Loading...
01-03-12 Regular Meeting MinutesA 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, January 3, 2012. 1. Roll call showed: Present - Commissioner Tom Carney Commissioner Jay Alperin Commissioner Adam Frankel Commissioner Angeleta E. Gray Mayor Nelson S. McDuffie Absent - None Also present were - David T. Harden, City Manager Robert A. Barcinski, Assistant City Manager Brian Shutt, City Attorney Lanelda D. Gaskins, Acting City Clerk 2. The opening prayer was delivered by Reverend Paula Hayward, Board member of the Delray Beach Interfaith Clergy Association. 3. The Pledge of Allegiance to the flag of the United States of America was given. 4. AGENDA APPROVAL. Dr. Alperin requested that Item S.E., Appointment of Outside Counsel to Assist in Review of Ordinances Reearding Transient Housing of the Consent Agenda be moved to the Regular Agenda as Item 9.A.A. Mr. Carney requested that Item 8.N.1., Purchase Award to Municipal Lighting Systems of the Consent Agenda be moved to the Regular Agenda as Item 9.A.A.A. Mrs. Gray moved to approve the Agenda as amended, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes. Said motion passed with a 5 to 0 vote. 5. APPROVAL OF MINUTES: Mr. Frankel moved to approve the Minutes of the Regular Meeting of December 6, 2011, seconded by Mrs. Gray. Upon roll call the Commission voted as 01/03/12 follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes. Said motion passed with a 5 to 0 vote. Mrs. Gray moved to approve the Minutes of the Regular Meeting of December 13, 2011, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. 6. PROCLAMATIONS: 6.A. Martin Luther King, Jr. Day — January 16, 2012 Mayor McDuffie read and presented a proclamation hereby proclaiming January 16, 2012 as Martin Luther King, Jr. Day. Lillian Strainge came forward to accept the proclamation and gave a few brief comments. 6.B. Calline for the First Non - Partisan Election to be held on March 13, 2012 Mayor McDuffie read and presented a proclamation hereby calling for the First Nonpartisan Election and a Special Election to be held on Tuesday, March 13, 2012, between the hours of 7:00 a.m. and 7:00 p.m. Lanelda Gaskins, Deputy City Clerk, accepted the proclamation. 7. PRESENTATIONS: 7.A. Government Finance Officers Association Award — Certificate of Achievement for Excellence in Financial Reporting Milena Walinski, Assistant Finance Director, stated this is one of the highest accommodations that the Finance Department receives for governmental accounting and this is the 28h consecutive year the City of Delray Beach has received this award. Mayor McDuffie stated the Government Finance Officers Association reviews the work that the City's Finance Department turns into the state and based upon certain criteria they decide whether the City is doing a good job or not. Mayor McDuffie stated the City is doing a very good job and have awarded the Finance Department the Certificate of Achievement for Excellence in Financial Reporting Award for the 28th consecutive year. Mayor McDuffie congratulated the Finance Department for this accomplishment. 7.B. Recognizing and commending sponsors who helped make the 25th Annual Turkey Trot 5K Run and Health Walk a success Danielle Beardsley, Special Event Coordinator/Parks & Recreation, stated every year they do a Turkey Trot 5K Run and Health Walk along A -1 -A for the "Keith 2 01/03/12 Straghn Feed the Hungry Thanksgiving Drive ". This feeds thousands of people on Thanksgiving Day between Delray Beach, Boynton Beach and Boca Raton. Mrs. Beardsley stated they raised over $2,000.00 and 466 people participated. Mrs. Beardsley thanked and recognized the sponsors for their generosity: (1) Grimes Events & Party Tents, (2) Crossfit Delray Beach, (3) Bob's Quick Printing, and (4) Road ID. 7.C. Waste Management P"osal Presentation Butch Carter, Waste Management, briefly discussed an intelligent waste collection system by BigBelly Solar. Mr. Carter stated the Waste Management Solar powered trash compactor uses renewable energy to turn public spaces into clean eco- friendly zones and powered by the sun it encourages recycling and reduces both greenhouse gas emissions and trash collection expenses. Mr. Carter stated it is good for the environment and the economy. He stated the solar powered .compactor does not have an open container top; you have to actually walk up to it and put your items into it so it will help reduce litter. Mr. Carter stated reduces operational cost, it is tech savvy, it is powered by the sun and made of recycled materials and although it is small it has a huge capacity. He stated inside the solar compactor is about a 35 gallon bin and holds 180 gallons of loose debris that would be out on the street. Mr. Carter briefly discussed the three options (Option A, Option B and Option C). Mrs. Gray asked if there is a comparison charge as to what we have been paying for the pickups. The City Manager stated Rich Reade has done some analysis on it and staff is doing more. Mrs. Gray asked if there is a cost for the maintenance of the software once the contract is over. Mr. Carter stated it is currently $7.95 per month per unit. Mrs. Gray asked how many compactors have been donated to date. Mr. Carter stated Waste Management has agreed to fund the purchase of ten compactors and the City has purchased three. Mr. Carney stated he has received three calls on these receptacles and people are very happy with them. Dr. Alperin asked if staff collects the garbage from the old containers. The City Manager stated some Waste Management does and some City staff does. Mr. Carter stated in remote locations such as the parks the City staff collects it and brings it to a centralized location but along the Avenue and the beach Waste Management is doing the collection. Mrs. Gray asked if there any other type of contracts that the Commission would have to review with given direction to move forward or not with this. The City Attorney stated there has been other garbage collection contract that may have been led out in the not too distant past. The City Attorney stated on the Waste Management contract there is one particular fee that is a collection around the bus shelters which the City would have to bid out in order to comply with the purchasing guidelines. 3 01/03/12 Dr. Alperin stated some people are concerned with the extension of a contract as opposed to going out for bid and asked if staff should get an idea of what other cities are paying for a similar service. The City Manager stated staff will get that information to the Commission. Mayor McDuffie stated this is very exciting technology and this falls within the guidelines of the recommendations made by the Green Task Force and now we have a Green Implementation Advancement Board (GIAB) who also continues to make recommendations. Mayor McDuffie stated he was present when the first one was put at Pompey Park and they are terrific machines. Mr. Carter stated with regard to residual value, the first solar powered compactors were put out 13 -14 years ago in Cape Cod and they are still functioning. He stated the very first ones he does not believe have the wireless technology but the rest of them do have it. Mayor McDuffie asked if the console would be under the City's control so the Sustainability Officer could get the statistics off of it. Mr. Carter stated Waste Management would monitor it but the information about the Delray Beach Solar Powered Compactors is proprietary and the management console is password protected and the City is not limited to how many they would like to have. Mr. Carter stated Waste Management has access to it because they are also a collector and distributor. Mayor McDuffie stated the green, yellow and red indicators are positioned where the compactors exist indicating when they need to be emptied and asked if the City gets this information as well as Waste Management or is it incumbent upon the City to take that information and tell Waste Management the ones that need to be picked up. Mr. Carter stated the management console is currently monitored by Tim Simmons, Parks Superintendent. Mayor McDuffie stated rather than clicking on dots all over the city to find out where they are located it would be handy to get a report either on the screen or a hard copy. Mr. Carter stated the dots are telling you when it is time to schedule and the City already has a schedule. Mr. Carter stated it is a set route and it is all managed. 8. CONSENT AGENDA: City Manager Recommends Approval. 8.A. RESOLUTION NO. 01 -12: Approve Resolution No. 01 -12 regarding the March 13, 2012 First Nonpartisan and Special Election. The caption of Resolution No. 01 -12 is as follows: A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, CALLING FOR A NONPARTISAN ELECTION AND A SPECIAL ELECTION TO BE HELD ON TUESDAY, MARCH 13, 2012; AND A SECOND NONPARTISAN ELECTION, IF NECESSARY, TUESDAY, MARCH 27, 2012; ALL ELECTIONS SHALL BE HELD WITHIN THE MUNICIPAL BOUNDARIES OF THE CITY BETWEEN 4 01/03/12 THE HOURS OF 7:00 AM UNTIL 7:00 PM; THE NONPARTISAN ELECTION SHALL PROVIDE FOR THE ELECTION OF TWO CITY COMMISSIONERS AND THE SPECIAL ELECTION SHALL PROVIDE FOR A REFERENDUM ON THE CHARTER CHANGE PRESENTED IN ORDINANCE NO. 44 -11; PROVIDING THE TIME, MANNER AND MEANS OF HOLDING SAID ELECTIONS, PROVIDING A SAVING CLAUSE AND AN EFFECTIVE DATE. (The official copy of Resolution No. 01 -12 is on file in the City Clerk's office.) 8.B. RIGHT -OF -WAY DEED ACCEPTANCE/DELRAY BEACH HOUSING AUTHORITY: Accept a right -of -way deed for the dedication of 50' of land for Auburn Avenue from the Delray Beach Housing Authority in association with the Village Square Redevelopment project. 8.C. CHANGE ORDER NO. 4/FOSTER MARINE CONTRACTORS, INC.: Approve Change Order No. 4 to Foster Marine Contractors, Inc. in the amount of $10,646.40, for additional sod required due to sod quantity shortages; and a contract time extension of fourteen (14) days; for the S.W. 12th Avenue /Auburn Avenue /S.W. 14th Avenue project. Funding is available from 334 - 3162 -541 -68.04 (General Construction Fund/Other Improvement/S.W. 12th Avenue /Auburn/S.W. 14th Avenue). 8.D. SERVICE AUTHORIZATION NO. 46- 12 /CURRIE SOWARDS AGUiLA ARCHITECTS: Approve Service Authorization No. 06 -12 with Currie Sowards Aguila Architects in the amount of $44,300.00 for consulting services required in conjunction with a storm hardening project for Fire Rescue Headquarters (Fire Station No. 1). Funding is available from 334 - 6112 -519 -62.10 (General Construction Fund: Capital Outlay /Buildings). 8.E. THIS MM HAS BEEN MOVED TO THE REGULAR AGENDA AS ITEM 9.A.A. 8.F. HOUSING REHABILITATION GRANT /CONTRACT AWARD: Award one (1) Housing Rehabilitation contract through the Community Development Block Grant (CDBG) and Residential Construction Mitigation Program (RCMP) to the lowest responsive bidder, Citywide Construction Services, Inc., for 218 S.W. 13th Avenue in the amount of $24,011.77. Funding is available from 118 -1963- 554 -49.19 (Neighborhood Services: Other Current Charges/Housing Rehabilitation) and 118- 1936 - 554 -49.19 (Neighborhood Services: Other Current Charges/Housing Rehabilitation). 