06-02-09 Regular Meeting MinutesI . I
A Regular Meeting of the City Commission of the City of Delray Beach, Florida,
was called to order by Mayor Nelson S. McDuffie in the Commission Chambers at City Hall at
6:00 p.m., Tuesday, June 2, 2009.
1. Roll call showed:
Present- Commissioner Gary P. Eliopoulos
Commissioner Fred B. Fetzer
Commissioner Adam Frankel
Commissioner Mackenson Bernard
Mayor Nelson S. McDuffie
Absent - None
Also present were - David T. Harden, City Manager
Susan A. Ruby, City Attorney
Terrill Pyburn, Assistant City Attorney
Brian Shutt, Assistant City Attorney
Chevelle D. Nubin, City Clerk
2. The opening prayer was delivered by Pastor Bernard King, Sr., with Cornerstone
Bible Fellowship.
3. The Pledge of Allegiance to the flag of the United States of America was given.
4. AGENDA APPROVAL.
Mr. Bernard requested that Item &C., Resolution No. 17-09 be removed from the
Consent Agenda and moved to the Regular Agenda as Item 9.A.A.
Mr. Frankel moved to approve the Agenda as amended, seconded by Mr.
Eliopoulos. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mr. Bernard —
Yes; Mayor McDuffie — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes. Said motion passed with
a 5 to 0 vote.
5. APPROVAL OF MINUTES:
Mr. Bernard moved to approve the Minutes of the Regular Meeting of May 19,
2009, seconded by Mr. Eliopoulos. Upon roll call the Commission voted as follows: Mr.
Bernard — Yes; Mayor McDuffie — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes; Mr. Frankel —
Yes. Said motion passed with a 5 to 0 vote.
06/02/09
Mr. Eliopoulos moved to approve the Minutes of the Workshop Meeting of May
26, 2009, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mayor
McDuffie — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes; Mr. Frankel — Yes; Mr. Bernard —
Yes. Said motion passed with a 5 to 0 vote.
6. PROCLAMATIONS:
6.A. Recoanizine Artist in Residence — Michiko Kurisu
Mayor McDuffie read and presented a proclamation hereby recognizing Artist in
Residence Michiko Kurisu and called upon all present to acknowledge and applaud her many
contributions and accomplishments and her outstanding and exemplary dedication to the City of
Delray Beach. Michicko Kurisu came forward to accept the proclamation and thanked the City
Commission.
6.11. 2010 Census Complete Count Committee
Mayor McDuffie read and presented a proclamation hereby proclaiming full
support of and participation in the overwhelming success of the 2010 Census through the
formation of a COMPLETE COUNT COMMITTEE. Pedro Guilarte, U.S. Census Bureau
(Atlanta, Georgia), came forward to accept the proclamation.
7. PRESENTATIONS:
7.A. 20th Annual Delaire/Delray Citizens for Delray Police Charity Golf
Tournament Presentation to Police and Fire - Rescue - Perry DonFrancisco
Perry DonFrancisco, President for Delray Citizens for Delray Police, introduced
Dr. Andre Fladell, one of the Directors and Co- founders of this organization of 24 years.
Mr. DonFrancisco stated this marks the 20th consecutive year that representatives
of the Delaire Country Club have attended a City Commission meeting for the purpose of giving
two decades of generosity for the greater good of the City of Delray Beach. He stated it would
take an ample amount of time to historically list all the equipment purchases this community has
been responsible for equipment that has saved lives and assisted in fighting crime. Mr.
DonFrancisco stated municipalities nationwide will grapple with budget issues and limitations
not experienced in generations. He stated under these circumstances what the Delaire residents
have done is even more impressive and have charged forward and stayed dedicated to the cause
that they have been loyal to for 20 years. Mr. DonFrancisco stated Delaire residents have left a
charitable mark on the City of Delray Beach. It has been their benevolence that has increased the
effectiveness of Delray's emergency personnel which has improved the quality of life for all
living in Delray Beach.
Mel Katz, Delaire Charity Event Chairman, and Buddy Magard, President of
Delaire Country Club, came forward.
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06/02/09
Mel Katz, Delaire Charity Event Chairman, thanked Mr. DonFrancisco and the
representatives of Delray Beach. Mr. Katz presented a check from the Delray Citizens for
Delray Police to the Delray Beach Police Department in the amount of $16,218.16 and to the
Fire-Rescue Department in the amount of $16,218.16. Mr. Katz stated aside from that there was
a contribution to an organization that Mr. DonFrancisco runs. Mr. DonFrancisco, sated the
proceeds from this community at this time exceed $650,000.00 to the City of Delray Beach.
Mayor MeDuffie stated we have some wonderful and generous citizens of our
community.
7.11. Presentation by Match Point, Inc. and Players International Management
(Addendum)
Ivan Baron, Tournament Chairman for the USIA Boys and Girls 12's National
Championships, stated this event is one of the most prestigious events in the entire country with
250 participants and total about 700 families that come in town for the whole week in April. He
stated this year they had 41 of the 50 states represented.
John Butler, Executive Director of the Delray Beach International Tennis
Championships, presented the City Commission with an artist's portrait.
8. CONSENT AGENDA: City Manager Recommends Approval.
8.A. CONTRACT CLOSEOUT (C.O. NO. I/FINAL)/GREEN CONSTRUCTION
TECHNOLOGIES, INC./2008 SWALES PROJECT: Approve a Contract Closeout (Change
Order No. l/Final) in the amount of a $34,492.13 decrease and final payment in the amount of
$6,704.70 to Green Construction Technologies, Inc. for completion of the 2008 Swales Project.
Funding is available from 448-5461-538-65.41 (Storm Water Utility Fund/Other
Improvements/Swale Reconstruction).
8.B. CHANGE ORDER NO. 2/ROSSO PAVING & DRAINAGE,
INC.IHOMEWOOD BOULEVARD BICYCLE LANES ROAD WIDENING: Approve
Change Order No. 2 to Rosso Paving and Drainage, Inc. for additional work required to relocate
a sidewalk for the Homewood Boulevard Bicycle Lanes Project.
8.C. THIS ITEM HAS BEEN MOVED TO THE REGULAR AGENDA AS
ITEM 9.A.A.
8.D. RESOLUTION NO. 24-09: Approve Resolution No. 24-09 establishing a Green
Task Force to make recommendations to the City Commission regarding environmental
sustainability and ideas to implement the recommendations.
The caption of Resolution No. 24-09 is as follows:
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(The official copy of Resolution No. 24-09 is on file in the City Clerk's office.)
B.E. COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG)
AMENDMENT TO ANNUAL ACTION PLAN (FY 2008 - 2009): Approve an amendment to
FY 2008-2009 Annual Action Plan to include $156,617.00 towards funding Public Facilities and
Improvements located within the CDBG target area.
B.F. BULLETPROOF VEST GRANT/DEPARTMENT OF JUSTICE: Authorize
staff to submit an application to the Department of Justice for funding in the amount of
$2,170.12 for 8 vests for the Bulletproof Vest Program. Funding is available from 001- 2115 -521-
52.27 (General Fund/Operating Supplies/Equipment < $1,000).
B.G. LETTER OF SUPPORT/JUSTICE ASSISTANCE GRANT (JAG) FUND:
Approve the Mayor's submission of a letter in support of the Countywide Justice Assistance
Grant funds (JAG) for FY 2010 funding allocations.
B.H. SPECIAL EVENT REQUESTS/ART AND JAZZ ON THE AVENUE:
Approve special event requests to endorse Art and Jazz on the Avenue to be held on June 25,
2009 and August 20, 2009 from 6:00 p.m. to 10:00 p.m., to grant a temporary use permit per
LDR Section 2.4.6(F) for the closure of Atlantic Avenue from Swinton to the west side of
N.E./S.E. 7th Avenue, Railroad Avenue from Atlantic north to the north side of the east/west
alley, and to the alleys north and south of Atlantic on N.E./S.E. l't Avenue, N.E./S.E. 2 °d
Avenue, S.E. P Avenue, N.E./S.E. 4th Avenue and N.W. 5h Avenue from the north side of the
Fire Station to N.W. 2 "d Street, and S.W. 5h Avenue from Atlantic to SW l't Street; to authorize
staff support for security, traffic control, banner hanging and removal, barricade set up and
removal, trash removal and clean up and EMS assistance; contingent upon receipt of a hold
harmless agreement.
B.I. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS:
Accept the actions and decisions made by the Land Development Boards for the period May 18,
2009 through May 29, 2009.
8j. AWARD OF BIDS AND CONTRACTS:
1. 'None
Mr. Eliopoulos moved to approve the Consent Agenda as amended, seconded by
Mr. Bernard. Upon roll call the Commission voted as follows: Mr. Eliopoulos — Yes; Mr. Fetzer
— Yes; Mr. Frankel — Yes; Mr. Bernard — Yes; Mayor McDuffie — Yes. Said motion passed with
a 5 to 0 vote.
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9. REGULAR AGENDA:
9.A.A. RESOLUTION NO. 17 -09: Approve Resolution No. 17 -09 assessing costs for
abatement action required to remove nuisances on nine (9) properties throughout the City.
The caption of Resolution No. 17 -09 is as follows:
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(The caption of Resolution No. 17 -09 is on file in the City Clerk's office.)
Mr. Bernard declared a conflict of interest and stepped down from the dais.
Mr. Eliopoulos moved to approve Item 9.A.A. (formerly Item B.C.) seconded by
Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Fetzer — Yes; Mr. Frankel —
Yes; Mayor McDuffie — Yes; Mr. Eliopoulos — Yes. Said motion passed with a 4 to 0 vote.
At this point, Commissioner Bernard returned to the dais.
9.A. CONDITIONAL USE REQ►UESULIFE SKILLS CENTER: Consider a
conditional use request to allow the expansion of the Life Skills Center into three (3) vacant bays
adjacent to the previously approved Life Skills facility for the property located within the Lake
Ida Shopping Center at the southwest corner of Lake Ida Road and Congress Avenue. (Quasi -
Judicial Hearing)
Mayor McDuffie read into the record the City of Delray Beach procedures for a
Quasi - Judicial Hearing for this item and all subsequent Quasi- Judicial Hearings.
Chevelle D. Nubin, City Clerk, swore in those individuals who wished to give
testimony on this item.
Ir 1 1•
Mayor McDuffie asked the Commission to disclose their ex parte
communications. Mr. Frankel stated he spoke to Mr. Mankoff who represents the school and
noted that he was present at the Planning and Zoning Meeting where this item was brought
before them. Mr. Bernard stated he was present at the Planning and Zoning Meeting as well.
Mr. Eliopoulos stated he was contacted by Jason Mankoff and discussed what his client is trying
to accomplish with this project and he was also present at the Planning and Zoning Meeting.
Mayor McDuffie stated he was approached by a citizen who spoke against it. Mr. Fetzer had no
ex parte communications to disclose.
Paul Dorling, Director of Planning and Zoning, entered the Planning and Zoning
Department project file #2009-121 into the record.
Mr. Dorling stated this is a conditional use modification to allow the expansion of
the life skills center into three vacant bays within the Lake Ida Shopping Plaza. This also
includes two waivers (Item 9.A.1) and one of those waivers is to reduce the minimum amount to
a play area required for such a use from 75 square feet per student to 3 3.3 3 square feet per person
and increase the capacity of the school from 100 to 165 students. Mr. Dorling stated Lake Ida
Plaza was annexed into the City in 1988 and is at the southwest comer of Congress Avenue and
Lake Ida Road and contains 8 acres. At its meeting of November 1, 2005, the City Commission
approved the Life Skills Center (a private school) as a conditional use, subject to a maximum
enrollment not to exceed 100 students and included a waiver from the outdoor play area from 75
square feet to 68 square feet and included a minor waiver on the hedge height around the play
area. At their meeting of April 20, 2009, the Planning and Zoning Board considered a request to
modify the conditional use and allow the expansion of the Life Skills Center to 165 students.
After public testimony, the Board postponed the item to the May 18`x` meeting to allow the
applicant to address some concerns. Mr. Dorling stated those concerns centered around safety
and there was a discussion about students and how they get from bus stops to this facility and the
need for security guards to address the "jay" walking at the intersection of Congress Avenue and
Lake Ida Road. There were some issues relating to existing landscaping needing to be upgraded
and there was a discussion about disruptive behavior and how to handle loitering of students.
There were also some issues with the Regions Bank, the parking lot in general and some
concerns from Rainberry Lake.
At its meeting of May 18, 2009, the Planning and Zoning Board considered it and
there were a lot of commitments made by the applicant to address these issues that had been
identified and the Board recommended approval with a 7 to 0 vote. Mr. Dorling stated this was
subject to the following conditions: (1) that the maximum enrollment of the school cannot
exceed 165 students, (2) that the maximum number of students allowed in the outside play area
at any one time shall not be greater than 25 students, (3) that the applicant needs to upgrade the
landscaping around the play area to screen it from Lake Ida Road, (4) that the school needs to
provide a school crossing guard to guide the students through the traffic lights at the intersection
of Congress Avenue and Lake Ida Road during the school hours; and, (5) that the school have a
security guard on site when the school is open including one hour prior to class and one hour
after class. This guard should be instructed to control noise and on site loitering.
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Jason Mankoff, Attorney with Weiner & Aronson, P.A., 10 S.E. V Avenue,
Delray Beach, representing Life Skills Center, stated they agree with each of the conditions of
the staff report and incorporate the staff report as substantial competent evidence for support of
the conditional use modification and the waivers including the required findings pursuant to
LDR Section 2.4.5(E)(5) and Section 2.4.7(B)(5) relating to waivers. Mr. Mankoff stated they
are not requesting a waiver to the class floor area per student but they are requesting a waiver to
the number of students because they have the possibility to lease additional square footage. He
stated they are meeting the requirement for the amount of square footage per student. Mr.
Mankoff stated they are also providing 220 square feet of outside area per student since they are
agreeing to a condition that there be no more than 25 students in the outdoor area at one time. At
its meeting of May 19, 2009, the Planning and Zoning Board recommended approval of both the
conditional use modification and the waivers. The Planning and Zoning Board noted that we
resolved any issues that they may have had concerns about. Mr. Mankoff stated the things that
Life Skills has done as a result of the Planning and Zoning Meeting include the following:
policies and procedures have been implemented to address concerns with regard to student
travel, places students and their parents on notice with regard to student expectations including
travel by students to and from school, letters have been delivered to each of the students and their
parents advising that students are not allowed to walk through the premises of the shopping
center when traveling to and from school and that they must use the sidewalk on Congress
Avenue to travel along Lake Ida Road until getting to and from school. Additionally, Mr.
Mankoff stated the students will be subject to discipline with regard to violating these policies
and procedures. He stated there was a meeting held at the Life Skills Center approximately one
month ago where each of the tenants in the shopping center were invited. The tenants who did
attend indicated that any issues had been handled immediately and that their concerns had been
addressed. Mr. Mankoff stated Life Skills Center has spoken to the tenants on an individual
basis as well to discuss the proposed plans that are before the Commission this evening including
handing them a business card and asking them to call if they have any concerns in the future. He
stated there are now two security guards; one inside and one outside. Mr. Mankoff stated one of
these security guards is stationed at the crosswalk at Congress Avenue when the students are
leaving and entering the shopping center. Mr. Mankoff stated the school will continue to
monitor its procedures and work together with other tenants and the City. He distributed a
brochure of the Life Skills Center, proposed policies and procedures, letters of support, a
response to the letter from Rainberry Lake and a copy of a PowerPoint presentation that was
provided to the tenants at the meeting at the Life Skills Center.
Dr. Mary Delsi2nore, Administrator of the Life Skills Center, stated Life
Skills Center is a High School grade 9-12 and works with students ages 16-21. Dr. Delsignore
stated they have been working with all of their tenants on both the Lake Ida side as well as on the
Commerce side. She stated they have made tremendous improvements in the areas working with
the citizens as far as walking across the street and making sure that the staff is stationed on Lake
Ida Road as well as on Congress Avenue in the mornings and at the transitional times. Dr.
Delsignore stated because of their small teacher to student ratio (I teacher to 15 students) they
are able to work with students one-on-one and they are basically able to change one life at a
time. She stated many of the students at times are homeless, some students become parents at a
very early age, and some students actually have to work to make a living so it is not possible for
them to go to school seven hours a day. Therefore, Dr. Delsignore stated Life Skills Center
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offers three sessions a day and ranges from 4-5 hours; if the students have a job they have to stay
4 hours and if the students do not have a job they have to stay 5 hours. She stated this provides
the students with a flexible schedule that works for them and Life Skills looks at each student on
a case-by-case basis and changes the schedule depending on the students' situation. Dr.
Delsignore stated some of the students do not have the skills to get a job so Life Skills has a
vocational specialist who works with the students placing them in the right type of job. She
stated they also have a guidance counselor that works with the students who have social,
emotional, and behavioral barriers that has not made them successful in the traditional school
setting. Dr. Delsignore stated the Life Skills Center continues to offer academics year-round
and the students will attend until the end of June and in July there is a short vacation but
traditionally they are a year-round facility. Therefore, if they are behind, they are able to catch up
on their credits that they are behind in. Dr. Delsignore reiterated that the ratio is I to 15 and
noted that there are two teachers in each classroom. She briefly explained the handbook and
what the procedures are for school arrival and departure. Dr. Delsignore stated the form of
transportation will be voted on by the Life Skills Board. She stated on May 11, 2009 she invited
all the tenants to meet with them to discuss these issues and they have come to a realization that
we all work together for the good of all the students.
Mayor McDuffie declared the public hearing open.
Steve Pleasant, lives in Greenacres (Forest Hill and Jog Road), a teacher at
Life Skills Center, stated he came to Life Skills from the public school system and has seen
many students fall through the cracks. He stated public school is set up to teach a massive
amount of students with a certain amount of teachers and the only way to do it is to divide them
up. Mr. Pleasant stated he had up to 60 students and does not feel you can get through to all of
them. He stated Life Skills saves those kids from being the problems in society. Mr. Pleasant
stated the need is obvious and the result of not helping these kids is traumatic. Mr. Pleasant
stated one of the concerns at the original meeting was the 'Jay" walking where the bus stops are
located. He stated steps were taken the day after the meeting to implement guards at certain
positions in the street to remind the students that they are not to 'Jay" walk. He stated the
students he believes that the community is still seeing 'Jay" walking are not the students of Life
Skills. Mr. Pleasant stated these individuals had backpacks and were assumed to be the students
of the Life Skills Center. He stated he made a personal video of that scenario and watched their
students wait while other kids from wherever are crossing the streets with backpacks and running
across the street between traffic and dodging cars. Mr. Pleasant stated this is counting against
Life Skills. He stated the teachers leave the classrooms to go outside to make sure that people
are getting to where they need to go safely without obstructing other businesses or the bank that
is in the area. Mr. Pleasant stated when there is a problem Dr. Delsignore takes the steps to fix it
the same day or the very next day and means what she says about wanting to make this work.
Anp-ela Ramsey, represents Life Skills Center, stated her son attends Life Skills
Center because he was not getting the attention and help he felt he needed in the school he was
attending. Ms. Ramsey stated her son went from a 0.9 grade point average to a 2.4 grade point
average since he has been attending Life Skills.
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(Unidentified woman from Broward County), stated her son attended Nova
High School where he had academic issues as well as behavioral issues and he is considered a
special needs student. She stated he attended Boca High School but the same troubles followed
him. She stated with the help of the administrators and teachers of Life Skills her son will be
graduating next week. She stated the expansion of the Life Skills Center with be a benefit to
other children in the area.
Joshua Ramsey, student at Life Skills, stated because of Life Skills he will be
graduating on June 11, 2009. Mr. Ramsey stated he has been accepted to Palm Beach
Community College (PBCC). He stated there is one-on-one attention and he can complete the
work at his own pace.
Clark Stevens, Senior at Life Skills, stated he is a senior and is prepared to
graduate next week. Mr. Stevens stated his experience at Life Skills has always been positive
and the teachers have always been there to guide him through certain subjects. He stated he
moved from Atlanta so that he could attend Life Skills and noted there is a waiting list just to get
into Life Skills because it is a great opportunity for so many kids.
Brandy Parker, Senior at Life Skills and also graduating on June 11, 2009,
stated she has attended Life Skills for a year and is graduating at the top of her class and will go
to college. She stated she has goals and dreams and the teachers, staff, and the other students
helped her find out who she wanted to be.
Sylvia Monroe, one of the security guards at Life Skills, stated she is stationed
inside and partly outside to make sure the students are behaving on the 'inside and not loitering
on the outside.
Anwar Flarey, security guard that is outside and at the crosswalk.
There being no one else from the public who wished to address the Commission
regarding the conditional use request, the public hearing was closed.
There was no cross-examination.
Mr. Dorling stated the conditions in the Planning and Zoning staff report refer to
the school needing to provide one (1) security guard and that should actually read two (2)
security guards. He stated this was part of the recommendation from the Planning and Zoning
Board meeting of May 18, 2009 that did not get carried over to this document.
Mr. Mankoff stated they agree that there will be two security guards and for
clarification one of the security guards also serves as the crossing guard.
