09-08-98 Special/Workshop CITY OF DELRAY BEACH, FLORIDA - CITY COMMISSION
SEPTEMBER 8, 1998
SPECIAL MEETING/PUBLIC HEARING - 6:00 P.M. - COMMISSION CHAMBERS
followed by WORKSHOP MEETING - FIRST FLOOR CONFERENCE ROOM
The City will furnish auxiliary aids and services to afford an indi-
vidual with a disability an opportunity to participate in and enjoy
the benefits of a service, program or activity conducted by the City.
Contact Doug Randolph at 243-7127 (voice) or 243-7199 (TDD), 24 hours
prior to the event in order for the City to accommodate your request.
Adaptive listening devices are available.
SPECIAL MEETING/PUBLIC HEARING AGENDA
(1 ORDINANCE NO. 30-98 (SECOND READING/SECOND PUBLIC HEARING): An
ordinance amending the LDRs by removing adult entertainment uses
as conditional uses in the GC and MIC zoning districts and
allowing adult entertainment uses as permitted uses in the MIC
zoning district; and providing for the further regulation of
adult entertainment uses within the City of Delray Beach.
(2 ACCEPTANCE OF EASEMENT DEED FROM MARKETPLACE OF DELRAY, LTD.:
Consider acceptance of an easement deed from Marketplace of
Delray, Ltd. granting to the City a utility easement necessary to
provide utility service to the Fountains at Delray Beach, a
proposed mixed use development to be located on the west side of
Military Trail approximately 1,400 feet north of Atlantic Avenue.
(3 AMIE CLARK V. CITY OF DELRAY BEACH: Consider an offer of settle-
ment in the referenced matter.
(4 MILAZZO V. CITY OF DELRAY BEACH, ET AL: Consider an offer of
settlement in the referenced matter.
{5) PURCHASE AWARD/DELL COMPUTER CORPORATION: Consider approval of a
purchase award in the amount of $29,721 to Dell Computer Corpora-
tion, via Florida State contract, for two (2) Dell Power Edge
Servers to be used in the City Attorney's office and Environmen-
tal Services, with funding in the amount of $11,872 from
334-6112-519-64.11 (R&R/Computer Equipment) and $17,849 from
441-5161-536-64.11 (Water & Sewer/Computer Equipment).
** At the conclusion of the Special Meeting/Public Hearing, the **
Commission will adjourn to the First Floor Conference Room.
WORKSHOP AGENDA
(1) Presentation by David Miller, Architect, on several design
schemes for improvements at the City Marina.
(2) Parking Management Advisory Board's proposed strategic plan for
parking east of the Intracoastal Waterway.
(3) Executive Summary Report on the Tree Inventory and Tree Care
Management Plan.
(4) Consider supporting Revision 10, a Florida League of Cities-sup-
ported constitutional change that contains several issues of
importance to cities, namely ex parte communications and revi-
sions to tax exemptions.
(5) Commission comments.
Please be advised that if a person decides to appeal any decision made
by the City Commission with respect to any matter considered at this
meeting, such person will need to ensure that a verbatim record
includes the testimony and evidence upon which the appeal is based.
The City neither provides nor prepares such record.
MEMORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM: CITY MANAGER~
SUBJECT: AGENDA ITEM # - SPECIAL MEETING OF SEPTEMBER 8, 1998
ORDINANCE NO. 30-98 (ADULT ENTERTAINMENT)
DATE: SEPTEMBER 4, 1998
This is second reading and the second public hearing for
Ordinance No. 30-98 pertaining to adult entertainment. The
ordinance removes adult uses as conditional uses in the General
Commercial (GC) and Mixed Industrial and Commercial (MIC) zoning
districts and allows them as permitted uses in the MIC district.
It contains findings as to the secondary effects of such adult
entertainment uses and provides for their regulation in order to
protect the health, safety, property values and general welfare
of the people, businesses and industries of the City.
An overview of the zoning and other regulatory issues provided
for in the ordinance are outlined in the City Attorney's
memorandum dated August 11, 1998, copy attached. At first
reading of the proposed adult entertainment ordinances on Auguat
18th, the Commission passed Ordinance No. 30-98 by unanimous vote
while Ordinance No. 31-98 (which would have kept adult uses as
conditional uses in the MIC district) was voted down by unanimous
vote.
Attached is correspondence from the owner of the Eastern Auto
Care center at 1801 West Atlantic Avenue objecting to the
proposed ordinance.
Inasmuch as the proposed ordinance governing adult entertainment
uses is necessary to bring the City Code in compliance with
current law, I recommend approval of Ordinance No. 30-98 on
second and final reading.
ref:agmemo7
£. P.
1801 West Atlantic Ave RECEIVED
Delray Beach, FL 33444 ~//-//~,
September 2, 1998 . _ CITY. _C_ .L[~?~',
Delray Beach Planning Commission
David Harden-City Manager
100 NW First Avenue
Delray Beach, FL 33444
Dear Sirs,
My name is Gale D. Morrell. I am the owner of the property known as Eastern Auto Care
at 1801 West Atlantic Avenue. This property consists of three buildings leased to various tenants
who are in the automobile repair and maintenance business. Their customers are primarily
residents of the city of Delray Beach and surrounding communities. There customers are a cross
section of our residents including mothers and fathers who often have children with them.
It is beyond my comprehension that the city of Delray Beach feels compelled to make an
accommodation to adult entertainment in this or any area. I am strongly opposed to this concept.
I believe that to allow this in any form would have a chilling effect on established businesses in
this immediate area and would contribute to the general deterioration of property values.
A substantial investment in time and resources has been made in this auto center to attract
local residents and present a clean and attractive property. I believe that the tenants and myself
deserve your assistance in this matter and I am requesting your help preventing this adult
entertainment district.
Sincerely,
Gale D. Morrell
GDM/djm
cc: Paul Dorling, City Planner
ORDINANCE NO. 30-98
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AMENDING CHAPTER 4 'ZONING
REGULATIONS", OF THE LAND DEVELOPMENT
REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY
OF DELRAY BEACH BY AMENDING SECTION 4.3.3(AA),
"ADULT ENTERTAINMENT ESTABLISHMENTS', BY
AMENDING SECTION 4.3.3(AA)(1), TO PROVIDE THAT ADULT
ENTERTAINMENT USES SHALL NOT BE ALLOWED ON
PROPERTIES WITH FRONTAGE ON ARTERIAL ROADS OR
LOCATED EAST OF THE CSX RAILROAD TRACKS,
ELIMINATING THE DISTANCE REQUIREMENT BETWEEN
ADULT ENTERTAINM]ENT ESTABLISHMENTS, DELETING
REFERENCES TO SPECIAL CONDITIONS; BY AMENDING
SUBSECTION 4.3.3(AA)(2), TO PROVIDE CLARIFICATION OF
DISTANCE REQUIREMENT USES REGULARLY FREQUENTED
BY THE GENERAL PUBLIC AND PROVIDING FOR AN
EXCEPTION; BY AMENDING SECTION 4.3.3(AA)(3), TO
PROVIDE MEASUREMENT CRITERIA FROM ESTABLISHMENTS
SERVING ALCOHOLIC BEVERAGES; BY ENACTING
4.3.3(AA)(5), TO EXCLUDE ADULT ENTERTAINMENT USES IN
HISTORIC DISTRICTS, ON HISTORIC SITES AND PROPERTIES,
AND PROVIDING FOR AN EXCEPTION; BY ENACTING
SECTION 4.3.3(AA)(6), TO PROVIDE MINIMUM FLOOR AREA
REQUIREMENTS; BY ENACTING 4.3.3(AA)(7), TO PROVIDE
THAT PERFORMANCES AND ENTERTAINMENT MUST BE
FROM A STAGE, SETTING FORTH MINIMUM STAGE SIZE
REQUIREMENTS, AND SEPARATION REQUIREMENTS FOR
NUDE OR PARTIALLY NUDE PERFORMERS;ENTERTAINERS OR
EMPLOYEES FROM CUSTOMERS, PATRONS, PERFORMERS,
ENTERTAINERS OR EMPLOY~]:S; BY AMENDING SECTION
4.4.9(D) "CONDITIONAL USES AND STRucruREs ALLOWED',
SUBSECTION 4.4.9(D)(1), DELETING ADULT ENTERTAINMENT
USES AS A CONDITIONAL USE IN THE GENERAL
COMMERCIAL (GC) ZONING DISTRICr AND PROVIDING FOR
RENUMB~G; BY AMENDING SECTION 4.4.19(B),
~PRINCIPAL USES AND STRUCTURES PERNffrTED" BY
ADDING SUBSECTION 4.4.19(B)(7), TO PROVIDE FOR ADULT
ENTERTAINM]ENT USES AS A PERMITTED USE IN THE MIXED
INDUSTRIAL COMMERCIAL (M/C) ZONING DISTRICT; BY
AMENDING SECTION 4.4.19(D), "CONDITIONAL USES AND
STRUCTURES ALLOWED", BY DELETING SECTION 4.4.19(D)(1),
DELETING ADULT ENTERT~NT USES AS A
CONDITIONAL USE IN THE MIXED INDUSTRIAL COMMERCIAL
(MIC) ZONING DISTRICT AND PROVIDING FOR
RENUMBERING; PROVIDING A SAVINGS CLAUSE, A GENERAL
REPEALER CLAUSE, AND AN EFFECTIVE DATE.
WHEREAS, this ordinance is enacted under the home rule of power of the City of Delray
Beach, in the interest of the health, peace, safety, and general welfare of the people of the "City of
Delray Beach," hereafter the "City"; and,
WHEREAS, the intent of the City Commission of the City of Delray Beach in adopting
this ordinance is to establish reasonable and uniform regulations for the adult entertainment industry that
will protect the health, safety, property values, anti general welfare of the people, businesses, and
industries of the City. It is not the intent of the City Commi.~sion to legislate with respect to matters of
obscenity. These matters are regulated by federal and state law, including chapter 847 of the Florida
Statutes; and,
WHEREAS, with respect to zoning and other regulatory issues, the City Commission for
the City of Delray Beach, Florida, has considered reports, studies, and judicial opinions concerning the
adverse secondary effects of adult uses on the community which include but are n6t limited to the'
following:
1. Cit'y.of Renton v. Playtime Theaters. Inc., 475 U.S. 411 (1956), ~, 475
U.S. 1132.
2. young v, American Mini-Theaters. Inc., 427 U.S. 50 (1975), reh. denied, 429
U.S. 873.
3. Barnes v. Glen Theater, 501 U.S. 560 (1991).
4. Renort on Zonin~ and Other Methods of Re~ulatin~ Adult Entertainment in
Ama~llo, (Texas) dat~l S~pt~mber 12, 1977.
5. llegulation of Criminal Activity and Adult Businesses. City of Phoenix, May,
1979.
6. Findings of the City Planning Commi~ion for the City of New York dated ~Ianuary
26, 1977.
2 ORD. NO. 30-98
7. Detroit's Approach to Regulating the "Adult Uses" presented to American Institute
of Planners, Annual Conference, October 10, 1977.
8. Report to the City Planning Commission and City Council from the Planning
Department of the City of Beaumont, Texas. Dated September 14, 1982.
9. Legislative Report on an Ordinance Amending Section 28-73 of the Code of
Ordinances of the City of Houston. Texas: Providing for the Re_c~iation of Sexually Oriented
Commercial Enternrises. Adult Bookstores. Adult Movie Theaters and Massage Establishments:
and 1Making Various PrOvisions and Findings Relating to the Subiect. Report prepared by the
Committee on the Proposed Regulation of Sexually Oriented Businesses and dated 1983.
10. Report on Adult Oriented Business in Austin. Report prepared by the Special
Programs Division of the Office of Land Development Services of the City of Austin, Texas.
Dated May 19, 1986.
11. Adult Entertainment Business in Oklahoma City. A Survey of Real Estat~
~. Report prepared by the Community Development Department of the City of
Oklahoma City, Oklahoma. Dated March 3, 1986.
12. Sdult Entertainment Businesses in Indiananolis. An analysis prepared by the
Department of Metropolitan Development dated February, 1984.
13. Palm Beach County Sheriff's Office report dated April, 1998.
14. Director's Report: Proposed Land Use Code Text Amendment. Adult Cabarets.
A report prepared by the Direcwr of the Department of Construction and Land Use of the City of
Seattle, Washington. Dated March 24, 1989; and,
WHEREAS, the City Commi.~sion for the City of Delray Beach recognizes that as adult
entertainment uses affect surrounding sites in a deleterious manner, particularly when several adult uses
are concentrated and special regulation of these uses is necessary to insure that these effects will not
contribute to the blighting or downgrading of the surrounding neighborhood; and,
WHEREAS, the City also adopts the findings made in the adoption of Ordinances 35-90
and 56-90; and,
WHEREAS, the secondary effects of adult entertainment uses include, but are not limited
to, increased criminal activities, moral degr:0~00n, depreciation of property value, and harm to the
economic welfare of the community as a whole; and,
3 ORD. NO. 30-98
WHEREAS, locations having adult entertainment tend to attract other activities which are
illegal or immoral or unhealthful, such as, but not limited to prostitution, solicitation for prostitution,
lewd and lascivious behavior, sale or possession of controlled substances and violent crimes against
persons or property; and,
WHEREAS, the City Commission for the City of Delray Beach, Florida, has determined
that this ordinance is necessary to prevent crime, protect the City's retail trade, maintain property
values, and protect and preserve the quality of Delray Beach's neighborhoods, commercial districts, and
the quality of urban life; and,
WHEREAS, the local planning agency, pursuant to Florida Statutes Section 163.3174(c)
and LDR Section 1.1.6 has reviewed the amendment and made recommendations and determined that the
change is consistent with and furthers the objectives and policies of the Comprehensive Plan; and,
WHEREAS, certain historic districts and certain buildings have been placed on the
National Register of Historic Places or are in and of themselves contributory buildings in the historic
district and reflect the history and unique character of the City which will be adversely affected by the
secondary effects of adult entertainment uses; and,
WHEREAS, the preservation of historic districts and historic buildings serves a valid
governmental objective, promotes the public welfare, provides economic stimulation through tourism,
enhances architectural and educational enrichment, affords neighborhood protection, community
building, promotes cultural stability, preserves a sense of history and enhances aesthetics; and,
WHEREAS, the performers/entertainers and employees who are nude or partially nude
pose a threat to the health of patrons, customers, other employees and entertainers and themselves that
may lead to the spread of communicable and social disease; and,
WHEREAS, the concerns raised in the foregoing legislative fmdings relate to substantial
and legitimate governmental interests; and,
WI4RREAS, adult use establishments have opcrational characteristics which should be
reasonably regulated in order to protect those substantial governmental concerns; ~nd,
WI-IEREAS, certain sections of the Code regulating Adult Entertainment establishments
need clarification and correction; and,
WHEREAS, amendments to the Code governing Adult Entertainment are required to
bring the Code in compliance with current law.
NOW THEREFORE, BE 1T ORDAJNED BY THE CITY COMMISSION OF THE CITY
OF DELRAY BEACH AS FOLLOWS:
4 ORD. NO. 30-98
;' .r
Section l. That Chapter 4, "Zoning Regulations", Article 4.3, "District Regulations,
General Provisions", Section 4.3.3, "Special Requirements for Specific Uses", Subsection 4.3.3(AA),
"Adult Entertainment Establishments", of the Land Development Regulations of the Code of Ordinances
of the City of Delray Beach, is hereby amended to read as follows:
(AA) Adult Entertainment Establishments: In addition to the requirements of the
underlying zoning district, other applicable general regulations, County_ licensing requirements,
parking regulations sgecial ~.a:,:~_~: ..... ., ,u ..... u ,u .... a:,:~_.,..~ ......... ~
113.20 of the Code of Ordinances of the Ci~ of Delray Beach. the following requirements shall
apply to adult entertainment establishments:
(1 009) ~'~' frc~ an:,' ~'~- ~""'* ~-'~'~: ....... '*' · ~'~:~*' ............ '" ~'-~ ~'" .... " ..... ~*
(1) No adult entertainment establishment shall be located on properties with
frontage oil an arterial road or located east of the CSX railroad track.
(2) No adult entertainment establishment shall be located closer than one thousand
(1,000) feet from any house of worship, $choo!, residential zoning district, or community
facilities ~ district (CF, OS, OSR, CD) sabcc! where the use is or is to be regularly
frequented by the general public (i.e. community_ center, parks, courthouse, child care facilities.
offices, etc.) measured from lot line to lot line boundary along a straight airline route, except
when the property_ containing the adult entertainment establishment is ser>arated from the above
by the 1-95 right-of-way.
(3) No adult entertainment establishment shall be located within seven hundred
fifty (750) feet of an existing alcobolic beverage establishment, measured from lot line to lot line
boundary along I straight airline route.
(4) $iglmg¢. Only one sign l~r adult entertainment ~tablishment is l~rlnitted,
and such sign shall not extend above twelve (12) feet above ground level or have an area of
greater than thirty-six (36) square feet. No neon material shall be permitted on the sign. Ail
other restrictions of the sign cod~ shall apply herewith.
(~) ~0 adult entertainment establishment shall be located within an historic
rlistriet, on an historic site. or on nronerfies listed on the Local or National Re~ister of I-Iistoric
Places. unless the historic district, site or nronertv was oreviouslv used for an adult entertainment
ORD. NO. .30-98
(6) The minimum floor area per room or nartitioned area within an adult
entertainment establishment must be 2.000 sq, fi.. exclusive of kitchen, restrooms, storage areas.
and other non-public/customer area of the establishment.
(7) Performers/entertainers or employees in the state of nudity, or partial nudity_
~' shall not. approach within four feet of patrons, customers, or other employees or other
· ... performers/entertainers, and must perform/entertain from a stage encompassing an area of at least
one hundred (100} square feet.
~. That Chapter 4 of the Land Development Regulations of the Code of
Ordinances of the City of Delray Beach, Section 4.4.9(D)(1), "Conditional Uses and Structures
Allowed" is hereby amended by deleting subsection 4.4.9(D)(1) and renumbering the remaining list of
conditional uses, to read as follows:
(D) Conditional Uses and Structures Allowed: The following are allowed as
conditional uses in the GC District, except as modified in the West Atlantic
;~ Avenue Overly District by Section 4.4.9(G)(1)(a) and the North Federal Highway
'! Overlay District by Section 4.4.9(G)(2).
Section 3. That Chapter 4 of the Land Development Regulations of the Code of
Ordinances of the City of Deh'ay Beach, Section 4.4.19, "Mixed Industrial Commercial (M/C) District",
Section 4.4.1903) is hereby amended by adding subsection 4.4.1903)(7) to read as follows:
03) principal Uses and Structures Permitted: The following types of use are allowed
in the MIC district as a permitted use:
~ Adult Entertainment Establishments (subject to Section 4.3.3(AA)
S~tion 4. That Chapter 4, Section 4.4.19(I)) of the Land Development Regulations is
hereby amended by deleting 4.4.19(D)(1)(a) to read as follows and renumbering/relettering the
r~maining conditional uses:
CD) ~ondifional Uses and Structures Allowed:
i[' (1) The following uses are allowed as conditional uses within the MIC
Zone District:
6 ORD. NO. 30-98
~. That should any section or provision of this ordinance or any portion thereof,
any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part
declared to be invalid.
Section ,L That all ordinances or parts of ordinances in conflict herewith be, and the same
are hereby repealed.
~. That this ordinance shall become effective immediately upon its passage on
second and final reading.
PASSED AND ADOPTED in regular session on second and final reading on this the
~ day of ,1998.
MAYOR
ATTEST:
City Clerk
First Reading
Second Reading
zduJ~.ord
7 ORD. NO. 30-98
£.11T¥ DF DELRICI¥
DELRAY BE^CH
Writer's Direct Line: 561/243-7091
Ali.America City
~,~ DATE: August 11, 1998
TO: City Commission
David T. Harden, City Manager
FROM: Susan A. Ruby, City ^ttorney
SUBJECT: Adult Entertainment Ordinances 30-98 and 31-98
I am providing you with this summary overview, ordinances and other materials on adult
uses so that this often litigated area of the law will become more familiar to you. The
courts have required that regulation of adult uses must be based ~ on the secondary
effects of such use and not on personal observations or views on the morality or content
of the expressive content or on the use itself. Valid time, place and manner restrictions
must be narrowly tailored and provide sufficient avenues of expression. The proposed
ordinances contain certain proposed findings as to secondary effects. Ordinances 30-98
and 31-98 have been advertised for a first public hearing on August 18, 1998 at 7:00
p.m. and a second public hearing on September 8, 1998 at 6:00 p.m.
The distinctions between the two ordinances are as follows: Ordinance 30-98 removes
adult uses as conditional uses in the GC and MIC Zoning Districts and allows the adult
uses as permitted uses in the MIC Zoning District. Ordinance 31-98 removes adult uses
as conditional uses in the GC District, but keeps adult uses as conditional uses in the
MIC District.
