj & Appeals Reg Bldg. Bd of Adj & Appeals ' Alt Cemetery Board 1 yr term to 4/02 1 yr term to 4/02 3 yr term to 4/04 1 yr term to 4/02 Alt 1 yr term to 4/02 (Tabled-2 (Tabled-2 (Tabled-2 (Tabled-2 3 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 IV Fisher Code Compliance Board Reg 3 yr term to 4/03 Mayor Broening Community Relations Board Alt Iyr term to 4/02 IV Fisher Education Advisory Board Reg 2 yr term to 4/03 Mayor Broening Library Board Alt 1 yr term to 4/02 Mayor Broening Nuisance Abatement Board Alt 1 yr term to 4/02 Mayor Broening Senior Advisory Board Reg 2 yr term to 4/03 All appointments were tabled except for Commissioner Fisher. Commissioner Fisher appointed Floyd Beil as a Regular Member of the Education Advisory Board. Motion Commissioner Fisher moved to approve [he appointment of Floyd Bell. Motion seconded by Commissioner McCray and unanimously carded. V. ANNOUNCEMENTS &PRESENTATIONS: A. Announcements: Mayor Broening made the following announcement: Oceanfront Concert Series on December 21, 2001, 6-9 p.m. at Mangrove Walk at the Marina - The Jumpstreet 88s (BoogieWoogie, New Orleans and Jump Blues) B. Presentations: 1. Proclamations: None Presentation of check to Mayor and City Commission from Officer John Huntington and the C.O.P. volunteers from their fundraising for the American Heart Association The presentation has been postponed. Presentation of awards to the 2ne Annual Holiday Decorating With Lights winners by the Mayor (Tabled-2) (Tabled-2) (Tabled-3) (Tabled-3) (Tabled-2) 4 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 Wally Majors, Recreation Director, announced the winners and finalists of the 2nd Annual Holiday Decorating with Lights contest. Pictures of some of the winning homes were presented and will be placed in the City Hall lobby for viewing. There were four categories: home, business, community association, and judges' choice. Mayor Broening presented certificates to the finalists and the winners as follows: First Place Winners: Business - Community Association - Judges' Choice - Home Category - Top 10 finalists - Home Category Winner: Hudson Realty Boynton Beach Leisureville Association Marc and Susa~ Scozzafaua Kenneth Grazioso Norma Nerbes Rene Kitching Mike Anderson Pat Williams Trento Abruciati Wayne Furr, Jr. Mike Con holly Lisa Potts Community VIII. PUBLIC HEARING:7:00 P.M. OR AS SOON THEREAFTER AS THE AGENDA PERMITS (Moved up on the agenda) Project: Agent: Owner: Location: Description: Dakota Lofts H. P. Tompkins Chan's Enterprises 3010 S. Federal Highway Request to reclassify the subject property from Local Retail CommerCial and Low Density Residential to High Density Residential, and rezone from C-3 Community Commercial and R-l-AA Single-family Residential to Planned Unit Development (PUD), The applicant proposes to develop the property with 19 three-story town homes and related site improvements. The site plan (NWSP 01-010) will be adopted as the master plan for the PUD (Request postponement of public hearing until January 15, 2002) Project: Agent: Location: Federal Highway Corridor Plan City of Boynton Beach Federal Highway Corridor Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 Description: Proposed alternatives for implementing the Zoning Code amendments as recommended in the Federal Highway Corridor F~edevelopment Plan, including review of recommen~ ations by CRA as heard in cases REZN 01-003, REZN 01-004 Mike Rumpf, Planning and Zoning Director, was present to answer the concerns that were raised b~y the Commission at their last meeting. The first question dealt with the impact of uses that may become non-conforming. Secondly, staff was asked to re-examine the scope of the project. Staff will be offedng two options to the Plan and Mr. P, umpf presented a PowerPoint presentation on the Alternative Implementation Strategies (a copy of which is attached to the minutes on file in the City Clerk's Office). · Objectives of Strategies: In order to imPlement the recommendations of the Plan, two zoning subcategodes of land use were created and the Future Land Use Map had to be amended. Aisc new development standards were created to increase the maximum height, and to eliminate "vehicle oriented, non-neighborhood service uses." New regulations were created to address building pi acement, parking and mixed uses to enhance the visual appearance of the community. · Alternatives: Would only be to implement the code amendments themselves and would not apply to the land. This would eliminate the impact upon existing uses and would be implemented on a pro ~)erty-by-property basis. Would be to establish mixed-use districts and uses and corresponding standards in the LDR and to reclassify and rezone C-4 districts along the corridor to mixed-use. Mr. F~umpf presented the advantages and disadvantages of Alternatives A and B. The Benefits of Alternatives A and B would be: The addition of urban standards Shared parking provisions to accommodate mixed-use projects with practical parking requirements Increase in heights New highest density class/zoning district Mixed use prows~ons/incentives 6 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 Until the addition of urban standards, the greatest density in Boynton Beach was 10.8 dwelling units per acre (dua). Mr. Rumpf pointed out existing densities in the City ranging from 18.1 dua to 45.7 dua. The potential higher density area has been reduced and would be located mainly within the CBD. Under Alternative A, this would be the only Land Use Plan Amendment that would be necessary. A conceptual drawing of the Marina Village was displayed and Mr. P, umpf explained that this project has an approved density of 55 dua. The new developer of the Marina Project is proposing a modification to the project to add an additional floor and to add a second building. The density would equal approximately 63 dua. Since most of the amendments are in place, if the Commission adopted either of the Alternatives, the Plan would require additional changes. After showing pictures of various businesses along the Federal Highway Corridor, Mr. Rumpf concluded his presentation Mayor Broening opened up the public audience. Brian Edwards, 629 NE 9th Avenue, stated he had been a member of the City's LandscaDe and Fa(;ade Committee that tried to do something about the Federal Highway Corridor. He pointed out how hard the CRA has worked over the past year to bring the proposed Plan to the forefront. Mr. Edwards requested that the City move forward with the Plan and if the Plan were downsized, he would like something done about the appearance of Federal Highway. Ginny Foot spoke on behalf of Maury Lewkowicz, owner of Scheurers Chocolates, who was going to speak on behalf of the Boynton Ocean Distdct Association (BODA). Members of BODA would ike the Commission to consider Alternative A. Ginny Foot, The Art of Framing, 638 Ocean Avenue asked that the Commission adopt Alternative A. Ms. Foot requested that the Plan be sent back to the CRA to be worked on further. She felt that the CRA was in favor of the original Plan and did not want to change it. Commissioner Fisher asked Mr. Rumpf why Scheurers Chocolates and The Art of Framing would have concerns about the Plan since both of those establishments were accepted uses. Mr. Rumpf agreed with Commissioner Fisher's rationale. Ms. Foot stated that some members of BODA do not have allowed uses, such as the paint center, the upholsterer, the printer, and the jeweler. Mayor Broening stated that the permitted uses need to be clarified and defined. Mr. Rumpf noted that a hardware store would be allowed, but it was restricted to a mixed-use project and could not be a standalone. Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 Louise DaCamara, 836 East Drive presented an original petition to the Recording Secretary to be included with the minutes. Ms. DaCamara wants Harbor Estates eXcluded from the Federal Highway Corridor Plan. Ms. DaCamara read the content of the petition into the record stating that they are opposed to having their residential neighborhood rezoned to MU-L. They do not want high nse and zero lot line structures or businesses in their community. She requested that Harbor Estates be taken out of the Plan as was done for Boynton Isles and Lee Manor Isles. Ninety-five pement of the owners signed the petition. Mary Law, 625 S. Federal Highway, stated the Federal Highway Corridor Plan would make over 50 businesses and 30 properties non-conforming. Ms. Law requested that the City stop the rezoning and allow the property owners an opportunity to give their input for planning the Corridor. She asked that her property also be excluded from the Plan. Reginald Stambaugh, Esquire, represented a group of downtown business owners. Mr. Stambaugh stated that Alternative B is not a viable altemative because it identifies one zoning district where most of his clients, which are automobile focused are located. He would like the City to focus on one or two streets and not an entire area. His clients also have a concern about the heights being raised. Mr. Stambaugh was in favor of the mixed-use concept, but would like it focused in the downtown business area. Phil Bacon, owner and operator of Sunshine Car Wash, has been in Boynton Beach for 23 years and is opposed to having his property rezoned. Mr. Bacon felt that Alternative A was a reasonable solution. He did not know why the City did not want any automotive uses on U.S. 1 and noted there are automotive uses along U.S. 1 in every city in the State of Florida. He has supported the City and paid taxes all these years and feels it is not fair that his zoning is being taken away. Mayor Broening inquired if Mr. Bacon would be interested in working with the City in improving his property's appearance. Mr. Bacon stated he would be pleased to upgrade his property's appearance. Lloyd Powell, 1112 N. Federal Highway, owner of the property known as Alpine Florist, feels that the City is trying to get rid of all automotive uses along Federal Highway. He did not want to see the automotive uses eliminated and felt that they were necessary. Elimination of these services would also have an economic impact upon the City. He has paid for C-4 zoning and wants it. Yves Hubert, 725 N. Federal Highway, purchased his property five years ago. He was told that the business license could be transferred to him. However, this was not the case. His property is a legal non-conforming use and his right to operate an auto repair business is grandfathered. He said City employees have deprived him of his right to own and operate a business. He has been Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 200'1 unsuccessful for five years in ten awing his occupational license and would like to upgrade his property. He said that the City has lost his application and plans that had been previously submitted and he has had [o resubmit them. He has been repeatedly cited for code violations and is unable to obtain a permit to meet compliance and is being charged $250 per day in fines. He feels that the City will take his property when the fine reaches the assessed value. He h as sent potential tenants to the City and each one has been refused a permit. He has had no response from the City, and he has been forced to hire an attorney. He has been deprived of his vis~on toown a business in Boynton Beach. William Hegstrom, 425 NE 4th Street, ownerof Bill's AUtomotive Repair, said he is located next to the City's animal ~helter. He has been at this location s nce 1974 and has spent his whole life trying, io~ build up his bus ness. He is amenab e to changing his property, but is afrak~ to make mprovements in the event the zomng gets changed. He asked for an .explanation of Option A and B, which Mayor Broenir~g provided. Mr. Hagstrom isopp~)~ed to changing the C-4 z(~nJng. Don Fenton, 2556 SW 23 Cranbrook Drive and a member of the CRA, pointed out that the CRA spent many hours working on the Federal Highway Corridor Plan in accordance with the Visions 20/20 Plan. Mr. Fenton said implementing the Plan would increase property values. The CRA is not trying to drive businesses out of the City. Mr. Fenton was opposed to adopting any alternative plan and said that it would continue the economic stagnation in the downtown area. Mr. Fenton requested that the Commission support theCRA's recommendation. Dom Desiderio, entered a copy of the Bert Harris, Jr. Private Property Protection Act into the record. Mr. Desiderio pointed out that three businesses were left out of the Plan; jewelry stores, pawn shops, and massage therapists. Aola J. Walden Gill, 844 East Drive, Harbor Estates does not want the zoning to be changed. She likes her community as it is and if the zoning were changed it would infringe upon their quality of life. She requested that Harbor Estates be excluded from the Federal Highway Corridor Plan. Mayor Broening closed the public hearing. Commissioner Fisher inquired how many homes were affected from the prior exclusion Mr. Rumpf responded approximately 90 to 100 homes. Harbor Estates has 38 homes. Commissioner Fisher had concerns about the way Federal Highway looked. He inquired about the logic of occupying a certain percentage of a building if a business had to move. Mr. Rumpf responded that this is a method to encourage a mixed-use concept as opposed to standalone businesses. The percentage method is used to further define mixed use. The percentages still need to be further discussed and fine- tuned. Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 Commissioner Fisher stated that this was putting more constraints on businesses. He also inquired how Alternative A would affect Harbor Estates. Mr. Rumpf stated that there would be no effect u pon Harbor Estates. Corem ssioner Fisher was in favor of making a mandatory change with the City's assistance in fixing up Federal Highway. He had no problem with Alternative A. Commissfoner Ferguson stated that the residents of Harbor Estates have been m~sguided about the zoning because they are more vulnerable with R-l-AA zoning than with the change in the zoning. However, Commission Ferguson was willing to exempt them from the change. Motion Commissioner Ferguson moved to let Harbor Estates remain with R-l-AA zoning. Motion seconded by Commissioner McCray. Commissioner Fisher inquired how this would affect the remainder of the Plan. Mr. Greene pointed out that the two cases are not similar. Boynton Isles and Lee Manor Isles dealt with the underlying land use that was being proposed Lo a mixed-use. In the case of Harbor Estates, the underlying use is, and has been ,mixed-use. The alternatives that have been proposed would not affect Harbor Estates and it was not necessary to change the zoning. Mr. Greene noted that these are two different issues. The motion pertains to zoning and the other is land use. Mayor Broening pointed out that the Future Land Use Map shows Harbor Estates as mixed use. However, this doesn't mean anything since it is zoned R-l-AA. There is a difference between the existing zoning uses and future land use. Mayor Broen~ng agreed with staff that proposing Alternatives A and B is a logical step to achieving the goals of Vision s 20/20. The City must come to some clear definitions of what the code is. He wants to see the central business district obtain the density it needs. Then everything else will fall into place and be market driven. Commissioner McCray stated that staff should have met a lot sooner with the residents of Harbor Estates to address their concerns. Commissioner McCray felt that the business owners have legitimate concerns and that the economy ~s going down and people are struggling. The businesses on Federal Highway have for years kept the City afloat long before there was a Boynton Beach Mall. Vote Mayor Broening called for a vote of the motion on the floor, Motion carried 5-0. 10 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 Harbor Estates is no longer involved in the proposed zoning change. Mr. Bressn er felt that it would be beneficial if staff met with representatives of the homeowner associations because there are other issues that need to be addressed. Mayor Broening said the Commission still needed to decide between the three options: Option A; Option B; and the original Option (Option I, which was approved by the CRA). Vice Mayor Weiland suggested an "Option D" which would be more redefining of the Plan to determine if there are other things that could be done. He would like staff to have more time to present alternative options. Mayor Broening noted if Option A were chosen, the definitions would have to be more defined and should be done with public input. Vice Mayor Weiland inquired if one of the options were chosen tonight, would the Plan come back to the Commission with more information. Staff has stated that it would take at least two to three months before the Plan would come back to the Commission with the necessary language. Mr. Fisher inquired how long it would take for staff to come back with the physical conditions of Federal Highway. Mr. Bressner pointed out that there is a great deal of information available from the voluntary landscape committee initiated by a previous administration. There are some good standards that came from that committee that could be applied for the Commission to consider. Mr. Bressner suggested revisiting the work that emanated from that committee. Vice Mayor Weiland felt this was an excellent idea and noted that the City of Delray Beach has a program that requires property owners to meet certain landscaping standards. Mayor Broening stated that the Ordinance could be written to provide that the appearance of the Corridor be upgraded and include the standards proposed by the previous landscaping committee. He suggested that this language be included in any motion made tonight. Motion Commissioner Fisher moVed to approve Alternative A and direct staff to come up with a landscaping code for the Federal Highway Corridor. Vice Mayor Weiiand asked if this would include a block east and west or just the Federal Highway Corridor. Commissioner Fisher stated that the Federal Highway Corridor is the zone in question. Motion died for lack of a second. 11 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 Motion Commissioner Ferguson moved that the original Plan, Alternative I, recommended by the CRA be approved. Motion died for a Pack of a second. Motion Commissioner Fisher moved to direct staffto come up with a landscaping code for the Federal Highway Corridor. Motion seconded by Vice Mayor Weiland and carried 5-0. Motion Commissioner McCray approved Alternative A and moved to direct staff to provide the Commission with the necessary things that are needed to move forward. Motion seconded by Commissioner Fisher. Motion carried 4-1 (Commissioner Ferguson dissenting.) RECESS WAS DECLARED AT 8:50 P.M. THE MEETING RECONVENED AT 9:00 P.M. Project: Agent: Owner: Location: Description: Krispy Kreme Scott Barber/Gee & Jenson Dynamic Do[~ghnuts Florida Realty, Inc. and Krispy Kreme of South Florida, LLC Between NW 1st Avenue and Boynton Beach Boulevard ISR804], approximately 1,500 feet east of NW 7th Street, opposite the intersection of Boynton Beach Boulevard and West Industrial Avenue Request to amend the Comprehensive Plan Future Land Use Map designation on a 0.62 acre parcel from Medium Density Residential (9.86 du/ac) to Local Retail Commercial and to rezone from Duplex Residential (R-2) to Neighborhood Commercial (C-2) (Request postponement of public hearing until January 2, 2002) Project: Agent: Owner: Location: Krispy Kreme Scott Barber/Gee & Jenson Dynamic Doughnuts Florida Realty, inc. and Krispy Kreme of South Florida, LLC Between NW 1s` Avenue and Boynton Beach Boulevard (SR804), approximately 1,500 feet east of 12 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 VI. Description: NW 7th Street, opposite the intersection of Boynton Beach Boulevard and West Industrial Avenue Request Conditional Use/Site Plan approval for a 4,680 square foot fast food restaurant with drive-through feature (Request postponement of public hearing until January 2, 2002) Project: Agent: Owner: Location: Description: Mobil Woolbright & Congress Anna Cottrell Mobil Oil Corporation 2605 W. Weolbdght Road Request for Conditional Use/Site Plan approval for a gasoline-dispensing establishment with accessory car wash facility (Request postponement of public hearing until January 2, 2002) Conveying title to the property located at 1451 NW 1st Court to Dovie Waters in exchange for the properzy located at 210 NW 13TM Avenue, and authorizing execution of the deed (Proposed Resolution No. R01-336) (Tabled until January 2, 2002)) CONSENT AGENDA: A. Minutes: 1. City Commission Meeting of November 20, 2001 2. Agenda Preview Conference of November 29, 2001 3. Joint City Commission/Cemetery Board Workshop of November 29, 2001 Bids and Purchase Contracts - Recommend Approval - All expenditures are approved in the 2001-2002 Adopted Budget Extend "CO-OP ANHYDROUS AMMONIA," Bid #026-2821- 01/KR, to Tanner Industries, Inc., for an additional year for an annual estimated expenditure of $89,264/city Utilities portion $13,000 (New Bid #026-2821-02/KR) Award a contract in the amount of $272,554 to Custom Built Marine Construction of Stuart~ Florida as the iow bidder under Bid No. 002-2413,02/KR for the NE 12th Avenue Drainage Improvements and Seawall Replacement Project (Proposed Resolution No. R01-320) 13 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 "Piggy-back" a Palm Beach County bid (Palm Beach County Annual Pathway and Minor Construction Contract) in the amount of $28,224.90 to Charles S. Whiteside, Inc. for the Hester Site Traffic Modification project at Ezell Hester Park Award a contract in the amount of $926,652 to Megan South, Inc. of Davie. Florida as the Iow bidder under Bid No. 001- 2413-02/KR for the Seacrest Estates Water Main Replacement and Swale Improvements (Proposed Resolution No. R01-321) Resolutions: Proposed Resolution No. R01-322 Re: Releasing cash bond of $66,176 to The Collage Companies for the completion of the permitted work at the Gale Industries warehouse (4885 Parkridge Boulevard) Proposed Resolution No. R01-323 Re: Releasing the Letter of Credit balance of $1,500 to Home Development of Hunters Run for Isles of Hunters Run Temporary Trailer Proposed Resolution No. R01-324 Re: Releasing Letter of Credit No. 12266 M & T Bank in the amount of $53,363.20 for the water and sewer systems serving the pro)ect known as Guardian Storage of Boynton Beach, Inc. Proposed Resolution No. R01-325 Re: Releasing cash surety to Catalfumo Construction, Ltd. In the amount of $3,000 for the water and sewer systems serving the project known as Stor-AII on Industrial Avenue Proposed Resolution No. R01-326 Re: Releasing Letter of Credit No. 3029736 to Bank of Amedca in the amount of $15,260 for the water and sewer systems serving the project known as Wal-Mart Proposed Resolution No. R01-327 Re: Accepting Letter of Credit No. 2001-041A from Ohio Savings Bank in the amount of $363,836 as surety for the installation of the water and sanitary sewer systems serving the project known as Jonathan's Creek Proposed Resolution No, R01-328 Re: Approving a reduction in surety requirement in the amount of 14 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 $177,611.96 for the installation of water and sewer systems serving the project known as Manatee Bay Proposed Resolution No. R01-329 Re: Approving Task Order 28B Amendment #2 with CH2M Hill, one of our consulting engineers, for additional engineering services during construction of Master Lift Station Rehabilitations at #'s 317, 316, 319 in the amount of $54,037 Proposed Resolution No. R01-330 Re: Approval of 11 contracts for services for Community Development Block Grant (CDBG)'sub-recipients previously approved for funding on August 7, 2001, and sub-recipient addendum ~ the agre~ement with 'the Local Initiative Support Corporations (LISC) pre-apprenticeship program for bud ng construct on, currently being implemented by the Boynton Beach Faith Based CDC 10. Proposed Resolution No. R01-331 Re: Approving the change order request to PREVENTIVE MAINTENANCE SUPPORT SERVICES, INC. for an increase to the blanket for roof inspections, pressure cleaning, maintenance repairs and reporting for $18,975 based on the City of Coral Springs Bid #01-C-020F (effective: 02/06/01-02/05/03) 11. Proposed Resolution N o. R01-332 Re: Approving the change order request to ADVANCED ROOFING, INC. for a modification of the repairs to the Police Station lower roof for $26,725 12. Proposed Resolution No. R01-333 Re: Transferring $1,274,162 from Visions 20/20 funds to the CRA for the Boynton Beach Promenade and CBD Parking 13. Proposed Resolution No. R01-334 for Manatee Bay Re: Approving plat Ratification of Planning & Development Board Action: None Ratification of Community Redevelopment Agency Action: Dakota Lofts (Chan's Enterprises)- 3010 S. Federal Highway - Request for Site Plan approval to construct 19 multifamily town homes, recreation area, and related site improvements 15 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 on two acres (Request postponement until January 15, 2002) Approve transfer of $70,000 from Contingency Account to Planning & Zoning Consultant Fees to facilitate the revision and updating of the City's Land Development Regulations [Proposed Resolution No. R01-335) G. Approve two funding requests by Commissioner McCray: $2,000 to purchase books for the Boynton Beach Public Library $1,000 to 1913 Schoolhouse Museum for HeadStart students to be able to ulJlize the Museum and experience the learning experience without paying the admission fee Motion Commissioner Ferguson moved to accept the consent agenda, as presented. Motion seconded by Commissioner Fisher and unanimously carded. VII. CITY MANAGER'S REPORT: Discussion regarding possible development scenarios for the M-1 zoned land along South Congress Avenu a and initiating a planning study for the area Mr. Bressner reported that the South Congress Avenue area in question has been zoned M-1 for many years. He would like the Commission to consider if other zoning classifications should be considered and implemented. To do this, it would be necessary that the owners of the property and surrounding properties participate. An information packet presented by Mr. Rumpf was distributed, which contained the following information: (1) zoning information for the M-1 District, (2) Land Use Information from the Comprehensive Plan, and (3) recommendations specific to this portion of the corridor. · The area is a consolidated M-1 district surrounded by residential uses on the west side of Congress Avenue; a mixture of uses on the east side; and residential to the north with a narrowing at the southern end that abuts the Regional Waste Water Treatment Facility. · The area is almost developed out with the exception of three parcels. · The three parcels were illustrated on the map and discussed. · Existing buildings and uses were pointed out and discussed. 