01/03/12 8.G. COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) SUB - RECIPIENT FUNDING AGREEMENT /ACHIEVEMENT CENTERS FOR CHILDREN AND FAMILIES: Approve and authorize execution of a Sub - Recipient Funding Agreement with Achievement Centers for Children and Families under the Community Development Block Grant (CDBG) program for FY 2011 -2012, with total funding in the amount of $72,540.00. Funding is available from 118- 1966 - 554 -82.09 (Neighborhood Services: Aid to Private Organizations/Child Care Center).. 8.11. COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) SUB - RECIPIENT FUNDING AGREEMENT/FAIR HOUSING CENTER OF THE GREATER PALM BEACHES, INC.: Approve and authorize execution of a Sub - Recipient Funding Agreement with the Fair.Housing Center of the Greater Palm Beaches, Inc. under the Community Development Block Grant (CDBG) program for FY 2011- 2012, with total funding in the amount of $6,000.00. Funding is available from 118 -1966- 554- 82.12 (Neighborhood Services: Aid to Private Organization/Fair Housing Center). 8„I. AMENDMENT TO THE THIRD ADDENDUM TO THE CONTRACT FOR SALE AND PURCHASE /2216 N.E. 3 AVENUE: Approve an Amendment to the Third Addendum to the Contract to sell/transfer one (1) NSP property to the Delray Beach Community Land Trust (DBCLT) for the benefit and resale of the unit to a household with an income less than one - hundred twenty percent (120 %) of Area Median Income (AMI) as determined by HUD. 8_J. REVISED WORKFORCE HOUSING COVENANT/BAMFOUR, LLC/DKB REALTY INVESTMENT INC./MATHIAS DEVELOPMENT: Approve the revised Workforce Housing Covenant as proposed between the City and Bamfour, LLC, DKB Realty Investment, Inc. and Mathias Development, Inc. 8.Ka RATIFICATION OF APPOINTMENT TO THE KIDS AND COPS COMMITTEE: Approve and ratify the appointment of Mr. Adrian Ralkauskas, Police Department Representative, for an unexpired term ending November 11, 2013. S.L. QUEST TO WAIVE FEES FOR STAFF AND USE OF POMPEY PARK FACILITIES FOR THE DR. MARTIN LUTHER KING, JR. HOLIDAY CELEBRATION: Approve a request to waive field permit and facility rental fees and provide staff support at Pompey Park on January 14, 2012 from 8:00 a.m. -12:00 p.m., and January 16, 2012 from 11:00 am. -5:00 p.m., for the Dr. Martin Luther King, Jr. Holiday Celebration. 8.M. REVIEW OF APPEALABLE LAND DEVELOPMENT BOARD ACTIONS: Accept the actions and decisions made by the Land Development Boards for the period December 12, 2011 through December 30, 2011. 8.N. THIS ITEM HAS BEEN MOVED TO THE REGULAR AGENDA AS ITEM 9.A.A.A. 1 01/03/12 Mr. Frankel moved to approve the Consent Agenda as amended, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 9. REGULAR AGENDA: 9.A.A. AGREEMENTS FOR CONSULTING ENGINEERING SERVICES/WANTMAN GROUP. INC./MATHEWS CONSULTING. INC.: Approve Agreements with Wantman Group, Inc. and Mathews Consulting, Inc. for consulting engineering services for capital improvement projects contained in the City's Capital Improvement Program (CIP). Project #12 -057. Dr. Alperin stated he pulled this item because he would like to see all of the contracts at one time instead of certain ones being approved and getting a head start on the others for city projects. Mr. Carney asked if there is a reason why we are piecemealing the approvals of the contracts as opposed to seeing all the contracts and how they interact with each other. Richard Hasko, Director of Environmental Services, stated staff has been bringing them forward as they get them from the consultants. Mr. Hasko stated staff will not be able to get started on the 2012 design work for the capital program until staff gets all the contracts before the Commission. Mr. Frankel moved to postpone Item 9.A.A. (formerly Item &E.) to January 17, 2012, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Carney — Yes; Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie — No. Said motion passed with a 4 to 1 vote, Mayor McDuffie dissenting. 9.A.A.A. AWARD OF BIDS AND CONTRACTS: Purchase award to Municipal Lighting Systems in the amount of $83,160.00 for the purchase of sixty (60) LED light fixtures that are Buy America. Compliant, to install on the decorative street light poles along West Atlantic Avenue. Funding is available from 101 - 6352 -519 -46.95 (ARRA Economic Stimulus FD: Repair & Maintenance Services/West Atlantic Avenue Street Lights). Mr. Carney stated he requested that this item be pulled and understands he received a response from the City Manager today. Mr. Carney stated this was an approval of a contract for $83,000.00 to purchase LED light fixtures to complement existing ones that we already have there. He stated it was not comparatively bid and understands the City went with the sole source supplier. Mr. Carney stated it is older LED technology and has staff fully examined this new technology to see whether or not it is worth it. 7 01/03/12 Richard Hasko, Director of Environmental Services, stated the technology will always be evolving and the reason staff is making the recommendation is because through a trial process a number of different types of manufacturers of LED fixtures over the last few years. Mr. Hasko stated this particular manufacturer has proven to provide the most reliable lowest maintenance product with a superior warranty. Brief discussion by the Commission and staff followed. Dr. Alperin moved to approve the Purchase Award to Municipal Lighting Systems in the amount of $83,160.00, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes. Said motion passed with a 5 to 0 vote. 9.A. APPEAL OF AN ADMINISTRATIVE INTERPRETATIONBOSTON'S RESTAURANT: Consider the appeal of an administrative interpretation by the Director of Planning and Zoning that a conditional use approval is required for the outdoor entertainment component to be located on the Boston's Restaurant expansion area located at 40 South Ocean Boulevard. (Quasi - Judicial Hearing) Mayor McDuffie read the City of Delray Beach Quasi - Judicial Hearing rules into the record for this item and all subsequent Quasi - Judicial items. Lanelda D. Gaskins, Deputy 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 has the same ex parte communications he disclosed at both December meetings and he also received an email message that Mr. McMurrian called and he tried to call him back and did reach him today. Mrs. Gray stated she has the same ex parte communications she disclosed in the December meetings and she could have some emails; however, she has not checked those emails. Mayor McDuffie stated he disclosed the same ex parte communications he disclosed in the December meetings and received notification to call Mr. McMurrian and they have yet to connect with each other. Mr. Carney stated he has no new ex parte communications to disclose since the last time and stated there was an email about contacting Mr. McMurrian; however, he has not had the time to do that. Dr. Alperin stated he has no new communications to disclose. Paul Dorling, AICP, Director of Planning and Zoning, entered the Planning and Zoning Department project file #2011 -194 into the record. Mr. Dorling stated this is an appeal of the Planning and Zoning Director's interpretation that a conditional use approval is required for the outside entertainment component of the Boston's restaurant Phase Il expansion and this includes the expansion to the south up to where the Bermuda Inn used to be. This includes a Class V site plan 8 01/03/12 application that was approved on November 9, 2011, by the Site Plan Review and Appearance Board ( SPRAB) which includes three accessory structures including some bathrooms, a storage area, an outside bar and outside lobster cooker, and an outside deck that is to be used for outside entertainment. Mr. Dorling stated this entertainment area is the subject of this appeal. The determination that requires this additional process is consistent with how this outdoor entertainment venue has been handled in the past. The only legally established outside venue of this type is the approval received as part of the redevelopment of Block 85 formally known as Grove Square and now it is currently known as IL Bacio. Mr. Dorling stated they processed a conditional use under LDR Section 4.6.6.(A)(2) which states that certain conditional uses are allowed within commercial districts and they are subject to this conditional use process where appropriate conditions can be placed on them including visual and other impacts like noise. Mr. Dorling stated the applicant may argue that the outside entertainment is an accessory use to a restaurant but the accessory uses in the CBD (Central Business District) and outdoor entertainment is not included in that. He stated to assume that all restaurant uses may include outside entertainment would set a dangerous precedent citywide. Tom McMurrian, Ocean Properties, stated they own the Marriott and a few years ago they bought Boston's Restaurant, stated they downscaled the property to make it more functional and briefly explained how the trucks pull into the site, back up to make the deliveries, pull back out and leave onto Atlantic Avenue. Mr. McMurrian stated they are trying to keep the trucks from going any further south. He briefly explained Phase II. He stated they looked at ways to keep the sound down by creating a wall. The wall starts on A-1 -A at 5 feet; it steps up to 8 feet; steps up to 12 feet and then steps up to 13 feet and the wall becomes a sound barrier. % Alan Oklin, Attorney representing the owners of Boston's Restaurant, stated November 9, 2011, they were approved by the Site Plan Review and Appearance Board ( SPRAB) and at that time there was a recommended condition of approval that Boston's be required to obtain a conditional use for dinner places, places of assembly, live concerts or live performances. Mr. Ciklin stated at the SPRAB meeting they explained that they were not doing that but they were just accessory music like so many other venues on Atlantic Avenue and SPRAB agreed and voted unanimously to eliminate that condition. He stated they received the letter of approval from SPRAB and it was not a condition anymore; however, there was a comment that said they needed a conditional use for music. Mr. Ciklin stated he filed an appeal on behalf of Boston's indicating that this is accessory to the restaurant area and it is not a music type of venue. Mr. Ciklin stated the City Attorney explained to him that because it was a comment and not a condition of approval that the appeal was really Mr. Dorling's decision not the condition and this was amended accordingly. He stated then he received a