Both of the ordinances provide for the elimination of the current 1,000 foot distance
requirement between adult entertainment establishments. The distance requirement was
sacrificed in order to have enough potential sites to meet the constitutional requirements
of adequate alternative avenues of expression. While there is no set number of sites that
a court will determine is constitutional, the courts will look to the percentage of land
available for adult businesses, the number of sites with a genuine possibility of use for
adult uses, and the number of sites potentially available for adult uses per city
population.
August I i, ! 998
Page 2
!
A survey of the cases in Florida shows that the courts have upheld ratios of one adult use
site per 2,182 persons (with 122 available sites) down to one site per 6,761 persons
(with 22 available sites). Boynton Beach's ordinance was upheld with a ratio of one site
per 4,208 persons (with 11 available 'sites). The court struck down a St. Petersburg
ordinance which provided a ratio of 1 site per 12,565 persons and 19 available sites
because the ratio was insufficient to provide sufficient avenues of expression.
The City's population is effectively 63,600 and includes approximately 53,000
permanent residents and approximately an additional 20% or 10,600 seasonal part-time
residents. Based on other cases, the City would probably be required to provide in the
range of approximately 10 sites (using the Ft. Lauderdale ratio) to 15 sites (using the
Boynton Beach ratios). The number of sites provided are shown in the shaded areas on
the map attached to the ordinance, after applying the distance requirements in the newly
revised ordinances.
Both ordinances prohibit adult uses from fronting on arterial roadways (i.e. Congress
Avenue and Atlantic Avenue). This limitation is to shield the surrounding businesses
and the general travelling public from the secondary affects of crime and drug sales and
the urban blight that often accompanies adult uses. The ordinances do not permit adult
uses east of the CSX corridor. The purpose of this restriction is to protect the church
and the neighborhoods near Depot Road from the secondary affects of prostitution, drug
sales, etc. that accompany this type of use. The area around Depot Road is listed in the
Comprehensive Plan as RHB - Rehabilitation -o meaning the neighborhood has numerous
code violations; deteriorated and non-maintained situations; high level of absentee
ownership; significant crime problems and large number of vacant lots. The
CompreP, ensive Plan emphasizes the need to combat crime in this area and the additional
crime that often accompanies such uses. It is thought that increased crime would not
further the rehabilitation efforts in the area.
The ordinances retain the 750 foot distance requirement from other alcoholic beverage
establishments and the 1,000 foot distance requirement from residential properties and
schools, etc., but provides an exception if the residential use, school, etc. is separated
from the adult use by 1-95.
The ordinances both prohibit adult uses on historic properties that have not previously
been used for adult uses in order to protect and maintain the history, character and
cultural uniqueness of such sites by eliminating the secondary effects on historically
designated properties. I do not believe there is currently any historically designated sites
located within the adult Use boundaries on the map.
Augustll, 1998
Page 3
!
Lastly, the ordinances provide for a stage of at least 100 feet for entertainment and
performances and a separation requirements of 4 feet from patrons where the
performer/entertainer, employee, is in the state of nudity or partial nudity. These
requirements are related to the prevention of disease, and public health and are included
in the ordinance to also minimize crime.
Enclosed are the proposed ordinances, and an article that sets forth some of the law in
this area. The studies and cases referenced in tile ordinances are voluminous, therefore,
I am transmitting one set of the supporting documents to the City Clerk so that you may
review the materials. Please call me if you have any questions.
cc: Alison MacGregor Harty, City Clerk
Chief Richard Overman, Delray Beach Police Department
Paul Dorling, Principal Planner
Jeff Costello, Senior Planner
Cathy Kozol, Police Legal Advisor
adultl .sar
ROBERT N. f'REILICH. P,C, ,,i,3 F[£1LICH, KAUFMAN, Fox
RICHARD G. CARLISLE. P.C. ~ ~ P~AZA wCST, 4eOo HA~SON
~ARGAR;T MOORE SOHAGI ~
STEPHEN J. MOORE, P.e. = LO5 ~NCELES, CALIFOKNIA 90025-1518 ,.
S. MARK WHITE ~.~ (310) 477'7663
ELIZABETH A. GARVIN ~4
OAWN R. ANDREWS; TELEPHONE
OAVID G. RICHARDSON 4 (310) 444-7805
DAVID W. BUSHEK s
ADULT USE ZONING IN THE 90s
BY
DEBORAH J. FOX1
FREILICH, KAUFMAN, FOX & SOHAGI
PRESENTED AT
Annual Planning Conference
of the
American Planning Association,
.. Canadian Institute of Planners and
Ontario Professional Planners Institute
TORONTO, CANADA
April 1 I, 1995
" .APfll 3~
Aduk Use Zoning
in the 90s
A nude juice bar-=thc latest in adult; use fare, offering s variety
of healthy fruit juices plus exotic nude danczrs-=-may be coming soon
to your community. Some might sec it as & real LULU ("locally un-
desirable land usc") nnd actively oppose it: others might say it merely
pushes the envelope. Undoubtedly, it would pique people's interest and
probably throw the city's attorneys into thc fray of several cousrlmtinn..
Lldiation about contmiling such c.uab~l~hments ts on thc risc.
producing horror stories about lensthy baulcs piu~ng pubtic cuticles
?,a,,~ adult use operators. Nntioual City spent more ,h,, six ycan in
litigation with C. buck's Bookstore and merged with i CeltfamLt
Supt~nc Court decision vntidasin8 its ora~,,,,,c~. City o. fA/a~ionai City
v Wiener (19.92) 3 C4th 832, 12 CR2d 701. In conu-ast. Santa
Whittier. and Garden Grove enr. h spent more than n d_,--~t,, fighting
adult usc facilities, with less succc~. Now thaz LM ¥cgu l~s been
rccogni?,-a as thc 'All American City" by Time magazine, it is clear
that thc phenomenon of adult uses is not simply i;mlted to n few
discrete jurisdictions.
Adult ~ present s classic couf~mtatiou between thc law of
zoning, widch allows thc will of a majority, to conuol thc evolution of
· _,?.-muuity and ~h-~c its ~. and thc £u~t mnendmcnt, whlcb
prevents thc majority from sup~g uapopular minority expression.
An e, xmnsivc body of juz~3mdeuen has emerged in an -,,,'~.~t to rec.
onctle the inevitable conffict. Sm gaua~aily, Dmna.~ v Ca7 o/Da/la.~
(ND Tex 1986) 648 P Supp 1061, 1063. The c. oi-dlJcts do not deal with
~ ney assmed resu'aint on · pte;-tiff's particular political n~ltn~ion but
with an operator's des~ m conduct a sexually oriented business.
Compare, e.I. ~md v aurn.v (19761427 US 347,'373 (county's
pammage dismissal of non-Demoorat employees bold to violate first
amendment) with. ~.~.. aam~ v Glen FA~re. lac. Omc 21. 1991)
Iii L Ed 2d $04. 111 S Ct 2456 (uude dandug mezely on fringes of
1994/1995 by Thc Regents of paxe:mf ant amendment acelvttyL Cl'he constitutional debate over
the University of C. alil'ornia, lXUtecting sexually explicit speech and ¢qn~ssiou bas mecutiy taken a
Reprinted, with the penninion nc, w twist. At least one scbo~ bes ~ ~e position ~ pomo~apby,
of the Regents, from/.and Use m tl~ extent it depicts and causes the subordination of women and thus
& ,~.nviroflmer~ Forum, a results in their disparate treatment, is not protec~d expression
quarterly journal published it viot-_,~ 02¢ equality principles of thc fore,couch amendment. Sec
by Continuing Education of 'Thc Fir3t Amendment. Und~ Fire From ibc Left." New Fork
the Bar-California. .&fa~azin~ (Mar. 13. 1994~ (moderated dtscussion between Professor
C,-h,-~ne A. MaclCinnon and Floyd Abrams).)
I II II I ·
The regulation of adult busine~es me·ts are more onerous with respect to desirable secondary efface of such busi.
*raises important public welfare issues. If f'u'st amendment activities than other ac. ·asses a~c to be reviewed under the standards
adult use operators are allowed to ignore tivities. A regulation enacted for the put- applicable to "con't,"nt-ncutrxl" time, pint:e,
a city's planning, building, and licensing pose of restraining speech on the basis of and mnnnet ~egulations.
requb'ements under the guise of the f'trst content presumptively violates the f'trst in the omitted foomote, the Court quoted
amendment, the public is placed at risk. amendment City of Renton v Playtime Young v American Mini Theatres (1976)
Adult use establishments are recognized Theatres, Inc. (1986) 475 US 41, 46. 427 US 50, 70: 'Il'it is manifest that soci-
as having the potential for adverse sec- Court~ will overturn pemtit or liceos- ety's interest in protecting this type of
ondary effects--crime, prostitution, re- lng requirements applied exclusively to presston is ora wholly different,and less.
duced property values, degraded corn- adult uses if the regulation's only upper- er, magnitude than the interest in
mercia] dis~cts--and, accordingly, the ent purpose is to suppress protected untrammeled political debate."
city's planning process with respect to speech. Enterlainment Concepts, inc., !// '
such busine~es should be respected. See v Maciejew~i {Ttb C~r 1980) 631 F2d City o/Re·ton thus marked a major
Young v American Mini Theatre~ (19'/6) 497. Content-neutral "time, place, and shift in the Supreme Court's first amend-
427 US 50. The community ·t large and manner" regulations, on the other band, meat jmisprudence. It Is the nnt case
adjacent property owners, both commer- will be upheld if they serve a substantial where a majority of the Suprem= Court
cia] and residential, have rights and inter- governmental interest and do not unrea- (six justices) recognized that a hierarchy
ests that deserve protection as much 'as so·ably limit alternative avenues of corn- of protected speech exists; Le.,-that the --
the constitutional rights of the adult use municatlon. City of R~on v Playtime publication of the Pentagon papers, for
operator. Theatres, Inc. (1986) 475 US 41, 47. example, is entitled to more protection
than the latest X-rated (but not obscene)
IA~nen judging the constitutional suffi- Regulation of Secondary Effects videotape. (In American Mini TAeatr~$,
ciency of an adult use ordinance, courts
examine several issues, including the fei- in City of Re·ton, the Supreme Court this concept was recognized by only n
lowing: upheld a zoning ordinance that prohib- plurality of the Court.) See genera]]),,
ired adult motion picture theaters from SD./, inc. v City of Houston (Sth Cir
· Is the ordinance content-neutral7 locating within !000 feet of any reside·- 1988) 837 F2d 1268.
· Does the eminence serve a substantial tial zone, single- or multiple-family Following the City o.f Remon exam-
government interest and provide suffi- dweUing, church, park, et school. By ils pie, · city's adult use ordinance should
cient alternative sites for the potential terms, the ordinance was designed to pre- not prohibit adult businesses altogether,
location of adult uses? vent crime, protect the city's retail trade, but may restrict their location. Proper
· Do permit or license provisions of the maintain property values, and protect the purposes would include protecting the
ordinance provide established criteria cOmmunity's quality of life, not to sup- city's retail Ir·de, mai·mining property
on which the decision maker deter- press expression of particular views. 475 values, protecting and p~___e,trving the
mines whether an adult use permit US at 48. quality of the city's neighborhoods and
should be issued? Do they provide Before City o. fRenton was decided, it the.city's com. metcial districts, and pro-
Sl~ecific and reasonable tithe periods was uncertain whether adult business or- tecting the city's quality of life. These
for permit issuance7 : din·aces were to be reviewed under the purposes should be stated in the ordi-
· Should the court interject itseff into s~mdard applied to content-neutral regu- ne·ce. An ordinance formulated in this
the city's planning and land use pro- Intlons or under the higher-scrutiny stax. fashion may be categorized and analyzed
cuss? dard iapplied to content-based regulation, as · content-neutral regulation.
This article offers advice to attorneys The Supreme Court chose to analyze An unresolved Issue is whether, under
for public enddes negotiating the twists Renton's ordinance as content-neumd Gert C §65858, a city could adopt ns an
and tums of the constitutional journey, even though it clearly treated adult the- urgency measure an interim ordinance
Some may find themselves confronted ·tars differently from other theaters. The that totally banned adult uses in the inter-
with these issues as they update an out- Court reasoned that "the City Council's est of promcttng the "publlc safety, health
dated adult use ordinance, while others 'predombmte COncerns' were with ~be and welfare" (Gert C §55858(a)). Such
may be thrown into litigation when an secondary effec~ of adult 0~-.aters and · ban arguably Hex within the numerous
adult use operator seeks an immediate not with the COntent of adult films them- planning tools that · city has at its dispos-
COunrulinginvaUdatingacity'saduituse selves." 4'/5 US at 4'/. Thus, the ordi- . aJ in order to ezperiment wlth approaches
regulations. Any contest wUI probably be nance could be classified as content-neu- to this dt~cult legal issue. See Young
a spirited one, because both the first tral became it was 'justified without American M/nl-TAeatr~ (19'/6)427 US
amendment and the public welfare evoke reference to the content of the regulated 50 (noting cities' need for Ilezible plnn-
such strong opinions. See Rossi, Never speed." 475 US at 48, quoting Virginia ·lng tools); see also $cAod · Bomu~A oj'
an F_azsy Truce: The Police Power versu~ PAnrnmcy B& v Virginia Cili~en~ Con- Mt. EpAmim (1981) 452 US 61, '/$ nib
~Ae Fir~ Amendnlent, p I0~. ~#mer Council, Inc. (1976) 42.5 US ./48. (noting Ilmt not every unit of govern-
The Court went on to note dmt (475 US .a~nt. no mat~, bow small, must provide
CONTENT-NEUTRAL REGULA'llON: at 49): an a~a for adult use).
Standard of Review
A Uu'eshold concern is whether th~ at leas~ with respect to businesses that purvey A conununity is entitled to protect it-
sexually explicit materials (foomote omittedl, ~elf from the negative ~econdxry effects
city's planning and buUding require- ~ninsordinance~desilnedtoeombat,keun- of adult ~a. and a small community
LAND USE & ENVIRONMENT FORUM 103
may fiud that a total ban is the only (1978) 585 P2d i153). The Court held smdies shouid be cited specifi'cally in the
means to do so. In light of the vm'iations that such reliance was justified and lext of the ordinance. Also consider'in-
itt cities' sizes and cha. racteristics, n pub- constitutionally sufficient (475 US at 5 I): cluding citations to any case authority on
lic entity must have flexibility to address Renton was entitled to rely on the experiences which the entity relies in its t'mdings of
the multi-dimensional problems posed by of Seattle and other cities, and in particular on need to combat adverse secondary effects
adult uses. the "detailed findings" summarized in the of adult facilities.
Legislators' Intent Irrelevant Wasblnimn Supreme Court's A/orthend Cine. Finally, do not overlook the in-house
ma opinion, in enacting its adult theater zen- experience and capabilities of the plan-
Note that a court's review is limited to ina ordinance. The First Amendment does not nine, ponce, and health service depart-
the text of the adult use ordinance; the re- requtrea city, before enacting such an otdi- meats, For example, if a community has
view should riel include speculation hence, to conduct new studies or produce evi-an existing adult usc facility that bas gna-
about the legislators' tntenL City o. fRea. dence independent of that abeady generated crated a disproportionately high number
ton v P~'ay~ime ?Tlea~res,/nc. (198{~) 475 by other cities, so long as whatever evidenceof calls for police service., such data is
US 4 i, 47; Bamon Corp. v City o. f D,~y~on the city relies upon is ~uon~bly believed to
(SD Ohio 1990) '/30 F Supp 80, 85, nff'd 6e ~epant to the problem that the city nd. crucial to teUing the story of the resource
(6th Cb. 1991) 923 F2d 470. The fact that dresses. IEmpbasis added. I drain caused by the effects of adult uses
..... in a community. Some jurisdictions have
hundreds of residents may have picketed conducted surveys of real estate brokers
the adult establishment or expressed fJ~]O not' within the community to show the reduc-
strong moral feelings about its presence tion in property values attributed to adult
in theb. community is irrelevant to the overloo/c the in-boise facilities. The data should be offered in
~nstimtionality of the ordinance.
experience and support of the ordinance and to confirm
SUBSTANTIVE VALIDFI'Y capabilities of t/;e the jurlsdiction's concerti about second-
ar)' effects. Sueb findings are all that is
Once a court dete.rminus that an adult plannirig, police, arid nece_~_eary to meet the government inter-
business ordinance is content-neutral, it
then must examine whether the ordi- health service est portion of the City of Renton test. See
Lakeland Lounge v' City of Jac~on fSth
hence is designed tO serve a substantial departments. For Cb- 1992) 973 F2d 1255.
government interest, and whether it al-
Iowsadequatc avenues for the expression example, ifa community in SD J, htc. vCityofHou~tbn (5th Cb'
of the restricted speech. 475 US at 50. ' has an existing adult use 1988) 837 F2d 1268, 1274, the Fifth Cir-
cuit Court of Appeals explained that in
Substantial Government Interest facility that ltas generated reviewing adult business ordinances,
The Supreme Court in City of Rento~t a disproportionately courts go beyond thc review of normal
had no difficulty determining that thc or- high number of calls for legislative acts, but only to the extent of
. dinance in question met thc substantial Insisting on objective evidence of pur-
govemmen~l interne element of its test. police sell/ice, such pose, .Lc., a study or~nding$:
The Court stated (475 US at 50): 'As a da~a l$ crucial [*0 felllrig Insisting upon findings reduces the risk that
majority of this Court recognized tu tJ~e $[ory of Ihe resource a purported effort to*regulate effect is a mask
American Mini 77~eatre$, a city's 'interest for regulation of content. That is, evidence o~*
in attempting to prese, r~e thc quality of drairt cattsed by the le$1timate puq~ose is supported by proof that
urban life is one that must be accorded c'ffects of adttlt seenndaty effects ectuaUy exist end ate the
bigb respect.' [Citation.] Exactly the result of the business subject to the regula-
same viud governmental interests are at ttses in a tion.
stake hem." community. Although the findings in a city's ordi-
in City of Renton, the Ninth Circuit nance must meet the standard set by Ci~.
bad Invalidated the chy's adult business XXX of Renton, this standard is not a daunting
ordinance. The Ninth Circuit bold that one. A look at the facts of City of Rtnton
because the ordinance was enacmd with- demousuates, as the Ninth Circuit ob-
out the benefit of sttldles specifically re- A newly enacted adult ordInance served, emt the 'record lxesented by
taring to the "particular problems or should state that it relies on the estab. Renton to support ils asserted interest in
needs of Renton," Ibc city's Justification Ilshed case law and experiences of other enactinl the zoning ordinance [was) very
for Ibc ordinance was 'conciusory and cities, thin." Playtim~ 77ttattr~ v City of itc. neon
speculative." Playtime 17~ater~ v City of A host of studies on adult uses exist, (gtb Cb 1984) 748 F2d $27, :536; see also
itenton (gth Cb' 1984) 748 F2d ~27, 537. Inciudinl tlmse done by Seattle., Pboentx, City o!Reaton v Playtime 7Reatr~,
The SUl~eme Court, however, held time Indianapolis, Los An[eles, Garden (1986) 475 US 41, 60 (Breunan, J, dis-
this burden of proof was 'unnecessarily Grove, California, and Austin, Texas, as seating). Yet the majority of the Supreme
rigid." 4.'/:~ US at ~0. The Court noted well as the U.S. Attorney General's 1986 Court bad no problem holding that the
that, in adopting its ordinance, Renton re- Report on Pornography. Public entities findings (adopted weeks after thc ordi-
lied heavily on the experience of the City and their attorneys should review these hence) were clearly sufficient to support
of Seattle (whose oi'dinanc~, was upheld studies. If any are relevant to the experi- tbe ordinance. See also internatio~utl
in AfonAend Cinema v City of Seattle ence of the enncting jurisdiction, those Food& Beverage $y$. v City ofFon
104 SPRING ~994
',tercl~de (1 ! th Ch' 1986) 794 F2d ! 520, the city located along one main thorough- businesses by requiring a minimum sepa-
l527 (city may rely on the experiences of fare or sprinkled throughout? Does the radon between adult uses. (T'ne alterna-
other communities and ordinance should full length of this main artery border on tire approach is to concentrate adult uses
be tested as a zoning conu'oi), n residential zone and preclude siring an in one area of the city. Boston's "combat
adult facility without violating the dis- zone" is an example.)