Mr. Dorling stated he believes they need two (2) security guards if the security
guard handles noise and loitering and crossing functions.
Mr. Mankoff stated he concurs with all the conditions.
E
There was no rebuttal.
Mr. Frankel stated the number of students will increase by approximately 65 and
asked how many additional teachers and guidance counselors will Dr. Delsignore will increase it
by. Dr. Delsignore stated she would have to go back to HR to see if there would be an additional
teacher. She stated there is an increase of students but this is split by three sessions per day. Mr.
Frankel asked how many teachers and guidance counselors do they currently have. Dr.
Delsignore stated they currently have 21 staff members; 11 teachers and 3 ESE teachers. Mr.
Frankel asked if there were any tenants in the shopping center who were against the increase.
Dr. Delsignore stated originally there were tenants that were opposed to the expansion.
Mr. Mankoff stated that is why there was a tabling at the first Planning and
Zoning Board meeting and there were tenants who came to the meeting and expressed concerns.
He stated at the second meeting he does not believe any of those same people returned because
they met with them individually and had a meeting at Life Skills to speak with them all regarding
the policies and procedures that were being implemented and made a commitment to them that it
would continue. Mr. Mankoff stated these people were not at the last meeting and are not here
this evening. He stated he was at the meeting at Life Skills and the tenants were very
appreciative of the efforts that have been done and said things have been vastly improved and as
long as things kept operating like that they were supportive. Mr. Frankel asked if there were any
comments from Dr. Art Johnson either opposed or in favor. Dr. Delsignore stated there were no
comments from Dr. Art Johnson; however, Dr. Cover, Assistant Superintendent, will be
attending the Life Skills graduation on June 11, 2009.
Mr. Bernard asked what percentage of students drive their own cars. Dr.
Delsignore stated the percentage is very small. He commented that some of the people who go
to the barber shop park anywhere in the parking lot. Dr. Delsignore stated the staff of Life Skills
leaves the parking spots in the front for the barber shop and noted that they have a great working
relationship with the barber and there has never been an issue.
Mayor McDuffie asked for clarification regarding the number of teachers. Dr.
Delsignore stated there are 11 teachers and 3 ESE and two instructional assistants and one sub
that are there daily. She stated the teachers of record as far as the teaching aspect are 14 teachers
and there is not that amount at one time because it is divided up into three sections.
The City Attorney briefly reviewed the Board Order with the Commission who
made findings according to their consensus (attached hereto is a copy and made an official part
of the minutes).
Mr. Eliopoulos moved to approve the Board Order (approving the conditional use
subject to the conditions), seconded by Mr. Bernard. Upon roll call the Commission voted as
follows: Mr. Frankel — No; Mr. Bernard — Yes; Mayor McDuffie — Yes; Mr. Eliopoulos — Yes;
Mr. Fetzer — Yes. Said motion passed with a 4 to I vote, Commissioner Frankel dissenting.
IIUI
9.A.I. WAIVER REOUESTS/LIFE SKILLS CENTER: Consider two (2) waiver
requests to Land Development Regulations (LDR) Section, 4.3.3 (HHH) (3), "Outdoor Area", to
reduce the minimum outdoor play area required from 75 square feet per student to 33.33 square
feet; and Land Development Regulations (LDR) Section, 43.3. (HHH)(6), "Private Schools and
Other Similar Education Facilities", to exceed the maximum number of students from 100
to allow up to 165 students for the property located within the Lake Ida Shopping Center at the
southwest corner of Lake Ida Road and Congress Avenue. (Quasi-Judicial Hearing)
The City Attorney briefly reviewed the Board Order with the Commission who
made findings according to their consensus (attached hereto is a copy and made an official part
of the minutes).
Mr. Fetzer moved to adopt the Board Order as presented, seconded by Mr.
Eliopoulos. Upon roll call the Commission voted as follows: Mr. Bernard — Yes; Mayor
McDuffie — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes; Mr. Frankel — No. Said motion passed
with a 4 to I vote, Commissioner Frankel dissenting.
At this point, the time being 7:03 p.m., the Commission moved to the duly
advertised Public Hearings portion of the Agenda.
10. PUBLIC HEARINGS:
10.A. WAVER REOUESUPALM TERRACES: Consider a request to waive Land
Development Regulations (LDR) Section 1.3.8 (B), "Reconstruction Necessitated by Act of
God", which requires applicants seeking building permits to submit within one (1) year of the
date on which the "Act of God" event occurred and that all reconstruction be completed within
three (3) years from the date of the event for Palm Terraces, located at 1000 Palm Trail. (Quasi-
Judicial Hearing)
Chevelle D. Nubin, City Clerk, swore in those individuals who wished to give
testimony on this item.
Mayor McDuffie asked the Commission to disclose their ex parte
communications. Mr. Frankel stated he spoke to Mr. Weiner about this item. Mr. Bernard stated
he spoke to Mr. Weiner about this item. Mr. Eliopoulos had no ex parte communications to
disclose. Mayor McDuffie had no ex parte communications to disclose.
Paul Dorling, Director of Planning and Zoning, entered the Planning and Zoning
Department project file #2009-174 into the record.
Mr. Dorling stated this is a waiver request to provide additional time beyond the
three year maximum currently allocated in the LDRs as it relates to Act of God and when you
can provide or complete construction of proposed improvements. This request also seeks to
extend the one year time period in which you are required to submit a new site plan. He stated
this building was damaged by Hurricane Wilma in October 2005 and in March 2006 the Site
Plan Review and Appearance Board (SPRAB) approved a renovation of the building and
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additional modification which included swimming pool, parking spaces, and some improvements
on site other than the building. He stated building permits were submitted in May 2006 and in
June 2006, a re- roofing was also submitted. Mr. Dorling stated these permits were issued and
construction has not begun and subsequently that site plan as well as the permits has expired.
The applicant is seeking a waiver to LDR Section 1.3.8 which says that if you have damage you
are allowed to rebuild pursuant to the number of units that were there. He stated currently 6
units would be allowed and there were 12 units on the site. Mr. Dorling stated a site plan was
approved and submitted three years ago and has currently expired. He stated the new applicant
has requested to extend that timeframe as well as expand the time that he can submit a new site
plan. Mr. Dorling stated in Section 1.3.5 of the LDRs if you have a non - conforming use and it
ceases for 180 days that non-conforming use also expires. Staff recommends denial of the
request at this time because there are too many extenuating circumstances. Mr. Dorling stated
staff received a letter from an adjacent property owner (Mary Reynolds) and she has outlined her
support for staffs recommendation of denial and has further indicated that it would be
appropriate given the condition of the site that this building is torn down. Mr. Dorling stated it is
noted in the staff report that they have been subject to code enforcement action for unsafe
situations and those are pending action at this time.
James Gagliardi, 2629 N.E. 31th Street, Fort Lauderdale, {contract
vendee/applicant) stated he has not been negligent in moving forward and is not party to any
violations that are there. He stated all he wants to do is turn it into something beautiful. Mr.
Gagliardi stated he is not using any financing and he will complete this by the end of the year
and will do it expeditiously. Mr. Gagliardi urged the Commission to support the waiver request.
Jason Mankoff, speaking on behalf of the owner BMR Funding, LLC, stated
his client is not a real estate developer; however, Mr. Gagliardi is a real estate developer.
Therefore, Mr. Mankoff stated they have entered into an agreement to sell the property to him
and he would like to develop the property in the same mariner as previously approved by the
City. Mr. Mankoff stated this did not get built for numerous reasons but they are all a result of
the severe drop in real estate market. He stated the foreclosure litigation was not challenging the
granting of a development approval, the foreclosure litigation delayed the project. The
foreclosing lender then sold the property on December 5, 2008 and therefore their client has
owned the property for a little less than six months. The property has been through three owners
in the past year, a foreclosure, and one of the owners was in bankruptcy Mr. Mankoff stated
when his client purchased the property he was not fully aware of what he was walking into. Mr.
Mankoff stated there were Code violations, pending liens, and other violations not of his client's
doing. There are nine letters from his client's transactional counsel written to the Chief Building
Official, Code Enforcement, and Community Improvement regarding cleaning up the property in
2009. Mr. Mankoff stated he spoke with the Chief Building Official today and he advised him
that their client has done everything he has asked him to do and he said he would love to see this
project get built because it would be a great benefit to the community and the neighborhood. Mr.
Mankoff stated he spoke to Code Enforcement today who said that they too would like to see the
project built because it would be a great asset to the community. He stated Code Enforcement
requested that Mr. Mankoff s client mow the lawn because of all the rain we had this past
weekend and they will mow the lawn later this week.
12
06/02/09
Mr. Mankoff stated there are no code violations pending although there was an unsafe structure
issue written by the Chief Building Official at one point but the structure has since been cleaned
up and everything is done to his satisfaction. Mr. Mankoff stated they are not increasing the
non-conformity but they are decreasing the non-conformity and by granting the waiver the
Commission would be extending an approval of a Class H site plan modification which was
approved by SPRAB on July 26, 2006 to add a pool, parking, and landscaping. The proposal
actually decreases the non-conformity concerning parking and five additional spaces are being
added. The entire parking area will also be restriped and although it is not counted in the parking
calculation, the project includes the installation of six parking spaces along the east property line
within the Palm Trail right-of-way which would also help alleviate concerns with any parking
non-conformity. The proposed landscaping will provide considerable improvement to the
property over the existing landscaping. Mr. Mankoff stated they agree with the conditions in the
staff report which will require decisive action by the purchaser immediately. He stated Class I
and Class 11 site plan approvals historically have not expired. The City passed an ordinance in
2008 to modify the LDR for these Class I and Class 11 site plan modifications to expire in two
years; however, the Class H site plan modification before the Commission this evening was
approved prior to the enactment of such amendment to the LDRs. He stated two years from
SPRAB approval which would have been the expiration date occurred before this LDR was
passed. Mr. Mankoff stated it is their position that this site plan modification has not expired and
their client's property rights would be infringed if otherwise. With regards to the waiver, he
stated it should only be necessary for the relief from the Act of God regulations. He stated the
only value that the property has in its current configuration is 12 units. Mr. Mankoff stated a
similar waiver was approved for on June 4, 2007 by the City Commission for the Hammock
House located at 1000 N.E. 9th Avenue. He stated just like this request it was a multi-family
development with respect to density and parking thus the granting of the waiver would not be a
special privilege and that the exact same waiver has been granted under similar circumstances on
another property for another applicant and owner. The staff report states that they meet the other
three requirements of the waiver. Mr. Mankoff stated this would be beneficial to the
neighborhood, the owner, and the contract vendee and urged the City Commission to support the
waiver,
Mayor McDuffie stated if anyone would like to speak in favor or in opposition of
the waiver request, to please come forward at this time.
Tom Honker, 45 year resident of Delray Beach, stated he has attended many
Commission meetings and feels all he hears are petitions for waivers and does not understand
why we need to give waivers. He stated he feels that his values are being constantly challenged.
Mr. Honker stated the City set certain height limits and these are being challenged all the time
and we always have to make compromises and he does not understand why.
There was no cross-examination or rebuttal.
Mr. Dorling stated the applicant's attorney has indicated that the Commission
considered the exact same waivers in the past and noted this is incorrect. Mr. Dorling stated the
three for the Hammock House had not expired so it was not the same thing.
13
UISIM1161
He stated this is a conglomeration of things that have expired and from that point of view he does
not feel that this waiver is appropriate in that there are too many things stacked against it. Mr.
Dorling stated with respect to the modification if the Commission decides to approve this staff has
identified some timeframes that are appropriate and realistic in the staff report. He stated this site
plan has expired and they will be required to come forward. Mr. Dorling stated for clarification
that modifications do expire and LDRs prior to that point were mute to that point and just like
Class IV and V site plan modifications they all expire. Mr. Dorling stated if the Commission
approves this waiver, the applicant will be required to come back for a new site plan and the
timeframes identified in the staff report are more realistic because he will not be able to
accomplish this within a year if he has to get site plan approval, get building permits, and then
construct it.
The City Attorney stated the Board Order talks about a site plan approval and
permits can be obtained by May 1, 2010 and re-construction to be completed by November 1,
2011.
Mr. Dorling stated the applicant had asked for the entire construction to be done
by May 1, 2010 and staff asked him if he could be more realistic with those timeframes.
Mr. Weiner asked Mr. Dorling to explain if he expects the site plan application to
be resubmitted in its same form with processing by SPRAB. Mr. Dorling stated that is what the
applicant has indicated that he is going to do and noted that the current approval has expired and
if the applicant wants to build the exact same thing then he will need to submit the exact same site
plan. Mr. Dorling stated there are some building code changes that have occurred between when
this was originally approved and now and does not know what implications that would have with
respect to this plan but he will have to hire an architect to figure it out for him. Mr. Weiner stated
these are not variances and stated waivers are placed in the code so that the Commission has
discretion. Mr. Weiner briefly discussed the requirements under LDR Section 2.4.7(B)(5). He
stated they are doing a great thing for the neighborhood and can in fact restore this building to the
proposed development which was previously approved by SPRAB. Mayor McDuffie clarified
that the same site plan approval is expected to be submitted by May 1, 2010. Mr. Weiner stated
he understands that the contract vendee is willing to do that. Mr. Weiner stated they have a tight
schedule so he is hoping to get some expedited processing from the staff.
Mr. Eliopoulos asked what we have between the units at the present time. Mr.
Gagliardi stated it is basically frame in between the units. Mr. Gagliardi stated the project will be
a little more upscale from the Hammock House and noted that he is going to use his own money.
Mr. Gagliardi stated under the rules of 1031 which is an IRS provision, he has to use that money
by a certain date. He stated no matter what the decision is of the Commission it might result in
him not being able to do this because he wants to move immediately to build this and is not
looking at 2010 but would like this built in 2009.
Mr. Eliopoulos stated he typically does not support extending timeframes but he
has talked about going green. He stated he would not normally support this but if the City is
actually getting back something that represents the footprint that was already there and saving on
materials and the environment then he can support it this evening.
IF
Mr. Eliopoulos stated there are some timeframes that may be beyond Mr. Gagliardi's control.
Mr. Frankel stated if he follows staff's recommendation and denies the waiver
what will happen. In response, Mr. Dorling stated the building will have to be secured if it is not
then it would have to be renovated or tom down to comply with the current codes which require
six units. He stated what non-conformities are made to do is to eliminate things that are non-
conforming and get them to a conforming status.
Mr. Bernard asked if the Commission denies this would the contractor apply for a
new permit. In response, Mr. Dorling stated in absence of this waiver a new site plan would have
to comply with the LDRs which would be six units versus the twelve today. Mr. Dorling stated
twelve units to the acre that existed there would not carry forward and they would end up with six
units or less.
Mr. Fetzer stated he agrees with staff's recommendation.
Mr. Bernard stated he is not going to support denying the waiver. He briefly
discussed the history of the property and stated this has been an eyesore for 4 years. Mr. Weiner
stated given the short period of time that this has to be built and constructed if we all move
forward instead of talking about what is non-conformity and when non-conformity is lost they can
either get this built by the time limits specified or decide to disagree about whether or not the non-
conformity is lost. Mr. Weiner stated he does not feel the City is losing much.
Mr. Frankel commented about a document and photos from Mary Reynolds who
believes that the condition of this building is beyond repair.
Mr. Mankoff stated he discussed this with George Diaz, Chief Building Official,
and he stated the building is structurally sound but in its current form it is not aesthetically
pleasing. He stated as part of the new site plan they will be required to meet all the new building
codes.
Mr. Eliopoulos stated if everything is concrete and then concrete is structurally
sound. He stated the entire inside such as the drywall will be gutted and it will be all concrete so
there will basically be a shell. Mr. Eliopoulos stated this definitely can be redone.
Mayor McDuffie concurs with comments expressed by Mr. Eliopoulos and given
the fact that the Commission has adopted what the Green Task Force has given them this is
certainly greener than tearing it down and starting all over again. Mayor McDuffie stated he
supports the project.
The City Attorney briefly reviewed the Board Order with the Commission who
made findings according to their consensus (attached hereto is a copy and made an official part
of the minutes).
15
Mr. Bernard moved to adopt the Board Order as presented, seconded by Mr.
Frankel. Upon roll call the Commission voted as follows: Mayor McDuffic — Yes; Mr.
Eliopoulos — Yes; Mr. Fetzer — No; Mr. Frankel — Yes; Mr. Bernard — Yes. Said motion passed
with a 4 to I vote, Commissioner Fetzer dissenting.
10.B. RESOLUTION NO. 21-09: Consider approval of Resolution No. 21-09
authorizing the City to sell property that the City acquired from Palm Beach County for unpaid
taxes located at 46 N.W. 12'h Avenue, Delray Beach, Florida, to Ginette Louis for affordable
housing purposes.
The caption of Resolution No. 21-09 is as follows:
(The official copy of Resolution No. 21-09 is on file in the City Clerk's office.)
A public hearing was held having been legally advertised in compliance with the
laws of the State of Florida and the Charter of the City of Delray Beach, Florida.
Terrill Pyburn, Assistant City Attorney stated this is property the City acquired
from Palm Beach County for unpaid taxes. Ms. Pyburn stated there is a requirement that the
City must use the property for affordable housing purposes and in turn the City has a Tri-Party
Agreement with the Eagle's Nest and they actually built a house on the property and the City is
now going to sell the land and the house to the proposed buyer Ginette Louis. Ms. Pyburn stated
pursuant to the Tri-Party Agreement the Community Redevelopment Agency (CRA) loaned the
City $150,000.00 which the City will be giving back to them for the construction of the house
and Eagle Nest will receive 90% of all additional monies that is left over and the City will
receive 10% for the administrative cost.
The City Attorney stated the total profit was $41,154.00 and the City retains 10%
which is approximately $4,000.00 and Eagle's Nest retains approximately $37,000.00 pursuant
to the Interlocal Agreement between the CRA, the Palm Beach County School District, and the
Chamber of Commerce (who was in on it in the beginning) and the City of Delray Beach.
Mayor McDuffie declared the public hearing open. There being no one from the
public who wished to address the Commission regarding Resolution No. 21-09, the public
hearing was closed.
IV*
Mr. Frankel moved to approve Resolution No. 21 -09, seconded by Mr.
Eliopoulos. Upon roll call the Commission voted as follows: Mr. Eliopoulos — Yes; Mr. Fetzer
— Yes; Mr. Frankel — Yes; Mr. Bernard — Yes; Mayor McDuffie — Yes. Said motion passed with
a 5 to 0 vote.
10.8.1. SELECTION OF EAGLE NEST HOMEBUYER: Approve homebuyer
Ginette Louis for the Eagle Nest property located at 46 N.W. 12` Avenue and approve
$75,000.00 in SHIP down payment assistance funds for the home purchase. Funding will be
available from 118 -1924- 554 -49.20 (Neighborhood Services /Other Current Charges/Homeowner
Subsidy).
Lula Butler, Director of Community Improvement, stated the second part of this is
to ask Commission approval of the homebuyer for the Eagle Nest Project and her name is Ms.
Ginette Louis. Mrs. Butler stated the City did a partnership with the Delray Community
Development Corporation to use a homebuyer that was in their pipeline. She stated Ms. Louis is
mortgage ready and ready to close. This agenda this item also includes the use of down payment
assistance in the amount of $75,000.00 from the City's SHIP funds. In August 2008, staff
brought three perspective buyers to the City Commission ranked #1, #2, and #3 and none of them
were mortgage eligible and thus the reason this item is back before the City Commission tonight.
Mayor McDuffie declared the public hearing open. There being no one from the
public who wished to address the Commission regarding the selection of the Eagle Nest
homebuyer, the public hearing was closed.
Mr. Fetzer moved to approve Resolution No. 21 -09, seconded by Mr. Eliopoulos.
Upon roll call the Commission voted as follows: Mr. Fetzer — Yes; Mr. Frankel — Yes; Mr.
Bernard — Yes; Mayor McDuffie — Yes; Mr. Eliopoulos - Yes. Said motion passed with a 5 to 0
vote.
10.C. RESOLUTION NO. 23 -09: Consider approval of a resolution for the
certification and adoption of the preliminary assessment roll for the Douglas Avenue special
assessment district.
The caption of Resolution No. 23 -09 is as follows:
• • • i !
OF DELRAY FLORIDA, PROVIDING FO' THE
CERTIFICATION AND ADOPTION OF THE PRELIMINARY
ASSESSMENT ROLL FOR THE DOUGLAS
SPECIAL ASSESSMENT DISTRICT TO INCLUDE •
AVENUE, PROPERTIES GENERALLY ABUTTING DOUGLAS
!' DESCRIBED HEREIN;
PROVIDING •• THE ASSESSMENT AMOUNT AS TO
PROPERTY; EACH PROVIDING •' THE METHOD OF
!AYMENT OF THE SPECIAL ASSESSMENT; PROVIDING
AN EFFECTIVE DATE.
17
06/02/09
(The official copy of Resolution No. 23-09 is on file in the City Clerk's office.)
The City Attorney read the caption of the resolution. A public hearing was held
having been legally advertised in compliance with the laws of the State of Florida and the
Charter of the City of Delray Beach, Florida.