telephone call from Mr. Dorling and that was not the section after all and that there was another section that stated "all commercial uses need to be within four walls except for certain accepted uses including outside dining areas". Therefore, Mr. Ciklin stated they amended the appeal to be the appeal of that. He stated the music that they are providing in that limited space is an accessory use to the dining and is not a primary use. Mr. Ciklin stated music is accessory to the dining area because if you walk up and down Atlantic Avenue there are a number of restaurants that have outside 9 01/03/12 music playing; some are outside and some are under a roof and only one has a conditional use. Mr. Ciklin stated as Boston's is going through an expense in making this the premiere place on Atlantic Avenue they are hoping they have the same benefit as those other uses. Edward Duerr, Acoustics Architect, 789 SW Federal Highway Stuart, Florida 34994, stated they have been working on projects with the City of Miami Beach, South Beach, Orlando, Palm Beach Gardens, and West Palm Beach. Mr. Dugger stated as an important part of controlling the noise especially the music is being able to control the audio system. He stated if they have control over the audio system they can also can model the speaker placement and the throat patterns of the speakers so they know exactly where the sound goes not only in the near field but also any reflections that come off buildings. Mr. Dugger also suggests that a salable meter be built into the venue not only the band members but also the management can understand what the salable are. The City of Delray Beach has two requirements; one is a decibel (measured in DBA) and another one called L50. He stated they can go through the materials involved such as a thatched roof, sand for the floor versus concrete or pavers. Mayor MCDuffie stated if anyone from the public would like to speak in favor or in opposition of the appeal, to please come forward at this time. There being no one from the public who wished to address the Commission, the public hearing was closed. Mr. Dorling stated this requirement is an LDR requirement and it is required to go through a conditional use process. He states staff can apply reasonable conditions, frequency, and hours of operation. Mr. Dorling stated if the Commission takes the position that it is just allowed as an accessory use the City loses that control. Mr. Dorling stated restaurants on Atlantic Avenue that do have music and those that have it inside and you can hear it from the outside it is in a completely enclosed building as identified in the LDRs. He stated the moment you go outside you need this conditional use process. The City Manager stated there have been a number of restaurants that have been in violation as well and they have been required to either remove speakers or tone the volume down. Mr. Ciklin stated there is outside music being provided in addition to just Johnnie Brown's and reiterated that only one conditional use has been granted. Mr. Ciklin stated SPRAB unanimously recommended that the condition requiring conditional use approval for music be eliminated. He stated at the SPRAB hearing there was no opposition. Mr. Ciklin stated the old pre- renovated Boston's had outside music as part of the tiki bar and it was never a problem and the pool area that was part of the Bermuda House that was eliminated was probably a bigger problem. Dr. Alperin made reference to the minutes of the last meeting and stated the Commission was very specific in the approval to the site plan, landscape plan, etc. that it was not including the approval of entertainment on the platform. Dr. Alperin stated his vote in supporting the site plan with the platform was with the knowledge that there was not going to be entertainment there. 10 01/03/12 Mr. Carney stated Mr. Ciklin's statement suggesting that the pool would be as big of a problem as outdoor entertainment is not a correct comparison. Mr. Carney stated he understands there are restaurants along the Avenue but to compare the beach area and this location with a corridor of entertainment venues he does not find to be a correct comparison either. He stated staff is not saying that there cannot be outdoor entertainment but they are saying because it is contiguous to residential neighborhoods that there should be some controls on the hours of the entertainment and /or the volumes. Mr. Carney supports staff s recommendation that a conditional use for outdoor entertainment is required. Mrs. Gray stated while she appreciates what is being done to Boston's, she feels the LDRs and ordinances need to be upheld and they are put in place to protect everyone. She stated the residents should have some type of input being that music does travel. Mrs. Gray supports staff's recommendation. Mr. Frankel stated Boston's has had a tiki bar for many years with live bands on the weekends. Mr. Dorling stated they were not approved for the bands; they were approved for an outside bar area that when they went for approval did not include an area for a band. Mr. Dorling stated if he was aware that they were having bands there, staff would have had Code Enforcement sent out. Mr. Frankel stated the renovation is beautiful but the problem he has is the comparison to the music on Atlantic Avenue and how many phone calls has the Commission received about the music on Atlantic. Mr. Frankel stated to him that side is a lot quieter on Friday at 11:00 p.m. than on the corner of 2"a and Atlantic Avenue. Mr. Frankel stated there should be controls. Mayor McDuffie stated he is a musician and has played at Boston's. He loves the site plan and concurred with Commissioner Frankel that the Commission has received numerous phone calls and email out of two places in the center of Atlantic Avenue to the point of litigation in one of the two. Mayor McDuffie stated noise regulation in this community is of the utmost importance and supports a conditional use where the City has control over the music. Mayor McDuffie stated he supports staffs recommendation. 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). Dr. Alperin moved to adopt the Board Order denying the applicant's appeal of the Planning and Zoning Director's interpretation regarding the outdoor entertainment function, seconded by Mr. Carney. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes. Said motion to adopt the Board Order denying the applicant's appeal passed with a 5 to 0 vote. At this point, the time being 7:32 p.m., the Commission moved to the duly advertised Public Hearings portion of the Agenda. 11 01/03/12 14. PUBLIC HEARINGS: 10.A. ORDINANCE NO. 44 -11: Consider an ordinance amending the Charter of the City of Delray Beach by amending Article III, "Legislative ", Section 3.02, "City Commission: Composition, Eligibility, Election, and Terms" and Section 3.09, "Term Limits"; amending Article V, "Elections ", Section 5.02, "Types of Elections "; to provide for a change in the length of a term from a two (2) year term to a three (3) year term; providing for a referendum election to be held on March 13, 2012. The caption of Ordinance No. 44 -11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, PROVIDING FOR REVISIONS TO THE CHARTER OF THE CITY OF DELRAY BEACH BY AMENDING ARTICLE III, "LEGISLATIVE ", SECTION 3.02, "CITY COMMISSION: COMPOSITION, ELIGIBILITY, ELECTION, AND TERMS" AND SECTION 3.09, "TERM LIMITS "; AMENDING ARTICLE V, "ELECTIONS ", SECTION 5.02, "TYPES OF ELECTIONS "; TO PROVIDE FOR A CHANGE IN THE LENGTH OF A TERM FROM A TWO YEAR TERM TO A THREE YEAR TERM; PROVIDING FOR A REFERENDUM ELECTION TO BE HELD ON MARCH 13, 2012; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 44 -11 is on file in the City Clerk's office.) The City Attorney read the caption of the ordinance and stated this ordinance provides for a change in the Commission terms. The City Attorney stated at the last Commission meeting they made some modifications to direct staff to go ahead and have the terms modified to allow for three terms and the term amount of three years would stay the same. 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. Mr. Carney requested that certain language changes be considered and asked how this will be addressed. The City Attorney stated depending on what the Commission decides tonight he can go back and re -draft the ordinance and come forward with a second reading on January 17, 2012. Brief discussion between the Commission and the City Attorney followed 12 01/03/12 Mr. Carney stated if someone is elected to a three year term and the next election would be in two years under the way the other portions of the code worked that ` person would be appointed and would serve essentially the next election which would be two years. He stated in the event that there was an appointment that the person could not serve two years until the next election and that there would have to be a special election so that there would not be two years until the next election. Mr. Carney stated the concept was that an appointment needs to be limited to the next time an election could be held not scheduled to be held. Brief discussion between the Commission and the City Attorney continued. Lanelda D. Gaskins, Deputy City Clerk„ stated the deadline for the City to get this ordinance into the Supervisor of Elections is January 18, 2012. After brief discussion, the City Manager stated the simplest thing to do would be .to have the language state that anytime someone is appointed that they serve until the following March, and if there is not a regular election the following March have a special election. Mr. Frankel and Mrs. Gray stated they support this. The City Manager explained that what the Commission -is saying is that if someone gets appointed they do not want to have an appointed person serve for the approaching two years. The idea is that if someone is appointed they canronly serve until the following March. If there is a regularly scheduled election the following March, fine. If there is not, there would be a special election that March so that someone would be elected to fill out the term and it would follow the same pattern that we have now. A resident from the public spoke and stated there are approximately 100 people in the Commission Chambers this evening, 60,000 people in the City and feels they should weigh in how the Commissioners are elected. Mayor McDuffie declared the public hearing open. Connor Lynch, speaking on behalf of DELPAC (Delray Economic Leaders Political Action Committee) as the Chair, stated as a result of the votes and the discussion at the last meeting revolving around the term limit issue DELPAC has the following consensus regarding the changes being proposed in priority order: (1) opposed to any changes to terms and term limits that would favorably affect anyone currently holding