Adequate Alternative Sites lance limitations of the ordinance? To de- This type of regulation was upheld iu
Renton's ordinance left 520 acres, or termine whether the offered number of Americ,~n Mini-Tlteatre$. Since then,
more than 5 percent of the land in the adult sites is "reasonable" requires a several cases have struck down adult use
city, open louse a s sites for adult theaters, working understanding of the land use ordinances based on dispersal require-
The land consisted of "'acreage in all patterns of the city. meats. One such case, City ofStanton v
stages of development from raw land to Cox (1989) 207 CA3d 1557, 1566, 255
developed, industrial, warehouse, office, "Available" Sites
,'md shopping space that is crtss-crossed In City of Rento~ the Ninth Circuit CR 682, observed that dispersal require-
meats had been invalidated because the
by freeways, highways and roads.' Ap- had found that the 520 acres were not tru- end result was little opportunity for an
pendix to Jurisdictional Statement 28a." ly "nvaLinble" for adult theaters, because
475 US at 53. The Supreme Court found they were either already occupied, not for adult use operation in the city. See,
. F/,,lnut Props.,/nc. v City o. fll~/tittier (gth
these locadons sufficient to establish ren- saleor lease, or not conunercially viable-' Cir1988)861F2d il02(1000.footsepa?
sonable alternatives, sites for the location of an adult theater, ration requirement effectively excluded
The evtdendary record must show that The court bcid, therefore, that Reaton's all adult uses); Ale. r. ande~' v City of Mtn-
ordinance would result in a substantial
there are in fact a sufficient range of al-
ternative sites. There is, however, no set restriction on protected speech. Playtime neapolb (8th Ch' 1983) 698 F2d 936
(500-foot separation with only 12 sites
number of alternative sites necessary for Theaters v City ofRenton (gth Ch' 19841 available).
the ordinance to be valid. The issue is ex- 748 F2d 527, 534. In the cases cited by Stanton. howev-
trained on a case by case basis with refer- The Supreme Court unequivocally re- er, the dispersal requirement was men-
ence to the particular demographics of jeered the notion that sites must be"com- sured In a straight line. See, e.g., Wa/nut
the city. See, e.g./mernatiOnal Food ,4 mercinUy" viable, or be currently for sale Props. v C/O' of WTd#ier (gth Ch' 1988)
Beverage $y$. v City of Fen Lauderdale or lease, it held that the regulation need 861 F2d ! 102, 1108 n4 (noting that a
(I I th Ch' 1986) 794 F2d 1520, 1526 (22 only refrain from denying adult use oper- circle with a radius of 1000 feet encore-
sites for nude bars held to be sufficient tiers a reasonable opportunity to open passes approximntely 72 ncres). Different
without evidence to the contrary); Alex. and operate their businesses. 475 US at m~asuring criteria can produce less oner-
ander v City of Minneapolis (8th Cir 54. Chief Justice Rebnquist pointed out ous results. For example, measuring the
199 !) 928 F2d 2'78,283 (adult theater nc- that adult businesses should not be eh- distance from front door to front door ai-
cess to 6.6 percent of total commercial titled to more than equal protection (475 lows for far greater aitemadve sites than
acreage (120 sites) bcid reasonable). US at 54): the "straight-line" method described itt
To support an adult use ordinance, the That respondents must fend for themselves in Walnut v City of Wltittier, while prevent-
administrative record should include: Ihe real estate market, on an equal footin& lng adult businesses from being located
with other prospective purchasers and les- next to one another (or at the ~ost not
· total area of the city and number of sees. does not live rise to a F~rsl Amendment two or ~ree doors apart). "'
gross acres: violation ....iV/Ia have never suglested that
· net acreage available for ail land use the lrn~st Amendment compels the Iovem- /tdult g./$e
purposes; meat to ensure that adult theaters, or toy oth- Restrictlous on the number of adult
· breakdown as to net acres available er k~nds of speech-related businesses for that uses permitted within one s~ructure have
for residential, commercial, industrial, matter, wiU be able ~o obtain sites at b~u'pin beet found constitutionally valid. Hart
agricultural, etc.: prices. Boole Stores, inc. v Edmi~en (4th Ch'
· total net aav. s available for adult uses; Tbe Constitution does not saddle mu- 1979) 612 F2d 821, 826; Dumas v Cio' Of
· total number of operating businesses nictpalltles with the task of ensuring the' Dallas 04D Tax 1986) 648 F Supp 1061,
in the city~ and popularity or ecooomic $ _vcc~___~_ of adult 1070; see also roerig v American Mini-
* total number of adult businesses oper- businesses (C/ty of Afational CiO, v twa- Theatres (1976) 427 US 50,.54.
ating tn the city or close proximity, ncr (1992) 3 C4th 832, 848, 12 CR2d ro~,,m~,~/',-m
701) nor does itluanmteeanyoneaproflt $a.0~¢~ent $~tes ~n "Relewmt Aim'Act~'
This framewod~ is cmcL~l far lbo trier of (International Food & Beverage Syn. v
fac~todetenninewbetherthealternatlves CiO, o/Fort Lauderdale (lllh Clr 1986) In ropanga P~s, Inc. v City o/Los
offered under Ibc ordinance am suffl- 794 F2d 1520, 1526). Angeles(gthCir 1993) 989 F2d 1524, the
cienL See City o.f~lmto.nal C/O, v W/ener Ninth Circuit addressed Los Angeles's
(1992) 3 C4th 832, 12 CR2d 701 (speci. Dbper~al Raqulrernene attempt to force the relocation of some
fytng tmal developable acreage witifin in addition to n."quidnI separation 102exL~nI adult uses. Relying solely on
various land use categories), it also from sensitive land uses (residential Ibc adult use ogemor's experts, the Iriai
serves to focus the inquh7 on plannln$ zones, churches, schools, and parks), court bad found that 120 potential sites
and should highlight some of the unique many adUlt use ordinances also requite were available for relocation. On appeal,
characteristics of the community. For ex- 'dispersal." Such provisions attempt to however, the Ninth Ch'cuit observed that
ample, is all the commercial property In control the synergistic effects of adult the number of businesses that would have
LAND USE & ENVIRONMENT FORUM 105
to relocate wns actually much higher. Un. prise. (Los Angeles did not employ an same rules limt apply to statutes. C-¥
dcr~cordinance, a single store that sold outside expert wimess or usc its own Dev. Co. v City of Redlands 0982) 13'/
two kinds of adult entertainment was planning di~ctor to msdfy about thc CA3d 926, 929, 187CR370. Courtsgen.
considered a multiple business and each number of available sites within the city.) erally defer to the interpretation of an or-
operation had to meet the separation start- To avoid the pitfalls of Topangn Press, dinance or statute advanced by those who
datds. Thus, ~hat operator would need questionable acreage of the type dc- enforce it for two reasons: First. courts
two relocation sites rather than one. By scribed as outside thc "relevant real es- respect a gnventmcnt agency's compe-
drafting its ordinance in this fashion, Los late marl:ct" should be excluded from the tence, expertise, and experience. See Pa-
Angeles ran afoul of the Ninth Circuit's final count of alternative sites. Also, a cific Legal Found.. v Unemployment ln~.
prior decisions rejecting separation re- city can undertake a "mapping" process Appeal~Bd. (1981)29 C.3d 101, I11,172
qui~ments that can significantly reduce that calls out the number of alternative CR 194. Second~ courts recognize that
available sims. conmmporaneous expressions of opinion
Exhibiting some disdain for thc Su- about the construction afc statute by the
preme Court's reasoning in City of Ren- officials charged with its enforcement are
ton~ Topanga Press also adds a new layer important indicators of the probable gen-
of analysis'to determine if sufficient al- eral understanding of the times and the
tematives exist. It requires consideration A good drafters. Nelson v Dean (1946) 27 C2d
of whether a specific relocation site Is 873, 880, 168 P2d 16.
"pan of the relevant nu~ket" and rejects precautionary A good precautionary measure is to
City of Renton's "money-blind" teac 989 measure is to place place in the administrative record a report
F2d at 1530. The Topanga Press panel in the administrative from the city's planning defector stating
simply gave no heed to the fact that the record a report frora the that he or she has examined the ordi-
property considered in City of Renton nance's criteria and found "x" number of
was in all stages of development inciud- City ~ planning director alternative sims. Such a determination is
lng: {1} a sewage treatment plant; (2) a stating that he or she entided to great weight in litigation chal.
horse racing track and environs; (3) a lenging the ordinance.
warehouse and manufacturing facilities; has examined the . .
(4) a Mobil OH tank fnnn; and (5) a fully ordinance'$ criteria and PERMIT OR LICENSE
developed shopping center. Playtime found "x" nttmber of REQUIREMENTS
Theaters v City of Renton (9th Cir 1984} Licensing or permit schemes, such ns
'/48 F2d 52'/, $34. alternative sites. Such a conditional use permit requirements, ate
T'ne Ninth Ch'cult offered limited c. ri. determination is a jastifiable means of regulating second-
eerie for determining whether sites ate ac- entitled to great weight cry effects of adult uses. They are subject
tually in the "relevant matket" (989 F2d to challenge, however, if they do not pro-
at 1531): in litigation vide specific standards for issuance of a
* Is there a genuine possibility that the challenging the permit, or if they do notrequire public of-
site is potentially available? In other ordinance, ficials to act on a permit application with-
words, is it reasonable =to believe that in a reasonable time.
Ithe site] would ever I~.come available XXX Specific Standards
to any commercial enterprise?"
· If the sit~ ate in manufacturing or in- The criteria for determining whether
dustrial zones, are they reasonably ac- to grant or deny an entitlement must not
: cessible to the general public? be tmpehnissibl~ vague or vest unfet-
· If the sims are in manufacturing zones, tered discretion in the decision maker.
do they have a proper infresu'uoture sites available under the specific distance People v Natltau (1986} 182 CA.3d Supp
1, 227 CR 664.' The 'crucial Issue is
such es sidewalks, mad and lighting? and separation limitations being cortaid-
· Does the site serve some generk: cam- emi. Slate of the an planning software whether the criteria have been lailored to
merclal enterprise? can be used to generate alternative sca- ensure
· Are Uae sites commercially zoned? aeries to assist in the final selection of suppressed. City of 1.akewood v Plain
distance ~estrictiont. The computer-gen- Dealer Publishing Co. (1988) 486 US
The Tolnm8a Pre.ts panel clearly ~ erated maps can tlxm be included in the '750 (invalidating requirement for annual
jeeted Los Angeles' attempt to include administrative record and designated at permit to operate news racks because
thousands of acres that were submerled the adopdon bearing as the "official" mayor was granted unbridled discretion
beneath the Pacific Ocean or the outer to impose terms and thus to deny per-
harbor of tbe Port of Los Ans¢les. ltalso map for aitemadve sims for the commu- mits). See also De~e v City of Anahelm
rejected inclusion of sites that were pan nlty. (CD Cai 1993) 826 F Supp 336 (invali-
of the Van Nuys Airport, Children's Has- Building a Record About dee dadng adult use ordinance requiring only
piud, lathe oil refineries, or landfills, City and ltt Demographics findings that adult use would not be dctri-
finding such sites were simply not suit- Tbe inflation of a municipal ordi- menial to geacral health, safety, or wcl-
n.b, le to some generic commercial enter* mince or resolution is ~ovemed by the fate).
ton spirea
An ordinance ~hat provides no start- which the status quo is mainb~ned; and Comm'n (1976) 17 C3d 785, 791, 132
dm'ds at all for the issuance of a permit is (2) prompt judicial review must be avail- CR 386.
unconstitutional. See, e.g., E. zotic World able. Often a race develops, with the adult
News v City of Appleton (ED Wis 1980) The Dallas ordinance required the po- use operator trying to bring its facility on
482 F Supp 1220. In contrast, clearly set lice chief to render a decision on the re- line before the city can enact a new and
standards preclude any argument that the quested license within 30 days but also improved adult use ordinance. Speeding
decision maker has been given unbridled required thc business premises to pass up one's timetable in a calculated efforl
discretion to grant or deny exceptions, certain inspecfious before the license was to escape impending land use controls is
FTF/PB$, Inc. v City of Dallas (1990)493 granted. Because no time limit was ira- not "good faith" action and, therefore,
US 215. The ordinance should not de- posed on those inspections, the Court cannot establish a vested rigbt. AiresDec
mend thc submission of irrelevant data found the ordinance to be constitutional- Co. v California Coa$1al Zone Conservu.
about an nppUcant's past in order to ob- ly deficient. See also People v Library lion Comm'n (19'/5) 48 CA3d 534, :548,
tMn a llcense or permJC Genusa v City of One, lnc. (1991) 229 CA3d 973, 280 CR 122 CR 315; see also ,South Coast Re.
Peoria (7th Cir 1980) 619 F2d 1203 (in- 400; J.L. Thomas, Inc. v County of Los gional Comm'n v Hlggin$ (1977) 68
validating Peoria's requirement that ap- Angeles (1991) 232 CA3d 916, 283 CR CA3d 636, 646, 137 CR $$1.
plic~t be cK "good moral character" as 815; World Vlrufe Hdeo, Inc. v City of
lodging mo much discretion in decision 7hlavila (Wash 1991) 816 P2d 18; Adult Reasonable Amortization Period
maker). Entertainment Ctc, Inc. v Pierce County
lnPeoptevNadeau(1986} 182CA3d (Wash App 1990) 788 P2d 1102. If a business ts a lepl nonconforming
usc, a city may eliminate it by paying just
Suppl, 227CR664, theeourtrejectcda In California, CCP §§!094.5 and compensation or requirc its rernoval after
challenge to a Los Angeles County adult 1094.6 provide for prompt judicial re-
business ordinance, holding that objcc- view wbUe allowing the possibiUty of a reasonable amortization period. City of
five, though unquantified, standards are immediate rgUcf through issuance of an Los Angele$ v Gage, supra.; United Bu$i-
not unconsfitofionaily vague. The court aitemafive unit on ex pane nodce (CCP ness Comm'n ~ City of San Diego 0979)
stated that the ordinanc~'s provisions §i088). Furr. her, apedfion forperempto. 91 CA3d 156, 179, l$4CR263. Theun-
should "govern exclusively thc physical O'writofmandatgcanbeheardwithtn 15 derlying concern is to ensure that the
appearance and relationship of the [adult days after service of a noticed morion, amortization period allow~ a landowner
business] to other uses" rather than an. CCP § 1094. a reasonable opportunity to recoup bis or
gage in an impermissible "moralistic An adult use ordinance should provide her invgsuaent---an issuo that is deter-
litany." 182 CA3d Supp at 9. The court
went on to validate all of thc require- that an applicant be nodded simulta- mined by the facts of each casa. (Note
meats of the ordinance, including provi- ncously of (!) thc decision on the permit that federal courts bare shown disdain
stoas requiring that the sites be "suffi- application and (2) thc right to judicial for amortization periods and instead, pre-
review under CCP §§ 1094.5 and 1094.6. fen'ed tbe "grandfather clause" approach
clearly buffered" from a residential area adopted by thc city of Devoir in Ameri.
and that the exterior appearance be con- LEGAL NONCONFORMING USES can Mini Theatres.) The fact that federal
sistent with adjacent commercial struc-
tures. But see Dease v City of Anaheim An adult use operator may attempt to courts arc generally more receptive to
challenges to adult us~ ordinances means
(CD Cai 1993) 826 F $upp 336, 344 cstablisb a business beforc thc city adopts
(striking down ordinance that included a consfitutionally sound ordinance and that plaintiffs will usually try to lidgnte
the latter two conditions on ground that then' claim that the operation is a legal their cases in federal court.
ordinance gave planning commission un- nonconforming use. "Nonconforming In CaUfornia, the burden is on the
consfimfional discretion to grant or deny usc" is merely a short-hand term for a use plaintiff to prove that the amortization
CUP) that bas a vested right to exist, but be- period is unduly short as applied to its
comes invafid by subsequent regulation, business. Sca NationalAdvertising Co. v
· Specific and Reasonable Time Umits City of Los Angeles v Gage (1954) 127 County of Monterey (1970) I C3d 875,
in FW/PB$, Inc. v City of Datla$ CA2d 442, 453, 274 P2d 34. 880, 83 CR Y/7; City of Lox Angeles v
(1990) 493 US 215, the Supreme Court Gage {19.54) 127 CA2d 442, 450, 274
invalida~! Dallas' discretionary adult Vested Rights P2d 34. In making such a determination,
usc permit provision becauso it failed to The doctrine of veslcd rights is based the d~cisicu making body must consider
set a time limit within which the permit on equitable estoppel, a principle that several factors and then balance the pub-
bad to be Sa'anted or denied. (T~ Court may be applied a~ainst the government llc lain from removal of thc nonconform-
did no~ reach the issue of wbeaher the when justice and fairness r~lUire it Santa lng use against the conesponding privale
city's licensing ~:beme vested uncon. Monies Pines, Ltd. t, Rent Control Bd. loss. Factors include:
satofional dise~etlon in the bands of the (1984) 35C3d858,866,201CR$93. To
decision maker. 493 US at 227.) The obtain a vested right, · property owner .~ ~ adult besingss owner's financial
Court provided a two-part test for ~- must pefl'o~m substandal work and incur -inves~nent in ~he business;
sing the sufflciency of an adult ordinance substantial liabilities in lood faith re. * ~be present and actual and depreciated
on this point: (i) the city must decide liance on a permit issued by a govern, value of ~e besiness improvcme, ts;
whcther to issue the license within a spe- mcm,'d agency. Avco Community Devel. · thc remaining lease term;
.~ified and reasonable time period during oper$, inc. v South Cotul Regional * the cost of relocating thc business;
I.,OtD OSE & EN~nlnot~aENT ~onu~a Io9
· thc ability of the busine, t~ and/or I~nd- improvements). See also Afinn~y v City o/,~.~a (19581.
owner to ci~ng¢ the use to a conform- Courts a~ inevitably urged by adult 164 CA2d 12. 330 P2d 255.
in8 u.~; USe opea'ators to sctutinL~ amotti-~on Another factor that may mnke coua'ts
* the dom on which the pmpe~ owner pcriods under a standard more rigorous reluctant to enter a land use dispute is
and/or business owner re~ivcd notice than "reaSonableness" betause of the in- that. when a plaintiff seeks to enjcin a
of the nonconforming status of the volvc~nent of protected lust amendment city fn~n enfon:~n8 its ordinances, it is
use4 and activity. See Purple Onion, Inc. v .~ock- presumed that the city will suffer b~rd-
· the effects on the health, safety, and son Ct4D Ga 1981) $11 F Supp 120'/. ship (continued blighting of its ucighbor.
welfare of the surrounding businesses hoods) if the injunction is i~'anted. See
and uses if tho adult business is al. COURTS sHoULD BE Lvdo ,~uer~. lac. v ¢l~y o//.at
RELUCTANT TO ENT~iT -
lowed to operate beyond the proposed INTO PLANNING PROCKSS fgth Ch' 1984) 745 l:2d 1211. 1213.
amora--don pcriod~ ....
Under the doctrine of separation of CONCLUSION
M errom~dia, Inc. v CLT o/ .~n Diego powcrs, acourtSbouldbewaryofunyin. In Ciry of Rcmo~ the Supreme Coun
¢1980} 26 C3d 848,.164 CR 510. vttations to sit as a "supezplanner" or rejected the acttvfst role that some fedaral
In City o.f 149d~zlcr v Walam Propz., zoning adminJsazmr and override a courts had previously undertaken in re-
Inc. {1983} 149 CA3d 633, 197 CR 127, city's entire zoning proems. Cormrac- viewing adult business ordinances. New
the court found that 30 days was a fca. ton lndaz. A$~'n ~ Cir~ ofP~z~luma (gth ertheless, courts have consistently
scoable amortizadon period for an adult Clz197S)$221:2dg97. As the Cal~fomia amined adult use resections with a
theater that merely needed to change its Supreme Court stated in Lockard v City skeptical eye. For cities to overcome this
fdm rental Moecdures in order lo comply o/Z.o~Anggle$ (1949) 33 _r~_d_ 453, 461, skept~_~n they~must give
with the new ordhumCe. See also MJR:f 202 P2d ~8: attention to detail, in ~g or defend-
Far~, Inc. ~ City of Dallaz (1990} 792 Thu wisdom of th, prohibitions ~ud restri¢, ing theh. ordinances, including their re.
SW2d ~569 (dlree-yeer antor~nttoa pc4i- tions is · matter for lelj.dativ, detmuinadon, lintlee on stud~docomentiag secoadazy
od for topless dancing estsbllsinnent per- nadgv~ngl~u$ha¢oar~ma?a~gagreg~i~h effects, the nm~lber of altetllative
mtssible); ,~bel v City of Comna (gth C~t d~ ~k2rm~u~ ~ wRl n~ ~m~ i~ andsuf~cientflndingstosupporttheof
198~ 76"/F2d 635 (invalidating 60-day j-,~lm~u/or ~ of t~ zonlnl maaorate~ 9' dinance. They must also ensure ttmt their
amor~-~ou period where plaintiff bad ~re L~ any r~m~na61~jm~i~.mianfor d~r Cuse fits the established constimtioual
five-year lease and had made substantial ~.~ion. I'Empbasis added.] standards in titis area. XXX
t Deborah J. FOx is · pin',ncr of Frcilich, Kanfman, Fox & Sohagi, a firm specializing in representing
8overnment entities in land us~ and environmental matters. 8he has nntionnl ~perienc~ in defending muni-
cipsiities in complex'civil rights litigation brought by adult use operators and has misted municipalities in
drafting constitutionally sound adult use regulations. In addition, th~ has extensive experience in eminent
domain, environmental, redevelopment law, and land use litigetion. Ms. Fox received her Bachelor of Arts,
FolJtfcal Science-Cultural Anthropology from the University of. Michigan in 1980 and her Juris Doctor from
the University of San DJego Law School in 1983.
CHURCH
o~'
CHRIS T
I.
__~i
PARK
ft.