16 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 · Mr. Rumpf thought that there might be a new tenant going into the former APAC building. · There has been a gradual decline in the need for industrial lands and this should be taken into account. · The M-1 zoning district is the higt~est industrial classification in the City. · Consideration would have to be given to non-conforming uses and properties. · There has been a great characteristic change in the M-1 zoned property. · There is retail included in the current zoning, but it is restricted. Robert Ensler, 26 Woods Lane said that there are problems on the Congress Avenue Corridor similar to the Federal Highway Corridor. He stated that there are 16 residential communities along Congress Avenue from Boynton Beach Boulevard to the City of Delray Beach border. There are four senior residences, three schools, two parks, which have the character of a residential community with some retail across the street. The Warehouses don't fit into the area. Mr. Ensler lives in Hunter's Run that has 3,000 residents, mostly seniors and they are concerned about what might go up on these properties. He does not want to see any M-1 zoning type buildings on this property. Mr. Ensler requested that the City undertake a study of this area to determine its best use. Raymond Mazer, 78 Hampshire Lane, has ived at Hunter's Run for nine years. Hunter's Run has 21 various associations and two homeowners' associations. He is President of one association and President of the management company. He complemented the City on the beautification program that went up on South Congress Avenue, but does not like the zoning across the street from Hunter's Run Mr. Mazer requested that the Commission approve a study to change the M- 1 zoning. Herman Gold, Hunter's Run, has been a long time resident of Hunter's Run and stated many more people are now staying in Florida all year round. Hunter's Run is undergoing an expansion program due to the increased population. Mr. Gold felt that any industrial business across the street from Hunter's Run would decrease their property values. Sue Steiner, 20 Villa Lane is the President of Villa of Northwoods Condominium Association in Hunter's Run and represents 32 families. Ms. Steiner would also like the City to undertake a study of the M-1 area in order to keep the area more in line with the neighborhood. Alvin Newman, 49 Bristol Drive, is the President of Bristol at Hunter's Run, which consists of 62 families, and is President of the Council of Presidents. He stated that he residents are concerned about the M-1 zoning and he would like the City to do something about this. Phyllis Stern, 15 Woods Lane, is a member of the City's Advisory Board on Children and Youth, as well as a resident of Hunter's Run. She stated that a new 17 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 elementary school is going up in the area and she has concerns for the children that will be attending the school Commissioner Fisher suggested getting the owners of these properties together to discuss the issue. Mr. Rumpf felt that this would be possible. Mayor Breening inquired if a building moratorium would be possible if the Commission chose to have a study done. Mr. Rumpf said that a moratorium would be a logical move. Attomey Cherof noted that the City has a legal mechanism in place to do this. Mr. Rumpf stated that the owners of the property are aware that a change may take place. He pointed out that the same scenario that is now occurring on Federal Highway could also happen here. Mayor Broening thought that having a moratorium would be agood signal to developers that the City wants to look at appropriate uses for the area and may also bring out some serious proposals. Commissioner Fisher inquired whether staff could handle this additional work at this time. Mr. P, umpf responded that the emphasis on the next two months is on the Federal Highway Corridor, but after that it should be possible. Attorney Cherof suggested a study period not to exceed six months. Mayor Broening suggested that a motion be made to direct staff to do a study for the area of South Congress Avenue from the L-28 Canal to the L-30 Canal and to place a moratorium to be determined by the length of the study not to exceed six months. Motion Commissioner Fisher moved to approve a moratorium outlined from the L-28 Canal to the L-30 Canal in order to allow staff to conduct a study not to exceed six months. Motion seconded by Commissioner McCray and unanimously carried. Mr. Bressner said that an Ordinance for first reading would be on the agenda for the first meeting in January. B. Report on Interim Financial Assistance to Chamber of Commerce Mr. Bressner reported that staff is recommending that the City Commission consider granting interim funding of $24;000 to the Chamber of Commerce: The Chamber provides many services that are beneficial to the City and the Chamber is important to the community. There are funds available from the Pond B project and this would not incur any additional costs to the City. 18 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 200t Motion Commission Ferguson moved to approve the granting of $24,000 to the Chamber of Commerce. Motion seconded by Commissioner Fisher. Mary Law, 625 S. Federal Highway stated that the Chamber started out on donated land. They then sold it. Ms. Law provided the Chamber rent-free office space to give them time and money to locate a suitable location. The Chamber moved to the First Financial Plaza. The Chamber has 654 members and has enougn members to work within its dues. The City does not give money to other civic organizations and should not give any money to the Chamber of Commerce. Herb Suss said that the Chamber did not ask for the funding and it will not cost the City any money. Mr. Suss said that the City should work with the Chamber. He pointed out that the Chamber is necessary to the City in encouraging businesses to locate into the City. Brian Edwards, 629 NE 9th Avenue, said that he was in favor of the assistance to the Chamber, but his card was intended to thank Commissioner McCray for his contribution to the Children's Museum. Vote Mayor Broening called for a vote for the motion on the floor. 1 (Vice Mayor Weiland dissenting.) The motion carried IX. FUTURE AGENDA ITEMS: A. Modification to City Pay Plan - Salary Ranges (January 2, 2002 B. Report on Modification to Development Review Process - Environmental Permits (January 2, 2002) C. Traffic Calming and Traffic Control Final Report (January 15, 2002) Review of Proposed Amendment to Development Agreement - Marina Project (January 15, 2002) E. Stormwater Projects Report (January 15, 2002) FRA Whistle Ban - Report (March 2002) - Delayed due to Federal Railway Administration Delay in Rulemaking X. DEVELOPMENT PLANS: 19 Meeting Minutes Regular City Commission Boynton Beach, FL December '18, 2001 XI. NEW BUSINESS: Continued discussion of enfomement of current regulations requiring shade canopies to be defined as "structures" and, therefore, subject to building codes and zoning regulations (Tabled until January 15, 2OO2) Proposed Resolution No. R01-337 Re: MunicipaJ Public Safety Communications Communications Project Supporting the Consortium Motion Commissioner Fisher moved to approve Resolution No. R01-337. seconded by Commissioner Ferguson and unanimously carried. Motion XII. LEGAL: A. Ordinances - 2'd Reading - PUBLIC HEARING Proposed Ordinance No. 01-39 Re: Land Use Amendment for a _+18.03 acre property for construction of a new elementary school to reclassify from MR-5 (Palm Beach County) to Public & Private Governmental/Institutional (PPGI) City Attorney Cherof read proposed Ordinance No. 01-39 by title only. Motion Commissioner Fisher moved to approve Ordinance No. 01-39. Motion seconded by Commissioner Ferguson City Clerk Prainito called the roll and the motion carded 5-0. Proposed Ordinance No. 01-40 Re: Rezoning of a _+18.03 acre property from Agricultural F~esidential (Palm Beach County zoning district) to Public LJse (PU) City Attomey Cherof read proposed Ordinance No. 01.40 by title only. Motion Commissioner Fisher moved to approve Ordinance No. 01-40. Motion seconded by Commissioner Ferguson. City Clerk Prainito called the roll and the motion carried 5-0. 20 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 3. Proposed Ordinance No. 01-60 Re: Advisory attendance Board City Attorney Cherof read proposed Ordinance No, 01-60 by title only. Motion Commissioner Fisher moved to approve Ordinance No. 01-60. by Commissioner McCray. City Clerk Prainito called the roi carded 5-0. Motion seconded and the motion 4. Proposed Ordinance No. 01-61 Re: School Concurrency City Attorney Cherof read proposed Ordinance No. 01-61 by title only. Motion Commissioner Fisher moved to approve Ordinance No. 0%61. Motion seconded by Commissioner McCray. City Clerk Prainito called the roll and the motion carded 5-0. 5. Proposed Ordinance No. 01-62 Re: Redevelopment Agency staffing Community City Attorney Cherof read proposed Ordinance No. 01-62 by title only. Motion Commissioner Ferguson moved to approve Ordinance No. 01-62. Motion seconded by Commissioner McCray. City Clerk Prainito called the roll and the motion carried 5-0. Proposed Ordinance No. 01-63 Re: Fire optional transfer of accumulated leave balances pension City Attorney Cherof read proposed Ordinance No. 01-63 by title only. Motion Commissioner Fisher moved to approve Ordinance No. 01-63, Motion seconded by Commissioner McCray. City Clerk Prainito called the roll and the motion carried 5-0. B. Ordinances - 1$~ Reading 21 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 1 Proposed Ordinance No. 01-64 Re: an Arts Commission Establishing City Attorney Cherof read proposed Ordinance No. 01-64 by title only. Motion Commissioner McCray moved to approve Ordinance No. 01-64. Motion seconded by Commissioner Ferguson. City Clerk Prainito called the roll and the motion carried 5-0. Proposed Ordinance No. 01-65 Re: Amending Chapter 6. Cemeteries, Section 6-18(a)(2), to provide for 50% of the original pumhase pnce of a crypt or niche after interment, resale or transfer of ownership to the City of Boynton Beach Vice Mayor Weiland asked for an explanation. City Clerk Prainito responded that originally refunds were at 80%, but there were a great deal of refunds occurring. The rules had been changed to provide for only 50%, but the Ordinance was never changed. Vice Mayor Weiland felt that the owner of the crypt would be losing money if it were sold. Mr. Bressner said that the Cemetery Board reviewed the matter and they recommended the 50% rate of return. City Attorney Cherof read proposed Ordinance No. 01-65 by title only. Motion Commissioner Ferguson moved to approve Ordinance No. 01-65. Motion seconded by Commissioner Fisher. City Clerk Prainito called the roll and the motion carried 5-0. Proposed Ordinance No. 01-66 Re: . Modifications to City Purchase and Contract Award Policies City Attorney Cherof read proposed Ordinance No. 01-66 by title only. Vice Mayor Weiland pointed out that one of the main functions of the City Commission ~s to provide checks and balances for purchases by the City. This Ordinance will in crease the amount of a purchase from $10,000 to $25,000 before it comes before the Commission. Mayor Breening inquired when the original Ordinance was adopted and was informed it was in 1990 and was amended to $10,000 in 1997. Mr. Bressner stated that the intent of the Ordinance is to allow the business of the City to move forward. Because of agenda deadlines, this delays staff from doing .22 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 business at an expedited pace If the Commission at anytime feels that the City Manager and staff are not being responsible, the Ordinance could be amended. Commissioner Fisher inquired if this would also apply to the Assistant City Managers and Mr. Bressner stated it only applied to the City Manager. If Mr. Bressner were out of the City, this authority would be given to the Acting City Manager. Vice Mayor Weiland expressed surprise that the City was having problems moving things along. Commissioner Fisher noted that the Commission hired the City Manager and did not hire the Assistant City Managers. Commissioner Fisher had concerns about the authority being delegated to the Assistant City Managers in the absence of the City Manager. Mr. Bressner said it could always be held until he returned to the office and he would agree that it be limited to the City Manager only. Motion Commissioner Ferguson moved to approve Ordinance No. O1-66. Commissioner Fisher inquired if the Ordinance would pertain only to the City Manager. Attorney Cherof responded that the Ordinance would have to be changed Commissioner Ferguson amended his motion to reflect this change for the second reading. Motion seconded by Commissioner Fisher. City Clerk Prainito called the roll. The motion carried 3-2 (Vice Mayor Weiland and Commissioner McCray dissenting.) Proposed Ordinance No. 01-67 Re: Annexation of an 8.84-acre contiguous parcel to be master planned for a church campus (Calvary Chapel) City Attorney Cheref read proposed Ordinance No. 01-67 by title only. Motion Commissioner Fisher moved to approve Ordinance No. 01-67. Motion seconded by Commissioner Ferguson. City Clerk Prainito called the roll and the motion carried 5-0. Proposed Ordinance No. 01-68 Re: Land Use Amendment from HR-8 (Palm Beach County designation) to Moderate Density Single Family Residential (MoDR) (Calvary Chapel) 23 Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 City Attorney Cherof read proposed Ordinance No. 01-68 by title only. Motion Commissioner McCray moved to approve Ordinance No. 01-68. Motion seconded by Commissioner Ferguson. City Clerk Prainito called the roll and the motion carried 5-0. Proposed Ordinance No. 01-69 Re: Rezoning from Agricultural-Residential (Palm Beach County zoning) to Planned unit Devel°Pme~t (PUD) (Calvary Chapel) City Attorney Cherof read proposed Ordinance No. 01-69 by title only. Motion Commissioner Ferguson moved to seconded by Commissioner McCray. motion carried 5-0. approve Ordinance No. 01-69. Motion City Clerk Prainito called the roll and the C. Resolutions: Proposed Resolution No. R01-338 Re: Interlocal Agreement between the City of Boynton Beach and the Board of County Commissioners, Palm Beach County, establishing the City as fiscal agent for the Municipal Public Safety Communications Consortium Local Law Enforcement Block Grant City Attorney Cherof read proposed Resolution No. 01-338 by title only. Motion Commissioner Ferguson moved to approve Resolution No. 01-338. Motion seconded by Commissioner Fisher and unanimously carried. Proposed Resolution No. R01-339 Re: Interlocal Agreement between the City of Boynton Beach and the Municipal Public Safety Communications Consortium establishing the City as fiscal agent for the Municipal Public Safety Communications Consortium Local Law Enforcement Block Grant City Attorney Cherof read proposed Resolution No. 01-339 by title only. Meeting Minutes Regular City Commission Boynton Beach, FL December 18, 2001 Motion Commissioner Fisher moved to approve Resolution R01-339. Motion seconded by Commissioner Ferguson and unanimously carried. D, Other: None XIII. UNFINISHED BUSINESS: XIV. ADJOURNMENT: There being no further business, the meeting properly adjourned at 10:00 p.m. ATTEST: Recording Secretary (three tapes) ~one~rmmiss, loner, ~ (December 19, 2001 ) 25 (Page 1 of 2) PETITION RE: FEDERAL HIGHWAY CORRIDOR PLAN TO: Boynton Beach City Commissioners We, the madersigned, are home owners in the subdivision of Harbor Estates, recorded in Plat Book 2I, Page 98, of the Public Records of Palm Beach County, Florida. It is zoned R1AA (with the exception of Lot A which is on Federal Highway, commercially zoned, and not a part of this Petition). We are opposed to the proposed change that would rezone our residential neighborhood to "MU-L" (mixed use). We do not want high-rise and "zero lot line" structures or businesses in our residential community. We want to be taken out of the '~Federal Highway Corridor Plan" and retain our existing R1AA zoning, just like the City allowed the subdivisions of Boynton Isles and Lee Manor Isles to do. TheSe three subdivisions: Harbor Estates, Boynton ISles and Lee Manor Isles are the only subdivisions ~the "Federal Highway Corridor" zoned R1AA; and we respect~ally request that we ALL be treated the same. We re~esem 9 ~' % of the home owners in Harbor Estates; (Al} addresses are Boynton Beacl~ Florida 33435) Name: Address: PETITION RE: FEDERAL HIGHWAY CORRIDOR PLAN (Page 2 of 2) TO: BOynton Beach City Commissioners We, the undersigned, are home owners in the subdivision of Harbor Estates, recorded in Plat BOok 21, Page 98, of the Public Records of Palm Beach County, Florida; It is zoned R1AA (with the exception of Lot A which is on Federal Highway, commercially zoned, and not a part ofthis Petition). We are opposed to the proposed change that would rezone our residential neighborhood to "MU-L" (mixed uSe). We do not want high-rise and "zero lot line" structures or businesses in our residential community. We want to be taken out ofthe Federal Highway Corridor Plan and retain our emstmg R1AA_ zomng, just like the City allowed the subdivisions of Boynton Isles and Lee Manor Isles to do. These three subdivisions: Harbor Estates, Boynton Isles and Lee Manor Isles are the only diws~ons m the Federal Highway Comdor' zoned R1AA; and we respectfiffiy request that we A~_ L be treatedthe same. We represent 95 % of the home owners in Harbor Estates: (All addresses are BoYnton Beach, Florida '33435) Date: Federal Highway Corridor Redevelopment Plan Alternative Implementation Strategies Objectives of Strategies Implement plan recommendations: "Create two zoning subcategories of land use.. "; "Amend the Future Land Use Map... "; and "Create development standards" to "eliminate restrictions on density" "' , tncrease the maximum height", eliminate "types of vehicle oriented, non- neighborhood serving uses.. ", "create new ..regulations ... that address building placement, parking, mixed uses... ", and enhance the visual appearance of the community. Reduce uncertainty relative to the future of existing businesses and particularly those that would conform to the vision presented by the plan. Alternative "A" Code Amendments Only Defined: Establish'mixed use districts (and zoning uses) and corresponding site standards in LDRs. only · Advantage: - Code would not be imposed on existing properties/uses; no potential impact on property or business values. - Districts not applied to properties lacking site stnds. · Disadvantages: Inconsistent uses are not phased out nor prevented from establishing within the area. Plan implementation still required of developer. Alternative "B" Reduced Scope · Defined: 1) Establish mixed use districts., uses and corresponding standards in LDRs; and 2) reclassify and rezone C-4 districts along corridor to Mixed Use. · Advantage: Limits impact only to t~hose uses most inconsistent with plan vision; others are not affected. Site standards would only apply to new or major work. · Disadvantage: Plan implementation (amendment and rezoning process) still required of developer for remaining land. Additional Considerations Evaluate physical conditions of C-4 uses (or a greater portion of the corridor) and consider implementing landscaping or other site requirements. Establish new classification and district (or overlay) with a higher density classification. Further revisions to currently proposed district regulations (e.g. definitions and mixed use incentives). g and Alternatives "A" and "B" Beneficial Code ' The addition of urban standards - Increasing range of housing choices including smaller lot provisions. Accommodating townhomes. Accommodating accessory units. Urban streetscape through reduced setbacks, porches, minimum building height for Federal Highway, and use of the build-to-line. Shared parking provisions to accommodate mixed use projects with practical parking requirements. Alternatives "A" and "B" Beneficial Code Modifications Increase ~n heights 45' to 75' (MU-L) - 100' to 150'(MU-H) - 30' to 35' (sf/duplex/townhomes) New highest density chss/zoning district Mixed use provisions/incentives (proposed). 45.7 Source: 38.3 .~oastal~. Towers Seagate of Gulfstream Target Area ~ ~ ~ ~ uJ~~ 2~~ ~ Potentia,.igher Density Area H~gher Density Target Area and ~ Boston Shopping Center ~ Underutilized land Approved 55 units/acre BOYNTON BEA. CH . FLORIDA Marina -net density- R~TY CORPORATIOBI Proposed ??? units/acre BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS Fill in the information called for below and give to the City Clerk prior~o the start of the City Commission Meeting. Address ~ /V~ ~-~ .~}'Ve-.) /~..~ ~,R'ae~/ Telephone ~ ~ ~ ~ a~ ~ 7 ~ ? // Agenda ~ V~ Summa~ of Matter to be A~dres~ (One topic per card) If a person decides to appeal any ~ecision made by the CltF Commission with respect to any matter cO~/sh wffi need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings made~ which record includes the testimony and evidence upon which the appeal is to be based. (F.8. 286.0105) The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City, Please ~ontact Joyce Costello, [5611 742-6013 at [east twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS Fill in the information called for below and give to the City Cle~;k~prior to the start of the City Commission Meeting. Address Telephone Summary of Matter to .b~Addr~ed Agenda # If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting~ he/she will need a record of the proceedin§s and~ for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. (F.S. 285.0105} The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City, Please contact Joyce Costello, {561} 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS ~ Fill in the information called for below and give to the City Clerk~r to the start Commission Meeting. Name Address Telephone # Summary of Matter to be A~dressedj~{One / / / / of the City topic per card} If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings ia made, which record includes the testimony and evidence upon which the appeal ia to be baaed. {F.S. 286.0105! The City shah furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costeilo, {561) 742-6013 ar least twenty-four hours prior to the program or activity in order for the city ro reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS Fill in the information called for below and give to the City Clerk prior to the start of the City Commission Meeting. Name Address If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. (F.S. 286.0105) The City shall furnish appropriate atmiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costello, {561) 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS Commission Meeting. Name Fill in the information called for below and give to the City Clerk prior to the start of the City Address i? Telephone # -~ ~, Summary of Matter to be Address~/~ Agenda Ifa person decides to appeal any decision made by the City Commission with respect to any matter considered ar this meeting~ he/she wiil need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedin§s is made, which record includes the testimony and evidence upon which the appeal is to be based. (F.S. 286.0105] The City shah ihrnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costeno. {561] 742-6013 ar least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. Name BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDAITEMS Fill in the information called for below and give to the Cit~/~lerk prior to the start of the City Commission Meeting. / Address '7 '"' / Telephone # e~e/ Summary of Matter to be Addr If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting~ he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. {F.S. 286.0105] The City shah furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyee Costello, [561) 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS Fill in the information called for below and give to the City Clerk prior to the start of the City Commission Meeting. Name Address ~l~Pmha°r=ye o~ Mat t e r t o b e~. Agenda # {One to~i~ per card} If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made. which record includes the testimony and evidence upon which the appeal is to be based. {F.S. The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costello, {561! 