Randal Kreicarek, City Engineer, stated this item is for approval of Resolution
No. 23-09 which creates a special assessment district for the Douglas Avenue project. In April,
the City Commission adopted Resolution No. 12-09 which declared the necessity to establish a
special assessment district for Douglas Avenue. Mr. Krejcarek stated Douglas Avenue is an
unpaved road and there are 14 lots along this roadway where it starts at Southridge Road and it
goes west to a cul-de-sac where it dead ends. He stated the project was brought forth to staff by
the owner of 8 of the 14 lots. The owner was trying to develop those 8 lots and staff told him
that the requirement to develop the 8 lots is to pave the road to the farthest end of the farthest lot
from Southridge. Mr. Krejcarek stated when they looked at the design of the road and looked at
what he had to build, it was almost three quarters of the road where just a cul-de-sac was left to
do. He stated it did not make a lot of sense to just build that much of it and not complete the
road. In addition, Mr. Krejcarek stated if the City only built for the 8 lots there would not be any
legal turn -a-round or opportunity for public safety to turn around if they were responding in
there. The project is estimated at $157,000.00 of which $90,277.99 is assessable to the abutting
property owners.
Mr. Eliopoulos commented that the map references two lots with #5. Mr.
Krejcarek stated although this is the same subdivision these lot 5's are in different blocks (i.e.
Block "N'— Lot 5, Block "B" — Lot 5). Mayor McDuffic asked if this connects to Southridge
Road. Mr. Krejcarek stated this connects to Southridge Road and noted that the City paved
Southridge Road with the 2000 Road Bond.
Mayor McDuffie declared the public hearing open.
Pablo Del Real, 521 Southridere Road, Delray Beach (lived here for five years
and noted his house adioins this vacant property), stated about 1 year ago he put a basketball
hoop in front of his house and kids from all around the neighborhood came and played at the
basketball hoop for about one year until a tropical storm took it down. He stated kids came from
his street, the neighboring street, and the street to the north because there is no playground within
walking distance of that area. Mr. Del Real stated on the map in addition to this Douglas Avenue
project, a planned park has been proposed for as long as the Douglas Avenue Special Assessment
has been proposed. He stated they canvassed 22 homes on Southridge Road and asked people
what they thought about the City spending money for the development of the road before the
development of the park. Mr. Del Real stated everyone disagreed with that use of funds because
there are kids in the neighborhood who do not have a place to play and everyone agreed that if
the City is going to spend any money there they should first spend it on a park and not develop
those lots. Mr. Del Real submitted a petition into the record signed by each of the residents of
Southridge Road and urged the Commission to deny Resolution No. 23-09 for the preliminary
assessment roll and instead consider the development of the park on that land.
Elizabeth Patterson, (lived on road since 1957), stated it would be nice to have
a park for the children of this area.
Andrew Phan, stated he and his wife looked all over for a home and chose this
specific area of Delray Beach because of the diversity of the neighborhood and noted while
obtaining signatures for the petition they missed two homes because one of the individuals was
not home and one was ill. However, he stated essentially everyone is against the Douglas
Avenue Special Assessment. Mr. Phan stated he believes it is more advantageous for the City to
support the building of the park for the children in the area. He stated there are 10 different
nationalities in their neighborhood and feels they need a formal place to get everyone together.
Mr. Eliopoulos asked if the park was there would everyone be opposed to the road
being built. Mr. Phan stated the majority of the people are against it because they believe the
road will bring unwanted traffic through their neighborhood. He stated there is a road that runs
directly through two neighborhoods but the City put a fence at the end of a road and does not
understand why. Mr. Phan stated if the City were to make another road he suggested that they
take the wooden fence down that was built. He stated it is very unsafe and on 4t" Street one
house cast of his house there are many car accidents that occur and their neighborhood is a safe
haven or pit stop for anyone. Mr. Phan stated no one wants this road built with the exception of
maybe one or two people.
Eldora (concerned mother), commented about the Goals for 2019 posted in the
Commission Chambers about quality neighborhoods and quality educational opportunities. She
stated parks can help keep kids out of trouble.
A Resident who fives on Southridge Road, supports building the park as like his
other neighbors.
Mr. Phan stated he concurs with Commissioner Eliopoulos when he said that the
best project is the one that is not built and noted that the greenest project would be a park. Mr.
Phan stated it is a growth area and it unifies people and brings opportunity. He stated although
his neighborhood is very unique and close knit, their surrounding neighborhoods have a lot of
issues. Mr. Phan stated their neighborhood is an enclave for children to find peace and safety to
play. He stated the road is going to bring more trouble into their neighborhood and noted that
the right thing to do for their neighborhood and for the City of Delray Beach is to bring some
green.
Mr. Del Real stated they are losing kids in that area because they do not have a
place to go and are looking for other activities.
The City Manager stated the City is talking about building a dead end street with
12 lots on it and if the City had the tax revenue from those 12 homes we might be able to do
more things. He stated this is really about two different pots of money and is glad that everyone
understands the desire of the neighborhood to build a park. The City Manager stated there is an
opportunity to build a pocket park there and the City can move forward with that. However, he
stated it is a separate pot of money to build a park from what would be used on the road.
19
06/02/09
Mr. Eliopoulos asked if the City has any building permits from the owners. The
City Manager stated the owners have not submitted any because they cannot get a permit
approved until the road is built.
The City Manager stated there was a comment made about the fence between the
two sections. He stated to his understanding it was in place when the City annexed Woods of
Southridge when it was under County jurisdiction. The City Manager stated there is strong
opposition to removing it because if it were removed you would have a shortcut from 4h Avenue
over to Linton Boulevard going through this neighborhood. He stated there was one lot owner
that asked to have it removed and noted there may be some restriction on removing it. The City
Manager stated the owner of Lot 17 wanted to develop by connecting to the road you see to the
southwest of her.
Mayor McDuffie stated the City owns the land for the park and it is not to be sold
to a private owner. The City Manager stated the City has never been asked to develop it before
so staff can look at the Capital budget for the upcoming year.
Mr. Frankel stated over 20 people who live there do not want it but they want a
park. He stated he understands it is not the same issue; however, that community does not seem
to be in favor of it.
Mr. Eliopoulos stated the two lots will eventually be developed. Mr. Frankel
questioned why the owners of these two lots are not present this evening. Mr. Eliopoulos stated
he thought that they would be here saying they do not want to be assessed and they do not want
this happening because they cannot afford this with these economic times.
Mr. Bernard stated he voted against creating a special assessment district in April
so he is still against it.
Mr. Fetzer stated although these are two different issues, too many residents are
Mayor McDuffie asked if economically, does the special assessment pay for the
road or does the City end up still paying. The City Manager stated the city owns Lot 5 on the
south side and therefore we are paying the assessment on that piece and the City is paying for the
water and sewer work out of the Water and Sewer Fund and drainage out of the Stormwater
Utility Fund. Mayor McDuffie stated in these economic times and given the oppositions of this
he will not support this tonight. However, Mayor McDuffie stated the road will eventually be
built but there is park land that will also be built. Mayor McDuffie stated he will not support this
tonight.
Mr. Eliopoulos encouraged staff to see how the park can get developed. He stated
from what he is seeing the people who would be assessed are not present to fight the assessment
so there must be an interest that they are in favor of it and that they are willing to pay for it. Mr.
Eliopoulos stated down the road they may have to pay even more.
ME
Mr. Eliopoulos moved to approve Resolution No. 23 -09, seconded by Mr. Fetzer.
Upon roll call the Commission voted as follows: Mr. Frankel — No; Mr. Bernard — No; Mayor
McDuffie — No; Mr. Eliopoulos — Yes; Mr. Fetzer — No. Said motion passed with a 4 to 1 vote,
Commissioner Eliopoulos dissenting.
10.D. ORDINANCE NO. 16 -09 (SECOND READING /SECOND PUBLIC
HEARING): Consider an ordinance accepting the recommendations contained within the Old
School Square Historic District Resurvey Report including extending the Period of Significance
to 1965 and reclassifying 23 properties from non - contributing to contributing.
The caption of Ordinance No. 16 -09 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY
OF DELRAY BEACH, FLORIDA PROVIDIING FOR THE
ACCEPTANCE OF THE RESURVEY REPORT OF OLD
SCHOOL SQUARE HISTORIC DISTRICT INCLUDING
EXTENDING THE PERIOD OF SIGNIFICANCE TO 1965 AND
RECLASSIFYING 23 PROPERTIES FROM NON-
CONTRIBUTING TO CONTRIBUTING, PROVIDING A
GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND
AN EFFECTIVE DATE.
(The official copy of Ordinance No. 16 -09 is on file in the City Clerk's office.)
The City Attorney read the caption of the ordinance. A public hearing was held
having been legally advertised in compliance with the laws of the State of Florida and the
Charter of the City of Delray Beach, Florida.
Paul Dorling, Director of Planning and Zoning, stated this is consideration of
Ordinance No. 16 -09 which adopts the recommendations of the Old School Square Historic
District resurvey report which includes the expansion of the Period of Significance (POS) to
1965 and reclassification of 23 properties from non - contributing to contributing. Mr. Dorling
stated the City Commission considered this at their meeting of May 5, 2009 at which time some
questions were raised relating to the Period of Significance and certain properties considered for
reclassification. At that time, Mr. Dorling stated the Commission suggested that the consultant
of the resurvey report be present to answer specific questions. He stated with respect to the
properties that are proposed for reclassification, staff has identified that each of these structures
is of an architectural style which is identified as significant in that survey and was built during
the Period of Significance identified in the report and meets one or more of the review criteria
that is identified in LDR Section 1.1.1. Therefore, staff feels that it is appropriate that these 23
properties be reclassified and if these properties meet this criteria and would like not be deemed
contributing then it is really up to the property owner to indicate why it is inappropriate for that
structure if it meets these criteria to be so designated.
21
06/02/09
Ivan Rodriguez, Principal with RJ Heisenbottle Architects, Inc., Coral
Gables (Masters in Architectural History and Historic Preservation, 37 years of experience
with history Preservation in Miami/Dade County, conducted the original historic site
survey in Miami/Dade County in 1972, a comprehensive survey in 1977 that identified
5,000 historical sites countywide, co-wrote the historic Preservation ordinance, wrote a
book on architectural development), stated he had the task of resurveying four historic districts
in the area. Mr. Rodriguez stated one of the major criteria for designating historic properties and
historic districts is a 50 year threshold which means that properties or districts have to be 50
years or older in order to qualify for historic designation status unless they are deemed to be of
exceptional significance. There are four historic districts in the case of Old School Square
Historic District which is significant at the neighborhood level. The structures within that
district that were originally designated or considered within that original site survey were built
up to 1943/1945 because that is the period that met the 50 year or older threshold. He stated
from the time that these districts were originally surveyed to now, there are a significant number
of structures that have achieved that 50 year threshold. Mr. Rodriguez stated within 20 years and
50 years a significant number of additional structures will be considered for historic designation.
He stated in 1945 that was the end of World War 11 and in Delray Beach as well as in many of
the communities around South Florida there was new serge of development and construction.
He stated many of the soldiers that were trained in the area got what they call "sand in their
shoes" and came back and relocated here with their families. Mr. Rodriguez stated it made sense
to study the possibility of extending that Period of Significance beyond the original 1945 period.
He stated his firm found that there were a number of structures within the Old School Square
District as well as the other historic districts that met the otherwise criteria for historic
designation for inclusion to be considered contributing. Mr. Rodriguez stated when dealing with
individual historic sites or individual historic landmarks that particular landmark (i.e. Old School
Square buildings, the Sundy House) are individually significant and structures within the district
either contribute or do not contribute. He stated how they contribute is they are within the
stylistic features that are common to that district. Mr. Rodriguez stated by extending the Period
of Significance they are saying that a number of additional buildings belong there and fit in. He
stated what makes a building within a district contributing or non-contributing is they have to
meet a series of criteria (i.e. material, scale, etc.). Mr. Rodriguez stated this is a judgment call
and he is being subjective,
Mayor McDuffie declared the public hearing open.
Cheryl Abramson, 21 N.W. 2" d Street, Delray Beach (co-owner), distributed a
handout to the Commission and read a statement into the record. She stated everyone loves
Delray Beach but feels that this proposed ordinance will discourage investment in Delray Beach.
Ms. Abramson stated she actively visited many historic areas and has been a member of the
National Trust for Historic Preservation for 20 years and appreciates preservation and
understands what architectural significance means. Ms. Abramson asked why 1945-1965 is a
Period of Significance in Old School Square. She stated she objects to the reclassification of 21
N.W. 2nd Street. Ms. Abramson asked why this property was considered non-contributing in the
2005 GAI Report and now in the 2008 Heisenbottle Report it is considered contributing. She
asked what happened between 2005 and 2008 to make it contributing since it was 50 years old in
2005. Ms. Abramson distributed ten petitions to the Commission.
22
06/02/09
14 of those people said they did not want to be a part of this but she only obtained ten petitions.
Sue Healand, read into the record an email dated June 2, 2009 from Bob Ganger
to Joann Peart regarding Ordinance No. 16-09.
Al Surerina, owner of 8 East Atlantic Avenue (SURE RING, INC. Delray
Beach and has been authorized to speak on behalf of Butch Johnson who owns 32 East,
inquired why after their buildings have had major renovations on them that they would still be
considered a historical building. Mr. Surering stated Mr. Rodriguez noted that he was making a
big judgment call which he agrees with and he also said he was being subjective. Mr. Surering
stated Mr. Rodriguez is being very subjective.
Don Morikami, 326 N.E. 1St Avenue, DeIrn Beach, stated he objects to his
property being designated as contributing. He stated the explanation Mr. Rodriguez gave of the
Period of Significance is not justification. Mr. Morikami stated as Ms. Abramson said
everything will be contributing and historic and all the country clubs built in the 1970's and
1980's in Boca Raton fifty years hence will be significant; 50% of Los Angeles will be
significant because post-war development occurred. Mr. Morikami stated he is not against a
significant building or district but you also have to consider buildings that are significant as well.
He presented and displayed models that he developed and stated he moved to Delray Beach for
its urbanity. Mr. Morikami stated he is not against historic designation but feels his development
right is being taken away.
Susan Kozawa Morikami, 326 N.E. 1s' Avenue, Delray Beach (Land
Planner), stated many homes of the people present tonight are very small and were built in the
1950's but architecturally they are not that significant. She feels the district is already protected
quite well as it is hard for them to do much to their property. Mrs. Morikami asked what the
significance is for the history of this period and was it actually in the Old School Square District
or was it maybe in Kings Point or Century Village (communities built in the 1960's). She stated
as the Historic Preservation Planner has noted from 1958-1965 there was no building built of
significance in the Old School Square District.
Mr. Morikami stated even without the historic designation being in a historic
district they would be bound to develop something of integrity and character that is consistent
with the neighborhood. Mr. Morikami stated he agrees with Mr. Rodriguez that sometimes it can
be subjective. Mr. Morikami stated he has 35 years experience and is a Landscape Architect/
Urban Designer and has a Masters Degree from Harvard University.
Mark Krall, 190 S.E. 5th Avenue, Delray Beach, representing Philip
Vultanio and his family who own the Doc's restaurant parcel and the Dunkin Donuts
parcel to the west stated he spoke on this matter previously and stated their opposition to
designating Doc's as a contributing structure. The property has been modified several times over
the years including the addition of bathrooms, awnings, and outdoor tables. He stated air
conditioners are on the roof and the original signage has changed drastically. Mr. Krall stated
they do not see anything historic about the property other than the fact that the current fast food
restaurant has a name associated with a prior ice cream stand that operated in that location in the
23
early 1950's. He stated the type and style of food has changed dramatically over the years and
unlike a historic home which can serve as someone's residence this is a commercial property
which requires a viable business in order to sustain itself. Mr. Krall stated at the current time the
business is struggling and but for the fact that the tenant is paying rent below market rates the
business would be facing extreme difficulties and probably could not survive. He stated the
property owner also owns the Dunkin Donuts property which is contiguous and immediate to the
west of the Doe's property. Mr. Krall stated this is property in the heart of the downtown
business district and must be flexible to ever changing economic trends and demands. He stated
to strap this property owner with a contributing designation is not inequitable but it is unjust and
the only mitigating factor would be to allow the property owner to opt out of such a designation
in the future. Mr. Krall stated this solution has been suggested and endorsed by the Community
Redevelopment Agency (CRA), the Downtown Development Authority (DDA), and the West
Atlantic Redevelopment Coalition (WARC). He urged the Commission to not consider the
Doc's property as contributing but rather consider it as non-contributing or at least afford the
property owner the opportunity to opt out of the contributing designation in the near future.
Joann Peart, 107 N.W. 9th Street, Delray Beach (member of the Historic
Preservation Board), stated years ago there were many recommendations to tear down what is
now Old School Square (formerly an old elementary school) and it has turned out to be the jewel
of the community and is in the heart of the Old School Square Historic District. Mrs. Peart
stated many problems have come up on the Historic Preservation Board due to the fact that there
were no current surveys. She stated the City had the surveys done and hired this independent
person that everyone wanted. Mrs. Peart stated we have the consultant and his advice, he is
qualified, and she believes we should take his advice. She stated there is a lot of misinformation
and scare tactics going around. Mrs. Peart read into the record a letter written by Linda Kidd.
who lives in the Old School Square Historic District (246 North Swinton Avenue) and is in favor
of the surveys and feels that we are chipping away at the historic district.
Karen Vanwormer, 698 Lakeshore Drive, Delray Beach (member of the
Delray Beach Preservation Trust and the previous Director of the Delray Beach Historical
Society) supports the recommended changes and the recommendations of the resurvey. Mrs.
Vanwormer stated she specifically supports Doc's as part of her personal history as a safety
patrol on that comer when she attended Delray Beach Elementary School and is happy that the
school was preserved. She hopes that the City maintains its support of historic districts and the
history of Delray Beach.
Lois Brezinski, President of the Delray Beach Preservation Trust, stated when
these issues started to come to the forefront 3 or 4 years ago nothing surprises her more than to
see the emotion that this particular issue brings out in people. Ms. Brezinski stated she is
amazed at how people do not want to be historic and are afraid of renovating their homes
because the fact is that historic preservation and towns across the country generate an incredible
amount of revenue for the towns, states and cities that they are in. She discussed booklets put
together by the University of Florida, the University Of Florida Levine College Of Law, the
Department of Urban and Regional Planning, the Center for Tourism for Research and
Development, the University Of Florida College Of Health and Human Performance, the Florida
Trust for Historic Preservation, and others. Ms. Brezinski stated the City of Sarasota recently
24
designated districts that are called "conservation districts" as defined in the historic preservation
chapter of that city's plan 50% of the structures must be 40 years or older. She stated studies
have been done by people who are much more intelligent than us who qualify structures in the
State of Florida 50 years and older as historic.
Cecilia Josephine Egan, 272 Thatch Palm Drive, Delray Beach, speaking on
behalf of her father and stated when they bought Doc's, Dunkin Donuts and the lot in-between it
was a closed rat infested, bat invested, nasty building that sat vacant for years. She stated they
bought it and tried to get it developed and nobody was interested in it. Ms. Egan stated the City
or the Historic Board should have bought it at that time recognizing that it might have been
historic at some point. She stated when Frances Bourque started developing Old School Square
her parents were involved with that because they see merit in historical buildings. Ms. Egan
stated that Doc's is not the Parthenon and noted that they have two similar buildings in New
York built in 1951 and 1963 with the same type structure that are very viable businesses. She
stated they have no intention of tearing Doc' down but if Doc's cannot meet the requisite market
value that is going to be due when their lease is up, something else will have to go in there. Ms.
Egan stated if someone cannot pay market value for the building it is going to sit vacant again. If
they cannot rent the building at market value, they will donate the building to the Historic
Preservation Board and they can move it to any lot they would like. She urged the Commission
to not tie their hands and make them sit with a building that is not viable in the future.
Al Surerina, stated they realize that they have to get the approval from the City
of Delray Beach before making any renovations to their property. He stated all they are asking
for is specific clarification as to how these buildings are being qualified as historic buildings.
Mr. Surering stated he has had major renovations done to the side of his building and from his
perspective he does not understand how that can be qualified as a historical building.
Elaine Burke, lives in the 300 block of North Swinton Avenue, Delray Beach
(her home is on three lots) stated the map she received from the City had her northern two lots
included in the contributing properties and not the southernmost lot. She stated she is opposed to
this. Ms. Burke stated she was born here and grew up here and has seen many changes to the
point where it is almost unrecognizable to many people. She stated she is an interested property
owner and Delray Beach has to develop and expand for business. Ms. Burke stated the
restrictions are very real and this will affect the property owners.
Philip Colnon, 680 N.W. 11th Street, stated he is against anything that takes
away property rights from a property owner. Mr. Colnon stated it is unfair to force people into
something more than what they are already in and a lot of these people did not buy when it was a
historic district. He stated this should be looked at as more of a property rights issue instead of a
historic issue.
There being no one else from the public who wished to address the Commission
regarding Ordinance No. 16-09, the public hearing was closed.