BAKER ROAO "'
PALM ~AN F~CILI ~
A~.AN~C
SHAW
:.,. ~ ADULT ENTERTAINMENT ESTABLISHMENTS
c,"r', =.' O~U~A, ,.'AC.. r,.. ~ -- AVAILABLE LOCATIONS
PLANNING & ZONING 0EPART~IENT
£1T¥ DF DELRI:I¥ BEI:I£H
DELRAY BEACH
~ MEMORANDUM
AII.~ C~
TO: City Commission
FROM: Brian Shutt, Assistant City Attorney
SUBJECT: Acceptance of Easement Deed from Marketplace of Delray, Ltd
The following easement deed grants to the City the means to connect to the water and
sewer mains located along the no~h prope~Xy line of the federal pl~a propeay. This is
necessm~ in order to provide City water and sewer se~ice to the Fountains at Delray, a
new development. When the City performs any maintenance or construction within the
easement, the City will have to return the property to its original condition.
By copy of this memorandum to David Harden, City Manager, our olEce requests that this
item be placed on the September 8, 1998 City Commission agenda for acceptance.
Please call if you have any questions.
cc: David Harden, City Manager
~ison Hazy, Cily Clerk
Barron Caronite, Assistant City Engineer
(117808.1/13630.00002)
This Instrument was Prepared by
and should be Returned to:
Paul K. Hines, Esquire
Gunster, Yoakley, Valdes-Fauli & Stewart, P.A.
800 SE Monterey Commons Boulevard, Suite 200
Stuart, Florida 34996
UTILITY EASEMENT
THIS UTILITY EASEMENT is made this t/$[ day of~'~, 1998, by MARKETPLACE OF
DELRAY, LTD., a Florida limited partnership, whose mailing address is 3501 S.W. Corporate Parkway,
Palm City, Florida 34990 ("Grantor") to CITY OF DELRAY BEACH, whose mailing address is 100
N.W. 1st Avenue, Delray Beach, Florida 33444 ("Grantee").
WITNESSETH:
WHEREAS, Grantor is the owner of certain real property located in Pall Beach County, Florida
more particularly described in ~ attached hereto and made a pan hereof by this reference (the
"Grantor's Property"); and
WHEREAS, Grantor desires to grant to Grantee, its agents, successors and assigns, a perpetual non-
exclusive utility easement under and upon a portion of Grantor's Property, as legally described in~
attached hereto (the "Easement Premises").
NOW THEREFORE, for and in consideration of the sum of 'TEN AND 00/100 DOLLARS
($I0.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Grantor and Grantee mutually agree as follows:
1. Recitals. The above stated recitals are true and correct and incorporated herein by
reference.
2. Grant of Utility. Easement: Purposes. Grantor does hereby grant, bargain, sell and convey
unto Grantee, its licensees, agents, successors and assigns, a perpetual non-exclusive utility easement (the
"Utility Easement") under and upon the Easement Premises for the sole and limited purpose of providing
Grantee access to certain utilities located within the Easement Premises (collectively, the "Utility
Facilities"). Any and all fees, costs and expenses associated with Grantee's connection and/or hook-up to
the Utility Facilities shall be the sole obligation of Grantee.
3. Maintenance and Repair. Upon Grantee's installation or connection to the Utility Facilities
or any subsequent maintenance or repair thereof, the Grantee shall remove all equipment and other property
placed upon Grantor's land and the Easement Premises by or for the Grantee, and shall fill and level all
ditches, ruts and depressions caused by said connection operations, and remove all debris resulting
therefrom. Grantee shall generally restore the surface of Grantor's land and the Easement Premises as near
to its original condition as may be possible within a reasonable time thereafter.
4. Rights Reserved to Grantor. Grantor hereby reserves for itself, its agents, employees and
invitees the right to the full use and enjoyment of the Easement Premises.
5. Access to the Grantor Property.. The grant of this Utility Easement to Grantee is expressly
limited to allowing Grantee to install and connect to the Utility Facilities. Notwithstanding the foregoing,
Grantee shall have a limited right of ingress and egress over, upon and across the Grantor's Property to
effectuate the intent of this Easement. Grantee covenants and agrees not to interfere in any manner with
the operation of tenants' businesses on the Grantor's Property.
6. Attorneys' Fees and Costs. In the event either party must bring an action or claim to enforce
the provisions of this Easement, the prevailing party in said action or suit shall be entitled to recover
attorneys' fees and costs, which shall include all reasonable attorneys' fees, the value of time legally
charged by paralegals and other staff members operating under the supervision of an attorney and other
legal costs, reasonably expended or incurred in connection with said action or claim, before, during and
subsequent to any litigation, including without limitation arbitration, mediation and appellate proceedings,
bankruptcy or similar debtor/creditor proceedings.
7. ]~Jllg[il~~. This UTILITY EASEMENT shall run with, burden and benefit the
properties described herein. All provisions contained herein, including the rights, benefits and burdens
created, imposed and bestowed, shall enure to and bind Grantor and Grantee, and their successors and
assigns.
8. Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same instrument.
[NO FURTHER TEXT ON THIS PAGE]
117808.1 2
IN WITNESS WHEREOF, Grantor has caused these presents to be executed on the day and year
first above written.
MARKETPLACE OF DELRAY, LTD., a Florida
limited parmership ,
By: G.P. MARKETPLACE OF DELRAY, INC.,
a Michigan corporation, as General Partner
Signed, sealed and delivered
in the presence of: /~~
Print Name: ~.~eov ~/-z t~o$ Name: Donald L. Chasen
~ ~ Title: Vice President
P'~'t'°N-ame: ¼~.¢x._ c~.~ ~ } "Grantor" "?
-~ ...-- _.4; -
STATE OF FLORIDA )
) s.s.
COUNTY OF A///~r-/,q' )
I HEREBY CERTIFY that the foregoing instrument was acknowledged before me this ~ day of
/tut~t/~'F', 1998, by Donald L. Chasen, as Vice-President of G.P. MARKETPLACE OF DELRAY, INC.,
a Michigan corporation, the General Parmer of MARKETPLACE OF DELRAY, LTD., a Florida limited
partnership, on behalf of the corporation and the parmership. He is personally known to me or has
produced a driver's license as identification.
Print lqame: ~-~
(Notary Seal) Notary Public - State of Florida
Commission No.:
My Commission Expires:
· '-"~ '" Karen Phillips
?: ...; MYCOMMISSION~ CC690574 EXPIRES
'~ '-~- February 15, 2002
117808.1 3
· FROM A~CER (FRI) 8, 7' 98 13:34/ET, 13:33/N0. 4260019048 P j..
AMSOUTH BANK, an Alabama ~tat~
,~: .... ~ '/ /
Title:
! '
STATE OF ~
cO~TY oF ~.~ ~ ~ ~
N~ ~b~, ~ of - -
~ N~:__
My ~~n N,~:
III. T & T:t ~oomme~eo~emn Il
A part of the East three quarters (E. 3/4) of the Northeast quarter
(N.E. 1/4) of the Southeast quarter (S.E. 1/4) and the West half (W.
1/2) of the Southwest quarter (S.W. 1/4) of the Northeast quarter (N.E.
1/4 of the Southeast quarter (S.E. 1/4) of Section 14, Township 46
South, Range ~42 East, Palm Beach County, Florida, lying West of the
Westerly apparent ultimate right of way line of State Road 809 (Military
Trail), said ultimate right of way line bein~ 60 feet West of the
Centerline as shown in Road Plat Book 2, Page 26, Public Records of Palm
Beach County, Florida, being more particularly described as follows:
For a point of reference commence at the intersection of the Easterly
prolongation of the Northerly apparent ultimate right of way line of
State Road S06 (West Atlantic Avenue), said apparent ultimate right of
way line being 60 feet north of the centerline as shown in Road Plat
Book 3, Page 26, Public Records of Palm Beach County, Florida, with the
Southerly prolongation of the said Westerly ultimate right of way line
of State Road 809; thence North 0o56'08" West, along said Westerly
ultimate right of way line, 25.27 feet to the Point of Beginning; thence
continue North 0o56'08'' West, along said ultimate right way of line,
1282.31 feet to the North line of the said East three quarters (E. 3/4
of the Northeast quarter (N.E. 1/4) of the Southeast quarter (S.E. 1/4);
thence South 88o32'49" West, along said North line, 908.70 feet to the
West line of the said East three quarters (E. 3/4) of the Northeast
quarter (N.E. 1/4) of the Southeast quarter (S.E. 1/4); thence South
0o05'05" West, along said West line, 692.44 'feet to the North line of
the said West half (W. 1/2) of the Southwest quarter (S.W. 1/4) of the
Northeast quarter (N.E. 1/4) of the Southeast quarter (S.E. 1/4); thence
S. 88o 49'19" W., along said North line 334.32 feet to the West line of
the said West half (W. 1/2) of the Southwest quarter (S.W. 1/4) of the
Northeast quarter (N.E. 1/4) of the Southeast quarter (S.E. 1/4); thence
South 0o05,54" West, along said West line, 591.86 feet to the said
Northerly apparent ultimate right of way line of State Road 806; thence
North 89041'34" East, along said ultimate right of way line, 1240.78
feet; thence North 44o22'43" East 35.55 feet to the said Point of
Beginning.
LESS that parcel conveyed to Lake Worth Drainage District by Quit Claim
Deed recorded in Official Record Book 3292, Pages 941 and 942 of the
Public Records of Palm Beach County, Florida.
ALSO LESS AND ExcEPT Right of Way conveyed to Palm Beach County by Right
of Way Warranty Deed, dated March 31, 1988, recorded September 22, 1988
in Official Record Book 5816, Page 133, Public Records of Palm Beach
County, ~lorida.
File No.: 18255.00004
SKETCH OF DESCRIPTIONG
PROPOSED UTILITY EASEMENT
PORTION OF THE SOUTHEAST ONE-QUARTER (SE1/4) OF
SECTION 14, TOWNSHIP 46 SOUTH, RANGE 42 EAST
CITY OF DELRAY BEACH, PALM BEACH COUNTY, FLORIDA SCALE: 1"=80'
SURVEY NOTES:
1. THIS SKETCH DOES NOT REPRESENT A BOUNDARY SURVEY
2. LANDS SHO~N HEREON WERE NOT ABSTRACTEO BY SI-~H. 03
DROTOS & ASSOClAI~iS FOR RIGHTS-OF-WAY. EASEMENTS. :
OWNERSHIP. OR OTHER INSlRUMEHTS OF' RECORD. CO
,3. BEARINGS StiOWN HEREON ARE ASSUMED AND ARE
RD.A'IIVE TO THE WEST RIGHT-OF-WAY MNE OF MILITARY TRNL, ~ i
SAID UNE BEARS SOUTH 01'24'02" ~.
,. mmooucno,s o~ n.s s~c. ,.£ .o; v, uo u,u~ss , vi
TRACT 'C' P NT OF'
(87.110.00 SO Fl') ~ CS~MirNCEMENT
(2.00 ACRES) i,~ soumc~s~ CORNgR
~0.00' ~,,,6000/ S£CTION 14, 1Y/P. 46 SOU'
i
. . , -'
:S88'05 35 W-" '~. 501'54'25"E ;
15.00' 15.64°
LAND DESCRIPTION
A PORTION OF THE SOUTHEAST ONE-QUARTER (SE1/4) OF SECTION 14, TOWNSHIP 46 SOUTH. RANGE'
42 EAST. PN.U BEACH COUNTY, FLORIDA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMt4ENCING AT THE SOUTHEAST CORNER OF I'HE NORTH~ ONE-QUARTER OF SND SECTION 14;
THENCE SOUTH 88'0§'55' WEST. 93.88 FEET l'O THE WEST RIGHT-OF-WAY LINE OF MiLiTARY I'RNL
(STAT~ ROAD 809);
THENCE SOUTH 01'24°02. EAST ALONG SAID WEST RIGHT-OF-WAY UNE, 80.00 FEET TO THE SOUTH
RIGHT-OF-WAY UNF OF THE LAKE WORTH DRAINAGE DISTRICT CANAL g-33 AS; DESCRIBED IN OFFICIAL
RECORDS BOOK 5292, PAGE 94.1 OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA;
THENCE SOUTH 88'05°55' WEST ALONG SAID SOUTH RIGHT-OF-WAY UNE, 25~.29 FEET TO THE POINT
OF BEGINNING;
THENCE SOUTH 01'54'25' EAST, 17.02 FEET;
THENCE SOUTH 88'05',35' WEST, 11.00 FEET;
THENCE: SOUTH 01'54-'25' NAb-r, 15.64 FEET;
THENCE SOUTH 88'05'35' WEST, 15.00 FEET;
THENCE NORTH 01'54'25" WEST, 52.66 FEET;
THENCE NORTH 88'05'55' EAST, 24.00 FEET TO THE POINT OF BEGINNING.
SAID LANDS LYING IN THE CITY OF' D£LRAY BEACH, PALM BEACH COUNTY, FLORIDA, CONTNNING 612
SQUARE FEET, MORE: OR LESS.
FOR THE FIRM, BY:
MICHAEL D. ROSE
PRO~.cr NO:. ~e-oale PROFESSIONAL SURVEYOR AND IdAPPER
~z w~mib WS~SUT.DW~ FLORIDA REGISTRATION NO. 3998
CERTIFICATE OF AUTHORIZATIOH NO. LB 6456
SKETCH OF DESCRtF110N i4DR 5/20/9~ HONE uDR t~ 11, r,M~W~MI I~-~lte 110 · ft. Levde~lale,
RL:;~ONS DV~ DA~I[ FB/PG CHKD m: s54-77~-7s04 · r~.~
I:llY OF BIll. RAY ilEAl:It
CiTY ATTORNEY'S OFFICE ~oo ~w ,~ ^w~. ~.^~.~^c., ~,.o.~^ ~..
TELEPHONE 561/243-~r~' ~~~[4755
DELRAY BEACH
~ MEMORANDUM
TO: City Commission
FROM: Brian Shutt, Assistant City Attorney
SUBJECT: Amie Cla~k v. City of Delm~Beach
This case arises out of an alleged trip and fall occurring on the City's tennis courts on
December 8, 1994 while Amie Clark was participating in the City's a~erschool program.
The Plaintiff alleges that she was allowed to play tennis while wearing the wrong type of
shoes, which resulted in be~ tripping and f311ing on the tennis courts.
The Plainti~ alleges peri,anent damages to her knee. The Plaintiff has filed a demand for
judgment in the amount of $85,000.00, including attorney's f~es and costs.
Our ofl~ce recommends denial of the demand tbr judgment.
By copy of this memo to David Harden, City Manager, our office requests that the
Plainti~s offer of settlement be placed on the City Commission agenda of September 8,
1998.
Please call if you have any questions.
David Harden, City Manager
Alison Hasty, City Clerk
ch'kdcn.com
[IT¥ OF I]ELRI:I¥ BEI:I£H
CITY ATTORNEY'S OFFICE
TELEPHONE 561/243-~;q ~i~1~[4755
DELRAY BEACH
MEMO~NDUM
'llll~''''' DATE: August21, 1998
TO: City Commission
1993
FROM: Brian Shutt, Assistant City Attorney
SUBJECT: Settlement of Milazzo v. City of Delray Beac~ et al
This case arises out of an automobile accident that occurred at the intersection of N.E
Street and northbound [bderal highway on April 20, 1996. The driver of the westbound
vehicle claimed that he did not see the stop sign because it was obscured by a tree. The
driver hit Plainti~s vehicle going no~hbound on Federal highway. The police investigation
concurs that the tree blocked the driver's view of the stop sign. Where a tree or shrub is on
private prope~y but hangs over the right-of-way causing an obstruction of the stop sign, or
the stop sign is otherwise obstructed, the City has a duty to remove the obstruction or warn
of the dangerous condition. Bailey D~Dist. v. Stark, 526 So.2d 678 (Fla. 1988).
The Plaintiff sustained injuries to his lei1 knee, right hand~ neck and a deep laceration to his
head. The Plaintiff initially had neurological complications and currently has di~culties
gripping objects with his right hand. Plaintiffis a waiter.
The Plaintiff alleges that he has incurred the following damages: $7,300.00 in lost wages,
$20,300 in medical expenses, $1,408 tbr a rental car and $12,274 [hr damage to his vehicle.
The driver and property owner have agreed to settle this case Ibr a total of $40,000.00.
Mr. Milazzo, through his attorney, has oflbred to settle this case with the City for
$15,00000, which includes all attorney's [bes and costs. If the Commission accepts this
offer, the City Attorney's O~ce will obtain a complete release from all pa~ies for all claims.
Our ot~ce recommends acceptance of this offer. The City% Risk Manager, Frank Babin,
and Steve Hanzman, adjuster for Gallagher Bassett, concur in our recommendation.
B~ copy of this memo to David Harden, City Manager, our o[~ce requests that this matter
be placed on the September g, 199g City Commission agenda Please call if you have any
questions.
cc: David Hardem City Manager
Alison Harry, City Clerk
5'. ,e.
Agenda Item No.: SP--J~3'
AGENDA REQUEST
Date: September 04~ 1998
Request to be placed on:
Consent AEenda
XX ~-a-~T-~~ Special Agenda Workshop Agenda
When: September 08~1998
Description of agenda item (who, what, where, how much):
Purchase award - Two (2) Dell Power EdKe Servers from Dell Computer Corporation
at a total cost of $29,721 via the Florida State Contract #250-040-99-1.
Funding from account codes~ 441-5161-536-64.11 - $17,849 and
334-6112-519-64.11 - $11,872 .
ORDINANCE/ RESOLUTION REQUIRED: YES/NO Draft Attached: YES/NO
Recommendation: Purchase award to Dell Computer Corporation at a t~al amount
of $29,721 via.the Florida State Contract #250-040-99-1
Determination of Consistency s
City Attorney Review/ Recommendation (if applicable):
Budget Director Review (required on all items involving expenditure
of funds):Funding ~ NO~ ~/~
available:~ ~ %k)'JC~~f~_~~o~--x-~rv~~
Funding alternatives: (if applicable)
Account No. & Description:
Account Balance:
City Manager Review:
ApprovedHold Until: for agenda: ~ NO~%/~'~
Agenda Coordinator Review:
Received:
Action: Approved/Disapproved
MEMORANDUM
TO: David Harden, City Manager ~...~
FROM: Jacklyn Rooney, Purchasing Supervisor
THROUGH: Joseph Saf~~ceDirector
DATE: September 04, 1998
SUBJECT: DOCUMENTATION - CTIY COMMISSION MEETING
SEPTEMBER 08, 1998 - PURCHASE AWARD - TWO (2) DELL
POWER EDGE SERVERS FROM DELL COMPUTER CORP.
Item Before Commission:
City Commission is requested to approve the purchase of two (2) Dell Power Edge Servers from
Dell Computer Corporation for a total amount of $29,721 via the Florida State Contract #250-
040-99-1.
Background:
These server upgrades are needed in two separate departments within the City. One is for the
City Attorney's Office which is experiencing poor performance due to growth with their network
and added overhead of supporting the 32 CD ROM drive for Law Library, and second is in the
Public Works Complex to upgrade their current application that supports the Hansen
Infrastructure System and functioning as a network backup domain server for MIS, which is
obsolete.
The Information Systems Manager recommends this purchase as stated in the attached memo
dated September 03, 1998.
This equipment is available from the Florida State Contract #250-040-99-1 awarded to Dell
Computer Corporation at a total amount of $29,721. See attached quotation from Dell Computer
Corporation dated September 02, 1998.
Recommendation:
Staff recommends the approval of the purchase of two (2) Dell Power Edge Servers from Dell
Computer Corporation for a total amount of $29,271. Funding for the ESD Server from Water &
Sewer Fund account code #441-5161-536-64.11 for the amount of $17,849, and City Attorney's
server from Repair and Replacement Fund account code #334-6112-519-64.11 for the amount of
$11,872.
Attachments:
Memo From Information Systems Manager
Quote From Dell Computer Corporation
Memomndum
To: David T. Harden, City Manager
From: Richard Zuccam, Information Systems Managef/~
Date: September 3, 1998
Subject: Documentation for City Commission Meeting 9/8/98
Approve Purchase of Two (2) Dell Power Edge Servers
Action
Requesting approval to purchase one (1) Dell Power Edge 6300 Server at a cost of $17,849 to
replace the existing, obsolete, server currently supporting the ESD environment and one (1) Dell
Power Edge 2300 Server at cost of $11,872 to replace the existing obsolete server supporting
the City Attorney's Office. Funding for the ESD Server to come from the Water & Sewer Fund
441-5161-536-64-11 and funding for the City Attorney Server to come from the repair and
replacement fund 334-6112-519-64.11, approved in the Fiscal 97-98 Budget. State contract
number 25004099-1.
Backaround
~SD Server
In addition to supporting the entire Public Works Complex the current obsolete application server
is also supporting the Hansen Infrastructure System and functioning as a network backup domain
server for MIS. This backup domain controller provides network Ingin services for all users in
the Public Works Complex, keeps backup copies of all enterprise security information and
provides specific network management options. Due to the key role played by these types of
servers (MIS & ESD) on the enterprise network is a good idea to keep all domain controllers on
the same operating system level. The resource demand on the current server drastically
increases as users access the Hansen system (Oracle Database) and as a result a server
upgrade is needed to support the software and expanded growth.