742.6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDAITEMS Fill in the information called for below and give to the City Clerk prior to the start of the City Commission Meeting. Name Address Telephone # Summary of Matter to be Addressed If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting~ he/she will need a record of the proceedings and~ for such purpose~ he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. [F.S. 286.0105] The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a servxce, program, or activity conducted by the City, Please contact Joyce Costello, t561] 742-6013 it least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate yotlr request, BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDAITEMS Fill in the information called for below and give to the City Clerk prior to the/start of the City Commission Meeting. / Name Address Telephone # Agenda Summary of Matter to be Addressed If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal/s to be based. (F.S. 286.0105) The City shah furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and Bnjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costello, {561] 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS Fill in the information called for below and give to the City Cler~rior to the start of the City Commission Meeting. , ~ff~ ~ ~ Name ~T i,o,~ ~ ~- Address Telephone # Summary of Matter to be ~ddresse~-{One topic per card} If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedinEs is made, which record includes the testimony and evidence upon which the appeal is to be based. {F.S. 286.0105) The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, proEram, or activity conducted by the City, Please contact Joyce Costello, {561] 742-6013 at least twenty~four hours prior to the program or activity in order for the city to reasonably accommodate BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDAITEMS Fill in the information called for below and give to the City Clerk prior to t/he start of the City Commission Meeting. / Address d~ ~e~~ e~O~ ~ ~ ~a~ ~, Telephone ~ .. ~'~ ~~- // Agenda ~_. ~ ~ Summary of Matter to be Add~sed . (~n~c per card} If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting~ he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. IF.S. 286.0105) The City shall ihrnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of s service, program, or activity conducted by the City. Please contact Joyce Costello, {561] 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS Fill in the information called for below and give to the City Clerk pr~to the start of the City Commission Meeting. . Name Telephone / Summary of Matter to be Ad~essed - (O/~topic Agenda per card) If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based, (F.S. 286,0105] The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costello, i5611 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDAITEMS Fill in the information called for below and give to the City Clerk pr~ t-~he start of the City Commission Meeting. Telephone ~ 91~ ~ ~7 91' h /ff~ Agenda Summary of Matter to be AddreSsed Ifa person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that~a verbatim record of the proceedings is made, which record includes the testimony and evidence uponwhich the appeal is to be based. {F.S. 285.0105} The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costello, {561} 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDAITEMS Fill in the information called for below and give to the City Clerk prio~o the start of the City Commission MeetinE. ~;~j( Name Address / / Telephone # Summary of Matter to be Ad~essed- {On~pic per card) Agenda# If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedin§s is made, which record includes the testimony and evidence upon which the appeal is to be based. {F.S. 286.0105~ The City shall furnish appropriate auxfiia~y aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costello, (561} 742-6013 at least twenty-four hours prior to the program or activity in order for tho city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS Fill in the in£omnation called for below and Igive to the City Cl~rior to Commission Meeting. // Name Address the start of the City Summary of Matter to be Ad~essed -/ne topic per card} If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, be/she will need a record of the proceedings and, for such purpose, be/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. {F.S. 286,0105} The City shall furnish appropriate amliliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyoe Costello, {561} 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request, BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS Fill in the information called for below and give to the City Clerk~or to the sta~ of the City Commission Meeting. Address Telephone # ~-~ of Matter to be Addressed - (~ topic Summary ~/(//A/~ Atienda # per card} Ifa person decides to appeal any decision made by the City Commission with respect to any matter considered at this meettng~ he/she will need a record of the proceedings and, for such purpose, he/she may need tc ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. {F.S. 286.0105~ The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and e~joy the benefits of a service~ pro§ram, or activity conducted by the City, Please contact Joyco Costello, (561! 742-6013 at least twenty-four hours prior to the program or activity in order for the city te reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS Fill in the information called for below and give to the City Clerk prior to the start of the City Commission Meeting. Name Address -~ ~ - Agenda # Telephone # -- Summary of Matter to be {One topic per card) If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meetings he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings ia made, which record includes the testimony and evidence upon which the appeal is to be based. {F.S. 286,0105) The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Jcyce Costello, (561) 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request, BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDAITEMS Fill in the information called for below and give to the City Clerk prio~ the start of the City Commission Meeting. / Name Y//e~ .~ .~g~ ~ ~/'/~ /// Address ~/~ '-~ /~/~ ~~~/ ~ Telephone, ff~/ ~/ ~ Agenda,. ~/// ~ . Summary of Matter ty~be Addressed- ~ ~/ ~ ~ topic per card} ~- If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. {F.S. 286.0105~ The City shall furnish appropriate aux/liary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costello, (561) 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD Name /~/~/~ (~/~ H~f 7'/~/)/07 Address ~Z ~ ~, ~-~. d~ ~/~m AGENDA ITEMS Fill in the information called for below and give to the City ~erk prior to the start of the City Commission Meeting. Telephone # Summary of Matter to be One topic Agenda # ~/~ per card) If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. (F,S, 286.0105) The City shail furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity eonducted by the City. Please contact Joyce Costello, {561] 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS Fill in the information called for below and give to the City Clerk prior to the start of the City Commission Meeting. // Name Address / Telephone # ~ ~ ?'~ ~ ~] // Agenda ~ Summary of Matter to be Addr~~ne topic per card) If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedin§s and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. {F.S, 286.0105! The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costello, (561) 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. Fill in Com3 Name Address Telephone # Summary of Matter to be do/u '%0 m.o If a person ~lecides to a will need a record of the made The City shall opportunity to Costello, your BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS called for below and give to the City Clerk~0r'ib the start of the City Agenda# VI// /_% r Commission with respOc~ to any matter considered at this meeting, he/she and, fo~ purpose, he/she may need to'~sure that a verbatim record of the proceedings is testimony and evidence upon which the appeal is to':I/~2sed. {F.S. 286.0105) al ~ a~xiliary aids and services where necessary to //l~0td an individual with a disability an equal and enjoy the benefits of a service, program, or activity ~Bducted by the City. Please contact Joyce )13 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate O BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD AGENDA ITEMS Fill in the information called for below and give to the City Clerk p~or to the start of the City Summary of Matter to be Addressed / If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. (F.S. 286.0105) The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costello. i561) 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD FOR ITEMS NOT ON THE AGENDA - PUBLIC AUDIENCE Fill in the information called for below and give to the City Clerk prio/r to the start of the City Commission Meeting. Name ~Oai-l~ Address ~,~ ~'~ Telephone ~ ~-~,~ Summary of Matter to be Add~e,sed ~~ Ifa person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. (F.S. 286.0105) The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costello, (551) 742~6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request; BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD FOR ITEMS NOT ON THE AGENDA - PUBLIC AUDIENCE Fill in the information called for below and §ive to the City Clerk prior to the start of the City Commission Meeting. Name Address ( ' , Telephone # ~-'~/ 7~ ~./~ Summary of Matter to be Ifa person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made~ which record includes the testimony and evidence upon which the appeal is to be based. (F.S, 285.0105) The City shah furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and el~Joy the benefits of a se~vice~ program, or activity conducted by the City. Please contact Joyce Costello~ {561) 742-6013 at least twenty-four hours prior to the program or activ/ty in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD FOR ITEMS NOT ON THE AGENDA - PUBLIC AUDIENCE Fill in the information called for below and give to the City Clerk prior to the start of the City Commission Meeting. Name Address Telephone # Summary of Matter to be Addressed If a person decides to appeal any decision made by tho City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. {F.S. 286.0105) The City shall furnish appropriate atmiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and e~joy the benefits of a service, program, or activity conducted by the City. Please contact Joyce Costello, {561) 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request; BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD FOR ITEMS NOT ON THE AGENDA - PUBLIC AUDIENCE Fill in the information called for below and give to the City Clerk prior to the start of the City Commission Meeting. Name Address Telephone# Summary of Matter to be Addressed \ If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting, he/she will need a record of the proceedings and, for such purpose~ he/she may need to ensure that a verbatim record of the proceedings is made~ which record includes the testimony and evidence upon which the appeal is to be based. (F.S. 28S.0105) The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a services program, or activity conducted by the City. Please contact Joyce Costello, (561) 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. BOYNTON BEACH CITY COMMISSION MEETING PUBLIC COMMENT CARD FOR ITEMS NOT ON THE AGENDA - PUBLIC AUDIENCE CommissionFill in the informatiOnMeeting, called for below and give to the City Cl~r to the start of the City Name ~.~0 ~ ~ / t~--~t~/O ~ COJ~C/ ~/0~ ~0 ~O~-C Address ~-- ~[~VT~ 0 ~~ ~~c ~OYI~CSZ Telephone, ~Y~'--~7~ ~ · ./~ ~ Summa of Matter to betddre,!d ,ff Ta 0 If a person decides to appeal any decision made by the City Commission with respect to any matter considered at this meeting~ he/she will need a record of the proceedings and, for such purpose, he/she may need to ensure that a verbatim record of the proceedings is made~ which record includes the testimony and evidence upon which the appeal is to be based. {F.S. 286.0105) The City shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in and enjoy the benefits of a service~ program, or activity conducted by fhe City. Please contact Joyce Costello, (561) 742-6013 at least twenty-four hours prior to the program or activity in order for the city to reasonably accommodate your request. South Congress Avenue Industrial l,ands [] ., ,.,~.t~ 2000 0 2000 Feet Project Information · Project scope · Existing use characteristics · Adjacent land uses and land use compatibility · Creation of non-conforming uses or properties ·Availabilitv of land and land needs · Existing zoning regulations · Comprehensive Plan recommendations Policy 1.I8.1 Policy 1.18.2 Objective 1.19 Policy 1.19.1 Policy 1.19.2 Policy 1.19.3 Policy I.t9.4 The City shall continue ro enforce the City's Parking Lot Regulations and the sweet design requirements contained in the Subdivision and Platting Regulations. These regulations shall meet or exceed the design standards used by the Florida Department of Transportation, unless alternative standards can be justified. Review the performance of these code provisions at least every five years. The City shall continue ro require provision of parking spaces in-accordance with the City's Code of Ordinances, which shall ensure ro the extent which can be reasonably determined, that adequate parking is provided on 95% of the days throughout the year. Review the performance of these code provisions ar least every five years. The City shall evaluate and allow a range of land uses for which the area, location, and intensiW of these uses provide a full range of housing choices, commercial uses to ultimately increase tax base, employment opportunities, recreation and open space opportunities, and public uses including school sites for both existing and projected populations, provided that all other comprehensive plan policies are complied with. The City shall continue efforts to encourage a full range of housing choices, by allowing densities which can accommodate the approximate number and type of dwellings for which the demand has been projected in the Housing and Future Land Use Elements, including the provision :of;i~dequare sires for housing very-iow, iow-, and moderate income households and for mobile homes. The City shall provide continued effor~ ro allow for industrial acreage which can accommodate the approximate industrial employmenr which has been projected in the Furore Land Use Element, and prohibit conversion of land designated "Industrial" on the currently adopted iCumre Land Use Map unless such conversion would generae a range of employment choices for current and future residents, provide goods and services of regional importance: and retain regional fiscal and economic significance. The City shall continue ro support the designation, by Palm Beach County, of future industrial land uses in the vicinity of Boynron Beach Boulevard and Florida's Turnpike, and consider allowing such sites at the northeast corner of Old Boynron Road and Congress Avenue, if approved as pan of a Development of Regional impact or an .areawide Development of Regional Impact. The City shall continue ro encourage and enforce the developmem of industrial land as industrial parks or concemrated industrial areas in order to maximize the linkage between complementary, industries. City of Boynton Beach EAR-based Comprehensive Plan Amendments 00- 1 ER -22 Dare: June 20. 2000 Ftxure Land Use Element Ordinance No. 00-29 8.b. Property on Northeast Comer of Golf Road and Conqress Ave. This parcel occupies approximately 4 acres and was formedy shown in the Moderate Density Residential land use category and R-1AA (PUD) zoning district, which is the same as the adjacent single-family portion of Boynton Beach Leisureville. This property is shown in the Office Commercial land use category on the Future Land Use Map, in accordance with the Settlement and Stipulation Agreement between Milner Corporation and the City (see Appendix "D" to the Future Land Use Element sL'3port Documents). This agreementspecifies that the property is to be developed for offices, and includes specific conditions for the use and development of the property. The land use, zoning, and the use and development of this property shall be in accordance with the above-mentioned Settlement and Stipulation Agreemem. 8.c. Property on Southeast comer of Golf Road and Conqress Ave. . This parcel occupies approximately 8.5 acres and was formedy shown in the Low Density Residential land use category and R-1AA zoning district. This property is shown in the High Density Residential land use category on the Future Land Use Map, in accordance with the Settlement and Stipulation Agreement between Milner Corporation and the City (see Appendix "D" to the Future Land Use Element Support Documents). This agreement specifies that the property is to be developed as an adult congregate living facility (ACLF). and includes specific conditions for the use and development of the 2roperty. The land use, zoning, and the use and development of this property shall be in accordance with the above-mentioned Settlement and Stipulation AgreemenT. 8.d. Unincorporated Parcels South of Silverlake Estates These parcels should be annexed and 3[aced in the Low Density Residential land use category. Development of these properties should generally be limited to single-family detached dwellings, so as to be compatible with the one-story condominiums which lie to the south and the sing[e- family subdivision lying to the north. 8.e. Industrial Property Fronting on East Side of South Conqress Ave. This is a highly visible corridor which lies across the street from a Iow-density residential development; therefore, approval of site 3lans along this frontage should include strong consideration of aesthetics. In particular, garage doors and loading areas should not be permitted to face Congress Avenue. Since the City's zoning regulations allow certain retail uses and services related to home improvement (hardware, furniture, tile and carpet stores, for example), it is expected that a large portion of this frontage will develop for these types of uses. In order to enhance this area as a home improvement and design district, the City's zoning regulations should be examined to determine whether other similar retail goods and services should be permitted industrial parcels which front on thoroughfares. Promotin~ home improvement and design uses along this frontage would provide a Iow-intensity commercial use which would avoid the aesthetic problems which often accompany both industrial uses and conventional strip commercial devebpment. 109 Bo2~ton Beach Code as staff comments and planning and development board recommendations. The City Commission may then approve the minor modification uncondkionally, approve the m/nor modification with conditions, or deny the minor modification. Non-substantial (minor) modifications will nor extend time limitations for development of property as stipulated in LDR Chapter 2, Section 9, paragraph C13. O. ZONING ADMINISTRATOR. Building permits. No building permit or certificate of occupancy or zoning compliance shall be issued in or for development in a PID district except m conformity with all provisions of the zoning ro PID classifications and plans submitted under subsection M of these zoning regulations. (Ord. No. 96-51. § 4, 1-21-97; Ord. No. 00-03, §§ 1, 2, 3-21-002 M-1 industrial district re=re, clarions and Sec. 8. use provisious. A. M-1 INDUSTRIAL DISTRICT. 1. Permitted uses, no distance requirement. Within any M-1 industrial district, no building, structure, land or water, or any part thereof shall be erected, altered or used, in whole or in parr, for other than one or more of the following specified uses; provided, however, that any use or process that would be subject to a minimum distance requirement under Section 8.A.2., would require an environmental review permit under Section 8.A.3.. would reqmre conditional use approval under Secnon 8.A.4.. or would be prohibited under Section 8.A.5. shall fully comply with the provisions of those secnons, where applicable. No distance requirement other than district setback regulations shall apply for the following uses: a. Manufacturing, fabrication, and processing as follows: (1) Bakery products. (2) Ice and dry ice. (3) Textile products, appareI, and clothing accessories, manufactured from purchased fabric and materials, excluding spinning, weaving, knitting, dyeing, or treating of textile mill products. (4) Sailmaking and canvas goods. including retail sale of goods manufactured on premises. (5) Leather cutting and stamping; fabricated leather products. (6) Furniture. cabinets, and wood fixtures, with gross floor area of shop not greater than two thousand (2,000) square feet. (7) Blind. shutter, shade, and awning fabrication from wood, plastic, fabric, canvas. or finished metal pieces. (8) Converted paper and paperboard products, limited to cutting, stamping, folding, laminating, lining, coanng, and treanng of purchased paper, paperboard, foil. sheet, or film materials. (9) Stone cutting and finishing. (i0) Statuary, ornaments, and art goods. (11) Glass and glass products. (12) Ceramic. pottery, and porcelain products, using only previously pulverized clay, and using kilns fired only by electricity or gas. (13) Investment casting. (14) Machinery, equipment. appliances, parrs, and tools, limited to assembly of finished parrs and materials. 15' Electrical and electronic =o 26ds. limited ro assembl.~ of rafts and materials. (16' Plastics. rubber, or fiberglass products, limited to cutting and assembly of parts and materials. 