M
06/02/09
Mr. Frankel stated he did not support this ordinance on first reading and after
hearing all the comments nothing has changed his mind this evening. He stated he does
appreciate the Historic Preservation Board because he thinks history is important to Delray
Beach but from the public comments this evening, one resident out of the twenty-three properties
wants to be considered contributing. Mr. Frankel stated on page two of the ordinance it talks
about the Historic Preservation Board recommended approval with a 4 to 0 vote. However, Mr.
Frankel stated in the memorandum dated April 27, 2009, the DDA and the CRA reviewed it and
both boards recommended approval made upon the condition that those property owners who
would like to maintain their classification as non-contributing be granted that request. He stated
22 homeowners are not interested.
Mr. Bernard stated he voted against this at first reading and will not support it this
evening. He stated Mr. Rodriguez did not convince him on the concerns that were raised at first
reading.
Mr. Fetzer stated he did not hear compelling arguments that convince him that
this is the right thing to do. He stated he is a strong supporter of historic districts but he does not
have enough to go on here to convince him otherwise. Therefore, Mr. Fetzer stated he will not
support this ordinance.
Mr. Eliopoulos stated he was not expecting a presentation on definitions but was
actually expecting a presentation as to why the 23 structures were considered historic or
contributing. He stated he believes that many of these people bought their properties when it
was a historic district and feels it is a big difference if someone bought and then it became a
historic district. Mr. Eliopoulos stated he would like to know about how one would opt out of a
historic district. He stated if there are options for someone to opt out and they prove why they
shouldn't be included then that is where he feels it is important as to how you preserve historic
neighborhoods and/or districts. Mr. Eliopoulos inquired about the procedure and how does the
procedure change should you go and get this district on the National Historic Register. Mr.
Eliopoulos supports this district and expressed concerns with the 23 structures and how they
were classified.
Mayor McDuffie stated quite some time ago the City was struggling with one or
more of the historic districts and as a Commission they made a decision that they needed to
resurvey every one of them. The process that everyone is going through right now is resurveying
every district in the City because they were having problems in determining exactly what the
inventory of contributing structures in the City of Delray Beach in each district was at the time.
Mayor McDuffie stated he has been adamant that age alone does not qualify something as being
historic and noted he came from a part of Delray Beach called Osceola Park and when he grew
up it was all dads that came back after World War II and built little cottages and it is not historic
at all. He agrees that there should be some mechanism for the Commission to go through to
allow the public to petition to join or not to join because he does not believe in forcing things on
people. Mayor McDuffie stated at the same time he has seen a number of the historic homes
decay and is still watching some of them decay that he is afraid the City will lose before
someone takes them an renovates them. He concurs with Commissioner Eliopoulos that he too
was looking for an inventory or description and not just an entire boundary that said if you are
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06/02/09
colored a certain color you are contributing because of the age. He stated age alone cannot be
the determining factor and other things have to be taken into consideration. Mayor McDuffie
stated we need to look strongly at the surveys and look at what is being suggested contributing.
He stated the definition of appraisal is an "opinion of value" and what we have tonight is also an
opinion. Mayor McDuffie stated we are required by law to allow the public to come petition if
they do not agree with the Commission's opinion and he feels the City needs something like that
injected into these ordinances.
Mr. Eliopoulos asked what the status is of someone opting out. The City Attorney
stated there is not really an "opt out" provision.
Mr. Dorling stated he has explanations and photos of why the 23 properties are
contributing. Mr. Eliopoulos stated he feels this information should have been in the
Commission's agenda packets.
The City Attorney stated the reclassification of these properties as contributing is
what you would be opting out of not opting out of the district. She stated there is a mechanism
for boundaries.
The City Manager stated the City has been contacted by many people who do not
want it and the City can contact those who the City has not heard from and see if some are
willing to be added and bring that list at a later date. Mayor McDuffie suggested that the
Commission discuss putting a mechanism in place throughout all the districts at a Workshop
Meeting.
Mr. Eliopoulos moved to adopt Ordinance No. 16 -09 on Second Reading/Second
Public Hearing, seconded by Mr. Fetzer. Upon roll call the Commission voted as follows: Mr.
Bernard — No; Mayor McDuffie — No; Mr. Eliopoulos — No; Mr. Fetzer — No; Mr. Frankel — No.
Said motion was DENIED with a 5 to 0 vote.
10.E. ORDINANCE NO. 17 -09 SECOND READING /SECOND PUBLIC
HEARING): Consider an ordinance accepting the recommendations contained within the West
Settlers Historic District Resurvey Report including extending the Period of Significance to
1970, and reclassifying 7 properties from non - contributing to contributing and amending the
Land Development Regulations to amend the boundaries of the West Settlers Historic District to
provide for the removal of the Atlantic Grove Development.
The caption of Ordinance No. 17 -09 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY
OF DELRAY BEACH, FLORIDA, PROVIDING FOR THE
ACCEPTANCE OF THE RESURVEY REPORT OF WEST
SETTLERS HISTORIC DISTRICT INCLUDING EXTENDING
THE PERIOD OF SIGNIFICANCE TO 1970 AND
RECLASSIFYING 7 PROPERTIES FROM NON-
CONTRIBUTING TO CONTRIBUTING; AMENDING THE
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06/02/09
LAND DEVELOPMENT REGULATIONS OF THE CITY OF
DELRAY BEACH, FLORIDA, BY AMENDING SECTION
4.5.1, "HISTORIC PRESERVATION SITES AND DISTRICTS ",
SUBSECTION (L), "DESIGNATION OF HISTORIC
DISTRICTS ", SUBSECTION (5), "WEST SETTLERS ", TO
PROVIDE FOR THE REMOVAL OF CERTAIN PROPERTIES
WITHIN THE WEST SETTLERS HISTORIC DISTRICT AND
AMENDING THE WEST SETTLERS HISTORIC DISTRICT
BOUNDARIES, PROVIDING A GENERAL REPEALER
CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE.
(The official copy of Ordinance No. 17 -09 is on file in the City Clerk's office.)
The caption of Ordinance No. 17 -09 (Version 2) is as follows:
OF DELRAY BEACH, FLORIDA, PROVIDING •' THE
ACCEPTANCE OF REPORT OF
SETTLERS •• DISTRICT INCLUDING r
THE PERIOD OF SIGNIFICANCE TO 1970 AND
RECLASSIFYING 7 PROPERTIES I FROM NON-
CONTRIBUTING TO CONTRIBUTING, PROVIDING
GENERAL • • k • SAVING CLAUSE, ♦ r
AN DATE.
(The official copy of Ordinance No. 17 -09 (Version 2) is on file in the City
Clerk's office.)
The City Attorney read the caption of the ordinance and stated Version 2 retains the boundaries
as it currently exists and Version 1 changes the boundaries. A public hearing was held having
been legally advertised in compliance with the laws of the State of Florida and the Charter of the
City of Delray Beach, Florida.
Paul Dorling, Director of Planning and Zoning, stated Ordinance No. 17 -09
adopts the recommendations of the West Settlers Historic District resurvey report which includes
the expansion of the Period of Significance (POS) to 1970, reclassification of 7 properties, and
amending the southern boundary. Mr. Dorling stated when the district was originally created in
1997 there was a contributing to non - contributing ratio of 43% contributing in the district to 57%
non - contributing. He stated with the development of the Atlantic Grove sites and the addition of
those properties, the ratio dropped to 26% contributing in the district versus 74% non-
contributing. Mr. Dorling stated in that report part of the recommendation includes removing
Atlantic Grove which would bring that contributing versus non - contributing structures to 58%
contributing and 42% non - contributing.
01:1
!• 1 1•
Mr. Ehopoulos asked if there is at any point in time when the City goes to the
state for funding or something would that hurt the West Settlers District with those numbers. He
stated he is fine with staying in the district. Mr. Dorling stated in the creation of districts the
desire is to have a majority contributing versus non-contributing and noted when it was
originally created in 1997 it was a 43% contributing and 57% non-contributing, He stated it is
generally a threshold that is desirable.
Ivan Rodrimz, Consultant with RJ Heisenbottle Architects, Inc. stated that
is exactly the intent. Mr. Rodriguez stated if the City were to go for a National Register of
Historic Districts nomination then the ratio of contributing versus non-contributing would hurt
the nomination if the City were to go that route. Also, Mr. Rodriguez stated the community may
feel very strongly that they want to retain what was there originally as the West Settlers area. He
stated there are other ways of recognizing it and the Commission can consider historic markers
that may actually tell the story of what was there which no longer is. Mr. Rodriguez stated in
this case, Atlantic Grove is a tough one to justify keeping within the district boundaries because
professionally it is hurting the integrity of the district.
Mr. Bernard asked what the percentage would be for Version 2. Mr. Dorling
stated the percentage would drop to 74% non-contributing; 26% contributing (currently the
percentage now because it is in the district). Mr. Dorling stated if Atlantic Grove is taken out
then it would be 58% contributing and 42% non-contributing. Mr. Bernard asked when Atlantic
Grove came in front of the Historic Preservation Board did they consider how it would change
the percentage of contributing to non-contributing from 58% to 26%. Mr. Dorling stated he
does not know if the HPB discussed that but they were looking at new development and they
would not deny new development because it would negatively impact that ratio. He stated
whatever is built there is going to have a negative impact with respect to the ratio because it is
new versus contributing.
Mayor MeDuffic declared the public hearing open.
Ralph Johnson (teaches historic preservation and Professor of Architecture
at Florida Atlantic University (FAU), on the Board of Advisors to the National Trust for
Historic Preservation, Trustee Emeritus for the Florida Trust for Historic Preservation),
urged the Commission to support Version #2 of the ordinance and stated he has been on
EPOCH's (Expanding and Preservation Our Cultural Heritage) Board of Directors for about ten
years. Mr. Johnson stated the area in the blue is a part of this culture and the area in the white is
also part of this culture. He stated if the City removes the blue area they are further weeding
away at that cultural history and this is why he is opposed to it. Mr. Johnson stated in terms of
the quality of the environment Atlantic Grove brings a great deal to the neighborhood. He stated
he does not understand why the boundaries have to be taken out and feels it is a plus for it to be
there. Mr. Johnson stated they welcome the townhouses in their district and applauds the
Commission for doing the resurvey. He stated 50 years is only one of the criteria and noted that
buildings become 50 years over time and then you look at them again and see if they still have
the significance. Mr. Johnson urged the Commission to keep Atlantic Grove in the district.
19
Pastor Barr, St. Paul Missionary Baptist Church, Delray Beach, stated he
retired with 20 years of active duty service in Afghanistan to Kuwait. Mr. Barr stated the
uniform has changed; however, it does not mean he did not serve his country. Mr. Barr stated he
is against the blue area being moved out of the West Settlers District not because of the
development that is being done but because their district should be given the opportunity to have
something developing. He urged the Commission to give them the same beautification that is
being done throughout the entire city. Mr. Barr stated he is appalled to hear that to keep this blue
area in our district is not good for the district and this statement should be reconsidered. He feels
that every area has the opportunity to be good and the West Settlers District has the opportunity
to look good. Mr. Barr stated he should be able to take his grandchildren and say this was owned
by your parents and he is against moving the West Settlers District.
Vera Farrington, represents the Founders Board Members, stated there were
a group of people who came before the Commission in 1996 asking why they cannot have a
piece of property in this section of Delray Beach where African Americans lived years ago. Ms.
Farrington stated the City has four historic districts all of them east of Swinton Avenue and none
west of Swinton Avenue. She stated their African-American school was designated in 1894 but
there was very little about them. Ms. Farrington stated most of the Founders Board members are
deceased but most of the heirs are still here and are proud that their grandparents worked in the
blue areas as well as the other surrounding areas. She urged that we do not take those blue areas
away and when that historic district was designated it did have enough historic information in it
or else it would not have been designated. She urged the Commission to not reduce the size of
that historic district and would like the same historic boundary that they designated in 1997.
Bryce Newell, 103 N.W. 3A Avenue, Delray Beach, would love for his home to
be contributing.
Waymon Dixon, resident of the West Settlers District and Pastor with St.
Paul's Baptist Church, concurs wholeheartedly with comments expressed by Ms. Farrington.
There being no one else from the public who wished to address the Commission
regarding Ordinance No. 17-09, -the public hearing was closed.
Mr. Eliopoulos stated renovations do not necessarily take away the historic value.
He supports Version #2 of the ordinance and concurs with comments expressed by Ms.
Farrington,
Mr. Fetzer stated he did not hear any compelling reasons to make them want to
change these boundaries and supports Version #2 of the ordinance as well.
Mr. Frankel concurs with comments expressed by Commissioner Eliopoulos and
Commissioner Fetzer.
Mr. Bernard agrees with Version #2 of the ordinance and hopes that in the future
we can increase the percentage of contributing property with the empty lots.
30
�IM
Mayor McDuffic stated this is all part of a great big process of surveying all of
these districts and trying to satisfy the needs of the community while protecting our historical
areas in the city. He stated he has a great deal of respect for Ms. Farrington and her ideas and the
community as well. Mayor McDuffic thanked everyone for their input and stated he too will
support Version #2 of this ordinance.
Mr. Eliopoulos moved to adopt Ordinance No. 17-09 (Version #2) on Second
Reading/Second Public Hearing, seconded by Mr. Frankel. Upon roll call the Commission voted
as follows: Mayor McDuffie — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes; Mr. Frankel — Yes;
Mr. Bernard — Yes. Said motion passed with a 5 to 0 vote.
10.F. ORDINANCE NO. 27-09 (FIRST READING/FIRST PUBLIC HEARING):
Consider a city-initiated amendment to the Land Development Regulations (LDR) Appendix
"A" "Definitions", to provide an updated definition of "Family". If passed, a second public
hearing will be held on July 7, 2009.
The caption of Ordinance No. 27-09 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY
OF DELRAY BEACH, FLORIDA, AMENDING THE LAND
DEVELOPMENT REGULATIONS OF THE CITY OF DELRAY
BEACH, FLORIDA, BY AMENDNG APPENDIX "A",
"DEFINITIONS", TO PROVIDE AN UPDATED DEFINITION
OF FAMILY; PROVIDING A SAVING CLAUSE, A GENERAL
REPEALER CLAUSE, AND AN EFFECTIVE DATE.
(The official copy of Ordinance No. 27-09 is on file in the City Clerk's office.)
The City Attorney read the caption of the ordinance. A public hearing was held
having been legally advertised in compliance with the laws of the State of Florida and the
Charter of the City of Delray Beach, Florida.
Paul Dorling, Director of Planning and Zoning, stated this ordinance will provide
an updated definition for the term family. Mr. Dorling stated currently the definition in the LDR
is one which has a graduated scale and allows additional persons to live with a family depending
on how many family members there are with a total of five (5) unrelated persons per dwelling
unit as a maximum. The new definition of family that is before the Commission tonight is
changed to reflect two or more persons that live together but not more than three (3) that are
unrelated.
At its meeting of May 18, 2009, the Planning and Zoning Board did not
recommended this; with a vote of 5 to 0 in opposition. The Board felt the ordinance was a little
broad and they agreed with some testimony that was provided by a man (George Jan) from Palm
Beach Community College who suggested that four (4) might be more appropriate than three (3).
At that point, the Board recommended denial.
31
06/02/09
Mayor MeDuffie declared the public hearing open.
George Jan, resident and property owner in Delray Beach, provided the
Commission with the statistical analysis regarding the proposed ordinance and gave a brief
PowerPoint presentation. Mr. Jan stated he reviewed information from the 2000 census as well
as the interim 2005-2007 census and the average family size in the City of Delray Beach
increased from 2.87 to 2.94. He stated there has been no significant statistical change with
regards to the size of the family. Mr. Jan stated approximately 36% of the families in Delray
Beach have exactly two members in it, in the western areas the average family size is around 2 or
a little more than 2, in the downtown area between Federal Highway and 1-95 and Linton
Boulevard and Atlantic Avenue the average family size is closer to 4. He stated under the new
ordinance proposed 3 or fewer would represent 74% of all the families and that is not statistically
significant. Mr. Jan stated if the family definition was 4 or fewer that would cover 95% of the
family and this would be a statistically valid conclusion. Mr. Jan stated if there is going to be a
change it is recommended that it be from 5 to 4 individuals. He stated the definition of 3 or
fewer individuals is not statistically justified by the data. However, Mr. Jan stated 4 or fewer
individuals is justified by the data and therefore, if the Commission is going to make a change to
include a definition of 4 fewer individuals in the definition of family.
Michael Weiner, Attorney with Weiner & Aronson, P.A., 10 S.E. I't Avenue
Delray Beach, stated the Commission is trying to Legislate the definition of "family" and its
responsibility is at the highest level. Mr. Weiner stated in 2003 the State Department issued a
press release stating that the right to found a family is protected by the Universal Declaration of
Human Rights. Mr. Weiner stated it would be their preference that the Commission not legislate
at all with respect to the definition of family but if they must chose one at least chose family plus
4. He explained that is those related by consanguinity plus 4 other individuals. The reason for
this is that it means that far fewer households would be in danger of being broken up by the new
legislation. Mr. Weiner stated the greatest concentration of these larger households as they
presently exist is east of 1-95 and west of Federal Highway. He stated if the City keeps this at 3,
it would disproportionately fall on a certain segment of individuals who are economically
disadvantaged. Mr. Weiner stated under the circumstances he urged the Commission to take
steps they may be making here tonight in general and in particular if the Commission must move
forward on some legislation chose a definition of family that will be neutral in its impact and not
cause selective enforcement and be reasonable in addressing the presently existing households in
Delray Beach, Florida.
Kevin McNally, 624 Gardenia Terrace, Delray Beach, urged the Commission
to vote in favor in this amendment and stated it makes sense to him that three unrelated people is
a pretty extended family.
Pat Archer, 380 Sherwood Forest Drive, Delray Beach, stated she is here to
provide support for this ordinance in reduction of a definition of family members. Ms. Archer
stated she really believes that 4 is the appropriate number for the definition of family. She stated
the City is also determining how many unrelated people can live together in a single family,
home. Ms. Archer stated in Delray Beach there are a lot of seasonal people who come down and
rent properties with another couple.
32
06/02/09
She stated if you have two couples renting a property already with 3 as the number there would
be a problem and feels the City is driving people who are seasonal people who come and support
the town to the underground. Ms. Archer stated she understands the rationale for wanting it to be
3 but she really thinks in Delray Beach it is not an appropriate number. She stated we are not
talking about the number of people who might be live-in help and this may be something the
Commission may want to consider. Ms. Archer urged the Commission to keep the number for
the definition of family at 4.
Alaina Weiss, student, asked why the average for a household is so small and
why there is a limit. She stated she feels it is pathetic that two or three is the national average.
Kathy Smith, 501 Eldorado Lane, Delray Beach, stated she had been living in
Delray Beach for 22 years and concurs with comments expressed by Mr. McNally that the
Commission should vote in favor of the amendment.
John Krane, 217 Beverly Drive, Delray Beach, supports this ordinance and
urged the Commission to also vote for this ordinance. He stated allowing five unrelated people
per dwelling unit have created a hostile environment in his particular neighborhood. Mr. Krane
stated by allowing five unrelated people to live together. There are five separate cars, people
with five different schedules coming and going at times throughout the day and night, and their
friends visit day and night at different times. He stated there was a situation where there was a
particularly large house at the end of his street and five young ladies from one of the local
colleges lived there for 1 %Z years. Mr. Krane stated it was a sorority house and they had the
police there many times, noise violations, beer bottles, and cars parked all over the swale. He
stated recently they now have duplexes on his street and in his neighborhood and that allows ten
unrelated people to be in a single building and that is ten cars, ten friends, ten schedules coming
and going at all hours of the night. Mr. Krane strongly urged the Commission to vote in favor of
this. He stated in relation to the statistical presentation by Mr. Jan, since 3 was the average he
used that is strong support for using 3 as the number in Delray Beach. Mr. Krane stated he also
believes that the data was based on the blood related relatives and not unrelated. He stated if we
are using statistics he used find out what the statistics are for having the number of unrelated
people living in a dwelling unit.
Dr. Harold Jonas, 297 N.E. 6'h Avenue, Delray Beach (President of the South
County Recovery Association (SC" read a brief statement into the record and stated they do
not agree with the City's definition of family.
Kevin Chambers, 923 S.E. 4'h Avenue, Delray Beach, stated he feels it is
outrageous that the government can tell people what a family is. He stated the statistics that were
previously shown are 3.14 and if the City sets it up as 3 people then the national average is above
3 people. Mr. Chambers stated the 2000 census rose to 2,000 and what's to say it is not going to
be 3.25 at the 2010 census. He stated this definition of family will directly impact another
ordinance that the Commission will be discussing this evening as it relates to transient housing
and group housing.
93
Joann Peart, 107 N.W. 9'h Street, Delray Beach, stated she does not have any
transient houses close to her; however, with regard to Mr. Krane's comments regarding the five
college girls and the two duplexes, she has another letter from someone who has that same
problem. Mrs. Peart read this letter into the record from a homeowner who supports the
ordinance and all other ordinances.
John Robertson, 600 Gardenia Terrace, Delray Beach, stated the statistics
presented earlier seem irrelevant because it did not speak to the number of unrelated persons in
single family dwellings. Mr. Robertson stated he would expect in Delray and nationwide that
number is less than one and he supports the ordinance.