City Attomev
The current server in the City Attomey's Office is experiencing poor performance due to growth
with their network and the added overhead of supporting the 32 CD ROM drive to support the
Law Ubrary (Westlaw). The now server would be used to support their LAN with improved
performance and reliability while their current server will be used as a CD ROM server to support
their Law Ubrary. These changes will improve performance in both areas and allow for future
growth.
lRecommendation
MIS recommends the purchase of the tow (2) Dell Power Edge Servers to increase application
performance, qualify for 'Critical Support' with four hour response 24 hours per day, and
prevent loss of network functallty.
co: Joseph Safford, Director of Finance
Bg/SZ/g8 1G:41:45 DELLFAX 4-15-> +48724371GG DELL COXPU?ER CORP Page BBZ
QUOTATION
GREGORY WELCH September 2 1998
CITY OF DELRAY BEACH
100 N W 1ST AVE
DELRAY BEACH, FL 33444
SKU # QTY DESCRIPTION UNIT EXTENDED
PRI CE PRI CE
220-0440 I Dell PowerEdge 6300, 17,849.00 17,849.00
400MHz/512K,
Redundant Power Supplies
310-0017 I Microsoft System Mouse with
Driver Disks
Factory Installed
310-0181 I Tower Option, Rubber Feet for
Dell PowerEdge 4300/6300,
Factory Install
310-7004 I Windows Performance 104 Key
Keyboard, Factory Installed
311-0476 I 512MB RAM, 4 X 128MB EDO DI~qs
for Dell PowerEdge 6300,
Factory Install
311-0485 I 6 Bay Hard Drive Backplane,
1.6" or 1.0", for Dell
PowerEdge 6300,
Factory Install
311-0561 I Dell PowerEdge 6300, 400MHz,
512K, Second Processor,
Factory Install
313-0252 I 14/32X SCSI CD ROM, for Dell
PowerEdge 6300, 1st CD Option,
Factory Install
320-0051 I Dell 800F Series, 15", Model
No 828FI with 13.78" Viewable ..................
For your convenience, we have listed your sales representative, Sales Representative
your quote number and your customer number which will provide
you w~th faster service when you are ready to place your order. Ti~OY FLORES
Quote #: 20547360
Pdces and tax rates ere subject to change.
Buaine~ and Pemonal Lem~ng provided by Dell Financial Se~t~, an independent entity. CUStomer #: 1015 93 4
Leasing Documentation Fee $55 ....................
DELL MARKETING L.P. ONE DELL WAY, ROUND ROCK, TX 78682
(800) 981-3355 EXT 67461 (800) 433-9527 S~T,~.S REP FAX
09/8Z/98 1&:42:21 DELLFAX 4-15-> +487~437166 DELL COMPUTER CORP Page 883
QUOTATION
GREGORY WELCH September 2 1998
CITY OF DELRAY BEACH
100 N W 1ST AVE
DELRAY BEACH, FL 33444
SKU # QTY DESCRIPTION UNIT EXTENDED
PRICE PRICE
Image Size, Color Monitor
340-0477 I Seagate Bup Exec v7.0 for NT &
v7.5 for NetWare-Sngl Server
Edition, CD ROM, Eng/Fr/Ger/Sp
/Japanese, Non-Factory Install
340-0596 I 9GB LVD SCSI Smart Hard Drive,
7200RPM, for Dell
PowerEdge 6300,
Factory Install
340-0608 I 1.44MB, 3.5" Floppy Drive~
for Dell PowerEdge 6300,
Factory Install
340-0610 I 12/24GB DDS-3 Autoloader
(192GB Total Capacity) Tape
Backup for Dell PowerEdge 6300
Factory Install
340-0634 I RAID 5 Hard Drive Config 95,
for Dell PowerEdge 6300, -
Factory Install
340-0825 I 3 X 9GB LVD SCSI Smart Hard
Drives, 7200RPM, for Dell
PowerEdge 6300,
Factory Install
365-1234 I ReadyWare Factory Installation
S ervi ce
For your convenience, we have listed your saJes representative, Sales Representative
your quote number and your customer number which will provide
you with faster service when you are ready to place your order. TROY FLORES
Quote #: 20547360
Prices and tax rates are subject to change.
Bu~ne~ and Pemo~al L_~_ ng providm:l by Dell Flnm~ial Se~vl~e~, an independent entity. Customer #: 1015934
Le~sing Documen~tio~ Fee $55
DELL MARKETING L.P. ONE DELL WAY, ROUND ROCK, TX 78682
(800) 981-3355 EXT 67461 (800) 433-9527 SALES REP FAX
Bg/OZ/gB 16:4Z:57 DELLFAX 4-15-> +407Z437166 DELL COMPO?ER CORP P~gc 884
QUOTATION
GREGORY W~LCH September 2 1998
CITY OF DELRAY BEACH
100 N W 1ST AVE
DELRA¥ BEACH, FL 33444
SKU # QTY DESCRIPTION UNIT EXTENDED
PR/CE PRI CE
430-0071 I IBM Token ~ing Adapter
for Dell PowerEdge
2100/2200/4100/6100,
Factory Install
430-2185 I Microsoft NTS 4.0 on CD,
10 Client Access Licenses,
OEM Packaging, US Version,
Factory Install
460-0784 I TSR, BALLENGER, SCOTT (ID# 112
460-0889 I PowerEdge Expandable RAXD.
Controller (PERC), 32MB ECC,
I Internal/1 External Channel,
Factor~ Install
900-2730 I 4-Hour/Sxl0, Parts and Labor .00 .00
On-Site Service, Initial Year
Wang
900-2732 I 4-Hour/Sxl0, Parts and Labor .00 .00
On-Site Service, 2 Year
Extended, Wang
900-4915 I BusinessCare Initial Year, .00 .00
DirectLine - A~vanced Network
Operating S~stem Phone Support
Quantity 5 Resolutions
******** 0 # 250-040-99-1
For your convenience, we have listed your saJes representative, Sales ~epresentative
your qu. ote number and your customer number which will provide
you w~h faster service when you are ready to place your order. ~JDY FLOSSES
Quote #: 20547360
Prices and tax rates are subject to change. Customer #: 1015 934
Bualne~ and Pemonal Leeelng pmvtded by Dell Financial Semtc~, an inde~endent en~y.
Leeeing Documentation Fee $55
D~.T.T. HAP, KE?TNG T..p. ON~ D~.T.T. W~¥, ]~3b't~ ~3C~, ~ 78682
(800) 981-3355 ~-XT 67461 (800) 433-952'/ S~T.~.S REP F~
89/82/98 16:43:59 DELLFAX 4-15-> +4872497166 DELL COHPOTER CORP Page 886
l_ QUOTATION
GREGORY WELCH September 2 1998
CITY OF DELRAY BEACH
100 N W 1ST AVE
DELRA¥ BEACH, FL 33444
UNIT EXTENDED
SKU # QTY DESC~tI PTION PRICE PRICE
220-0434 I Dell PowerEdge 2300 Base, 11,872.00 11,872.00
400MHz Processor,
with 512K Cache
310-0016 I Logitec System Mouse
w/Driver Disks,Factory Install
310-7004 I Windows Performance 104 Key
Keyboard, Factory Installed
311-0431 I Dell PowerEdge 2300, 400MHz,
512K, Second Processor,
Factor~ Install
311-0440 I 512MB RAM, 4 DIMMs, for Dell
PowerEdge 2300,
Factory Install
311-0446 I 1X6 Hot Pluggable Backplane
for Dell PowerEdge 2300,
Factory Install
313-0264 I 14/32X SCSI CD-ROM, for Dell
PowerEdge 2300, Black,
Factory Install
320-0051 I Dell 800F Series, 15", Model
No 828FI with 13.78" Viewable
Image Size, Color Monitor
340-0477 I Seagate Bup Exec vT.0 for NT &
v7.5 for NetWare-Sngl Server
Edition, CD ROM, Eng/Fr/Ger/Sp
/Japanese, Non'Factory InStall ..........................
For your convenience, we have listed your sales representative, Sales Representative
your quote number and your customer number which will provide
you with faster service when you are ready to place your order. TROY FLORES
Quote #: 20548298
Prices and tax rates are subject to change.
Busine~ and pemomal L~.~Ung pro%4ded by Dell Finand~al Servtoes, an lnde~endent entJty' Customer #: 1015934
Leasing Documentation Fee =$55 ........
DELL MARKETING L.P. ONE DELL WAY, ROUND ROCK, TX 78682
(800) 981-3355 EXT 67461 (800) 433-9527 SA?.~.S REP FAX
89/0Z/98 1&:44:95 DELLFRX 4-15-> +487Z4371&6 DELL COHPO?ER CORP Page 88?
QUOTATION
GREGORY WELCH September 2 1998
CITY OF DELRAY BEACH
100 N W 1ST AVE
DELR~Y BEACH, FL 33444
UNIT EXTENDED
SKU # QTY DESCRIPTION PRICE PRICE
340-0550 I RAID 5 Hard Drive Config,
for Dell PowerEdge 2300,
Factory Install
340-0551 I 1.44MB Floppy Drive for Dell
PowerEdge 2300,
Factory Install
340-0568 I 12/24GB DAT Tape Backup for
Dell PowerEdge 2300, Black,
Factory Install
340-0574 I PowerEdge Expandable RAID.
Controller (PERC), SCSI-3/UW,
32MB/ECC, Dual Channel,
Factory Install
340-0931 I 9.1GB LVD SCSI Hard Drive
for Dell PowerEdge 2300
Server, Factor~ Install
340-0931 I 9.1GB LVD SCSI Hard Drive
for Dell PowerEdge 2300
Server, Factory Install
340-0931 I 9.1GB LVD SCSI Hard Drive
for Dell PowerEdge 2300
Server, Factory Install
365-1234 I ReadyWare Factor~ Installation
Service
For your convenience, we have listed your s~es representative, Sales Representative:
your quote number and your customer number which will provide
you w~h faster se~ice when you ~e ready to place your order. TROY FLORES
Quote #: 20548298
Pdces and t~ ~tes are subject to change.
B~neea and Per~3mll I ~-..ing provicled ~ ~11Flnandal Sen~lc~, ~ I~eoenclent ~. Customer #: 1015934
Lea~ing Docurnen~don F~ $55
DELL MARKETING L.P. ONE DELLWA¥, ROUND ROCK, TX 78682
(800) 981-3355 EXT 67461 (800) 433-9527 SA?~S REP FAX ~
89/0Z/98 16:45:11 DELLFAX 4-15-> HO?Z43?166 DELL COMPU?ER CORP Page 808
QUOTATION
GREGORY WELCH September 2 1998
CITY OF DELRAY BEACH
100 N W 1ST AVE
DELRAY BEACH, FL 33444
UNIT EXTENDED
SKU # DESCRIPTION PRICE PRICE
430-0071 IBM Token P~ng Adapter
for Dell PowerEdge
2100/2200/4100/6100,
Factory Install
430-2185 Microsoft NTS 4.0 on CD,
10 Client Access Licenses,
OEM Packaging, US Version,
Factory Install
900-2730 4-Hour/Sxl0, Parts and Labor .00 .00
On-Site Service, Initial Year
Wang
900-2732 4-Hour/Sxl0, Parts and Labor .00 .00
On-Site Service, 2 Year
Extended, Wang
900-4915 BusinessCare Initial Year, .00 .00
DirectLine -Advanced Network
Operating System Phone Support
Quantity 5 Resolutions
This quote is subject to the terms of
the agreement signed by you and Dell, or
absent such agreement, is subject to the
applicable Dell standard terms of sale.
For your convenience, we have listed your sales representative, Sales Representative
your c[u. ote number and your customer number which will provide
you wrth faster service when you are ready to place your order. TROY FLORES
Quote #: 20548298
Prices and tax rates are subject to change.
Bu~ine~ and Pemonal Le~ing provid~ by Dell Financial SenSes, an Indel~ndent enl~y. Customer #: 1015934
I. seeing Documentation Fee $55
DELL MARKETING L.P. ONE DELL WAY, ROUND ROCK, TX 78682
(800) 981-3355 EXT 67461 (800) 433-9527 SAT.~-S REP FAX
AGENDA REQUEST
Request to be placed on: Date: September 8.1998
__ Regular Agenda
__ Special Agenda
__ Workshop Agenda
xxxx Consent Agenda When: September 1 $. 1998
Description of item ·
Authorization and approval to issue subsidy to four eligible applicants under the Delray
Beach Renaissance Program totaling 5; 65.850.00
ORDINANCE / RESOLUTION REQUIRED: YES/NO Draft Attached: YES/NO
Recommendation:
Staff recommends approval of subsidy award. Funds are to be awarded from the State
Housing Initiatives Partnership Program (SHIP) and Home Investment Partnership
(HOME) funds.
SHIP Total $ 55,850.00 Account # 118-1924-554-83.01
HOME Total $10,000.00 Account # 118-1923-55~4j83.01
Department Head S~gnature- ~~~~_~~
City Attorney Review/Recommendation (if applicable):.
Budget Director Review (required on all items involving expenditure of funds):
Funding Available: YES/NO
Funding Alternatives: (if applicable)
Account No. & Description:
Account Balance:
City Manager Review:
Approved for Agenda: YES/NO
Hold Until:
Agenda Coordinator Review:
Received:
Placed on Agenda:
Action · Approved/Disapproved
Memorandum
TO: David Harden, City Manager
FROM: Michael Simon, Interim Community Development Coordinator'~/~W'z'~
THRU: Lula Butler, Community Improvement Director f~ ~_~
DATE: September 8, 1998
SUBJECT: Delray Beach Renaissance Program Subsidy Request
ITEM BEFORE THE COMMISSION
City Commission authorization and approval to issue subsidy to four eligible applicants under
the Delray Beach Renaissance Program.
BACKGROUND
The Delray Beach Renaissance Program Memorandum of Understanding was approved by the
City Commission on January 23, 1996. In partnership with the Delray Beach Community
Development Corporation, the TED Center, the Community Redevelopment Agency, the
Community Financing Consortium, the Federal Home Loan Bank of Atlanta and the Delray
Beach Housing Authority, we are committed to providing homeownership opportunities to 80
homebuyers through new construction and acquisition/rehab beginning October 1, 1995 through
September 30, 1997. An agreement to extend the program for one additional year has been
approved by all partners and the City Commission.
Each potential homebuyer is required to attend a homebuyers seminar sponsored by the
Community Financing Consortium, Inc., the Renaissance Programs partner and first mortgage
lender. The seminar includes training and information on financial planning, credit and
borrowing, budgeting, fair housing issues, mortgage and closing costs and a comprehensive
glossary of real estate terms.
The Grant is secured by a Promissory Note/Second Mortgage approved by the City Attorney and
requires the applicant to maintain ownership/residence for a specified period accounting to the
amount of the Grant. Grant amounts less than $15,000 per unit are forgiven at a rate of 20% per
year for a period of 5 years and Grant amounts equal to or greater than $15,000 but less than
$40,000 per unit are forgiven at a rate of 10% per year for 10 years.
RECOMMENDATION
Staff is recommending City Commission approval to fund subsidy for the four eligible applicants
of the following property: Lot 1-2, Block 55, Town of Linton / $13,300.00
Lot 24, Block A, Memorial Park / $16,550.00
Lot 20, Block 6, Rosemont Park / $19,000.00
Lot 28, Block 8 / $17,000.00
s:\commun\renprg\comagend.doc
DELRAY BEACH RENAISSANCE PROGRAM
SUBSIDY REQUEST BREAKDOWN
NEW CONSTRUCTION NO CENSUS TRACT 68.02
NAME Kathleen Huebner
PROPERTY ADDRESS 208 SW 1 st Avenue. Delray Beach
LEGAL DESCRPTION S 75ft of Lots 1-3. Dickens CH Sub/Blk 55 Town of Linton
Plat Book 8 , Page 58
% OF AREA MEDIAN HOUSEHOLD INCOME 74 # IN HOUSEHOLD 1
COST OF EXISTING $51,000 COST OF REHABILITATION $11.300
PROJECT/SUBSIDY BREAKDOWN
FIRST MORTGAGE $ 52.200.00 First Bank of FlolSda
RATE 6.525 %
LTV 90.00 %
SECOND MORTGAGE $ Ci_ty of Delray. HOME
$ 13.300.00 City of Delray, SHIP
$ CRA of Delray
$ Housing Authority_
THIRD MORTGAGE $ Federal Home Loan Bank
GRANT $ HTF "A"
APPLICANT FUNDS
Pre-paids $1.000.00
Escrowed $
Paid at closing $1.160.00
TOTAL TRANSACTION $67,660.00
s:\commun~renprg\subrest.doc
DELRAY BEACH RENAISSANCE PROGRAM
SUBSIDY REQUEST BREAKDOWN
NEW CONSTRUCTION YES CENSUS TRACT 68.01
NAME Pollyann Campbell
PROPERTY ADDRESS XXX NW 14th Avenue, Delray Beach
LEGAL DESCRPTION Lot 24, Block A. Memorial Park
Plat Book 20 , Page 56
% OF AREA MEDIAN HOUSEHOLD INCOME 54 # IN HOUSEHOLD 2
COST OF CONSTRUCTION $77,050 COST OF LOT $9.000
PROJECT/SUBSIDY BREAKDOWN
FIRST MORTGAGE $ 69.500.00 CFC Bank
RATE 6.500 %
LTV 80.77 %
SECOND MORTGAGE $. City of Delray. HOME
$ 16.550.00 City. of Delray. SHIP
$ CRA of Delray
$ Housing Authority
THIRD MORTGAGE $ 3.000.00 Federal Home Loan Bank
GRANT $ HTF "A"
APPLICANT FUNDS
Pre-paids $ 305.00
Escrowed $ 100.00
Paid at closing $ 2.402.00
TOTAL TRANSACTION $91.857.00
s:\commun~renprg\subrest, doc
J L JNCOLN
,~ I~ ~ · ROOSEVELT
'AVE
AVE lOTH
DELRAY BEACH RENAISSANCE PROGRAM
SUBSIDY REQUEST BREAKDOWN
NEW CONSTRUCTION YES CENSUS TRACT 66.02
NAME Audrey McGrady
PROPERTY ADDRESS XXX SW 6th Avenue. Delray Beach
LEGAL DESCRPTION Lot 20, Block 6. Roserrtont Park
PlatBookl3 . Page 60
% OF AREA MEDIAN HOUSEHOLD INCOME 40 # IN HOUSEHOLD 4
COST OF CONSTRUCTION $77.050 COST OF LOT $10.600
PROJECT/SUBSIDY BREAKDOWN
FIRST MORTGAGE $ 65.500.00 CFC Bank
RATE 6.500 %
LTV 74.65 %
SECOND MORTGAGE $ 10.000.00 City of Delray. HOME
$ 9,000.00 City of Delray. SHIP
$ CRA of Delray
$ 3.175.00 Housing AuthOrity
THIRD MORTGAGE $ 2.825.00 Federal Home Loan Bank
GRANT $ HTF "A"
APPLICANT FUNDS
Pre-paids $ 305.00
Escrowed $ 100.00
Paid at closing $ 2.445.00
TOTAL TRANSACTION $93,350.00
s:\commun~'enprg~subrest.doc
DELRAY BEACH RENAISSANCE PROGRAM
SUBSIDY REQUEST BREAKDOWN
NEW CONSTRUCTION NO CENSUS TRACT 66.04
NAME Larry. and Arnithia Phillips
PROPERTY ADDRESS 703 Chatteo. u Place. Delray Beach
LEGAL DESCRPTION Lot 28. Block 8. & W 10ft of Par A
% OF AREA MEDIAN HOUSEHOLD INCOME 42 # IN HOUSEHOLD g
COST OF EXISTING UNIT $102.300 COST OF REHABILITATION $ 9.015.00
PROJECT/SUBSIDY BREAKDOWN
FIRST MORTGAGE $ 85.000.00 Community. Finance Consortium
RATE 6.725 %
LTV 78 %
SECOND MORTGAGE $. City_ of Delray. HOME
$ 17.000.00 City of Delray. SHIP
$ CRA of Delray
$ 3.000.00 Housing Authority_
THIRD MORTGAGE $ Federal Home Loan Bank
GRANT $ HTF "A"
APPLICANT FUNDS
Pre-paids $ 305.00
Escrowed $ 2.273.00
Paid at closing $ 1~398.00
TOTAL TRANSACTION $108.976.00
s:\commun~renprg\subrest.doc
Agenda Item No.:
AGENDA REQUEST
Date: August 28, 1998
Request to be placed on:
X Regular Agenda Special Agenda Workshop Agenda
When: September 8, 1998
Description of agenda item (who, what, where, how much): Request approval
for David Miller~ archite~t, to make..presentation to City Commission on several
design schemes for marina.
ORDINANCE/ RESOLUTION REQUIRED: YES, O/ Draft Attached: YES/NO
Recommendation: Request approval.