2000 S-12 Zoning 42A optical equipment, clockwork devices. (17) Precision instruments, photographic equipment, and (18) Medical and dental equipment. (19) Household goods and other small kerns such as jewelry, lapidary goods, personal articles, toys, amusement devices, sporting goods, musical instruments; stationary, office, and art suppties; advertising speciaIties, novelties, ornaments, notions, cookware, and flatware. (20) Fruit pactdng and shipping. (21) Artist and craftsman shops, excluding retail display or sales on premises. b. Commercial services as follows: (1) Industrial, commercial, office and professional equipment; service, repair, and rebuilding, excluding uses specifically prohibited in Section 8.A.5. (2) Household goods; setwice, repair; ~nd rebuilding, excluding display or sale of any new, used, or rebuilt merchandise at retail on premises, un/ess specifically allowed in accordance with Sections 8.A.l., 8.A12., 8.A.3., or 8.A.4. (3) Furniture and antique upholstery, covering, and repairing: (4) Steam and pressure cleaning services. t997 43 (5) Septic tank. sewer, and drain cleaning and repair services, excluding storage, treatment, transfer, dumping, or disposal of waste on premises, provided that trucks used for the transport of waste shall be parked and stored in conformance with the minimum distance requirement specified in Section 8.A.2. (6) Packaging and labeling services, excluding handling of materials prohibited in Section 8.A.5. (7) Lawn, garden, and tree rmaintenance services; landscaping contractors. (8) Recording and motionpicmre studios. (9) Catering and food services. (10) Data processing services. (1I) Research and development laboratories. [12) Commercial resting laboratories. (13) Medical and dental laboratories. (14)Upholstery and carpet steam cleanin~ businesses (15) Towing companies with exterior storage. (16) Vegetation recycling as a conditionsd use to a solid w.asre operating and recycling faciliD'. c. Storage, distribution, and wholesale uses; retail display and sales shall be prohibited unless specifically allowed in Secfioas 8.A.l., 8.A.2., or 8.A.3. (I) Warehouses. self service storage facilities (minl-warehousesl in accordance with Secnon 11.0 storagelockers, and cold storage. excluding uses specifically prohibited in Section 8.A.5. (2) Industrial, commercial, office, professional, and business machinery, equipment, fixtures, tools, and supplies, excluding uses specifically prohibited in Section 8.A.5. (3) Household goods: storage, wholesale and distribution only; retail display or sales shall be prohibited unless specifically allowed in accordance with Sections 8.A.l., 8.A.2, 8.A.3.. or 8.A.4. (4) Building materials, home improvement stores, lumber, door and window hardware, shades, shutters, blinds, and awnings; fencing, roofing, flooring, capering, tile. hardware. tools, paint, wallpaper, shelving, cabinets, furniture. partitions, kitchen and bath.room fixtures, pools and spas. glass and mirrors, plumbing and electrical supplies, and the like, including retail sales. (5) Finished concrete, brick, clay, and stone building and paving materials: sewer and water pipe, and culvert; storage, distribution. wholesale or retail sales. (6) Pumps, generators, motors, fire protecnon equipment, and irrigation equipment, including retail sales. (7) Heating, cooling, ventilating, refrigeration, solar energy, water conditioning and heating systems and equipment, and major appliances, including retail sales. (8) Pre-fabricated sheds, including retail sale. (9) Nurseries, greenhouses, lawn and garden equipment, tools, and supplies, including retail sale. (10) Monuments ~md gravestones. including retail sales. (il) Feed and farm supplies, excluding uses specifically prohibited in Secnon 8..3,..5 (i2) Trucks. buses, farm eqmpmem consrmcnon machineo', and utility 1996 S-1 Boymon Beach Code trailers, including retail renting and sales. (13) Passenger vehicles, boats and pickup tracks, excluding any retail sales or display, and excluding the keeping of vehicles in violation of Chapter t0, Article 12II of the City of Boynton Beach Code of Ordinm~ces. (14) Automobile. vehicle, and boat parts, accessories, furnishings, and supplies: retail sales or display shall be prohibited as a principal use and sh2J.] be perm/trod only as an ac- cessory, use to repair, servtce, rebuilding, or mstal- latiun services, where such services lawfully exist. (15) Mobile homes, limited to areas west of Interstate 95. retail sales. (16) Ice and dry ice. including (17) Live fish. d. Tran. sportarion, commtmicanon. utilities, and miscellaneous uses as follows: (1) Utilities, communications facilities, government, and public utilities shops and storage areas, police and fire stations, excluding uses specifically prohibited in Section 8.A.5. (2) Package express and messenger servme. (3) P~ilroad switching yards freight stations and terminals, storage facilities, and shops. (4) Recycling pick-up facilities for paper, glass, and cans from households. (5) Trade and industrial schools. (6) R,adio or microwave receivers or transmitting towers, as an accessory use ro a lawful principal use. (7) Ambulance dispatch sep,'ice. (8) Communi~' centers, operated by non-profit organizations, provided that no more than 40 % of the floor space is devoted to office use. ~Ord. No. 96-03. ~ 1, 3-19-96) 1996 S-2 2. Permitted uses subject to distance requirement. Within any M-1 industrial district, no building, structure land, orwater, or any part thereof shall be erected, altered, or used, in whole or in pan for any of the following uses, un/ess a minimum distance of three hundred (300) feet is maintained betw~n the use and residential-zoned property. Said distance shall be measured along a straight airline route from the property line of residential-zuned property to the bu/lding or portion of the lot where the specified use is located, except that those portions of the lot or structure which are located, within the minimum distance may be used for lawful uses other than the uses listed below, subject to district building and site regulanons. Any use or process that would require an environmental review permit under Section 8.A.3.. would require conditional use approval under Secrinn 8.A.4.. or would be proinbited under Section 8 A.5. shall fully comply with the provisions of those sections, where applicable. a. Manufacturing, fabrication, and processing as follows: (1) Plastic products, limited to forming of plastics materials, including compounding of restns. Establishment of such uses within the rinnzmum distance requirement specified above shall require an environmental review perrmt. (2) Rubber products, limited to forming of robber materials; excluding tire and innertube manufacturing and robber reclaiming. Establishrnen~ of such uses within the minimum distance reqnlremenr specified above shall require mn environmental review permit. (3) Machine shops, welding and metalworldng shops, tinsmiths, sheet metal fabrication, blacksmith shops; machin/ng, stamping, cutting, joirdng, forging, drawing, bending, or other form~g of metals as either a principal or accessory use. Establiskment of such uses withSn the minhmm dis'~ance requirement specified above shall require an, enviroamental review perrn/r. b. Other uses as follows: 1) Asphalt paving, patching, roofing, and sealcoating, excluding asphalt and tar plants 45 (2) Building cleaning and janitorial services; swimming pool maintenance services. Establishment ef such uses within the rmnimum distance requirement specified above shall require an environment~l review permit. (3) Sandblasting on premises. (4) Bulk storage, distribution, wholesale or retail sale of topsoil, lime, gravel, limerock, shellrock, coal, minei'als, crushed rock, sand, cinders, fertilizer, and the like, limited to an accessory use to a building materials store, garden shop; nursery, contractor, or other lawful principal USC. (5) Trucking and transfer, and moving operations. (6) Contrac[ors, operative builders, and trade contractors shops and storage areas. Establishment of such uses within the minimum distance requirement specified above shall require an environmental review permit. (7) Parking or storage of trucks used for the transport of septic tank waste or other liquid wastes. (8) Adult entertainment establishments, in accordance with Section I I .M. 3. Uses requiring environmental review permit. Within an M-1 industrial district, no building, structure, land. or water, or any part thereof shall be erected, altered, or used. in whole or in part, for any of the following specified uses, unless an environmental review permit is secured in accordance with the sumdards and procedures set forth in Section 11.3; provided, however, that any use or process that would be subject to a wan/mum distance requiremem under Section 8.A.2.. would require conditional use approval under Section 8.A.4., or would be prohibited under Section 8.A.5. shall fully comply with the provisions of those sections, where applicable. a. Manufacturing, fabrication, and processing as follows: (1) Dairy products. (2) Canned, frozen, or preserved (3) Beverages and bottling. (4) Confections. (5) Prepared meat, seafood, and poultry products. (6) Ail other food products, not specifically permitted in Section 8.A. 1. or prohibited in Section 8.A.5. (7) Furniture, cabinets, and wood fixtures, with gross floor area of shop of greater than two thousand (2,000) square feet. (8) Printing, publishing, bookbinding, engraving, and allied industries. (9) Phmmmceuticals and biological products. (10) Cosmetics. (I1) Plastics products, lira/ted to forming of plastics materials, including compounding of resins, where such uses would be established within the minimum distance requirement specified in Section 8.A.2. (12) Rubber products, limited to forming of rubber materials and excluding tire and irmermbe manufacturing and rubber reclaiming, where such uses would be established within the minimum distance reqmremem specified in Section 8.A.2. repazr, including repair. (t3) Fiberglass fabrication and fiberglass boat fabrication and (I4) Machine shops, welding and metalworking shops, tinsmith, sheet metal fabrication. and blacksmith shops; machining, stamping, cutting, joining, forging, drawing, bending, or other forming of metals ms either a principal or accessory use. where 46 Boynton Beach Code such uses would be established within the rninimum distance requiremem specified in Section 8.A.2. (15) Electriea/ and electronic goods involving processes other t2mn assembly of parts or materials. equipment, machinery. (16) Vehicles. transportation and boats; farm and construction (17) Mobile homes, provided that such uses shall be located west of Interstate 95. (18) Plated ware manufacture: industrial electroplating and anodizing as either a principal or accessory use; replating shops. (19) Chemical cleaning and etching of metals, limited to an accessory use to a lawfal principal use only. b. Commercial servlces and contractors, as follows: (1) Concrete contractors and pumping service, excluding concrete plants. (2) Contractors, ope rarive builders, and trade contractors shops and storage areas, where such uses would be established within the minimum distance requirement specified in Section 8.A.2. (3) Automobiles, buses, tracks. and other motor vehicles; construction and farm equipment: servme, repair, rebuilding, and storage, excluding the keeping of vehicles in violation of Chapter 9, Article III. of the City of Boynton Beach Code of Ordinances_ and excluding automobile service starious selling motor fuels at retail. (4) Boat storage, service, repair. rebuilding, and customizing. (5) Furniture cleaning, stripping, and refinishing. (6) Exterminating, farnigating, and disinfecting services. (7) Print shops, photographic laboratories, commercial photography; commercial art. silkscreening, lithography, rypeseaing, and blueprinting services. (8) Uniform, towel, and linen supply services; industrial launderers: laundry and dry-cleaning plants, excluding retail pickup and drop-off on premises; carpet and rug cleaning plants. (9) Tire recapping. (10) Building cleaning and janitorial services and swimrrfing pool mantenance services, where such uses would be located within the rromimurn distance requirement specified in Section 8.A.2. c. Storage, distribution, wholesale. and other uses, retail display and sales shall be prohibited unless specifically permitted below or elsewhere in this section. (1) Petroleum :md petroleum products, including solvents and liquified petroleum gas; bulk or nonbulk storage, sales, or distribution. (2) Chemicals. pesticides, and herbicides, excluding bulk storage, bulk sales, or bulk distribution. (3) Bulk or nonbulk wholesale or retail sale of solvenrs and clearting preparanons. including formulating of cleaning preparations for sale on premises. (4) Industrial and medical gases: boxled or bulk storage, sales or distribution, excluding chlorine, fluorine, ammonia, hydrogen sulphide, sulphur dioxide, or toxic gases. (5) Temporary arnusemem parks and rides, fairs, r_~vals, circuses, and revivals. provided that all such uses shall have a minimum frontage of two hundred (200) feet on a collector or arterial road and the major access thereto, and that the duration of any such use shall not exceed fourteen (i4) consecutive days within any one-year period. d. Miscellaneous uses. as follows: Zoning 47 (1) Any use which uses, handles, stores, or displays hazardous materials, or which generates hazardous waste, as defined by 40 Code of Federal Regulations, Part 261. 4. Conditional uses. Within any M-1 industrial district, no building, structure, land or water, or any parr thereof shall be erected, altered, or used, in whole Or part, for one or more of the following uses, unless a conditional use approval is secured according to the standards and procedures set forth in Section I1.2 of Lhese zoning regulations: provided, however, that any use or process that would be subject to a minimum distance requirement under Section 8.A.2., would require an environmental review permit under Section 8.A.3.. or would be prohibited under Section 8.A.5., shall fully comply with the provisions of those sections, where applicable. a. Millwork and rmss plants, provided that such uses conform to the minimum distance requkemenr specified in Section 8.A.2 b. Commercial television, radio and microwave broadcasting or relay towers c. Arenas, stadiums, frontons. convention and exhibition halls, and racetracks. provided that all such uses shall have a minimum frontage of two hundred (200) feet on a collector or arterial road, and shall have the major access thereto. d. Helistops, limited to an accessory use to a lawful principal use. e. Cutting of sub-primal portions of meat and pre-cut poultry into serving portions including packaging and shipping where pre-cur pomous (entering the facility) wiI1 not exceed 10 pounds and waste generated will nor exceed 1% of pre-cut product. 5. Prohibited uses. Within any M-1 industrial district, no building structure, land. or water_ or any parr thereof shall be erected altered, or used. in whole or m parr. for any use not specifically allowed in accordance with Sections 8.A.i.. 8.A.2.. 8.A.3.. or 8.A.4. of these zoning regulations, or for any of the following expressly prohibited uses: a. Manufacturing, fab ricarion, processing, and extraction as follows: (1) Grain and feed products; crop processing. (2) Vegetable fats and oils. (3) Distilling and brewing. (4) Seafood processing. (5) Slaughtering and rendering of meat and poultry processing, and dressing, from carcasses. (6) Stockyards and feeding pens; keeping, raising, or slaughter of livestock, horses, or poultry. (7) Rendering of animal or marine fats, oils. and other products; use of unprocessed bones, fat, hooves, horns or other unprocessed animal products for the production of glue, soap, lard. oils. or fertilizer. (8) Sugar proc~sing and refuning. (9) Commercial production of field or tree crops. (i0) Leather tanning, curing, finishing, and coloring; storage of raw hides or skins. (11) Tobacco processing and tobacco products manufacturing. (t2) Weaving, spinning, knitting, dyeing, or treating of textile mill products. (i3) Pulp mills: paper and paperboard mills: converted paper and paperboard products nor specifically permitted in Section 8.A. 1 .a.(8~ of these zoning regulations. (14) Chemicals and allied products not specifically allowed elsewhere in this section. (15) Wood preserving, pressure treanng, and drying. 2000 S-12 48 Boynton Beach Code (16) Fertilizer, pesticides, herbicides, and agricultural chemicals. (17) Explosives, ammunition. matches, and fireworks. (18) Petroleum refining. (19) Petroleum, asphalt, tar. and coal products. (20) Plastics, manufacturing of resins, primary plastics materials, synthetic rubber. cellulose and synthetic fibers. (21) Rubber. manufacture of primary rubber materials, tires and irmertubes, and rubber reclaiming. (22) Soaps, detergents, and cleaning preparations, other than mixing or blending. (23) Paints, varnishes, lacquers. enamels, and allied products, other than mixing or blending. (24) Cement, concrete, gypsum, lime, and plaster manufacture, and products made therefrom, other than those uses specifically permitted in Section 8.A.l.a. (25) Brick. firebrick_ terra corra. clay pipe, structural clay tile, and refractories. (26) Asbestos products. (27) Processing of rock. sand. _oraveI. shellrock, [imerock. mineral earths, and the like. (28) Primary metals manufacturing; smelting, refining, mills, furnaces. and foundries, except as specifically allowed in accordance w/th Sections 8.A.I.. 8.A.2.. or 8.A.3. (29) Drop forging (30 Chemical cleaning or etching of metals as a principal use. or any chemical descaling of metals. 2000 S-I2 (31) Coal or coke fired kilns and furnaces: coke ovens. (32) Mining or quarrying, including removal of rock, sand, muck. marl. soil, gravel, or shellrock, except as incidental or necessary for construction on the premises. (33) Aerosol filling and packaging. (34) Liquid, oil. or chemical electric transformers, manufacture or rebuilding. b. Storage, distribution, wholesale. retail, and services, as follows (I) Any retail display or sale. not specifically allowed elsewhere in this section. (2) Farmers' markets. (3) Flea markets, sales bazaars. swap shops, trading posts, and the like; sale or display of used retail merchandise, other than completely rebuilt or refinished merchandise where such uses would be alIowed in accordance with Section 8.A.1. (4) Crematoriums and the like. (5) Explosives. ammunkion. matches, and fireworks. (6) Bulk storage, bulk distribution, or hulk sale of chemicaIs and allied products. {7~ Compressed cht brine. fluorine, ammoma, hydrogen sulphide, sulfur dioxide, or toxic gases. (8) Bulk storage, bulk sale_ or bulk distribution of pesticides, herbicides, or agricultural chemicals. (9) Offices or restaurants, except as an accessory use to a Iawfu] principal use. chemical pest. services (10) Agricultural ferrilizina, and disease, weed. or soil treatment Zoning 49 (11) Truck stops or automobile service stations. (12) Boarding kennels; guard dog kennels and training services. (13) Any open storage or display, unless adequately screened, except that growing plants which are stored or displayed shall not require screening. Any exterior storage of motor vehicles or boats in a wrecked condition shall be permitted only in connection with a lawful principal use allowed elsewhere in this section, and shall be adequately screened. Furthermore, the open storage of farm tractors and implements, shovels or cranes, and special mobile equipment as defined by Section 316.003, Florida Statures shall be adequately screened. c. Transportanon, communication. utilities, and miscellaneous uses as follows: (1) Chemical and toxic waste storage or disposal: tank truck cleaning. (2) Land fill operanons. (3) Airports, airfields, and landing strips. (4) Heliports. (5) Residences and trailer parks: use of vehicles or house trailers as living quarters. (6) Storage, sale. salvage, transfer or disposal of junk, scrap, garbage, offal, refuse, or other waste materials, except as specifically allowed elsewhere in this section. (7) Recycling sorting or processing facilities. (8) Animal disposal facilities. (9) Incinerators of any type. 6. Building and site regulations: Minimum Iot area Minimum lot frontage i0.000 square feet None 2000 S-12 Minimum front yard Minimum side yard (interioO Minimum side yard (comer) Minimum rear yard Maximum lot coverage Maximum height t5 feet* 15 feet one side 15 feet street side 20 feet** 60 percent 45 feet, nor ro exceed 4 stories *Except where rear of the lot abuts a paved alley or street, then no side setback shall be required. **Where rear yard abuts a railroad right-of-way or any paved alley, the rear yard may be reduced ro ten (I0) feet. Note: Where lots abut a residential area, the corresponding side and/or rear setback shall be a mmnnum of thirty (30) feet. All necessary roof-mounted mechanical equipment shall be sound baffled. 7. Off-street parking. As provided in Section ll.H. hereinafter. (Ord. No. 95-23, § I, 8-15-95: Ord. No. 95-24. ~ 4, 8-15-95; Ord. No. 00-04, §§ I, 2, 44-00) Sec. 9. Administration and enforcement. A. BUILDING PERMITS REQUIRED. No structure or building shall hereinafter be erected or structurally altered until a building permit has been issued by the development director. Al1 buildings, structures and uses of land shall comply with the regulations of this ordinance and with ali applicable building and health laws and ordinances. Each application for a building permit shall be accompanied by a survey in duplicate, drawn to scale, showing the acruaI dimensions of the lot or lots ro be built upon. the size of the building or structure to be erected or structurally altered, its location on the Iot or lots. and such other information as may be required as :o provide for the enforcement of these regulations. B CERTIFICATE OF OCCUPANCY. No building or structure hereafter erected or structurally altered shall be issued a certificate of occupancy until the developmen~ director makes a finding that the building or structure has been erected or structurally altered ir, conformance with the provisions of this ordinance, and of alt other applicable ordinances 712-. ~oc~&g T ToT/lC ,9-.-t I 8 i75' r 5~,oo =. g83, o5 ~ . . ~,,:,%o0o :O~,i, 73..33 C~Ty ~1~© 1~ ~0 ~ ~ mr .155 $,F, ~-"f/'TAl¢73%001 -'~lmE z-I Ad6-, 9-(,, OCT, ~.1=, LETTE¢... M OV, 5)0 iFF ~ IGHT Wouw -pRflTFCTIN'fi PR IVATF. PRC~PF. RT¥ R 1({44 ~ ,'4 A MEASURED STEP TO PROTECT PRIVATE PROPERTY RIGHTS DAVID L. POWELL,[~] ROBERT M. RHODES,[~] AND DAN R. STENGLE[~*] © 1996 Florida State University Law Review INTRODUCTION ti: BACKGROUND ~_ The 1993 Regular Session of the Legislature ~,_ The Governor's Property Rights Study Commzssion II ~_~. The 1994 Regular Session of the Legislature ~, The Consti)utional Initiative on Property Rights E_. The 1995 Regular Session of the Legislature J2[I_, THE BERT J. HARRIS, JR., PRIVATE PROPERTY RIGHTS PROTECTION ACT A_._ Definitions 1. Existing Use a_. Actual. Present Use or Activity b._ Reasonably Foreseeable Future Use Z VestedRights a. Equitable Estoppel b_._ Substantive Due Process c_. Statutory Vesting 3. Governmental Entity 4~._ Action era Governmental Entity 5 Inordinate Burden _a.~ Expectations Not Realized b, Unreasonable Use and Unfair Burden 6_, Property Owner 7_, Real Property B. Procedure for Bringing a Civil Action [~ Actions Prior to Filing a Civil Action a. Conditions Precedent _b_,. Written Offer to the Landowner c.~ Acceptance and Resolution ~_I_.. Ripeness Deciszon 2. Commencement and Conduct of a Civil Action a. Jurisdiction and Venue h: Joinder c. Determination of Inordinate Burden c~ Interlocutory Appeal e_: Attorney's Fees and Costs .~. Determination of Compensation ~~ Final Judgment a. Court's Authority To Grant Relief ~b_. Rights Acquired by the Governmental Entity £ 7~ Limitations and Exceptions ]:~ As-Applied Challenges Only 2- Federal Programs 3. Temporary lmpacts 4. Public Nuisances at Common Law and ~bxious Uses 5. Relief Under the Harris Act 6. Mediation andAlternative Dispute Resolution Pt~U~T~CTF~4~ PRtVAT~ PI~(]PF. RT¥ RI(~HTN .~., Transportation ~, Sta~te of ~imitatio~ ~. Sove~i~ Immuni~ tO. Gra~fathering ~. ]nte~t and Conduction iV. FLORA L~D USE ~ ~O~ DISPU~ ~SOL~ION ACT A_ De~nitio~ .L Developmem Order ' D~ lopm nt P ~. e e ermit X Development ~ Governmental Enti~ 6= Land or Real Proper~ ~ Enforc~ent Action 8_ U~easonable or Unfitly Burdens ~ Initiation of Proceeding L Co~itions Precedent ~ Request for Relief a. Filing the Request ~: Contents of Request q~ Effect of Request for Relief ~.~ Waiver of Rights 4. Par~ies ~ Participants q: Parties ~: Participants ~, Selection of Special M~ter q: Jointly Selected b:_ Oud~catio~ ~= Response to ~ritten Claim (~ Co~uct of the Protecting ]_, Facilitation a~ Mediation 2. Hearing D. Special M~ter's Recommendation f. Settlement 2_ ~ithout Settlement ~.. Evaluation of I~ormation Pr~uced at Hearing 4~ Recommen~tion ~= Effect of Reco~endation ~ Disposition of Recommendation ~ Consistency with ~isting Law ~ Respo~ibili~ of Governmental Enti~ ~ Limitations G, Summaw .~: ~AT~ DI~ ~SOL~ON ~ ~ C~R 163 ~OG~ VI. CONCLUSION INTRODUCTION On May 18, 1995, Governor Lawton Chiles signed into law landmark private property fights legislation enacted during the 1995 Regular Session of the Florida Legislature.[_l ]. The measure includes a new cause of action providing judicial relief to landowners who suffer inordinate burdens on the use of their land and a new nonjudicial settlement and expedited hearing procedure promoting compromise solutions for disputes between landow2ers and regulators.j2] The legislation concluded three years of cuntentious debate over the appropriate means to give landowners protection for the use of their property beyond the constitutional guarantee against the taidng of private property for public use without just compensation. [.3..} The new statute has stirred fears that it will empty the public purse and roll back decades of work in environmental protection and growth management, as well as countervailing concerns among landowners that it will not protect them from the proliferation of regulations that impede their efforts to put their land to productive use. 14] If properly implemented and applied, the measure will have none of the above effects. The legislation grants important new rights and remedies to landowners while maintaining existing environmental protection and gro~vth management programs. It protects landowners against some regulatou actions which do not rise to the level ora miring, but it is more limited in scope than property rights legislation considered in Florida in recent years. I_5_] Perhaps most importantly, the measure is intended to reform the way government does business with landowners.