office in an elected. position, (2) opposed to an extension of term limits to nine (9) years as they do not feel an adequate argument has been made for the need for this, (3) Mr. Lynch stated the group was less adamantly opposed to the change from 2 -3 years but overall the consensus was to leave the term limits as they are now. Mr. Lynch stated DELPAC feels that a change to the Charter to reflect the times is a positive thing but that all aspects of the Charter should be reviewed at once. 13 01/03/12 Patricia Archer, 380 Sherwood Forest Drive, Delray Beach, FL 33445, stated she believes that a ballot question that supports a Commission term limit change from three two year terms to two three year terms has a good chance of passing for a variety of reasons: (1) elections are expensive, (2) the Commissioners campaign, work for a year, and then campaign for the next year and it makes them campaign too many times for too long a time. She understands that the Commission believes that 3 three -year terms would give them more time to participate and better represent the City at County and State levels but does not believe the constituency is interested in extending the length of Commission service to nine (9) years. Mrs. Archer stated she supports the referendum process but urged the Commission to reconsider the number of terms. Rick Edick, 615 North Ocean Boulevard, Delray Beach, FL 33483, stated this is not a simple issue and expressed concern with the length of terms and so called "career politicians ". He stated if this is a Charter ballot issue then that should be the case but to do this just on the expediency of saving some money in elections he would challenge the Commission to look at the budget. Mr. Edick stated this should go through the proper process and urged the Commission to get more community input before they make a decision. Tom Lynch, 28 Country Road, Boynton Beach, FL 33436, stated this is a serious enough issue that it should constitute a Charter Revision Committee made up of citizens who own and run the city. Mr. Lynch stated he does not feel this change should be made by the Commission especially when some people might personally benefit from it. Cary Glickstein, 1118 Waterway Lane, Delray Beach, FL 33483, concurred with comments expressed by Mr. Lynch and Mr. Edick. Mr. Glickstein stated the precedent in the City is to have a Charter Review of something so important especially when the Commission benefits and when there is feeling both nationally and locally that the public does not want people in office that long. He stated they want fresh ideas and good government. Mr. Glickstein stated he is not suggesting that they want different people now but it should stay the same until the people of the city vote to change it not the Commission. Dr. Victor Kirson,, D.D.S., 2050 Alta Meadows Lane #2110, Delray Beach, FL 33444 (President of the Board of Directors of Tierra Verde at Delrav Beach and Member of the Alliance), concurred with comments expressed by Mr. Glickstein and stated he does not support someone's term extended to three (3) years. He stated he would not want the Commission to have control for nine (9) years. Dr. Kirson stated a six (6) year limit is all that is needed and urged the Commission to not support this. Tom Stanley, 3524 Oleander Way, Delray, Beach, FL 33483 (Gulf Stream), Secretary for DELPAC (Delray Economic Leaders Political Action Committee), stated there is not enough community involvement or community outreach in what the Commission would like to do. 14 01/03/12 Mr. Stanley supports DELPAC's opinion and stated two three year terms would be fine. He stated he understands what the Commission is talking about regarding the appointing and the special election; however, Mr. Stanley stated it is too soon without the community outreach. There being no one from the public who wished to address the Commission regarding Ordinance No. 44 -11, the public hearing was closed. Mr. Frankel stated the intent of what the Commission was proposing to do was to let the citizens decide not ten people who spoke or not one group or organization. He stated he emailed several people and had some communications. Mr. Frankel stated there would be $40,000.00 in savings every third year. In Delray, the Commission is not able to advance to leadership positions in Palm Beach County, the Palm Beach County League of Cities, or the Florida League of Cities because of the current limits. Mr. Frankel stated in Palm Beach County 19 municipalities have two year terms; 17 municipalities have three year terms; 2 municipalities have four year terms but in Palm Beach County only 3 municipalities allow members to serve two consecutive terms; 2 municipalities allow maximum service of three consecutive terms; and 33 have no term limits. Mr. Frankel stated in recent election cycles the last four Commissioners have not served out their maximum potential. He stated it is important to have a debate and he understands what Commissioner Carney is proposing but the Commission is not doing anything self - serving. Mrs. Gray stated she agrees that the citizens should have input and also agrees that the two three year terms is a possibility. However, Mrs. Gray stated she has experience with the Palm Beach County League of Cities, the Florida League and the National League of Cities and as elected officials they do not have time to develop relationships with these legislators in order to get the issues passed or that they would be able to be on these committees. Mrs. Gray stated it would not be self - serving to her because it would only extend one year. She stated we need to figure out more ways to save dollars for election and everyone would be included at the time of the vote. Mrs. Gray stated she supports the three three -year term. Mr. Carney stated there was a concept of saving money which he felt was important. He stated he does not feel that fresh faces for the salve of fresh faces is a good idea and sometimes gray hairs count because experience counts. Mr. Carney stated the arrogance would be if he saw that these things could actually benefit Delray Beach and did not put them to the voters. Mr. Carney stated he is going to let the voters decide what they want he is not going to decide for them. Dr. Alperin stated he will not be benefiting from this because he is not running for office. He stated there was a suggestion that this be done with a Charter Review Committee. Dr. Alperin stated in 1990 he ran against an incumbent and David Randolph ran against an incumbent and they beat the incumbents. Dr. Alperin stated he supports democracy and does not like having his choice being limited. He has a problem with this because it does have a term limit. 15 01/03/12 He stated he does not believe in term limits at all. Dr. Alperin stated you lose your democracy with term limits. Mayor McDuffie stated he is term limited out and no matter what happens in what the Commission votes on here one year from March (2013) he will leave the office of the Mayor of Delray Beach. He stated whatever decision is made tonight has no effect on him as an elected official whatsoever and asked that it not be called self - serving. Mayor McDuffie stated he can think of a more pure form of democracy than the voters deciding what the answer to this is. The City Attorney stated since the Commission has directed him to make the change to the ordinance as stated by the City Manager, he suggested that there be a First Reading on this ordinance at the Workshop meeting and a second reading on January 17, 2012 because the changes will change the caption of the ordinance. Mayor McDuffie stated he would like to see this as single issue /Special Meeting held in the Commission Chambers not the first floor conference room. Dr. Alperin moved to continue Ordinance No. 44 -11 onto First Reading on January 10, 2012 to include the modification, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. 10.B. ORDINANCE NO. 50 -11: Consider an amendment to Chapter 34, "Elections ", by amending Section 34.16, "Filing of Nominating Petitions ", to modify the number of registered voters required to sign a petition to grant eligibility of a candidate to qualify to run for office. office.) The caption of Ordinance No. 50 -11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 34, "ELECTIONS ", OF THE CODE OF ORDINANCES BY AMENDING SECTION 34.16, "FILING OF NOMINATING PETITIONS ", TO MODIFY THE NUMBER OF REGISTERED VOTERS REQUIRED TO SIGN A PETITION TO GRANT ELIGIBILITY OF A CANDIDATE TO QUALIFY TO RUN FOR OFFICE, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 50 -11 is on file in the City Clerk's 16 01/03/12 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. Mayor McDuffie declared the public hearing open. Chuck Halbert, 4870 S. Classical Boulevard, Delray Beach, FL 33445, asked why people already running only have to obtain 250 signatures if this ordinance is still being considered. Gary Eliopoulos, 314 N.W. 7tb Streets Delray Beach, FL 33444, stated he respects how the Commission makes their decisions but also believes when you really believe in something sometimes you actually want it to be the people that help select this. Mr. Eliopoulos stated the City actually has approximately 30,000 registered voters and only 4,000 that vote. Mr. Eliopoulos stated it is not really going to the public and the signatures are based on 1 % of the actual registered voters. He encouraged the Commission to rethink some of these things and feels that a Charter Review is necessary. Dr. Victor Kirson, D.D.S., 2050 Alta Meadows Lane #2110, Delray Beach, FL 33444 (President of the Board of Directors of Tierra Verde at Delray Beach and Member of the Alliance), stated he has 287 signatures and averages about 7 signatures an hour. Dr. Kirson stated the purpose of getting signatures is to speak to people and hear their input that is great. He stated for him to obtain 450 signatures is impossible. Dr. Kirson stated most of the other candidates have kids or political groups getting signatures for them and asked what this accomplishes. There being no one from the public who wished to address the Commission regarding Ordinance No. 50 -11, the public hearing was closed. Dr. Alperin stated when the City was smaller the 1% meant about 200 people. Dr. Alperin stated 250 signatures is a substantial number of signatures to get to justify that you deserve the right to run. Dr. Alperin stated there are so many registered voters and only a few thousand actually vote you have to actually get more than 10% of the actual voters you have to get to sign and noted this is too high. Mr. Carney stated when he undertook this task it was described to him that the reason he has all these signatures is because you get to meet the people. However, Mr. Carney stated the reality is that most people have other people out there getting signatures for them all of which shows community support but it does not meet the objective of actually getting to meet the people. Mr. Carney stated out of the average number of people who vote (anywhere between 3,000 and 3,400 people in a municipal election) 250 seemed like a good number because it is 8% of the actual voters. He stated he would have been prepared to take 10% of the average number of people who voted as your standard. Mr. Carney stated 500 signatures is a lot of signatures and it does keep some people from running. 