Department Head Signature:
Determination of Consistency with ~prehensive Plan:
City Attorney Review/ Recommendation (if applicable):
Budget Director Review (required on all items involving expenditure
of funds):
Funding available: YES/ NO
Funding alternatives: (if applicable)
Account No. & Description:
Account Balance:
City Manager Review:
Approved for agenda:
Hold Until:
Agenda Coordinator Review:
Received:
Action: Approved/Disapproved
D£LRAY BEACH
100 N.W. 1st AVENUE · DELRAY BEACH, FLORIDA 33444 · (561) 243-7000
Ali-America City ~ E~ O :~ D U~
,~ TO: David T. Harden, City Manager
1993 FROM: ~ Robert A. Barcinski, Assistant
City
Manager
DATE: September 3, 1998
SUBJECT: AGENDA ITEM CITY COMMISSION WORKSHOP
SEPTEMBER 8,1998 STRATEGIC PLAN - PARKING EAST OF
THE INTRACOASTAL
At the Parking Management Advisory Board meeting on August 27, 1998 the attached
strategic plan of action was approved. The plan was developed based on direction I
received from the Board at their July, meeting and my review of the 1992 and 1988
master plans.
With assistance of other staff personnel, work has begun on the inventory and should be
completed within the next 2-3 weeks. I have also sent letters of inquJxy to four (4)
property owners to determine if there is any interest in leasing surface parking.
I am seeking City Commission consensus approval of this plan. If approval is received,
I will begin to prepare the RFP for consultant services.
RAB/tas
File:u:sweeney/agenda
Doc:090398a.doc
TO: Parking Management Advisory Board
FROM: ~,~'obert A. Barcinski, Assistant City Manager
DATE: August 24, 1998
SUBJECT: Proposed Strategic Plan of Action/Parking East of the Intracoastal
Based on input and direction received from the Board at your last meeting and my
review of the 1988 and 1992 Parking Master Plans, the following strategic plan of action
for parking east of the intracoastal is being proposed for the Board's approval.
· Complete inventory update of all public and private parking lots east of the
intracoastal to include parking requirements for private lots.
· Identify private lots with the potential to lease additional surface parking and, make
contact with owners to determine interest. ~,~t (.~J,~.x. on ~', Le
· Pursue agreements for leasing surface lots if initial interest from lot owners.
· Reconsider recommendation to meter public parking spaces on Atlantic Avenue and
side streets, if additional surface parking can be obtained.
· Hire a parking consultant to update parking needs, which is time and seasonally
sensitive, and to perform a feasibility study for a parking garage to include need,
cost, location, and financing options.
RAB/tas
File: u : sweene y/parking
Doc:082798. sum
Agenda Item No.' ~/"~'
AGENDA REQUEST
Request to be placed on: Date:
__ Regul~ Agenda '
Special Agenda
~ Workshop Agenda
Consent Agenda ~en:
Description of item (who, w~t, where, how mu¢h):~¢~~
(Ex~ple: Request from Atl~tic High School for $2,000 to ~ds project graduation).
O~ANCE / ~SOLUTION ~Q~D: YES--Draft Attached: YES~O
Recommendation:
(Example: Recommend approval
with funding from Special Events Account No. 001-3333-555-44.55)
Department Head Signature:
City Attorney Review/Recommendation (if applicable):
Budget Director Review (required on all items involving expenditure of funds):
Funding Available: YES/NO
Funding Alternatives: .(if applicable)
Account No. & Description:
Account Balance:
City Manager Review:
Approved for Agenda: E~O
Hold Until:
Agenda Coordinator Review:
Received:
Placed on Agenda:
Action: Approved/Disapproved
MEMORANDUM
DATE: September 3, 1998
TO: David Harden, City Manager ;j,~
FROM: Lula Butler, Director, Community Improvement
RE: Tree Inventory and Tree Care Management Plan -
Executive Summary Report
ITEM BEFORE THE COMMISSION:
Consideration of staffs presentation on the Tree Inventory and Tree Care Management
Plan Report resulting from ACRT Environmental, Inc. inventory and proposed
management plan.
BACKGROUND:
See attached executive summary report as provided by staff.
TREE INVENTORY AND TREE CARE MANAGEMENT PLAN
EXECUTIVE SUMMARY
BACKGROUND
Since 1987, the City of Delray Beach has dedicated considerable resources to the
beautification of its parks and roadways. This landscaping represents a tremendous
investment which needs to be managed to prevent the loss of this asset. The City has
literally planted thousands of trees which need to be maintained systematically on an
established schedule. A comprehensive tree care management program is needed
to help improve Delray Beach's short and long-term tree maintenance planning to
prevent potentially hazardous situations and the loss of trees.
In 1996 the City of Delray Beach applied for and received funding through the Urban
and Community Forestry Grant for the preparation of a tree inventory and tree care
management plan. The Division of Forestry contributed $8,650.00 and the City's portion
was $10,445.00.
ACRT Environmental, Inc., was selected to conduct the inventory and write the
management plan due to their experience with both forestry management and
computer applications. One of the objectives was to be able to upload the data to the
City's Hansen software, which we have been using to inventory and document city
infrastructure. By using the Hansen software, other departments will be able to cross
reference tree locations for any conflicts with data they are tracking.
Only trees maintained by the City were included in the inventory. These are
typically located in parks and in roadway medians where beautification projects
have been implemented. The exact location of each tree was determined using
Global Positioning Systems (GPS) which derives coordinate locations from signals
received from satellites circling the earth. All of the tree data was recorded in the field
using a hand-held computer, which was later transferred to a disk to be uploaded into
the City's data base.
OBSERVATIONS
The current inventory and Tree Care Management Plan provides data on 6,500
trees. Our base contract with ACRT only covered 5000 trees. One change order has
already been processed to inventory 1500 additional trees, which we thought would
complete the inventory, but it didn't. The report will need to be revised to include the
data on an estimated 1200 additional trees. ACRT, Inc. will return in a few weeks and
update all documents upon completion.
Based on the current data, however, we are still able to break the information down to
digestible bites. Some of the more quantifiable facts are listed below:
· Of the 6,500 trees inventoried, 3200 are located in our parks and 3300 are located
along streets and in medians, which is a fairly equal distribution.
· The City maintains 3100 palm trees and 3400 canopy trees.
· 84 species and varieties of trees exist in Delray's parks. The 3 dominant species
being Sabal Palms, Live Oak and Coconut palms. ACRT recommends that the City
minimize the use of tree genera exceeding 20% of the total tree population and
individual tree species that exceed 10%. Based on the results of this inventory,
future plantings of Sabal Palms should be restricted. (Table 2)
· 44 species were recorded in the rights-of-way and medians. The 3 dominant
species being the Sabal Palm, Black Olive and Royal Palm. (Table 1)
· Approximately 61% of the City's trees have a 1"-6" trunk diameter, while 31% have a
7"-12" diameter and the rest have a diameter greater than 13 inches. This is
reflective of the many trees that have been planted over the last 10 to 12 years. Our
tree population is not well distributed in age. Since large trees are particularly
valuable for shade and evapotranspiration, energy conservation through cooling is
not being fully realized in most areas. It is essential that the young trees of today
are maintained to become large in the years to come. It is also important to protect
large shade trees wherever possible.
· The majority of our tree population was evaluated to be in good condition and 14%
are in fair condition., i.e. 98% are rated fair or better. Trees graded fair and good
can be expected to live well into the future with systematic maintenance.
RECOMMENDATIONS
ACRT has stated in their Final Report that" a comprehensive tree management
program requires a commitment to meet defined goals." ACRT recommends that Delray
Beach adopt the following mission statement:
The goal of Delray Beach's Urban Forestry Program is to manage the municipal forest of
Delray Beach in a cost effective manner by providing to the tax payers innovative and effective
leadership and services aimed at improving the health, composition and structure of the urban
forest. The benefits of this program include an improved quality of life for the citizens of
Delray beach, both in aesthetic and economic value. The City of Delray Beach is committed to
providing residents with tree planting programs, and with high quality maintenance for existing
trees. Delray Beach's Urban Forestry Program will respond to the needs and expectations of
the taxpayers, including public safety and increased value of trees and real estate. The Urban
Forestry Program will help to make the City a more desirable place to live and work.
The basic services of a comprehensive urban forestry program include
maintaining safety, maintaining the health of the trees, perpetuating the urban
forest through the planting of trees, and managing the urban forest using policies,
ordinances and budgets acceptable to the City administration and residents.
Public Safety
Trees were examined for potential hazards and recommendations were made for either
removal or pruning. Those slated for removal or pruning were further prioritized with a
ranking of 1, 2 Or 3, with 1 being the most hazardous.
Fortunately we only have 1 tree that has a priority 1 removal classification. There are 31
trees with a Priority 2 removal classification and 4 with a priority 3 removal status.
Relative to pruning, there are 4 trees with a priority 1 prune, and 58 priority 2 prune.
A large number of trees, however, require clearance trimming for vehicular or
pedestrian traffic. This information is broken down into sign clearance, traffic clearance
and pedestrian clearance. The report identifies that 6 trees obstruct stop signs or other
traffic control devices. Another 299 trees obstruct streets causing potential problems for
vehicles and 243 trees present problems for pedestrians due to Iow branches over
sidewalks. The number of trees presenting clearance problems is due to Iow crowns
that would have benefited from previous pruning. It is much easier to train young trees
to produce mature trees with raised symmetrical crowns that do not interfere with traffic
or pedestrians. All palms and trees not included in priority pruning are then scheduled
for routine pruning and training.
Maintainin~ the Health of the Urban Forest
Maintaining trees with routine pruning schedules, and insect and disease management
where needed will help to increase the longevity of the urban forest and resource future
expenditures for correction or removal of hazardous branches or trees.
ACRT contends that small trees require pruning twice as often as large trees.
Systematic pruning costs were figured as every three years for small trees and
every six years for large trees. The first trees that need to be addressed are the
hazardous trees. Once they have been trimmed a routine pruning program
should begin as soon as financially possible to focus the training on young street
trees. Training younger trees reduces future tree care costs.
It was noted in the management plan that there are over 259 locations where tree
stakes and wires need to be removed from trees. If stakes are not removed shortly after
the first year, the tree will become dependent on the stakes and its own support
structure will not develop properly. Removal of tree stakes at the appropriate time will
help strengthen the structural soundness of Delray's trees.
Perpetuating the Urban Forest
The future of the urban forest depends on an active, progressive replacement
and reforestation program. While the City currently has a good stock of young trees,
as they mature they will need to be replaced with new plantings to maintain a wide
range of ages within the tree population. This can be accomplished through the
replacement of trees as they die and new plantings in neighborhoods. Most of the parks
and high volume roadways are well planted, new ground can be gained through the
continuation of adopt-a-tree programs within neighborhood associations.
RESOURCE RE(~UIREMENTS
ACRT has provided tables detailing the proposed budget for tree maintenance. Their
budget assumes that all work is contracted privately. In their calculations hourly
prices to contract the work are $35 and $38, respectively for pruning and removal.
Other assumptions made are that small tree pruning requires one-half hour per tree and
large tree pruning is 2.2 hours per tree. All trees would be maintained within the
recommended cycle of 6 years for large trees and 3 years for small trees.
ACRT's budget detail indicates it will take 204 man-hours to prune or remove hazardous
trees at a cost of $7,838.00 (Table 9). Once the backlog of hazardous trees are
maintained, they project annual maintenance costs to be $110,972.00 (Table 10).
One thing lacking in this report is an analysis of parks department man-hours
currently available. I think the analysis will show that we do not have the staffing to
complete the maintenance within the projected cycles. Given that we have positions for
two tree trimmers, calculations need to be made to determine how parks can best
utilize their personnel. One direction may be to have parks deal with the trimming of the
palms and routine small pruning, leaving the large tree trimming to a private contract. In
addition to the hours needed for routine maintenance there are the annual events
wherein high winds blow over several large trees around the City which often takes a --
week or more out of daily scheduled operations to trim or remove.
LOOKING TO THE FUTURE
The Parks Department will direct their energies toward the pruning or removal of
hazardous trees identified in the Tree Management Report prepared by ACRT, Inc.
During the next several months, a review of staffing levels and productivity will help
formulate recommendations for the '99/'00 fiscal year budget. Recommendations will
most likely result in a request for additional man-hours being supplied either through
increased staffing levels or through privatization of some aspect of tree trimming
operations. Once MIS has uploaded the data to the Hansen software, Parks will be
able to track actual man-hour requirements more accurately to provide support for future
recommendations.
Table 1. Overview of species of street rigl~ts-of-way and median trees.
COmmon Name~ 'i'rees -% of TotM Invenlon'
PALM, SABAL 646 2(;).2
OLIVE, BLACK 451 1,1.1
ROYAL PALM 242 7.6
OLEANDER 197 6.2
PALM, COCONUT 196 6.1
OAK,..LIVE 195 6.1
PALM, WASHINGTONIA 158 4.9
PALM, QUEEN 154 4.8
iTABEBUIA, YELLOW 142 4.4
! MAHOGANY 120 3.8
B U'I-FONWOOD, SILVER 91 2.8
'PALM, FOXTAIL 67 2.1
! H,O,LLY, DAHOON 62 1.9
TABEBUIA, PINK 56 1.8
PIGEON PLUM 50J 1.6
SOLITAIRE PALM 35 1.1
PINE, SLASH 33 1.0
OTHER SPECIES 3141 9.5
R~,'port Totals: 3199! 1001
Tree Inventory Report and M~nagement Plan for Delray Beach. Florida 7
Prepared by ACRT, Inc. (June 1998)
Table 2. Overview of species diversity of ]~mk trees.
Common Name Trees % of Inventory
PALM, SABAL 693 2 ! .0
OAK, LIVE 361 10.9
PALM, COCONUT 301 9.1
MAHOGANY 198 6.0
OLIVE, BLACK 161 4.9
PINE, SLASH 112 3.,~
ROYAL PALM 111 3..1
PALM, QUEEN 107 3.2
PALM. WASHINGTONIA 94 2.8
TABEBUIA, YELLOW 86 2.6
B U-I-FONWOOD, SILVER 78 1.0
sEA GRAPE 75 2.3
FIG, BENJAMIN 64 1.9
EUCALYPTUS, TORELL 57: 1.7
PI NE, AUSTRALIAN 47 1.4
MASTIC 40 1..: '~
CHINESE FAN PALM 38] 1.2
PALM, MACARTHUR 351 1.1
BEAUTYLEAF 34 1.0
HOLLY, DAHOON 33 1.0
PIGEON PLUM 32 1.0
OTHER SPECIES 544 16.5
To,als: I
Tree Inventory Report and Management Plan for Delray Beach. Florida 9
Prepared by ACRT, Inc. (June 1998)
'fable 9. Budget projections for removing hazardous a~d potentially I~azardous
conditions for all inventoried trees.
Tasks to Maintain the Priority 1' i Priority 2t'
~ :: Priority 35
Safety of the Urban Forest .:
Amount!.Dollars i Amount! Dollars ! Amount! Dollars
Sign Clearance 17i S466i 0i S0i 0[ $0
Removal 1 ~ S 122 ! 31 i $2,683 i 4 ~ $3t895
Priority Pruning 4{ S168{ 581 $3,974i 0i $0
Subtotal 22! S736~ 89! $6,657i 4] $445
Total i $7~838
*Priority 1: Hazardous conditions requiring immediate action include sign
- ~ clearance pruning and priority one removals. These tasks should be completed
within six months.
pPriority 2: Hazardous conditions requiring prompt action include priority two
removals and priority one pruning. These tasks should be completed within one
year.
g'Priority 3: Potentially hazardous conditions include priority two pruning,
priority three removals and stump removals. These tasks should be completed
within two years.
Tree Inventory Report and Management Plan for Delray Beach, Florida 33
Prepared by ACRT, Inc. (June 1998)
Annual Projections in Table 10 apply after current hazardous and potentially
hazardous conditions are rectified.
Table 10. Annual budg.et projections for street trees.
Maintenance lasks Annual Projections
Amounti Dollars
Maintaining the Safety of the Urban ..S)g..n_._C.l_e.~..r..a...n...c.?' ............................... .1...9..! .............. .$..~..6..~.
Forest
..B .e_.~_?z:_~!. LR..L~__R.~ ~. ............... .S..~. .......... ..$_~.,...SZ.6_.
Priority, Prunin8 52 $3,484
Subtotal 114 S8,322:
Maintaining the Health of the Urban ...T..r..a.!..n T__r..e...e_s ........................................ .5....6..! .............. .$....9...8.~
Forest (Routine Maintenance) ~
Small Tree Pruning J 390J $6,825
Large Tree Pruning 1,026] $79,002
Non-hazard Removal 13 $1,443
Subtota} 1,485 $88,250
Perpetuating the Urban Forest Replacements 72
.............................................. ,...1...4..&0..9..
(Planting)
Subtotal 72 $14,400
Total for Maintenance Tasks: 1,671 $110,972
Tree Inventory Report and Management Plan for Delray Beach, Florida 34
Prepared by ACRT, Inc. (June 1998)
MEMORANDUM
TO: MAYOR AND CITY COMMISSIONERS
FROM: CITY MANAGER ~/~
SUBJECT: AGENDA ITEM ~/'~.~ WORKSHOP MEETING OF SEPTEMBER 8, 1998
REVISION #10 TO THE FLORIDA CONSTITUTION
DATE: SEPTEMBER 4, 1998
Attached is information received from the Florida League of
Cities requesting support for Revision #10 to the Florida
Constitution. It is one of nine revisions recommended by the
Constitution Revision Commission and will be put to Florida's
voters on the November, 1998, ballot.
The League's position is that Revision 10 will benefit Floridians
in numerous ways, including:
(1) Stops a new tax by prohibiting tax assessments for property
that is used for governmental purposes;
(2) Encourages land conservation by allowing cities and counties
to grant property tax exemptions for lands that are used for
conservation;
(3) Creates a fair tax system by allowing counties to grant tax
exemptions for personal property, such as appliances and
furnishings, in mobile homes and rental housing; and
(4) Ensures citizens access to local officials by removing ~ourt
imposed restrictions that prevent citizens from talking with
their local officials outside of official hearings.
A sample resolution has been provided by the Florida League of
Cities and is attached for your review. If the Commission wishes
to support Revision 10, a formal resolution will be placed on the
September 15th agenda for approval.
ref:agmemo9
LEAGUE OF CITIES INC.
Memorandum
To: City Managers/City Clerks
From: Kelvin Robinson, Director
Legislative & Public Affairs
Date: August 28, 1998
Re: Vote "YES" on 10 Educational Materials
As you may know, several constitutional revisions will be placed on the upcoming November
ballot. Among those is Revision 10. Revision 10 is a League-supported constitutional change
that, if approved by Florida voters, will, among other things:
· Eliminate taxes for property that is used for governmental or city purposes;
· Allow counties and cities to waive property taxes for lands used for conservation;
· Allow counties to waive taxes for tangible personal property such as appliances and
furnishings in mobile homes; and
· Allow citizens to communicate with local officials outside of local hearings about land-
use issues.
These are important issues for cities. We need your support and we need your help in getting the
word out to your citizens to VOTE YES!
To better assist you with understanding what Revision 10 does we are sending you this
educational packet which includes:
· "Yes on 10" brochure
· "Yes on 10" poster
· "Yes on 10" talking points
· "Yes on 10" bumper stickers
· "Yes on 10" buttons
· "Yes on 10" sample resolution
We are requesting that every city pass a resolution/proclamation supporting Revision 10 and that
you use every opportunity to voice your support of this revision to the media and your
community.
301 South Bronough Street , Post Office Box 1757, Tallahassee. FL 32302-1757
Telephone (850) 222-9684 , Suncom 278-5331 , Fax (850) 222-3806 , Internet: http://fcn.state.fl.us/flc/
Page 2
Vote "YES" on 10 Educational Materials
The talking points may be used for speeches when addressing civic groups or clubs. You can
wear your button, hang the poster in city hall and display the bumper stickers in prominent
places. Let us know if you need additional information or materials on Revision 10.
Remember, it is important that we all work hard to see that Revision 10 passes in November.
IfI can be of further assistance, please feel free to contact me or my assistant Carol Dixon at the
League, (800) 616-1513, ext. 137. Thank you.
/cid.
Enclosures
Filename: Yes on Ten First Memo.doc
Yes on 10
-. .Talking Points
Every 20 years, we as Floridians have a remarkable opportunity - one that residents of no
other state enjoy.
We have the chance to revise our state Constitution, Florida's most important document.
It is an opportunity to improve the very foundation of our gOvernment - to improve our
lives and ensure a better future for all Floridians.
Florida established the Constitution Revision Commission to review the Constitution and
suggest changes based on input from citizens.
The Constitution Revision Commission, made .up of professionals, legal scholars,
community leaders and others, recommended nine revisions. They will be placed on the
November ballot for voters to decide which to approve.
Among the best of the bunch is Revision 10.
What does Revision 10 do? It...
Stops a new tax by prohibiting tax assessments for property that is used for governmental
purposes.
Encourages Land conservation by allowing cities and counties to grant property tax
exemptions for lands that are used for conservation.
Creates a fair tax system by allowing counties to grant tax exemptions for personal
property - such as appliances and furnishings - in mobile homes and rental housing.