~6] The legislation provides a measured response to a pressing and emotional issue and strikes a balance between conflicting, but equally valid, public and private interests. Il. BACKGROUND The subject of prix ate property rights is not new in Florida. From the beginmng of the period of environmental activism by the Florida Legislature in the early 1970s, the issue of legal protections for private property rights has generated much legislative activity. These efforts have increased in recent years due to the controversies which have attended the implementation of Florida's growth management programs. The trend in Florida to extend greater protection to private property fights reflects national developments, both in statehouses and in the Congress. j7]. A. The 1993 Regular Session of the Legislature Although the public policy argumem regarding increased protection of private property rights has been simmering for several years, it was only in 1993 that the Legislature considered the matter ripe for legislative attention. A bill was introduced into the Florida House of Representatives which would have created a cause of action by which a landowner could obtain a judicial order requiring condemnation of his property. The order would apply to any governmental entity that imposed a restriction which "severely limited the practical use of the property," unless the restriction was an exercise of the police power to prohibit a use that was "noxious in fact" or to prevent "a .demonstrable harm to public health and safety. "[gl~ The court could have awarded compensation to a prevailing landowner. Significantly, the hill would have established a presumption that a "severe limitation" on the practical use of an owner's land occurs when its fair market value is reduced by forty percent from the uses permitted at the time the owner acquired title or on July 1, 1985, whichever was latch [_9_] The bilI was approved by the House Judiciary Committee but died on the House calendar. II 0t Instead, the Legtslature enacted a measure which would have created the Study Commission on Inverse Condemnation to explore and recommend new remedies to protect landowners against the effects of regulation.~.}2 Governor Chiles vetoed the measure; he objected to both the composition of the commission and its charge. I_1_21t He concluded that the measure did not strike a balance between the legitimate interests of private landowners and the public interest in protecting the environment and managnng Florida's growth.[3_3J. B. The Governor's Property Rights Study Commission As an alternative to the vetoed 1993 legislation, Governor Chiles created the Governor's Property Rights Stud~v Commission II. [.t__4_1 It was patterned after the Governors Property Rights Study Commission established in 1975 by former Governor Reubin Askew, whose recommendations led to the 1978 enactment of a statutory remedy for PRf~(~TI~ PRIVATD~ PR{)PHiR I'Y RI(iH ~X - r~uc ~ ~lr ~ , landowners agD-ieved by guvem~ental res~ctious.[.~ S] Governor Chiles directed the new com~ssion to consider, among other things, "It]he current and potential effectiveness of Florida law in providing substantially affected persons with appropriate remedies of law to protect their private property rights and any changes necessary to assure meaningful and effective remedy to affected property, amounts."[(6] Led by former Florida Supreme Court Justice Alan C. Sundberg of Taltahassee, the commission held heatings throughout the state. [~7] [ts chief proposal was the creation of an informal, nonjudicial settlement process m resolve property righB disputes between a landowner and a governmental entity, through payment of compensation or adjustment of the regulation prior to litigation.[}..SI ]~he commission advised against creating a new cause of action for landowners based on awarding compensation for a percentage-diminution of the land's market vahie.[~] C. The 1994 Regular Session of the Legislature The commission's proposal for a new settlement procedure was considered during the 1994 Regular Session of the Legislature. [_~0~ Other bills would have allowed a landowner m seekcompensation through a judicial award when a regulation prohibited or severely limited the use of the owners real property. ~ ] Under these bills, if the governmental entiv] imposing the regulation could not afford to pay the compensation, it would have been prohibited from imposing the restriction on the landowner's property.[~] Neither approach, the settlement procedure nor the court-ordered compensation bill, came to a floor vote.[~2_23_] D. The Constitutional Initiative on Property Rights At the same time the Legislature was considering these measures, a citizens' group mounted a well-funded petition drive for four constitutional amendments bundled into one package for petition gathering purposes.[54~] One of the four proposed amendments would have created a constitutional right to full compensation for a landowner when any exercise of the police power diminished the value ora vested property right.[25] The package received enough signatures for a ballot position in the 1994 general election. I_2_6_'] In a validation proceeding to determine whether the four amendments satisfied the constitutional and statotory requirements for submission to the electorate, the Florida Supreme Court struck the property rights measure and two others from the baltot. L~Z't The court held that the property rights amendment violated the single subject requirement for constitutional initiatives[2_8_] and that its ballot title and summary were not accurate or informative. [¢9] This decision set the stage for further le~slative consideration of the property rights controversy during the 1995 Regular Session. E. The 1995 Regular Session of the Legislature The supreme court's 1994 decision on the constitutional initiative increased political pressure on lawmakers to legislate a solution to the controversy. In addition, the perceived pohtical climate underwent dramatic changes in the 1994 general election. Nationally and In Florida, the tide of pubhe opinion was illustrated by the change in partisan control of the Congress and the Florida Senate. When la,mnakers convened in Tallahassee, the Congress was considering property rights legislation, and legislatures around the nation were continuing a trend in enacting property rights laws.[30] Both constitutional and statutory proposals were introduced into the 1995 Regular Session.[3~[] One proposed constitutional amendment would have provided that no owner could be deprived of a use of private property, or any part of his property, by governmental regulation or action resulting in a "nonnegligible" reduction in the fair market value of that property without full compensation as determined by a jury.¢3_2~ A prevailing owner would have been entitled to costs and attorney's fees.[~}3] Statotor3. ' measures considered Would have declared that any lawful use of private property could not be deprived or devalued, even temporarily, by an action of government without full compensation.[~4] The cause of action for such a deprivation or devaluation, entitling the landowner to a jury determination of compensation, would have arisen if pRCITFCTrNICr PRIVATR PRi3P~R'FY R I¢,}HIS ....... ~-aoa -~ ar ~ tile governmental action resulted in a temporary or permanent diminution in fair market value oftl~ affected portion of the ovmefs land in excess of twenty-five p~eent or $10,000, whichever was greater. The recovery of full compensation would not have been limited by anypercentage or doltar-amount.[.3__.~_] An exception lo the right of compensation would have been carved out for public nuisances, but the governmental entity would have borne the burden of proving that a proscribed land use constituted a pubhc nuisance.[35.i A prevailing owner would have been entitled to attorney's fees and costs.[3~7~ Against this backdrop, Governor Chiles sought to develop a more restrained proposal ~ provide statutory protection for private property rights without undermining Florida's environmental protection and growth management programs. [3 RI The Governor directed Secretary Linda Loomis Shelley of the Florida Department of Community Affatrs to convene an Ad Hoc working group to draft a consensus proposal which would win the support of lawmakers and affected constituencies. [39~] As the 1995 Regular Sesston unfolded, the working group toiled for weeks with important support and involvement from legislative sponsors of various property rights measures. A constitutional remedy was rejected as an option in order to allow any necessary adjustments in the new remedy without the cumbersome and time-consuming procedures involved in amending the Florida Constitution. [j53.1 The working group produced a draft bill which included a statutory remedy to provide compensation for landowners in situations which do not~ise to the level of a taking, but it rejected an automatic numerical formula for determining when relief is warranted. [~t_1 The bill also included a new nonjudicial settlement and expedited hearing procedure for land use and environmental permitting disputes, a procedure patterned after the recommendations of the Governor's Property Rights Study Commission II.~21 With only one significant change by the Legislature,[4~ the working group's bill was enacted by lawmakers with just one dissenting vote. Aside from the scrutiny the bill received when being hammered out in the working group, the legislation received ample hearing and formal consideration by lawmakem. Section t, which created the judicial cause of action for landowner relief, was fully debated in both the Senate Committee on the Judiciary and the Senate Committee on Community Affairs, as Senate Bill 2912.r~_5`1 Sections 2 through 5 were added to Senate Bill 2912, which was reported favorably by the Senate Committee on the Judiciary as a committee substitute, ii_6] Section 2, which created the nonjudicial settlement and expedited hearing procedure, also received a hearing in the Real Property. and Family Law Subcommittee of the House Committee on the Judiciary, as House Bill 1335.[4_7_1 On the House floor, the provisions of Committee Substitute for Senate Bill 2912 and House Bill 1335 were incorporated into one amendment which was adopted as a substitute for the language in another bill, Committee Substitute for House Bill 863. That bill as amended was then thoroughly debated and passed by the House. j4.8_] Committee Substitute for House Bill 863 was sent to the Senate for floor debate and final legislative approval.[~9j THE BERT J. HARRIS, JR., PRIVATE PROPERTY RIGHTS PROTECTION ACT Section 1 of the legislation is the Bert J. Harris, Jr., Private Property Rights Protection Act[5_.0_] (Harris Act), named after the Highlands County legislator who has championed property rights legislation for years. The Hams creates a new cause of action to provide compensation to a landowner when the actions of a governmental entity impose an "inordinate burden" on the owner's real property, j51 } It is intended to apply to governmental actions that do not rise to the level of a regulatory taking.[~2] In general, the new judicial remedy is intended to protect either a landowner's existing use of the land or a vested right to a specific use of the land from an inordinate burden which a state, regional, or local governmental agency imposes.[~_3_] This remedy is subject to many important limitations and exclusions. L54_] Therefore~ in any potential claim it is critical to evaluate the landowner's property interest in light of all the statutory requirements for reliefi PRC)T~f~'T'IN'~ PRIVATF PRf )Pl-..~t ! ¥ l~l~zH I ~, When compared to the textual basis for relief from a regulatory taking, namely, the sparse language in the Fifth Amendment and the Florida Constitution. the Harris Act is richly detailed in the substantive legal standards and procedural mechanisms for obtaining relief.. However, precisely because Harris Act claims were expected to be "ad hoc, factual inquiries,"[7.5] as those in talcings cases, the working group which prepared the legislation favored an approach under which the full import of the Harris Act ultimately would be determined by judicial construction and application. In other words, judicial interpretation on a case-by-case basis was considered inevitable, necessary, and desirable. A. Definitions In any legislative enactment, the definitions imposed on particular terms are crucial for understanding the scope of the measure. That is certainly true with the Harris Act; it includes a number of definitions which are intended to se~ boundaries on the scope of the statute. l. Existing Use The Legislature adopted two alternative definitions for an "existing use" of land which is protected by the Harris Act. Both reflect established legal principles. a. Actual, Present Use or Activity An existing use of land means "an actual, present use or activity on the real property," notwithstanding periods of inactivity normally associated with or incidental to the activity.[~5~5.] This portion of the definition of existing use is intended to encompass land uses engaged in by the landowner even though there might be some intermittent quality to the use or activity. For example, a period of inactivity could include land's lying fallow in association with the growing of crops or fimben b. Reasonably Foreseeable Future Use An existing use also may mean such reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property.[~7] So long as the requested use is suitable for the property, compatible with adjacent land uses, justifiable by an appraisal, and is not speculative, it would qualify as an existing use protected by the Hams Act from certain governmental actions.j58] This alternative definition ofexisting use was and is very controversial, primarily among those who did not favor the enactment of property rights legislation.[~l tn fact the definition stitches together longstanding concepts which are not usually linked together and recasts them in a new legal context, r~260J Aside from its merit on legal and policy grounds, this prowsion was central to building a broad base of political support for passage of the legislation. The first drafts of the Harris Act were considered by some legislators and participants in the working group m offer little or nothing to the landowners whose disputes with regulatory agencies had propelled the property rights moveme.nt.[~!] Because go~(ernment is already equitably estopped from impairing vested ri,_g_h__ts to existi_n,g uses, th~se, legislators and landowners viewed the early drafts of the Hams Act, which protected vested rights' and an exastlng use defined only as "an actual, present use or activity" on the land. as offering only an additional item on the menu of remedies already available to landowners.[~j. Further, these legislators and landowners recognized that government only rarely deprives a landowner of the actual, present use of land, halts an activity being conducted on an owners land, or seeks to infringe on a vested right, f63] Accordingly, for the Harris Act to be meaningful to landowners, it had to offer a remedy in some circumstances in which regulatory permission was denied for the conversion of land to a future use in which the owner's rights were not otherwise protected. As a legal concept for an ex/sting land use, the alternative definition is well-grounded in the law of eminent domain. [6.3] In a condemnation proceeding, valuation of the proper'O- is based upon the highest and best use. [35] The highest and best use is not limited to those uses authorized under the existing land development regulations. on the date of taking there is a reasonable probability of a land use change, that probability m%v be taken into account in determining valuation. [57] An important factor in determining the highest and best use of property is whether the property is suitable for that proposed future use. [g~] However, such a future use may not be wholly speculative. Seen in the context of the law of eminent domain, there are circumstances in which a prospective future use may be considered an existing land use, and therefore compensable. That is at the heart of the Harris Act's akernative def'mition of an ex/sting land USe, which reaches some future uses. Altogether, it is a remarkably conventional idea in a legal system which has embraced the docthne of future interests in land since medieval England. j7_ 0.i The proof necessary to establish that a future land use is reasonably foreseeable could come from such authorities as an adopted local comprehensive plan, local land development regulations, or a credible appraisal which relies at least in parr on nonex/sting but reasonably expected future uses.[.)~j Particularly relevant would be evidence of the owner's ability or inability to secure financing based on these documents~[7~] The comprehensive plan and land development regulations adopted by the relevant local government also would have a bearing on the suitability and compatibility issues. This alternative definition is intended to reach future land uses such as "next-in-line" acreage adjacent to developed or developing lands. This is particularly applicable when a landowner applies for approval ora use already enjoyed by neighboring landowners. But even in these eases the application of the alternative definition is not revolutionary. A landowner who could meet the test of this alternative definition probably would have a cause of action founded on reverse spot zoning denial of equal protection, or perhaps deprivation of substantive due process, based on the ar=munent that denying the requested land use would be arbitrary and capricious. Nevertheless, as w~ith situations m which the doctrine of equitable estoppel might apply, the Harris Act represents a new oppommity for compensation where only an equitable remedy previously was available. 2. ~/'ested Rights A "vested right to a specific use" under the Harris Act must be determined by applying common law principles of equitable estoppel, constitutional principles of substantive due process, or state statutory principles.[7}} These foundations for establishing vested rights are separate and independent; accordingly, rights may vest for purposes of the Harris Act under any one of these three alternative theories. a. Equitable Estoppel The estoppel doctrine is ~ounded in equity and focuses on whether it would be inequitable to allow a govemmemat eunqr to repudiate its prior conduct, j74] in one of the leading cases, the Second District Court of Appeal followed the trial court in explaining that ... the theory of estoppel amounts to nothing more than an application of the rules of fair play. One party' will not be permitted to invite another onto a welcome mat and then be permitted to snatch the mat away to the detriment of the party induced or permitted to stand thereon.[T.~] Equitable estoppel will be applied to government regulation of land use ifa property owner in good faith, while relying upon some act or omission of government, has made ~ substantial change in position or has incurred extensive obligations and expenses, so that it would be inequitable and unjust to destroy the acquired right, j75} Each of these vesting criteria has recmved v~luable judicial interpretation and application, J77] and the Legislature relied on these cases in establishing an equitable estoppel basis for vesting.~7_8~] The remedy provided by the doctrine of equitable estoppel is to bar the governmental entity from interfering with the owner's rights acquired by x4rtue of his reliance on the prior governmental action.[~.?] In other words, the owner gets to complete the authorized activity. Compensation is not a remedy, r~)gj Therefore, by providing equitable estoppel as one basis for acquiring rights which may be a basis for a Harris Act claim, the Legislature in effect has added compensation as a remedy for the landowner in a certain category of equitable estoppel cases. b. Substantive Due Process Rights also may vest for purposes of the Hams Act by applying principles of substantive due process.[~8}} This provision enables the judiciary m craft a constitutionally based vesting test that is separate from takings theories or remedies and distract from equitable estoppel. J82] Tree to its substantive due process roots, this vesting standard could focus on whether an owner has acquired a constitutionally protected property interest that should not be diminished or fi.ustrated by government action.~)~! In some instances, the protected interest could be established by applying and satisfying estoppel principles, but the new. test should go further.[8~] The linchpin for establishing substantive due process vesting could be the existence of reasonable, investment- backed expectations in a particular use.[8_5_~ This approach draws fi.om a judicially crafted concept which courts have used to analyze both takings and Fourteenth Amendment vested rights clatms.[$_6] In addition, it parallels the statutory test for determining ~vhether property is inordinately burdened.[~..7.] This test ~vould mean an Inordinate burden need not be found if vested fights exist based on investment-backed expectations. A determination of whether vested rights exist is only the first step in evaluating a Hams Act claim; determining whether the governmental action inordinately burdens those rights is the next. An inordinate burden may be found only ifa restrictive govemmem action results in an owner's permanent inability to attain reasonable, investment-backed expectations in a vested right.j88_] Thus, relying upon the concept of reasonable, investment- backed expectations both to estabhsh a vested right and to determine whether the governmental action constitutes an inordinate burden is not a tautology. Vested rights founded on substantive due process could extend protection to situations which might not be covered by estoppel. Consider, for example, multiple-phase or multiple-use projects for which only a conceptual or master plan and a firsl phase or initial use have been approved when government imposes ne~v regulatory restrmnts. If an owner can establish a property interest founded on reasonable, investment-backed expectations in completing the enure project and alt uses, the interest may vest for pm-poses of the Harris Act under this substantive due process theory.[~8~9~ By contrast, if applying the doctrine of equitable estoppel, which focuses on an owner's reliance and change of position on a specific governmental action, in certain circumstances, only the approved first phase or initial use may be vested for Hams Act purposes.[Q2~] c. Statutory Vesting The Harris Act protects rights vested by virtue of Iegislative enactments. A variety of statutes create such rights. Among them are vested rights prowsions in the Local Government Comprehensive Planning and Land Development Regulation Act,[~_i.] the Florida Environmental Land and Water Management Act, r~9_~] the statute creating the surface water management regulatory program,[93~] and the statute creating the coastal construction control line program, j94} Local g0vemment vesting prowsions, on the other hand, are not addressed under this provision and therefore are not a basis for a Hams Act claim. However, a local govemmem vesting ordinance should be a basis for a Harris Act cla/m if it fairly implements a particular state statute. For example, local government comprehensive plan policies a~d land development reguiadons which implement sect{on 163.3167(8), ~lori~a Statae& by defining "a final local development order" or by establishin8 when devetopmem "is continuing in good faith" should be covered by this theory. [9¢] Local government plan policies or development regulations which codify equitable estoppel common law principles are not covered by the Hams Act's categorical protection of rights vested pursuant to state statute. However, as noted, owners who can satisfy common law equitable estoppel criteria will be vested under the previously discussed pan of the Act's vested rights definition. 3. Governmental Entity A "governmental entity" includes any agency of the state, any mgioual agency, any local government entity, or any other entity that independently exercises governmental authority. I_9..(_5_} It does not matter whether the governmental entity was created by the Florida Constitution[?_,] or by general or special law. The United States and its various agencies do not fall within this defmition; thus their actions are not subject to relief under the Harris Act. 4. Action of a Governmental Entity The term "action of agovemmental entity" means a specific action which affects real property, f~_Sj It expressly includes action by the governmental entity on un application for development approval or other penmt,[~_~] but it is intended to go beyond that to other actions which adversely affect the ability of a landowner to use the land. II00] The governmental action must have "directly restricted or limited the use" of the owner's land.[_L0 i_1 This requirement should be interpreted to mean that an action's effect is "[i]n a direct way without anything intervening; not by secondary, but by direct, means."[[.~] A governmental action which indirectly burdened or inadvertently devalued an owner's land. because of regulatory decisions regarding another owner's property, would be too attenuated for relief under the Harris Act[_l.9_3_] On the other hand, the directness requirement should not be converted into a straitjacket. It should not. for example, be construed to mean that a statute, nde, ordinance, or regulation must specifically set forth in detail the precise resn-iction on a particular owners property. Such a construction would be at odds with the legislative intent that the Harris Act address grievances arising from statutes, rules, regulations, or ordinances "as applied" to private land. [.i04i Governmental inaction, that is, the decision by a governmental entity not to act, is not within the ambit of the Harris Act. 5. fnordinate Burden After demonstrating the existing use or a vested right to a specific use, a landowner must then demonstrate that the governmental action is an "inordinate burden," which entitles him to relief.