Doug Ayerst, 111 N.W. II'h Street, Delray Beach, stated the definition of a
statistician is someone who is able to draw a straight line between unwarranted assumption and a
foregone conclusion. He asked statistically what the distribution looks like for the people who
are in halfway houses. Mr. Ayerst stated he has heard people say that if you have a halfway
house you will have crime and asked how we can put together some kind of an ordinance that
would eliminate the halfway houses. He stated this does not have to do with the definition of
"family" but instead how do we make our neighborhoods safe. Mr. Ayerst urged the
Commission to adopt the ordinance and stated the number of people that are unrelated in the
same house has to be probably 3.
The City Attorney stated this family ordinance applies to everybody and we
cannot and should not and it is illegal to single out sober houses or people in recovery. She
stated they are protected and are considered to have disabilities. The City Attorney stated the
City is not passing this for sober house purposes but the City is passing this because of some of
the comments that were made about crowded housing and those kinds of things. She stated it
affects sober houses perhaps but it also affects everybody else equally. The City Attorney stated
it is not helpful to use that as a justification because it is really an illegal discriminatory
justification.
Mr. Ayerst stated he sent an email to the Commission today and one of the things
he stated in the email was that it has to do with regulating commerce inside residential areas. He
stated in his mind a halfway house is a commercial business and commented that there are some
kinds of business activities that tend to attract crime.
James Oufflian, 925 S.E. 2°d Avenue, Delray Beach, stated he has heard
comments expressed this evening that the Commission is trying to put them out of business and
noted that you are not supposed to be running a business in a residential area. Mr. Quillian stated
he lives in Osceola Park and there are several houses where there are multiple people (7-8
unrelated) living in the house and all the problems that go along with that. He supports the
ordinance and limiting the number of unrelated people in a home.
Alaina Weiss, feels that people come together to support one another.
34
Richard Joslin, 629 S.E. 4" Avenue, Delray Beach (owns two houses on the
block behind him located at 605 & 609 S.E. 3rd Avenue that he operates as recovery houses,
stated he moved to Delray Beach after retiring as a public school guidance counselor and
psychologist for South Florida. Mr. Joslin stated about a year after moving to Delray Beach he
accepted a job managing a 61 bed half-way house (The Lighthouse on S.W. 1" Avenue behind
the Sundy House). He stated it did not cause problems for the City and it was well structured
and well maintained. Mr. Joslin stated when that facility closed he decided that he would keep
their name and open the same type of facilities for himself. He stated he did this by buying
individual houses in the blocks surrounding his residence. Mr. Joslin stated his houses are well
maintained and do not have more than five people living in them and they do not have more than
three cars parked at any property, they have a minimum amount of police calls. He stated they
have not been disruptive to the neighborhood and has never heard anyone in either of their
neighborhoods say anything bad about them except for the crack dealers who do not appreciate
them being there. Mr. Joslin stated he purchased these houses four years ago when prices were
at a premium. He stated he got adjustable rate mortgages and now his mortgage payments, taxes
and insurance have reached a point where he needs to have five people in there in order to pay
those bills. Mr. Joslin stated if the Commission passes this ordinance he will not be able to pay
his bills and thus this will lead to foreclosure on the three properties that he owns. He urged the
Commission to consider two classes of houses; the people who own their own houses and rent
them out directly to the individuals and the sub-letters. Mr. Joslin stated there are only a handful
of people who own their own recovery houses in this city and they are the ones that are going to
face huge losses should this ordinance be passed.
Don Thorpe, 901 S.E. 4th Avenue, Delray Beach (has lived here for 55 years),
stated these people are selling the crack and buying the crack and stated he is in support of this
amendment.
Scott Thompkins, 257 N.E. 111h Street, Delray Beach, stated he lives with three
roommates and two have girlfriends. He stated under this ordinance he would have to ask two of
them to leave. Mr. Thompkins stated with the hard economic times you want to have a nice
house and share it with people that would enjoy Delray and spend their money in Delray. He
stated you need to subdivide and have a means of pulling the bills (electric and cable bills are
increasing). He stated everyone needs to make a living and by passing an ordinance like this
people would have to work harder and not be able to get ahead. Mr. Thompkins asked what
happens to a four bedroom house and the people who own that house and need to rent it. He
stated he owns some recovery homes and transitional housing change peoples' lives.
Christie Malarz, 9 N.W. 9th Street, Delray Beach, stated she sent an email to
the City Commission today and there was a letter attached to the email that she sent to the Palm
Beach Post part of which was published and part of which was not. Ms. Malarz stated when
someone is running a business in a residential neighborhood and it interferes with the quiet
enjoyment of the neighbors and the people that bought there before any of this sort of thing was
allowed it is really unfair to expect people to see their property values lowered and having to call
the police every night because there is someone parking on their lawn or raising hell in their
neighborhood. She stated this is so wrong to do that to the people who pay the taxes and who
have been here and have always tried to be good citizens.
35
06/02/09
Ms. Malarz urged the Commission to vote in favor of reducing the number of unrelated people
who are allowed to live in a house and also vote in favor of reducing the way businesses are run
in her neighborhood.
Alice Finst, 707 Place Tavant, Delray Beach (Chatelaine), stated they have had
families in their neighborhood who have 4, 5, and 6 children and eventually they reached a state
where they all had cars. Mrs. Finst stated the cars were never parked on the street, driveway, or
sidewalk and it was orchestrated who went in and who went out at what time and there was no
problem with the multitude of vehicles. She stated when there is a non-family situation with 4 or
5 people it does not work out that way. Mrs. Finst stated the cars are not parked in a manner that
is safe for the other people in the neighborhood. She stated the cars are scattered on the
sidewalks, in the driveways, and in the street and feels this is really a safety issue. Mrs. Finst
urged the Commission leave the definition of family to 3 unrelated people.
Mason Mitchell, 333 N.W. 7'h Avenue (second generation family of Delray
Beach), stated he recently joined South County Recovery Association (SCRA) and on behalf of
them he recently got the landlord permit and in his neighborhood he has five people in his
neighborhood in a three bedroom home. Mr. Mitchell stated he went around to his neighbors and
did a survey about what they think about his house. He stated the neighbors feel it is great and
noted that you cannot tell that anybody lives there because these people get up and go to work
and are doing the right thing. Mr. Mitchell stated the halfway house association that he is a part
of has rules and regulations. He stated you come in, you go to work, and there is a curfew of
11:00 p.m./12:00 midnight and if they are not in by this time then there are consequences such as
getting kicked out, etc. Mr. Mitchell stated these other people are running the other homes and
are not in with SCRA: they are just in it for the money and are not in it to better the community.
Clifford Wright, 3930 Lowson Boulevard, Delray Beach, stated he comes from
a big family and finds it appalling and offensive that people are trying to knock down the number
of people that live in the same house. Mr. Wright stated the City is targeting a certain group of
people and does not have the right to say how many people can live in a house. He stated this is
unconstitutional and he is offended.
Father Chip Stokes, Director of St. Paul's Episcopal Church., 188 South
Swinton Avenue, Delray Beach stated they do a lot of ministry and understands the
complexities and dilemma that the City Commission faces. Father Stokes expressed concern that
this ordinance, despite the City Attorney's warning, it is targeting sober houses in a
discriminatory way and it will also have an effect on immigrant households that consolidate
because of poverty. He stated it would act in discriminatory ways as former Commissioner
Archer said about people who come in to rent houses. It also would discriminate against gay and
lesbian persons if two couples wanted to share a house then they would be out of conformity.
Father Stokes urged the Commission to consider well whether or not this ordinance is operating
in a discriminatory way.
W
Carolina Calderon, 831 S.E. 4th Avenue, Delray Beach, supports the ordinance
because she owns a few properties in Osceola Park and stated these sober houses are all over the
place. Ms. Calderon stated it is detrimental if you are trying to sell a house and disclose you live
next to a sober house.
There being no one else from the public who wished to address the Commission
regarding Ordinance No. 27-09, the public hearing was closed.
Mr. Eliopoulos stated he appreciates everyone that spoke tonight because it is a
very important issue for a lot of people. He stated this ordinance deals with unrelated people and
when you talk about zoning it is to do with transient lodging in single family neighborhoods.
Mr. Eliopoulos stated "family" has to be defined but feels it is being taken out of context with
regards to related people as opposed to unrelated people. Therefore, Mr. Eliopoulos stated he
supports the ordinance as is.
Mr. Fetzer stated this is definitely a zoning issue and is personally concerned over
stability and safety in many of the single family neighborhoods in Delray Beach. He stated it is
appropriate to pass this ordinance and the legal research that the City Attorney has done is the
fair way to do this. Therefore, Mr. Fetzer stated he supports the ordinance as well.
Mr. Frankel expressed concern over the negative impact the entire city is
currently going through. He stated the overcrowding of houses in single family neighborhoods is
too large a problem. Mr. Frankel stated he, Commissioner Eliopoulos and Commissioner
Bernard attended the Planning and Zoning Meeting on May 18, 2009 and it seemed that the
Board's concern was the enforcement. He stated there is a lot of talk about community policing
and believes there is going to be plenty of community policing about this, Mr. Frankel stated he
does not find this ordinance to be discriminatory at all because the ordinance affects all residents
of Delray Beach. He complimented the City Attorney's office for using the latest census bureau
data and 2.87 is the average family size. Mr. Frankel stated the United States District Court in
the Southern District of Florida held that "there is nothing wrong with the number 3 that the City
shows." Mr. Frankel stated the City needs to go to precedent and supports this ordinance.
Mr. Bernard stated he is against this ordinance because he believes it should be 4
unrelated persons. For instance, if someone purchases a home and it has four bedrooms and this
person wanted to rent the three other rooms to three unrelated persons then the person would be
in violation of this ordinance. Mr. Bernard stated that person may not have bought the home for
business reasons. He feels there a number of four bedroom homes that could potentially fall
under that circumstance and because of that he believes it should be 4 unrelated persons.
Mayor McDuffie briefly discussed the goals for 2019 — "Quality Neighborhoods
of where people want to live" and that is the thrust of what this is about. He stated he ran some
statistics himself and also received a list from the City Attorney with regard to jurisdictions all
over the State of Florida. There are quite a number in the State that are writing ordinances like
the City of Delray Beach. Mayor McDuffie stated he supports the ordinance and the hard work
that they have done. He stated with the research he did he found that some counties are making
provisions for domestics, servants, and an "other category". Mayor McDuffie stated he found
ON
that as he ran all his stats the number leaned more toward 4 than it does toward 3 so he would
support it at 4 unrelated persons. He stated in the Marina District where there are a lot of
cottages two couples that come in from out of town is a very common practice and it seems that
the number fits in the rental communities as well. Mayor McDuffie extended his thanks to the
City Attorney's office and he supports 4 unrelated persons.
The City Attorney stated two couples joined by marriage would be okay;
however, if they are not joined by marriage it would not work.
Mr. Eliopoulos moved to approve Ordinance No. 27 -09 on First Reading/First
Public Hearing as written, seconded by Mr. Frankel. Upon roll call the Commission voted as
follows: Mr. Eliopoulos — Yes; Mr. Fetzer — Yes; Mr. Frankel — Yes; Mr. Bernard — No; Mayor
McDuffie — No. Said motion passed with a 3 to 2 vote, Commissioner Bernard and Mayor
McDuffie dissenting.
10.G. ORDINANCE NO. 28 -09 (FIRST READING/FIRST PUBLIC HEARING):
Consider a city initiated amendment to the Land Development Regulations (LDR), Section 43.3,
"Special Requirements for Specific Uses ", Subsection (I) "Community Residential Homes and
Group Homes ", to update the section to comport with changes in State Law. If passed, a second
public hearing will be held on July 7, 2009.
The caption of Ordinance No. 28 -09 is as follows:
WhINSO-W, 110111191111, M11
'to WE'J's"',
BEACH, BY 1 • 4.3.3, "SPECIAL
REQUIREMENTS FOR SPECIFIC USES", SUBSECTION (1),
"COMMUNITY RESIDENTIAL • D GROUP
• TO UPDATE THE SECTION TO CONTORT
CHANGES IN STATE LAW; PROVIDING A SAVING
CLAUSE, a GENERAL REPEALER CLAUSE,
EFFECTIVE DATE.
(The official copy of Ordinance No. 28 -09 is on file in the City Clerk's office.)
The City Attorney read the caption of the ordinance. A public hearing was held
having been legally advertised in compliance with the laws of the State of Florida and the
Charier of the City of Delray Beach, Florida.
Pat Archer, 380 Sherwood Forest Drive, Delray Beach (former
Commissioner and 14 year member of the Delray Beach Drug Task Force and former
Chairman of the Mayors Committee), stated the Committee gets together and discusses the
situation regarding the drug problems and the recovery facilities in Delray Beach. Ms. Archer
stated the Drug Task Force supports all of the ordinances tonight ( #27 -09, #28 -09, and #30 -09)
and there are many people speaking this evening who have involvement in sober houses. Ms.
06102109
Archer stated there are no halfway houses in Delray Beach that are not associated with the Drug
Abuse Foundation and noted that a halfway house is licensed and supervised. She stated there
are none in Delray except those involved immediately with treatment centers. Ms. Archer stated
sober houses are the only things that operate in residential areas and they operate there in order
to be financially viable and to hold property and to make as much money as the can. She stated
the Drug Task Force is very much opposed to the operation of a business of any type in a
residential neighborhood particularly one that is so disruptive to the community. Ms. Archer
stated the Drug Task Force supports halfway houses and reiterated that there are none in Delray
Beach operating in residential neighborhoods. Ms. Archer stated unless a sober house is owner
occupied it is illegal because it is a business and the Drug Task Force supports whatever zoning
regulations the City can do to curtail illegal operations in residential neighborhoods.
Mr. Fetzer moved to approve Ordinance No. 28 -09 on First Reading/First Public
Hearing, seconded by Mr. Bernard. Upon roll call the Commission voted as follows: Mr. Fetzer
— Yes; Mr. Frankel — Yes; Mr. Bernard — Yes; Mayor McDuffie — Yes; Mr. Eliopoulos — Yes.
Said motion passed with a 5 to 0 vote.
10.11. ORDINANCE NO. 29 -09 (FIRST READING /FIRST PUBLIC HEARING ):
Consider a city - initiated amendment to the Land Development Regulations (LDR) by amending
Section 4.3.3, "Special Requirements for Specific Uses ", by enacting a new Subsection
4.3.3(ZZZ), "Transient Residential Uses ", in order to establish prohibitions,
exemptions /exceptions, waivers and penalties; amending Section 4.4.6, "Medium Density
Residential (RM) District, to provide that "Transient Residential Uses ", shall be allowed as
permitted uses; and, amending Appendix "A," "Definitions ", to provide for a definition of
"Transient Residential Uses ". If passed, a second public hearing will be held on July 7, 2009.
The caption of Ordinance No. 29 -09 is as follows:
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• rr � ••r ' • �:
• r !• it • ��t
r r u r •
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(The official copy of Ordinance No. 29 -09 is on file in the City Clerk's office.)
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1. 1! 1•
The City Attorney read the caption of the ordinance. A public hearing was held
having been legally advertised in compliance with the laws of the State of Florida and the
Charter of the City of Delray Beach, Florida.
Paul Dorling, Director of Planning and Zoning, stated transient residential uses
via this ordinance will be prohibited in single-family and planned residential development zoning
districts and they will be added as a permitted use in Medium Density Residential (RM) District.
Mr. Dorling stated this ordinance allows anyone that is in non-compliance to come into
compliance within 12 months of the effective date of the ordinance or expiration of their lease
whichever occurs first. He stated there is exemptions in the ordinance that deal with group and
community residential homes as well as assisted living facilities licensed by the State.
At its meeting of May 18, 2009, the Planning and Zoning Board recommended
denial with a 5 to 0 vote. The concern centered on the impact of seasonal rentals; however, this
would affect these and these are transient uses and are inappropriate in single family districts.
Staff recommends approval. The definition of transient is being able to have different people in
a residence no more than six times in a year.
Mayor McDuffie declared the public hearing open.
Kevin Chambers, 923 S.E. 4th Avenue, Delray Beach, stated he moved into a
sober house one year ago and not only does he work here at Wal-Mart, all the money he has
made over the past year he has spent in Delray. Mr. Chambers stated many people who are in
the program and live in sober houses do not have cars because most of the people ride bicycles
and take public transportation. He stated he is a taxpayer and contributes to the tax base because
all of his income along with others goes back into the small businesses in Delray Beach.
Jack Simmons, 602 Eldorado Lane, Delray Beach, supports the ordinance and
urged the Commission to pass it.
Kathy Smith, 501 Eldorado Lane, Delray Beach, stated she has lived in the cul-
de-sac for 22 years and knows must of the neighbors by their first name and has been to almost
all of their houses on social occasions. She knows the cars that her neighbors drive and knows
the children that play in the street. Ms. Smith stated it is a great community to live in because it
is quiet, until recently. She stated the house on the comer of 6h and Eldorado Lane has changed
her life and the community is shaken. 'Ms. Smith stated first there was a Super Bowl party, the
cars were stretched around the block and there was a car accident when someone was leaving.
She stated the next tenant who came in was a sexual offender and now her 12 year daughter is
not allowed to go outside or anywhere without her mom. Ms. Smith stated she does not know
these neighbors because they change so frequently and it is more like a hotel. She stated she has
seen a black Mercedes pull up in front of the home, drop someone off, drive around the block
and come back and pick that person up and asked if this was a drug deal. Ms. Smith stated on
another occasion she called the police because there was a guy in a minivan in front of this same
house and he had stacks of Nike shoes from top to bottom and he was dressed like a foot locker
guy and he was pulling t-shirts out of his car that still had the hangers on them.
40
She stated there is a sober house on the comer of 6h and Eldorado Lane that has a mortgage on it
for $700,000.00 and urged the City Commission to take Delray Beach out of the newspaper and
the Police Department. She urged the Commission to keep her street quiet and sweet as it was
and vote "yes" tonight.
John Crane, 217 Beverly Drive, Delray Beach, stated he is not against people
trying to recover from an addiction and is for getting better but he supports this ordinance and
urged the Commission to vote for this ordinance. Mr. Crane noted the Board in the Commission
Chambers regarding two of the goals "quality neighborhoods where people want to live" and
"quality educational opportunities". He stated he moved into the Lake Ida neighborhood in 1992
and because of the work that people have put into it, it is a quality neighborhood. Mr. Crane
referenced the Board and the "Targets" - the Lake Ida Design Guidelines Ordinance adoption
and noted this is part of the efforts to make that neighborhood what they want it to be. Also, Mr.
Crane stated the Board also references "review transient rental and single family
neighborhoods". He stated this is degrading the value and neighborhood quality and is in direct
conflict with the goals at the top of the Board. He stated the City should be able to regulate the
type of transient uses in the vicinity of schools and understands from the City that this would be
discriminatory. Mr. Crane stated many of the schools are located in residential areas and his son
is in a school and there is a transient use across the street where a sex offender moved into that
home and he was not prohibited from living near a school because he happened to be an offender
prior to the date of the law going into affect. However, Mr. Crane urged staff to bring back an
ordinance at a later date that may help protect the kids as well so that we can get to the other goal
of "quality educational opportunities".
Clifford Wright 3930 Lowson Boulevard, Delray Reach, stated he owns a
business on West Atlantic Avenue and owns several houses that he rents out, stated this is an
All America City. He is opposed to the ordinance and feels there should be the right to rent it
out as many times as you want as long as you are regulating the people who are coming into your
place. Mr. Wright stated he does not understand why the City wants to regulate the number of
people who come into this particular area.
The City Attorney stated rooming houses and boarding houses are not currently
allowed in single family neighborhoods and this ordinance deals with transient rentals and it does
not matter who the person is. This ordinance applies to vacation rentals which the City has quite
a few of in single family neighborhoods and every other transient use that has a turnover of more
than six times., per year. Otherwise, it is not prohibited.
Mr. Wright stated he feels this is targeted towards a certain group of people and
feels this is wrong.
Kevin McNally, 624 Gardenia Terrace, Delray Beach, urged the Commission
to vote for this amendment to the LDR that makes transient housing a permitted use so that the
City can control it. He stated his first-hand experience with transient housing in his
neighborhood started Super Bowl Sunday 2008 as Kathy Smith mentioned. Mr. McNally stated
a problem he sees with transient housing is that it generates a lot of traffic and it is noisy.
41
06/02/09
He stated it is not only traffic generated by the transient residents but all their visitors that come
day and night and it is a nuisance to the neighborhood. Mr. McNally stated the transient housing
negatively affects property values for individuals who want to sell and cannot attract a buyer
because they have a transient oriented rental house next to theirs and this is considered a
nuisance to potential buyers. He stated the City of Delray Beach is facing a potential reputation
as a haven for transient housing and it will make the community as a whole less desirable for
tourists and for people who are looking for a city to relocate to.
James Quillian, 925 S.E. 2°° Avenue, Delray Beach, who supports the
ordinance, stated he used to live at 933 S.E. 2" d and next door to them the house could be
considered a transient house because once a month the entire household would change. He
stated it was so bad that he bought the house to prevent a transient house from being next door to
them.