17 01/03/12 Mrs. Gray supports candidates obtaining 250 signatures and she is also fine with raising it to 300 if the Commission wishes to do so. Mr. Frankel stated what is being proposed tonight is 250 valid signatures. He stated when he went through the process the Commission needed 410 and he turned in 550 and some were kicked back because he had duplicates, etc. Mr. Frankel stated 250 valid signatures means 350 -400 signatures which shows the candidate is taking it seriously and feels 250 valid signatures is fair. Mayor McDuffie stated he has run three times and the first time his campaign team was his wife and they went to all the places they could think of in Delray Beach to gather signatures. Mayor McDuffie stated the number of registered voters is about 41,000 so you need to obtain 410 signatures and he has- always gathered 600 signatures or more because some people who think they live in Delray Beach and have a Delray Beach mailing address actually live in unincorporated Delray Beach west of the City limits. He stated you really need to take 50% above the target number that you have been given and you need to get that many signatures to get qualified. Mayor McDuffie stated he always obtained 600 or more to make sure he got through on the first time. Mayor McDuffie stated right now you need 410 verified signatures to get on the ballot until this ordinance passes at which point it will drop to 250 valid signatures. Dr. Alperin moved to adopt Ordinance No. 50 -11 on Second and FINAL Reading, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mayor McDuffie — Yes; Mr. Carney — No; Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 4 to 1 vote, Commissioner Carney dissenting. At this point, the time being 8:34 p.m., Commissioner Carney stepped away from the dais. 10.C. ORDINANCE NO. 47 -11 (SECOND READING /SECOND PUBLIC HEARING): City - initiated amendment to the Land Development Regulations (LDR) Sections 4.4.6 "Medium Density Residential (RM) District ", 4.4.9 "General Commercial (GC) district ", 4.4.12 Planned Commercial (PC) District, 4.4.13 "Central Business (CBD) District" and Section 4.4.28 Central Business District—Railroad Corridor, in order to provide that assisted living facilities will be allowed in the same manner as multiple family residential developments with respect to the number of units and density. The caption of Ordinance No. 47 -11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS, BY AMENDING SECTION 4.4.6, "MEDIUM DENSITY RESIDENTIAL (RM) DISTRICT, 18 01/03/12 SUBSECTION (D), "CONDITIONAL USES AND STRUCTURES ALLOWED ", SECTION 4.4.9, "GENERAL COMMERCIAL (GC) DISTRICT ", SUBSECTION (B), "PRINCIPAL USES AND STRUCTURES PERMITTED ", SECTION 4.4.9, "GENERAL COMMERCIAL (GC) DISTRICT", SUBSECTION (G)(3)(4), "MULTIFAMILY DWELLING UNITS ", SECTION 4.4.12, "PLANNED COMMERCIAL (PC) DISTRICT", SUBSECTION (G), SUPPLEMENTAL DISTRICT REGULATIONS ", SECTION 4.4.13, "CENTRAL BUSINESS (CBD) DISTRICT ", SUBSECTION (D), "CONDITIONAL USES AND STRUCTURES ALLOWED ", SECTION 4.4.28, "CENTRAL BUSINESS DISTRICT - RAILROAD CORRIDOR (CBD -RC) ", SUBSECTION (D), "CONDITIONAL USES AND STRUCTURES ALLOWED, TO ADD ASSISTED LIVING FACILITIES TO THE LIST OF ALLOWED USES IN THE SAME MANNER AS MULTIPLE FAMILY RESIDENTIAL USES IN ORDER TO BRING CONSISTENCY BETWEEN THE LAND DEVELOPMENT REGULATIONS AND STATE AND FEDERAL LAWS, PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 47 -11 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, AICP, Director of Planning and Zoning, stated this is to add assisted living facilities to the list of allowable uses in the same manner as multi - family residential uses are treated within the RM, GC, PC, CBD, CBD -RC zoning districts. Mr. Dorling stated recent amendments achieved most of this on April 15, 2008 (Ordinance 20 -08) and on January 19, 2010 (Ordinance 01 -10) to allow assisted living facilities to be accommodated similarly (with respect to the number of residents and units) to either single family, duplex, or multi - family uses in the zoning districts in which those uses were allowed. However, Mr. Dorling stated it was discovered that assisted living facilities were not accommodated under two situations and those were where special regulations allowed increased densities within certain overlay districts. Mr. Dorling stated this is a corrective ordinance that accommodates them under those two circumstances. He stated required findings were made under LDR Section 2.4.5(M)(5) and staff recommends approval. 19 01/03/12 At its meeting of November 21, 2011, the Planning and Zoning Board recommended approval with a 6 to 1 vote (Gerry Franciosa dissenting). At its meeting of December 13, 2011, the City Commission approved this item on first reading. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. 47 -11, the public hearing was closed. Dr. Alperin moved to adopt Ordinance No. 47 -11 on Second Reading/Second Public Hearing, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie — Yes. Said motion passed with a 4 to 0 vote. 10.D. ORDINANCE NO. 48-11 (SECOND READING /SECOND PUBLIC HEARING): Consider a city - initiated amendment to Land Development Regulations (LDR) Section 4.3.3, "Special Requirements for Specific Uses', by enacting a new Subsection 4.3.3 (AAAA), "Simulated Gambling Devices ", in order to prohibit use of same and to enact a new definition of, "Simulated Gambling Devices ". The caption of Ordinance No. 48 -11 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 BY AMENDING SECTION 4.3.3, "SPECIAL REQUIREMENTS FOR SPECIFIC USES"; BY ENACTING A NEW SUBSECTION 4.3.3(.AAAA), "SIMULATED GAMBLING DEVICES ", IN ORDER TO PROHIBIT USE OF SAME AND AMENDING APPENDIX "A" TO ENACT A NEW DEFD41TION OF "SIMULATED GAMBLING DEVICES"; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 48 -11 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, AICP, Director of Planning and Zoning, stated this is a city - initiated amendment to the LDRs that will prohibit simulated gambling devices and their related places of business. He stated these are sometimes referred to as internet cafes, sweepstake cafes, or cyber cafes. Mr. Dorling stated these are businesses that sell 20 01/03/12 internet access or telephone calls that allow people to enter into sweepstakes on computers and these games pay out cash prizes. He stated this circumvents the current gambling laws because they are buying computer time and phone cards rather than technically paying to play a game to win money. Mr. Dorling stated these businesses have been popping up across the nation and more recently in Florida. He stated there are some negative aspects associated with that including increases in crime rates, financial hardships on low income customers, and some tied to lower property values. Mr. Dorling stated these are different from adult gaming facilities which are allowed in the City in certain zoning districts as a conditional use; however, they differ in that the sweepstakes winnings are significantly higher for this type of use rather than an adult gaming facility which is limited to .75 per game and does not allow any cash awards, gift certificates, gift cards, credit cards, or other cash substitutes. At its meeting of November 21, 2011, the Planning and Zoning Board considered this item and the Board recommended approval with a 7 to 0 vote. At its meeting of December 13, 2011, the City Commission considered this ordinance on first reading and recommended approval. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. 48 -11, the public hearing was closed. Dr. Alperin moved to adopt Ordinance No. 48 -11 on Second Reading/Second Public Hearing, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes. Said motion passed with a 5 to 0 vote. 10.E. ORDINANCE NO. 45 -11: Consider a city - initiated amendment to Land Development Regulations (LDR) Section 4.4.9, "General Commercial (GC) District ", Subsection (G), "Supplemental District Regulations ", Sub - subsection (3), "Four Corners Overlay District ", to correct outdated references. The caption of Ordinance No. 45 -11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING THE LAND DEVELOPMENT REGULATIONS OF THE CODE OF ORDINANCES, BY AMENDING SECTION 4.4.9, "GENERAL COMMERCIAL (GC) DISTRICT", SUBSECTION (G), "SUPPLEMENTAL DISTRICT REGULATIONS ", SUB - SUBSECTION (3), "FOUR CORNERS OVERLAY DISTRICT "; TO CORRECT OUTDATED REFERENCES THEREIN; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. 21 01/03/12 (The official copy of Ordinance No. 45 -11 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. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. 45 -11, the public hearing was closed. Paul Dorling, AICP, Director of Planning and Zoning, stated this is to correct outdated references concerning conditional uses that are allowed in the four corners overlay district on Military Trail and Atlantic Avenue. Mr. Dorling stated there have been some changes in the listing of the specific conditional uses by letter and the references in the four corners related to those individual letters which have changed and are being realigned. He stated the required findings under LDR Section 2.4.5(M)(5) are made in the staff report. At its meeting of November 21, 2011, the Planning and Zoning Board recommended approval with a 7 to 0 vote. At its meeting of December 13, 2011, the City Commission considered this ordinance on first reading and recommended approval. Mayor McDuff a declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. 46 -11, the public hearing was closed. Mrs. Gray moved to adopt Ordinance No. 45 -11 on Second and FINAL Reading, seconded by Mr. Carney. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuff e — Yes; Mr. Carney — Yes; Dr. Alperin — Yes. Said motion passed with a 5 to 0 vote. 10.F. ORDINANCE NO. 46 -11: Consider an Ordinance amending Chapter 113, "Alcoholic Beverages ", Section 113.02, "Prohibition of Consumption or Possession of Open Containers of Alcoholic Beverages in Public Places ". The caption of Ordinance No. 46 -11 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, FLORIDA, AMENDING CHAPTER 113, "ALCOHOLIC BEVERAGES ", OF THE CODE OF ORDINANCES OF THE CITY OF DELRAY BEACH, FLORIDA, BY AMENDING SECTION 113.02, "PROHIBITION OF CONSUMPTION OR POSSESSION OF OPEN CONTAINERS OF ALCOHOLIC BEVERAGES IN PUBLIC PLACES ", TO INCLUDE AN EXCEPTION 22 01/03/12 FOR THE DELRAY BEACH ARTS GARAGE; PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 46 -11 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. Mayor McDuffie declared the public hearing open. There being no one from the public who wished to address the Commission regarding Ordinance No. 46 -11, the public hearing was closed. Dr. Alperin disclosed that the President of the Creative City Collaborative which runs the Arts Garage is Commissioner Carney and he is Vice - President. Mr. Frankel moved to adopt Ordinance No. 46 -11 on Second and FINAL Reading, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes. Said motion passed with a 5 to 0 vote. 11. COMMENTS AND INQUIRIES ON NON - AGENDA ITEMS FROM THE PUBLIC- IMMEDIATELY FOLLOWING PUBLIC HEARINGS. II.A. City Manager's response to prior public comments and inquiries. The City Manager had no response to prior public comments and inquiries. 11.B. From the Public. 11.13.1. Colleen Barbara, 1240 Seaspray Avenue, Delray Beach, FL 33483, asked if a moratorium has been placed on any of the pending applications for the sober homes and if so she would like to have it in writing so that she can bring it back to Philadelphia and they can go to sleep at night. Mayor McDuffie stated every effort that can possibly be expended on this issue right now is being expended. 1LB.2. Joann Stanley, Municipal Marketing Manager for Public Services, stated they are second largest waste and recycling company in the United States and they are committed to providing safe, sufficient, and cost effective services for residents and businesses. 23 01/03/12 Ms. Stanley encouraged the Commission to request proposals when considering what direction to take regarding the City's Solid Waste collection services for the residents of Delray Beach. 11.11.3. Dr. Victor Kirson, D.D.S., 2050 Alta Meadows Lane #2110, Delray Beach, FL 33444 (President of the Board of Directors of Tierra Verde at Delray Beach and Member of the Alliance), stated 2%2 years ago the three unrelated rule was passed and noted he has attended almost every City Commission Regular Meeting and City Commission Workshop Meeting and nothing was mentioned to correct the problem. Dr. Kirson stated for 21/2 years while other cities were correcting the problem why were our Commissioners not correcting the problem. Dr. Kirson stated this City Commission does not have one member who at their last election was voted in by the residents of the City of Delray Beach; they all ran unopposed. 11.11.4. Al Jacquet, 236 S.E. 3rd Avenue, Delray Beach, FL 33483, stated he heard Mayor McDuff e state that he has reached out to the State Legislative Delegation on this transient home issue. Mr. Jacquet stated the Legislative Session starts January 10, 2012 and he works for State Representative Mack Bernard (former Delray Beach City Commissioner) and also noted that he is Mr. Bernard's Legislative Aide. Mr. Jacquet stated if people are having issues with the transient homes do not hesitate to reach out to him. Mr. Jacquet stated he is a 22 year resident, a licensed attorney and works at the State House. 11.11.5. Pat Archer, P.O. Box 8301, Delray Beach, FL 33482, stated transient living facilities have caused major problems for the neighborhoods because they are operated as a business in a residential community. Mrs. Archer stated transient living facilities provide a substantial impact on the neighborhoods because of the following factors: (1) numerous cars parked in driveways, roadways, swales, with comings and goings at all hours of the day and night, (2) congregations of people usually in the front of the home smoking, drinking, and indulging in loud conversation far into the night, (3) many more than three (3) unrelated people /individuals are living together and some not very peacefully, and (4) belongings including furniture, TV's, Wi -Fi equipment, personal paraphernalia either in boxes or just dumped at the curb happen all the time and in some cases several times a month. Mrs. Archer stated this is not a normal living situation and disrupts the normality and the characteristics of a neighborhood. She urged the Commission to take all the necessary steps they can to protect the integrity of the neighborhoods. At this point, the time being 8:58 p.m., the Commission moved back to Item 9.11. of the Regular Agenda. 9.11. AMENDMENT NO. 1 TO THE AGREEMENUPLAYERS INTERNATIONAL MANAGEMENT, INC. (PIM): Consider approval of Amendment No. 1 to the Agreement with Players International Management, Inc. (PIM) to extend the term of the Agreement as well as modify when the events may be held. M 01/03/12 Brian Shutt, City Attorney, stated this agreement provides that there will be a nine year term beginning October 1, 2012, and provides for one nine year additional term that the City can renew for if they so desire. He stated another change is to allow that the events may be held from April to October; however, if there is a major event that is scheduled for the same time period P1M would have to get the City's consent. The City Attorney stated another change is that in order to use the City's tennis facilities at the Delray Swim and Tennis Club that they would have to get the City "s consent. Mr. Carney stated he prefers a renewal process. This compels people to have their feet to the fire more. Mr. Frankel stated this is a good idea because years ago the City was criticized because there were not enough events at the tennis center. He stated since being invited to the junior tournaments which are held at least four times a year there are 200 players in addition to coaches coming to the city. Mr. Frankel stated he serves on the Palm Beach County Tourist Development Council who looks highly at what is going on with these USTA events as well as traveling for the tennis championships to London and seeing the national players and the level of respect Delray Beach has on a worldwide level. Mr. Frankel stated this is a special group that runs amazing events and supports this amendment. Mrs. Gray asked how long it has taken to develop the relationships in getting these tournaments here. Mr. Baron stated they have been bringing four USTA j events to the City of Delray Beach. Mr. Baron stated six years they were able to get the sanction for the Boys and Girls 12 and under Spring National Championships. He stated that event has grown and is over 50 years old and brings with it over 200 players. Mr. Baron stated these events are during the summer and the hotels, businesses, etc. have grown from these events. Mr. Baron stated they are up to eight events they bring to the City and one of the events they brought in May was an international event that had kids from 30 countries around the world whose parents, coaches, and siblings came. Dr. Alperin asked what the benefit is to the City for extending these contracts. Mr. Baron stated they are televised so they go through the production costs, etc. Mr. Baron stated in the agreement they did an economic impact with the Sports Commission of Palm Beach County and it has been verified that over the last five years of this agreement over $8.8 million has been brought into the city on just three events. Dr. Alperin asked what the advantage is to the City of Delray Beach be extending the contract. Mr. Baron stated having these events here benefits the City economically. Mr. Carney reiterated that he has a problem with doubling the period without having the ability to terminate the agreement. Mr. Baron stated if the Commission wishes to do this for five years he is okay with that. The City Manager stated the proposed amendment is to make it 3 five year renewals and 1 three year renewal. He stated this still extends out 18 years but the Commission will get to review it every five years. 25 01/03/12 Dr. Alperin moved to approve Amendment No. 1 subject to amending the agreement to make it 3 five year renewals and 1 three year renewal, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 9.C. SPECIAL EVENT REQUEST/VIVA SOUTH FLORIDA: Consider approval and endorsement of a new event, Viva South Florida, produced by Pegasus Entertainment proposed to be held on the grounds of Old School Square and Old School Square Park from noon to 11:00 p.m. on September 14-15,2012 and from noon to 8:00 p.m. on September 16, 2012; to grant a temporary use permit per LDR Section 2.4.6(F) for the use of City rights -of -way to include N.E. 1st Avenue from the north side of the Old School Square grounds to south of the garage entrance and Swinton Avenue from Atlantic Avenue to approximately the southernmost driveway entrance to the Crest Theatre; and to authorize staff support for traffic control and security, Fire /EMS services, site cleanup and trash removal, electrician assistance, barricading assistance, event signage, trash boxes, and use of a City generator; contingent upon the conditions of approval listed in the staff report. Robert A. Barcinski, Assistant City Manager, stated this is a new event called "VIVA South Florida" produced by Pegasus Entertainment proposed to be held on the grounds at Old School Square and in the Old School Square Park on September 14- 15, 2012 from noon to 11:00 p.m. and September 16, 2012 from noon to 8:00 p.m. Mr. Barcinski stated the Commission is also requested to approve staff support for traffic control and security, Fire/EMS services, site cleanup and trash removal, electrician assistance, barricading assistance, event signage, trash boxes, use of a City generator and a temporary use permit per LDR Section 2.4.6(F) for the use of City rights -of -way to include NE 1" Avenue as well as Swinton Avenue. Mr. Barcinski stated the set up for this event is like the Garlic Festival. A letter, special event permit, site plan, budget and economic calculator was received from Mr. Carrillo, CEO Pegasus Entertainment. The proposed event is a Latin American Festival designed to be a kickoff event for Hispanic Heritage month. The West Palm Beach Hispanic Chamber of Commerce is supporting this event. The estimated overtime costs is $22,700, trash boxes $400 and signage $250 for a total cost of $23,350. The event producer will pay 100% of City costs. Staff recommends consideration of the event with the eleven (11) conditions listed on page two of the backup. Mr. Frankel moved to approve the Special Event Request for the "VIVA South Florida" event proposed for September 14 -15 from noon to 11:00 p.m., and September 16, 2012, from noon to 8:00 p.m., subject to the eleven (11) conditions listed on page two in the memorandum, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 26 01/03/12 i - Mr. Carrillo, CEO Pegasus Entertainment, introduced the Executive Director of the Hispanic Chamber of Palm Beach County and stated they were going to attempt to do this last year. Mr. Carrillo stated there was some consideration of the event ? regarding the economy last year and they did not feel it was suitable to do. Mr. Carrillo stated they are better prepared for it this year and they can be successful. At this point, a representative from the Hispanic Chamber of Palm Beach County came forward and thanked the City of Delray Beach for its support. a 9.1). REQUEST FOR QUALIFICATIONS (RFQ) RESPONSES FOR ARCHITECTURAL CONSULTING SERVICES /CAPITAL IMPROVEMENT PROJECTS (CIP): Consider approval of the Architectural Consulting Services RFQ (RFQ# 2012 -05) responses short list and authorization to negotiate contracts with each of the five (5) companies on the short list. Project #12 -056. Richard Hasko, Director of Environmental Services, stated this is the last of a series of three major requests for qualifications for architects for the next 2 -5 years. } r; Mr. Hasko stated staff advertised and established an RFQ rating committee to review the respondents. Staff recommends approval of the rankings and negotiation of contracts to the five (5) top ranked architects: Currie Sowards Aguila Architects, Walters Zackria & t 4 Associates, Inc., David Miller and Associates, Slattery & Associates and Bridges Marsh and Associates. i Mr. Hasko stated the final respondent rankings are based on a weighted total of all raters' individual rankings and rankings based on totaling raw point scores are used solely for tie breaking. Mr. Hasko briefly explained the process and stated the difference of the weighted numbers is the multiplier is no longer in there. i Mr. Frankel moved to approve the Request for Qualifications (RFQ) Responses for Architectural Consulting Services, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mr. Carney — Yes; Dr. Alperin — No; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie — Yes. Said motion was approved with a 4 to 1 I vote, Dr. Alperin dissenting. l 9.E. APPOINTMENT OF OUTSIDE COUNSEL TO ASSIST IN REVIEW OF ORDINANCES REGARDING TRANSIENT HOUSING: Consider a request to appoint outside counsel to assist the City Attorney's Office in the drafting, review and defense of ordinances concerning transient residential use as well as reasonable accommodation procedures. s The City Attorney stated this item is to approve outside counsel to assist I the City Attorney's office in the drafting, review and defense of ordinances concerning f. transient residential housing as well as reasonable accommodation procedures. The City Attorney stated there are two firms; one firm is on a national level and has contacts in Washington, D.C. and the other firm is a more local firm that has assisted the City in the past and is the same firm that the City of Boca Raton used as well. 27 ' 01/03/12 Staff recommends the approval of the local firm of Weiss Serota to assist the City in possible litigation as well as giving the ordinances a local perspective and if the Commission wishes to go with a national firm they are listed in the memorandum with their rate structures. Mr. Frankel stated the City Attorney's office has worked very hard with limited staff and limited attorneys. Mr. Frankel stated he would like to allow the City Attorney to contract with both of the firms. The City Attorney suggested going with Option #3. Mrs. Gray concurs with Commissioner Frankel that we need to put in place and exercise all our options even though this is going to be expensive. Mr. Carney concurs with the recommendation and stated this is very important that we balance everybody's interests and rights. Dr. Alperin asked how the national firm was selected. The City Attorney stated the law firm of Patton Boggs was recommended to him by Commissioner Carney and staff researched on line as well. Dr. Alperin supports the Commission. Mayor McDuffie stated enforcing some of the restrictions that we have in these ordinances is labor intensive. He stated the City would have to dramatically increase the number of Code Enforcement officers in Delray. Mayor McDuffie stated the Commission is hoping that something that we get out of this fords a way for us to enforce it without so many people on the street going door -to -door investigating each one of these homes and checking identification to see who is related to whom which is a difficult process. Mayor McDuffie stated he supports using the local firm until the City needs the national firm. Mayor McDuffie stated this is a difficult balancing act of not taking people who are renting properties and behaving as the perfect landlord and for the City to go in and stop them from being able to make a living while trying to regulate someone who is unscrupulously debunking parents while providing no medical care or rehab. Mayor McDuffie stated he has sent many residents letters that he wrote to the State Delegation and the Governor and asked that the residents send these to Tallahassee. Dr. Alperin moved the appointment of outside counsel as presented with Option #3, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes. Said motion passed with a 5 to 0 vote. 9.F. OFFER OF SETTLEMENT IN PATRICIA MILEY V. CITY OF DELRAY BEACH: Consider an Offer of Settlement in the total amount of $9.5 million in Patricia Miley v. City of Delray Beach. Staff recommends denial. 28 01/03/12 The City Attorney stated the plaintiff has made a demand for $9.5 million and staff recommends denial. This case rises out of an accident involving a Delray Beach Police Officer in 2009. Mr. Frankel moved to deny the Offer of Settlement in the amount of $9.5 million in Patricia Miley v. City of Delray Beach, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes. Said motion to DENY passed with a 5 to 0 vote. 9.G. APPOINTMENT OF OUTSIDE COUNSEL FOR PATRICIA MILEY v. CITY OF DELRAY BEACH: Consider approval to appoint Kent Pratt, Esq. as outside counsel in the case of Patricia Miley v. City of Delray Beach at the rate of $140.00 per hour. The City Attorney stated staff recommends the appointment of Kent Pratt, Esq. at the rate of $140.00 per hour to act as outside trial counsel in this case. Mr. Carney moved to appoint to appoint Kent Pratt, Esq. as outside counsel in the case of Patricia Miley v. City of Delray Beach, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. 9.11. OFFER OF SETTLEMENT IN ANDREA WALLACE ET, AL. V. CITY OF DELRAY BEACH: Consider an Offer of Settlement in the total amount of $40,000.00 in Andrea Wallace et, al. v. City of Delray Beach. Staff recommends denial. The City Attorney ' stated staff recommends denial of the Offer of Settlement in Andrea Wallace et, all. V. City of Delray Beach because they believe the damages are excessive. Mr. Carney moved to deny the Offer of Settlement in the amount of $40,000.00 in Andrea Wallace et al v. City of Delray Beach, seconded by Mrs. Gray. Upon roll call the Commission voted as follows: Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 9.1. APPOINTMENTS TO THE CODE ENFORCEMENT _ BOARD: Appoint three (3) regular members to the Code Enforcement Board to serve three (3) year terms ending January 14, 2015. Based upon the rotation system, the appointments will be made by Commissioner Frankel (Seat #3), Commissioner Gray (Seat#4) and Mayor McDuffie (Seat #5). 29 01/03/12 Mr. Frankel moved to reappoint Kurt Lehmann as a regular member to the Code Enforcement Board to serve a three (3) year term ending January 14, 2015, seconded by Mr. Carney. Upon roll call the Commission voted as follows: Mr. Carney — Yes; Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray -- Yes; Mayor McDuffie — Yes. Said motion passed with a 5 to 0 vote. Mrs. Gray moved to reappoint Stephanie Sugar as a regular member to the Code Enforcement Board to serve a three (3) year term ending January 15, 2015, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray -- Yes; Mayor McDuffie — Yes; Mr. Carney — Yes. Said motion passed with a 5 to 0 vote. Mayor McDuffie stated he wished to reappoint David Boone as a regular member to the Code Enforcement Board to serve a three (3) year term ending January 15, 2015. Mr. Frankel so moved, seconded by Dr. Alperin. Upon roll call the Commission voted as follows: Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes. Said motion passed with a 5 to 0 vote. 99.j. APPOINTMENT TO THE EDUCATION BOARD: Appoint one (1) regular member to the Education Board to serve an unexpired term ending July 31, 2013. Based upon the rotation system, the appointment will be made by Commissioner Carney (Seat #1). Mr. Carney stated he would like to defer his appointment to the next regular meeting of January 17, 2012. 9.K. APPOINTMENTS TO THE FINANCIAL REVIEW BOARD: Appoint one (1) regular member to serve an unexpired term ending July 31, 2012 and one (1) alternate member to serve an unexpired term ending July 31, 2013 to the Financial Review Board. Based upon the rotation system, the appointments will be made by Commissioner Gray (Seat #4) and Mayor McDuffie (Seat #5). Mrs. Gray stated she would like to defer her appointment to the next regular meeting of January 17, 2012. Mayor McDuffie stated he would to appoint Warren Trilling as an alternate member to the Financial Review Board to serve an unexpired term ending July 31, 2013. Upon roll call the Commission voted as follows: Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes; Mr. Frankel — Yes. Said motion passed with a 5 to 0 vote. 9.L. APPOINTMENT TO THE KIDS AND COPS COMMITTEE: Appoint one (1) At- Large - Representative to the Kids and Cops Committee to serve an unexpired term ending July 31, 2013. Based upon the rotation system, the appointment will be made by Commissioner Alperin (Seat #2). 30 01/03/12 Commissioner Alperin moved to appoint Jennifer Aracri as an At- Large- Representative to the Kids and Cops Committee to serve an unexpired term ending July 31, 2013, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mayor McDuffie — Yes; Mr. Carney — Yes; Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes. Said motion passed with a 5 to 0 vote. 9.M. APPOINTMENT TO THE SITE PLAN REVIEW AND APPEARANCE BOARD: Appoint one (1) regular member to the Site Plan Review and Appearance Board to serve an unexpired term ending August 31, 2013. Based upon the rotation system, the appointment will be made by Commissioner Alperin (Seat #2). Dr. Alperin moved to appoint Alice Finst as a regular member to the Site Plan Review and Appearance Board (SPRAB) to serve an unexpired term ending August 31, 2013, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Mr. Carney — Yes; Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie -- Yes. Said motion passed with a 5 to 0 vote. At this point, the Commission moved to Item 12, First Readings. 