[.l__0_~] In order to demonstrate an inordinate burden, the landowner must meet either one of two statutow tests. a. Expectations Not Realized Under the first test, the effect of the governmental action must satisfy three criteria.[.3_..0_5] First. the governmental action must have directly restricted or 1/mited the use of real property to the extent that the landowner is unable to realize the reasonable, investment-backed expectation of the existing use of the real property or a vested right to a specific use of the real property.[ 107} Second, the deprivation of the reasonable, investment-backed expectation must be permanent.[L~08~] Third, the deprivation must expressly be to the real property as a whole.[j.~?] b. Unreasonable Use and Unfair Burden The alternative test for demonstrating an inordinate burden is to show that, by virtue of the regulatory action, the landowner has been left with existing uses or vested fights which are so unreasonable thai the landowner permanently bears a disproportionate share of.aburden/mposed for the good of the public and which, in fairness, should be borne by the public at large.[ ti_0] This test allows the court to take remedial action when governmental action has been unreasonable or has excessively limited the uses on a landowner's property. There are limitations and exceptions with respect to when a governmental entity has inordinately burdened an owner's land. These limitations and exceptions, discussed below with similar provisions,ii ti.] will limit the circumstances in which relief wilt be available under the Hams Act. For overriding policy reasons, some governmental actions will continue to be subject only to the other constitutional and statutory remedies which are otherwise available to a landowner. [.t 1_¢.1 6. Property Owner The term "property owner" means the "person who holds legal title to the real property" which is the subject of the Harris Act claim.[ i 132 Under existing Florida law, a person may include a natural person, firm, association, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, corporation, or other group or combinatiorL ~._i 14} Any one of those then may initiate aHams Act claim~ Governmental entities expressly nOl included in this definition are thus not considered persons under the Harris Act and therefore may not bring a Hams Act claim.[j.~.5.~. The Hams Act does not expressly address the nature of the estate in land that a person must hold in order to bring a Hams Act claim, but a broad reading of the statute would reach any legal interest in land, such as an easement serving a legal interest. A person with only an equitable or other beneficial interest appears not to be authorized to bring a Hams Act claim. 7. Real Property The term "real property" means "land, and includes any appurtenances and improvements to the land" as well as any other relevant land in which the owner has a relevant interest.[!_l.._6l There are at least two significant aspects to this def'mition. First, this definition expressly includes "any other relevant real property in which the property owner had a relevant interest" it thus encompasses the entire parcel in which the owner has a legal interest Ii l 7]. This construction is supported by reading it in conjunction with the definition of "inordinate burden," which expressly requires that the existence of an inordinate burden be determined by reference "to the real property as a whole."[_l_.[~_8] Thus. the court will be required to determine--by examining othe~ relevant parcels of real property in which the owner has a relevant interest--whether the property "as a whole" has been inordinately burdened, it 19] This whole-parcel requirement reflects precedent in the context of constitutional takings.[~_~9~ Second, the term "real property" includes "any appurtenances and improvements to the land."[.t_.2J} This phrase is ~,rterned after the definition of"land" in the Florida Environmental Land and Water Management Act,[..i_g~21 but it oe--'s--~,l~r by not including customary notions of land as a limitation on the improvements and appurtenances which will be regarded as real property for purposes of the Harris Act.ii23] B. Procedure for Bringing a Civil Action The Hams Act sets forth, in detail, the procedure which a landow-aer must follow in bring/ng a claim under the statute. It is intended both to strike a balance between public and private interests and also to promote settlement short of a judicially imposed resolution of the dispute. t. Actions Prior to Filing a Civil Action PI~('iTlC;CTINICr PRIVATI~ PRCIPF[~TY R, J¢~-H ~ Before bringing a civil action under the Hams Act, the landowner must notify, the governmental entity of the claim and wait a limited period of time for a response.[!~3] This notification process is one of the procedural devices built into the Hams Act to promote settlements without resort to litigation. Conditions Precedent At least 180 days prior to filing a civil action, the landowner must present a written claim to the head of the governmental entity which has taken the action at issue.[~[~.5] The claim must be accompanied by a bona fide appraisal which demonstrates the loss in fair market value to the property.~¢_6_] This requirement is based on similar requirements in other statutes which authorize legal actions against governmental entities.[12T] R is intended to put the governmental entity on notice of its potential liability and to create an oppormmty for settlement, but--as will be seen--the requirement also gives the governmental entity a chance to improve its position in any subsequent litigation. If more than one governmental entity is involved in the governmental action or, if in the view of either the landowner or a governmental entity to whom a claim is presented, all relevant issues can be resolved only by involving more than one governmental entity, the landowner must present the claim to each governmental entity involved. Ll2 8_] Because the owner may subsequently commence a civil action only against a governmental entity which has received the claim and had a 180-day notice period,.[2?~} the Harris Act creates an incentive for an owner to bring in all governmental entities which may be liable. b, ~Vritten Offer to the Landowner During the 180-day notice period, the govemmentaI entity must make a written settlement offer to resolve the claim. A settlement offer may include 1 ) an adjustment ofdevelopmem or permit standards which control the use of the land; 2) increases or modifications in the density, intensity, or use of development areas; 3 ) transfer of development fights; 4) land swaps or exchanges; 5) mitigation, including payments instead of on-site mitigation; 6) location on the least sensitive portion of the property; 7) conditions on the mount of development or use of the land; 8) a requirement that issues be addressed more comprehensively than the use or uses immediately proposed; 9) issuance ora development order, variance, special exception, or other form of extraordinary relief; 10) public purchase of the owner's property, or acquisition of a less-than-fee-simple interest in it; or 1 t) no change to the governmental action which occasioned the claim.[ 13.0_1 This broad authority and menu of options creates an opportunity for innovation in resolving disputes with landowners, even if some of these remedial steps are not otherwise addressed by the governmental entity's underlying regulatory code. c. Acceptance and Resolution When a settlement would constitute a modification, variance, or special exception to application of an ordinance, role, or regulation, the Hams Act directs that the relief protect the public interest served by the ordinance, role, or regulation at issue and be appropriate to prevent the inordinate burden on the real property.[13 ~.] The Hams Act also delegates to each state, regional, and local governmental entity the authority to enter into a settlement which contravenes statutory requirements so long as it "protects the public interest served by the statute,. and is the appropriate relief necessary m prevent the governmental regulatow effort fi:om inordinately burdening the real property.'[j}~] In addition, the court must approve the settlement in a consent decree.[.}.}.}] The public policy issues which may come into conflict through implementation of this pre-suit settlement provision were addressed recently by the Florida Supreme Court. In Abramson v. Florida Psychological Association,Il ~4_=] the supremecourt'upheld a settlement agreement by which the Florida Depm'hnent of Business and Professional PRCITF(~TiS'~-'~T'kPATR PRf~PRRTY R I¢'~HI ,~ rnm~ , .' ~ ~ ~ Regulation agreed to the licensure of two psychologists, subject to certain conditions, even though the applicants did nor meet all statutory requimments.[j_35~ The supreme court succinctly explained the conflicting legal and policy issues in this way: "Administrative agencies have the authority to interpret the laws which they administer, but such interpretation cannot be contra~ to clear legislative intent. At the same rime, the power of a public body to settle litigation is incidental to and implied from its power to sue and be sued."[i36~ In its decision, the court declined to answer a certified question regarding the circumstances under which an agency may settle a lawsuit on terms inconsistent with its delegated legislative authority "because [the court does] not believe that a general rule can be formulated which would be applicable under all circumstances."[! ~.7] Further, the supreme court confined its ruling to the facts of the case and reiterated the litany of reasons offered by the agency as justification for the settlement, fi_}_8_] Plainly, the court was uneasy about the case. While the Abramson decision does not provide firm footing for the pre-suit settlement provision of the Harris Act, [J3~ it does provide a frame of reference for evaluating the issues raised by this provision. First, the supreme court acknowledged that the-settlement of litigation is incidental to the'authority to sue and be sued_it_t40] Second, in the best manner of case-by-case adjudication, the court focused on the justifications for this particular settlement, noting that the deviation from the statute was "minimal."[j 4_ij Third, and most ~mportuntly, the court observed that agencues may not act "contrary to clear legislative intent." This third observation presents the crux of the matter here. L142.1 The Hams Act provides clear legislative authority for a governmental enuty to make a minimal departure from a statutory requirement in a particular case where a Harris Act claim has been filed by a landowner. This express legislative direction, coupled with the implied authority to enter into settlements by virtue ora governmental entity's authority to sue or be sued[.1_4_3] and the public policy in favor of settling disputes,[j3~] provides the necessary legal basis for pre-suit settlements which include discrete deviations from statutory requirements. This grant of authority satisfies the separation of powers provision of the Florida Constitution.[ t451 In a Hams Act settlement, any departure from existing statutory requirements must "protect the public interest served by" the underlying statute, and it must provide no more than "the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property." [J4_tj These criteria constitute the "minimal standards and guidelines"~ necessary to prevent governmental entities from "acting through whim, favoritism, or unbridled discretion."[_l.~] Though general in nature, these standards are valid and adequate. The supreme court has held that the specificity of standards provided by the Legislature "may depend upon the subject matter dealt with and the degree of difficulty involved in articulating f'mite standards."[[~?] Given the complexity and technical nature of the situations which may arise under Harris Act claims and the number and diversity of the state, regional, and local governmental entities charged with implementing the measure, the Hams Act presents a situation which is "not conducive to specific, detailed instructions from the Legislature."[.[.~JO~ While genemI, these standards nevertheless "are susceptible of legal interpretation based upon the facts of a given case."[252] Accordingly, they satisfy the requirements of the nondelegation doctrine. Even if the statutory standards are deemed inadequate for separation of powers purposes, the courts have recognized an exception to the nondelegation doctrine which would apply. This exception applies when the statutory delegation involves exercise of the police power to regulate a business operated us a privilege rather than a right. I! 52] In such situations, it is no~ essential that the statute include a specific standard for the exercise of discretion. Instead, the governmental action is limited by a standard of reasonableness.[ The regulated activities being addressed under the Hams Act fall within that exception. In Apatachee Regional Planning Council v. Brown,~_5_~_] the First District Court of Appeal applied this exception to fee-setting for review of developments of regional impact (DRIs) because the DRI law "serves as a control of the privileges of land development which is potentially dangerous to the citizens of more than one county."[~._57] The court characterized the DR/process as a dynamic one, reqmring "a large degree of flexibility and expertise due to a myriad of PI~(qTGiCiTINIC~ P~IVATP PI~C~PPt~T¥ i~ It{Hq N variables, [_~6i which make precise statutoty standards tin,realistic.-I57i Similarly, the regulated activities addressed by the Hams Act involve land development. Governmental entities,/n their adherence to the Hams Act, will be faced with a wide range of issues regarding the application of many statutory measures to many owners. The "complexity and needed flexibility inherent in the [regulation of tand development] as it applies to individual applicants is too pronounced to be practicably placed within the scope of legislative responsibility."[ !58] Therefore, in implementing the pre-suit settlement provisions of the Hams Act, governmental entities would be subject to a role of reasonableness in the absence of valid mimmal standards and =m. fidelines. Of course, there are legal obstacles to be negotiated along the path of pre-suit settlement. For example, any settlement must be structured to avoid claims of contract zomng.~?] It also must accord all interested parties a modicum of procedural due process, especially in situations which do not require judicial review. I!50] While this provision ts an tmportant remedy under the Harris Act, it is distinct from the judicial remedy provided elsewhere tn the statute and constitutes a separam means for achieving resolution of land use disputes. II61] As a practical matter, the situations in which these aspects of the pre-suit settlement provision will be implicated will be rare precisely because one of the standards is that the settlement "protect the'public interest served by" the ,statute, role, regulation, or ordinance at issue in the Harris Act claim.[!..6_2~ While this provision is intended to open new options for creative problem solving, this standard will constrain govervanental entities in settling Harris Act claims. d. Ripeness Decision Also during the 180-day notice period, unless the landowner accepts the settlement offer, the governmental entity must provide the landowner with a ~witten "ripeness decision."[..[5:~] The Hams Act does not prescribe the form or specific contents of the ripeness deciston, but it sets forth the general requirement that the ripeness decision 'identif [y] the allowable uses to which the subject property may be put" under the applicable regulations of the issmng governmental entity.[L64] The ripeness decision is intended to permit the landovmer to go directly to circuit court after the expiration of the 180-day notice period, rather than having to pursue other administrative remedies. [165] This procedural device was deemed an essential feature of the Hams Act because the issue of ripeness goes to whether the court has subject matter jurisdiction to hear a claim and, in the takings context, has become a major source of frustration for landowners. [ Under the prudential doctrine of ripeness in the land use setting, compensation claims are not within the court's subject matter jurisdiction until the govemmemal "authority has determined the nature and extent of the development that will be permitted" on the subject property.[!._6.Z] The drafters of the Harris Act concluded that, for an owner to have a meaningful judicial remedy under the Act if a settlement were not reached during the 180-day notice period, the kssue of ripeness should not be allowed to impede the ownefs subsequent request for judicial relief.[!6~81 Thus, the drafters came up with the requirement for a ripeness decision.[!g9] The requirements that the governmental entity make a settlement offer and identify the uses to which property may be put is intended to change the way regulators deal with land use issues. The Act is intended to shift the focus from whether a proposed use is allowable to what uses are allowable. In this regard, regulators may seek options in a more cooperative way, which could accommodate an owner's wishes while achieving the public policy obJectives of underlying stattrtes, rules, ordinances, or regulations applied to the owner's real property.[17~.] 2. Commencement and Conduct ora Civil Action If the governmental entity does not make a bona fide offer to settle the issue, or if the landowner rejects the settlement offer and ripeness decision, the landowner may file a claim in circuit court 180 da~vs after filing the written claim. [ i)~.3f[ The court will decide whether the landowner ~s enUtled to compensat~on,[3.~.~j and, if so. a jury will decide the amount. a. durisdiction and Venue The Harris Act specifies that the claim must be brought in circuit court, and there is no minimum jurisdictional amount.[[~.3'[ Venue for this proceeding is the county where the real property is located. I_(7_5] b. domder The landowner must serve the complaint on the head of each governmental entity making a settlement offer and ripeness decision.[~l 7{~] This provision contemplates that each governmental entity whose actions contributed to the alleged inordinate burden Md received a copy of the claim during the notice period, either by election of the landowner or at the instigation of a governmental entity. [3_TT] c. Determination of lnordinate Burden In the action, the court first must determine whether there has been an existing use or a vested right to a specific use of the real property. Second, the court must determine whether an existing use or vested right has been "inordinately burdened" by the governmental action, j378} In determining whether the governmental action constitutes an inordinate burden, the court must consider and apply the standards set forth in the Harris Act as well as the governmental entity's settlement offer and ripeness decision. [179_! A governmental entity may avail itself of the opportunity to put its last, best offer forward in the settlement offer and ripeness decision. This is intended to allow the governmental entity to relieve an inordinate burden and perhaps avoid litigation. If litigation ensues, it affords the governmental entity mn oppormmty to present the court with an offer perhaps more reasonable than the initial governmental action. Accordingly, the determination to be made by the court, in effect, is whether the last, best offer by the governmental entity, if accepted, would constitute an inordinate burden. If the actions of more than one governmental entity are at issue, and the entities are parties to the proceeding, the court must apportion responsibility among them. Il_8__0} Significantly, the apportionment must occur before the valuation issue is addressed.[kS! [ The Harris Act expressly provides that the apportionment must not be on a Pro Rata basis, but rather on the basis of"the percentage of responsibility each such governmental entity bears with respect to the inordinate burden."[ ct. Interlocutory Appeal Before the issue is submitted to the jury for an award of compensanon, a governmental entity may take an interlocutory appeal of the court's determination that there has been an inordinate burden.£.l.__8)_] The circuit court may slay the proceedings during the pendency of the interlocutory appeal, but the statute expressly provides that a stay ~s not automatic upon the filing of an interlocutory appeal.[~ 84~ If the governmental entity prevails in the interlocutory appeal, then the action is at an end, and the landowner must pay the governmental entity's attorney's fees and costs under conditions specified by the statute.[3~ If the governmental entity does not prevail in the interlocutory appeal, the circuit court is directed to award the landowner his attorneys fees and costs incurred in the interlocutory appeal, tf~_65t In addition, the landowner will receive prejudgment interest on his compensation for the period of delay occasioned by the interlocutory appeal. II. 87] e. Attorney's Fees and Costs A~om~Vs ~ees ~d costs ar~ recoverable ~om ~e ~ove~e~ e~ti~ ff~ l~o~e~ prewib o~ ~e l~abili~ issu~o ~et~ i~ ~ ~st phase ofth~ proceedin~ ur o~ ~pp~L if~ cireai~ co~ ~ds ~e ~e~ml en~ thd not m~e a Bona Fide offer which would have resolved ~e lando~efs claim during ~e 180-~y notice period. ~ong o~er ~ings, tbs sm~d reqffires the circmt co~ to dete~ine whether ~e gove~ental entiW acted in good f~ in making ks seffiement offer.[~:~Q] However, the co~ is not required m ev~mte ~e te~s of~e ~Rlement offer ~om the p~s~tive of ~e l~do~er or o~e~se_[ [~)~ If more th~ one govemenmI entiW is responsible for ~e inor~nate b~den, the aw~d~ a~omey's fees ~d costs shall be appo~ed among ~em on ~e basis of their percentage of respomibfliW for ~e ~or~mte b~den.[j~2.l This promsion does not address the prospect that the landowner would prevail after rejecting a Bona Fide settlement offer; in that situation, the landowner would have to pay his own attorney's fees and costs, unless there was another basis for an award by the court. L~ 9_~] If the governmental entity prevails on the liability ~ssue in the first phase of the proceeding or through an appeal, it may recover attorney% fees and costs from the landowner.[_I__9.}] In that situation, the Harris Act specifies that the governmental entity or entities shall receive attome?s fees and costs if the property owner did not accept a bona fide settlement offer, including the ripeness decision, which reasonably would have resolved the claim fairly to the property owner if the settlement offer had been accepted by the property owner, based upon the knowledge available to the governmental entity or entities and the property owner during the tS0-daymotice period.[~94] In this circumstance, the court must determine whether the governmental entity acted in good faith in making its settlement offer.[19~l However, unlike the situation when the landowner prevails, when determining an award of attorney's fees and costs after the governmental entity has prevailed, the circuit court also must determine whether the settlement offer "reasonably would have resolved the claim fairly to the property owner."[[~_6j In other words, it must evaluate the terms of the settlement offer. In doing so, it may utilize only information available to both parties during the 180-day notice period;[ 197_] thus, new information developed by the governmental entity or landowner for purposes of the litigation may not be utilized by the court to evaluate the terms of the settlement offer for purposes of determining an award of attorney's fees and costs. The Hams Act does not authorize an award of attorney's fees and costs to a prevailing governmental entity if it did not make its settlement offer in good faith or if it offered, on the basis of information then available, setflemem terms which would not have fairly resolved the matter. [?_8_] In those circumstances, the governmental entity w/ll absorb its own attorney's fees and costs. These provisions increase the importance of the decisions made by the parties during the 180-day notice period; they create powerful incentives for the governmental entity to make a fair settlement offer and for the landowner to take it. Because of the higda cost of litigation, both landowning and govermnental clients will be more likely To engage in a dispassionate analysis ora Hams Act claim. f. Determination of Compensation If the court determines that the governmental action has inordinately burdened the landowner's property, it must impanel a jury for the second phase of this bifurcated proceeding.[ i 9_2] The jury must determine the compensation m be awarded to the landowner.