At this point, time being 11:07 p.m., Mr. Eliopoulos moved to approve to
continue the meeting beyond 11:00 p.m., seconded by Mr. Fetzer. Upon roll call the
Commission voted as follows: Mr. Frankel — Yes; Mr. Bernard — Yes; Mayor McDuffie — Yes;
Mr. Eliopoulos — Yes; Mr. Fetzer — Yes. Said motion passed with a 5 to 0 vote.
Dr. Victor Kirson President of the Board of Tierra Verde at Delray Beach
thanked the Commission for passing what they have approved so far and asked when he can put
these actions into affect.
Mayor McDuffie stated several of these are first readings and they have to go to
second reading on July 7, 2009.
Al Jacquet, 236 S.E. 3 d Avenue, Delray Beach, stated this ordinance is going to
make transient residential uses as permitted uses in the RM (Medium Density Residential)
District and urged the Commission to think about the RM Districts and talk to the people who
live in these districts before finalizing this.
Jason (did not state last name or address), stated he purchased a property on
N.W. 2"a Avenue a couple of years ago and renovated it. He stated this was a "crack house" and
was horrendous. He stated for the two years he was renovating it there were drug deals going on
and presently are going on now in the unpaved alleyway behind his house, people coming by
knocking on the door looking for drugs and looking for people. He stated for three years he has
received mail almost every day from hospitals and organizations trying to collect money from
them. He stated there are several half -way houses on the end of his street and noted there is
yellow house at the very end of the street and every night all night long a car pulls up and sits
there for five minutes and leaves.
George Jan, Delray Beach resident, supports this ordinance.
42
06/02/09
Don Thorpe, Delray Beach, stated the City has an abundance of apartments and
rental properties in the town and does not understand why everyone has to congregate in one
dwelling but instead spread the money around to other realtors and landlords.
There being no one else from the public who wished to address the Commission
regarding Ordinance No. 28-09, the public hearing was closed.
Mr. Eliopoulos stated transient lodging is already allowed in the RM (Medium
Density Residential) District and this is about zoning. He stated transient lodging in single-
family neighborhoods does not go and brings down the quality and the integrity of the
neighborhood.
Mr. Fetzer concurs with Commissioner Eliopoulos.
Mr. Frankel stated he agrees with Commissioner Eliopoulos and Commissioner
Fetzer with the exception of one thing. He stated according to the ordinance "transient
residential use shall mean a dwelling that is operated or used in such a way that it has a turnover
in occupancy of more than six (6) times in any one (1) year. Mr. Frankel stated he discussed his
belief earlier in precedent and other rulings by courts to make sure we are not discriminatory. He
stated he believes six (6) times in any one (1) year should be amended to four (4).
Mr. Eliopoulos stated November-April is the busiest time of the year and feels
since we have a tourist industry here, it will not kill someone who does have that rental property
on the beach. He feels with November-April being the prime months he feels six (6) is logical.
Mr. Bernard stated six (6) times is fine with him.
Mr. Fetzer stated he too supports six (6).
Mayor McDuffie stated he came up with four (4) because of basically people who
are legitimate rental operators. He stated he spoke to legitimate people who are counting on the
season for a lot of their income and believes six (6) is a reasonable number.
Mr. Frankel moved to approve Ordinance No. 29-09 on First Reading/First Public
Hearing, seconded by Mr. Bernard. Upon roll call the Commission voted as follows: Mr.
Bernard — Yes; Mayor MeDuffie — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes; Mr. Frankel —
Yes. Said motion passed with a 5 to 0 vote.
10.1. ORDINANCE NO. 30-09 (FIRST READING/FIRST PUBLIC HEARING):
Consider a city initiated amendment to Chapter 117 of the Code of Ordinances, "Landlord
Permits", Section 117.01, "Permit Required", to clarify when a permit is required; Section
117.03, "Approval of Application", to provide additional requirements; Section 117.04,
"Appeals", by renaming it "Denial or Revocation of Permit Application; Appeals", Section
117.05 "Inspection", to provide for inspection with a warrant; enacting a new Section 117.06
"Tenant/Occupant Eviction", to ensure notice and due process rights are followed or alternate
housing is provided; and, enacting a new Section 117.07 "Severability", to provide for
43
06/02/09
severability. If passed, a second public hearing will be held on July 7, 2009.
The caption of Ordinance No. 30 -09 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY
OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 117,
"LANDLORD PERMITS ", OF THE CODE OF ORDINANCES
OF THE CITY OF DELRAY BEACH, BY AMENDING
SECTION 117.01, "PERMIT REQUIRED ", TO CLARIFY
WHEN A PERMIT IS REQUIRED; AMENDING SECTION
117.03, "APPROVAL OF APPLICATION ", TO PROVIDE
ADDITIONAL REQUIREMENTS; AMENDING SECTION
117.04, "APPEALS ", BY RENAMING IT "DENIAL OR
REVOCATION OF PERMIT APPLICATION; APPEALS "; AND
AMENDING SECTION 117.05, "INSPECTION ", TO PROVIDE
FOR INSPECTION WITH A WARRANT; ENACTING A NEW
SECTION 117.06, "TENANT /OCCUPANT EVICTION ", TO
ENSURE NOTICE AND DUE PROCESS RIGHTS ARE
FOLLOWED OR ALTERNATE HOUSING IS PROVIDED;
AND ENACTING A NEW SECTION 117.07,
"SEVERABILITY ", TO PROVIDE FOR SEVERABILITY;
PROVIDING A SAVING CLAUSE, A GENERAL REPEALER
CLAUSE, AND AN EFFECTIVE DATE.
(The official copy of Ordinance No. 30 -09 is on file in the City Clerk's office.)
The City Attorney read the caption of the ordinance. A public hearing was held
having been legally advertised in compliance with the laws of the State of Florida and the
Charter of the City of Delray Beach, Florida.
Paul Dorling, Director of Planning and Zoning, stated this ordinance amends
Chapter 117, Landlord Permits, and indicates that landlord permits can be approved by the
Community Improvement Director subject to the applicant providing proof that no more than
three unrelated persons reside in the leased unit subject to a permit fee of $50.00, proof that the
applicant's property is not In violation, proof of sales tax for rentals less than six (6) months,
proof of a local business tax receipt and that subleases are not rented more than six (6) times a
year, and that they provide the tenant with a pamphlet dealing with rental guidelines. He stated
if eviction is proposed then it would be subject to Chapter 83 or unless they are exempt they
must provide a 48 hour notice of eviction in writing to the tenant and provide a tenant an
alternate dwelling unit for up to 48 hours to reduce homelessness and crime.
At its meeting of May 18, 2009, the Planning and Zoning Board recommended
approval with a 5 to 0 vote. However, Mr. Dorling stated the Board's recommendation included
striking Sections 117.03(A)(4) and 117.03 (A)(8) and also suggested that the $50.00 annual
permit fee be increased.
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06/02/09
The City Attorney stated in LDR Section 117.01(A) under Section 1 she
suggested that the following language be added to read "nor shall any facility licensed by the
State as a Group Home, Community Residential Home, or licensed assisted living facilities."
Mayor McDuffie declared the public hearing open.
Matthew Hartley, President of the Woods of Southridae, thanked the City
Commission for the ordinance.
Pat Archer, 380 Sherwood Forest Drive, thanked the City Commission for this
%74%01 � -
George Jan, 250 S.E. 101h Street, Delray Beach, congratulated and thanked the
City Commission for this ordinance and stated this ordinance solves problems.
There being no one else from the public who wished to address the Commission
regarding Ordinance No. 30-09, the public hearing was closed.
Mr. Fetzer moved to approve Ordinance No. 30-09 on First Reading/First Public
Hearing with added language to include Assisted Living Facilities (ALF), seconded by Mr.
Eliopoulos. Upon roll call the Commission voted as follows: Mr. Bernard — Yes; Mayor
McDuffle — Yes; Mr. Eliopoulos — Yes; Mr. Fetzer — Yes; Mr. Frankel — Yes. Said motion
passed with a 5 to 0 vote.
At this point, the City Commission took a five minute break. The time being
11:33 p.m., the Commission moved to Item 11, Comments and Inquiries on Non-Agenda
Items from the City Manager and the Public.
With regard to a prior concern expressed by Ms. Sullivan about the condition of
the Atlantic Shores development north of Kevro's Art Bar, the City Manager stated they have
been working with a developer and the developer has agreed to seeding and watering the grass
until it is established, maintaining the grass, removing the temporary perimeter fence, and
constructing a new perimeter fence which is to be black vinyl coated or screened with an opaque
service. He stated the registered agent and several of the principles and the original developer
has withdrawn from the project. One of the principles has acknowledged responsibility for the
site and will be seeding the lot. The opaque material has already been installed and only needs to
be re-secured.
Secondly, the City Manager stated sometime ago we had an inquiry about the
intersection of N.W. 12'h Avenue and Atlantic Avenue whether there could be a right - turn lane.
He stated the Florida Department of Transportation (FDOT) has reviewed a potential layout to
see if the additional lane could be accommodated. He stated the City has been informed that the
additional width cannot be accommodated at this time, The City Manager stated once FDOT
completes their project, the City will approach them and see if we can modify this comer when
the City constructs the Gateway Project.
M,
11. From the Public.
11.B.1. Todd L'Herrou, 830 Kokomo Key, Delray Beach, expressed concern over the
parking at the Seacrest Soccer Complex and stated they have moved the fences to the area that
will actually be part of their grounds when the final site is completed and that is going to affect
the parking for this year during the year of construction. Mr. L'Herrou stated this is going to be
a very difficult situation because they are looking at very limited parking on the east side of the
grounds and the west side of the Seacrest Soccer Complex that is owned by the City (31 spaces).
He stated there are a number of spaces along the north side and it is not clear how much will be
able to fit in there because the fences have been moved and still have to allow space for a car
travel. The south side of the complex also has parking that is to the west of the stadium. Mr.
L'Herrou stated they have had to use that parking and have had a number of significant break -ins
in that lot on weekends during daylight hours. He expressed concern as to what will happen
when cars park there in the nighttime hours and there is no lighting in that section of the lot. Mr.
L'Herrou stated there is also some parking across Seacrest Boulevard and they may have to ask
the City to find ways for them to utilize that parking lot. He stated that brings additional issues
such as young children crossing the street and noted that although there are two lights there
neither of them directly aligns with that parking lot. Therefore, there is no easy place for people
to cross to get into the soccer complex. Mr. L'Herrou stated they are thinking about paying for
private security on the south lot during the times that they use that lot (weekends and two nights
a week). He stated the cost for soccer season alone would be $3,000.00 and if extended to the
Lacrosse season, the cost would be another $3,000.00. Mr. L'Herrou stated the crossing issues
are another concern and if they have to have someone there to assist with the crossing it probably
means bringing in an off -duty police officer. He stated they have a site plan of the eventual site
and expressed concern about what the eventual parking spaces will be and that they will not
match up with the original agreement on that space.
11.B.2. Brian Thompson, President of the Delray Beach Soccer Club, briefly
discussed the long -term problems they have seen with the site plans. He stated in 2006 when
they were looking at the original concept of this they were under the belief that there would be
160 spaces that would be available for parking. Mr. Thompson stated from the recent look of the
plans they may be losing one of the lots that will be fenced off because they are only fencing part
of that lot up for the school and the School Board historically has not wanted public access to
elementary schools. He stated their long -term issue could be that one of the lots that they
thought was going to be part of their parking may not be available to them from looking at this
site plan. Mr. Thompson stated they have had to deal with security on a permanent basis for
years and people walking across Seacrest Boulevard especially at night. He stated they are going
to have approximately 200 people at the facility on a weeknight at the height of the soccer season
each night Monday through Thursday. Mr. Thompson stated his organization is concerned about
where this is going and he believes that some dialogue needs to be entertained with the School
Board to figure out what is going on with this project so that they are not caught off guard and so
they are not hampered in the future.
The City Manager stated the School Board had talked about possibly selling the
City some additional land for parking.
46
06/02/09
11.11.3. Alice Finst, 707 Place Tavant, Delray Beach, commented about an obituary that
was in Sunday's paper of Elizabeth "Betty" Matthews Paton. Mrs. Finst stated Betty Matthews
was a representative to the City Commission for the Beach Property Owners Association
(BPOA). She stated as Chairman of the ad-hoc Beach Advisory Committee she worked with the
City Commission and others on a makeover on the then shabby public oceanfront to open up
more than 15 new pathways to the beach and design showers, benches, and new shelters. Mrs.
Finst stated during the recent Citizen's Summit her table discussed the beach and the possibility
of putting up signage to recognize the change on and off the beach over the years. She stated
should this signage occur she would like that Betty Matthews and her part in the beach
revitalization be included. Mrs. Finst stated funeral services for Betty Matthews will be June 6,
2009 at 10:00 a.m. at St. Vincent Ferrer Catholic Church.
At this point, the time being 11:42 p.m., the Commission moved back to Item 9.13.
of the Regular Agenda.
9.11. BID PROTEST/BID AWARD/OCEANSIDE BEACH SERVICE,
INC.: Consider bid protests filed by Oceanside Beach Service, Inc. and Boucher Brothers,
regarding beach equipment rental concession; Request for Proposal (RFP) No. 2009-18 and
consider awarding the bid to Oceanside Beach Service, Inc. (Quasi- Judicial Hearing)
Chevelle D. Nubin, City Clerk, swore in those individuals who wished to give
testimony on this item.
Mayor McDuffie asked the Commission to disclose their ex parte
communications. Mr. Frankel stated he spoke to the Attorneys for the Boucher Brothers and Mr.
Boucher and stated they did a presentation in his office. Also, Mr. Frankel stated he spoke with
Michael Weiner for Oceanside and spoke to Eric Feld, Dr. Andre Fladell, and Beth Johnston
from the Chamber of Commerce. Mr. Frankel stated he went to Fort Lauderdale beach to look at
the Boucher Brothers operation and he is at Delray Beach most of the year. Mr. Bernard stated
he spoke with everyone that Adam mentioned except Eric Feld and he did not visit Fort
Lauderdale beach. Mr. Fetzer stated his ex parte communications are the same as Commissioner
Bernard. Mr. Eliopoulos stated his ex parte communications are the same as Commissioner
Fetzer except Eric Feld and Dr. Andre Fladell. Mayor McDuffie stated he did not speak to Dr.
Fladell and does not believe he spoke to Eric Feld; however, he spoke to everyone in Mr.
Weiner's office, he has had extensive communication with Jordana Jar ura, Steven Boucher, and
Stephanie Toothaker on all the merits and issues regarding this. Mayor McDuffie stated the
extensiveness of the conversation that he has had with them has been also put into writing and
entered it into the record.
Linda Larch, Director of the Parks and Recreation Department, stated this
item is to consider the bid protest filed by Oceanside Beach Service, Inc. and Boucher Brothers
Delray Beach LLC regarding beach equipment rental concession and consider awarding the bid
to Oceanside Beach Service, Inc. On April 1, 2009, the City received responses to the Beach
Equipment Rental Concession Request for Proposal (RFP) No. 2009-18. A selection committee
was formed and ranked the proposers in accordance with the evaluation criteria listed in the RFP.
Out of 2 responses received the selection committee ranked the proposal from Boucher Brothers
a
Delray Beach, LLC as the first ranked proposer, with Oceanside Beach Service, Inc. as second.
At the time the selection committee met, it was not brought to their attention that some of the
documents provided referred to Boucher Brothers Management, Inc. and not Boucher Brothers
Delray Beach, LLC. Ms. Karch stated Oceanside Beach Service, Inc. filed a Bid Protest dated
April 20, 2009 in accordance with the City's bid protest procedure. They raised the issue in their
bid protest that documents submitted on behalf of Boucher Brothers Delray Beach, LLC actually
pertain to and reference Boucher Brothers Management, Inc. and not the entity that bid on the
RFP. All references regarding experience as well as insurance certificates are from Boucher
Brothers Management, Inc. and not Boucher Brothers Delray Beach, LLC which was formed on
July 28, 2008. Boucher Brothers Management, Inc. asserts that it wholly owns Boucher Brothers
Delray Beach, LLC. However, a parent corporation and a subsidiary corporation are separate
legal entities. The Courts in Florida provide that absent some showing of improper conduct
fraud or wrongdoing by the parent corporation the corporate veil may not be pierced and thus the
parent corporation would not be liable for the subsidiary corporation. On April 28, 2009,
Boucher Brothers, LLC responded to Oceanside's Bid Protest by explaining in depth each of the
8 issues and concluded with a recommendation that the bid protest be granted and that the bid be
awarded to Oceanside Beach Service, Inc. Ms. Karch stated after the City's response, Boucher
Brothers Delray Beach, LLC submitted a Bid Protest dated May 4, 2009 to the City of Delray
Beach's Intent to award RFP 2009-18 to Oceanside Beach Service, Inc. Boucher Brothers
requested that the Oceanside protest recommendation be reconsidered and either reinstate the
selection committee's recommendation on the basis that Oceanside is non-responsive and that
Boucher Brothers proposal is in the public's best interest; or that the City reject all bids and rebid
this service due to the City's procedural violations. On May 5, 2009, a letter was hand delivered
from Oceanside Beach Service, Inc. to Patsy Nadal, City Purchasing Manager, in response to
issues raised by Boucher Brothers Delray Beach, LLC regarding past actions against Oceanside.
On May 12, 2009, the City of Delray Beach responded to the bid protest filed by Boucher
Brothers by addressing the 15 issues that were raised in the protest. Based upon the responses
listed in the May 12, 2009 letter to Boucher Brothers Delray Beach, LLC it is recommended that
the bid protest filed by Boucher Brothers be denied and that the bid be awarded to Oceanside
Beach Service, Inc. At this point, Ms. Karch entered all the files into the record.
Mr. Michael Weiner stated he would like clarification on some procedural issues
and it was suggested that maybe he would want to proceed first. Mr. Weiner stated he wrote the
City Attorney back informing her that was fine as long as they receive the last two minute
rebuttal. The City Attorney stated they will receive the first two minute rebuttal and has
designated the procedure.
Michael Weiner, Attorney with Weiner & Aronson, P.A., 10 S.E. I" Avenue,
Delray Beach, representing Oceanside Beach Services, Inc. entered into the record a copy of the
PowerPoint presentation he is presenting today. Mr. Weiner stated his client submitted a bid
protest and almost immediately after the protest the Boucher Brothers through their attorney
responded with eight pages of analysis and 30 pages of exhibits. He stated the protest by his
client was found to have merit and a letter of explanation was issued by the City and it was
signed by the Purchasing Manager, approved by the City Manager and the City Attorney. Mr.
Weiner stated after the letter of recommendation in their favor, the Boucher Brothers responded
with an additional 13 pages and another 42 pages of exhibits.
U-1
As an accommodation to the Boucher Brothers, Mr. Weiner stated this matter was not heard on
May 5, 2009 (no meeting took place on it). He stated additional information and evidence was
submitted by his client and another final letter of explanation was issued through the City
Attorney's office with respect to all the outstanding issues and it concluded with a
recommendation in favor of his client for award of the bid. Mr. Weiner stated Boucher Brothers
submitted another 13 pages with 56 pages of exhibits. He stated after this thorough debate his
client remains the recommended bidder and he is asking for the award of the contract pursuant to
that recommendation and the staff report concurs with that recommendation. Mr. Weiner stated
Oceanside did have a hurricane evacuation plan and Boucher Brothers complained that a copy of
the Oceanside bid they received was missing 18 pages and they made accusations that this was
the fault of the Purchasing Manager and that it might have been conspiratorial. He stated three
issues were raised by the Boucher Brothers on which they are wrong. Secondly, Mr. Weiner
stated they complained about Mike Novatka's character in a September letter because he failed
to pay the City on a percentage basis as with the bid package that was supposedly missing 18
pages, the Boucher Brothers did not have it right. Mr. Weiner stated there never was a
percentage contract and Mr. Novatka made all his payments and to date have not received an
apology on that letter. Mr. Weiner stated the third ' mistake is in their attempt to take you from
the real issues that are before the Commission they gave the City a reported list of lawsuits
against Mr. Novatka. He stated most of what the City was provided is the record for Michael
Novatka, Jr. Mr. Weiner urged the Commission to agree with staff and stated there is sufficient
information and evidence in the file that allows the Commission to award the contract tonight.
Stephanie Toothaker, Esq., Ruden McClosky, 200 E. Broward Blvd., Ste.
#1500, Fort Lauderdale, FL 33301, stated they believe that the selection committee ,chose
Boucher Brothers by a significant amount over Oceanside. Ms. Toothaker stated in addition to
their uniformed staff they have promised up to $300,000.00 capital investment in new equipment
for the City and they provided a detailed hurricane plan. She stated Boucher Brothers has a
significant background in the hospitality industry which deals with the beach and also hotels and
condominium units in Miami, Dade, Palm Beach County, and Virginia Beach. Ms. Toothaker
stated when the Boucher Brothers submitted their bid protest she does not think it is appropriate
for them to second guess why the City put a cap on it but the Boucher Brothers did submit a bid
that was $85,000.00 higher over the course of three years than the bid that Oceanside submitted.