12. FIRST READINGS: 12.A. ORDINANCE NO. 02 -12: Consider an amendment to Chapter 96, "Fire Safety and Emergency Services ", by amending 96.16, "Certain Codes Adopted by Reference ", to comply with the State of Florida's updated changes in the Fire Prevention Code Standards. If passed, a public hearing will be held on January 17, 2012. office.) The caption of Ordinance No. 02 -12 is as follows: AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY BEACH, - FLORIDA, AMENDING CHAPTER 96, "FIRE SAFETY AND EMERGENCY SERVICES ", BY AMENDING 96.16, "CERTAIN CODES ADOPTED BY REFERENCE ", TO COMPLY WITH THE STATE OF FLORIDA'S UPDATED CHANGES IN THE FIRE PREVENTION CODE STANDARDS; PROVIDING A SAVING CLAUSE, A GENERAL REPEALER CLAUSE, AND AN EFFECTIVE DATE. (The official copy of Ordinance No. 02 -12 is on file in the City Clerk's The City Attorney read the caption of the ordinance. 31 01/03/12 Dr. Alperin moved to approve Ordinance No. 02 -12 on FIRST Reading, seconded by Mr. Frankel. Upon roll call the Commission voted as follows: Dr. Alperin — Yes; Mr. Frankel — Yes; Mrs. Gray — Yes; Mayor McDuffie — Yes; Mr. Carney — Yes. Said motion passed with a 5 to 0 vote. 13. COMMENTS AND INQUIRIES ON NON - AGENDA ITEMS. B.A. City Manager The City Manager had no comments or inquiries on non- agenda items. B.B. City Attorney The City Attorney had no comments or inquiries on non - agenda items. B.C. City Commission B.C.I. Dr. Alperin Dr. Alperin had no comments or inquiries on non - agenda items. 13.C.2. Mr. Carney Mr. Carney stated he attended First Night and it was great. He stated he went for breakfast the following morning after First Night and the streets were immaculate. Mr. Carney commended City maintenance and stated they did a wonderful job with the cleanup. 13.C.3. Mrs. Gray Mrs. Gray had no comments or inquiries on non - agenda items. 13.C.4. Mr. Frankel Mr. Frankel thanked Mr. Barcinski, City staff, and the rest of the Commission for coming to the Menorah lighting. Mr. Frankel stated there was about 300 people which was triple the attendance compared to last year. He publicly acknowledged Sharon Frankel for donating the Hanukkah candy. 13.C.5. Mayor McDuffie Mayor McDuffie stated he attended First Night with his family and had a great time. He stated there was a great crowd and he spoke to the police officers many times including right after he signed off on the midnight Fiat drop. Mayor McDuffie stated at that time the City had zero incidents downtown during First Night. 32 01/03/12 Mayor McDuffie stated he watched the police personally instruct people that they could not carry alcohol in the street and noted that the City has to somehow get that word out that it is okay if you stay in the restaurants and have alcohol but you cannot carry the alcoholic drink in the street. Secondly, Mayor McDuffie stated a gentleman bought the L- shaped piece at the intersection of Linton Boulevard and South Federal Highway trying to redo that as retail for $11 million. Mayor McDuff e stated people are backing out on him because of the overlay. Mayor McDuffie stated this gentleman is losing his clients with that overlay hanging over their heads they are not going to commit to somebody where in six months something may change where that use is not permitted. There being no further business, Mayor McDuffie declared the meeting adjourned at 9:59 p.m. ATTEST: MAY<) City Clerk 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 January 3, 2012, which Minutes were formally approved and adopted by the City Commission on January 17, 2012. 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. 33 01/03/12 IN THE CITY COMMISSION CHAMBERS OF THE CITY OF DELRAY BEACH, FLORIDA 1. This appeal of the Planning Director's interpretation regarding the outdoor entertainment function of Phase 11 of Boston's Restaurant came before the City Commission on January 3, 2012. 2. 'The City staff, applicant, and other persons have presented documentary evidence and testimony to the City Commission pertaining to the appeal of the Planning Director's interpretation regarding the outdoor entertainment function of Phase 11 of Boston's Restaurant. All of the evidence is. part of the record in this Case. 3. LDR Sections 4:4.13(D)(9) and 4:6,6. a. Pursuant to LDR Section 4.4.13(D), "Conditional Uses and Structures Allowed" within the Central Business District, Subsection (9): (9) Playhouses, dingier theaters, and places of assembly for commercial entertainment purposes (e.g., concerts, live performances). b. Pursuant to LDR Section 4.6.6, "Commercial and Industrial Lases to Operate within a :Building, Subsections (A), "Intent" and (B) "Allowable Outside Usage ": Section 4.6.6 Commercial and Industrial uses to Operate Within a Budding: (A) Intent: (1) All commercial and industrial uses shall conduct within a completely enclosed building rather than outside regardless of the zoning district. However, certain aspects of a use may be conducted outside and such aspects are identified in (B) below. City Commission Meeting on January 3, 2012; Item 9.A. (2) Certain conditional uses that are allowed within commercial, industrial, and mixed use districts can be characterized as outside uses. Such operations may be conducted outside when it is specifically determined through the conditional use process that the outside aspects of the use are appropriate. Conditions may be applied to mitigate visual and other impacts. (3) Commercial and industrial uses may be allowed outside on a temporary basis for special events pursuant to Section 2.4;6(F), (B) Allowable Outside Usage: The following aspects of a use may be conducted outside, pursuant to the restrictions listed in Section 4.6.6(C) below. (1) Off - street parking (2) Refuse and service areas (3) Storage of nursery plants (4) Fruit and vegetable displays (5) Signage (6) Outside dining areas (7) Loading and unloading of materials (8) Outside storage where specifically permitted within a zoning district (9) Activities associated with outside conditional uses, pursuant to (A)(2) above (1 0) Retail displays Is a conditional use required per LDR sections 4.4.13()0 and /or 4.6.6 for the outdoor entertainment function at Boston's Restaurant? Yes V No 5. The City Commission has applied the Comprehensive Plan and LDR requirements in existence at the time the original site plan was submitted.. 6. The City Commission finds there is ample and competent substantial evidence to support its findings in the record submitted and adopts the facts contained 2 City Commission Meeting on January 3, 2012; Item 9.A. in the record including but not.iimited to the staff reports, testimony of experts and other i competent witnesses which supports the findings set forth in this Order. 7. Based on the entire record before it, the City Commission approves denies V% the applicant's appeal of the Planning Director's interpretation regarding the outdoor entertainment function of Phase II of Boston's Restaurant and hereby adopts this Order this 3rd day of January, 2012, by a vote of 5 tin favor and 0 apposed. Nelson S. McDuffie, Ma /o( ,ATTEST: Mevelle Nubin City Clerk 3 City Commission Meeting on January 3, 2012; Item 9.A. SECTION 4.6.5 (G) (G)Landsegping: All req,0ed lariftcape materials shall be as approved by the City Horticulturist and shall comply with applicable provisions of Section 4.4.1.6. j.Arhd. Ord. 7 -9 7 :2.11.91911 Seefion4.6.6 Commercial and Industrial Uses to Operate Within a Building: (A) latent: .(1) All commercial and -industrial uses shall conduct within a completely enclosed building rather than outside regard . less of the zoning district. Howeveri certain aspects of a -use may be conducted outside and such aspects are identified in (B) below. [Amd. Ord 27-08 .611710-01; [Amd. Ord 60-,0* 10M2193.] (2) CertWo conditional uses that are allowed Within commercial, industrial, and mixed use districts can be characterized as outside .uses. Such operations may be .conducted -.outside when it is spedifically determined. through the conditional use process that the outside aspects of the use are appropriate. Condit' 1Qn s may b applied a e a to mitigate visa and other impacts. [Amd, Ord. 6043 10112193] (3) Commercial and industrial uses h-vay be allowed outside: on a temporary basis for special events pursuant,to. Section 2.4'6(F), [AmO..Ord 27-08 611-7108] (B) Al loWable Outside Usaqc The following aspects of a use may be conducted outside, pursuantlo the restrictions listed in Section 4.6,6(0) below. [Amd. Ord. 60-03 10112/03] (1) CO - street parking (2) Refuse and service areas. [Amd. Ord. 6093 10/12t.93 (3) Storage. of nursery plants (4) Fruit and vegetable displays (5) :Signage (6) Outside dining areas: {Amd. Ord. 6.6 -93 101421931 (7) Loading and unloading of materials [Amd. Ord.. 60493 MUM] {8) Outside storage where spapifiPaity permitted within a zoning district [Amd. Ord. 60-93 10112193] (9) Activities associated With outside conditional uses, pursuant to (A)(2) above. [Amd.. Ord. .60-93 1011.2193] (10) Reta-il displays [Arnd. Ord. 60-93 101121931 4.6-7 City Commission Meeting on January 3, 2012; Item 9.A. SECTION 4.6.6 (C) (1) Dumpsters, recycling containers, and similar service areas must be enclosed on three sides and have vision obscuring gates on the fourth side, unless such areas a - re not visible from any adjacent public right-of-Way. [Amd. Ord, 60-93 101112/93) (2) Outside Materials and equipment stored outside must be screened from View from adjacent public ri hts- of_way in a manner approved by the Site Plan Review and Appearance Board.. Outside storage may not be located vVithin a -required setback- area. It is not intended that sales or customer service be conducted in an area designated for storage. [Amd. Ord. M,93 101121931 (3) Outdoor retail displays: [Amd. Ord. *60-m0 10MI193.] (a) Outdoor retail displays must be located adjacent to the building containing the main use., :on- :property -owned or leased by the business conducting the main use. No display is permitted on public rights-of- way, -.except when part .of an approved special event. :[Amd. Ord, 60- 93 10/1-21931 (b) Outdoor display areas may not exceed 1.0% of the square footage of the interior of the building which -contains the main use. [Amd. Ord. 60-93 10112193] (c) When an outside display of plants is associated with nurseries and garden shops, one-half ofthe -ground area devoted to such use shall be considered as 'floor area" for the purposes of calculating and providing on-site parking. [Amd. Ord. 60-91 10112193] (d) The Fire Marshal may require the removal or *modification of outside displays upon -written order, when such di.splays prevent or impede adequate ingress and egress for emergency purposes. [Amd. Ord. .0- 93 1.0112193] (4) The City Manager shall have :authority to grant administrative relief from :LDR Section 4.6.*6(C).(3) provided that [Amd: •Ord. 76-94 1,0118194.] (6) The outside display areas are part of an approved special event. .[Amd. Ord. 76"94 10118194) (b) The administrative relief shall -not exceed ten (10) calendar days in duration. [Amd. Ord. 76,a4 10/18194] 4,6-8 City Commission Meeting on January 3, 2012; Item 9A