Ensure citizens access to local officials by removing court imposed restrictions that
prevent citizens from talking with their local officials outside of official hearings.
So how would Revision 10 benefit us as Floridians?
First, it stops a "new" tax. Currently, cities don't pay taxes on public properties like
airports and seaports. Recently, however, the Florida Supreme Court allowed a tax to go
into effect that would mean cities will have to start paying taxes on these public
properties.
(Over)
This tax burden, of course, would ultimately fall on citizens - unless Revision 10 is
approved.
Second, Revision 10 will preserve our most valuable lands for future generations.
Revision 10 allows local governments to give tax breaks to property owners when they
use their land for conservation purposes.
This is critical because - as we all know - the state simply can't afford to conserve all of
Florida's sensitive lands. Revision 10 is our best hope of preserving these pristine lands
before they are gone.
Third, Revision 10 creates a fairer tax system. Currently, mobile-home owners must pay
property taxes on items that are in their home - such as refrigerators -just because their
home can be moved. Revision 10 would treat mobile-home owners the same as other
homeowners. And it would eliminate the costs of collecting the tax - which often can
exceed the small amount that's actually collected. In short, this could save all of us
money.
Finally, Revision 10 helps open the lines of communications between citizens and their
elected representatives. As you may know, Florida's courts have interpreted some
Sunshine Laws in ways that keep citizens fi.om talking with local officials except during
public hearings. This revision would allow taxpayers to talk to officials...without
violating the law.
The bottom line is this: Revision 10 is good for our cities, our state and our citizens. Our
challenge now is to get the word out to the citizens of Florida.
The more people who know about Revision 10, the more people who will vote for'it.
It truly is a Perfect 10.
File name:/Yeson 10.doc
A SAMPLE RESOLUTION TO SUPPORT REVISION #10
A RESOLUTION OF [CiW Name) SUPPORTING REVISION gl0 TO THE FLORIDA
CONSTITLrrION, AND ENCOURAGING OUR CITIZENRY TO VOTE YES TO THIS
REVISION.
WHEREAS, the Constitution Revision Commission (CRC) has proposed Revision gl0, which
amends Article VII, s. 3(a),(f) and (g) of the Florida Constitution; and
WHEREAS, this revision contains several issues of importance to cities, namely ex parte
communications and revisions to tax exemptions; and
WHEREAS, if passed by the electorate, Revision gl0 would provide greater local fiscal flexibility
and unrestricted citizen access to local officials; and
WHEREAS, under the Constitution, the state and counties are immune from taxation, while
municipalities are exempt only to the extent their property is used exclusively for public purposes; and
WHEREAS, a 1997 Florida Supreme Court decision mandates municipally owned sports
facilities, airports and seaports to pay a property tax in addition to lease payments and intangible taxes on
leased property; and
WHEREAS, Revision gl0 authorizes the Legislature to exempt property of certain municipal and
special district property when such land is used for airport, seaport, or public purposes; and
WHEREAS, the cost of collecting tangible personal property tax on mobile home attachments,
furnishings, and fixtures on rental housing often exceeds the revenues derived from collections; and
WHEREAS, Revision gl0 gives local governments the option of collecting personal property tax
for attachments to mobile homes and certain residential rental furnishings; and
WHEREAS, Revision #10 assures citizens the unrestricted access to their locally elected officials
to discuss issues likely to be decided by the officials; and
WHEREAS, this package of reform proposals would serve municipal governments well and all
cities should work with their citizens to help public understanding of Revision #10 and the many benefits
contained therein.
NOW THEREFORE, BE 1T RESOLVED BY (City Name).
Section 1. That (City Name) does hereby support and endorse passage of Revision #10 to the
Florida Constitution, and urges its citizenry to vote yes on this instrumental resolution.
Section 2. That copies of this resolution shall be provided to the Florida League of Cities and the
Yes On 10 Committee.
PASSED AND ADOP'I~D by (City Name) on this __ day of ,1998.
MEETING DATE: AUGUST 17, '1998
AGENDA ITEM: IIl.J. - AMENDMENT TO THE LAND DEVELOPMENT
REGULATIONS REMOVING ADULT ENTERTAINMENT
ESTABLISHMENTS AS CONDITIONAL USES IN THE GC
(GENERAL COMMERCIAL) AND MIC (MIXED INDUSTRIAL AND
COMMERCIAL) ZONING DISTRICTS AND ALLOWING ADULT
ENTERTAINMENT ESTABLISHMENTS AS PERMITTED USES
IN THE MIC ZONING DISTRICT; AND AMENDING SECTION
4.3.3(AA) PROVIDING FOR FURTHER REGULATION OF ADULT
ENTERTAINMENT ESTABLISHMENTS
III.K. - AMENDMENT TO THE LAND DEVELOPMENT
REGULATIONS REMOVING ADULT ENTERTAINMENT
ESTABLISHMENTS AS CONDITIONAL USES IN THE GC
(GENERAL COMMERCIAL) ZONING DISTRICT; AND
AMENDING SECTION 4.3.3(AA) PROVIDING FOR FURTHER
REGULATION OF ADULT ENTERTAINMENT
ESTABLISHMENTS.
The item before the Board is that of making a recommendation to the City
Commission regarding separate text amendments to the Land
Development Regulations as described above regarding Adult
Entertainment Establishments.
Pursuant to Section 1.1.6, an amendment to the text of the Land
Development Regulations may not be made until a recommendation is
obtained from the Planning and Zoning Board.
On August 28, 1990, the City Commission adopted Ordinance No. 35-90 (Code of
Ordinances Section 113.20) which prohibited nudity, partial nudity, and sexual conduct
at alcoholic beverage establishments. On November 13, 1990, the City Commission
adopted Ordinance No. 55-90 which amended the Land Development Regulations as
follows:
· Listed adult entertainment establishments as conditional uses in the MIC (Mixed
Industrial and Commercial) and GC (General Commercial) zoning districts (the use
P & Z Board Memorandum Staff Report
LDR Text Amendment - Adult Entertainment Establishments
Page 2
was also allowed as a conditional use in the PC zone district via reference to the GC
district);
· Provided definitions pertaining to adult arcade, adult bookstore/video store, adult
dancing establishment, adult entertainment establishment, nudity, and partial nudity;
and,
· Established special distance requirements from residential zoning, community
facilities, schools and churches, alcoholic beverage establishments, and other adult
entertainment establishments.
Under the existing ordinance, most of the available sites were concentrated along the
Seaboard Coastline Railroad (CSX) corridor. With the rezonings to CF (Community
Facilities) for the Palm Tran facility on Congress Avenue, and the FPL sub
station at the intersection of Lake Ida Road and the CSX Railroad potential locations to
establish adult entertainment establishments in the City were eliminated. Pursuant to
Case Law, municipalities must accommodate these types of uses, as not allowing or
accommodating the use is unconstitutional. The courts have required that regulation of
adult uses must be based only on the secondary effects of such use and not personal
observations or views on the morality, or content of the expressive content, or on the
use itself. Valid time, place and manner restrictions must be narrowly tailored and
provide sufficient avenues of expression. Therefore, the Land Development
Regulations are being amended to identify an appropriate zoning district and area that
will accommodate adult entertainment establishments. In conjunction with this text
amendment, the special use requirements pertaining to adult entertainment
establishments are also being amended. The proposed changes will clarify existing
regulations and includes additional regulations to address secondary effects.
There are two alternative ordinances proposed. One ordinance removes adult uses as
conditional uses in the GC and MIC zoning districts and allows the adult uses as
permitted uses in the MIC zoning district. The other ordinance removes adult uses as
conditional uses in the GC District, but keeps adult uses as conditional uses in the MIC
zone district. Both ordinances include the same changes to LDR Section 4.3.3(AA),
special regulations pertaining to adult entertainment establishments. The proposed
ordinances contain certain findings as to secondary effects.
LDR Section 2.4.$(M)(5) (Findings): In addition to provisions of Section 1.1.6(A),
the City Commission must make a finding that the text amendment is consistent
with and furthers the Goals, Objectives and Policies of the Comprehensive Plan.
While there is no specific goal, objective or policy that is furthered by this amendment,
the changes are necessary in order to prevent a successful legal challenge to the
current ordinance. A general finding can be made that the Iocational restrictions and
P & Z Board Memorandum Staff Report
LDR Text Amendment - Adult Entertainment Establishments
Page 3
measures that are being adopted to help control the secondary effects will help prevent
the degradation of residential areas and adjacent businesses.
Available Locations
As indicated on the attached map, the proposed ordinance identifies 18 sites where an
adult entertainment establishment could be located. While there is no set number of
sites that a court will determine constitutional, the courts will look to the percentage of
land available for adult businesses, the number of sites with a genuine possibility of use
for adult uses, and the number of sites potentially available for adult uses per City
population.
A survey of the cases in Florida shows that the courts have upheld ratios of one adult
use site per 2,182 persons (within 122 available sites) down to one site per 6,761
persons (with 22 available sites). Boynton Beach's ordinance was upheld with a ratio of
one site per 4,208 persons (with 11 available sites). The court struck down a St.
Petersburg ordinance which provided a ration of 1 site per 12, 565 persons and 19
available sites because the ratio was insufficient to provided sufficient avenues of
expression.
The City of Delray Beach's population is effectively 63,600 and includes approximately
53,000 permanent residents and approximately 10,600 seasonal/part-time residents
(seasonal increase of 20%). Based on other cases, the City would probably be
required to provide in the range of approximately 10 sites (using the Ft. Lauderdale
ratio) to 15 sites (using the Boynton Beach ratios). As depicted on the attached map,
18 sites are available after applying the proposed changes. The following relate to the
most significant changes. These. requirements are in addition to Code of Ordinances
Section 113.20.
Distance between Adult Entertainment Establishments Eliminated
Both ordinances provide for the elimination of the 1,000 foot distance requirement
between adult entertainment establishments. The distance requirement is being
eliminated in order to accommodate enough sites to meet the constitutional
requirements of adequate alternative avenues of expression.
Prohibition along Arterial and Collector Roadways
This would apply to properties fronting on arterial roadways (i.e. Congress Avenue and
Atlantic Avenue). This limitation is to shield the surrounding businesses and the
general traveling public from the secondary effects of crime and drug sales and the
urban blight that often accompanies adult uses.
P & Z Board Memorandum Staff Report
LDR Text Amendment ~ Adult Entertainment Establishments
Page 4
Elimination from the GC Zone District and Chanaes to MIC zone District
Both ordinances propose to eliminate the use from the GC zone district. The reason for
eliminating the use from the GC district (and by reference the PC District) is that many
of the properties zoned GC and PC are located along arterial and collector roadways
and are within 1,000 of residentially zoned property. As stated above, the purpose for
prohibiting the use along arterial and collector roadways is to shield the surrounding
businesses and the general traveling public from the secondary affects.
With regard to the MIC zone district, one ordinance proposes to allow the use as
permitted and the other retains the use as a conditional use. The reason for changing
the use to a permitted use related to the lack of specific criteria regarding conditional
use findings [LDR Section 2.4.5(E)]. The courts have traditionally not upheld
conditional uses in this area of first amendment uses as the criteria/findings for
conditional uses has not been very specific. If the ordinance which establishes adult
uses as permitted uses is recommended for adoption, it eliminates any potential
challenge as it relates to conditional use criteria in LDR Section 2.4.5(E). Provision of
additional criteria was previously identified as an item that needs to be addressed. It is
anticipated the conditional use findings will be strengthened in the near future, through
the addition of more specific criteria.
Prohibition East of the CSX (Seaboard Coastline Railroad)
The purpose of this restriction is to protect the existing church and neighborhoods near
Depot Road from the secondary effects of prostitution, drug sales, etc. often
accompany adult entertainment uses. The area adjacent to (east of) Depot Road is
listed in the Housing Element of the Comprehensive Plan as RHB (Rehabilitation),
which is identified as an area having numerous code violations; deteriorated and poorly
maintained properties; high level of absentee ownership; significant crime problems and
large number of vacant lots. Pursuant to Housing Element Objective A-6, for those
areas identified as needing "rehabilitation" on the Residential Neighborhood
Categorization Map, the City, through its Community Improvement Department, shall
provide concentrated programs of code enforcement, public investment on
infrastructure, public assistance in the rehabilitation of structures, public action in the
provision of replacement housing, opportunities for new private development, and
special social programs all directed toward the stabilization and revitalization of those
designated areas.
The Comprehensive Plan emphasizes the need to combat crime in the area. Additional
crime that often accompanies adult entertainment uses would not further the
rehabilitation efforts in this area.
P & Z Board Memorandum Staff Report
LDR Text Amendment - Adult Entertainment Establishments
Page 5
Distance from Residential and Community_ Facilities Properties
The 1,000 foot distance requirements from residentially zone properties, schools,
churches and community facilities properties will be maintained, however the restriction
will not apply when the adult use is separated from one of the previously stated uses by
1-95, or when the adult use is within 1,000 feet of a community facilities property that is
not frequented by the general public. These changes would allow adult entertainment
uses to be allowed in those portions of the MIC zone district that are within 1,000 feet of
the Palm Tran maintenance facility on Congress Avenue, the FPL substation just south
of the intersection of Lake Ida Road and the CSX railroad crossing, and the residential
area east of 1-95.
Prohibition on Historic Properties
The proposal is to prohibit the establishment of an adult use on historic properties that
have not previously been used for adult uses in order to protect and maintain the
history, character and cultural uniqueness of such sites by eliminating the secondary
effects on historically designated properties. No historically designated sites are
presently included within the designated area created by the proposed ordinances.
Interior Reauirements
The proposal includes the provision of at least 100 sq.ft, for entertainment and
performances and a separation requirement of 4 feet from patrons where the
performer/entertainer, employee, is in the state of nudity or partial nudity. These
requirements relate to the prevention of disease, and public health and are included to
also minimize crime.
Community_ Redevelo_oment Agency
At its meeting of August 13, 1998, the CRA reviewed and recommended approval of
the text amendment.
The proposed text amendment is being processed to fulfill constitutional requirements
to allow the use within the City. This text amendment is structured so that there will be
18 potential sites available to accommodate the uses, which will primarily be located
within the industrial area north of Atlantic Avenue, east of Congress Avenue, south of
the E-4 Canal, and west of the CSX Railroad. One of the proposed ordinances will
allow the use as a permitted use in the MIC (Mixed Industrial and Commercial) zone
P & Z Board Memorandum Staff Report
LDR Text Amendment - Adult Entertainment Establishments
Page 6
district, and another retains the use as a conditional use in the MIC. Both ordinances
eliminate the use from the GC (General Commercial) zone district. The reason for
changing the use to a permitted use in the MIC relates to the lack of specific criteria
regarding conditional use findings [LDR Section 2.4.5(E)]. However, it is anticipated the
conditional use findings/criteria will be strengthened in the near future, through the
addition of more specific criteria, and therefore it is recommended that the adult
entertainment uses continue to be allowed as a conditional use in the MIC zone district.
A. Continue with Direction.
B. Recommend to the City Commission approval or denial of Ordinance No. 30-98 that
LDR Sections 4.4.9(D) General Commercial (GC) and 4.4.19(D) Mixed Industrial
and Commercial (MIC) be amended to eliminate adult entertainment establishments
as a conditional use; that Section 4.4.19(B) Mixed Industrial and Commercial (MIC)
be amended to add the use as a permitted use; and that the related provisions to
Section 4.3.3(AA) (Special Reauirements for Specific Uses - Adult Entertainment
Establishments). be amended to further clarify existing regulations and includes
additional regulations to address secondary effects, based upon positive findings
with LDR Section 2.4.5(M)(5).
C. Recommend to the City Commission approval or denial of Ordinance No. 31-98 that
LDR Section 4.4.9(D) General Commercial (GC) be amended to eliminate adult
entertainment establishments as a conditional use; and that the related provisions to
Section 4.3.3(AA) (Special Reauirements for Specific Uses -- Adult Entertainment
Establishments). be amended to further clarify existing regulations and includes
additional regulations to address secondary effects, based upon positive findings
with LDR Section 2.4.5(M)(5). (Adult uses will remain as conditional uses in the MIC
district.
Recommend to the City Commission approval of Ordinance No. 31-98 that LDR Section
4.4.9(D) General Commercial (GC) be amended to eliminate adult entertainment
establishments as a conditional use; and that the related provisions to Section
4.3.3(AA) (Special Requirements for Specific Uses - Adult Entertainment
Establishments). be amended to further clarify existing regulations and includes
additional regulations to address secondary effects, based upon positive findings with
LDR Section 2.4.5(M)(5).
Attachments: Proposed Ordinances #30-98 and #31-98
ORDINANCE NO. 30-98
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLORIDA, AMENDING CHAPTER 4 "ZONING
REGULATIONS", OF THE LAND DEVELOPMENT
REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY
OF DELRAY BEACH BY AMENDING SECTION 4.3.3(AA),
"ADULT ENTERTAINMENT ESTABLISHMENTS", BY
AMENDING SECTION 4.3.3(A.A)(1), TO PROVIDE THAT ADULT
ENTERTAINMENT USES SHALL NOT BE ALLOWED ON
PROPERTIES WITH FRONTAGE ON ARTERIAL ROADS OR
LOCATED EAST OF THE CSX RAILROAD TRACKS,
ELIMINATING THE DISTANCE REQUIREMENT BETWEEN
ADULT ENTERTAINMENT ESTABLISHMENTS, DELETING
REFERENCES TO SPECIAL CONDITIONS; BY AMENDING
SUBSECTION 4.3.3(AA)(2), TO PROVIDE CLARIFICATION OF
DISTANCE REQUIREMENT USES REGULARLY FR.EQ~NTED
BY THE GENERAL PUBLIC AND PROVIDING FOR AN
EXCEPTION; BY AMENDING SECTION 4.3.3(AA)(3), TO
PROVIDE MEASUREMENT CRITERIA FROM ESTABLISHMENTS
SERVING ALCOHOLIC BEVERAGES; BY ENACTING
4.3.3(AA)(5), TO EXCLUDE ADULT ENTERTAINMIENT USES IN
HISTORIC DISTRICTS, ON HISTORIC SITES AND PROPERTIES,
AND PROVIDING FOR AN EXCEFrlON; BY ENACTING
SECTION 4.3.3(AA)(6), TO PROVIDE MINIMUM FLOOR AREA
REQUIREMENTS; BY ENACTING 4.3.3(AA)(7), TO PROVIDE
THAT PERFORMANCES AND ENTERTAINMENT MUST BE
FROM A STAGE, SETTING FORTH MINIMIJM STAGE SIZE
REQUIREMENTS, AND SEPARATION REQUIR]F2dTmNTS FOR
NUDE OR PARTIALLY NUDE PERFORMERS/ENTERTAINERS OR
EMPLOYEES FROM CUSTOMERS, PATRONS, PERFORMERS,
ENTERTAINERS OR EMPLOYEES; BY AMENDING SECTION
4.4.9(D) ``CONDITIONAL USES AND STRUCTURES ALLOWED",
SUBSECTION 4.4.9(D)(I), DELETING ADULT ENTERTAINMENT
USES AS A CONDITIONAL USE IN THE GENERAL
COMMERCIAL (GC) ZONING DISTRICT AND PROVIDING FOR
RENUMBERING; BY AMENDING SECTION 4.4.19(B),
"PRINCIPAL USES AND STRUCTURES PERMITTED' BY
ADDING SUBSECTION 4.4.19(B)(7), TO PROVIDE FOR ADULT
ENTERTAINMENT USES AS A PERMITTED USE IN THE MIXED
-' INDUSTRIAL COMMERCIAL (MIC) ZONING DISTRICT; BY
AMENDING SECTION 4.4.19(D), "CONDITIONAL USES AND
STRUCTURES ALLOWED", BY DELETING SECTION 4.4.19(D)(1),
DELET~G ADULT ENTERTAINMENT USES AS A
CONDITIONAL USE IN THE MIXED INDUSTRIAL COMMERCIAL
(MIC) ZONING DISTRICT AND PROVIDING FOR
RENUMBERING; PROVIDING A SAVINGS CLAUSE, A GENERAL
REPEALER CLAUSE, AND AN EFFECTi'v'E DATE.
WHEREAS, this ordinance is enacted under the home rule of power of the City of Delray
Beach, in the interest of the health, peace, safety, and general welfare of the people of the "City of
Delray Beach,' hereafter the "City'; and,
WHEREAS, the intent of the City Commission of the City of Detray Beach in adopting
this ordinance is to establish reasonable and uniform regulations for the adult entertainment industry that
will protect the health, safety, property values, and general welfare of the people, businesses, and
industries of the City. It is not the intent of the City Commission to legislate with respect to matters of
obscenity. These matters are regulated by federal and state law, including chapter 847 of the Florida
Statutes; and,
WI-IEREAS, with respect to zoning and other regulatory issues, the City Commission for
the City of Delray Beach, Florida, has considered reports, studies, and judicial opinions concerning the
adverse secondary effects of adult uses on' the .community which include but are n6t limited to the'
following:
1. City. of Renton v. Playtime Theaters. Inc., 475 U.S. 4II (1956), ~, 475
U.S. 1132.