Ms. Toothaker stated after the selection committee meeting every member ranked the Boucher
Brothers higher in every single category.
Daniel Matlow, Ruden, MeClosky, Smith, Schuster & Russell, P.A., entered
the following documents into the record: Exhibit #1 — Request for Proposal, Exhibit #2 —
Litigation History relating to Oceanside/Novatka, Exhibit #3 — Original Proposal from Oceanside
that they received from the City of Delray Beach which does not have 18 pages that they are now
told were in the proposal, Exhibit #4 — May 4, 2009 supplement sent from Stephanie Toothaker
to the City of Delray Beach. Mr. Matlow stated the other items are already in the backup and
handed a copy to the court reporter.
Mayor McDuffie asked Mr. Matlow to explain Exhibit #4, Mr. Matlow stated the
City asked them to write a response by May 29, 2009 which was the last response from
Stephanie Toothaker.
M
Mr. Matlow stated Boucher Brothers was responsive to the RFP and discussed the
April 20, 2009 bid protest and the issue that somehow Boucher Brothers is not responsive
because Boucher Brothers Management submitted its financial information. The City responded
that they are not considering this opinion as legal precedent. Mr. Matlow stated with respect to
this being a single purpose fully owned subsidiary Boucher Brothers have been successful
forming these single purpose fully owned entities, He this has never been an issue and if
someone were to get hurt there is insurance and the money has to pay upfront every quarter and
if the City is not getting paid the City can terminate them on thirty days notice with or without
cause. Mr. Matlow stated if the City says that the financial statements should not be regarded,
the financial information ($1.1 million credit line) should be considered. He stated Boucher
Brothers is planning to spend up to $300,000.00 on equipment not Oceanside. Mr. Matlow
stated Boucher Brothers scored 27 points overall; higher than Oceanside. He stated the City
claimed that the references submitted by Boucher Brothers were not responsive. Mr. Matlow
reference Exhibit #11 and #12 which shows the corporate membership of who are the officers of
these two entities. Mr. Matlow stated Oceanside's proposal was not responsive to the RFP
because there were lawsuits that were not disclosed. He stated the hurricane plan was not in their
materials and the City provided to them what they said was Oceanside's bid package. Mr.
Matlow stated the pages were not numbered and therefore there is no way to know when these
18 pages came into the package. He stated there were questions that were not answered in the
questionnaire and after they raised that in their bid protest the answers to the questions somehow
became part of the proposal but were not part of the proposal that was given to them earlier by
the City pursuant to a public records request. Mr. Matlow stated there are procedural issues that
cannot be waived.
Ms. Toothaker stated there were a number of technical deviations in the RFP's
and the City's process was flawed and procedural violations cannot be waived. She stated in Mr.
Weiner's bid protest he raised the concern that the City's selection committee was not duly
constituted. In responding to Mr. Weiner's bid protest, the City agreed with him and that they
would pick other persons to sit on the selection committee. The past practice has always been
that City staff selects members of the evaluation committee and then forward those
recommendations to the City Commission to be chosen. Ms. Toothaker stated when the Boucher
Brothers filed their bid protest the City decided that they had misspoken in this response to Mr.
Weiner's bid protest and that they had omitted language that would have changed the meaning of
that sentence. She stated the City's procurement manual points you to the RFP and states that
the RFP has to define the way in which a selection committee is going to be appointed. The RFP
says that the City will choose the members of the selection committee and the City is defined as
the City of Delray Beach and thus the City Commission. Ms. Toothaker stated they believe that
the City's selection was not duly constituted and that they violated the Sunshine Law. Therefore,
Ms. Toothaker stated they do not b ' elieve that the City has any ability to waive those procedural
violations and this RFP must be re-bid.
Mr. Weiner and Mr. Matlow had no cross-examination.
Mayor MeDuffie stated if anyone from the public would like to speak in favor or
in opposition of the bid protest, to please come forward at this time.
UE
Lee Prince, resides in Delray Beach, stated one of the greatest pleasures he has
had since he moved here is being a member, a customer, and a client of Oceanside. He stated
Oceanside is set up by 8:00 a.m. and the staff is hard working and pleasant.
Dr. Victor Virson, Board President for Tierra Verde at Delray Beach, stated
they have a 300 unit condominium which is five minutes from the Atlantic Dunes Beach and has
been a member of Oceanside for three years. Dr. Kirson stated approximately 1,000 residents
use Atlantic Dunes and he has never heard anything derogatory said about their organization and
commented that they are very nice.
Steve Jerinko, stated he recently purchased property off Germantown Road, he
has been affiliated with Oceanside for four years and has been a member yearly for two years.
He stated Oceanside is wonderful and they make everyone feel like one family. He stated he
appreciates what they do for him and his family.
Cynthia Jerinko, stated part of the reason why they bought a home here recently
is 90% due to the way that they have been treated in this town. She her daughter worked at the
Marriott for years and most of the customers that came across the street to the beach was due to
Oceanside and the way they were treated and the reason they came back to this city. She stated
she lived at a beach club for years in New Jersey and she could care less of someone being in a
uniform but would rather see someone in beach clothing and asking her about her day.
Ken Light, employee with Oceanside Beach Service and resident of Delray
Beach, stated he has ran a few companies and worked for many different organizations over the
years and has never encountered any other organization that has such a positive relationship with
their customers. Mr. Light stated he hears very positive feedback every day on the beach from
residents of Delray Beach about what a great relationship they have and feels that this locally
owned company is valuable for this community.
There being no one else from the public who wished to address the Commission
regarding the bid protest, the public hearing was closed.
Mr. Weiner gave the following rebuttal:
Mr. Weiner stated we have heard the same rehash of arguments which they have
attempted to submit in 100 pages to the Commission on three different occasions. He
cornmented about the $300,000.00 and asked who promises this money. Mr. Weiner stated the
Boucher Brothers scored better because they fooled the committee in categories such as
capitalization, financial ability, and experience because the real bidder did not sign the bid. Mr.
Weiner stated there is no evidence on Boucher Brothers Delray Beach, LLC as to experience or
capitalization. He stated the vendor before Oceanside, the City had to kick out because they did
not make their payments and it does not seem like it would be a good idea to have a shell
company. Mr. Weiner stated Boucher Brothers is not liable and not responsible for Boucher
Brothers Delray Beach, LLC.
51
Ms. Toothaker stated they did submit a large amount of paperwork to the City of
Delray Beach and it is not in the normal course of business that they do such a thing. However,
she stated every single one of the letters they wrote was responding to a letter that they received
from Mr. Weiner. Ms. Toothaker stated Mr. Weiner had indicated that they were dismissive of
City of Delray Beach residents' concerns and this is not the case and was taken out of context.
She stated 70% of Boucher Brothers return business in Miami Beach is residents of Miami
Beach. Ms. Toothaker stated while they did say that technical deviations in the RFP's can be
waived procedural violations cannot be waived. She stated they have not been provided with any
case law that proves otherwise and as a result of that they believe that this RFP must be rejected
and rebid.
Mr. Frankel stated he informed the attorneys for both sides that he had problems
with a lot of things in this. He stated both Oceanside and the Boucher Brothers run great
operations. He stated since he goes to Delray Beach almost every weekend he went to Fort
Lauderdale Beach and checked out the Boucher Brothers operation in fairness. Mr. Frankel
thanked the selection committee for doing a great job; however, he has a problem that the Fort
Lauderdale Rescue Chief was on the selection committee. He feels that Mr. Weiner has merit
in his argument regarding the points. Mr. Frankel stated he went through all the paperwork and
noted that the hourly rate and seasonal rate that Oceanside does is beneficial. He stated he sees
the service that is provided and believes it benefits residents of Delray and our local communities
to have a seasonal rate. He stated on page 39 of the Boucher Brothers package this is not
offered. Mr. Frankel stated on page 88 when talking about seasonal rates it opens opportunities
for employees to steal and that language stuck out to him in a negative manner. He stated with
regard to the equipment he did not see any cushion chairs and there were only chairs with
umbrellas. He stated Oceanside offers the single chairs with the umbrellas and the chairs with
the cushions. Mr. Frankel stated he does not know about any complaints against the Boucher
Brothers but he inquired with staff about Oceanside and in the years that they have been there no
complaints have been reported. With regard to service, Mr. Frankel stated it seems like Boucher
Brothers has more relations with hotels and he has not heard any evidence or testimony of
residents or repeat customers in the locales they serve. He stated about one month ago he went
through the Oceanside package and he counted 62 comment cards, 96 Delray local beach
reference emails or letters where people are happy with the service they received. Mr. Frankel
stated with regard to uniforms he feels Boucher Brothers is superior and when he spoke with Eric
Feld he stated that Oceanside needs to be improved on that. Mr. Frankel stated he sees sticks
about sea turtles all over the beach and believes there are local volunteers that take care of that.
However, he stated he agrees with the representations that the employees are friendly and has
witnessed them picking up garbage on the beach. Mr. Frankel stated with regard to the criminal
history he went to the Clerk of Court website and he counted approximately ten that related to a
Michael Novatka with a September 3, 1985 birthday and it tends to lessen the credibility. He
stated Boucher Brothers are trying to portray Mr. Novatka in one way where it is not him. Mr.
Frankel stated Fort Lauderdale has a distinct beach that has football, jet skis, and recreation. He
stated Delray Beach is distinct in its own way in that it is nice and quiet. Mr. Frankel stated
Delray Beach stands apart and feels this is why people enjoy our beach. Mr. Frankel stated for
the reasons which he investigated, he supports staff's recommendation to award the bid to
Oceanside Beach Service, Inc.
52
06/02/09
Mr. Bernard stated he kept going back to the towing contract because in the
towing contract one of the bidders submitted information on another company and the
Commission was very specific in terms of how they voted because they provided the wrong
information. He stated in this situation the Boucher Brothers provided information for their
"sub" corporation and asked if it is standard practice to provide information about a "sub"
corporation. Ms. Toothaker stated in every municipality that the Boucher Brothers has submitted
a response to a bid they have submitted as a sub corporation and the reason being is the Boucher
Brothers started in Miami Beach. She stated the way that contract is set up is the City of Miami
Beach has constant access to the Boucher Brothers books and records because they take a
percentage of the profits that Boucher Brothers makes on the beach. The way the Boucher
Brothers is able to distinguish Miami Beach, Virginia Beach, Fort Lauderdale Beach, and Delray
Beach and other beaches that they do is by having separate corporations with separate books and
records. MT. Bernard stated if the City is going to accept these bids then whoever bids needs to
stand behind their bid. He asked if it is standard practice to provide information about a "sub"
corporation and does the City hold the parent company liable. He stated if it is Boucher
Brothers Delray Beach, LLC you have to provide the information for the Boucher Brothers
Delray Beach, LLC in order to be consistent. Therefore, Mr. Bernard stated he will support
staff's recommendation to award the bid to Oceanside Beach Service, Inc.
Mr. Fetzer stated there were irregularities on both sides and expressed concern
over the sub corporation. He too will support staff's recommendation to award the bid to
Oceanside Beach Service, Inc.
Mr. Eliopoulos expressed concern over the inconsistencies and asked if the
Sunshine Laws were broken. He inquired about the 18 missing pages. Mr. Shutt stated the
package he received from Purchasing was the whole package and staff informed him that
everything that was provided to him was also provided to Boucher Brothers. Mr. Shutt stated
when he sent it to them it was a very short time after that. The City Attorney clarified with Mr.
Shutt that the 18 pages were not missing the second time he sent the bid package which was in a
week or so. Mr. Shutt stated he believes it was within a short period of time after that. With
regard to the Sunshine Law, MT. Shutt disagrees with Boucher Brothers counsel and feels it
shows that the selection committee members were on a fact finding tour and it was okay and that
there was not a Sunshine Law violation. Mr. Eliopoulos inquired about the selection committee
and with regards to the issue of turtles and asked if the State law states that you have to remove
furniture away from the beach. In response, Bob Taylor, Ocean Rescue Superintendent, stated
he contacted the State and knows how Oceanside has been storing their equipment. He stated
things need to be put up and if a turtle comes up on the beach you cannot impede the turtle from
nesting so things get pushed to the back of the dune or stacked up. The City of Delray Beach has
a private contractor that does the turtle nesting surveys. Mr. Eliopoulos stated this is like the
towing contract where we have a group that has submitted a bid to the City under two separate
companies.
Mayor McDuffie stated there was a statement that the committee was not properly
constituted and we made that admission for one protest and then we changed our position that the
committee was properly constituted for the second protest. Brian Shutt, Assistant City Attorney,
stated he does not think there was a change in position but believes it was just leaving out the
53
word "not". Mr. Shutt stated the City's position was always the same in that City staff always
selects who is on the selection committee and there is not a requirement that he is aware of that
the City Commission has to say that these are selection committee members. The City Manager
stated he cannot recall an instance where City staff has ever come before the City Commission
and asked them to approve a selection committee of this sort. Mayor McDuffie inquired about
the statement by Ms. Toothaker that "these represent procedural violations and cannot be
waived." Mr. Shutt stated he does not view them as procedural violations. The City Attorney
concurs with Mr. Shutt. Mayor McDuffie stated with regard to the towing contract, the City held
steadfast that we would deal with only the company that answered the RFP and we would not
consider any assets, services, or background of some other company other than the one who
actually submitted the RFP. Mayor McDuffie stated for the Commission to remain transparent
and consistent he would agree with staff's appraisal of that situation that we are not dealing with
the same company and therefore he supports staff's recommendation to stay with Oceanside.
The City Attorney briefly reviewed the Board Order with the Commission who
made findings according to their consensus (attached hereto is a copy and made an official part
of the minutes).
Mr. Eliopoulos moved to adopt the Board Order as presented (denying the bid
protest by Boucher Brothers and awarding the bid to Oceanside), seconded by Mr. Fetzer. Upon
roll call the Commission voted as follows: Mayor McDuffie — Yes; Mr. Eliopoulos — Yes; Mr.
Fetzer — Yes; Mr. Frankel — Yes; Mr. Bernard — Yes. Said motion passed with a 5 to 0 vote.
9.C. AGREEMENT/COMPUTERWORX, INC.: Consider approval of a Consulting
Agreement between the City and ComputerWorx, Inc., for computer software development for
the Green Task Force online bulletin board meetings.
The City Attorney stated this is a consultant agreement for the Workshop online
meeting software. The Request for Proposal (RFP) did retain the requirement that the City could
actually sell the software. At this point, the City Attorney stated the vendor has come back and
said they will sell the City the right to the materials but we could not use it for any other agency.
Therefore, the City would have it but we could not sell it and this is contrary to the intent that the
City had going forward.
Mr. Fetzer asked if the City Attorney sees a problem at this point to go back and
asking ComputerWorx, Inc. if they will honor their original RFP. In response, Ms. Pybum stated
the City has already requested that of them and they have said that they will not sip the
agreement so long as they have to agree to allow the City the ability to sell the software.
The City Attorney stated we have not put it forward to ComputerWorx in the
strongest terms possible that their RFP that they responded to indicated that they would let the
City do that. She stated if the direction of the Commission is that we give that another try staff
will do that.
Mayor McDuffie stated he believes that from the day that ComputerWorx did this
they bit off more than they could chew.
MI
• ! Mll
He stated the price was so insanely low that there was no possible way that they could make a
profit and then turn around and allow the City to resell their product,
Ms. Pyburn pointed out that this was not a formal RFP and stated this was just a
request by letter because the City was requesting special services. She stated staff has requested
ComputerWorx multiple times to fulfill the requirements of the agreement that they had an
advanced copy of prior to agreeing to submit their proposal prior to the City Commission
Meeting where it was approved.
It was the consensus of the Commission to direct the City Attorney to go back to
ComputerWorx and talk to them one more time.
9.D. AMENDMIENT NO. 21MATCH POINT, INC.: Consider approval of
Amendment No. 2 to the amended and restated agreement between the City and Match Point,
Inc. which provides that the City shall be a Co-Title Sponsor for the ATP Champions Tour,
which shall be held concurrently with the ATP World Tour.
Brian Shutt, Assistant City Attorney, stated Match Point, Inc. has requested an
amendment to the Match Point Agreement. Mr. Shutt stated Match Point would like to bring an
ATP Champions Tour Event to the City and the term would coincide with the remaining term
that is left on the original Match Point Agreement which means it would expire in 2030. He
stated some of the highlights of the agreement are that the City would be a Co-Title Sponsor for
the ATP Champions Tour Event in the City. One of the changes made to the agreement is that
Match Point will be providing $200,000.00 for player appearance fees and with regard to the fees
that the City will be paying, Match Point has requested a 10% administrative fee that would
apply to the sponsorships that are listed in the Match Point Agreement. Mr. Shutt stated Match
Point has also requested to be compensated for the 2009 event that just occurred (10% of
$175,000.00 = $17,500.00). He stated the payments start out at $375,000.00 for the 2010 event
and the event will take place in February and will run concurrently with the regular event that
Match Point has now. Mr. Shutt stated the City would not make the payment of $375,000.00
until October 1, 2010. He stated Match Point has requested a $10,000.00 payment to be paid in
March 1, 2010. Mr. Shutt stated the annual payments that the City would be paying will go up
3% annually. He stated the other provision provides a "catch up" provision where the City can
start paying Match Point in advance and the City would be paying 1/4instalhnents each year for
the next four years by January 15th so the first payment would be January 15, 2011, 2012, 2013,
and 2014. Mr. Shutt stated for the 2015 event the City would be paying Match Point
$375,000.00 as far as it has been raised 3% and at that point the City would start paying
November I", December l't, January I", and February 1St for the February event.
Mark Baron stated they would like to bring an ATP Champions Tour Event to the
City of Delray Beach. He stated the ATP Champions Tour is in Europe and other places in the
world and is now coming to the United States of America. Mr. Baron stated Match Point has
received the sanction for this event and they have rights for the entire southeast United States.
He stated there will be five others coming to the United States which will be notified publicly in
about a day or two. Mr. Baron stated based on what Match Point has done so far and based on
studies done by the City this event will have an economic impact of approximately $12 million
over a period of nine days.
55
He stated he and his staff went to the businesses in the area besides bringing the economic
impact to the City, he feels that they also bring an ATP Tour Event and an ATP Tour Champions
Event held at one time over a nine day period. Mr. Baron stated the marketing media that will
come from this will be one of the biggest things he has done to date. The ATP Champions Event
is in countries of China, Barcelona, London, Zurich, Paris, Sarnpalo, Italy, Austria, Portugal, and
Hungary. He stated it will bring players to the City such as John McEnroe, Pete Sampras, Andre
Agassi, Borg, Veelander, and Courier. Mr. Baron stated he is hopeful that this will be the
biggest event that they have ever done in the 19 years that they have been doing this.
Mr. Eliopoulos stated this is a great concept and he would love for this event to
come to Delray Beach; however, he was not aware of the associated costs of what it is going to
take. Mr. Eliopoulos stated it is difficult to make a decision on this kind of spending with the
unknowns regarding the upcoming budget year. He suggested that the Budget Task Force
review this.
Mr. Fetzer concurs with comments expressed by Mr. Eliopoulos. He stated he
would like to give this some more thought before finalization.
Mr. Bernard stated if the City wanted to hold the event in 2010 how quickly
would Mr. Baron would need a response from the Commission. In response, Mr. Baron stated
the event will cost approximately $800,000.00-$900,000.00 to have the event here. He stated the
sponsorship or the funds needed for the City being the Co-Title of the event for 2010 in
February, Match Point would come up with the funds for the City as a credit line in lieu of
having it budgeted in the next fiscal year for the City. Mr. Baron stated Match Point has 60 days
to decide where the event is going to be (June 23, 2009). He stated it is much less for them to
hold the event here because they already have the site set up.
Mr. Bernard asked when the Budget Task Force will be meeting again. Peter
Arts, member of the Budget Task Force, stated the Budget Task Force will be meeting on June
16, 2009 at 8:30 am.
Mr. Frankel stated he met with Mr. Baron and he made it a very persuasive
argument. He stated during the regular tournament which he has never attended he sees the
impact that it has at the restaurants and the shops. Mr. Frankel expressed concern over the length
of time (20 years) and the money. However, he feels it would be an amazing opportunity for
Delray Beach because we would be the only venue in the world that would have a Champions
Tour and an ATP Tour back-to-back. Mr. Frankel suggested that the Commission table this item
and have the Budget Task Force review this and report back to the Commission in two weeks.
Mayor McDuffie stated the City has gotten beaten up more than once regarding
the expenditures at the Tennis Center. He stated the City has the asset and the tennis center is
underutilized. Mayor McDuffie stated Mr. Baron made some proposals of being able to do
changes to the stadium which would allow other venues that we have all been talking about for
years to be held there and this appeals to something the Commission has discussed in the Goal
Setting sessions.
MO
06/02/09
Mayor McDuffie stated the City is looking at thinking out of the box and using assets of the City
that do not get used to the extent that they should in ways that we can benefit the City itself plus
the residents of the City of Delray Beach. Mayor McDuffie stated the City is going to take a
14.65% hit in ad valorem taxable value decline.