[~Og] The Hams Act prescribes the measure of the landowner's damages as follows: The award of compensation shall be determined by calculating the difference in the fair market value of the real property., as ir existed at the time of the governmental action at issue, as though the owner had the ability to attain_the reasonable investment-backed expectation or was not lef~ with uses that are unreasonable, whichever the case may be, and the fair market value of the real property, as it existed at the time of the governmental action at issue, as inordinately burdened, considering the settlement offer together with the ripeness decision, of the governmental entity or entities.[¢.Q.l ] In fixing compensation, the jmy may not consider any business damages suffered by the landowner; however, the Hams Act requires a reasonable award of prejudgment interest from the date the claim was presented for purposes ofimtiating the 180-day notice period.[20~ Because the Ha~s Act requires the award of compensation to take into account the settlement offer and ripeness decision,[~_0~} compensation is not necessarily calculated on the basis of the governmental entity's original action, but rather with respec~ to the. last, best offer of the governmental enfity.-gk~_'4_ ] Thus, the landowners appraisal utilized at the outset of the 180-day notice period will not necessarily address all the issues which the jury will weigh in determimng compensatior~ 3. Final Judgment The Hams Act contemplates that any determination and valuation issues wilt be concluded in a final judgment entered by the court.j20_ .5.] The court is given specific responsibilities to ensure that both the governmental entity and the landowner receive their intended benefits. a. Court's Authority To Grant Relief n r The court may enter any orde s necessary to effectuate the purposes of' the Harris Act and has broad authority to make final determinations to effectuate the relief available under the Hams Act.[20_~. This authority ts important for the resolution of litigated claims, implementation of pre-suit settlements, and upholding any pre-suit settlements against collateral attacks. b. Rights Acquired by the Governmental Entity By operation of law, the government entity which pays the compensation receives the tight, title, and interest in dghts of use for which compensation is paick [~08_] The governmental entity may ho!d, sell, or otherwise dispose of these development righis.[¢~ When the court has awarded compensation, it will determine the form and recipiem of the rights and the terms of their acquisition.[~_l_Ql C. Limitations and Exceptions The seemingly broad sweep of the Harris Act is dec.eptive because the new judicial remedy is subject to limitations and exceptions which will curtail its use in practice. 1. As-Applied Challenges Only' The Hams Act authorizes compensation only for as-applied challenges ro govemmental actions. This limitation can been seen in several provisions.[2}~ For example, the statement of legislative intent makes clear that the Harris Act prov/des compensation "when a new law, nde, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property."[21~] Accordingly, the Harris Act may not be used to bring a facial challenge to a statute, role, regulation, or ordinance: the governmental entity must sl~ecificalty apply the statute, nde, regulation, or ordinance to the owners property in pt~CIT'GC'TI-NI(3 PRIVATlz' PR(]PaI~'FY R I(iH IN order for the owner to have a Harris Act claim. As discussed in the working group which drafted the legislatiom there are many examples of govemmentaI action which may restrict or limit existing uses or a vested right to a specific use and therefore provide a basis for Harris Act relief. These include downzoning, application of a new coastal construcUon control line to restrict development, imposition of upland preservation requirements to protect wildlife habitats, and land use restrictions m protect wellfields. 2. Federal Programs The Hams Act does not apply to actions by any governmental entity otherwise covered when ~t is exercising the powers of the United States or its agencies through a formal federal delegation..[~_I }] Accordingly, actions by the Florida Department ofEavironmental Protectionbased on implementation of portions of the federally delegated National Pollutant Discharge Elimination System iNPDES) program are not subject to relief under the Harris Act. ~_I_,-4_} If the federal government delegates the authority to administer the sectton 404 wetlands permitting program to the states,[2~] state action under this permitting program arguably would be exempt fi:om Harris Act claims. 3. Temporary Impacts Under the Act, temporary impacts to land do not constitute an inordinate burden for which the governmental entity must provide compensation to the owner.[2._t_6} Therefore, the adverse effects of a valid, time-limited moratorium would not be actionable under the Harris Act. This excepuon also creates an oppommiry for a governmental entity to avoid paying the owner compensation for an action which constitutes an inordinate burden, so long as the burden is promptly removed from the owner's property. Of course, if the burden amounted to a taking under constitutional standards, the governmental entity would still be required to compensate the owner, lC !_7..] 4. Public Nuisances at Common Law and Noxious Uses An inordinate burden does not include impacts to real property which result from "governmental abatement, prohibition, prevention, or remediation of a public nuisance at common law or a noxious use of private property."[i~_l_.~j This exception is one of the principal provisions intended to ensure that the Harris Act does not bring an end to Florida's efforts to protect its environment and manage ~ts growth. Because the exception is couched in elastic terms, ~ts scope will be the subject of continuing discussion and litigation. The portion of the exception grounded on public nuisance is dynamic because the common law is "not a fixed body of well-defined rules embodied in the written records of this or the mother country, but is rather a method ofjaristic thought or manner of treating legal questions worked out fi:om time to time by the wisdom of mankinck"[~ (~.] As the Florida Supreme Court has opined with respect to the common law, "its ever present fluidity enables it to meet and adjust itself to shifting conditions and new demands."[~(~] Thus, this is not a static exception embracing only those public nuisances at common law as of the effective date of the Hams Act, but rather an exception for those activities which are now or will come to be understood in the future as public nuisances.[2}~}.] A public nuisance is an unreasonable interference with a right common to the general public.[~g2] A public nuisance "violates public rights, subverts public order, decency, or morals, or causes inconvenience or damage to the public generally."[2~_2._3J By conwast, private nuisances are torts that involve the invasion of an interest in the private use or enjoyment of land, whether intentional or not. l}2_4] Thus, this exceptmn to the Hams Act may be invoked if the activity which is the subject of the governmental actmn violates a right or interest of the general public. [~5] A "noxious use of private property" is one which does not necessarily rise to the level ora public nuisance, although PRNTI~(TT'FNG PRfVAT~ PR()PRRTY RI{~H'I 51 cace ~^ ~r it bas the potential to inflict injury upon the community. It has commonly been used to describe odiferous activities which may constitute a public nuisance,~226~l as well as activities akin to private nuisances. [227] And, of course, it was used in early takings cases to describe land uses whose proscription was not compensable under some circumstances.[~._2_8.1 Taken together, these terms and the case law which has given them meaning do not establish a clearly defined exception. Instead, they provide commonly accepted guideposts for determining land uses and activities which may be subjected to an inordinate burden without compensation under the Harris Act. 5. Relief Under the Harris Act Impacts to real property caused by governmental action to grant relief under the Hams Act do not constitute an inordinate burden on another landowner's property. [2.~_9_} This exception is intended to encourage governmental entities m grant relief to a landowner without concern that doing so will result in a Hams Act claim by another landowner who contends the relief granted to the first landowner amounts to an niordinate burden on the second landowner's property. 6. Mediation and Alternative Dispute Resolution The Hams Act expressly provides that it is not intended to supplant or preclude any form of alternative dispute resolution (ADR) that may be agreed to by the part/es and is lawfully available for resolution ora claim. [2}_0] For example, arbitration, mediation, and other alternatives to litigation are still available, and "governmental entities are encouraged to utilize such methods to augment or facilitate" the availability of relief under the Hams Act.[2¢~3 !] The most logical oppornmities for doing so would be during the 180-day notice period. Z Transportation The Hams Act does not apply m governmental actions which involve operating, maintaining, or expanding transportation facilities. [.?__32.] Furthermore, the Act does not affect existing law regarding eminent domain relating to rranspertation.[~_3] The Florida Statutes define "transportation facility" as "any means for the transportation of people and property from place to place which is constructed, operated, or maintained in whole or in part from public funds."[~2~ The statutes have also defined it as "the property or property rights, both real and personal, of a type used for the establishment of public transportation systems which have heretofore been, or may hereafter be, established by pubhc bodies for the transportation of people and property from place to place."[_235_] Accordingly, aside from not disturbing the law of eminent domain as it relates to public acquisition of right-of-way for a highway, the Hams Act would not apply to such governmental actions as the grant or denial of access perrmrs m state roads under the State Highway System Access Management Act.~363 Depending upon the circumstances, similar regulatory actions by local governments could be exempt from Hams Act claims. 8. Statute of Limitations In order for a subsequent cause of action to be brought in circuit court, a claim must be presented to the governmental entity within one year after the new statute, rule, ordinance, or regulation is applied to the landowner's property.[~_3~ If a landowner elects to take advantage of lawfully available administrative or judicial remedies prior to seeking rehef under the Harris Act, the time for bnngmg the Hams Act claim is tolled until the conclusion of those other proceedings. [2_3._8_] 9. Sovereign Immunity pR C~TFCTINICr pRt'VATI~ PROPER TY 1~ I¢$t4Tg ~'~a , ¥ ~r Under the doc~ne of sovereign immunity, the state, its agencies, and its political subdivisions may not be sued absent a waiver of the doctrine by samte or constitutional amendment [237.} A waiver must be clear, specific, anti unambiguous, j3_!0] The Harris Act expressly authorizes lawsuits against governmental entities[£4 !i arid thus constitutes a limited waiver of sovereign immunity. The Harris Act provides that it is not intended to affect the sovereign immunity of guyemment_[~.~l This provismn should be construed as meaning only that, by enactment of the Harris Act, the Legislature has not waived or othemase affected the doctrine of sovereign immunity except to the extent that the Hams Act authorizes claims to be brought against the state, its agencies, and its political subdivisions. This provision should not be construed to impose additional statutory requirements beyond those in the Harris Act. 10. Grandfathering Finally, and most significantly, the Harris Act is strictly a forward-looking measure, j243} with an effective date of October 1, 1995.[Z'4_-4_] It applies only to specific actions of a governmental entity based on a statute enacted after the final adjournment of the Legislature on May ! 1, 1995,[245] or a role, regulation, or ordinance adopted after that date. Governmental actior~s based on a statute enacted before that date, or a nile, regulation, or ordinance adopted before Ihat date, or one formally noticed for adoption before.that date are not sub}ect to claims under the Harris Act. An action based on a subsequent amendment m a grandfathered statute, rule, regulation, or ordinance may be a basis for a Hams Act claim, but "only to the extent that the application of the amendatory language ~mposes an inordinate burden apart from" the grandfathered statute, rule, ordinance, or regulation. [~4_71 This provision provides perhaps the most significant and, for landowners, the most controversial limitation regarding the availability of this new remedy. It is intended to prevent application of the Hams Act to governmental actions based on environmental protection and growth management programs which predate May 11, 1995, on the ground that they were put into place by government agencies in the expectation that landowners would be owed compensation for adverse regulatory decisions only if those decisions rose to the level of a constitutional taking. TM more problematic aspect of this exception is the limitation which authorizes compensation awards on the basis of post-May 11, 1995 amendments to pre-May 11, t995 statutes, rules, regnLations, or ordinances, i~4_ 9_] Applying this provision in practice is likely to prove difficult. D. Intent and Construction In light of the unique purposes and intent of the Harris Act, a court should not necessarily conswae it using the case law regarding takings claims under the United States and Horida constitutions if the governmental action does not rise to the level of a taking,L2.,_5._(}] In addition, the Harris Act is distinct from section 2 of the legislation, which establishes a nonjudicial settlement and expedited heating procedure.[~51 ] The two are not necessarily to be construed in pari materia [252] E. Summary The Harris Act creates a new judicial remedy for landowners that, in some respects, bears a striking resemblance to existing remedies under the law of takings. Each case will be an ad hoc, fact-intensive inquiry to determine whether a particular governmental action intrudes too far into the landowner's domain. When it does, compensation will be due. In all likelihood, however, the chief effect of the Harris Act will not be an explosion of litigation or a rash of damage awards. Rather, it will produce a sense of caution on the part of the regulators who ar~ entrusted With responsibility of protecting Florida's environment and managing ~ts growth. That was the intention of the new laws legislative spunsors.[Z~!] Already there is evidence that the Harris Act has had that effect, both among state agcn¢ies[~4] and local guvermments.~2~] The Harris Act was not intended to chill all new regulation, but careful consideration should b~ given to whether the Harris Act is implicated in proposed govermmental actions. In a period of public skepticism about government action, such consideration ought to help restore confidence in Florida's regulatory system. IV. FLORIDA LAND USE ANT) Elx~tRONMENq'AL DISPUTE RESOLUTION ACT Section 2 of the 1995 property rights legislation is the Florida Land Use and Environmental Dispute Resolution Act (Special Master Law).[256] The Special Master Law attempts to resolve growth management and environmental permitting disputes at the state, regional, and local levels by establishing an informal, nonjudicial settlement and expedited heating procedure overseen by a neutral third party..[:~._57] The Special Master Law provides a landowner with an oppommity for negotiated relief and an impartial advisory hearing in disputes involving adverse consequences from a decision on a "development order~ or an "enforcement action" by a "governmental entity."[2_58_] This new procedure integrates aspects of other ADR processes together into a new form of proceeding. The Special Master Law is based on the 1993 recommendations of the Governor's Property Rights Study Commission I1126_01 and typifies the increasing reliance on ADR techniques to address controversies involving land use and environmental regulatior~[251.] Unlike the Hams Act, the Special Master Law may be invoked in disputes arising from decisions based on statutes, roles, ordinances, or regulations predating May 11, 1995.[._2.~2.] A. Definitions As with the Harris Act, the Special Master Lards definitions for particular terms are crucial for anderstanding the scope of this measure. Again, however, the two measures are intended to be interpreted and applied by their own terms and are not necessarily to be conswaed in pari materia. 1. Development Order A "development order" means any order or notice of proposed agency action which grants, grants with conditions, or denies an application for a "development permit."[~6_4_] Rezoning of a specific parcel of land is expressly included; however, actions by state agencies and local governments relating to comprehensive plan amendments are excluded. [_2__6~1 2. Development Permu A "development permit" means any "building permit, zoning permit, subdivision approval, certification, special exception, variance," or other action of local government, as well as any permit under state law which authorizes the development of real property. L2_6_6] This definition is based upon the definition of the same term in section 163.3164 (8), Florida Statures, but is expanded to include permits issued by state and regional agencies.[~.5~] 3. Development The Special Master Law does not define the term "development." Therefore, the defimtion of development set forth in section 380.04, Florida Statutes, should be applied in this context.[~_6..8_] However, for two reasons the exclusions from that definition should not be applied in the contex~ of the Special Master Law.[26~91 First, the exceptions are expressly intended to apply "for [the] purpose of this chapter," meaning Chapter 380, Florida Statutes.[~7_O.] Second, the Legislature intended the Special Master Law to serve a remedial purpose and be liberally construed to that end. [271;! pR CyFF~OTiI~T~ pR 1FV A TFL pR i~p FL R T ¥ R tj~-H t ~ 4. Owner An "owner" means a person with a legal or equitable interest in real property who flied an application for a developmen[ perrnit and received a development order.[57.g] It also means one who holds legal or equitable title to real property which is the subject of an enforcement acuon.[2_7~] A person may include a natural person, firm, association, joint venture, partnership, estate, mkst~ business trust, syndicate, fiduciary, corporation, or other group or combination. [.22~] Unlike the Harris Act, the definition of"owner" in the Special Master Law expressly includes a person with an equitable, as opposed to a legal, interest in lan&j275] Furthermore, governmental entities are not expressly excluded. Accordingly, a school board could request a spec/al master proceeding on a land use decision by a local government with regulatory authority over land. 5. Governmental Entity The Special Master Law does not include the United States or any federal agency as a "governmental entity.'~[276_} Therefore, a landowner cannot request a special master proceeding from a federal agency such as the U.S. ,.Environmental Protection Agency. On the other hand. unlike the Hams Act, the Special Master Law does not expressly carve out an exception for actions by stare, re~onal, or local governmental entities when acting under a formal delegation of federal powers.~]__TJ 6. Land or Real Property The term "land" or "real property" means land and "includes any appurtenances and improvemems to the land, including any other relevant real property in which the owner had a relevant interest."[~7~] This defimtion is identical to the Harris Act's definition;[~?] however, it is broader in scope because the definition of owner in the Special Master Law reaches both legal and equitable interests in land.[~SQi Therefore, the definition of land in the Special Master Law should be interpreted to encompass the owner's enure property, meamng relevant land in which the owner has either a legal or equitable interest, and any structure or improvement on the land, regardless of whether it customarily would be regarded as part of the real property. 7. Enforcement Action The Special Master Law does not define the term "enforcemem action," but the definition should encompass actions by state, regional, and local government agencies to enforce environmental protection and growth management laws as well as the terms of individual developmem orders. Because, as a matter of law, the definition of"governmental entity" does not exclude state, regional, or local govermnuntal enuties exercising federally delegated authority,[~_8]] an action by a state, regional, or local agency enforcing a federally delegated program could be the basis for a special master proceeding. 8. Unreasonable or Unfairly Burdens' Unlike the Harris Act, which provides an ample, if flexible, defmition for the operative legal standard,[3__8~] the Special Master Law does not define the term "nnreasonable or unfairly burdens" which must be applied by the special master to determine a landowner's ri*~ts.[28_)] Deliberately opting to omit a definition of the term, the drafters chose to rely on the common sense judgment of the special master selected by the parties themselves. The Special Master Law does identify factors the special master may use to determine whether a development order or an enforcement action is unreasonable or unfairly burdens an owner's property.i}_84} These factors are 1) the history of the property; 2) the history of development and use of the property; 3) the history of land use and enwronmentat controls on the property; 4) the present nature and extent of the propemr., 5) the reasonable expecmtio~ of the owner: 8) the public purpose to be achieved by the developm~m order or enforcemem action at issue; 7) the uses authorized for and res~ricnons imposed on s~miNr propers; and 8) any additiorml relevant inform~tion.[2_8.~] In the event a settlement is not voluntarily reached by the pames, the special master may consider the above factors when deterrmning whether a development order or enforcement action is unreasonable or unfairly burdensome. [~5} Such a determination will necessarily require a balancing process. B. Initiation of Proceeding A landowner who believes a development order or enforcement action is unreasonable or unfairly burdensome may apply for relief under the Special Master Law. j287] 1. Conditions Precedent Prior to requesting relief from a local government development order, the landowner must exhaust all [oeal administrative appeals so long as they do not take longer than four months.[~882 If the local administrative appeal takes longer than four months, the landowner may aPPly for relief four months after commencement whether or not the local administrative appeal has been concluded.~.8_~] 2. Request for Relief In order to commence a special master proceeding, the statute requires that the landowner file a request for relief with the appropriate governmental entity.~9_0_] The filing is intended to be a simple action without the trappings of most legal proceedings. a. Filing the Request The owner must file a written request for relief with the appointed or elected head of the governmental entity.[~_9 !.] The request must be filed within thirty days after receipt of the development order or notice of the governmental action at issue..[~9~2_] No filing fee may be charged, and the governmental entity is required to participate in the proceeding if one is requested.[~9-3_] b. Contents of Request The Special Master Law specifies the bare-bones information which must be included in the request.[~_9.~] This information includes 1) a brief statement of the owners proposed use of his land; 2) a summary of the development order or description of the enforcement action, including a copy of the development order or documentation of the enforeement action, such as a notice of violation; 3) a brief statement of the impact of the development order or enforcement action "on the ability of the owner to achieve the proposed use of the property"; and 4) a certification showing on whom cop~es of the request have been served.[_~_95] Although the statute does not require it, sound practice would include submitting a copy of the development permit application, if one exists, with the request for relief. Furthermore, an owner would be well-served by submitting carefully selected information showing how the governmental action is unreasonable or unfairly burdens the property. c. Effect of Request for Relief Imtiation of a special master proceeding tolls the time to seek judicial review of local development orders and enforcement actions.[296J This filing also tolls the time m seek an administrative hearing under section 120.57, Florida Statutes, for those agency actions subject to the Administrative Procedure Act.[2~7_] As a consequence, pRC~T~CTINICt PR I VA'Ft~, PN( )PP, I< I Y I< lltH I:~ rau: /.