2. Young v. American Mini-Theaters. Inc., 427 U.S. 50 (1975), ~, 429
U.S. 873.
3. Iilames v. Glen Theater, 501 U.S. 560 (1991).
4. Report on Zoning and Other Methods of Regulating Adult Entertainment in
~llla/5~, (Texas) dated September 12, 1977.
5. Regulation of Criminal Activity_ and Adult Businesses. City of Phoenix, May,
1979.
6. Findings of the City Planning Commission for the City of New York dated January
26, 1977.
ORD. NO. 30-9~
7. Detroit's Approach to Re_malating the "Adult Uses" presented to American Institute
of Planners, Annual Conference, October 10, 1977.
8. Report to the City Planning Commission and City Council from the Planning
Department of the City of Beaumont, Texas. Dated September 14, 1982.
9. Legislative Report on an Ordinance Amending Section 28-73 of the Code of
Ordinances of the City_ of Houston. Texas: Providing for the Regulation of Sex'ually Oriented
Commercial Enterprises. Adult Bookstores. Adult Movie Theaters and Massage Establishments:
and Making Various Provisions and Findings Relating to the Subject. Report prepared by the
Committee on the Proposed Regulation of Sexually Oriented Businesses and dated 1983.
10. Report on Adult Oriented Business in Austin. Report prepared by the Special
Programs Division of the Office of Land Development Services of the City of Austin, Texas.
Dated May 19, 1986.
11. Adult Entertainment Business in Oklahoma City_. A Survey of Real Estate.
Appraisers. Report prepared by the Community Development Department of the City of
Oklahoma City, Oklahoma. Dated March 3, 1986.
12. Adult Entertainment Businesses in Indianapolis. An analysis prepared by the
Department of Metropolitan Development dated February, 1984.
13. Palm Beach County Sheriff's Office report dated April, 1998.
14. Director's Rer~ort: Proposed Land Use Code Text Amendment. Adult Cabaret.~.
A report prepared by the Director of the Department of Construction and Land Use of the City of
Seattle, Washington. Dated March 24, 1989; and,
WHEREAS, the City Commi.qsion for the City of Delray Beach recognizes that as adult
entertainment uses affect surrounding sites in a deleterious manner, particularly when several adult uses
are concentrated and special regulation of these uses is necessary to insure that these effects will not
contribute to the blighting or downgrading of the surrounding neighborhood; and,
WHEREAS, the City also adopts the findings made in the adoption of' Ordinances 35-90
and 56-90; and,
WHEREAS, the secondary effects of adult entertainment uses include, but are not limited
to, increased criminal activities, moral degradation, depreciation of property value, and harm to the
economic welfare of the community as a whole; and,
3 ORD. NO. 30-98
WHEREAS, locations having adult entertainment tend to attract other activities which are
illegal or immoral or unhealthful, such as, but not limited to prostitution, solicitation for prostitution,
lewd and lascivious behavior, sale or possession of controlled substances and violent crimes against
persons or property; and,
WHEREAS, the City Commission for the City of Delray Beach, Florida, has determined
that this ordinance is necessary to prevent crime, protect the City's retail trade, maintain property
values, and protect and preserve the quality of Delray Beach's neighborhoods, commercial districts, and
the quality of urban life; and,
WHEREAS, the local planning agency, pursuant to Florida Statutes Section 163.3174(c)
and LDR Section 1.1.6 has reviewed the amendment and made recommendations and determined that the
change is consistent with and furthers the objectives and policies of the Comprehensive Plan; and,
WHEKEAS, certain historic districts and certain buildings have been placed on the
National Register of Historic Places or are in and of themselves contributory buildings in the historic
district and reflect the history and unique character of the City which will be adversely affected by the
secondary effects of adult entertainment uses; and,
WHEREAS, the preservation of historic districts and historic buildings serves a valid
governmental objective, promotes the public welfare, provides economic stimulation through tourism,
enhances architectural and educational enrichment, affords neighborhood protection, community
building, promotes cultural stability, preserves a sense of history and erdlances aesthetics; and,
WHEREAS, the performers/entertainers and employees who are nude or partially nude
pose a threat to the health of patrons, customers, other employees and entertainers and themselves that
may lead to the spread of communicable and social disease; and,
WHEREAS, the concerns raised in the foregoing legislative findings relate to substantial
and legitimate governmental interests; and,
WHEREAS, adult use establishments have operational characteristics which should be
reasonably regulated in order to protect those substantial governmental concerns; and,
WHEREAS, certain sections of the Code regulating Adult Entertainment establishments
need clarification and correction; and,
WHEREAS, amendments to the Code governing Adult Entertainment are required to
bring the Code in compliance with current law.
NOW TI-II~.REFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY
OF DELRAY BEACH AS FOLLOWS:
4 ORD. NO. 30-98
Section 1. That Chapter 4, "Zoning Regulations", Article 4.3, "District Regulations,
General Provisions", Section 4.3.3, "Special Requirements for Specific Uses", Subsection 4.3.3(AA),
"Adult Entertainment Establishments", of the Land Development Regulations of the Code of Ordinances
of the City of Detray Beach, is hereby amended to read as follows:
(AA) ptdult Entertainment Establishments: In addition to the requirements of the
underlying zoning district, other applicable general regulations, County licensing requirements,
parking regulations, special ccnditicr~ ~--:pcszd *&,rc'-'-gh *~e ccnditicr~l '.'-se process, and Section
113.20 of the Code of Ordinances of the City_ of Detmy Beach. the following requirements shall
apply to adult entertainment establishments:
(D No adult entertainment establishment shall be located on properties with
frontaee on an arterial road or located east of the CSX railroad track.
(2) No adult entertainment establishment shall be located closer than one thousand
(1,000) feet from any house of worship, school, residential zoning district, or community
facilities ~ district (CF, OS, OSR, CD) sc~.~o! where the use is or is to be re_malarly
frequented by thc general public (i.e. communi _ty center, parks, courthouse, child care facilities.
offices, etc.) measured from lot line to lot line boundary along a straight airline route, except
when the property_ containing the adult entertainment establishment is separated from the above
by the 1-95 fight-of-way.
(3) No adult entertainment establishment shall be located within seven hundred
fifty (750) feet of an existing alcoholic beverage establishment, measured from lot line to lot line
boundary_ along a straight airline route.
(4) Signag¢. Only one sign per adult entertainment establishment is permitted,
and such sign shall not extend above twelve (12) feet above ~ound level or have an area of
greater than thirty-six (36) squai~ feet. No neon material shall be permitted on the sign. All
other restrictions of the sign code shall apply herewith.
:1
(5) ~11~ adult entertainment establishment shall be located within an historic
district, on an historic site. or on properties listed on the Local or National Register of Historic
Places. unless the historic district, site or property_ was previously used for an adult entertainment
'.1 5 ORD. NO. 30-98
'i
(6) The minimum floor ar~a per room or partitioned area within an adult
entertainment establishment must be 2.000 so. ft.. exclusive of kitchen, restrooms, storage areas.
and other non-public/customer area of the establishment.
(7) Performers/entertainers or employees in the state of nudity_ or partial nudity_
shall not approach within four feet of oatrons, customers, or other employees or other
performers/entertainers, and must perform/entertain from a stage encompassing an area of at least
one hundred (100) square feet.
~. That Chapter 4 of the Land Development Regulations of the Code of
Ordinances of the City of Delray Beach, Section 4.4.9(D)(1), "Conditional Uses and Structures
Allowed" is hereby amended by deleting subsection 4.4.9(D)(1) and renumbering the remaining list of
conditional uses, to read as follows:
(D) Conditional Uses and Structures Allowed: The following are allowed as
conditional uses in the GC District, except as modified in the West Atlantic
Avenue Overly District by Section 4.4.9(G)(1)(a) and the North Federal Highway
Overlay District by Section 4.4.9(G)(2).
~. That Chapter 4 of the Land Development Regulations of the Code of
Ordinances of the City of Delray Beach, Section 4.4.19, "Mixed Industrial Commercial (MIC) District"
Section 4.4.1903) is hereby amended by adding subsection 4.4.1903)(7) to read as follows:
03) Principal Uses and Structures Permitted: The following types of use are allowed
in the MIC district as a permitted use:
(7) /~dult Entertainment Establishments (subject to Section 4.3.3(AA~
~. That Chapter 4, Section 4.4.19(I)) of the Land Development Regulations is
hereby amended by deleting 4.4.19(D)(1)(a) to read as follows and renumbering/relettering the
remaining conditional uses:
(D) Conditional Uses and Structures Allowed:
(1) The following uses are allowed as conditional uses within the MIC
Zone District:
6 ORD. NO. 30-98
Section 3. That should any section or provision of this ordinance or any portion thereof,
any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part
declared to be invalid.
Section 4. That all ordinances or parts of ordinances in conflict herewith be, and the same
are hereby repealed.
~. That this ordinance shall become effective immediately upon its passage on
second and final reading.
PASSED AND ADOPTED in regular session on second and final reading on this the
~ day of ,1998.
MAYOR
ATTEST:
City Clerk
First Reading
Second Reading
7 ORD. NO. 30-98
ORDINANCE NO. 31-98
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
DELRAY BEACH, FLOR.II)A, AMENDING CHAPTER 4 "ZONING
REGULATIONS", OF THE LAND DEVELOPMENT
REGULATIONS OF THE CODE OF ORDINANCES OF THE CITY
OF DELRAY BEACH BY AMENDING SECTION 4.3.3(AA),
"ADULT ENTERTAINMENT ESTABLISHMENTS", BY
AMENDING SUBSECTION 4.3.3(AA)(1), TO PROVIDE THAT NO
ADULT ENTERTAINMENT USES SHALL BE ALLOWED ON
PROPERTIES WITH FRONTAGE ON AN ARTERIAL ROAD OR
LOCATED EAST OF THE CSX R~II.ROAD TRACKS,
EITMINATING THE DISTANCE REQ~NTS FROM ADULT
ENTERTAINMENT ESTABLISH2VIENTS, AND DELETING
REFERENCES TO SPECIAL CONDITIONS; BY AMENDING
SUBSECTION 4.3.3(AA)(2), TO PROVIDE CLARIFICATION OF
DISTANCE REQ~S FROM USES REGULARLY
FREQUENTED BY THE GENERAL PUBLIC AND PROVIDING AN
EXCEPTION; BY AMENDING SUBSECTION 4.3.3(AA)(3), TO
PROVIDE MEASI. YREMENT CRITERIA FROM ALCOHOLIC
BEVERAGE ESTABLISHMENTS; BY ENACTING SUBSECTION
4.3.3(AA)(5) TO EXCLUDE ADULT ENTERTAINMENT USES IN
HISTORIC DISTRICTS AND'ON HISTORIC SITES OR
PROPERTIES AND PROVIDING AN EXCEPTION; BY ENACTING
A NEW SUBSECTION 4.3.3(AA)(6), TO PROVIDE MINIMUM
FLOOR AREA REQUIREMENTS; BY ENACTING A NEW
SUBSECTION 4.3.3 (AA)(7), TO PROVIDE THAT
PERFORMANCES AND ENTERTAINMENT MUST BE FROM A
STAGE, SETTING MINIMUM STAGE SIZE REQLKREMENTS AND
SEPARATION REQUIREMENTS FOR NUDE OR PARTIALLY
NUDE PERFORMERS/ENTERTAINERS AND EMPLOYEES FROM
CUSTOMERS, PATRONS, PERFORMERS, ENTERTAINERS OR
EMPLOYEES; BY AMENDING SECTION 4.4.9(D),
~CONDrI/ONAL USES AND STRUCTURES ALLOWED", BY
OMITrING SUBSECTION 4.4.9(1))(1), TO DELETE ADULT
ENTERTAINMENT USES AS CONDITIONAL USES IN THE
GENERAL COMMERCIAL (C,C) ZONING DISTRICT; PROVIDING
A SAVINGS CLAUSE, A GENERAL REPEALER CLAUSE. AND
AN EFFECTIVE DATE.
WHEREAS, this ordinance is enacted under the home rule of power of the City of Delray
Beach, in the interest of the health, peace, safety, and general welfare of the people of the "City of
Delray Beach,' hereafter the "City"; and,
WHEREAS, the intent of the City, Commission of the City of Delray Beach in adopting
this ordinance is to establish reasonable and uniform regulations for the adult entertainment industry that
will protect the health, safety, property values, and general welfare of the people, businesses, and
industries of the City. It is not the intent of the City Commission to legislate with respect to matters of
obscenity. These matters are regulated by federal and state law, including chapter 847 of the Florida
Statutes; and,
WHEREAS, with respect to zoning and other regulatory issues, the City Commission for
the City of Delray Beach, Florida, has considered reports, studies, and judicial opinions concerning the
adverse secondary effects of adult uses on the community which include but are not limited to the
following:
1. Ci[y of Renton v. Playtime Theaters. Inc., 475 U.S. 411 (1956), reh. denied, 475
U.S. 1132.
2. Young v. American Mini-Theaters. Inc., 427 U.S. 50 (1975), ~, 429
U.S. 873.
3. Barnes v. Glen Theater, 501 U.S. 560 (1991).
4. Report on Zoning and Other Methods of Regulating Adult Entertainment in
Amarillo, (Texas) dated September 12, 1977.
5. Rctmlation of Criminal Activity and Adult Businesses. City of Phoenix, May,
1979.
6. Findings of the City Planning Commi.qsion for the City of New York dated January
26, 1977.
7. Detroit's Approach to Regulating the "Adult Uses" presented to American Institute
of Planners, Annual Conference, October 10, 1977.
8. Report to the City Planning Commi.qsion and City Council from the Planning
Department of the City of Beaumont, Texas. Dated September 14, 1982.
9. Legislative Report on an Ordinance Amending Section 28-73 of the Code of
Ordinances of the City_ of Houston. Texas: Providing for the Re_tmlation of Sexually Oriented
Commercial Enterprises. Adult Bookstores. Adult Movie Theaters and Massage Establishments:
2 ORD. NO. 31-98
and Making Various Provisions and Findings Relating to the Sul~ject. Report prepared by the
Committee on the Proposed Regulation of Sexually Oriented Businesses and dated 1983.
10. Report on Adult Oriented Business in Austin. Report prepared by the Special
Programs Division of the Office of Land Development Services of the City of Austin, Texas.
Dated May 19, 1986.
11. Adult Entertainment Business in Oklahoma Ci_ty. A Survey of Real Estate
~. Report prepared by the Community Development Department of the City of
Oklahoma City, Oklahoma. Dated March 3, 1986.
12. Adult Entertainment 13usincsses in In~lianapQlis. An analysis prepared by the
Department of Metropolitan Development dated February, 1984.
13. Palm Beach County SheriWs Office report dated April, 1998.
14. Director's Report: Prooosed Land Use Code Text Amendment. Adult Cabaret.~.
A report prepared by the Director of the Department of Construction and Land Use of the City of
Seattle, Washington. Dated March 24, 1989; and,
WHEREAS, the City Commission for the City of Delray Beach recognizes that as adult
entertainment uses affect surrounding sites in a deleterious manner, particularly when several adult uses
are concentrated and special regulation of these uses is necessary to insure that these effects wilt not
contribute to the blighting or downgrading of the surrounding neighborhood; and,
WHEREAS, the City also adopts the findings made in the adoption of Ordinances 35-90
and 56-90; and,
WHEREAS, the secondary effects of adult entertainment uses include, but are not limited
to, increased criminal activities, moral degradation, depreciation of property value, and harm to the
economic welfare of the community as a whole; and,
WHEREAS, locations having adult entertainment tend to attract other activities which are
illegal or immoral or unhealthful, such as, but not limited to prostitution, solicitation for prostitution,
lewd and lascivious behavior, sale or possession of controlled substances and violent crimes against
persons or property; and,
WHEREAS, the City Commission for the City of Delray Beach, Florida, has determined
that this ordi)~anee is necessary to prevent crime, protect the City's retail trade, maintain property
values, and protect and preserve the quality of Delray Beach's neighborhoods, commercial districts, and
the quality of urban life; and,
il 3 ORD. NO. 31-98
WHEREAS, the local planning agency, pursuant to Florida Statutes Section 163.3174(c)
and LDR Section 1.1.6 has reviewed the amendment and made recommendations and determined that the
change is consistent with and furthers the objectives and policies of the Comprehensive Plan: and,
WHEREAS, certain historic districts and certain buildings have been placed on the
National Register of Historic Places or are in and of themselves contributory buildings in the historic
district and reflect the history and unique character of the City which will be adversely affected by the
secondary effects of adult entertainment uses; and,
WHEREAS, the preservation of historic districts and historic buildings serves a valid
governmental objective, promotes the public welfare, provides economic stimulation through tourism,
enhances architectural and educational enrichment, affords neighborhood protection, community
building, promotes cultural stability, preserves a sense of history and enhances aesthetics; and,
WHEREAS, the performers/entertainers and employees who are nude or partially nude
pose a threat to the health of patrons, customers, other employees and entertainers and themselves that
may lead to the spread of communicable and social disease; and,
WHEREAS, the concerns raised in the foregoing legislative findings relate to substantial
: and legitimate governmental interests; and,
.!
WHEREAS, adult use establishments have operational characteristics which should be
: reasonably regulated in order to protect those substantial governmental concerns; and,
WHEREAS, certain sections of the Code regulating Adult Entertainment establishments
need clarification and correction; and,
WHEREAS, amendments to the Code governing Adult Entertainment are required to
bring the Code in compliance with current law.
NOW THEREFORE, BE IT ORDAINED BY THE C1TY COMMISSION OF THE CITY
OF DELRAY BEACH AS FOLLOWS:
Section 1. That Chapter 4, "Zoning Regulations", Article 4.3, "District Regulations,
General Provisions", Section 4.3.3, "Special Requirements for Specific Uses", Subsection 4.3.3(AA),
"Adult Entertainment Establishments", of the Land Development Regulations of the Code of Ordinances
. of the City of Delray Beach, is hereby amended to read as follows:
.;
(AA) Adult Entertainment Establishments: In addition to the requirements of the
underlying zoning district, other applicable general regulations, County_ licensing requirements,
,,1 par re ons,
4 ORD. NO. 31-98
113.20 of the Code of Ordinances of the Ci_ty of Delray Beach. the following requirements shall
apply to adult entertainment establishments:
(1) No adult entertainment establishment shall be located on properties with
frontage on an arterial road or located east of the CSX railroad tracksj
(2) No adult entertainment establishment shall be located closer than one thousand
(1,000) feet from any house of worship, school, residential zoning district, or community
facilities Z.O. lliI~district (CF. OS. OSR. CD) gc.~c,9,1 where the use is or is to be regularly
freouented by the general public (i.e. community_ center, parks, school, courthouse, child care
facilities, offices, etc.) measured from lot line to lot line boundary along a straight airline route,
except when the property_ containing the adult entertainment establishment is separated from the.
above by the 1-95 right-of-way.
(3) No adult entertainment establishment shall be located within seven hundred
fifty (750) feet of an existing alcoholic beverage establishment, measured from lot line to lot line
boundary_ along a straight airline route.
(4) Signage. Only one sign per adult entertainment establishment is permitted,
and such sign shall not extend above twelve (12) feet above ground level or have an area of
greater than thirty-six (36) square feet. No neon material shall be permitted on the sign. Ail
., other restrictions of the sign code Shall apply herewith.
(5) No adult entertainment establishment shall be located within an historic
district, on an historic site. or on nrotmrties listed on the Local or National Re~ister of Historic
Places. unless the historic district, site or property was previously used for an adult entertainment
(6) The minimum floor area net room or partitioned area within an adult
entertainment establishment must he 2.000 sq. ft.. exclusive of kitchen, restrooms, storage areas.
and other non-public/customer area of the establishment.
(7) performers/entertainers or employees in the stare of nudity_ or partial nudity
shall not approach within four feet of patrons, customers, or other employees or other
performers/entertainers, and must nerform/entertain from a stage encompassing an area of at least
one hundred (1003 square feet.
5 ORD. NO. 31-98
~. That Chapter 4 of the Land Development Regulations of the Code of
Ordinances of the City of Delray Beach, Section 4.4.9(D)(1), "Conditional Uses and Structures
Allowed" is hereby amended by deleting subsection 4.4.9 (D)(1) and renumbering the remaining list of
conditional uses to read as follows:
(D) Conditional Uses and Structures Allowed: The following are allowed as
conditional uses in the GC District, except as modified in the West Atlantic
Avenue Overlay District by Section 4.4.9(G)(1)(a) and the North Federal Highway
Overlay District by Section 4.4.9(G)(2).
Section 3. That should any section or provision of this ordinance or any portion thereof,
any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder hereof as a whole or part thereof other than the part
declared to be invalid.
Section 4. That all ordinances or parts of ordinances in conflict herewith be, and the same
are hereby repealed.
Section 5. That this ordinance shall become effective immediately upon its passage on
second and final reading.
PASSED AND ADOPTED in regular session on second and final reading on this the
~ day of ,1998.
MAYOR
ATTEST:
City Clerk
First Reading
Second Reading
adulr.3.ord
r~v. 815198
6 ORD. NO. 31-98