Mr. Baron stated there are going to be five more of these events in the United
States through Canada (20 throughout the world).
The City Manager stated if the City was able to sell the sponsorships we have it
would more than offset the costs.
Mr. Baron stated IMG is paid by the ATP World Tour to manage the ATP
Champions Tour.
Mr. Shutt stated the reason the IMG Agreement is not before the Commission
tonight is because staff is still going back and forth in negotiations.
Peter Arts, (member of the Budget Task Force and Treasurer of the CRA), stated
the $17,500.00 that is proposed from the CRA is not what the Budget Task Force voted for. Mr.
Arts stated the Budget Task Force voted to sponsor the Tennis Center and in his mind they did
not vote on the 10% of the $17,500.00. He stated it was for the Diamond sponsor but there is no
mention of this new agreement coming out. Mr. Arts stated a compelling presentation on the
RLI would need to be made to the group.
At this point, the time being 1:45 a.m., the Commission moved to First headings.
12. FIRST READINGS:
12.A. ORDINANCE NO 31 -09: Consider a city - initiated amendment to Chapter 35,
"Employees Policies and Benefits ", subheading "Retirement Plan", of the Code of Ordinances of
the City of Delray Beach, Florida, by amending Section 35.097, "Retirement Income; Basis,
Amount, and Payment"; amending Section 35.100, "Beneficiaries; Contingencies ". If passed, a
public hearing will be held on Tune 16, 2009.
The caption of Ordinance No. 31 -09 is as follows:
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY
OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 35,
"EMPLOYEES POLICIES AND BENEFITS ", SUBHEADING
"RETIREMENT PLAN", OF THE CODE OF ORDINANCES OF
THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDNG
SECTION 35.097, "RETIREMENT INCOME; BASIS,
AMOUNT, AND PAYMENT "; AMENDING SECTION 35.100,
`BENEFICIARIES; CONTINGENCIES"; PROVIDING A
GENERAL REPEALER CLAUSE; A VALIDITY CLAUSE;
AND AN EFFECTIVE DATE.
57
1• i► i•
(The official copy of Ordinance No. 31-09 is on file in the City Clerk's office.)
The City Attorney read the caption of the ordinance and stated this ordinance
mirrors what the City has done for the Police and Fire as to the "pop-up" feature.
Mr. Fetzer moved to approve Ordinance No. 31-09 on FIRST Reading, seconded
by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Eliopoulos — Yes; Mr.
Fetzer — Yes; Mr. Frankel — Yes; Mr. Bernard — Yes; Mayor McDuffie — Yes. Said motion
passed with a 5 to 0 vote.
13. COMMENTS AND INQUIRIES ON NON-AGENDA ITEMS.
B.A. City Manner
The City Manager stated it is his understanding that prior to the Election of 1990
City Commission meetings, frequently ran into wee hours of the morning and after that Election
based on the experience prior to that date is when the Commission set the 11:00 p.m. hour. He
suggested that the Commission may want to bear in mind that in the future if they get into a
situation where they have a lot of decision making after the 11:00 p.m. hour, they may want to
adjourn the meeting and reconvene the next day.
U.B. City Attorney
The City Attorney stated this is the last regular meeting of her career and tonight's
meeting was a pleasure and a record.
D.C. City Commission
B.C.I. Mr. Fetzer
Mr. Fetzer had no comments and inquiries on Non-Agenda Items.
13.C.2. Mr. Eliopoulos
Mr. Eliopoulos had no comments and inquiries on Non-Agenda Items.
13.0.3. Mr. Frankel
Mr. Frankel had no comments and inquiries on Non-Agenda Items.
13.0.4. Mr. Bernard
Mr. Bernard had no comments and inquiries on Non-Agenda Items.
13.C.5. Mayor McDuffle
Mayor McDuffic had no comments and inquiries on Non-Agenda Items,
W
/. 1 1 ,
There being no further business, Mayor McDuffie declared the meeting adjourned
at 1:48 p.m.
\oa �..,�_,s -
City Clerk
ATTT
MAYOR
The undersigned is the City Clerk of the City of Delray Beach, Florida, and the information
provided herein is the Minutes of the Regular City Commission Meeting held on June 2, 2009,
which Minutes were formally approved and adopted by the City Commission on July 7, 2009.
City Clerk
NOTE TO READER:
If the Minutes you have received are not completed as indicated above, this means they are not
the official Minutes of the City Commission. They will become the official Minutes only after
review and approval which may involve some amendments, additions or deletions as set forth
above.
W,
FORM 813 MEMORANDUM OF VOTING CONFLICT FOR
COUNTY, MUNICIPAL, AND OTHER LOCAL PUBLIC OFFICERS_
LAST NAME—FIRST NAME—MIDDLE NAME
NAME OF BOARD, COUNCIL, COMMISSION. AUTHORITY, OR COMMITTEE
Bernard x Mackenson
Delra Beach City X011111111:111islon
THE BOARD, COUNCIL, COMMISSION. AUTHORITY OR COMMITTEE ON
MAILING ADDRESS
1534 Fenton Drive
WHICH I SERVE IS A UNIT OF:
CITY COUNTY
]MITY ❑ COUNTY ❑ OTHER LOCAL AGENCY
NAME OF POLITICAL SURDIVII SION:
Delray Beach, Florida 33445 Palm Beach
: ft — f Delr ay Beach
I C
DATE ON WHICH VOTE OCCURRED
MY POSITION IS,
6,(2/2009
XK ELECTIVE 0 APPOINTIVE
WHO MUST FILE FORM 8B
This form is for use by any person serving at the county, city, or other local level of government on an appointed or elected board, council,
commission, authority, or committee. it applies equally to members of advisory and non-advisory bodies who are presented with a voting
conflict of interest under Section 112.3143, Florida Statutes.
Your responsibilities under the law when laced with voting on a measure in which you have a conflict of interest will vary greatly depending
on whether you hold an elective or appointive position. For this reason, please pay close attention to the instructions on this form before
completing the reverse side and filing the form.
INSTRUCTIONS FOR COMPLIANCE WITH SECTION 112.3143, FLORIDA STATUTES
A person holding elective or appointive county, municipal, or other local public office MUST ABSTAIN from voting on a measure which
inures to his or her special private gain or loss. Each elected or appointed local officer also is prohibited from knowingly voting on a mea-
sure which inures to the special gain or loss of a principal (other than a government agency) by whom he or she is retained (including the
parent organization or subsidiary of a corporate principal by which he or she is retained); to the special private gain or loss of a relative; or
to the special private gain or toss of a business associate. Commissioners of community redevelopment agencies under Sec. 163.356 or
163.357, F.S., and officers of independent special tax districts elected on a one-acre, one vote basis are not prohibited from voting in that
capacity.
For purposes of this law, a "relative' includes only the officer's father, mother, son, daughter, husband, wife, brother, sister, father-in-law,
mother-in-law, son-in-law, and daughter-in-law. A 'business associate" means any person or entity engaged in or carrying on a, business
enterprise with the officer as a partner, joint venturer, coowner of property, or corporate shareholder (where the shares of the corporation
are not listed on any national or regional stock exchange).
ELECTED OFFICERS:
In addition to abstaining from voting in the situations described above, you must disclose the conflict:
PRIOR TO THE VOTE BEING TAKEN by publicly stating to the assembly the nature of your interest in the measure on which you
are abstaining from voting; and
WITHIN 15 DAYS AFTER THE VOTE OCCURS by completing and filing this form with the person responsible for recording the min-
utes of the meeting, who should incorporate the form in the minutes,
MUONlik'1114 # # M910
Although you must abstain from voting in the situations described above, you otherwise may participate in these matters. However, you
must disclose the nature of the conflict before making any attempt to influence the decision, whether orally or in writing and Whether made
by you or at your direction.
IF YOU INTEND TO MAKE ANY ATTEMPT TO INFLUENCE THE DECISION PRIOR TO THE MEETING AT WHICH THE VOTE WILL BE
TAKEN:
You must complete and file this form (before making any attempt to influence the decision) with the person responsible for recording the
minutes of the meeting, who will incorporate the form in the minutes. (Continued on other side)
CE FORM 88 - EFF, 1f200D ' Item &C li- Itein 9.A.A. PAGE 1
APPOINTED OFFICERS (continuedy
• A copy of the form must be provided immediately to the other members of the agency--
• The form must be read publicly at the next meeting after the form is filed,
IF YOU MAKE NO ATTEMPT TO INFLUENCE THE DECISION EXCEPT BY DISCUSSION AT THE MEETING:.-.,...,
• You must disclose orally the nature of your conflict in the measure before participating.
• You must complete the form and file it within 15 days after the vote occurs with the person responsible for recording the minutes ofthe
meeting, who must incorporate the form in the minutes. A copy of the form must be provided immediately to the other members of the
agency, and the form must be read publicly at the next meeting after the form is filed,
DISCLOSURE OF LOCAL OFFICERS INTEREST
I. ffacke=on Bernard-- ------------ — hereby disclose that on June 2 20 09
(a) A measure came or will come before my agency which (check one)
XK inured to my special private gain or loss;
inured to the special gain or loss of my business associate,
inured to the special gain or loss of my relative,
inured to the special gain or loss of by
whom I am retained; or
inured to the special gain or loss of which
is the parent organization or subsidiary of a principal which has retained me.
(b) The measure before my agency and the nature of my conflicting interest In the measure is as follows:
June 2, 2009
Date Filed Signature
NOTICE: UNDER PROVISIONS OF FLORIDA STATUTES §112.317, A FAILURE TO MAKE ANY REQUIRED -DISCLOSURE
CONSTITUTES GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT,
REMOVAL OR SUSPENSION FROM OFFICE OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A
CIVIL PENALTY NOT TO EXCEED $10,000.
CE FORM 8B - EFF, V2000 PAGE 2
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12
1. This conditional use modification request to allow the expansion of the Life
Skills Center into 3 vacant adjacent bays has come before the City Commission on
2. The Applicant and City staff presented documentary evidence and
testimony to the City Commission pertaining to the conditional use modification request'
for Life Skills Center. All of the evidence is a part of the record in this case. Required
findings are made in accordance with Subsections I and II.
1. COMPREHENSIVE PLAN
a. Comprehensive Plan - Future Land Use and Map: Is the future use and
intensity of the development consistent with the future land use map and
comprehensive plan and is it appropriate in terms of soil, topographic, and other
applicable physical considerations, complementary to adjacent land uses, and fulfills
remaining land use needs, subject to the attached conditions?
Yes 5 No 0
b. Concurrency: Concurrency as defined pursuant to Objective B-2 of
the Land Use Element of the Comprehensive Plan must be met and a determination
made that the public facility needs of the requested land use and/or development
application will not exceed the ability of the City to fund and provide, or to require the
provision of, needed capital improvements for the following areas:
Are the concurrency requirements met, subject to the attached
conditions, as respect to water, sewer, drainage, streets and traffic,
parks, open space, solid waste and schools?
Yes 5 No 0
City Commission Meeting on June 2, 2009
Item 9.A.
11. LDR REQUIREMENTS:
LDR Section 2.4.5(E) Required Findings: (Conditional Use): Pursuant to
Section 2.4.5(E)(5), in addition to provisions of Chapter 3, the conditional use will not:
i. Have a significantly detrimental effect upon the stability of the
neighborhood within which it will be located;
if. Hinder development or redevelopment of nearby
properties.
Will the requirements of LDR Section 2.4.5(E) and Chapter 3 be met, subject
to the attached condition(s)?
3. The comments and notes set forth in the staff report are hereby
incorporated herein.
4. The City Commission has applied the Comprehensive Plan and LDR
requirements in existence at the time the conditional use request was submitted and
finds that its determinations set forth in this Order are consistent with- the
Comprehensive Plan and Land Development Regulations.
5. The City Commission finds there is ample and competent substantial
evidence to support its findings in the record submitted and adopts the facts contained
in the record including but not limited to the staff reports, testimony of experts and other
competent witnesses supporting these findings.
6. Based on the entire record before it, the City Commission approves X
denies the conditional use request subject to conditions attached hereto and
hereby adopts this Order this 2n' day of June, 2009, by a vote of 5 in favor and
0 * # -.
2 City Commission Meeting on June 2, 2009
Item 9.A.
ATTEST:
Chevelle Nubin
City Clerk
City Commission Meeting on June 2, 2009
Item 9.A.
Conditions Related to Life Skills Center Condition Use Modification
1. That the maximum enrollment of the school cannot exceed 165 students;
2. That the maximum number of students allowed in the outside play area at any one time
shall not be greater than 25 students;
3. That the applicant needs to upgrade the landscaping around the play area to screen it
from Lake Ida Road;
4. That the school needs to provide a school crossing guard to guide the students through
the traffic lights at the intersection of Congress Avenue and Lake Ida Road during the
school hours; and
5. That the school have two security guards on site when the school is open including one
hour prior to class and one hour after class. This guard should be instructed to control
noise and on site loitering.
4 City Commission Meeting on June 2, 2409
Item 9.A.
1 0
WAIVER REQUESTS FOR LIFE SKILLS CENTER
ORDER OF THE CITY COMMISSION
OF THE CITY OF DELRAY BEACH, FLORIDA
1. The waiver requests to reduce the minimum outdoor play area and to
Increase the maximum number of students for the Life Skills Center have come before
the City Commission on June 2, 2009.
2. The Applicant and City staff presented documentary evidence and
testimony to the City Commission pertaining to the waiver requests for the Life Skills
Center. All of the evidence is a part of the record in this case. Required findings are
made in accordance with Subsection 1.
1. WAIVERS:
Pursuant to LDR Section 4.3.3(1,11-11-1)(3), there shall be a minimum area of 76 square feet of
outdoor play area per student. The applicant has submitted a waiver request to reduce the
required minimum outdoor play area per student from 75 sq. ft. to 33.33 sq. ft. In other words,
from 7,500 sq. ft. (100studentsx75=7,500 sq. ft.) to 5,499.45 sq. ft. (165x33.33=5,499.45 sq. ft.)
based on the school's curriculum.
Pursuant to LDR Section 4.3.3(1-11-11-1)(6), private school facilities shall be limited to a maximum
of 100 students when located in the PC district. The applicant has submitted a waiver to this
requirement to allow for an increase up to 165 students.
Pursuant to LDR Section 2.4.7(B)(5), prior to granting a waiver, the approving body
shall make a finding that the granting of the waiver:
(a) Shall not adversely affect the neighboring area;
(b) Shall not significantly diminish the provision of public facilities;
(c) Shall not create an unsafe situation; and,
(d) Does not result in the grant of a special privilege in that the same waiver would
be granted under similar circumstances on other property for another applicant or
owner.
Would the waiver of Section 4.3.3(1-11-11-1)(3) to reduce the minimum outdoor play area
per student from 75 sq. ft. to 33.33 sq. ft. comply with the requirements of 2.4.7(B)(5)?
Yes 5 No 0
I
City Commission Meeting June 2, 2009
Item 9.A.1
♦ %
Would the waiver of Section 4.3.3(HHH)(6) to allow an increase of students from 100 to
165 comply with the requirements of 2.4.7(B)(5)?
Yes 4 No 1
3. The City Commission has applied the Comprehensive Plan and LDR
requirements in existence at the time the original development application was
submitted and finds that its determinations set forth in this Order are consistent with the
Comprehensive Plan.
4. The City Commission finds there is ample and competent substantial
evidence to support its findings in the record submitted and adopts the facts contained
in the record including but not limited to the staff reports, testimony of experts and other
competent witnesses supporting these findings.
5. Based on the entire record before it, the City Commission approves or
denies the waiver requests as follows:
LDR Section Approve Deny
4.4.3.(HHH)(3) (reduce minimum outdoor play area) X
4.4.3.(HHH)(6) (increase of students from 100 to 165) X
6. Based on the entire record before it, the City Commission hereby adopts
this Order this 2nd day of June, 2009, by a vote of 4 in fayor and �1 opposed.
ATTEST: Nelson S.
Chevelle Nubin, City Clerk
Pq
City Commission Meeting June 2, 2009
Item 9.A.1
IN THE CITY COMMISSION
CHAMBERS OF THE CITY OF
DELRAY BEACH, FLORIDA
BID PROTESTS BY OCEANSIDE BEACH SERVICES INC. AND BOUCHER
BROTHERS DELRAY BEACH, LLC.
ORDER OF THE CITY COMMISSION
OF THE CITY OF DELRAY BEACH, FLORIDA
1. These bid protests have come before the City Commission on June 2,
2009 where the applicants, Oceanside Beach Services, Inc. and Boucher Brothers
Delray Beach, LLC are requesting that the Commission uphold their respective bid
protests to RFP 2009-18, the beach cabana bid.
2. The Applicants and City staff presented documentary evidence and
testimony to the City Commission pertaining to the bid protests filed by both parties. All
of the evidence is a part of the record in this case. Required findings are made in
accordance with Subsection I.
1. BID AWARD:
The City will select the bid that, in the City's judgment, will best serve the City's interest.
Would approving the bid protest filed by Oceanside Beach Services, Inc. best serve the
City's interest.
Yes 5 No 0
Would approving the bid protest filed by Boucher Brothers Delray Beach, LLC best
serve the City's interest.
Yes . 0 No 5
3. The City Commission has applied the Comprehensive Plan and City
Ordinance requirements in existence at the time of bid award and finds that its
determinations set forth in this Order are consistent with the Comprehensive Plan.
4. The City Commission finds there is ample and competent substantial
evidence to support Its findings in the record submitted and adopts the facts contained
1
City Commission Meeting June 2, 2009
Item 9.B.
in the record including but not limited to the staff reports, testimony of experts and other
competent witnesses supporting these findings.
5. Based on the entire record before it, the City Commission approves X
denies the bid protest filed by Oceanside Beach Services, Inc., subject to the
waiver of any irregularities in Oceanside Beach Services' bid response. Based on the
entire record before it, the City Commission approves denies X the bid protest
filed by Boucher Brothers Delray Beach, LLC.
6. Based on the entire record before it, the City Commission hereby adopts
this Order this 21 day of June, 2009, by a
ATTEST:
K
City Commission Meeting June 2, 2009
Item 9.11.
•
IN THE CITY COMMISSION
CHAMBERS OF THE CITY OF
DELRAY BEACH, FLORIDA
WAIVER REQUEST FOR PALM TERRACES
ORDER OF THE CITY COMMISSION
OF THE CITY OF DELRAY BEACH, FLORIDA
1. The action requested is a waiver to provide additional time beyond the 3
year maximum from the date of an "Act of God" event to allow the completion of
construction for proposed improvements to Palm Terraces. This item has come before
IM2291M
2. The Applicant and City staff presented documentary evidence and
testimony to the City Commission pertaining to the waiver request from the property
owner of Palm Terraces. All of the evidence is a part of the record in this case.
Required findings are made in accordance with Subsection 1.
1. WAIVER:
Pursuant to LDR Section 1.3.8(A), if a lawful nonconforming residential or commercial
structure is damaged or destroyed by an Act of God (the event), the owner shall be
permitted to rebuild the structure in accordance with the use and number of units and
square footage permitted by the certificate of occupancy in existence prior to the
occurrence of the event. Where necessary, in order to accommodate the use or the
same number of such units, structures may be reconstructed to heights previously
established on building permit plans approved prior to the occurrence of the event.
However, pursuant to LDR Section 1.3.8(B), in order to receive approval for rebuilding
pursuant to this Section, application for building permits must be submitted within one
year of the date on which the event occurred and all reconstruction must be completed
within three years 'from the date of the event. The Applicant requests a waiver from
Section 1.3.8(B) to extend the time period in which site plan approval and permits can
be obtained to May 1. 2010 and reconstruction to be completed to November 1, 2011
Pursuant to LDR Section 2.4.7(8)(5), prior to granting a waiver, the approving body
shall make a finding that the granting of the waiver:
(a) Shall not adversely affect the neighboring area;
(b) Shall not significantly diminish the provision of public facilities;
(c) Shall not create an unsafe situation; and,
(d) Does not result in the grant of a special privilege in that the same waiver would
be granted under similar circumstances on other property for another applicant or
owner.
1
City Commission Meeting on June 2, 2009
Item 10.A.
.0
Does the waiver request to Section 1.3.8(B), to extend the time period in which site plan
approval and permits can be obtained to May 1. 2010 and reconstruction to be
completed to November 1, 2011, meet all the requirements of 2.4.7(B)(5)?
Yes 4 No 1
3. The City Commission has applied the Comprehensive Plan and LDR
requirements in existence at the time the original development application was
submitted and finds that its determinations set forth in this Order are consistent with the
Comprehensive Plan.
4. The City Commission finds there is ample and competent substantial
evidence to support its findings in the record submitted and adopts the facts contained
in the record including but not limited to the staff reports, testimony of experts and other
competent witnesses supporting these findings.
5. Based on the entire record before it, the City Commission approves X
denies the waiver request to LDR Section 1.3.8(A).
6. Based on the entire record before it, the City Commission hereby adopts
this Order this 2"d day of June, 2009, by a
ATTEST-
Chevelle Nubin, City Clerk
K
son S. McDuffie,
City Commission Meeting on June 2, 2009
Item W.A.