~ ~li · L __ entities should amend their ordinances and rules regarding the availability of such judicial and administrative relief to indicate the effect of a request for relief under the Special Master Law. 3. Waiver of Rights In any proceeding involving a developmem order or enforcement action, initiation of judicial review by a landowner will waive all rights under the Special Master Law.[¢9.~} A landowner's petition for an administrative proceeding pursuant to section 120.57, Florida Statutes, whether formal or informal, also waives the landowner's righis under the Special Master Law.[}?.~_] In either circumstance, however, another party to the development order or enforcement action proceeding could request judicial review or a section t20.57 proceeding without foreclosing the oppommiw for the landowner to request reu~"-~ mt~' ~-* theu~ S'"~°ial~ Master Law.~:__,...[300~ Althou~ perhaps counter-intuitive and certainly unusual, such a situanon would be within the legislative intent to provide this form of relief for landowners. 4. Parties and Participants The Special Master Law sets up two categories of those who may present their interests for consideration in a special master proceeding. They are "parties" and "participants. a. Parties The parties to the proceeding include the landowner and the governmental entity.[}_0~.] The landowner may name more than one governmental entity in the request for relief if the burden is the result of multiple development orders.[3_0..~] The special master may jo~n additional governmental entities as pames to the proceeding at the request of the landowner or the governmental entity, if the action at issue is the culmination of a process involving more than one governmental entity or if it is necessa~ for a complete understanding of the issues.[~0_24] A governmental entity joined to the proceeding by the special master must participate in both the mediation and the hearing, if one is held. [}._0_5} A governmental entity joined to the proceeding by the special master must also file a response to the landowner's request for relief.[3_0_6~ b. Participants Others may participate in the proceeding within limited bounds.[3~_7} The governmental entity must forward a copy of the landowner's request to the owners of contiguous real property and certain persous who participated in proceedings leading up m the development order or the enforcement action.[30}] These persons may request stares as participants at the hearing, if one is held, within twenty-one days of receiving a copy of the request. L3_09] In order to be accepted as a participant, such a person must demonstrate that he is "substantially affected" by the subject matter of the proceeding. [3__l_0j The special master ultimately must determine whether a prospective parficipan~ satisfies this statutory reqmrement.[}.)_!.l Such persons will not be classified as parties or intervenors if accepted into the proceeding. Ii_t_2] As a result, they may address only issues regarding alternatives to the developmem order or enforee .nient action as the alternatives m~ght affect the persons substantial mterests.[~ 5. Selection of Special Master The first and most impommt step after submission of the request for relief is the selection of the special master. The statute sets forth several requirements which must be met but leaves important questions unaddressed. Jointly Selected Within ten days of receiving a request for a special master proceeding, the governmental entity must agree with the landowner on the special master who will conduct the proceeding.[~.!5] The Special Master Law does not provide guidance on how the parties are to select a special master or from what pool of candidates. The working group which prepared the legislation concluded that it was better to leave these decisions to each governmental entiw and landowner. In addition, the Special Master Law does not contain a default procedure for selection of a special master if the parties cannot agree. Fommately, the Special Master Law is flexible enough to allow the parties to agree on a default procedure.[~.~!.} b. Qualifications The statute sets forth only minimal qualifications for service as a special master, iS_.[7] Qualifications include being a Flat/da resid ~ossessimz both experience and expertise in mediation.[~ ~.8_] In a6dition, one must possess ......... ent and .~, --- . . . both experience and e~pert/se in at least one of the following disciplines: "land use and enwr_onmenta! p.enm.ttlng, land planning, land economics, local and state government organization and powers, and the law govermng the same. "[3__19] 6. Response to Written Claim The governmental entity is required to file a response to the request setting forth the public purpose ofthe regulations on which the development order or enforcement acuon is based.[}g0} A response may include a request to be dropped from the proceeding.[}~.}] The special master has authority to decide such a request.[}.}~.] In addition, the special master may dish-dss a request for relief for failing to set forth the required information.[.3..231 However, in that circumstance, the special master must allow the party to file an amended request.[~}.~4] C. Conduct of the Proceeding A special master proceeding has two phases;[_3_~_5~l as a result, the special master has dual roles. The first phase consists of mediation, during which the special master is required to serve as a mediator and facilitator to assist the parties in attempting to settle the dispute voluntarily and without resort to civil or administrative litigation.[~3_~6_] In the second phase, which arises if the parties do noi reach-a settlement, the special master serves as a neutral information-gatherer. [.~.~_'/] After receiving information from the parties and other participants at a public heating, he must make a nonbinding advisory determination as to whether the development order or enforcement action at issue is unreasonable or unfairly burdens the landowner's property and, if so, may recommend remedies. J328] In keeping with the settlement-oriented nature of the proceeding, the actions or statements of all persons in both phases of the proceeding are evidence of an offer to compromise. J32_9_] Therefore, such actions are inadmissible in any subsequent judicial or administrative proceeding regarding the subject matter of the dispute. ~3Q] The governmental entity may adopt procedural guidelines for the conduct of special master proceedings;[3_3_.l.] however, those guidelines should not compromise the fundamental fairness of the proceeding. 1. Facilitation and Mediation Because the Special Master Law expressly refers to the first phase of the proceeding as "mediation."[_3_3~ the permissible techniques and procedures in this phase may be determined by reference to mediation practice J)331 The Special Master Law contains virtually no procedural requirements for the mediation phase. Each party must be represented at the mediation by someone -with authority to bind the pnncipal or to recommend a settlement directly to those with authority to make a binding decision. I}314] The statute gives the special master broad latitude to pRiClTFCITFIMC, pR l VATI~ p~ ( 'IPER T Y I~l( {-H I N ~'~get .,-~ lit '~ ! structure the mediation as the exagencles reqmre.[}22~ The statute does not even prescribe when the mediation must occur in relation to the hearing, so it is conceivable that a special master could conduct a mediation and, ifa settlement does not result- conduct a hearing at a later date, or the special master could conduct the hearing prior to the mediation in order to resolve factual issues as the basis for a mediated settlement. 2. Hearing The special master must conduct a hearing on the disput.e, no more th~ fortyTfive da.y.s after receiving the. .requ .~ for relief, unless the parties have settled or agreed to a different date.[3~_.6_l The special master must pro,acre not~ce of the nlace date and time of the hearing, j337] The hearing must be held in the county where the property is locatec[ [3_3_}] Because of its information-gathering function, there are additional statutory reqmrements which the special master must follow while controlling and dkecting the hearing. L3~3_gl In all respects, the hearing is to be informal and should not require the services of un attorney.[}4Q] The parries are e,~ortod tn hr/no to the hearin~ 'those nersons a~. 'ied by ~a or experience necessary to address issues raised by the request or by the special master and further qualified to address attemataves, variances, and other types of modifications to the development order or enforcement action."~_'41~ The hearing must be open to the pubhc.[~4_.2_] The special master has specific powers intended to assure that all relevant information is brought to the hearing. [3_j..3.] At any nme he may require a party or participant to provide additional informatior~ [}4_~] The special master may subpoena "any nonparty w/messes in the state whom the special master believes will ai.d in the disposition of the matter."[3j...5] By requesting relief under the Special Master Law, the owner consents to inspection of his property by the special master and the parties.~d4_6] D. Special 3/[aster s Recommendatto No later than foutteen days after the hearing, the special master is required to submit a written recommendation to the parties.[~4.7_] The special master's recommendation is a public record, j348] 1. Settlement If the parries agree to settle during the mediation or afterward, the special master must incorporate the settlement in his written recommendation. L34__9] In that cimumstance, no additional findings, determinations, or recommendations by the special master are required by the statute, although the hearing may suggest additional proposals the special master may wish to submit to the parties. 2. Without Settlement If the parties do not agree to settle, the special master must make a written detemaination as to whether the development order or enforcement action is unreasonable or unfairly burdens the owner's property. I_3_._5_(}] If the cimumstances warrant, the special master is expressly required to make the determination on the basis of the development order or enforcement action ar issue "in combination w/th the actions or regulations of other governmental entities."[}}]3 This provision reflects the reality that the full consequences of one governmental entity's regulatory actions sometimes are fully felt by a landowner only in concert with those of another governmental entity. 3. Evaluation of Information Produced at Hearing The Special Master Law contains seemingly conflicting provisions regarding the standard to be applied in evaluating the information produced at the hearing. One passage of the Special Master Law requires the special master to consider "any ... information produced at the hearing." [_3_5__¢] Another passage requires the special master to limit his consideration to "information determined relevant by the special master."[353] TVA Tt~ This apparent lncons~stency IS resolved by the reqmrement t.l~.t the special master We!? ~1 inf.o, rmat~o: o.~fe,red at the hearing.'[3s4~ ] This last provision indicates that the special master should accept mt m~ormanon sut~mlnea during the proceeding regardless of relevancy concerns and use it in attempting m facilitate a settlement; but, in formulating a written recommendation in the absence of a settlement, the special master may give weight only to relevant information.[!~] Among other things~ this construction negates the need [or the application of rules of evidence, which in any evem are not authorized by the Special Master Law and are inconsistent with the notion of an informal proceeding not requiring counsel_[.3_56_] 4. Recommendation If the special master determines after the hearing that the development order or enforcemem acuon is not unreasonable or does not un~fly burden the property, the recommendation must be that it remain tmdlsturbed.[~57_] Although no further action or recommendation by the special master is requ?ed .by tt}e s?tut, e, the special master may wish to submit proposals to the pames on the basis of informataon proaucea at me neanng. On the other hand, if thespecial master determines that the development order o~ enforcement action is unreasonable or unfairly burdens the property, the special master may recommend "one or more alternatives that pratect~the public interest served by the deveiopmem order or enforcement action" but reduce the burden on the property.[}.~_8_] Such a recommendation may be made only with the consent of the landowner. [}.~[ The Special Master Law suggests ten options which are to be considered in proposing relief for the landowner.[ They include 1 ) an adjustment of land development or permit standards controlling the use of the land; 2) increases or n~odifications in the density, intensity, or use of development areas; 3) transfer of development fights; 4) land swaps or exchanges; 5) mitigation, including payments instead of on-site mitigation; 6) location on the least sensiuve portion of the property; 7) conditions on the mount of development or use permitted; 8) a reqmrement that issues be addressed more comprehensively than the use or uses immediately proposed; 9) issuance of a development order, variance, special exception, or other form of extraordina~.' relief, including withdrawal of an enforcement action; or 10) public purchase of the owners property or acquisition of a less-than-fee-simple interest in a.[}_61] The special master is not limited to proposing only those remedial steps on the statutory menu. 5. Effect of Recommendation A determination that the development order or enforcement action is unreasonable or an unfair burden on the owners property may serve as an mdmataon of sufficient hardship for purposes of a variance, special exception, or other rehef.[~6_~] This effect of the recommendation is not dependent upon the governmental entity's response. A special master's recommendation also may serve as data and analysis to suppor~ a comprehensive plan amendment, but it alone will not necessarily determine whether the amendment is in compliance as defined in section 16313184(1)(b), Florida Statutes.[363] If an amendment to the local comprehensive plan is necessary to implement the recommendation of a spec/al master, the amendment will not be subject m the twice yearly limitation when a local government may adopt plan amendments.[3_6~4] Further, the amendment may be adopted pursuant to the streamlined adopuon process set forth in section 163.3184(16), Florida Statutes, to implement a comprehensive plan compliance agreement.~651 E. Disposition of Recommendation Upon receipt of a spemat master's recommendation, the governmental entity has several duties which are intended to bring the proceeding to a close, either by implementation of a settlement or official actions which are intended to ripen the controversy for judicial rewew.[¢_66~ l. Conszstency with Existing Law pRC}TI~('TFNIC~ PRIVATI~ PRf/PF~RT¥ Rl(~-bt'l'N F~ , / at · Unlike the Hams Act. which authorizes a departure from the specific terms of existing laws so long as the departure is consistent with the underlying statutory purpose, the resolution ora dispute through the Special Master Law must be consistent with applicable growth management and environmental protection laws.[.3._/ij.~ The statute specifies thai[ implementation of a settlement, whether as originally recommended by the special master or as subsequently modified by the governmental entity, must be "in the ordinary course and consistent with thc rules and procedures of that governmental entity."[}~.~l This limitation applies whether the disposition would involve implementation of a settlement or a recommendation by the special master in the absence of a settlement.[36_~i 2. Responsibility of Governmental Entity Within forty-five days of receipt of a special master's recornmendation, the governmental entity must confer with any other involved government entities and either accept, modify, or reject the spec/al master's recommendation. [3_~ An acceptance or modification maybe implemented by development agreement or other action.?TJj A failure m act on the recommendation within forty-five days constitutesa rejection of the recommendation unless the landowner agrees m an extension.[~7_~.] If the governmental entity accepts the recommendation or modification but the landowner rejects that action or if the.governmental entity rejects the recommendation, within thirty days after such a decision the governmental entity is required m issue a written decision descn'bing all uses available on the property, j372] This action is intended to ripen the owners claim for purposes of judicial review.j374] Whether or not the local government issues the written decision on uses, the landowner may file a civil action as soon as the governmental entity acts on the special master's recommendations. D_Z~} Limitations There are important limitations on the availability of a special master proceeding. First, it ~s available only in as- applied challenges.[3Z~] Second, it is not available to an owner who contests an action of either state or local governmental entities regarding an amendment to a local comprehensive plan. I_3_77] Third, it is available as of right only for development orders or enforcement actions on or after October 1, 1995.[?_81 Fourth, it is not intended to replace or supplant other lawfully available ADR methods. J329] The special master proceeding may not last more than 165 days without the consent of all parties.[}.~Q] Requesting a special master proceeding is vnluntary for the landowner and is not.a condition precedent to any other legal proceeding.[~.~] Summary The Special Master Law is a hybrid which combines in a single expedited proceeding some of the attributes of other ADR methods, such as mediation, arbitration, and mini-trials. While the Special Master Law is untested and may require legislative adjustments in the future, it is beyond question that this is a new body in the ADR firmament. V. ALTERNATIVE DISPUTE RESOLUTION IN THE CHAPTER 163 PROGRAM Because the Special Master Law expressly does not cover actions by governmental entities relating to local comprehensive plans,[3__g.3] the 1995 property rights legislation creates separate ADR remedies for the comprehensive planning process at both the local and state levels.[j_82] The Local Government Comprehensive Planning and Land Development Regulation Act[3841 specifies the procedure for pubhc participation in the comprehensive planning process on the local governmental level. [_3_8~] Prior to enactment of the new property fights law, tlaere was no state-specified administrative process for a landowner to take issue with a local government's decision not to grant a plan amendment. Section 4 of the legislation requires a local government m provide a~ opportunity for mediation or other form of ADR when it denies an owner's request for an amendment to the local comprehensive plan.[3~6] The costs of the ADR will he shared eqnally by the local government and the owner.[~8_?] if the owner requests mediation, the time for bringing a judicial action will be tolled for 120 days or until completion of the mediation, whichever ts earlier.[~ The property rights law also creates a new ADR process avalbble in a compliance dispute between a landowner and the state land planning agency, the Department of Commumty Affairs (DCA).[~89~ Under existing law, the DCA is required to forward m the Division of Administrative Hearings (DOAH) the agency's notice of intent to find a local government's comprehensive plan amendment not in compliance with state law.[39Q~ The DOAH then is required to conduct a formal fact-finding heating in accordance with section 120.57L13, Florida Statutes, with the parties specified to be the DCA, the local government, and any affected person (such as the owner) who mtervenes.[}9_}~ Section 5 requires the DCA to afford a preheating oppormmty to mediate or otherwise resolve a dispute involving a notice of intent to f'md a plan amendment not m compliance.[}.9_.~] If mediation is requested by any party, the DCA must agree to mediation; the DOAH may not conduct a hearing until the DCA has notified the heating.officer of the results of the mediation. L3~9~] The hearing may not be delayed longer than ninety days under this provision without the consent of the parties.[_39q. Mediation costs will be borne equally by all parties to the proceeding.[3cL~} The ADR provisions integrated into Chapter 163 by the property rights law are general.j396} Thus, local govemmems and the DCA have broad latitude to choose, in conJunCtion with landowners and other parties, the particular dispute resolution methods to be employed in each case. This freedom should give parties to local planning disputes the opportunity to develop case-specific dispute resolution processes. VI. CONCLUSION The 1995 property rights legislation was intended to adjust the balance between private interests and government in the continuing friction between regulators and landowners over the use of land in Florida. It reflects both the popular mood and the shift in legislative sentiment in recent years. These new remedies are not radical departures from existing legal doctrine. The Harris Act builds upon common law pnnciples, constitutional decisions, and the tradition of finding an accommodation between public and private interests. The Special Master Law and related mediation provisions for the local planning program draw on the field of ADR to seek remedies short of the expensive and frustrating process of litigation. Together, these efforts represent an attempt to provide new and measured relief for landowners without undermining Florida's landmark environmental protection and growth management laws. [*] Shareholder, Hopping Green Sams & Smith, P.A., Tallahassee, Florida. B.J., 1974, University of Texas at Austin; M.S., 1975, Columbia University; J.D., 1986, Florida State University. In conjunction with the Florida Conflict Resolution Consortium at Florida State University, under contract with the Florida Depmtment of Community Affairs, Mr. Powell prepared the Model Procedural Guidelines for the Special Master Law contained in the legislation that is the subject of this Article. ~et'~_t_~.._t~r. [**] Parmer, Steel Hector & Davis, Tallahassee, Florida. B.A., 1964, University of California; J.D., 1968, University of California at Berkeley; M.P.A., 1973, Harvard University. Mr. Rhodes served on the working group that recommended the property rights legislation which is the subject of this Article. I~etg~ ro ~ [***] Deputy Chief of Staff. Office of the Governor, Tallahassee, Florida, 1995-Present; General Counsel, Florida Deparunent of Community Affairs, Tallahassee, Florida, 1993-1995: B.A., 1978, University' of South Dakota; J.D., 1982, Florida State University. Mr. Stengle served as the principal drafter for the working group that prepared the property rights legislation which is the subject of this Article. We are here to dispute the denial of our request for a permit The main section in dispute is along our Southern side, known as NW t~t Avenue. We are a comer lot with our frontage on the East, being 203 NrC/3ra Street. The disputeis about vehere finished grade is measured from. The city is saying from the sidewalk~ We gave you sections of the codes pertaining to this issue and have included them again. The wording is quite specific. We see no grounds for our repeated denial. This area is not a traffic concern. (picture A) Nor does it block our neighbors view. The home directly to the South is also fronted on NW 3~a Street. Also their garage is on the Northern side of their home. (picture B) Four feet from the sidewalk mounts to 1 foot 8 inches from finished grade. (picture C) That is not going to keep children from a 4-foot nosedive to the sidewalk. Nor wilt it, l~e~ent someone from easily reac, hing over and pluck/nE them from our lawn. What weare ~fur is not a safety hazard, quite the contrary. As tax paying homeowners dOn twe have a right to pr~vacy,,pr0tection, and security? We are a~king for an hOnoring of the code as it reafl~ We feel our request is reasonable and just. AS'a secondary i~sue, along our .West side.there vms a 6-foot wooden fence that ran the entire West side When we applied We question this as it also is not a we don'[,agree with i Thank r many years. g~g andZoning~ and Codes are all designed to support that:conceVe wholehear redly. What I Scllse. and consideration on this matter. Sincerely, Stephen Leach and Pamela Mrkvicka 1~ Fenees, hedges and walls shall not exceed six (6) fe~t in height, above finished grade, in residential zones, except tl~ ~om the building Hqe to the front line.the rn?~imum .~ shall be four (4) fee~ In Mmlti-familv zones, the maximum height w/tMn the ~ont yard setback shall be s/x (6) feet (chain link ? .t~s. m? .~ .t?w.ays or..pa~. ~ sup~or~i~ railroad usc~ siuat not exc~ um (10) part o a sum~vimon or si~tc plan approval adjacent to a public right-of-way, consistent with this section, a setl:mck o~a minimum ofcighte~cn (18) i~J~es must be ~ for landscaping purposes. GRADE, FINISHi~D- The average level of the finished surface the ground adjacent to the exterior wqlls of the sUuctu~ STRUCTURE - Any building or improvement, for which a certificate of occupancy is r~ c, onslructed upon real property locauxt · ' munlci~d amirs of the city. 0\~ ,,,,rbo ~